Handout 10/3 Tort Law PDF

Handout 10/3 Tort law developed quickly in the mid-nineteenth century in response to rapid industrialization and the accidents industrialization wrought, and in response to the failure the slow-moving common law to address harms and injuries. Brown (separating fighting dogs), Ryan (fire caused by t...

Handout 10/3 Tort law developed quickly in the mid-nineteenth century in response to rapid industrialization and the accidents industrialization wrought, and in response to the failure the slow-moving common law to address harms and injuries. Brown (separating fighting dogs), Ryan (fire caused by train), and Fent (rejecting Ryan) are seminal in the development of tort law and reflect the efforts of judges to work out legal solutions to harms and injuries derived from industrial development. After carefully reading selections from each case, answer the following questions to the best of your ability. 1. According to Justice Shaw in Brown, can an injured party recover if they were even slightly responsible for the accident? 2. According to Shaw, can you be liable for harms resulting from lawful, unintentional acts? Explain. 3. Judge Hunt writes, “the damages incurred are not the immediate but the remote result of the negligence of the defendants. The immediate result was the destruction of their own wood and sheds; beyond that, it was remote.” What problem is Judge Hunt defining? 4. What does Judge Hunt in Ryan propose as an alternative to direct recovery from the railroad? 5. Why might courts and policymakers be interested in an alternative to recovering directly from industries, like the railroad? 6. What “ancient doctrine” does Justice Lawrence “cling” to in Fent? 7. Does Justice Lawrence believe that Railroads should be insulated from liability? Why? Why not? 8. Do the judges and Ryan and Fent agree or disagree? Explain. Brown v. Kendall 6 Cush. (60 Mass.) 292 (1850) SHAW, C. J. This is an action of trespass, vi et armis, brought by George Brown against George K. Kendall, for an assault and battery… The facts set forth in the bill of exceptions preclude the supposition, that the blow… was intentional. The whole case proceeds on the assumption, that the damage sustained by the plaintiff… was inadvertent and unintentional; and the case involves the question how far, and under what qualifications, the party by whose unconscious act the damage was done is 1 responsible for it. We use the term “unintentional” rather than involuntary, because in some of the cases, it is stated, that the act of holding and using a weapon or instrument, the movement of which is the immediate cause of hurt to another, is a voluntary act, although its particular effect in hitting and hurting another is not within the purpose or intention of the party doing the act. ∆ ∆ ∆ We think… that the plaintiff must come prepared with evidence to show either that the intention was unlawful, or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable… If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom… In applying these rules to the present case, we can perceive no reason why the instructions asked for by the defendant ought not to have been given; to this effect, that if both plaintiff and defendant at the time of the blow were using ordinary care, or if at that time the defendant was using ordinary care, and the plaintiff was not, or if at that time, both the plaintiff and defendant were not using ordinary care, then the plaintiff could not recover. In using this term, ordinary care, it may be proper to state, that what constitutes ordinary care will vary with the circumstances of cases. In general, it means that kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger. A man, who should have occasion to discharge a gun, on an open and extensive marsh, or in a forest, would be required to use less circumspection and care, than if he were to do the same thing in an inhabited town, village, or city. To make an accident, or casualty, or as the law sometimes states it, inevitable accident, it must be such an accident as the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency, and in the circumstances in which he was placed. We are not aware of any circumstances in this case, requiring a distinction between acts which it was lawful and proper to do, and acts of legal duty. There are cases, undoubtedly, in which officers are bound to act under process, for the legality of which they are not responsible, and perhaps some others in which this distinction would be important. We can have no doubt that the act of the defendant in attempting to part the fighting dogs, one of which was his own, and for the injurious acts of which he might be responsible, was a lawful and proper act, which he might do by proper and safe means. If, then, in doing this act, using due care and all proper precautions necessary to the exigency of the case, to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in his eye, and wounded him, this was the result of pure accident, or was involuntary and unavoidable, and therefore the action would not lie. Or if the defendant was chargeable with some negligence, and if the plaintiff was also chargeable with negligence, we think the plaintiff cannot recover without showing that the damage was caused wholly by the act of the defendant, and that the plaintiff's own negligence did not contribute as an efficient cause to produce it. The court instructed the jury, that if it was not a necessary act, and the defendant was not in duty bound to part the dogs, but might with propriety interfere or not as he chose, the defendant was responsible for the consequences of the blow, unless it appeared that he was in the exercise of extraordinary care, so that the accident was inevitable, using the word not in a strict but a popular 2 sense. This is to be taken in connection with the charge afterwards given, that if the jury believed, that the act of interference in the fight was unnecessary, (that is, as before explained, not a duty incumbent on the defendant,) then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of plaintiff, was on the defendant. The court are of opinion that these directions were not conformable to law. If the act of hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care adapted to the exigency of the case, and therefore such want of due care became part of the plaintiff's case, and the burden of proof was on the plaintiff to establish it… … [W]e are of opinion, that the other part of the charge, that the burden of proof was on the defendant, was incorrect. Those facts which are essential to enable the plaintiff to recover, he takes the burden of proving. The evidence may be offered by the plaintiff or by the defendant; the question of due care, or want of care, may be essentially connected with the main facts, and arise from the same proof; but the effect of the rule, as to the burden of proof, is this, that when the proof is all in, and before the jury… if it appears that the defendant was doing a lawful act, and unintentionally hit and hurt the plaintiff, then unless it also appears to the satisfaction of the jury, that the defendant is chargeable with some fault, negligence, carelessness, or want of prudence, the plaintiff… is not entitled to recover. New trial ordered. Ryan v. New York Central Railroad Company (1866) HUNT, J. On the 15th day of July, 1854, in the city of Syracuse, the defendant, by the careless management… one of its engines, set fire to its woodshed, and a large quantity of wood therein. The plaintiff's house, situated at a distance of one hundred and thirty feet from the shed, soon took fire from the heat and sparks, and was entirely consumed, notwithstanding diligent efforts were made to save it. The question may be thus stated: A house in a populous city takes fire, through the negligence of the owner or his servant; the flames extend to and destroy an adjacent building: Is the owner of the first building liable to the second owner for the damage sustained by such burning? It is a general principle that every person is liable for the consequences of his own acts. He is thus liable in damages for the proximate results of his own acts, but not for remote damages. It is not easy at all times to determine what are proximate and what are remote damages. In Thomas v. Winchester Judge RUGGLES defines the damages for which a party is liable, as those which are the natural or necessary consequences of his acts. Thus, the owner of a loaded gun, who puts it in the hands of a child, by whose indiscretion it is discharged, is liable for the injury sustained by a third person from such discharge... The injury is a natural and ordinary result of the folly of placing a loaded gun in the hands of one ignorant of the manner of using it, and incapable of appreciating its effects. The owner of a horse and cart, who leaves them unattended in the street, 3 is liable for an injury done to a person or his property, by the running away of the horse, for the same reason. The injury is the natural result of the negligence. If the party thus injured had, however, by the delay or confinement from his injury, been prevented from completing a valuable contract, from which he expected to make large profits, he could not recover such expected profits from the negligent party, in the cases supposed. Such damages would not be the necessary or natural consequences, nor the results ordinarily to be anticipated, from the negligence committed. So if an engineer upon a steamboat or locomotive, in passing the house of A., so carelessly manages its machinery that the coals and sparks from its fires fall upon and consume the house of A., the railroad company or the steamboat proprietors are liable to pay the value of the property thus destroyed… …Thus far the law is settled and the principle is apparent. If, however, the fire communicates from the house of A. to that of B., and that is destroyed, is the negligent party liable for his loss? And if it spreads thence to the house of C., and thence to the house of D., and thence consecutively through the other houses, until it reaches and consumes the house of Z., is the party liable to pay the damages sustained by these twenty-four sufferers? The counsel for the plaintiff does not distinctly claim this, and I think it would not be seriously insisted that the sufferers could recover in such case. Where, then, is the principle upon which A. recovers and Z. fails? ∆ ∆ ∆ [I] place my opinion upon the ground that, in the one case, to wit, the destruction of the building upon which the sparks were thrown by the negligent act of the party sought to be charged, the result was to have been anticipated the moment the fire was communicated to the building; that its destruction was the ordinary and natural result of its being fired. In the second, third or twenty-fourth case, as supposed, the destruction of the building was not a natural and expected result of the first firing. That a building upon which sparks and cinders fall should be destroyed or seriously injured must be expected, but that the fire should spread and other buildings be consumed, is not a necessary or an usual result. That it is possible, and that it is not unfrequent, cannot be denied. The result, however, depends, not upon any necessity of a further communication of the fire, but upon a concurrence of accidental circumstances, such as the degree of the heat, the state of the atmosphere, the condition and materials of the adjoining structures and the direction of the wind. These are accidental and varying circumstances. The party has no control over them, and is not responsible for their effects. My opinion, therefore, is, that this action cannot be sustained, for the reason that the damages incurred are not the immediate but the remote result of the negligence of the defendants. The immediate result was the destruction of their own wood and sheds; beyond that, it was remote. ∆ ∆ ∆ To sustain such a claim as the present, and to follow the same to its legitimate consequences, would subject to a liability against which no prudence could guard, and to meet which no private 4 fortune would be adequate. Nearly all fires are caused by negligence, in its extended sense. In a country where wood, coal, gas and oils are universally used, where men are crowded into cities and villages, where servants are employed, and where children find their home in all houses, it is impossible that the most vigilant prudence should guard against the occurrence of accidental or negligent fires. A man may insure his own house or his own furniture, but he cannot insure his neighbor's building or furniture, for the reason that he has no interest in them. To hold that the owner must not only meet his own loss by fire, but that he must guarantee the security of his neighbors on both sides… would be to create a liability which would be the destruction of all civilized society. No community could long exist, under the operation of such a principle. In a commercial country, each man, to some extent, runs the hazard of his neighbor's conduct, and each, by insurance against such hazards, is enabled to obtain a reasonable security against loss. To neglect such precaution, and to call upon his neighbor, on whose premises a fire originated, to indemnify him instead, would be to award a punishment quite beyond the offense committed. It is to be considered, also, that if the negligent party is liable to the owner of a remote building thus consumed, he would also be liable to the insurance companies who should pay losses to such remote owners. The principle of subrogation would entitle the companies to the benefit of every claim held by the party to whom a loss should be paid. In deciding this case, I have examined the authorities cited from the Year Books, and have not overlooked the English statutes on the subject, or the English decisions extending back for many years. It will not be useful further to refer to these authorities, and it will be impossible to reconcile some of them with the view I have taken. The remoteness of the damage, in my judgment, forms the true rule on which the question should be decided, and which prohibits a recovery by the plaintiff in this case. Judgment should be affirmed. Fent et al. v Toledo, Peoria & Warsaw Railway Co. 59 Ill. 349 (1871) Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court: On the 1st of October, 1867, a locomotive, with a train of freight cars, belonging to the appellee, in passing eastwardly through the village of Fairbury, threw out great quantities of unusually large cinders, and set on fire two buildings and a lumber yard. The weather at the time was very dry, and the wind blowing freely from the south. One of the buildings ignited by the sparks was a warehouse near the track. The heat and flames from this structure speedily set on fire the building of plaintiffs, situated about two hundred feet from the warehouse, and destroyed it and most of its contents. To recover damages for this loss, the plaintiffs have brought this suit. The defendant in the circuit court demurred to the plaintiffs' evidence, and the court sustained the demurrer. To reverse this judgment, the plaintiffs bring up the record. The evidence shows great negligence on the part of defendant, but it is unnecessary to discuss this question. Where a demurrer is interposed to the evidence, the rule is, that the demurrer admits not only all that the plaintiffs' testimony has proved, but all that it tends to prove. In this 5 case, therefore, the defendant's negligence must be regarded as admitted. It is not, indeed, controverted, but the counsel rely for defense solely upon the ground that the plaintiffs' building was not set on fire directly by sparks from the defendant's locomotive, but by the burning of the intermediate warehouse, and that therefore the defendant is to be held harmless, under the maxim “causa proxima, non remota, spectatur.” There are not many of the maxims of the law which touch so closely upon metaphysical speculation. The rule itself is one of universal application, but the difficulty lies in establishing a criterion by which to determine when the cause of an injury is to be considered proximate, and when merely remote. Greenleaf [on evidence]… lays down the rule that “the damage, to be recovered, must always be the natural and proximate consequence of the act complained of.” But this seems little more than the substitution of one form of general expression for another. Parsons [on contracts]… after alluding to the confusion in which the adjudged cases leave this question, says: “We have been disposed to think that there is a principle derivable on the one hand from the general reason and justice of the question, and on the other applicable as a test in many cases, and perhaps useful, if not decisive, in all. It is, that every defendant shall be held liable for all of those consequences which might have been foreseen and expected as the results of his conduct, but not for those which he could not have foreseen, and was therefore under no moral obligation to take into consideration.” We are disposed to regard this explanation of the rule as clearer, and capable of more precise application, than any other we have met with in our examination of this subject. ∆ ∆ ∆ With the exception of two recent cases decided in this country upon the precise question before us, it can not be denied that the great current of English and American authorities would bring the defendant in this case within the category of proximate causes. The great effort of the counsel for defendant has been to explain away, as far as possible, the effect of these authorities, and to draw a distinction between them and the case at bar. However successful they may have been in showing a difference between some of the cases cited by appellants' counsel and that under consideration, on the other hand, they cite no English case, and but two American cases, in which a wrong doer has been excused from liability under circumstances analogous to those disclosed by this record, on the ground that he was a remote, and not a proximate, cause of the injury done. [T]he English reports abound with instances in which causes more remote than the cause in this case, have been held sufficiently direct and proximate to be made a ground of damages… [In Montoyer v. London Insurance Co., 6 Exch. 451.] [T]he defendant had insured the plaintiff's tobacco against perils of the sea. Hides were shipped in the same vessel. The vessel shipped sea water, which, coming in contact with the hides, caused them to ferment. The fermentation created a noxious vapor which acted on the tobacco and spoiled its flavor. Suit was brought against the company, and the defense was the same relied upon in this case. The court held the defendant responsible, and said in its opinion: “The sea water having caused the hides to ferment, and thereby the tobacco to be spoiled, it is merely playing with terms to say the injury is 6 not occasioned by the sea water. The action of the sea water, which had been shipped in consequence of bad weather, occasioned the fermentation, and is the proximate cause.” If we turn to the American courts, we shall find the general current of authorities to be in harmony with the English precedents. ∆ ∆ ∆ The case of Hart v. Western Railroad Co. [Mass. 1847]…. presented precisely the same question with that before us. The locomotive set fire to a shop, and the fire crossed the street and destroyed a dwelling house. The court held the company liable. ∆ ∆ ∆ Counsel for appellee seek to weaken the authority of these cases by adverting to the fact that they were decided under a statute of Massachusetts making railway companies liable for all losses by fire communicated from their locomotives, and authorizing them to insure against such risks. But the statute does not in the least degree affect the common law principle under consideration, and was not so regarded by the court in these decisions. It simply makes the companies liable for fires caused by them, irrespective of the question of negligence. But if the locomotive was the remote, instead of the proximate cause, in the sense of the maxim we are now discussing, there would have been no liability under the statute any more than at common law. Upon this question of cause, the cases are as much in point as if there had been no statute. ∆ ∆ ∆ We now come to the two cases chiefly relied upon by appellee's counsel. They are quite in point, but we are wholly unable to agree with their conclusions. One is Ryan v. The New York Central Railroad Co., 35 N. Y. 214, and the other is Kerr v. The Pennsylvania Railroad Co., These two cases stand alone, and we believe they are directly in conflict with every English or American case, as yet reported, involving this question. As we understand these cases, they hold that, where the fire is communicated by the locomotive to the house of A, and thence to the house of B, there can be no recovery by the latter. It is immaterial, according to the doctrine of these cases, how narrow may be the space between the two houses, or whether the destruction of the second would be the natural consequence of the burning of the first. The principle laid down by these authorities and urged by counsel in this case is, that, in order to a recovery, the fire which destroys the plaintiff's property must be communicated directly from the railway, and not through the burning of intermediate property. With all our respect for these courts, we cannot adopt this principle, and it is admitted by the judges who delivered the opinions to have no precedent for its support, and to be absolutely in conflict with former adjudications. ∆ ∆ ∆ 7 The Court of Appeals in New York, and the Supreme Court of Pennsylvania, seem, from their opinions, to have attached great weight to an argument urged upon us by the counsel for appellee, and indeed that argument seems to have been the chief reason for announcing a rule which both courts struggle in vain to show is not in conflict with all prior adjudications. That argument is, in brief, that an entire village or town is liable to be burned down by the passing of the fire from house to house, and if the railway company, whose locomotive has emitted the cinders that caused the fire, is to be charged with all the damages, these companies would be in constant danger of bankruptcy, and of being obliged to suspend their operation. We confess ourselves wholly unable to see the overpowering force of this argument. It proceeds upon the assumption that, if a great loss is to be suffered, it had better be distributed among a hundred innocent victims than wholly visited upon the wrong doer. As a question of law or ethics, the proposition does not commend itself to our reason. We must still cling to the ancient doctrine, that the wanton wrong doer must take the consequences of his own acts, whether measured by a thousand dollars or a hundred thousand. As to the railroads, however useful they may be to the regions they traverse, they are not operated by their owners for benevolent purposes, or to promote the public welfare. Their object is pecuniary profit. It is a perfectly legitimate object, but we do not see why they should be exempted from the moral duty of indemnification for injuries committed by the careless or wanton spread of fire along their track, because such indemnity may sometimes amount to so large a sum as to sweep away all their profits. The simple question is, whether a loss, that must be borne somewhere, is to be visited on the head of the innocent or the guilty. If, in placing it where it belongs, the consequence will be the bankruptcy of a railway company, we may regret it, but we should not, for that reason, hesitate in the application of a rule of such palpable justice. But is it true that railroads can not thrive under such a rule? They have now been in operation many years, and extend over very many thousand miles, and we have never yet heard of town or village that has been destroyed by a fire ignited by their locomotives. Improved methods of construction, and a vigilant care in the management of locomotives, have made the probability of loss from this cause so slight that we can not but regard the fears of the disastrous consequences to the railway companies which may follow from an adherence to the ancient rule, as in a large degree chimerical. A case may occur at long intervals in which they will be required to respond in heavy damages; but better this, than that they should be permitted to evade the just responsibilities of their own negligence, under the pretence that the existence of the road may be endangered. It were better that a railway company should be reduced to bankruptcy, and even suspend its operations, than that the courts should establish for its benefit a rule intrinsically unjust, and repugnant not merely to ancient precedent, but to the universal sense of right and wrong. Our position on this subject is briefly this: We do not desire to impose upon the railway companies unreasonable obligations, or to subject them to unreasonable danger of great pecuniary loss. We do not wish to make them insurers against all damages by fire that may result from the passage of their trains, without reference to the question of remote and proximate cause. But, on the other hand, we do insist on applying to them the same rule that has been held through all the administration of the common law, with the exception of the two cases upon which we have been commenting. As already stated, we understand the doctrine of those two 8 cases, and the position of counsel for appellee to be, that, if fire is communicated from a locomotive to the house of A, and thence to the house of B, it is a conclusion of law that the fire sent forth by the locomotive is to be regarded as the remote, and not the proximate, cause, of the injury to B; and the railway company is, for this reason alone, to be held not responsible. This rule we repudiate as in the teeth of almost numberless decisions, and as unsupported by that reason which is the life of the law. We hold, on the contrary… it is in each case a question of fact, to be determined by the jury under the instructions of the court. Those instructions should be, in substance, what we have already stated. If the fire is the consequence of the carelessness of the railway company, and the question of remote or proximate cause is raised, the jury should be instructed that, so far as the case turns upon that issue, the company is to be held responsible, if the loss is a natural consequence of its alleged carelessness which might have been foreseen by any reasonable person, but is not to be held responsible for injuries which could not have been foreseen or expected as the results of its negligence or misconduct. In the case before us, owing to the distance of the plaintiff's building from the one first set on fire, this question might not have been one of easy determination. The defendant, however, thought it better not to take the risks of this issue, but, by a demurrer to the evidence, to rest his defense upon the theory that, even admitting all that the evidence tends to prove, there is still no liability. In this court, the counsel for the company have not discussed the evidence. They place the case on the single ground, that the company is free from liability, because the plaintiff's house was set on fire, not immediately by cinders thrown from the locomotive, but by the burning of another house. Their position is, that this alone exonerates the company, without any reference whatever to the question whether the second house was so near the first that in the then state of the wind and weather, its destruction was a natural consequence of the burning of the first, which any reasonable person could have foreseen and would have expected. This question they have not discussed. On the legal question upon which appellee's counsel thus rest the case, we can not adopt their views. On the demurrer to the evidence, we must hold it tended to prove that the fire escaped through the carelessness of the defendant, and that the destruction of the plaintiffs' house was its natural consequence, which any reasonable person could have foreseen. The demurrer should, therefore, have been overruled. The judgment is reversed, and the case remanded for trial. 9