Levi claims that:
"... the doctrine of the distinction between things in their nature dangerous and those which become so by an unknown latent defect is announced as a way of exploring the difference between a loaded gun (which under the rule, however, is explained as a particular circumstance) and a defective lamp." (p. 14)
Unfortunately, as previously indicated, the alleged "difference between a loaded gun ... and a defective lamp" is not explained in terms of the distinction that is drawn. In other words, the two ideas are not different in the sense required or desired by Levi, nor is the noted distinction an appropriate basis for comparison. Both errors are traceable to a problem of characterization.
On the one hand, a defective lamp has been characterized as having the same innocuous nature as a lamp which is not considered to be dangerous in and of itself - although it may become so through the existence of an unknown latent defect. Yet, clearly, a defective lamp is not a normal, harmless lamp that has become dangerous but is, rather, an object that is dangerous in and of itself and has been manufactured as such - although, perhaps, unintentionally. To intermingle the former with the latter is to establish one class of objects where there should be two.
On the other hand, the primary issue is not, as Levi suggests is the case, a matter of a distinction to be drawn "between things in their nature dangerous and those which become so by an unknown latent defect". The central issue revolves around the deep structure of "want of care". Using Levi’s perspective, one cannot explain the difference between a defective lamp and a loaded gun, for they both represent commodities that have, each in its own way, been "left in a state capable of doing mischief", such that if the defendant in question in either case had given an effort and the attention of even ordinary care, given the commodity, would very likely not have been left in such a state.
Moreover, given the ideas of "want of care" and things "left in a state capable of doing mischief," one can extend the common principle to both Winterbottom v. Wright and Langridge v. Levy. In the former case ( Winterbottom v. Wright), a coach that is defective to the degree, and in the way, that the coach in question was defective, is an object this is dangerous in itself - just as defective lamps which explode when lit and defective guns are. In addition, a seriously defective coach has, as was true of the loaded gun in Dixon v. Bell and the defective lamp in Longmeid v. Holliday, been "left in a state capable of doing mischief" through its improper manufacture - a condition which was discoverable if it had been subjected to the exercise of ordinary care.
Finally, in Langridge v. Levy, one is confronted, once again, with an object (namely a gun) that, because of its defect, is in itself dangerous, and, once more, the theme of "want of care" is prominent since in knowingly selling a commodity that had been "left in a state capable of doing mischief," the merchant manifested a considerable "want of care". The fact that "fraud has become a special sub-class of this idea does not alter the underlying principles that control the decision.
Continuing on with his study of case law and its implications for legal reasoning, Levi starts the next aspect of the analysis with the following remarks:
"The second phase of the development of the doctrine of dangerous articles is the period during which the rule as announced in the Longmeid case is applied. The phase begins with mislabeled poison and ends with a defective automobile. During this time also there is the inevitable attempt to soar above the cases and to find a great overall rule which can classify the cases as though the pattern were really not a changing one." (p. 14)
The first case which Levi discusses in conjunction with his alleged second stage of legal reasoning is that of Thomas v. Winchester in which Mrs. Thomas, the plaintiff, was seeking compensation for the after effects that had been experienced subsequent to ingesting what she believed to be, according to the label, extract of dandelion, but which, in fact, was belladonna that had been improperly labeled by one of the employees in a store owned by Winchester. The court ruled in favor of the plaintiff, Mrs. Thomas, claiming that human life had been placed "in imminent danger" (p. 15) through the carelessness or negligence of Winchester's store operation.
In so doing, the court reintroduced the category of objects which are in themselves dangerous that had been articulated, to some extent, in the Longmeid v. Holliday decision in 1851, one year earlier. Furthermore, the court in Thomas v. Winchester declared, in Levi's words, that "No such imminent danger has existed in the Winterbottom case ... . This was more like the case of the loaded gun in Dixon v. Bell." (p. 15)
The next case reviewed by Levi is an interesting one from several perspectives. It occurred in 1869, when a chemist by the name of Skivington was sued for damages sustained when a hair wash which Skivington had concocted caused injury to the wife of a man (Mr. George), who had purchased the hair wash from Skivington. The court upheld the plaintiff's claim for damages. One interesting feature of this case relates to Levi's admission that:
"...the court went about its business without explicit regard for the imminently dangerous category." (p.15)
And, yet, Levi introduces the discussion of George v. Skivington by saying:
"Looking back, one might say today that the category of things by their nature dangerous or imminently dangerous soon came to include a defective hair wash." (p.15)
Apparently, Levi is, retroactively, trying to impose a particular category on legal reasoning in the George v. Skivington case that really may not be appropriate -- as if to say that even if this isn't the way they looked at it then, this is the way we look at it now, and the way we look at it now, in terms of our reconstruction of the actual nature of historical events, is really the right way. However, if Levi is proposing to describe the essential nature of legal reasoning, he would seem to be on very shakey ground when he mentions, in a sort of off-hand way, that the basis for the court's decision was not controlled by the inherently or imminently dangerous category and, yet, still attempts to claim that George v. Skivington forms part of the second phase of development in legal reasoning associated with the distinction between, on the one hand, objects that are dangerous in themselves and those, on the other hand, which are not dangerous in themselves -- although they may become so.
Levi may be describing his approach to legal reasoning when de does this, but he seems to be distorting what actually went on in George v. Skivington. This brings us to the second interesting feature of this foregoing case.
According to Levi, the court:
"...thought that the imperfect hair wash was like the imperfect gem in the Long-ridge case. It chose to ignore the emphasis in the Longridge case on the purported fact that the seller there knew the gem was defective and lied. It said, "substitute the, word: "negligence" for fraud and the analogy between Langridge v. Levy and this case is complete. (p.15)
The Court's judgement here echoes or reflects a point made earlier in the essay, and, by doing so, reinforces the tenability of that point. If one asks what negligence and fraud have in common, then, in terms of the previous discussion, one could easily argue that they both are expressions of a "want of care."
The reason the court could, in George v. Skirvington, overlook the theme of fraud in the earlier Langridge case was because fraud per se represents only the surface structure of the legal issue inherent in the matter. If one probes more deeply, one comes up against the underlying issue of "want of care", of which fraud is but one class of examples. By ignoring the specific features of fraud and substituting the idea of negligence in their place, one is not even completing an analogy. One is, in fact, demonstrating that the same principle is at work in both cases.
Furthermore, when one considers that a defective hair wash represents, yet, another instance of a commodity "left in a state capable of doing mischief", one increases the bond with the position taken in this essay concerning the other cases previously discussed - going all the way back to Dixon v. Bell with which the analysis began. Indeed, assuming that Skivington did not knowingly sell a defective hair wash, but believed his secret formula capable of producing a beneficial result when chemically processed, Skivington would seem to be in the same position as both Holliday (defective lamps) and Wright (defective coach).
The evidence required to confirm this would involve whether or not Skivington in exercising ordinary care in the formulation and processing of his hair wash could have been able to detect the defect in his product. Levi does not indicate if the problem associated with the hair wash was a function of formula incorrectly conceived or a chemical process improperly followed, or both.
Whatever it was, apparently, the court had decided that Skivington could have avoided the problem had he not shown a "want of care" which it considered negligent. In other words, the judgement of negligence seems to have been based upon Skivington's having left the hair wash in a state capable of causing injury by failing to exercise ordinary care in the production of that hair wash. Consequently, the defective hair wash does not belong with the other cases because it forms part of a pattern through which to distinguish imminently dangerous commodities from those commodities that are not imminently dangerous, but, instead, because the defective hair wash expresses, in the same way that the others do, an underlying "want of care" that resulted in a given commodity being "left in a state capable of doing mischief" and which, subsequently, did just that.
In mentioning a case in 1870 that Levi believed further entrenched the imminently dangerous category, he quotes part of the court's judgement in which a circular saw's balance wheel, although defective, was nonetheless not considered to be inherently or imminently dangerous by the court:
"Poison is a dangerous subject. Gun-powder is the same. A torpedo is a dangerous instrument, as is a spring gun, a loaded rifle or the like ... Not so, however, an iron wheel, a few feet in diameter and a few inches in thickness although one part may be weaker than another. If the article is abused by too long use, or by applying too much weight in speed, an injury may occur, as it may from an ordinary carriage wheel, a wagon ride or the common chair in which we sit." (pp. 15-16)
The foregoing decision has some qualifying features about it that draw attention to a rather important dimension of the analysis of legal reasoning. The words of the court are:
"If the article is abused by too long use or by applying too much weight or speed, an injury may occur."
When this qualification is coupled with the fact that an article, for example, the balance wheel of a circular saw may be so constructed that one part of it is weaker than another part, it seems the court is implying, if not declaring, that in instances where such an article is subjected to abusive or excessive use and injury results, then, one cannot hold the manufacturer or supplier of that article liable.
One is confronted with the task of deciding two things in the foregoing case. First, was the use of the article in question abusive or excessive in relation to the conditions of operation for which the article was designed ? Secondly, was the nature of the defect such that even if the article in question had not been subjected to abusive or excessive treatment, injury still might have resulted while in normal use?
Now, in the case at hand, the implication seems to be that the court believed the injury was incurred as a result of the abusive and excessive use of the circular saw and even though the saw's balance wheel may have had a defect in which one part was weaker than another, that weakness played a comparatively minor role compared to the aspect of abusive use.
One might also suppose the court may have been of the opinion that had the particular circular saw, despite its inherent defect, been used in a normal manner - with adequate consideration given to avoiding "too much weight or speed" or to not using it for a period of time beyond what one might reasonably expect to be the safe lifetime of the article under conditions of normal use - that no injury would have resulted. In other words, the general principle or rule which might be derived from the court's decision is that the purchaser of an article is under as much an obligation to exercise ordinary care with respect to the use of a given article as is the manufacturer or supplier of that object when the latter are making the commodity available for use to the buying public.
If in Winterbotten v. Wright or Longmeid v. Holliday or George v. Skivington, counsels for the respective defenses could have shown that the plaintiff in each case sustained their injuries while subjecting the commodity in question to abuse or excessive treatment, then, it is possible that despite the presence of a defect in the various commodities, defense counsels could have tried to demonstrate how the locus of cause of injury in each case was not a function of the defect, which they might concede exists, but primarily was due to the abnormal use associated with the given commodity or article. Counsels for the plaintiffs, on the other hand, would attempt to fix the primary locus of cause lending to injury as due to the inherent defect of the respective commodities.
However, since, apparently, in both Longmeid v. Holliday (lamps) and George v. Skivington (hair wash), no suggestion was made that the plaintiffs were at fault for abuses in excessive use of the respective commodities, the locus of responsibility seemingly rests squarely with either the manufacturer or merchants who sold a product containing a defect that eventually lead to injury of the plaintiff.
In Winterbottom v. Wright, on the other hand, the court's rejection of the plaintiff's claim did not seem to be because Winterbottom had been abusively using the coach and pressing it beyond its structural capabilities to withstand the rigors of speed or long use. Instead, the court's judgement rested on the "absurd and outrageous con-sequences" which might result if the plaintiff's claim were to be upheld in such a case.
In any event, the case of the circular saw opens up the need for a classification or characterization of a central legal issue that is different from the defect theme previously discussed. Levi's approach has been to concentrate on how something can be subsumed under, or falls outside of, the imminently or inherently dangerous rule. Yet, aside from the objections which have already been voiced in this essay, there seem to be additional, though related, difficulties with his approach which may have implications for how to solve the problem apparently opened up by the circular saw issue.
To begin with, although Levi began his analysis of case law by attempting to follow the development of the idea of "inherently dangerous" objects through the three stage cycle which he posits, when he gets to the second phase or stage of that concept's development, he is talking in terms of "imminently dangerous" objects. While Levi may feel that inherently dangerous objects and imminently dangerous objects are, more or less, synonymous and, therefore, interchangeable, this is not necessarily the case.
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