The first judicial movement toward a conceptual category concerning dangerous commodities came about in Longmeid v. Holliday. However, this occurred in a negative, rather than a positive sense.
Eliza Longmeid, the plaintiff, was seeking compensation from Holliday, a merchant, from whom her husband had purchased a lamp that later exploded when the plaintiff tried to light it at home. Mrs. Longmeid had been burned when the lamp exploded.
The court refused to grant the plaintiff's claim for compensation from Mr. Holliday, declaring that the lamp was not, in and of itself, a dangerous object or commodity, nor had the defendant been shown to have knowledge of its defect prior to the sale. Thus, even though they gave legal recognition to a category of objects which were dangerous in themselves, they contended that the lamp could not be subsumed under such a category.
Part of the decision of the court reads as follows:
"But it would be going much too far to say that so much care is required in the ordinary intercourse of life between one individual and another, that, if a machine not in its nature dangerous - a carriage for instance - but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary care, should be lent or given by one person, even by the person who manufactured it, to another, the former should be answerable to the latter for a subsequent damage occurring by the use of it." (page 13)
Once again, as was true in the Winterbottom v. Wright case, the court, evidently, did not feel compelled to explain in exactly what way "it would be going much too far" to expect a merchant to exercise sufficient care and concern to avoid selling defective merchandise - especially when the nature of the defect was such that it could lead to serious or fatal injury.
Enough background information has been given in the foregoing several pages to provide material on which to reflect in order to try to determine what has been going on in the various court cases. In fact, sufficient information has been provided to begin to assess whether, or not, the judicial handling of these cases lends support to Levi's claims concerning the nature of legal reasoning.
First of all, one might inquire whether the judges in the four cases previously outlined were 'fumbling' around or seeking some sort of legal category upon which to hang decisions. Definite judgements were reached in all the previously discussed cases, and irrespective of whether, or not, one considers these judgements to be well-founded, there seems to be little question that the judges believed they knew what they were doing and why they were doing it in each of the cases.
Moreover, in some cases - for instance, Dixon v. Bell - the judgements appear to have very little to do with arguing by example and much more to do with being able to recognize the character of the problem inherent in a case. More specifically, in Dixon v. Bell the problem centers around "commodities mischievous through want of care" (p. 10) - a want of care for which, in the judgement of the court, the person responsible can be held liable .
Even if one were to suppose there had been cases prior to Dixon v. Bell in which decisions were reached in accordance with the idea of 'mischief created by want of care,' the controlling factor in the Dixon case does not appear to be a matter of analogy in which the kind of "want of care" that is involved in Dixon v. Bell is similar to the kind of "want of care" existing in certain earlier cases. Instead, the underlying issue seems to be a function of having, or coming to, an understanding of the deep structure that may be entailed by the "want of care" concept, together with a recognition that the character of this deep structure may be expressing itself in the given case (Dixon v. Bell).
Furthermore, the belief that someone who manifests a "want of care" in his actions should be held liable for the injurious consequences to others that may ensue from such actions is also not necessarily a product of analytical reasoning but may represent a principle of justice or morality whose deep structure one considers defensible - and, therefore, justifiably applicable - as a standard through which to assess the culpability of people under certain circumstances of social interaction.
Consequently, neither the initial characterization of what is entailed by the deep structure of, say, "want of care", nor the belief that such a deep structure is defensible, nor even the judgement that the case at hand expresses the character of an instance of a "want of care" may be accurately captured or represented by the idea of analogical thinking. This doesn't necessarily mean that analogical thinking couldn't be present in such instances or even that it wasn't present in the cases which have been cited. Rather, it suggests something else might be going on in those cases that is fundamental to legal reasoning and which cannot entirely be accounted for by the idea of analogical reasoning.
As indicated previously, there seems to be little evidence of the courts 'fumbling' for an appropriate controlling concept in any of the cases - something which is required by Levi's first stage of legal reasoning. If anything, one suspects the notion of "fumbling" may be more of a post facto theoretical imposition on Levi's part to describe a series of situations in which no one legal concept appears to be controlling the decisions in the four cases.
In Dixon v. Bell the main theme involved a gun which had been "left in a state capable of doing mischief". In Langridge v. Levy, the crux of the case was fraud. In Winterbottom v. Wright the decision seems to rest on the "absurd and outrageous consequences" that would take place if the plaintiff's claim were upheld and others were to be held liable for the sort of thing for which the plaintiff is seeking compensation from the defendant. Finally, the decision in Longmeid v. Holliday seems to revolve around the court's rejection of a defective lamp as a commodity or object which is by its very nature dangerous and for which a merchant who sells it can be held liable.
On the other hand, one might easily argue that - with the exception of the Langridge v. Levy fraud case - there was, in fact, a principle or legal concept operative in each case - even if it wasn't the one (i.e. : the notion of "inherently dangerous" objects in which Levi was interested). This alternative concept involves the "want of care" issue which was manifested in Dixon v. Bell and was negatively explicated in both Winterbottom v. Wright,as well as Longmeid v. Holliday when, respectively, neither defective coaches nor defective lamps were considered to constitute grounds for incurring a liability under the "want of care" concept.
Of course, conceivably, either Levi, or somebody arguing on his behalf, might be willing to concede that the "want of care" concept was, in some sense, operative in three of the four cases in question, but that it was breaking down under the pressure of changing social contingencies and, therefore, was too loose and vague to effectively handle the problems which were arising. What was necessary, or so it might be argued, was some sort of tightening of the concept which would provide clearer direction in deciding just what sort of situation would invoke a judgement of liability for having violated the basic principle interest in the "want of care" issue.
In other words, perhaps what is needed is a better characterization of the issues surrounding, and underlying, the "want of care" notion and that prior to the advent of the "inherently dangerous" category this sort of clarifying characterization did not exist. As a result, during the interim period in which the "want of care" concept was breaking down and the "inherently dangerous" category had not, yet, emerged, the judgements of the courts in such cases had an aura of 'fumbling' about them.
Nevertheless, even if one were to agree to this suggestion, one would also have to admit that it causes a certain amount of confusion between, if not conflation of, stages one and three of Levi's cycle of legal reasoning. One doesn't quite know whether one should characterize the various cases in question as so much fumbling about for a new legal concept, or as, simply, an expression of the breakdown of our old legal concept.
In either case, the foregoing suggestion still seems somewhat arbitrary since the courts in question very likely neither believe their decisions to be inadequate fumblings, nor do they consider them to be the impoverished remnants of ideas which have overstayed their welcome. For example, no one hears a judge saying: "I don't know. I just get the hang of what the legal problem is in this case or how to resolve it. I think I'll abstain from making a decision or I'll just fumble about."
Moreover, one usually does not find judges declaring in their decisions that they couldn't find any principles or concepts in their legal repertoire capable of fitting the case in hand and that the old ideas just don't work any more, and so, they are adjourning their cases until a more relevant legal category is invented which is capable of resolving the issues. Instead, decisions are reached, and the merits of such judgements are left to history and higher courts to reflect upon and, where deemed necessary, to overthrow, alter, amend, limit, and so on.
Actually, as far as the previously discussed four cases are concerned, the fundamental issue at stake does not seem to be a matter of fumbling about in search of a new controlling concept for resolving legal problems; nor does the essential issue seem to be rooted in a system of difficulties caused by an existing legal concept which is beginning to breakdown; nor does the central issue appear to be a matter of trying to determine which previously established precedent the present case is analogous to. Rather, as alluded to earlier in this essay, there seems to be a basic issue of characterization at stake - of how to construe and apply the deep structure of "want of care".
As these four cases stand, there seems to be a certain amount of legitimate criticism - or, at least, probing questions - which could be directed toward the tenability of the judgements reached and the concomitant reasoning processes used to reach them in both Winterbottom v. Wright, as well as Longmeid v. Holliday. More specifically, in both Winterbottom v. Wright and Longmeid v. Holliday, one might well argue that the reasoning from which the decision of the court arose in each case, failed to pay sufficient attention to the principle set forth in Dixon v. Bell concerning a commodity which had been "left in a state capable of doing mischief: (p. 10) and, thereby, displayed a "want of care" sufficiently to incur legal liability on the part of the man who left it in such a state.
In Winterbottom v. Wright a commodity, this time a coach, was also "left in a state capable of doing mischief." Although a defective coach may not be likened to a loaded weapon, this need not preclude the possibility that both show or manifest the same feature: namely, they are in a condition capable of doing damage. Similarly, in Longmeid v. Holliday, another commodity - a defective lamp - had been "left in a state capable of doing mischief" and, therefore, also seems to express the same characteristic as the other two cases.
Even if one were to grant the common theme running through these cases involving commodities being left in a dangerous condition, is the "want of care" displayed in either Winterbottom v. Wright or Longmeid v. Holliday sufficiently severe to make the defendants liable? Indeed, can one necessarily say that "want of care" existed in these two cases, at all, given that neither Wright nor Holliday had been shown to have any knowledge of the defects involved in the respective commodities sold by them?
Perhaps, what sets these cases apart from Dixon v. Bell is that Bell might have been reasonably expected to see that placing a loaded gun in the hands of an immature, servant girl would leave things in a state from which mischief might easily ensue, whereas neither Wright nor Holliday could have been reasonably expected - or so it might be argued - to predict that mischief would ensue from the coach or lamp. After all, in judgements sounding very much alike in terms of basic attitudes, the courts in both cases indicated that to require people to exercise the kind of care which would be necessary to ensure, as best they could, that the commodities sold or manufactured by them should be free from the sort of defect which was capable of doing mischief through no fault of the user, would be expecting far too much.
Furthermore, one of the courts proposed that such expectations would lend to "absurd and outrageous consequences" (p. 12). Yet, one still would like to know why this is expecting too much or why, even back in 1891, it would lend to such unacceptable results.
Earlier (see pages 12-13), a portion of the court's decision in Longmeid v. Holliday was reproduced. The court, speaking in the subjunctive mood, referred to a machine which was "not in its nature dangerous ... but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary care.".
The concrete example mentioned by the court was not that of a lamp but a carriage, which may have been a covert or subconscious reference to the Winterbottom v. Wright case. In any event, when one is talking about the "nature" of a machine, the nature of a defective machine is quite different from the nature of a non-defective machine, even if in all other ways, aside from the defect, the machines are identical. A non-defectively manufactured machine doesn't become a defectively manufactured machine.
There are two separate classes of machines whose inherent natures are fundamentally different and have been so from the time that the defect became a part of one machine and not the other. One is defective; the other is not. One works; the other does not.
The significance of the fundamental difference becomes even more apparent when the defect in question is capable of causing bodily injury or even death while being appropriately used under normal conditions. A defective lamp, for instance, which can explode upon lighting, is, contrary to the court's opinion, in its very nature dangerous, irrespective of the seeming innocence of its exterior appearance and irrespective of its apparent similarity to non-defective lamps.
The court's decision in Longmeid v. Holliday becomes even more intriguing when one focuses on its contention that although a latent defect might be discoverable through the exercise of ordinary care, such ordinary care is too much to be expected in the normal "intercourse of life", including that of a manufacturer. But why this contention should be accepted is not readily apparent or easily, if at all, understood.
Storekeepers and manufacturers make a profit by selling various goods to customers. Presumably, storekeepers and manufacturers become, in some way, obligated to their customers through the quality of the products being sold.
A customer, except in exceptional circumstances, is not looking to buy defective merchandise - especially defective merchandise that may lead to harm. Rather, an individual buys a product or service with the implicit or explicit understanding that no, or acceptable, defects exist in a given product or service.
Consequently, if, say, a proprietor exhibits "want of care" in the purchasing of goods - which are made available to the public and from which the merchant derives a profit - by failing to take reasonable steps of even 'ordinary care' ( a concept whose boundaries need to be delineated) in order to determine as best he or she can (even if it is a matter of obtaining a signed statement from the supplier or manufacturer) that the merchandise is defect free, then, it would seem the merchant has undermined the link of trust which binds storekeepers with their customers in a way that extends far beyond the sort of bad business practices by which one will lose customers and one's business will, thereby, suffer. Violating the merchant-customer trust by failing to exercise ordinary care to ensure the safety of one's customers with respect to the products one makes available to them strikes at the very fabric of society which itself is woven from an interlocking pattern of relationships based upon trust that are rooted in the expectation that other people will show, at a minimum, ordinary care instead of a "want of care". Society cannot exist if the latter behavior (i.e., want of care) typifies the character of social interaction. By claiming that manufacturers, among others, are not answerable to those who, in using a given product, suffer injury or damage through no fault of the users, but as a direct result of a latent defect in the product which could have been discovered through the exercise of ordinary care by the manufacturer, the court in Longmeid v. Holliday is, in effect, driving a nail into Society's coffin.
In Langridge v. Levy, the Court declared in favor of the plaintiff because Levy had knowingly sold a defective gun which, subsequently, brought harm to the son of the person who purchased it. Although the term to describe this is "fraud", in point of fact, this merely represents another facet of the "want of care" concept.
"Want of care['s]" deep structure is not just a matter of failing to take the time and effort to ensure, for example, that a product is free of defects. Essentially, it's a failure to care for our fellow human beings or to give them 'proper' regard, or to respect the integrity of his life. It is not just a failure to pay attention to what one is doing in relation to others. It is a failure to care enough about others that one could be motivated, sufficiently, to do what is necessary to pay attention and be concerned about how what one did could have injurious or problematic ramifications for other people.
Fraud is a blatant disregard of ordinary care in this latter sense, and, in fact, involves an intentional violation of the aforementioned basic need to observe care with respect to one's interaction with other members of society. However, failure to take the time and make the effort necessary to check for latent defects of manufacture in lamps or coaches that are capable of being discovered with the exercise of even ordinary care is also a blatant disregard of care for one's fellow human beings - especially for someone from whom one is making a profit. Indeed, in all of these cases, someone is benefitting from the injury which comes to others through the actions of the person who is benefitting from the transaction.[Return to Text]
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