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CONSTITUTION OF THE STATE OF CALIFORNIA

1849

We the people of California, grateful to Almighty; God for our freedom: in order to secure its blessings, do establish this Constitution.

Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. 

LAW OF TORTS

William L. Prosser

Professor of Law
Hastings College of Law

FOURTH EDITION

WEST PUBLISHING CO.
1971



Chapter 1

INTRODUCTION

1.    FUNCTION OF THE LAW OF TORTS

        A really satisfactory definition of a tort has yet to be found.  The numerous attempts which have been made to define the term have succeeded only in achieving language so broad that it includes other matters than torts, or else so narrow that it leaves out some torts themselves.  The word is derived from the Latin "tortus" or "twisted".   The metaphor is apparent: a tort is conduct which is twisted, or crooked, not straight.   "Tort" is found in the French language, and was at one time in common use in English as a general synonym for "wrong".   Broadly speaking, a tort is a civil wrong, other than breach of contract, for which the court will provide a remedy in the forma of an action for damages.   This, of course, says nothing more than that a tort is one kind of legal wrong, for which the law will give a particular redress.   But even this vague statement is inaccurate in one respect, since one important form of remedy for a tort is an injunction, granted in a court of equity, before any damage occurs, while another is the restitution of what is been wrongfully taken, and a still another is self-help by the injured party.  But the availability of all such remedies will depend in the first instance upon the possibility that an action for damages would live for the wrong thus averted, and so the statement made is sufficiently accurate to serve the purpose.

        It might be possible to define a tort by enumerating the things that it is not.   It is not crime, it is not breach of contract, it is not necessarily concerned with property rights or problems of government, but is the occupant of a large residuary field remaining if these are taken out of the law.   But this again is illusory, and the conception of a sort of legal garbage can to hold what can be put nowhere else is of no help.   In the first place, tort is a field which pervades the entire law, and is so interlocked at every point with property, contract and other accepted classifications that, as a student of law soon discovers, the categories are quite arbitrary and there is no virtue in them.   In the second, there is a central theme, or basis or idea, running through the cases of what are called torts, which, while it is difficult to put into words, does distinguish them in a greater or less degree from other types of cases.

        Included under the head of torts are a miscellaneous group of civil wrongs, ranging from simple, direct inferences with the person, such as assault, battery and false imprisonment, or with property, as in the case of trespasser conversion, up through various forms of negligence, two disturbances of intangible interest, such as those in good reputation, or commercial or social advantage.   These wrongs have little in common and appear at first glance to be entirely unrelated to one another, except perhaps by the accident of historical development; and it is not easy to discover any general principle upon which they may all be based, unless it is the obvious one that injuries are to be compensated, and antisocial behavior is to be discouraged.   This led Sir John Salmond, one of the greatest writers on the subject, to contend as late as 1928 that there is no such thing as a law of torts, but only a law of particular unconnected torts - that is, a set of pigeonholes, each bearing a name, into which the act or omission of the defendant must be fitted before the law will take cognizance of it and afford a remedy.

        This view has been rejected by many other riders who have felt that tort law is broader than any name categories, and that some more or less vague general principles run through it, however difficult they may be to formulate.   There is no necessity whatever that a tort must have a name.   New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none had been recognized before.  The intentional infliction of mental suffering, the obstruction of the plaintiff’s right to go where he likes, the invasion of his right of privacy, the denial of his right to vote, the conveyance of land to defeat a title, the infliction of prenatal injuries, the alienation of the affections of a parent, and injury to a man’s reputation by entering him in a rigged television contest, to name only a few instances, could not be fitted into any accepted classifications when they first arose, but nevertheless have been held to be torts. The law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiff’s interests are entitled to legal protection against conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to the remedy.

        At the opposite extreme is the bold attempt to reduce the entire law of torts to a single broad principle, that any harm done to another is a wrong, and calls for redress, unless “justification”for it can be shown.   In its form such a statement is objectionable, since there are some torts, such as malicious prosecution, as to which proof of the absence of justification is an indispensable part of the plaintiff’s case, and others, such as libel or slander, where it is the defendant who must justify his conduct, and lose if he does not.   But even with allowance made for the difficulty of wording it, the rule does not tell us what the law will recognize as “harm” to another, or as “justification” for it.   There are many interferences with the plaintiff’s interests, such as negligently causing him mere mental suffering without physical consequences or depriving him of the benefit of a contract, for which the law will give no remedy, although the defendant has been clearly at fault.   On the other hand, the “justification” may be something quite different from the moral exoneration which absolves the defendant in his own eyes and those of his neighbors.  Not only may a morally innocent man be held liable for the damage he has done, but many a scoundrel has been guilty of moral outrages, such as base in gratitude, without committing any tort.   It is legal justification which must be looked to: the law will hold the defendant responsible for what the law regards as unjustified - and so stated, the broad rule means little, or nothing.

        Abandoning the attempt to find a definition, which “strictly speaking, is nothing but an abbreviation which user of the term define may please himself,” efforts have been made to discover certain characteristics common to all torts, which might throw some light upon their nature. As is already been said, a wrong is called a tort only if the harm which is resulted, or is about to result from it, is capable of being compensated in an action at law for damages, although other remedies may also be available.   Beyond this, it is been said that torts consist of the breach of duties fixed and imposed upon the parties by the law itself, without regard to their consent to assume them, or their efforts to evade them.   That is to say, that no man need enter into the obligation of a contract with another saved by his own free will; but when he drives an automobile down the street, the law imposes upon him an obligation to all persons in the highway, to drive it with reasonable care for their safety - and this without his consent or understanding, and if necessary over his vigorous protest.   If he does not do so, and injures another, it is a tort.

        But this, however superficially attractive it may be, is an illusory distinction. All legal duties are of course imposed by the law, and it is a modern rule that the maker of a contract is held to assume the obligation, not because of his intention or consent to do so, but because ally attaches such consequences to his manifested conduct; and that he assumes it nevertheless when he has no intention at all of doing so.   Quasi-contractual duties are likewise imposed by the law, without regard to the consent of the defendant.   In the same sense, the tort duty of care and driving the cars assume because ally attaches that result to what is been done voluntarily.   Furthermore, such tort obligations of conduct are imposed by reason of the relation in which a party stand toward one another; and in determining that relation, the law will often take into account what is been agreed between them, either to increase the actors responsibility or to lessen it, so that the tort duty finally fixed may coincide with that set by a contract, or for its breach either a contract or at tort action will lie.   To say that the one obligation is voluntarily assumed in such a case, while he other is not, is to resort to abstract fictions.

        Again, it is been said that tort duties are owed to persons generally, or toward general classes of persons.   Or in other words, that the automobile driver is under a tort obligation of care to everyone in his path whom he may injure, and is not free, as he is when he makes contract or accepts a trust, to single out one person only toward whom he will be bound.   Certainly the distinction holds good in many cases: a common carrier, for example, may make a different contract with each single passenger, varying in its terms as to fair and the length of transportation, but the tort duty of reasonable care for their safety extends to every person toward whom stands in the relation of carrier and passenger, including those who have not contracted at all, but are riding free.    

2.  TORT AND CRIME

        A tort is not the same thing as a crime, although the two sometimes have many of the same features in common.   The distinction between them lies in the interest affected and the remedy afforded by the law.   A crime is an offense against the public at large, for which the state, as the representative of the public, will bring proceeding in the form of a criminal prosecution.   The purpose of such a proceeding is to protect and vindicate the interests of the public as a whole, by punishing the offender or eliminating him from society, either permanently or for a limited time, by reforming him or teaching him not to repeat the offense, and by deterring others from imitating him.   A criminal prosecution is not concerned in any way with the compensation of the injured individual against whom the crime is committed, and his only part in it is that of an accuser and a witness for the state.   So far as the criminal law is concerned, he will leave the courtroom empty-handed.

        The civil action for a tort, on the other hand, is commenced and maintained by the injured person himself, and its purpose is to compensate him for the damage he has suffered, at the expense of the wrongdoer.   If he is successful, he receives a judgement for a sum of money, which he may enforce by collecting it from the defendant.

Chapter 2

INTENTIONAL INTERFERENCE WITH THE PERSON

ASSAULT

p. 40 - 41

            To be held liable for assault, the defendant must have intended to interfere with the plaintiff's personal integrity - which is to say that he must have intended to bring about an assault, a battery, or an imprisonment.   There is, properly speaking, no such thin as a negligent assault.   But the intent need not necessarily be to inflict physical injury, and it is enough that there is an intent to arouse apprehension.   Thus it is an assault to fire a gun not aimed at the plaintiff for the purpose of frightening him, or to point it at him when the defendant knows that is it unloaded, and the plaintiff does not.   "It is not the secret intent of the assaulting party, nor the undisclosed fact of his ability or inability to commit a battery that is material; but what his conduct and the attending circumstances denote at the time to the party assaulted.  Once the apprehension has been intentionally created, it is no defense that the defendant changed his mind, and desisted or withdrew without doing physical harm.   The tort is complete with the invasion of the plaintiff's mental peace, and the failure to carry it through to batter will not prevent liability.

            Assault and battery go together like ham and eggs.   The difference between them is that between physical contact and the mere apprehension of it.   One may exist without the other.   It is a battery to strike a man while he is asleep, although he does not discover it until afterward; it is an assault to shoo at him, frighten him and miss him.   Except for this difference in the character of the invasion of the plaintiff's interests, the two are in all respects identical, and there is no apparent reason why the rules applied to battery, including the fiction of "transferred intent", should not also apply to assault.   In the ordinary case, both assault and battery are present; it is an assault when the defendant seings his fist to strike the plaintiff, and the plaintiff sees the movement, a battery when the fist comes in contact with the plaintiff's nose.  The two terms are so closely associated in common usage that they are generally used together, or regarded as more or less synonymous.   Loosely drawn criminal statutes, which make use of "assault" to include attempted battery itself, have assisted in the obscuring the distinction.   It is not accurate to say that every battery includes and assault," but in practice the difference between the two is often entirely ignored.

Chapter 4

DEFENSES TO INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY

p. 131 - 133

        The details of the complex rules which have grown up around arrest a warrant might better be considered in a treatise on criminal law.   A distinction necessarily has been made between the authority of officers of the law, charged with the official duty of enforcing it, and that of private citizens.   The power to arrest has been limited according to the gravity of the crime with which the wrongdoer is to be charged.   Highly technical distinctions have been drawn between felonies, which in general are major crimes; breaches of the peace which are public offenses done by violence, or likely to create public disturbance; and the greater number of minor criminal violations which are mere misdemeanors.    The classification of a particular offense is very largely a matter of statute, and will vary in each jurisdiction.   The unfortunate officer or citizen is required to know these distinctions, or to act at his peril. 
   
        Broadly speaking, either an officer or a private citizen may arrest without a warrant to prevent a felony or a breach of the peace which being committed, or reasonably appears about to be committed, in his presence.   Once the crime has been committed, the jealous safeguards which the law always has thrown about the personal liberty of the individual have led to a restriction of the privilege.   The officer, representing the state, may still arrest without legal process if he has information which affords a reasonable ground for suspicion that a felony has been committed, and that he has the right criminal.   The burden rests upon him to show that he has reasonable grounds, and mere suspicion, unsupported by information, is not enough.   The private person may arrest in a felony has in fact been committed, and he has reasonable grounds to suspect the man whom he arrests, but his authority depend upon the fact of the crime, and he must take the full risk that none has been committed.   A reasonable mistake as to the individual will protect him, but a mistake as to the felony will not. 

        The person arrested must be informed of the charges against him, and an arrest made upon an improper ground cannot later be justified because there was a proper one available.     

Chapter 5

NEGLIGENCE: STANDARD OF CONDUCT

    Negligence was scarcely recognized as a separate tort before the earlier part of the 19th century.   Prior to that time the word had been used in a very general sense to describe the breach of any legal obligation, or to designate a mental element, usually one of inadvertence or indifference, entering into the commission of other torts.   Some writers, in fact, once maintained that negligence was merely one way of committing any other tort, and itself had no particular legal significance, just as some courts, for example, still speak occasionally of a negligent “battery.”   But for more than a century, it has received more or less general recognition as an independent basis of liability, with distinct features of its own, differing on the one hand from the intentional torts and on the other from those in which strict liability is imposed.

   One of the earliest appearances of what we now know as negligence was in the liability of those who profess to be competent in certain “public” callings.   A carrier, and innkeeper, a blacksmith, or a surgeon, was regarded as holding himself out to the public as one in whom confidence might be reposed, and hence as assuming an obligation to give proper service, for the breach of which, by any negligent conduct, he might be liable but in the field of trespass and nuisance, the notion also developed, thinly disguised, that there might be liability for negligence; and in later years, the action on the case produced a large, undigested group of situations in which negligence was the essence of the tort.  Since the early law found its hands full in dealing with the more outrageous forms of misbehavior, it was natural that the early cases should be concerned almost exclusively with positive acts, rather than with omissions to act, or with “misfeasance” rather than “nonfeasance.”   There was a slow development of the idea that certain relations between the parties might impose an obligation to take affirmative action, so that there might be liability for nonfeasance.   Any such obligation remains to this day very largely a matter of some specific relation, by reason of which the defendant may be regarded as having undertaken a duty to act. New paragraph   about the year 1825, negligence began to be recognized as a separate and independent basis of tort liability.   It’s rise coincided in a marked degree with the Industrial Revolution; and it very probably was stimulated by the rapid increase in the number of accidents caused by industrial machinery, and in particular by the invention of railways.   It undoubtedly was greatly encouraged by the disintegration of the old forms of action, and the disappearance of the distinction between direct and indirect injuries, found in trespass and case.    The cause of action which at least emerge from this process of reshuffling took on, in general, the aspects of the action on the case, largely because the facts upon which the initial decisions were based fitted that action intentional injuries, whether direct or indirect, began to be grouped as a distinct field of liability, and negligence remained as the main basis for unintended torts.   Today it is not at all disputed that separate problems and principles, as well as distinct questions of policy, a rise in negligence cases.

   In unavoidable accident is an occurrence which was not intended, and which, under all the circumstances, could not have been foreseen or prevented by the exercise of reasonable precautions.   No accident, of course is entirely inevitable, so long as a results from any voluntary act.   If the defendant rides a horse, which runs away with him and injures the plaintiff, the accident is not strictly inevitable, since the defendant intentionally rode the horse, and might have prevented all harm by keeping him in the barn.   But the runaway is called “unavoidable” if it did not result from any lack of proper care in the management of the horse, because both wrongful intent and negligence are lacking.   There is no liability in such a case.   Upon exactly the same basis, the driver of an automobile who suddenly loses control of his car because he is seized with a heart attack, stroke, a fainting spell, or epileptic fit, or is merely overcome by slumber, is not liable unless he knew that he was likely to become ill or go to sleep, in which case he is found to be negligent in driving the car at all.   The same conclusions are reached when the defendant’s car struck by another vehicle and thrown out of control, or a child and foreseeably dashes out in front of the car such rules are adopted because the line must. Be drawn somewhere and if the defendant is to be held liable merely because he has ridden a horse or driven the car, it would be quite as logical, at least in the eyes of the law, to hold him liable for owning it, or even for drawing his breath or being born.   To hold that he does every voluntary act at his peril, and must ensure others against all of the consequences that may occur, would be an entirely unreasonable and quite intolerable burden upon all of human activity.

   Nevertheless, as to injuries to persons or property which followed as the more direct and immediate consequence of voluntary act, and for which an action of trespass would lie, the early common law imposed a very strict responsibility.    The defendant who fired a gun, and accidentally wounded the plaintiff, was held liable unless he could establish that the accident was in evitable - “judged utterly without his fault; as if a man by force take my hand and strike you -“ and the burden was upon him to prove that such was the case.   As has been stated above, the progress of the law has been away from this position.   There were jurisdictions in which the rule survived well into the 19th century, that if the defendant voluntarily discharged the gun, he was liable for the injury.   But in Brown versus Kendall, where the defendant, interfering in a dogfight, raised his stick and accidentally struck a man behind them, the Massachusetts court held that there was no liability in the absence of some wrongful intent or negligence.   This case is now uniformly followed.   The man who fires a gun, the automobile driver whose tire blows out, the boy on a bicycle who frightens a horse, the man who instinctively and reasonably seizes another to save himself from falling, are responsible for the damage done only if they have been at fault; and by the great weight of authority, the burden of proof of such fault is upon the plaintiff.

    There is been some vestiges of the older rule which have died hard.   Strict liability for unavoidable accident still appears in one or two states, as a more or less antiquated survival, in trespass to land, where the trespasser is held liable not only for any accidental damage he may do in the course of his trespass, but for an accidental trespass itself.    It appears also in the case of the keeping of dangerous animals and other abnormally dangerous activities, where considerations of policy have been found to support it in a few states, it has been said in gunshot cases that the burden is upon the defendant to show that he was free from negligence; but it is not clear that these cases mean to say that there is sufficient evidence of negligence in the occurrence of the accident itself to make out a prima facia case.

   In England, the rule survived until 1959, when it was finally laid to rest, that where the injury to the plaintiff was direct and immediate, so that the ancient action of trespass would have lain, the defendant had the burden of proving that he was not negligent.

   One form in which the older rule sometimes still appears is a statement found occasionally, that if the act itself was “unlawful,” the actor is liable for all accidental consequences.  Upon this basis, a defendant hunting on Sunday in violation of the statute was once held liable for shooting a companion by pure accident, and one beating a horse was held for an injury to a man.   Under modern law, such a principle is certainly far too broad, except as it may perhaps have reference to the doctrine of “transferred intent,” or perhaps to certain situations involving negligence.   The conception of absolute fault, extending to all unavoidable consequences, is not workable in modern society; “with the increasing catalog of unlawful acts, it cannot be followed through.”   If the “unlawfulness” of the act consists merely in the violation of a statute designed to protect the interests of the state, or the public at large, against an entirely different kind of harm - as in the case of the Sunday statute - there is no liability for results which could not have been avoided by reasonable care in the act itself.  

    Negligence, as we shall see, is simply one kind of conduct.   But a cause of action founded upon negligence, from which liability will follow, requires more than conduct.   The traditional formula for the elements necessary to such a cause of action may be stated briefly as follows:


   Such a statement must, however, be qualified to the extent that as in the case of other torts, where the repairable injuries threaten, a court of equity may act by injunction to prevent the harm before it occurs.   Even here the damage, even though only potential, is the basis for granting relief.

   It follows that the statute of limitations does not begin to run against a negligence action until some damage has occurred.   This has led to real difficulties where, as is frequently the case in actions for medical malpractice, the statute has run before the plaintiff discovers that he has suffered any injury at all.   The older approach to such cases was a literal application of the statute to bar the action, regarding it as intended to protect the defendant not only against fictitious claims, but also against the difficulty of obtaining evidence after lapse of time even when he is confronted with a genuine one; and considering the hardship upon the plaintiff as merely part of the price to be paid for such protection.   The obvious and flagrant injustice of such cases has led to the adoption of a series of transparent devices to get around the rule.   Thus the negligent treatment or at least the defendant’s duty, is held to continue until the relation of physician and patient has ended; or the court finds fraudulent concealment of the damage, which holds the running of the statute; or it finds “constructive” fraud in silence with probable knowledge; or the failure to discover and remove the sponge or other foreign object left in the plaintiff’s body is held to be “continuing” negligence.   Quite recently there a been a wave of decisions meeting the issue head on, and holding that the statue will no longer be construed as intended to run until the plaintiff has in fact discovered that he has suffered injury, or by the exercise of reasonable diligence should have discovered it.   While there will undoubtedly be cases in which this will result in shifting the hardship which must be borne by someone to the defendant, it has been said that “if, as is to be hoped, the resulting jeopardy to defendants produces a greater measure of caring connection with surgical operations, so much the better.”

   There are already a sprinkling of cases in which this “discovery” rule has been applied to other professional negligence, such as that of an accountant or architect, or even to damage to an adjoining land owner.

        Negligence is a matter of risk - that is to say, of recognizable danger of injury.   It is been defined as “conduct which involves an unreasonably great risk of causing damage,” or, more fully, conduct “which falls below the standard established by law for the protection of others against unreasonably great risk of harm.”   “Negligence is conduct, and not a state of mind.”   In most instances, it is caused by heedlessness or carelessness, which makes the negligent party unaware of the results which may follow from his act.   But it may also exist where h has considered the possible consequences carefully, and his exercises own best judgment.    The standard imposed by society is an external one, which is not necessarily based upon any moral fault of the individual; and a failure to conform to it is negligence, even though it may be due to stupidity, forgetfulness, and excitable temperament, or even sheer ignorance.    The almost universal use of the phrase “due care” to describe conduct which is not negligent, should not be permitted to obscure the fact that the real basis of negligence is not carelessness, but behavior which should be recognized as involving unreasonable danger to others.

        Previous reference has been made to the distinction between negligence and intent. In negligence, the actor does not desire to bring about the consequences which follow, nor does he know that they are substantially certain to occur, or believe that they will. There is merely a risk of such consequences, sufficiently great to lead a reasonable man and his position to anticipate them, and to guard against them.   If an automobile driver runs down a man in the street before him, with the desire to hit them, or with the belief that he is certain to do so, it is an intentional battery; but if he has no such desire or belief, but merely acts unreasonably and failing to guard against risk which he should appreciate, it is negligence.   As a probability of injury to another apparent from the facts within his knowledge, becomes greater, is conduct takes on more of the attributes of intent, until it reaches that substantial certainty of harm which juries, and sometimes courts, may find inseparable from intent itself.   Such intermediate mental states, based upon a recognizable great probability of harm, may still properly be classified as “negligence,” but are commonly called “recklessness,” “wanton,” or even “willful.”   They are dealt with, in many respects, as if the harm were intended, so that they become ineffective hybrid between intent negligence, occupying a sort of penumbra between the two. They will be dealt with in a later section.

        Negligence already has been defined is conduct which falls below a standard established by the law for the protection of others against unreasonable risk of harm.   The idea of risk necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that the harm may follow.   A risk is a danger which is apparent, or should be apparent, to one in the position of the actor.   The culpability of the actor’s conduct must be judged in the light of the possibilities apparent to him at the time, and not by looking backward “with the wisdom born of the event.”   The standard must be one of conduct, rather than of consequences.   It is not enough that everyone can see now that the risk was great, if it was not apparent when the conduct occurred. The court must put itself in the actor’s place.   At the same time, the standard impose must be an external one, based upon what society demands of the individual, rather than upon his own notions of what is proper.   An honest blunder, or mistaken belief that no damage will result, may absolve him from moral blame, but the harm to others is still as great, and the actors individual standards must give way to those of the public.   In other words, society may require them not to be a fool.

        In light of the recognizable risk, the conduct, to be negligent, must be unreasonable.   Nearly all human acts, of course, carry some recognizable but remote possibility of harm to another.   No man so much as rides a horse without some chance of a runaway, or drives a car without the risk of a broken steering gear or a heart attack.   Those against which he actor is required to take precautions are those which society, in general consider sufficiently great to demand them. No man can be expected to guard against harm from events which are not reasonably to be anticipated at all or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.   An unprecedented frost or flood, and automobile thrown unexpectedly against a pillar on the corner, a child picking up a plank with a nail in it and dropping it on his foot, a pedestrian slipping on a small bit of gravel in the highway, the ricochet of a bullet and an almost impossible angle- all of these things have happened, and will occur again; but they are not so likely to do so on any particular occasion as to make it necessary to burden the freedom of human action with precautions against them.   Such events are regarded as “unavoidable accidents,” for which there is no liability.

        On the other hand, if the risk is an appreciable one, and the possible consequences are serious, the question is not one of mathematical probability alone.  The odds may be 1001 that no train will arrive at the very moment that an automobile is crossing a railway track, but the risk of death is nevertheless sufficiently serious to require the driver to look for the train.   It may be highly improbable at lightning will strike at any given place or time; but the possibility is there, and it requires precautions for the protection of inflammables.   As a gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less.

        Against this probability, and gravity, of the risk, must be balanced in every case the utility of the type of conduct in question.   The problem is whether “the game is worth the candle.”   Many risk may reasonably be run, with full approval of the community. Chief among the factors which must be considered is the social value of the interest which the actor is seeking to advance.   A man may be justified in dashing into the path of a train to save the life of a child, where it would be arrant folly to save his hat.   A railway will be permitted, or even required, to blow a whistle to warn travelers at a crossing, although it is likely to frighten horses on the highway; it may be negligence to blow the same whistle without the same occasion for warning.   The public interest will justify the use of dangerous machinery, so long as the benefits outweigh the risk, and a railroad may reasonably be constructed near a highway, even at the expense of some danger to those who use it.

        The same balance between the threatened harm in the utility of the actor’s conduct appears, of course, in the various privileges, such as that of self-defense, which are recognized as defenses to intentional torts.   The difference lies in the fact that, for historical reasons derived from the old action of trespass, such intentional invasions of the interests of another are regarded as prima facia wrongful, and the privileges a matter of excuse or defense; while in negligence, which is to be traced primarily to the action on the case, it is considered that no wrong at all has occurred unless the defendant’s conduct has been unreasonable in the light of the risk, and the burden is upon the plaintiff from the outset to establish the fact.

        Consideration must also be given to any alternative course open to the actor.   Whether it is reasonable to travel a dangerous road may depend upon the disadvantages of another route; and while mere inconvenience or cost may not themselves be sufficient to justify proceeding in the face of great danger, they may justify taking other risks which are not too extreme.  A county will not be required, at ruinous expense, to build a bridge which will be safe against any accident that might be anticipated; but the converse is also true, and working cheaply and easily post a warning, it may be required to do so.   A railroad need not do without a turntable because there is some chance that children will play on it be hurt; but is quite another matter to keep it locked.

        The alternative dangerous to the actor himself and others must be thrown into the scale, and balance struck in which all of these elements are weighed.

        It is fundamental that the standard of conduct which is the basis of the law of negligence is determined by balancing the risk, in the light of the social value of the interest threatened, and the probability and extent of the harm, against the value of the interest which the actor is seeking to protect, and the expedience of the course pursued.   For this reason, it is seldom possible to reduce negligence 20 definite rules; it is “relative to the need and the occasion,” and the conduct which would be proper under some circumstances becomes negligence under others.   

        The whole theory of negligence presupposes some uniform standard of behavior.   Yet the infinite variety of situations which may arise makes it impossible to fix definite rules in advance for all conceivable human conduct.   The utmost that can be done is to devise something in the nature of the formula, the application of which in each particular case must be left to the jury, or to the court.   The standard of conduct which the community demands must be an external and objective one, rather than the individual judgment, good or bad, of the particular actor; and it must be, so far as possible, the same for all persons, since the law can have no favorites. At the same time, it must make proper allowance for the risk apparent to the actor, for his capacity to meet it, and for the circumstances under which he must act.

        The courts have dealt with this very difficult problem by creating a fictitious person, who never has existed on land or sea:  the “reasonable man of ordinary prudence”.   Sometimes he is described as a reasonable man, or a prudent man, or a man of average prudence, or a man of ordinary sense using ordinary care and skill.   It is evident that all such phrases are intended to mean very much the same thing.   The actor is required to do what such an ideal individual would be supposed to do in his place.   A model of all proper qualities, with only those human shortcomings and weaknesses which the community will tolerate on the occasion, “this excellent but odious character stands like a monument to our Courts of Justice, vainly appealing to his fellow citizens to order their lives after his own example.”

        The courts go to unusual pains to emphasize the abstract and hypothetical character of this mythical person.   He is not to be identified with any ordinary individual, who might occasionally do unreasonable things;  he is a prudent and careful man, who is always up to standard.   Nor is it proper to identify him even with any member of the very jury who are to apply the standard; he is rather a personification of a community ideal of reasonable behavior, determined by the jury’s social judgment.   Is sometimes difficult to escape the conviction that the refinements which have been developed in instructing the jury, in the effort to avoid any personal standard which one of them might be tempted to apply, artificial and unreal, and quite beyond the comprehension of the average man in the box.   Their only possible justification lies in a basis of experience justifying considerable uneasiness about what any jury may conceivably do, which has led to an excess of precaution in the effort to give them proper guidance.

        The conduct of the reasonable man will vary with the situation with which he is confronted.   The jury must therefore be instructed to take the circumstances into account;  negligence is failure to do with the reasonable man would do “under the same or similar circumstances.”   Under the latitude of this phrase, the courts have made allowance not only for the external facts, but for many of the characteristics of the actor himself, and have applied, in many respects, a more or less subjective standard. “It would appear that there is no standardized man;  that there is only in part an objective test; that there is no such thing as reasonable or unreasonable conduct except as viewed with reference to certain qualities of the actor - his physical attributes, his intellectual powers, probably, if superior, his knowledge and the knowledge he would’ve acquired haddie exercise standard moral and at least average mental qualities at the time of action or at some connected time.”

        As to his physical characteristics, the reasonable man may be said to be identical with the actor.   The man who is blind or deaf, or lame, or is otherwise physically disabled, is entitled to live in the world and to have allowance made by others for his disability, and he cannot be required to do the impossible by conforming to physical standards which he cannot meet.   Similar allowance has been made for the weakness of age and sex.   At the same time, the conduct of the handicapped individual must be reasonable in light of his knowledge of his infirmity, which is treated merely as one of the circumstances under which he asked.   A blind man may be negligent in going to a place of known danger, just as one who knows that he is subject to epileptic fits, or is about to fall asleep, may be negligent driving the car.   Is sometimes said that a blind man must use a greater degree of care then one who can see;  but it is now generally agreed that as a fixed rule this is inaccurate, and that the correct statement is merely that he must take the precautions, be they more or less, which the ordinary reasonable man would take if you were blind.   In theory the standard remains the same, but is sufficiently flexible to take his physical defects into account.

        The automobile Guest statutes, which have been mentioned in passing, have been adopted in rather more than half of the states.   They provide that the driver of an automobile is liable to one who is writing as a gratuitous guest in his car only for some form of aggravated misconduct.   These statutes, which have been held constitutional, vary considerably in their language from state to state, according to the fancy of the legislature or compromises in drawing the particular act.   The required form of aggravation is specified as “gross negligence,” “intentional,” “willful,” “wanton,” or “reckless” misconduct, acting “in disregard of the safety of others,” “intoxication,” or some combination of two or more.   There is so much individual variation in the statutes, and in their interpretation, that it may safely be said that there are as many different guest laws as there are acts.

        Such statutes have been the result of persistent effective lobbying on the part of liability insurance companies.   The chief argument advanced in support of them has been that in guest cases the insurer, who is required to pay the damages, is peculiarly exposed to collusion between the injured guest and a host anxious to see compensation paid, so long as he does not have to pay it - so that the truth does not come out in court, and there is a resulting increase in insurance rates.   Essentially, however, the theory of the acts is that one who receives a gratuitous favor in the form of a free ride has no right to demand that his hose shall exercise ordinary care not to injure them.   The typical guest act case is that of the driver who offers his friend a lift to the office or invites him out to dinner, negligently drives him into a collision, and fractures his skull- after which driver and his insurance company take refuge in the statute, step out of the picture, and leave the guest to bear his own loss.   If this is good social policy, it at least appears under a novel front.

        There is perhaps no other group of statutes which have filled the courts with appeals on so many knotty little problems involving petty and otherwise entirely inconsequential points of law.   There is first of all the question of who is a “guest.”   What is the effect of sharing expenses, or of the guest buying a tank of gasoline?   Of an indirect, prospective, or merely remotely potential, benefit to the host in the form of some business interest or hope in having the guest take the ride?   Of an employer’s order prohibiting the driver from taking free riders; of the fact that the guest is not invited, but allowed to stay after each rest passes; of the fact that the plaintiff is a child too young to know that he is a guest?   Of the fact that the guest was out of the car for a moment when he was run down; of his demand to be let out of the car; of his assent even to the aggravated misconduct?   Can the owner of the car be a guest in it when someone else is driving?   And finally, what is the meaning, and application, of “gross,” “willful,” “wanton,” “reckless,” or whatever other terms a statute may adopt?

        No short text can hope deal with the infinite variety of answers to these questions, under the different statutes, and so many states.  The reader can only be referred to the law of the jurisdiction in which he may be interested.

        The entire system of common-law jurisprudence has been built upon the principle of stare decisis, that a decision of an appellate court establishes a precedent, to be followed in that jurisdiction when similar fact situation shall arise again.   The principal has value in so far as it makes it possible to predict in advance the course which the administration of justice will take, and secures against bad motives or errors in judgment on the part of individual judges, or serves to prevent the sacrifice of ultimate social interest to the immediate demands of a particular case.   But it is not, and never has been, and ironclad an absolute principle, and such precedents may be departed from when the court subsequently concludes that they are unreasonable, or out of line with altered social conditions.   Nor do they control when the facts arise are essentially different; and many writers have devoted thought to the sometimes highly artificial technique by which the facts of earlier cases are “distinguished.”

        A decision of an appellate court that under certain circumstances a particular type of conduct is clearly negligent, or that it clearly is not negligent, or that the issue is for the jury as one in which reasonable men may differ, establishes a precedent for other cases where the facts are identical, or substantially the same.   To that extent may define the standard of reasonable conduct which a community requires. Unfortunately the inevitable tendency to crystallize the law into mechanical rules has led the courts in many cases to treat such precedents as fixing definite rules of universal application.   Almost invariably the rule has broken down in the face of the obvious necessity of basing the standard upon the particular circumstances, the apparent risk in the actors opportunity to deal with it.

        Especially noteworthy in this respect is the attempt of Mr. Justice Holmes, in Baltimore and Ohio Railway versus Goodman, to “lay down a standard once and for all,” which would require an automobile driver approaching a railroad crossing with an obstructed view to stop, look and listen, and if he cannot be sure otherwise that no train is coming, to get out of the car.  The basic idea behind this is sound enough: it is by no means proper care to cross a railroad track without taking reasonable precautions against a train, and normally such precautions will require looking, hearing, and to stop, or at least slow speed, where the view is obstructed.  But the attempt to specify conduct for all cases virtually made it certain that there could never be a recovery for crossing accident.   A long series of cases in which gates were left open, or the driver relied upon the absence of a flagman, or it was clear that the conduct specified would’ve added nothing to the driver safety, made it quite apparent that no such inflexible rule could be applied.   Finally, in the subsequent case of Pokora v. Wabash Railroad, where the only effective stop must be made upon the railway tracks themselves, in a position of obvious danger, the court discarded any such uniform rule, rejecting the “get out of the car” requirement as “an uncommon precaution common likely to be futile and sometimes even dangerous,” and saying that the driver need not always stop.   “Illustration such as these,” said Mr. Justice Cardozo, “bear witness to the need for caution in framing standards of behavior that amount to rules of law.   Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the common place or normal.”

        A similar fate is overtaking the rule which many courts have stated, that it is always negligence to drive at such a speed that it is impossible to stop within the range of vision.   Again the principle is sound enough; but universal application becomes quite impossible.  The rule is proved to be much too stringent when visibility is obscured by fog or rain, when the driver suddenly blinded by the lights of an approaching car, or when unanticipated defects or obstacles suddenly appear on an apparently safe highway. The reaction from the rule has been so marked that some courts have gone to the other extreme, of saying that such speed is never more than evidence of negligence for the jury.   Similar difficulties have arisen as to the ordinary traffic “rules of the road,” and the rule that a pedestrian must look when crossing a street, that a driver must constantly watch the road ahead, or that it is negligence to border leave a train while it is in motion.

        Such rules may be useful to fix the standard for the usual normal case but they are a hindrance to any just decision in the large number of unusual situations presenting new factors which may affect the standard.   A standard which requires only conduct proportionate to the circumstances and the risk seldom, if ever, can be made a matter of absolute rule.

        The standard of conduct required of a reasonable man may be prescribed by legislative enactment.   When a statute provides that under certain circumstances particular act shall or shall not be done, it may be interpreted as fixing a standard for all members of the community, from which it is negligence to deviate.   Within the limits of municipal authority, the same may be true of ordinances.   The fact that such legislation is usually penal in character, and carries with it a criminal penalty, will not prevent its use in imposing civil liability, except in the comparatively rare case where the penalty is made payable to the person injured, and clearly is intended to be in lieu of all other compensation.

        Much ingenuity has been expended in the effort to explain why criminal legislation should result in a rule for civil liability.   If there is a specific provision in the statute to that effect there is a course no difficulty, since it is clear that it is the intent of the legislature.   The only questions open or whether the legislation is constitutional, whether it is applicable to the particular case, and whether it has in fact been violated.   But where the statute merely declares that conduct is a crime, and makes no mention of any civil remedy, justification becomes more difficult, since a courtesan obviously under no compulsion to apply the statute.   Many courts have, however, purported to “find” in the statute is suppose it “implied,” “constructive,” or “presumed” intent to provide for tort liability.   In the ordinary case this is pure fiction, concocted for the purpose.   The obvious conclusion can only be that when the legislator said nothing about it, they either did not have the civil suit in mind at all, or deliberately omitted to provide for it.   Again, it is said that the reasonable man would obey the criminal law, and that one who does not is not acting as reasonable man, and therefore must be negligent.   While this may serve to explain the decision that a breach of the statute is evidence of negligence, it is not clear that it justifies a prevailing rule under which the court must refuse to leave the issue to the jury, nor does it account for the numerous violations which are held not to give rise to any civil action at all, or for the cases in which, on the basis of analogy or association, the liability has been rested upon some other tort, such as trespass, deceit, nuisance, or even strict liability.

        Perhaps the most satisfactory explanation is that the courts are seeking, by something in the nature of judicial legislation, to further the ultimate policy for the protection of individuals which they find underlying the statute, and which they believe the legislature must have had mine.   The statutory standard of conduct is simply adopted voluntarily, out of the deference and respect for the legislature.  This is borne out by a considerable number of cases in which the terms of a criminal statute have been applied in a civil action, notwithstanding the fact the statute was for some reason totally ineffective as a basis for criminal conviction - as where it had not been properly enacted, or did not exactly cover the situation, or the defendant was incapable of crime, and could not be prosecuted; and by one or two others in which there has been flat refusal to accept a standard regarded as unreasonable.

        The question thus becomes one of when the court will look to a criminal statute for its negligence standard of the conduct of a reasonable man.

Chapter 7

PROXIMATE CAUSE

Sec. 41. CAUSATION IN FACT

p.  236 – 241

        Causation is a fact.  It is a matter of what has in fact occurred.   A cause is a necessary antecedent:  in a very real and practical sense, the term embraces all things which have so far contributed to the result that without them it would not have occurred.   It covers not only positive acts and active physical forces, but also pre-existing passive conditions which have played a material part in bringing about the event.   In particular, it covers the defendants omissions as well as his acts.   The failure to extinguish a fire may be quite as important in causing the destruction of the building is setting it in the first place.   The failure to fence a railway track may be a cause, and an important one, that a child is struck by train.   It is familiar law that if such omissions are culpable they will result in liability.

        On the other hand, an act or omission is not regarded as a cause of an event if the particular event would’ve occurred without it.   A failure to fence a hole in the ice plays no part in causing the death of runaway horses which could not have been halted if the fence had not been there.   A failure to have a lifeboat ready is not a cause of the death of a man who syncs without trace immediately upon falling into the ocean.   The failure to install proper fire escape on a hotel is no cause the death of a man suffocated in his bed by smoke.   The omission of a traffic signal to an automobile driver who could not have seen it if it had been given is not a cause of the ensuing collision.   The omission of crossing signals by an approaching train is of no significance when an automobile driver runs into the 68th car.   The presence of a railroad embankment may be no cause of the inundation of the plaintiffs land by a cloudburst which would have flooded it in any case.

        From such cases many courts have derived a rule, commonly known as the “but for” or “sine qua non“ rule, which may be stated as follows:  The defendant’s conduct is not a cause of the event, if the event would have occurred without it.   At most this must be a rule of exclusion: if the event would not have occurred “but for” the defendant’s negligence, it still does not follow that there is liability, since considerations other than causation, which remain to be discussed, may prevent it.   It should be quite obvious that, once events are set in motion, there is, in terms of causation alone, no place to stop.   The event without millions of causes is simply inconceivable; and causation alone can provide no clue of any kind to single out those which are to be held legally responsible.   It is for this reason that instructions to the jury that they must find the defendant’s conduct to be “the sole cause”, or “the dominant cause”, or “the proximate cause” of the injury are rightly condemned as misleading error.

        Restricted to the question of causation alone, and regarded merely as a rule of exclusion, the “but for” rule serves to explain the greater number of cases; but there is one type of situation in which it fails.   If two causes concur to bring about an event, and either one of them, operating alone, would’ve been sufficient cause he identical result, some other test is needed.   To motorcycle simultaneously past the plaintiff’s horse, which is frightened and runs away; either one alone would’ve caused the fright.   A stabs C with a knife, and B fractures C’s skull with the rock; either wound would be fatal, and C dies from the effects of both.   The defendant sets a fire, which merges with the fire from some other source; the combined fires burn the plaintiff’s property, but either one would have done it alone.   In such cases it is quite clear that each cause has in fact played so important a part in producing the result that responsibility should be imposed upon it; and it is equally clear that neither can be absolved from that responsibility upon the ground that the identical harm would’ve occurred without it, or there would be no liability at all.

        It was in a case of this type that the Minnesota court applied a broader rule, which has found general acceptance: the defendant’s conduct is a cause of the event if it was a material element and a substantial factor in bringing it about.   Whether it was such a substantial factor is for the jury to determine, unless the issue is so clear that reasonable men could not differ.   It is been considered that “substantial factor” is a phrase sufficiently intelligible to the layman to furnish an adequate guide and instructions to the jury, and that it is neither possible nor desirable to reduce it to any lower terms.   As applied to the fact of causation alone, no better test is been devised.

        Such a formula can scarcely be called a test, is clearly an improvement over the  “but for” rule.   It disposes of the cases mentioned above, and likewise of the difficulties presented by two other types of situations which have proved troublesome.   One is that were similar, but not identical result would’ve followed without defendants act; the other where one defendant has made a clearly prove but quite insignificant contribution to the result, as where he throws a lighted match into a forest fire.   But in the great majority of cases, it amounts to the same thing.   Except as indicated, no case has been found where the defendants act could be called a substantial factor when the event would’ve occurred without it; nor will cases very often arise where it would not be such a factor when it was so indispensable a cause that without it the result would not of followed.

        If the defendant’s conduct was a substantial factor in causing the plaintiff’s injury, it follows that he will not be absolved from liability merely because the other causes have contributed to the result, since such causes, innumerable, are always present.   In particular, however, a defendant is not necessarily relieved of liability because the negligence of another person is also a contributing cause, and that person, too, is to be held liable.   Thus were two vehicles collided and injure a bystander, or passenger and one of them, each driver may be liable for the harm inflicted.   The law of joint tortfeasors rests very largely upon recognition of the fact that each of the two or more causes may be charged with a single result.

        It cannot be repeated too often that, while causation is essential to liability, it does not determine it.    Other considerations, which remain to be considered, may prevent liability for results clearly cause.

        On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof.   He must introduce evidence which affords a reasonable basis for the conclusion that is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result.   A mere possibility of such causation is not enough;  and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.   Where the conclusion is not one within the common knowledge of layman, expert testimony may provide a sufficient basis for it, but in the absence of such testimony may not be drawn.

Chapter 9

NEGLIGENCE:  PROOF

p. 205

        The existence of negligence is a particular case often is said to b a mixed question of law and fact.   By this is meant, not only that both the court and the jury have an important part to play in the determination of the issue, and that separate functions are assigned to each, but further, that these functions to some extent overlap, and that it is not easy to fix any definite line of demarcation.   It is said also that the court must decide questions of law, and the jury questions of fact.   But this means little or nothing until some method of classification is provided, by which "law" may be distinguished from "fact"; and the division of functions between court and jury is a matter rather of historical origins and present policy than of any such definitions.  

        The issue of negligence presents at least five more or less distinct questions, as to which the court and the jury have separate parts to play in reaching a decision.   These are as follows:
   
        1.   The sufficiency of the evidence to permit a finding of the facts.   Before any duty, or any standard of conduct may be set, there must first be proof of facts which give rise to it;  and once the standard is fixed, there must be proof that the actor has departed from it.   If it be assumed that the driver of an automobile approaching a visible intersection will be required to moderate his speed, there is still the question whether the intersection was visible, and whether he did in fact slow down.   These are purely questions of fact, and within the recognized province of the jury as the triers of fact.   But over such questions of fact the court always have reserved a preliminary power of decision, as to whether the issue shall be submitted to the jury at all.   If the evidence is such that no reasonably intelligent man would accept it as sufficient to establish the existence of a fact essential to negligence, it becomes the duty of the court to remove the issue from the jury, and to nonsuit the plaintiff, or direct a verdict for the defendant, or even to set aside a verdict once rendered.   Less frequently, the evidence may be so overwhelming that no reasonable man could fail to accept the fact as proved;   and the court must then direct the jury accordingly.(5)   This, of course, merely a part of the general law of evidence, and in this respect negligence cases do not differ from any other cases where essential facts must be proved.
   
        3.   The existence of a duty.   In other words, whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other - or more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant.   This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up law;  and it must be determined only by the court.   It is no part of the province of a jury to decide whether a manufacturer of goods is the ultimate consumer, or whether the Long Island Railroad is required to protect Mrs. Palsgraf from fireworks explosions.   A decision by the court that upon any version of the facts, there is no duty, must necessarily result in judgement for the defendant.   A decision that, if certain facts are found to be true, a duty exists, leaves open the other questions now under consideration.

Chapter 12

IMPUTED NEGLIGENCE

p. 482 - 483

            But some courts clearly have gone further, and have held that the right of control, sufficient to impose responsibility, is established by the mere presence of the owner in the car.   Most jurisdictions have rejected such an arbitrary rule, and have held that the owner may surrender his right to give directions, and become a guest in his own car.   It is generally agreed that the plaintiff may be aided by a presumption that the driver is an agent or servant, but the owner may prove the contrary.
       
            If the owner is not present in the car, but has entrusted it to a driver who is not his servant, there is merely a bailment, and usually no basis can be found for even any fiction of a “right of control.”   It is here that the owner’s liability to the injured plaintiff breaks down at common law.   Only the courts of Florida have gone to the length of saying that an automobile is a “dangerous instrumentality,” for which the owner remains responsible when it is negligently driven by another.   Other courts have refused to accept this simple but sweeping conclusion, and have fallen back instead upon a mere presumption that the driver is the servant of the owner, which may be rebutted, or have struggled hard to find some foundation for vicarious liability in the circumstances of the particular case.

            One of the devices most commonly resorted to is the “family car,” or “family purpose” doctrine, which has been accepted by about half of the American courts.   Under this doctrine, the owner of an automobile who permits members of his household to drive it for their own pleasure or convenience is regarded as making such a family purpose his “business,” so that the driver is treated as his servant.   Sometimes it is said that the owner would be liable for the negligence of a chauffeur whom he hires to drive his family, and therefore should be liable when he entrusts the same task to a member of his family instead.   This is obviously an element of unblushing fiction in this manufactured agency;  and it has quite often been recognized, without apology, that the doctrine is an instrument of policy, a transparent device intended to place the liability upon the party most easily held responsible.

Chapter 13

STRICT LIABILITY

p.  492

        As we have seen, the early law of torts  was not concerned primarily with the moral responsibility, or “fault” of the wrongdoer.   It occupied itself chiefly with keeping the peace between individual, by providing a remedy which would be accepted in lieu of private vengeance.   While it is probable that even from the beginning the idea of moral guilt never was entirely absent from the minds of the judges, it was not the most important consideration.  Originally the man who hurt another by pure accident, or in self-defense, was required to make good the damage inflicted.   “In all civil acts,” it was said, “the law doth not so much regard the intent of the actor, as the loss and damage to the party suffering.”1   There was, in other words, a rule, undoubtedly supported by the general feeling in the community, that “he who breaks must pay.”

        Until about the close of the nineteenth century, the history of the law of torts was that of a slow, and somewhat unsteady, progress toward the recognition of “fault” or moral responsibility with conduct which would not be expected of a good citizen.    This tendency was so marked that efforts were made by noted writers to construct a consistent theory of tort law upon the basic principle that there should be no liability without fault.
   
        But “fault” in this sense never has become quite synonymous with moral blame.   Not only is a great deal of morally reprehensible conduct vested with complete legal immunity - as where the expert swimmer who sees another drowning before his eyes is permitted to stand on the dock and watch him drown - but at the same time the law finds “fault” in much that is morally innocent.   “Fault” is a failure to live up to an ideal of conduct to which no one conforms always and which may be beyond the capacity of the individual.   It may consist of sheer ignorance, lack of intelligence or an honest mistake.   It may consist even in acts which are the normal and usual thing in the community.   Even the infant and the lunatic who can not help what they do are held liable for their torts.
   
        So much can be collected in the way of cause imposing liability without any vestige of moral blame that a number of writers have maintained that negligence is rapidly losing, if it has not entirely lose, its character as a branch of “fault” liability, so that those who are entirely innocent are now required to pay for the damage they do, and that negligence should therefore largely be jettisoned.   This perhaps begs the question, by assigning to “fault” a criminal law connotation of moral blame which it seldom has been given in the law of torts.   There is a broader sense in which “fault” means nothing more than departure from a standard of conduct required of a man by society for the protection of his neighbors;  and if the departure is an innocent one, and the defendant cannot help it, it is none the less a departure, and a social wrong.   The distinction still remains between the man who has deviated from the standard, and the man who has not.   The defendant nay not be to blame for being out of line with what society requires of him, but he is none the less out of line.

        In this broader sense there is “fault” in much innocent conduct.   Tort liability never has been inconsistent with the ignorance which is bliss, or the good intentions with which hell is said to be paved.   A trespasser is not excused by the honest reasonable belief that the land is his own;  a bona fide purchaser of stolen goods is held liable for conversion;  the publisher of a libel commits a tort, although he has no means of  knowing the defamatory nature of his words.   There are many situations in which a careful person is held liable for an entirely reasonable mistake.   Socially, and legally, these defendants are at fault;  whether they are individually so, in spite of the fact that they are blameless, appears to be entirely a matter of definition, rather than substance, and the argument leads only to a pointless dispute over the meaning of a word.

Chapter 18

MISREPRESENTATION

p. 683

        Misrepresentation runs all through the law of torts, as a method of accomplishing various types of tortious conduct which, for reasons of historical development or as a matter of convenience, usually are grouped under categories of their own.

        Thus a battery may be committed by feeding the plaintiff poisoned chocolates, or by inducing his consent to a physical contact by misrepresenting its character; false imprisonment may result from a pretense of authority to make an arrest, a trespass to land from fraudulent statements inducing another to enter, or a conversion from obtaining possession of goods by false representations; and a malicious lie may give rise to a cause of action for the intentional infliction of mental suffering.   A great many of the common and familiar forms of negligent conduct, resulting in invasions of tangible interests of person or property, are in their essence nothing more than misrepresentation, from a misleading signal by a driver of an automobile about to make a turn, or an assurance that a danger does no exist, to false statements concerning a chattel sold, or non-disclosure of a latent defect by one who is under a duty to give warning.   In addition, misrepresentation may play an important part in the invasion of intangible interests, in such torts as defamation, malicious prosecution, or interference with contractual relations.   In all such cases the particular form which the defendant's conduct has taken has become relatively unimportant, and misrepresentation has been merged to such an extent with other kinds of misconduct that neither the courts nor the legal writers have found any occasion to regard it as a separate basis of liability.
   
        So far misrepresentation has been treated as giving rise in and of itself to a distinct cause of action in tort, it has been identified with the common law action of deceit.   The reasons for the separate development of this action and for its peculiar limitations, are in part historical, and in part connected with the fat that in the great majority of the cases which have come before the courts the misrepresentations have been made in the course of a bargaining transaction between the parties.   Consequently the action has been colored to a considerable extent by the ethics of bargaining between distrustful adversaries.   Its separate recognition has been confined in practice very largely to the invasion of interests of a financial or commercial character, in the course of business dealings.  There is no essential reason to prevent a deceit action from being maintained, for intentional misstatements at a least, where other types of interests are invaded;   and there are a few cases in which it has been held to lie for personal injuries, for tricking the plaintiff into an invalid marriage or marriage with one who is physically unfit, or for inducing the plaintiff to leave a husband, or to incur criminal penalties.   In general, however, other theories of action have been sufficient to deal with non-pecuniary damage, and the somewhat narrower theory of deceit is one in which the plaintiff has parted with money, or property of value, in reliance upon the defendant's representations.

        The law of misrepresentation is thus considerably broader than the action for deceit.   Liability in damages for misrepresentation, in one form or another, falls into the three familiar divisions with which we have dealt throughout this text - it may be based upon intent to deceive, upon negligence, or upon a policy which requires the defendant to be strictly responsible for his statements without either.   For the most part, the courts have limited deceit to those cases where there is an intent to mislead, and have left negligence and strict liability to be dealt with in some other type of action.   There has been a good deal of overlapping of theories, and no little confusion, which has been increased by the indiscriminate use of the word "fraud," a term so vague that it requires definition in nearly every case.   Further difficulty has been added by a failure to distinguish the requisites of the action in tort at law from those of equitable remedies, and to distinguish the different forms of misrepresentation from one another, and misrepresentation itself from mere mistake.   Any attempt to bring order out of the resulting chaos must be at best a tentative one, with the qualification that many courts do not agree.

        The action of deceit is of very ancient origin.   There was an old writ of deceit known as early as 1201, which lay only against a person who had misused legal procedure for the purpose of swindling someone.   At a later period this writ was superseded by an action on the case in the nature of deceit, which became the general common law remedy for fraudulent or even non-fraudulent misrepresentation resulting in actual damage.   In particular, it was extended to afford a remedy for many wrongs which we should now regards as breaches of contract, such as false warranties in the sale of goods.   Its use was limited almost entirely to cases of direct transactions between the parties,, and it came to be regarded as inseparable from some contractual relation.   It was not until 1789, in Pasley v. Freeman, which is the parent of the modern law of deceit, that the action was held to lie where the plaintiff had had no dealings with the defendant, but had been induced by his misrepresentation to deal with a third person.   After that date deceit was recognized as purely a tort action, and not necessarily upon contract.   At about the same time, the remedy for a breach of warranty was taken over into an action of assumpsit, and it was thus established that it had a contract character.   Thereafter the two lines of recovery slowly diverged, although some vestiges of confusion between the two still remain in many courts, particularly as to the measure of damages.   The distinction was made clear in English courts by decisions holding that the tort action of deceit requires something in the way of knowledge of the falsity of the statement and an intention mislead, while the contact action on a warranty does not.

        The elements of the tort cause of action and deceit which it last emerged from this process of development frequently have been stated as follows:


        As will be seen, some of these elements have undergone modification or qualification in some jurisdictions.   In addition, it must be repeated that such an action of deceit is only one of several possible remedies for various forms of misrepresentation, even where there is only pecuniary loss.   Before proceeding to consider the elements of the cause of action and deceit, it is desirable to distinguish other theories upon which relief may be granted, the proximity of which has been a fertile source of the general confusion and uncertainty surrounding the deceit action itself.

Distinguished from Warranty and Negligence

        The divorce of warranty from deceit was completed by about the beginning of the 19th century.   By that time warranty had become identified, at least in lawyers usage, with the existence of a contract between the parties.  Although the original tort form of the action still survives as a possible procedural alternative, and the tort theory may have important consequences, there are only a limited number of cases, and those entirely concerned with the liability of a seller of goods to the ultimate consumer, in which warranty has been found without a contract.   Deceit, on the other hand, is essentially a tort action, and does not require the existence of any contract, although of course the tort itself may often coincide with one.   Furthermore, because of its contract character, warranty has become a matter of strict liability, without any wrongful intent or negligence on the part of the defendant, while deceit, as it developed in the law of England, is to be classified as an intentional tort, requiring knowledge or belief of falsity or conscious ignorance of the truth, and hence something of an intent to mislead.   In the American courts, the distinction is not always clearly drawn, and it is been obscured or abandoned in many jurisdictions by decisions which in effect taken over the strict liability of warranty and adopted it and deceit form of action.

        The same intentional element distinguished to see, as it is defined by the English courts and by many American jurisdictions, from negligence.   In finding the necessary “knowledge” as to the falsity of the representation, these courts of stop short of the situation where the defendant honestly believes that he knows and that his statement is true, but is negligent in not obtaining accurate information. There is nothing, however, to prevent an ordinary negligence action for the use of language in such a case; and while such an action is most often brought where damage which results is a personal injury, it has been extended, with a somewhat restricted scope, to cases involving financial or commercial loss.

        In some jurisdictions, then, the distinction as to the actions for deceit, negligence and warranty coincides in general with that as to intent, negligence and strict liability.   In many courts, however, these lines have been blurred or obliterated by an extension of the deceit action to cover all three types of liability.   The dispute over the proper form of action frequently as obscure the real question of whether the defendant should be held liable in the particular case.   With the declining importance of the foreman theory of the action under modern code pleading, it is the latter which is the really important problem, with which we must chiefly be concerned; and the discussion which is to follow looks to the nature of the defendant’s conduct rather than the form of his recovery.

Equitable Relief

        To the difficulties arising from the existence of these three strictly legal remedies, there must be added the further confusion resulting from the possibility of equitable relief.  Misrepresentation was recognized very early as a basis for the jurisdiction of courts of equity, at a time when the existing forms of actions at law were in adequate to deal with the injustices which resulted.
Page 687   



 

CALIFORNIA JURY INSTRUCTIONS

CIVIL

Book of Approved Jury Instructions
[BAJI]

8th EDITION

BAJI 5.30

BASIC SPEED LAW

p. 144

SPEEDING IS NOT A CRIME!  SPEEDING IS CIVIL MISBEHAVIOR!  CRIMINAL PROCEDURE CAN NOT APPLY!

Michigan Law Review
Vol. 50, No. 7, (May, 1952)
pp. 1122 - 1124

TORTS - FALSE IMPRISONMENT - PUBLIC NUISANCE - LIABILITY FOR DOUBLE PARKING

David F. Ulmer, S. Ed.

COMMENTARIES
ON
THE LAW OF PERSONS
AND
PERSONAL PROPERTY.

BEING AN INTRODUCTION TO THE
STUDY OF CONTRACTS.

BY
THEODORE W. DWIGHT,
LATE PROFESSOR OF LAW AT COLUMBIA COLLEGE, NEW YORK.

EDITED BY
EDWARD F. DWIGHT,
OF THE NEW YORK BAR.
BOSTON

LITTLE, BROWN, AND COMPANY.

1894.

CHAPTER III.

THE RIGHTS OF PERSONS.

THE LAW OF PERSONAL PROPERTY.

Section III.  Eminent Domain.

PART II

DISTINCTIONS PECULIAR TO PERSONAL PROPERTY

CHAPTER I.

ATTRIBUTES OF OWNERSHIP, INCLUDING THE POWER TO USE, SELL, EXCHANGE, ETC.

CHAPTER III.

VARIOUS DISTINCTIONS OF OWNERSHIP.

PART III.

TITLE TO PERSONAL PROPERTY.

CHAPTER I.

TITLE BY ORIGINAL ACQUISITION.

DIVISION I. —  Title by Capture.

AMERICAN LAW AND PROCEDURE

VOLUME II.

PREPARED UNDER THE EDITORIAL SUPERVISION OF

JAMES PARKER HALL. A. B. LL. B.

Dean of the University of Chicago Law School

COPYRIGHT 1910

BY

LA SALLE EXTENSION UNIVERSITY

~~~~~~~~~~

TORTS
by

GEORGE LUTHER CLARK
Professor of Law, University of Michigan

CHAPTER 1

THE LAW OF TORTS

Intentional Torts

The Elements of an Intentional Tort

The Intentional Torts

NEGLIGENCE

Strict Liability