When one speaks of imminent danger, one should keep in mind that the causal context or circumstances surrounding the normal use of an object may vary in different cases such that the problem, if any, inherent in a commodity (whether it be a defective coach, lamp, gun, hair wash, balance wheel or mislabeled poison) will not always rise to the surface, so to speak, in exactly the same way or in exactly the same time period. For example, mislabeled poison may have an immediate, injurious effect, whereas a loaded gun "waits" for the right opportunity to create its mischief.
Imminence in this latter case becomes a function of the gun's being used by the wrong person at the wrong time, whereas imminence in the former case is largely independent of who uses the mislabeled poison, since all people are, to a greater or lesser extent, susceptible to the effects of the poison, even if some individuals may show more resistance to its effects than others do. Yet, a poison that acts slowly may still be considered an imminent danger even though its effect may not expressed for some time.
Moreover, while a lamp which explodes the first time it is lit is imminently dangerous, it becomes no less so if it does not explode until the second or third time it is lit. On the other hand, a coach that does not break down for several months under normal use and ordinary care may not be considered imminently dangerous, yet, if that defect causes an injury in the third month of appropriate use, is the coach any less inherently dangerous than the defective lamp or the mislabeled poison or the loaded gun?
Furthermore, one must distinguish between a "defect" for which one may be held liable and the fact that all goods will, eventually, breakdown -- even under conditions of normal use. One must also understand that any given single kind of manufactured goods usually, if not invariably, will show variance in characteristics over the period of time in which the article is manufactured.
Even within a range of minimally acceptable parameters of quality control, some items will be better than others in that they are, for whatever reason, more durable and have a longer lifetime of effective use than other articles falling within the same range of acceptability. In addition, by design, there may be some degree of latitude within a company to permit a certain amount of defective material to pass through quality control if the defect is judged as being of a kind that will not seriously interfere with durability, effectiveness and safety.
When breakdowns occur in relation to such products, this does not necessarily indicate the presence of an inherent defect in a product. On the one hand, these sorts of breakdown merely may signify the general defect of existing things - namely, sooner or later, all man-made products break down or cease to function properly. On the other hand, if a known defect in a product does not affect the proper functioning of a product or compromise its safe use, then, once again, most people understand that such defects are an acknowledged part of many commercial transactions.
These sorts of reality are things about which we all are aware and explicitly or implicitly accept as part of the fabric of social life. Furthermore, when such realities are encountered, most of us do not seek to assign blame to a manufacturer or merchant and claim that the goods were inherently defective or imminently dangerous.
Defect, in the sense with which liability is preoccupied, represents a departure of some significant kind from either: (a) the average lifetime expectancy of a commodity - given conditions of normal use and given due consideration for the upkeep of an object - or, (b) the levels of tolerance within a society for accepting less than perfect workmanship in a given product or service as long as this does not interfere with the effective or safe functioning of such commodities . Thus, a circular saw whose balance wheel is defective but which would, nevertheless, operate effectively and safely if not subjected to abusive treatment is a different kind of machine than a circular saw that is defective and which would operate neither effectively nor safely even if shown ordinary care in its use.
In fact, the former kind of saw (i.e., defective but serviceable) seems neither inherently dangerous nor imminently dangerous. Yet, the latter sort of saw (i.e., defective in a way that undermines its serviceability and safety) appears to be inherently dangerous and may, or may not, be imminently dangerous, depending on how quickly it breaks down under normal usage, as well as how serious the problems are when such a breakdown does occur.
However, in the present case, the controlling issue is not whether an article is, or is not, imminently dangerous. Instead, the central issue is whether, or not, through the absence of a "want of care", an object has been "left in a state capable of doing mischief".
The court decided that though the balance wheel of the saw did exhibit a defect, the defect was not sufficiently severe to represent a "want of care" that left the saw in a state capable of doing mischief. In fact, the locus for the absence of a "want of care" was assigned to those who used the saw in an excessively abusive manner. In short, although the court considered the saw to be imminently dangerous due to the abusive manner in which it was used, the saw was not judged to be inherently dangerous as a result of any "want of care" in the manufacture of the saw.
Therefore, the deep structure, controlling, legal concept in the circular saw case still appears to be "want of care". The issue of imminent danger is merely surface structure.
The court did not seem to be looking for something which could be categorized as imminently dangerous. They appeared to be seeking to determine whether the element of inherent danger was present, irrespective of whether this danger expressed itself imminently.
In other words, liability has an etiology, and in attempting to reconstruct this etiology, courts seek to establish whether or not "want of care" has characterized the actions of either the defendant or plaintiff. In cases like that of the circular saw - which had a defective balance wheel, the courts are confronted with the problem of trying to determine what etiological part (if any) was played by a given defect.
This determination would have to be modulated with the realization that as an increasing amount of time passes in which a given product displays unproblematic, normal functioning, then, the liability of the manufacturer and/or supplier and/or storekeeper all diminish proportionately as the time span of usage of the particular product approaches the average expected life time of usage of the product in general. Moreover, at some point within the life cycle of a given product, courts will be forced to draw an arbitrary line that separates those defects which appear to play a fundamental role in the etiology of liability in a given instance from those defects which are part and parcel of the ontological structure of things and which, inevitably, manifest themselves after a certain period of normal usage. Nonetheless, neither acknowledging that such an arbitrary line needs to be drawn, nor the fact that different judges may vary somewhat in their delineation of when and where it should be drawn, can detract from the basic principle which underlies the need to draw such a line: namely, that of "want of care".
Levi next discusses the case of Heaven v. Pender which adds, according to Levi, another entry to the list of objects and commodities considered to be imminently dangerous. This time the case involved defective ropes that were being used by a ship’s painter and which had been supplied by the dock owner who, in addition, had invited the painter in question to use the dock while painting the given ship.
Strangely enough, as far as Levi's thesis is concerned, the court did not decide the case on the basis of the defective ropes being considered imminently dangerous objects (and Levi acknowledges this). The court based its judgment on the grounds that the dock owner had extended an invitation to, among others, the workman who was later injured when the ropes, with which he was supplied by the dock owner, broke.
Once again, as was true, for example, in Levi's treatment of George v. Skivington, Levi seems to be imposing a mode of interpretation onto a case that doesn't really apply to the reasoning used by the judges in that case. The tenability of this contention is strengthened when one considers how Levi attempts to argue against the opinion of one of the judges (Judge Brett) involved in the judgement in Heaven v. Pender - a judge who supported the majority decision to up-hold the plaintiff's claim but who, in stating his opinion, also tried to enunciate the legal rule he believed to be operative in the case before the court, as well as, perhaps, other, similar cases.
Levi, of course, as a previously noted quote in this essay suggests, wants to take issue with the idea that there is any overall rule which unifies cases in some sort of unchanging pattern -- an idea which is in direct conflict with his contention that legal reasoning operates on a case to case basis in terms of the extent of analogy between one case and another. Moreover, his bias in this regard is quite unmistakable, since he resorts to the use of pejorative sorts of terms and phrases when describing Judge Brett's opinion.
For example, at one point Levi mentions, in preliminary reference to Judge Brett, that the "flight of one of the judges... toward a rule above the legal categories which would classify the cases"(pp.16-17), constitutes one of the intriguing features of Heaven v. Pender. This is followed, a short time later, by Levi's remark that Judge Brett's opinion "...was concocted ... from two types of cases" (p.17).
Yet, all of Levi’s comments become rather ironic when one examines what Levi quotes Judge Brett as actually saying -- namely:
"Whenever one person supplies goods or machinery, or the like, for the purpose of their being used by another person under such circumstances that everyone of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing." (p.17)
The principle being explicated in the foregoing opinion appears to fall, quite naturally, into the "want of care" category. 'Furthermore, to the extent that, by implication, this principle relates to the notions of inherently or imminently dangerous objects, it does so through the framework of "want of care".
The direction of etiology goes from the latter to the former - that is, from "want of care" to inherently and/or imminently dangerous objects - not vice versa. Even in instances where one has an inherently or imminently dangerous object, liability has not been established until "want of care" is evident -- until the object in question has been shown to have been "left in a state capable of doing mischief" through whatever means (manufacturer, supplier, customer).
Levi quotes from Brett in order to outline how the latter arrived at the opinion that "a duty arises to use ordinary care and skill as to the condition or manner of supplying" (p.17) equipment or commodities that could be foreseen to be capable of leading to the injury of those to whom such materials are supplied. In this regard, Levi cites Brett's beliefs concerning inductive logic which, according to Brett:
"..requires that where two propositions lead to exactly similar premises there must be a more remote and larger premise which embraces both of the major propositions." (p.12)
The two propositions being referred to in the foregoing quote apparently relate to general classes of cases discussed by Brett in his decision. On the one hand, there are cases in which drivers of vehicles or operators of ships must show appropriate concern and consideration of a reciprocal nature when driving or sailing near each other. On the other hand, there are cases in which the owner of a business establishment must exercise due care in ensuring that the safety of those invited into the establishment is properly attended to.
Since both sorts of case lend to the same conclusion about the duties which emerge under such circumstances, the agreement of conclusions supposedly prompts one, in Brett's opinion, to look for a more fundamental premise that is capable of encompassing both cases in terms of a single rule or principle. Nevertheless, one has no need to look for "a more remote and larger premise" by means of inductive logic, for the same principle expresses itself in both cases -- that of "want of care".
More precisely, where the presence of a "want of care" is considered sufficient to invoke liability with respect to those who show such "want of care", one must suppose there existed prior to, and along side of, the "want of care", a duty to show care and concern in some manner with respect to one's treatment of, or interaction with, other people in the given circumstances. Yet, identification of that duty and its concomitant "want of care" which, together, establish the basis for liability are not the result of inductive reasoning, but, instead, are derived from an appropriate characterization of the underlying principle and the subsequent recognition of the principle at work in some set of circumstances being described.
One is not arguing from particular uses to a general principle, but from a general principle to particular uses. Alternatively, this sort of reasoning - from a general principle to a particular case - is not really a matter of deductive reasoning either.
Before one can set up a deductive argument one must be able to: (a) characterize the general principle to be used as the major premise, and (b) recognize that a given particular case expresses that general principle in action and is, therefore, acceptable as a minor premise. Only when (a) and (b) have been completed, can one proceed to whatever conclusion the character or logical structure of (a) and (b) permit one to form. Neither the ability required to initially characterize and formulate a general principle, nor the understanding which is required to recognize the presence of the general principle in a particular case seem to be subsumable under the cloak of deductive reasoning.
Instead, they appear to refer to processes which are necessary to, but prior to, the very possibility of constructing a deductive argument. In other words, the major and minor premises of deductive arguments do not just float around ready-made waiting to be snatched out of thin air. The formulation and recognition, respectively, of major and minor premises appears to presuppose other kinds of mental activity.
Unless one wishes to be caught up in an infinite regress, one cannot argue that all deduction presupposes deduction so that, in the foregoing, what has been referred to as "characterization" and "recognition", themselves, merely become varying expressions of underlying deductive processes. At some point, one will have to acknowledge that when pushed far enough, deductive reasoning does not adequately account for how it is possible 5 to reason deductively except in terms of what occurs only after a deductive syllogism has been set up. In order to grasp what happens during the process of setting up a deductive framework, one must look beneath the surface structure of the major and minor premises as they stand in, say, the tripartite (i.e., major premise, minor premise, conclusion) deductive argument and explore their deep structure in relation to the conceptual etiology which gives rise to such premises.
For example, suppose someone says that all cases of liability are a function of displaying a "want of care" when a "duty of care" is called for. To what deductive reasoning process could one point that is responsible for generating the general rule or principle either with respect to why "want of care" should be a reasonable basis for establishing liability or why one should have a duty of care in certain kinds of circumstances to begin with?
Moreover, on what deductive reasoning process could one draw , to demonstrate that, for instance, Heaven v. Pender, represented an instance of the general rule? In looking at the various facts and facets of Heaven v. Pender, one could not list all of them and proceed to deduce that Pender's action constituted a breach of the existing duty of care in such circumstances.
To be a valid deductive argument, one would have to include among the various premises the appropriate general premises which were being translated into propositional form. That is, at some point, one would have to assume one’s conclusion in the form of a premise which, itself, stands in need of an explanation.
FOOTNOTES
5.) I am not speaking here about say, the biological basis of reasoning ability - that is, the psychological capacity to think - but about the actual structure of a deductive argument in terms of the character of the major and minor premise themselves and how they arise.
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