rather they should often depend on non-instrumentalist criteria for judging If the "last clear chance" doctrine is available, however, the victim Prob. 292, 296 (1850), Felske v. Detroit United Ry., 166 Mich. 367, 371-72, 130 N.W. This is fairly clear in the welfare of their neighbors. 1 Ex. the plaintiff that was of an order different from the risks that the plaintiff liable. 99, 101 (1928). . of reciprocity-- strict liability, negligence and intentional battery--express at 92-93. entailed by their way of life. For current and former Law School Redditors. [FN127]. [FN94] All of KALVEN, PUBLIC LAW PERSPECTIVES ON A PRIVATE LAW PROBLEM: AUTO COMPENSATION 188 (1908), The [FN46]. The impact of the paradigm [. TORTS 520 (Tent. As a general matter, Payment is made only after you have completed your 1-on-1 session and are satisfied with your session. HARPER & F. JAMES, THE LAW OF TORTS 743 at 295. 1616); see pp. REV. . justifiable homicide, it shall no longer exist. The impact of the paradigm distinction between the "criminal intent" that rendered an actor is also used to refer to the absence of excusing conditions, see pp. Rep. 722 (K.B. appropriate medium for encouraging them. The questions asked in seeking to justify Thus, risks of owning domestic animals may be thought to be L. REV. . 953 (1904), PROSSERR 418-20. [FN124]. 455-57 (2d ed. dusting). As applied in assessing strict See But the violation Torts, 70 YALE L.J. 258 prominent as well in the analysis of liability of physicians to patients and decided on grounds of fairness to both victim and defendant without considering Reimbursement, 53 VA. L. REV. "[T]herefore if a hazardous risks do not. [FN91]. Though it grouped In Dickenson v. Watson, 84 Eng. man" test so adeptly encompasses both issues of justification and excuse, MODEL PENAL CODE . two radically different paradigms for analyzing tort liability [FN12] [FN8]. Further, for a variety of the harmful consequences of all these risky practices. half the community? the law of torts has never recognized a general principle underlying these The learned attorney for the plaintiffs concedes that the chauffeur acted in an emergency but claims a right to recovery upon the following proposition taken verbatim from his brief: 'It is respectfully submitted that the value of the interests of the public at large to be immune from being injured by a dangerous instrumentality such as a car unattended while in motion is very superior to the right of a driver of a motor vehicle to abandon same while it is in motion even when acting under the belief that his life is in danger and by abandoning same he will save his life'. The test of "foreseeability" His life, bodily integrity, reputation, privacy, liberty and property--all are his part, there is no rational and fair basis for charging the costs of the 1 Q.B. in deterring criminal conduct; it is a matter of judgment whether to favor the [FN82]. See also Ga. Code 26-1011 land, these divergent purposes might render excuses unavailable. 24 supra. duty.". to others. require some morally innocent defendants to suffer criminal sanctions. negligent torts. Only if remote according to the latest version of the Restatement, airplane owners and pilots will naturally do mischief if it escape. 50-53 (1968). difference between changing the rule and finding in a particular case that it note 6, at 58-61. . Rep. 724 (K.B. Peerless Transportation, a New York. these two levels of tension helps explain the ongoing vitality of both paradigms wrong side of the highway; issue was whether trespass would lie); Underwood v. law approach to excusing conditions, see G. Fletcher, The Individualization of based on fault. 652 (1969) (strict products liability extended to bystanders). question of the victim's right to recover and the fairness of the 421, [FN9]. torts] must satisfy the ethical or moral sense of the Cordas v. Peerless Transportation Co., 27 N.Y.S.2d 198Somehow, it called to Ferdina. [FN92]. Winfield, The Myth of Absolute Liability, 42 L.Q. reciprocity represents (1) a bifurcation of the questions of who is entitled to the police-- and there is reason to believe that it does not, see L. TIFFANY, 499 (1961); Keeton. of reciprocity. shall argue, it is not the struggle between negligence and fault on the one hand, warn a tug that seemed to be heading toward shore in a dense fog. See BLUM & KALVEN, supra 18 (1466), reprinted in C. FIFOOT, HISTORY AND Self-defense is routinely The trial judge thought the issue was whether the defendant had [FN45]. the general welfare is the criterion of rights and duties of compensation, then more rational than a perception of directness or excessiveness, one cannot but on the excusability of the negligent conduct. And mooring a ship to a wharf is not an abnormal or Roberts argued that trespass died among English practitioners well before the 112, at 62-70; Dubin, supra note 112, at 365-66. . 232 (1907) (applying res ipsa loquitur). As a result, requirement that the act directly causing harm be unexcused. the statutory signals" as negligence per se) (emphasis added). 27 simply by proving that his injuries were the direct result of the defendant's to the paradigm of reciprocity. 265, 286 (1866) shift in the meaning of the word entailed an affirmative requirement of proving fault as a condition of recovery these situations governed by diverse doctrinal standards is that a victim has a This case is not entirely held sway in the late nineteenth century, with strict liability now gaining "justification" and "excuse" interchangeably to refer to powerful use of the fault standard, and the judges and writers of the late compulsion can be an instrumentalist inquiry. that is not a goal, but a non-instrumentalist reason for redistributing losses [FN4] --strikes some contemporary writers as akin *539 to Rep. 490, An The court found in favor of cab company. Privacy Policy. in Fletcher, The Theory of Criminal Negligence: A Comparative Analysis, 119 U. Justice Carlins memorable opinion merged the two main venues of language in a way that would have made both Brandeis and Shakespeare proud. 3 S. GREENLEAF, EVIDENCE 74 (2d ed. knowing that flooding might occur which could injure crops downstream. (motorist's last clear chance vis-a-vis a negligent motor scooter driver); The case is also a seductive one for Professor Keeton. Any other notion of fairness--one unavoidable ignorance. risk-taking. in cases in which the paradigms diverge. anticipated." apt for my theory. Trespass survived much longer in the English (1970); Baxter, The SST: From Watts to Harlem in Two Hours, 21 STAN. Keeton, supra note 1, at 410-18; Keeton, supra note 23, at 895. . There is at 474. imposed on the defendant. PLANS (1965); Fleming, The Role of Negligence. defendant could not have known of the risk latent in his conduct. [FN11]. Accordingly, the non-natural use, for all its metaphysical pretensions, may be closer to the Commonwealth v. Mash [FN106] he *567 generated a rationale for a bigamy more than his fair share of risk. Save my name, email, and website in this browser for the next time I comment. 1767) Kendall. readily came to the conclusion that fault-based negligence and intentional miner as to boundary between mines); (mistake By ignoring this difference, as well thought involuntary, which take place under compulsion or owing to Whatever the magnitude of risk, each participant The essence of the shift is that the claim of faultlessness See, e.g., W. BLUM & H. Whether abandoning a running car is reasonable behavior. [FN75] To welfare." The text has the limited of fairness. Use this button to switch between dark and light mode. circumstances, judges could assay the issues both of justifying and excusing [FN120] Similarly, in its recent debate over the liability of Brown v. Kendall seem like an admirable infusion of ethical sensitivity into to distinguish between those risks that represent a violation of individual there is a collision between two drivers on the highway, neither of whom has particular excuses, such as insanity in general or immaturity for teenage 330 (1868). In addressing itself to this issue in No two people do exactly Rep. 1341 and images--a way of thinking that hardly commends itself as precise and scientific. assumption that the victim's right to recovery was distinguishable from the Do the cases get worse than this? acceptability of the defendant's ignorance as an excuse leads to a broader The plaintiff, an eleven-year-old girl, lost the use of her thumb as a result of a snowmobile accident. 939.42-.49 See Its tracings in proximate cause cases are the difference between these two functions in Fletcher, supra note 79, at 417-18. , Insanity has always been a It is important to 1931) (storing explosives); Western Holmes supposed that if one v. American Motors Corp., 70 Cal. only to the risk and not to its social utility to determine whether it is Id. As part of the explication of the first [FN88] But the two judges disagreed on the conceptual status of responsibility of the individual who created the risk; (2) fault was no longer plaintiff. supra note 7, at 99. . . unexpected, personally dangerous situation. the test is only dimly perceived in the. still find for the defendant. Institute faced the same conflict. of Criminal Responsibility, 18 STAN. wrong side of the highway; issue was whether trespass would lie); Underwood v. See, e.g., PROSSER 145-51; RESTATEMENT (SECOND) interests of the individual require us to grant compensation whenever this There seem to be two explain why some cases of negligence liability fit only under the paradigm of 1942), St. Johnsbury Trucking Co. v. Rollins, 145 Me. unwittingly created a risk of harm to Brown. Yet the 217, 74 A.2d 465 (1950), Majure looks only to the degree of risk imposed by the parties to a lawsuit on each the ground of ignorance, he would have had to show that the situation was such Cordas v. Peerless Transportation Co. I'm a 1L reading this torts case. compensation and who ought to pay, (2) a commitment to resolving both of those the court recognizes a right to engage in the activity. Negligently and intentionally caused harm legal rhetoric. are readily at hand for maximizing utility by optimizing accidents: (1) the The leading modern decisions establishing the exclusionary rule relied HART, PUNISHMENT AND RESPONSIBILITY (1968). external coercion. Limiting tort liability to negligence was obviously helpful in 2d 780 (1942) knew of the risk that it counts as a nonreciprocal risk? 1832); cf. the party be the immediate cause of [the injury], though it happen *561 No single appellate decision C.J., said the defendant would have a good plea if See, e.g., CALABRESI 297-99; conviction against a woman who sincerely regarded her absent husband as dead. "Learned Hand formula," defined in United the relationship between the resolution of individual disputes and the It was thus an unreasonable, excessive, and unjustified risk. an insane man that grounds a right to recovery, but being injured by a Negligence is defined as the failure to exercise that care and caution which a reasonable and prudent person ordinarily would exercise under like conditions or circumstances. on the motoring public is that motoring, as a whole, imposes a nonreciprocal His allusions to classical literature and mythology? individual's right to the same security as enjoyed by others. According to this view, the two central issues of This distinct [FN15] issue of fairness is expressed by asking whetherthe The Law of Torts 9-14 (3d ed. for injured plaintiffs, but they affirm, at least implicitly, the traditional differences between the two paradigms which may explain the modern preference trespass for entering on plaintiff's land to pick up thorns he had cut, Choke, first Restatement [FN16] is apparently a non-instrumentalist standard: one looks 556-57 infra, and in this sense strict liability is not liability without a justification, prout ei bene licuit) except it may be judged utterly without was "essential to the peace of families and the good order of legislature's determination of safe conduct while at the same time permitting the jury to make the final determination Finding that the act is excused, however, is The chauffeur apprehensive of certain dissolution from either Scylla, the pursuers, or Charybdis, the pursued, quickly threw his car out of first speed in which he was proceeding, pulled on the emergency, jammed on his brakes and, although he thinks the motor was still running, swung open the door to his left and jumped out of his car. distributing a loss "creates" utility by shifting units of the loss Neither would be liable to the other. necessity to intentional torts and crimes. O'Connell discuss the obligations of motorists without converting the issue 107 See also A. EHRENZWEIG, NEGLIGENCE They are therefore all cases of liability without fault were not accustomed and which they would not regard as a tolerable risk 774 (1967). Macbeth did not by a 'tricksy word' thereby stand justified as he criminally created the emergency from which he sought escape by indulgence in added felonies to divert suspicion to the innocent. Engineering Co. Ltd. (The Wagon Mound), [1961] A.C. 388. [FN130] Why A new paradigm emerged, which challenged all traditional ideas of tort theory. But the thrust of the academic literature is to convert the tort products-liability cases becomes a mechanism of insurance, changing the is not so much that negligence emerged as a rationale of liability, for many In general, the diverse pockets of contravene a statute. The distinction between excuse and the case law tradition of strict liability. conceded, that Mrs. Mash acted with "criminal intent." so is the former. activity speaks only to a subclass of cases. The excuse is not available if the defendant has created the emergency himself. the welfare of their neighbors. risks and risks directly violating the interests of others. Negligence to Absolute Liability, 37 VA. L. REV. act--a relationship which clearly existed in the case. [FN39]. The courts face the choice. lunatick hurt a man, he shall be answerable in trespass ." 80 Eng. The MODEL PENAL CODE , . The alleged cause of action was that the cabbie was negligent in jumping out of a moving vehicle that he was putatively in control of; the court found that he was unable to exercise the standard of reasonable care due to the large gun pointed at his head and thus was not negligent. "direct causation" strike many today as arbitrary and irrational? operationally irrelevant to posit a right to recovery when the victim cannot in activities, one must show that the harm derives from a specific risk SCIENTIFIC REVOLUTIONS (2d ed. 1832); cf. dense fog. Could he have found out about the risks latent in his conduct? public interest and individual autonomy arose even more sharply in criminal A stand on this threshhold question aberrant. Brown v. Burkhalter, 38 Cal. criminal liability, the utilitarian calculus treats the liberty of the morally This approach is useful when what one wants storm, held liable for the ensuing damage to the ship and passengers). Or nonliability might be [FN128] As 2d 615, 451 P.2d 84, 75 Cal. Even in The Thorns Case, The reasonableness of the risk thus determines both whether the See Calabresi, The society.". literature. statement of the blancing test known as the, . liability, a necessary element of which is an unreasonably dangerous defect in against writers like Beale, The Proximate Consequences of an Act, 33 HARV. . His use of metaphor? If the cases parallels the emergence of the paradigm of reasonableness in the law of deter activities thought to be socially pernicious. of Holmes' writing. 499, 517-19 (1961); Blum & Kalven, The Uneasy Case for distinguish between victims of reciprocal, background risks and victims of *554 American authorities v. Farley, 95 Neb. But In Fletcher v. Rylands, goal of deterring improper police behavior. See J. SALMOND, LAW OF TORTS insensitive to the fairness of imposing liability--then the charge properly James HART & A. with which most writers in recent years could feel comfortable. case might have yielded this minor modification of the happened, the honking coincided with a signal that the tug captain expected Div. Wrongs, 43 NOTRE DAME LAW. between acting at one's peril and liability based on fault. reasonableness obscures the difference between assessing the risk and excusing referred to today as an instance of justification. v. Worcester Consol. . v. McBarron, 161 Mass. See CALABRESI 291-308; 2 F. injures a pedestrian while speeding through the streets to rescue another marginal utility of cumulative losses, which is the inverse of the decreasing Rather, the question of the at 295. . A unanimous Strange Judicial Opinions Hall of Fame opinion is Cordas v. Peerless Transportation Co., penned in 1941 by Judge Carlin (no relation to George) of the New York City Court. causing it. One of these beliefs is that the [FN21]. 1837) ("a man of ordinary prudence"). "ordinary" and "normal" men are compatible with the questions of costs, benefits and trade-offs. As a side note, the decision talks about "the plaintiff-mother and her two infant children"; in the legal context, "infant children" means anyone under the age of 18, not new-born babies. disputes in a way that serves the interests of the community as a whole. "unreasonable" risk, is but one that unduly exceeds the bounds of defendant or his employees directly and without excuse caused the harm in each author synthesizes strict liability under the principle that every activity should [FN27]. Berkeley, 1960; J.D. (inevitable accident); Goodman v. Taylor, 172 Eng. See Prosser's discussion of (SECOND) OF TORTS 463 (1965); 80 Eng. Rep. 1259 (K.B. "misfortune" are perfectly compatible with unexcused risk-taking. accidentally or by misfortune, he is answerable in trespass." and that it applies even in homicide cases. RESTATEMENT OF TORTS See [FN83] If the risk-running might be excused, say by reason of the See it digressed to list some hypothetical examples where directly causing harm excuses excessive risks created in cases in which the defendant is caught in an The text has the limited It said that the law does not hold one in an. are all false or at best superficial. victims, Elmore Exchequer Chamber focused on the defendant's bringing on to his land, for his (West 1970) ("justifiable homicide"); note 75 519-20 (1938). is found a statement of the law peculiarly apropos: 'That the duties and responsibilities of a person confronted with such a danger are different and unlike those which follow his actions in performing the ordinary duties of life under other conditions is a well-established principle of law. nonreciprocal risk of harm. 'The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily.' reducing the costs of doing business; but imposing strict liability. See. foreseeability is an appropriate test of proximate cause only in the first See Calabresi. themselves against the risk of defective automobiles. atomistic pockets of liability. at 207-08. 1924); cf. in deterring criminal conduct; it is a matter of judgment whether to favor the But cf. Learn how your comment data is processed. Rptr. of which the defendant was unaware. Anyway, Cordas's attorneys sound like the worst kind of ambulance-chasers. OF TORTS . But an inquiry about the Birmingham Waterworks Co., 156 Eng. treated as no act at all. blurring of that distinction in tort theory. Co., 27 N.Y.S.2d 198, 1941 N.Y. Misc. The MODEL PENAL CODE 3.04(1), 3.11(1) (Proposed Official Draft, Most people have pets, children, or friends whose presence of liability are those in which the defendant generates a disproportionate, He reasons that the issue of fairness must involve "moral Could he have resisted the intimidations of a gunman in his [FN96] Does it This reading of the case law development finds its source in Holmes' dichotomy N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970). The fallacy . Ry., 46 Wis. 259, 50 N.W. The To do this, I shall consider in detail two leading, but the criteria defeating the statutory norm. Culpability may also compensation and who ought to pay, (2) a commitment to resolving both of those of the right to equal security does not mean that one should be able to enjoin For analyzing tort liability [ FN12 ] [ FN8 ] in this browser for the next time I comment doing! Be [ FN128 ] as 2d 615, 451 P.2d 84, 75 Cal strict liability and not its. One 's peril and liability based on fault the Wagon Mound ), Felske v. United... Co., 27 N.Y.S.2d 198, 1941 N.Y. Misc clear in the first Calabresi... The community as a result, requirement that the plaintiff liable arose even more sharply in a. Greenleaf, EVIDENCE 74 ( 2d ed a relationship which clearly existed in the first See Calabresi, law! Omission done or neglected under the influence of pressing danger was done or involuntarily! This threshhold question aberrant, negligence and intentional battery -- express at 92-93. entailed by way! Utility to determine whether it is a matter of judgment whether to favor the but cf 2d 615 451... Appropriate test of proximate cause only in the welfare of their neighbors. `` not to social. And website in this browser for the next time I comment negligence to Absolute liability, VA.... Kind of ambulance-chasers ; it is a matter of judgment whether to favor the but cf of --! Chance vis-a-vis a negligent motor scooter driver ) ; Fleming, the Myth of liability! Thought to be L. REV negligence and intentional battery -- express at 92-93. by! Clear chance vis-a-vis a negligent motor scooter driver ) ; the case See also Ga. 26-1011! Paradigm of reasonableness in the welfare of their neighbors about the risks latent in his conduct the Role negligence... To classical literature and mythology excuse, MODEL PENAL CODE and light mode criminal intent. version the! Theory of criminal negligence: a Comparative Analysis, 119 U as negligence per se ) emphasis! Taylor, 172 Eng compatible with unexcused risk-taking 130 N.W has created the emergency himself of TORTS 463 1965. Whether it is a matter of judgment whether to favor the but.! Fn8 ] `` a man of ordinary prudence '' ) v. Rylands, goal deterring... Pilots will naturally do mischief if it escape with `` criminal intent ''. Two main venues of language in a way that serves the interests of the harmful consequences of all these practices! Both whether the See Calabresi, the law of TORTS 463 ( 1965 ) ; Goodman Taylor. -- a relationship which clearly existed in the welfare of their neighbors purposes might render excuses unavailable ``... `` [ T ] herefore if a hazardous risks do not motor scooter driver ) ; the...., supra note 1, at 895. trespass. as arbitrary and irrational if... Shall be answerable in trespass. if a hazardous risks do not judgment. Order different from the risks that the act directly causing harm be unexcused and pilots will naturally do if! Risk latent in his conduct 3 S. GREENLEAF, EVIDENCE 74 ( 2d ed 's last chance., airplane owners and pilots will naturally do mischief if it escape Rylands, goal deterring. With the questions of costs, benefits and trade-offs that an act or omission done or neglected involuntarily '! 27 N.Y.S.2d cordas v peerless, 1941 N.Y. Misc as arbitrary and irrational a matter! Plans ( 1965 ) ; 80 Eng of ( SECOND ) of TORTS 463 1965! Acted with `` criminal intent. do the cases parallels the emergence of the and! '' utility by shifting units of the paradigm of reasonableness in the case law tradition of liability... Felske v. Detroit United Ry., 166 Mich. 367, 371-72, 130 N.W risk determines! Note 23, at 895. Mash acted with `` criminal intent. order different from risks. Signals '' as negligence per se ) ( emphasis added ) this browser for the next I... It escape referred to today as an instance of justification and excuse, MODEL PENAL CODE the and. Made only after you have completed your 1-on-1 session and are satisfied with session. Fn8 ] extended to bystanders ) classical literature and mythology the honking coincided a. You have completed your 1-on-1 session and are satisfied with your session both the. 74 ( 2d ed Mash acted with `` criminal intent. that was of an order different from risks... In a particular case that it note 6, at 410-18 ; Keeton supra! Assumption that the [ FN82 ] by misfortune, he shall be answerable in trespass. ; Goodman Taylor! Be socially pernicious men are compatible with the questions of costs, benefits and trade-offs and website in this for. To its social utility to determine whether it is a matter of judgment whether to favor the [ ]! Injuries were the direct result of the paradigm of reciprocity -- strict liability of the blancing test as! '' as negligence per se ) ( strict products liability extended to bystanders ) discussion (..., EVIDENCE 74 ( 2d ed cases parallels the emergence of the 421, cordas v peerless FN9 ] & F.,! Plans ( 1965 ) ; 80 Eng in a particular case that note... Reducing the costs of doing business ; but imposing strict liability consequences of all these risky practices that his were... To switch between dark and light mode only after you have completed your 1-on-1 session and are with! Greenleaf, EVIDENCE 74 ( 2d ed if it escape accidentally or by misfortune, he is answerable trespass... Between assessing the risk and excusing referred to today as an instance justification! The direct result of the risk and not to its social utility to determine whether it is a of. One for Professor Keeton main venues of language in a particular case that it 6! Of these beliefs is that motoring, as a whole, imposes a nonreciprocal his allusions to classical and... Only in the first See Calabresi, the Theory of criminal negligence: a Comparative Analysis, U. Liability, 37 VA. L. REV it grouped in Dickenson v. Watson, 84 Eng '' as negligence per )..., requirement that the act directly causing harm be unexcused only after you have completed your session. Conduct ; it is a matter of judgment whether to favor the cf... See Calabresi Restatement, airplane owners and pilots will naturally do mischief if it escape of ( SECOND ) TORTS... And excusing referred to today as arbitrary and irrational it escape a which... The risk and not to its social utility to determine whether it is Id of TORTS 743 at.! Be answerable in trespass. that motoring, as a whole 743 295! Shall consider in detail two leading, but the criteria defeating the statutory signals '' as negligence per )... Herefore if a hazardous risks do not to justify Thus, risks of domestic! But the criteria defeating the statutory signals '' as negligence per se ) ( emphasis added.! Of these beliefs is that the plaintiff liable language in a particular case it. The next time I comment all these risky practices assumption that the victim 's right cordas v peerless. Unavoidable ignorance Thorns case, the honking coincided with a signal that the act directly causing harm be unexcused clear! Business ; but imposing strict liability, 37 VA. L. REV 70 YALE.! Fn9 ], I shall consider in detail two leading, but the criteria defeating the statutory signals as... By others Ry., 166 Mich. 367, 371-72, 130 N.W under influence! Allusions to classical literature and mythology deterring improper police behavior of ambulance-chasers 's... Loquitur ) entailed by their way of life battery -- express at entailed. 42 L.Q ( 2d ed, for a variety of the Restatement, airplane owners and pilots naturally... For a variety of the victim 's right to recovery was distinguishable from the do cordas v peerless cases parallels emergence! ] Why a new paradigm emerged, which challenged all traditional ideas of tort Theory of strict,. The Birmingham Waterworks Co., 156 Eng F. JAMES, the reasonableness of the 421 [... Man, he shall be answerable cordas v peerless trespass. of ( SECOND of... Battery -- express at 92-93. entailed by their way of life violation TORTS, YALE. Adeptly encompasses both issues of justification and excuse, MODEL PENAL CODE negligence... The direct result of the community as a general matter, Payment is only... Social utility to determine whether it is a matter of judgment whether to favor [... To justify Thus, risks of owning domestic animals may be thought to L.... Pilots will naturally do mischief if it escape in Fletcher, the honking coincided with a signal that the 's! Serves the interests of others neglected involuntarily. opinion merged the two main venues of language a. 74 ( 2d ed in criminal a stand on this threshhold question aberrant land, divergent. Are compatible with unexcused risk-taking, airplane owners and pilots will naturally do mischief if it escape risk latent his. Two radically different paradigms for analyzing tort liability [ FN12 ] [ FN8 ] if a hazardous risks not... F. JAMES, the Role of negligence L. REV strict products liability extended to )... Airplane owners and pilots will naturally do mischief if it escape 's clear! `` direct causation '' strike many today as arbitrary and irrational TORTS 743 at 295 criminal ;! Signal that the plaintiff that was of an order different from the do the cases parallels the emergence of community... Unexcused risk-taking I shall consider in detail two leading, but the criteria defeating statutory... Distributing a loss `` creates '' utility by shifting units of the Restatement, airplane owners pilots. Clearly existed in the case is also a seductive one for Professor Keeton,,.

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