| From: | John Goldberg <jgoldberg@law.harvard.edu> |
| To: | Wright, Richard <Rwright@kentlaw.edu> |
| Robert Stevens <robert.stevens@ucl.ac.uk> | |
| CC: | obligations@uwo.ca |
| Date: | 23/01/2010 20:20:06 UTC |
| Subject: | RE: [Spam?] RE: Duty, and Breaking Eggs |
Interesting stuff. Perhaps it
generates more confusion than clarity, but I find it useful – as does Ben
and (I believe) Arthur – to think of the tort of negligence as containing
a duty within a duty. The larger duty is a duty not to injure
others. It is only when one injures another in the right way that this duty
is breached. Risk-creation of itself is not a breach of this duty.
However, the larger duty contains a
qualification. The qualification, of course, is that one will not be deemed to
have breached this duty even if one has injured another if the injury results
from conduct that meets the standard of ordinary prudence. By virtue of
this qualification, the negligence tort sets a norm – generates a duty
within the larger duty – of acting with appropriate care toward others.
In sum, negligence enjoins us from injuring persons (larger duty) by
means of conduct that is careless toward them (duty within the duty).
One might reject the foregoing account as
descriptively inaccurate or prescriptively undesirable. (I think it is in
fact descriptively accurate and normatively defensible.) But it is not –
as Richard W seems to suggest – “bad conceptually.” (Here
I take myself to be agreeing with Charlie’s recent post.) One can
embrace the view that negligence (the tort) is not committed until one’s
carelessness toward another injures her without thereby being required to
abandon the notion that negligence law ‘enjoins’ us to act
carefully toward others. To be sure, any given actor can ‘get away’
with violating this injunction if he has the good fortune not to injure another
via his careless acts. But (as Charlie says) the fact that the actor in
this situation is spared legal sanction by no means entails that he was at
liberty – in a normative sense of liberty – to act carelessly
toward others. For example, one could cogently and appropriately
criticize this actor for having failed to attend to his legal duty to act with
care toward others even though his careless conduct happened not to injure
anyone, and hence did not subject him to liability.
JG
From: Wright, Richard
[mailto:Rwright@kentlaw.edu]
Sent: Saturday, January 23, 2010
12:11 PM
To: Robert Stevens
Cc: obligations@uwo.ca
Subject: [Spam?] RE: Duty, and
Breaking Eggs
I agree that no tort or wrong has been
done to one who has not actually suffered any injury as a result of the
defendant's (negligent or otherwise tortious) conduct. A complete tort or
civil wrong requires not merely duty and breach, but also actual causation and
attributable responsibility ('proximate' causation or lack of 'remoteness').
The issue in the Sikh case does not, as
Rob implies, turn on the the debate between those, like me and the
Restatement Third, who agree with Andrews' view of a duty owed to the world at
large not to create unreasonable foreseeable risks to others (which, by the
way, the English courts have adopted without acknowledging doing so by treating
any nonfantastic risk as foreseeable in Wagon Mound 2), rather than Cardozo's
narrow (and incoherent given the many exceptions made to it) view of a duty
owed only to specifically foreseeable (classes of) plaintiffs (on both points, see
my article, The Grounds and Extent of Legal Responsibility, in the San
Diego Law Review, which is accessible through the hyperlink in my
'signature'). As I stated in my original post, the victim in the Sikh
case was within the class of foreseeable plaintiffs (assuming it is
foreseeable that persons with allergies to eggs would or might reasonably rely
on there being no eggs in the food served at the Sikh event), so a duty was
owed according to Cardozo's view as well as Andrews' view. Cardozo himself
separated the issue of duty from the subsequent distinct issues of causation,
both actual and 'proximate'.
Rather, what divides Rob from me (and, I believe, many
others) is whether one has the duty concept swallow up the entire tort, by
including within the duty analysis the issues of causation and attributable
responsibility. Rob believes that a duty is owed to others only not to injure them (in foreseeable,
nonremote ways) through conduct that creates an
unreasonable foreseeable risk of such injury. No matter how unreasonable
one's conduct is and no matter how foreseeable and significant the risks to
others, one has no duty not to engage in such conduct unless it subsequently
turns out to have actually injured others (in a foreseeable and nonremote way).
For Rob, duty is equivalent to wrong and requires ex post actual causation and
attributable responsibility analysis as well as ex ante foreseeable risk
analysis. He, I assume, defines negligence or 'potentially liability
creating conduct' not as a breach of duty but rather as creating an
unreasonable foreseeable risk to others. But what makes it
unreasonable? It would seem that, according to Rob, it is not
unreasonable if not wrongful in a strict sense, that is, if it does not end up
actually causing injury to another. It is not even enough in the Sikh
case for the unsuspecting guest to have eaten the egg (as Rob states); it must
also be the case that eating the egg caused an allergic reaction, and that the
allergic reaction caused physical harm.
Perhaps Rob has some other name for what everyone else calls
duty/breach/negligence. It may just be semantics, but I don't find his
semantics helpful. Moreover, I don't think his approach to
duty, which has also been espoused by Ripstein and Zipursky, is merely
idiosyncratic semantics, I think it also is bad conceptually. On his
view, it seems one should not be able to enjoin risky conduct unless it is certain
that the risky conduct will injure (in a foreseeable, nonremote way) a
foreseeable victim, and perhaps not even then. After all, on his view
there has been no breach of duty until a cognizable legal injury has been
suffered by the plaintiff.
Richard
W. Wright
Distinguished Professor of Law
Illinois Institute of Technology
Chicago-Kent College of Law
phone: 312-906-5044
fax: 312-906-5280
http://www.kentlaw.edu/faculty/rwright/
From: Robert
Stevens [mailto:robert.stevens@ucl.ac.uk]
Sent: Sat 1/23/2010 9:58 AM
To: Wright, Richard
Cc: obligations@uwo.ca
Subject: RE: Duty, and Breaking
Eggs
For me this is definitional. I
prefer to say that a tort is a civil wrong.
A civil wrong is a breach of a duty owed to someone else.
So, if we say, as Richard does, that the defendant has breached his duty
to those with egg allergies when the meal is served then there is a tort,
at that moment and without more ado, with respect to all those at the meal
with the egg allergy. I don't, myself, think that is correct. Similarly, I
don't think there is any civil wrong (which is synonymous with a breach of
a duty owed to someone else) if I drunkenly drive the wrong way around a
roundabout and hit nobody. It is a duty to take care not to injure, and so
can only be breached when someone is in fact injured.
Personally, I prefer to say that there is no tort, which is the same as
saying no breach of any duty, before the egg is eaten by someone who has
assumed that there is no egg in the meal. 'Causation' is for me only a
separate distinct issue which properly arises when we are considering what
the consequences of a civil wrong are, not whether there is a civil wrong.
I cannot breach any duty owed to you without injuring you because
negligence in the air is not enough. Whether my negligence has caused you
injury is a matter going to breach, not a freestanding question in its own
right.
Of course, I do know that lots of people don't think like that. Andrews J
in Palsgraf for example, and the American Restatement (Third) of Torts
too. If you think a tort is not a civil wrong, but rather a formula or
recipe for relief, you can divide up its constituent elements in any way
you like.
Rob
> I think Rob is confusing duty and breach with causation. If it was
> foreseeable to the defendant, given the religious circumstances, that
> people attending the Sikh event would assume that food with eggs was not
> being served and that people allergic to eggs would rely on that
> assumption, then all such people are foreseeable victims and the defendant
> has breached his duty to them by serving the food with eggs without
> warning. If the particular plaintiff would have eaten the food
containing
> eggs even if he knew about the eggs, then there is a lack of causation.
> It is the same as in any other case where a defendant omits a required
> warning, but the warning would not have been heeded by the victim.
>
> ________________________________
>
> From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]
> Sent: Fri 1/22/2010 10:19 AM
> To: Jones, Michael
> Cc: Robert Stevens; Hedley, Steve; obligations@uwo.ca
> Subject: RE: Duty, and Breaking Eggs
>
>
>
>> I'm not sure that the claimant's subjective reasoning process should
be
>> relevant to whether the defendant owed a duty.
>
> It is a question of what makes the defendant's conduct negligent vis a vis
> the claimant. If we think that supplying eggs without warning by caterers
> is not generally negligent per se vis a vis potential consumers (and I
> think that is probably correct, unlike the case of nuts) what made it
> potentially negligent vis a vis this claimant was that on this occasion he
> would not take the normal precautions someone with an egg allergy would,
> because it was food in a Sikh temple. That is why Moor-Bick LJ stresses
> this point at para 25 (which I extracted) and why he thinks this case is
> 'unusual'. If the deceased was unaware of his egg allergy or if, as Steve
> suggests, he was the sort of person who thought "My doctor says I
> shouldn't risk eating eggs, but I don't listen to doctors" then his
death
> was not wrongful as it was not the sort of injury the caterer had a duty
> to protect him from suffereing.
>
> Negligence 'in the air' is not enough, so if the claimant had died because
> he had slipped on some of the eggy ras malai spilled on the floor, no
> claim.
>
> Rob
> --
> Robert Stevens
> Professor of Commercial Law
>
>
>
>
>
--
Robert Stevens
Professor of Commercial Law