Liability Without Fault and Proximate Cause

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1 Yale L aw Sc hool ory aw Sc hol ars hi p R eposit egal Sc Yale L hool L eries Yale L aw Schoo l Faculty Scholarship Faculty Scholarship S 1932 ause Li y W ithout F ault a nd P roxim ate C lit abi Fowler V . H arper Yale L aw Sc hool Follow thi s and additional works at: https://d igitalcommon s.law.yale.edu/fss_papers Part of the s Law Common nded Citation Recomme ichigan Law Review 1001 (1932) ault and Proximate Cause, 30 M Liability Without F aw Schoo l Faculty Scholarship a l Legal Scholarship R eposit ory. It aw Schoo t Yale L This Article is brought to you for f ree and ope n access by the Y ale L strator of Y ale L aw Schoo has be eposit ory. For en accepted for inclusion in F aculty Scholarship S eries by an author ized admini l Legal Scholarship R .edu . [email protected] lease contact mation, p more infor

2 MICHIGAN LAW REVIEW 30 MAY, Vol. 1932 No. 7 AND WITHOUT LIABILITY FAULT CAUSE PROXIMATE Fowler V. Harper* I STATEMENT IN VARIATIONS OF LIABILITY A S a logical matter there seem to be two possible schemes of legal first one may be liability. as follows: One The stated be may all for all of consequences liable of While has been sug- acts. his it this was the principle of the mediaeval law, it has been gested that out by Professor Winfield that such pointed never literally the was case. this principle, as he has shown, everyone would be in Under except for reasons: jail these could put anyone else in one legally no one jail, legally keep anyone else in jail, and no could one could no legally build jail in the first place.' a second The of liability - the one actually in force - scheme may be be three ways: (I) one may stated liable for some of the conse- in quences of all of his acts, or (2) one may be liable for all the conse- quences of of his acts, or some one may liable for some of the (3) be some his acts. of consequences of three statements are in Now these three different of the same fact statements state that one thing. To liable for some is consequences of acts, for all consequences of some all or some consequences of some acts, for is merely repeating the acts proposition in three different same As a ways. matter, the practical common law principle is generally stated in the third way, and the problem in case is to know what consequences of what every acts entail The line which separates liability. (act) from consequences is conduct an arbitrary line and can be put wherever one finds it most con- * Professor Law, Indiana University Law of Editor, School. Law Journal. Indiana M.A., Iowa; S.J.D., Michigan. Author of articles in various legal periodicals.-Ed. 'Winfield, Myth of Absolute "The Liability," (1926). L. Q. REv. 37 4z

3 1002 30 V01. MICHIGAN REVIEW LAW the common law put it at it. to purposes venient For put certain from actions on the case. actions divided in which point trespass the injury in case the had of the "part to act", injury the be trespass, In divide do find it convenient to as we Just only. "consequence" a was order causes them to and effects in make experience of into flux the human it desirable in the law to treat found we have treat, to easier and the human elements- two conduct composed of experiences as really a person is liable Justice Holmes As Mr. says, its consequences. it But is no consequences the of his conduct even in trespass for line drawn conduct. Now since the his liable is he less true that for choice arbitrary there is some and conventional, two the between is of drawn in stating principles be shall as to this line precisely where of solely by considerations should be determined choice liability. The statement. Under such circum- of intelligibility and coherence logical the for opinion difference of some find stances expect should to we be may of statement if for no other, that several methods reason, finds true of Poincar6 equally What and true. equally intelligible there is legal- that where is certainly true of phenomena physical explana- there are an infinite number of a one for thing explanation is more than one. there tions! At least, we find is the three methods of stating best of this Perhaps the instance negligence. These three which for principles control liability the legal of in terms the how liability expressed be may methods indicate with of the consequences the and conduct character character of the the one or upon upon other. These the varying emphasis degrees of because not three familiar with identified names, be three methods may these three persons of exactly the techniques methods represent the to tendencies way they do represent their in a but because general of em- degrees placing different by state liability and results analyze methods The three consequences. and upon conduct phasis respectively dearer for the purpose of making the comparison identified may also be is the law of torts. The first method in known cases three with well the associate with name of we may, convenience, the one which for well is well illustrated by the fairly known and Andrews," Judge which here analysis the R. R.' to Shore Lake v. According Hoag case of liability based need only be is which employed, the conduct upon COMMON 91 (is8i). 2 HOLMES, LAW THE 120 (1913). SCIENCE FOUNDATIONS OF E. 339, 16z N. 99 248 N. Y. Palsgraf v. Long Island R. Co., 'Dissefiting in (1928). 293, 27 Am. 85"Pa. 653 (1877). ' St. Rep.

4 LIABILITY FAULT WITHOUT No. X00 7 3 risk involves foreseeable harms as such of unreasonable some some to harms persons threatened persons. threatened Neither the the nor generally. or particularly to referred are Defendant's even con- of basis if it can the liability duct is sufficiently culpable to become Given this type of be characterized as "negligence in the air." conduct, what consequences defendant determining of one becomes problem the technique the is is liable for liable for. According to this defendant consequences class of harms which make the (I) which are of general person the his conduct negligent, (2) if is of the general injured class the defendant's abstract negligence, by are who persons of threatened is brought about in a way as is not unjust and (3) if the harm A defendant elaborate set of rules to hold liable therefor. somewhat determine out not the injury in a worked been has whether to or consequence as the last of these satisfy particular to case is such a of the fore- three requirements. Beyond somewhat vague applications to test with the seeability nothing assist formulated been has two first requirements. is The second method of analysis with one which may be associated the name of and the case of is Bohlen' which illustrated by Professor 7 Co. According In to this re of Polemis and Farness, etc., method which the basis of liability must is such conduct law, the stating be risks of a general that to persons it creates unreasonable type of a type of class. this general Given of the on defendant, conduct part consequences all in such a way that it is for liable is which he occur liable therefor. be noted that according will It not unjust to hold him considerations which, according to to this method two of the Judge the of the conse- character statement, of manner Andrews' determine liable are now employed to determine the for which one quences is for one is liable. In other words, character of the conduct which one of created any kind that unrea- whereas Judge Andrews stated who which to liable for all consequences was injury of risk sonable anybody general class to a general class of persons were injuries of a they if manner, Professor Bohlen states that a person to be a occur in certain of create general class of harms to a must negligent a risks certain if he is thus negligent, and is liable for all general class he of persons a certain sequence. Professor to according which consequences occur the Natural Consequences as the Test of Liability in Negli- ' "The Probable or REG. gence," S.) 79, 148 (1901), STUDIES IN THE LAW OF ToRS I 40 AM. L. (N. to also Bohlen has ascribed been employed by Mr. (1926). The technique Professor admirable work NEGLIGENCE. Beven in his on B. 56o. 3 [x921] 7 K.

5 MICHIGAN REvIEw LAW 30 Vol. 1004 the emphasized the character of has somewhat thus more Bohlen expense character of the consequences. He has, at conduct of the the as were as significant factors same general the recognized however, so the two systems difference Andrews; in recognized by Judge the of statement. form the of one largely being 8 Dean by method Green The of statement is that employed third of Palsgraf v. Long and R. R. Co.' The illustrated by the case Island state principles of liability for negligence by technique here is to the upon character of defendant's emphasis the placing practically the all defendant must conduct. a risk (i) of To be liable, a creat general a general class of persons, (3) which is possible of consum- type, (2) to a such mation it will not be unjust to hold defendant liable in a way that negligent according this formula is liable who One therefor. is to for consequences all is to be conduct. his actually from It ensuing noticed taken all three of the major consider- that Dean Green has here Judge Andrews employed to determine the ations of policy which for a consequences defendant would be liable, character of the which to used has and determine them the for conduct the of character which the defendant difference is merely one is state- liable. Again the of law found in the cases. All as cases which Judge the of ment the intelligibly according to his formula, Dean Green Andrews can present can Professor quite intelligibly according and Bohlen state theirs. to may one of these three methods makes it a little easier be some It that or makes a little more intelligible when stated. From the state to law it view, each a rational point of method least possible at is statement of a there may be between them must be based one and whatever choice which other or the with characterizes the decided upon the ease one than like of statement better manner will one cases. One person important to realize that substantially the same another; but it is policy recognized factors are being and one is for- difference the that of mulation. of tort law where we talk of liability without fault, In the area that the of the decisions it appears results readily stated also can be schemes three for stating the law of just the to according outlined terms in namely, - negligence of (a) created, of the general type risk 8 CAUSE OF THE RATIONALE PROXIMATE (1927). 9 z48 N. Y. 339 (I9z8). The Palsgraf case is not a pat case to illustrate Dean Green's technique. well very that Chief Judge Cardozo was thinking It may be Professor the of analysis - that one attributed to method Bohlen. in second of terms has writer The in which the court found unequivocally employed the no case has Green analysis. comes as close to this Palsgraf as any case The case technique available.

6 FAULT WITHOUT LIABILITY 7 No- 1005 and (c) the manner in class threatened the (b) of general persons that occurs, sequence of events involved. is, harm the which the II LIAILITY "ABSOLUTE" IN FACTORS error in the popular assumption the Dean out Thayer' pointed all for liable the defendant makes Fletcher v. Rylands of rule the that what conduct. This is precisely his resulting in from fact consequences as will makes liable, it defendant not do; the case does the rule of for remote conse- only not proximate consequences, for shortly, appear this that however, seems Thayer have thought, Dean quences. to cases later by rule imposed the of limitations subsequent due to was included liability remote for that the rule, as originally enunciated, and We agree that this was the cannot as well proximate as damage. judgment in the celebrated matter. In the enunciating of state real it may suggested, Exchequer of the Court Blackburn, J., Chamber," who limitations liability. A man the some of of be remembered, the liable, he said, for was land collected dangerous substances his on The escape. of their consequence "natural" which was the damage be is to ascertained ascribed the to adjective to meaning be "natural" there- the in which the judge made immediately the light of statement pointed that he thought a defendant could absolve He out after. to the escape was due that an act showing by liability from himself remarkably like some of the limita- major. This or vis God of looks Moreover, causation. governing rules tions imposed by the proximate v. Fletcher of under Rylands conceived Thayer Dean although liability that thought only, he consequences properly to proximate extending as of to liability under other heads limitation liability such no was there compensation his examples, without fault, as, to use workmen's contrary, the animals. On dangerous keeping liability and statutes for (stated her( follows it the same limitation will appear in what that o: connection) applies equally under all principles of causal terms in liability. strict an hypothesis which cover we As a may starting formulate point be done in suc may fault. This most without of the casts of liability some thereto: types exception take will no that broad terms one Without Fault," before his death, "Liability shortly article 10 an written In Sox (1916), SELECTED ESSAYS L. THE LAW OF ToRTS 599 (194). REv. ON HAMv. R. i Ex. z65 (1866). 11L.

7 xoo6 REvIEw LAW MICHIGAN 30 Vol. conduct the even when to others, of harms such risks create conduct itself is not risks of the creation the though that, careful, is itself nevertheless conduct, the of utility social the of because unreasonable may We loss. own his bear to injured person the for is unreasonable it the of parts the to answer in then, liability, strict of rules the state in lawful of conduct types what (I) questions: general following that (3) of persons classes certain to (2) so hazardous are themselves persons? to those consequences of the risks some must assume actor the Threatened of Harms Class General I. The terms in be given may our question of first part the to The answer -keeping nuisance call we which situations type-fact various of the large collecting animals, domestic keeping animals, vicious or wild fires, etc., maintaining land, one's on substances dangerous of quantities without liability of conduct-basis the become have gradually which that submitted is it conduct, in such has engaged actor If the fault. requirements other the satisfy which consequences all for is liable he in extra-hazardous engages who one But formula. our proposed of the to belong which consequences for those only liable is conduct the though Thus, conduct. his by threatened of harms class general not is he by nature, vicious is that animal a wild keeps, defendant run- and frightened becoming a horse by produced injuries for liable 1 is a harm " Such the road. on animal the of the sight at away ning extra- conduct his make which harms of classes general the of one not A disposition. vicious the animal's result of not a It is hazardous. of quantities accumulates the defendant where is reached similar result for liable is not He amounts. dangerous in land his on electricity which harms of class general the outside were which consequences electrical plaintiff's the to injury as such dangerous, conduct his make 1 of rule the not impose does law the of policy The equipment. extra- plaintiff's the to incident harms against protect to liability 3trict defen- the where is true same The of land. uses unusual and )rdinary heat excessive of because nuisance a be to charged is conduct lant's plain- the wheie process, manufacturing defendant's by the )roduced which paper type of delicate a very to damage of consists injury iff's of the one is not injury The premises.' his on sale for keeping is e nuisance. a conduct defendant's makes of which risk the class, .neral 2 (i86z). i4 (N. Y.) Barb. 38 Kelly, v. Scribner ' 8 g8z. C. A. [19oz] Tramways Town v. Cape Co. Tel. S. African & 1 Eastern (1889). 88 D. Ch. 41 Kilvert, v. '*Robinson

8 LIABILITY FAULT WITHOUT 100 7 No- 7 the principles injuries by same The liability govern for domestic vicious general risk which is known animals to tendencies. have The may is expected from such liability of basis the be what reasonably and an to keeping viciousness, known no animal other harms. Thus, attack human beings is insuf- attack other animals but never known to 5 latter of harm. the The ficient type the for owner hold to keeper of such the general type of harm which makes an animal is liable only for that of injury which he knew his conduct extra-hazardous, that is, type 6 a to commit." had animal propensity or had noticed that the A similar limitation is to be found trespassing to relating law the in liable animals. of a very definite general The owner is held because the of cattle, viz., their escape, wanderings and class of risks in keeping Thus, a defen- even though and trespasses incident thereto. damage of liable animals, he is not for domestic trespass his dant is the liable at alone, all such is not the type of harm for injuries to the person as makes which extra-hazardous. "For this the keeping of the animal keeper reason," a domestic animal is not says Judge Cooley," "the of animal mischief be done by such may any that in for responsible general not which be expected from him." In Hadwell v. was of a kind to 8 to the Righton escaped on defendant the road, a fowl belonging to a and flew into the wheels of a passing cyclist. became frightened at dog not was personal injuries to the rider, al- owner liable The held for might thought if it were shown that court the though be there liability fowls bicycle in Cox v. Bur- Similarly, at were liable to fly wheels. 9 liable for bidge the owner was not the horse by person a of kicking his that when defendant knew his horse to be vicious. it did not appear the discussion the Furthermore, the principle under limits measure of can plaintiff damages. recover, A for the in addition to the damages he must show the damage btqt damage other trespass, sustained, of the general class to be apprehended from the trespass. to be a harm sheep where in plaintiff's field and Thus, the defendant's trespassed defendant sheep, for the "consequential" his infected was the liable damages.21 me," "to be the natural court, said "It the appears to the defendant's sheep that the consequence of the trespass by plaintiff's Ili. (1872); Osborne v. Chocqueel [1896] z 235 v. BEightlinger 65 Egan, 1O9. B. Q. Russell, "o Ind. 531, z5 N. E. 596 (I89O). See Klinberg v. 125 ON 3d ed., 69z (19o6). 17 2 COOLEY ToRns, B. 345- 2 [1907] 18 K. 19 13 C. B. (N. S.) 430 (1863). 2 0 Theyer v. Purnell [ 1918 ] 2 K. B. 3 3 3.

9 xoo8 MICHIGAN REvIEw LAW 30 VOL. sheep own might contract scab defendant's from The sheep." same result reached was the when trespassing defendant's stallion the bit mare"' plaintiff's where and the defendant's worthless bull got the 2 2 thoroughbred plaintiff's cow with It calf. is noteworthy that some commentators of the have explained actually these cases in the language of proximate causation by understood as Andrews. Judge Thus, Pol- 3 2 observes: lock the is "It nature of cattle and other live stock to stray if not and in, kept do damage if to stray; they and the to is owner bound keep straying from them the land on others at of his peril, though liability . the . . for only is natural and probable consequences, an for not unexpected event." rationalizing And Beven, in in case a of the which owner was a horse for held liable personal injuries committed it while trespassing, was declares:24 horse "When a is where it should kicks, not be, and the kicking is remote not so far what is from be to expected the from natural disposition that of horses injury cannot the said be to follow in the natural obvious and sequence from original wrongful the act allowed which horse the to get an where of opportunity doing injury is given." As final a illustration which in way the of liability strict is limited to the general harms of class that the render extra-hazardous, conduct we may the refer to cases denying liability caused for damage by blasting the when is damage produced by concussions the atmos- of 5 phere. Those which courts deny are liability simply holding that harms such the of not are class which general defendant's makes extra-hazardous. conduct Courts which different take a are view extending the general of consequences class for which is there strict liability. 2. The General Class of Threatened Persons The factor second determining in liability of scope the for extra- hazardous conduct - the determination of general the persons class of protected harms the from threatened by conduct- extra-hazardous 2 1 Ellis v. Loftus Iron Co., L. R. Io C. P. Io (1874). Crawford 22 Iowa Williams, v. 48 247 (1878). 2 3 ToRTS, i~th ed., 514. 24 1 NEGLIGENCE, 4th ed., 86 (1928). 25 See cases collected "Liability Smith, in Blasting," for REV. 33 HARV. L. 542, 667 (1920), SELECTED ON ESSAYS THE LAW OF TORTS (1924). 614

10 LIABILITY WITHOUT FAULT 1oo 7 No- 9 difficulty. little offers The exposed persons the risk to a usually are class rather definite such of persons, landowners, adjoining as the in Fletcher v. Rylands or situation, neighborhood, the in persons the in nuisance. of case Two or situations three will serve to illustrate the the of workings of principle. The case is keeping watchdogs in point. 6 been It has decided trespassers, that fortiori a and licensees and invitees," are within the protection of strict the rules of for liability keeping but dogs; dangerous criminal persons guilty a of a or trespass 8 not within are felony rule. the of the protection They do not belong to the general persons class of as of risk the whom to injury the from of vicious dogs keeping basis should be made a of liability. law the in Again, of for liability physical property of invasions to due has it blasting, been decided by one court there no liability that is to premises whose persons a distance are at such that there is no " that reason to expect damaged be will they blasting the by activities. 3. The Manner in Which the Harm Occurs In the last place, the harm even if plaintiff the by sustained belongs class the of to general which of risk the harms makes defendant's the conduct extra-hazardous the plaintiff or to in persons a similar position, it have must particular a in occurred manner. The sequence of events must have that been such to hold is unfair it not defendant the liable therefor. we the Here find governing rules ordinary legal causation quite adequate state to although Thus, law. the water accumulation of extra-hazardous is its escape because involves serious of a damage risk to property adjoining holders, nevertheless the escape must occur in the ordinary course nature, if of and cause superseding some occasions escape the there is no liability. We have such a superseding cause where the caused escape is by God of act the or by major which a vis defendant as is not bound reasonable a to man Even anticipate." the gnawing may of a rat unexpected, such be an independent cause to as 2 make it defendant hold to unjust So, also, liable. the if escape of the about brought is water the by intervening of act wrongful a third 6 Sherfey v. Bartley, 4 Sneed Am. 597 Dec. 58, 67 (i856). 2 7 Sylvester v. Maag, i55 Pa. St. 2=5 (1893); Conway v. Grant, 88 Ga. 4o, 13 S. (1891). E. 803 See 28 Woolf Chalker, v. 31 Conn. z21 (1862) and Loomis v. Terry, 17 Wend. (N. Y.) 3o6 Am. 31 496, Dec. (1837). 29 Klepsch v. Donald, Wash. 4 436, 30 Pac. 991 (i8 2). 9 Marsland, v. "°Nichols 255 L. R. 1o Ex. (1875); Ex. I (1876). L. R. 2 D. 3 1 Carstairs v. Taylor, L. R. 6 Ex. 217 (1871).

11 IOIO MICHIGAN REVIEW LAw Vol. 30 person which was foreseeable not the under defen- circumstances, the dant relieved is liability."' from Liabilities under Workmen's the Statutes Compensation be can analyzed the in much same manner. statutes The provide that employ- made ers shall be injuries for liable accidents from resulting "arising out of and in the course of the employment." The courts not hold the that only injury of complained a general must be class harms of which statute the was designed to and govern employees to relate must - the class persons of for whose exclusive was law the benefit passed - but require also they that the injury must be brought about in a that is manner so it not unjust to hold defendant the responsible is, There therefor. of no difficulty course, of as to the class persons protected. be to statutes were The passed benefit exclusive the for of employees apply and to them Examples alone. of limitation thus the imposed upon the rule the application of strict liability are of to be in found cases denying compensation when the is workman by struck 3 lightning injured by the interposition or act of some God, of and in the cases where injury about brought is independent the by acts of third other or employees and which persons in no way are connected the with duties of the employment. "horse The of play" cases, which 3 there are a large are number, in point. "horse the if " But be play" carried an on by employee employer by known the addicted to be to such it practice that so a "condition becomes of the employment," then the injury is accident "arising by out of and in the course employ- of Another " ment." the example is line of cases considering compensa- tion for injuries occasioned assault by an fellow of workman. a If out arises the altercation some disagreement of to pertaining the work, the assault fellow the of workman not does prevent compensation," arises but it if from independent some disagreement, is the injury not 3 compensable. This fits the proximate beautifully. cause formula It unexpectable is not quarrel that men will over work. their it is But hardly independent foreseeable that and collateral matters will precipi- tate by employee an assault one another. upon many of In these the cases, the courts employ of exact language cause the proximate 2 3 Box v. Jubb, 4 Ex. D. 76 (1879); Rickards v. Lothian [i913] A. C. z63. 3 3 Deckard v. of Indiana Trustees University (Ind. 1930) N. 547, 172 E. noted in 194 (1931). J. IND. 6 L. See REv. 26 MIcH. L. 307 (1928). "Lee's 240 Case, N. 473, Mass. 134 268 E. (1922). 5 In Loper, 65 re Ind. App. 571, ii8 N. (1917). 324 E. "Pekin Industrial Cooperage Co. v. 31, 285 N. Comm., III. i20 (I918). E. 530 37 Armitage v. Lancashire & Yorkshire Ry., 86 L. T. 883 (19o2).

12 1OII LIABILITY FAULT WITHOUT 7 No- 8 8 with the the label. cases, exception of courts the short, In have interpreted the phrase "accident arising out and in of the course of employment" the to equivalent be an to "accident proximately caused the by employment." cases the In allowing a recovery for injuries caused keeping by vicious animals, appears it the that injuries always occur in a manner or sequence events of that brings within them orthodox the rules of proximate causation. Where a recovery sought is injuries for due an attack to by a dog, vicious the owner is liable there if even an is intervening cause if it was to expected, be as, for example, where defendant's dog bit the plaintiff not by reason its vicious of character 8 0 but because was it rabid, because or " of its playfulness." In each cases these of defendant indulges the in type conduct of which is the basis of liability, knowingly in keeping dangerous a brute; plaintiff sustains an of injury a general type which the makes keeping of the animal extra-hazardous; and, while the particular arises injury in an unusual manner, nevertheless is it known vicious a that dog injure may persons even play, in vicious and dogs as as well gentle dogs will sometimes go mad. Again, where defendant keeps a dangerous animal 4 and same the teased is infuriated and by third persons, ' or where it 2 4 released is by a third party, of act the the third party not is so extra- ordinary and unexpectable the that defendant's conduct not is the proximate cause the of injury. The case easier even is here, the for possible careless action others of of is one the risks which makes the keeping of dogs extra-hazardous. quite It is analogous the to negli- case gence which in the defendant's motorman leaves his car street unguarded a on decline steep a and negligent releases passenger the brake. It is properly quite held defendant's that negligence is the proximate cause of the to injury the plaintiff act since the of the passen- is ger one the very of risks which makes defendant's the conduct 3 unreasonable. same The limitations be are to found where defendant kept has domestic animals. The strict of rule liability makes him liable for 38 See DeFilippis Falkenberg, v. N. 155 S. 761 (1915) Y. and Pekin Cooperage Co. v. Comm., Industrial 285 Ill. N. 31, 12o 530 (1918). E. " Clinkenbeard Reinert v. (Mo. 2±5 S. 1920) W. 667, noted in 34 HARv. L. (192i). 770 REv. Oakes 40 Spalding, v. Vt. 40 (1867). 347 4 1 Vredenburg v. Behan, 33 La. Ann. (188i). 627 Baker v. 42 [19o8] Snell 352, z K. B. 825. 48Kleibenstein Iowa v. & Ry. Light Co., Iowa 193 892, N. 188 W. 12 9 (1977).

13 1012 MICHIGAN REVIEW LAW VOL. 30 to be noted that the trespass must be a proximate it trespasses but is of the animal or the owner of the of the consequence escape domestic will animal therefor. intermeddling be not Thus, an liable where plaintiff's the defendant on stranger land, drives the defendant's cattle been caused by the unforeseeable is not liable, the damage having 4 4 where the stranger by But stranger. a of independent act wrongful a which afterward wander onto the act releases the defendant's cattle is liable, trespass here is suffi- the for plaintiff's land, the defendant for the rule of strict liability ciently to connected with the reason as scope." is, the trespass is That proximate its within come properly the and properly attributable to the wandering consequence of the escape of propensities domestic animals. liability for damage done by the escape of fire, it In case of the the risk was manner in which the early law the that recognized in was v. 1697, in Tabervil early as As might liability. affect consummated 4 which he sudden storm had arisen a admitted that "if was it 6 Stamp, it was matter of evidence (defendant) he should could not stop, and Here, is a suggestion that some conse- have showed it." certainly, are quences by an extraordinary of about fires brought maintaining sequence of would be events to hold defendant liable so that it unfair to find that the modern not Accordingly, it is surprising therefor. relatively few situations in which there is strict in decisions, those cause of rely upon the orthodox proximate fire, for liability escape do 7 scope to of apparatus the limit liability. In a recent case, plaintiff a sued railroad regardless imposing statute a under company liability fires caused by the operation of the railroad. fault or negligence of for the cover of the dome of plaintiff's Plaintiff's employee had removed on of siding. The employee, though using car gasoline standing a defendant's to lid before the the unable replace due diligence, was distance of about 5oo locomotive The fire passed at a feet. the from fire box ignited the fumes engine's the gasoline and and vapor of destroyed two of cars car of oil. It was held that a and gasoline liable. was appears," reasoned the court, defendant "It not dearly of the fire in question was the act of cause "that the proximate the dome Oil removing the cap from the in agent of the Company the of . . The fire was not caused by the operation of tank railroad car. . the meaning" the statute. within the of "Hartford (1874). 19 Am. Rep. 377 466, v. Brady, II4 Mass. "Noys N. H. 143 (1855). v. Colby, 3o 46I Salk. 13 (169i). 4 7 Davis v. Atlas AssuranceCo., iiz Ohio St. 543, 147 N. E. 913 (1925).

14 1o1 LIABILITY FAULT WITHOUT -7 No. 3 III THE DOCTRINAL STATEMENT OF LAW LIABILITY STRICT OF statements liability are extraordinarily Current law of of strict the of scientific of paucity The unsatisfactory. the exposition law this in made has field so to difficult comprehend it of scope appropriate the are frequently at the loss principles of liability involved that courts a inadequacy of expo- This judgments." their rationalize to adequately ingenious a scholar as sition is forced to is so marked that as Salmond v. in a somewhat generalized way state the rule of Rylands Fletcher 4 9 "exceptions" to the generalizations. long list and then set forth a of admitted, unsatisfactory makes it This, it and be must is to difficult grasp principle of liability. If we abandon this the true scope of the law, make an effort to synthesize the cases manner of stating the and understood to are faced with them dogmas, assimilate and well we to analogous choice of three statement the a of methods of choice of the law of described above for the methods statement negligence. a method analogous to the techniques Now it is submitted that Professor Dean in their statements of employed by Green and Bohlen not the all suitable for the statement of is law the law of negligence at of reason of strict liability. The this the lie to seems unsuitability in exploited fact duty concept in a manner which will that they have the Negligence regarded as a breach of a duty to use not work here. is problems at arise to whom Accordingly care. appropriate the once owed duty the is Professor Bohlen speaks what extent. is Thus and its care, or to this person due that person of a duty to owed use not but 5 0 and Dean person some to other which Green speaks of a duty risk in such and such a risk or that consummated this comprehends some comprehend risk." Both forms not other but does which manner, particular of duty which is owed to statement involve the notion of a definitely limited in scope. But the duty concept persons and which is where only is morally culpable, because duty is is of value defendant a primarily It through with moral connota- moral is shot concept. so defendant's the of the misdescribes character actually it that tions this is 48 recent California case of Green v. General A striking instance of the 270 Pac. 952. Petroleum Corporation (Cal. 193i) 13th th ix (1923). Cf. POLLOCK, TORTS, ch. ed., 510 4 SALMOND, TORTS, ed., 7 f. (1929). RESTATEMENT LAW OF TORTS, sec. See 16 (929). THE 50 OF 5 5 1 Dean OF PROXIMATE CAUSE and See Green's many in RATIONALE instances essays. various

15 MICHIGAN LAW REVIEW 30 Vol. IOI4 in conduct cases where fault. there no moral is temptation a is There employ to of notion the all duty cases in liability; legal of tempta- this tion proceeds from the the fact that duty hypothesis presupposes a of conduct rule existed prior which acts to the complained of. It is consistent with our sense to of fairness enunciate rules in of liability of terms pre-existing which duties parties the supposed may be to have known and which they presumably have might with. complied accounts This the fact for that are attempts so made commonly to state every liability type of in without fault of terms duty, which, course, of implies fault. Thus, insisted Bishop that rule the Rylands of v. 2 5 Fletcher was based fault, on Cooley thought that for keeping liability animals vicious on was based negligence," Smith to fault found be the of basis liability for blasting,"' American the and Law Institute now restates of trespass the law clausum quaere largely fregit of in terms 5 fault. " thought Thayer that the law negligence of could now dispose cases most of without use of the "more eccentric 56 doctrines." But it is noteworthy attempts that many state to rules the of of liabil- strict ity in terms of do not meet duty success. marked with Observe, for 7 the example, difficulties of the the court in case of Baker v. Snell; judicial the opinions varied the from statement it was that breach a keep to of duty animal vicious a all, at the to that statement the breach duty of occurred the when inflicted animal injury. the In modern text it books is that said sometimes owed duty the by defendant is to 8 the prevent all costs. injury at by But hypothesis in cases of strict liability, the defendant could prevent not by the taking injury reason- able precautions. Hence, he owes a duty not to indulge the in conduct at perform all or to impossible. the is It not intelligible very to state law the of in terms duties impossible is it which to perform. duty Thus, the is concept inappropriate to characterize strict the liability cases. With the duty notion must possibility go the a of practical of application either Dean Green's Professor or Bohlen's technique for stating If law. the defendant indulged has in extra- BisHOP, 52 NON-CONTRACT LAW note 385, 3. 53 z COOLEY ON ToRTS, d ed., ch. xi (i9o6). 3 "Liability for 54 Substantial Physical Land Damage to by Blasting," 33 HARV. L. 542, REv. 667 (1920), SELECTED ESSAYS ON THE 614 TORTS OF LAW (i924). n OF RESTATEMENT See THE tentative OF LAW TORTS, No. 7, draft, c. I (93I). 5 5 Thayer, "Liability Fault," 29 without 8oi REv. HARV. L. (1916), SELECTED ESSAYS ON THE LAW OF TORTS, 599 (1924). 17 [1908] z K. B. 8z5. " SALMOND, TORTS, 7th ed., (19z3); 344 POLLOCK, 13th TORTS, ed., 5oo if. (1929).

16 No. 7 WITHOUT FAULT 1015 LIABILITY may be at he has engaged in conduct which all, hazardous conduct say for liability. It is awkward to basis that he has indulged the legal conduct which is the basis for liability to some persons for some in general classes injuries but not to other persons for other types of of It harms. much more intelligible to state that the defendant has is a in type of conduct which is engaged sufficient basis of liability, and a then determine what consequences of such conduct he is liable for. By this the three considerations of policy which Judge method Andrews employed determine the character to the consequences of defendant's of same negligence be employed in the here manner. If one does may not like the term "proximate consequence" one need not use it. It which would that all the dogmas however, until the last twenty- seem, five years determined whether consequences of "negligence in the whether air" proximate are appropriate for determining were conse- quences of extra-hazardous conduct entail liability.

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