The task facing a judge in Heaven v. Pender is to somehow recognize the presence of a given principle or rule of liability at work. The judge cannot impose the liability principle on the case irrespective of what the facts of the case reveal. At the same time, none of the facts of the case or none of the singular propositions that describe the case include the necessary general premise concerning the liability principle which would make a deductive argument possible.
At the same time, as previously noted, the issue of recognition does not really seem to be a matter of inductive logic in which the particulars of the case all recognizably point in the direction of the general rule of liability irrespective of whether, or not, such a rule has been previously formulated. Rather, the general rule of liability concerning the matter of "want of care" exists due to the insight of some judge - an insight which has crystallized in a precedent-setting way that enables courts to interpret or resolve certain kinds of issues and problems or an insight which has been derived from a set of moral, religious, or epistemological values that are accepted by a community as giving accurate expression to those aspects of reality with which issues of liability or responsibility are concerned.
Once such a rule or principle becomes established, the task, subsequently, becomes one of recognizing the appropriate criterial features of a set of circumstances that allow one to match up characteristics of the given case with particulars of the general principle. The process is one of recognizing congruence between a conceptual prototype and a possible exemplar of that prototype which neither involves going from particular premises to general conclusions nor deriving a conclusion, once one has been given a major and a minor premise.
Neither induction nor deduction are primarily involved in the process of "recognition" or in the prior process of initial "characterization". Recognizing congruence between a prototype and a possible exemplar requires a matching of structures such that the structural - or, if you will, logical - character of the latter conforms to, or complies with, the structural (logical) character of the former.
By describing the character of Heaven v. Pender to be a case that gave expression to a "want of care", in relation to a corresponding "duty of care", that is expected of someone who is supplying equipment or materials to another person, Judge Brett was, in effect, showing how the particular case was an expression of the more general principle and doing so in a manner that could be traced all the way back to Dixon and Bell.
Levi mentions that:
"Brett's rule of ordinary care ran into some difficulty in looking back at the Langridge case and its insistence on both fraud and direct dealing. But Brett said of the Langridge case,'It is not, it cannot be accurately reported', and in any event the fact that recovery was allowed on the basis of fraud 'in no way negatives the proposition that the action might have been supported on the ground of negligence without fraud." (pp.17-18)
Levi goes on to note:
"The majority opinion in Heaven v. Pender, while proceeding on the invitee point, and while refusing to follow Brett in his flight, agrees that liability for negligence follows when the instrument is dangerous ‘as a gun’ or when the instrument is in such a condition as to cause danger, not necessarily incident to the use of such an instrument and so due warning is given." (p. 18) [underlining is my emphasis]
Seemingly, and contrary to Levi's implied criticism concerning the irrelevance or unacceptable nature of Judge Brett's reasoning in Heaven v. Pender, Judge Brett actually is providing some of the deep structure that puts the invitee point, on which the majority opinion was based, in proper perspective.
Being invited by the dock owner to use the equipment and the dock area, did not, in and of itself, constitute a basis for liability. Surely, if no one had been hurt, there would have been no basis for making a claim.
Just as surely - and, keeping in mind the court's decision in the circular saw case already discussed - if the painter in question had been hurt through his own "want of care" by abusive and excessive treatment of the equipment, then, even if some minor defect may have existed in the provided equipment - such that normal use would not have led to the defect manifesting itself in a way that might have proved injurious to the painter - the dock owner would have a basis in precedent to argue that although he did invite the workman to use the equipment and dock men, nevertheless, in doing so, he had not shown a want of care. The majority's opinion is, therefore, somewhat elliptical in that what the dock owner Pender is guilty of is a function of his having invited the workmen onto the dock area to use defective equipment, even though he may not have suspected defects existed in the equipment placed at the disposal of the plaintiff.
Moreover, as Levi clearly notes in the previous quote, the majority opinion of the court did not isolate or singularly emphasize the category of dangerous objects as being fundamental, but refers to objects, in general, that are "in such a condition as to cause danger." Thus, the invitation to a set of circumstances which had been "left in a state capable of doing mischief" was the basis of liability rather than the invitation per se.
Apparently, in his decision, Brett had pointed to a general principle - although he was not the first to have done this - which, to use Levi's phrase, soars above the cases, (p.14), and, thereby, suggests that the reasoning pattern involved was an unchanging one even though the contingent circumstances to which the principle was applicable may have manifested the character of a "want of care" in ways that differed from other, similar contingencies. This, as indicated previously, is in direct conflict with Levi's stated position, and, yet, up to this point, Levi’s attempt to support an alternative account of legal reasoning does not appear to be all that persuasive - in fact, on occasion, his argument seems to distort and manipulate various principles and issues that are present in some of the cases which he is discussing.
Having, several times now, raised the issue of distortion and manipulation in conjunction with Levi's interpretive handling of some of the cases he is critically analyzing, perhaps responding to a similar change that someone might wish to level against the present essay, might be appropriate. More specifically, in both Winterbottom v. Wright and Longmeid v. Holliday, as well as, to some extent, in Heaven v. Pender, the position put forth in this essay has differed with the majority opinion that had been reached in each of those cases.
In Winterbottom v. Wright, I argued that a coach which was defectively manufactured and, subsequently, led to injury as a result of that defect constituted a "want of care". I further argued that the court's opinion - which claimed that finding the plaintiff liable would lead to "absurd and outrageous consequences" - was vague and in need of further support since it could not be accepted as a defensible conclusion, in and of itself.
In Longmeid v. Holliday I again argued - in opposition to the court's judgement for the case - that a defectively assembled lamp which exploded upon lighting also constituted a "want of care" since it involved a commodity that had been "left in a state capable of doing mischief". In addition, I questioned the tenability of the court's opinion that "a machine not in its nature dangerous ... but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary use" (p.13) did not constitute sufficient grounds to establish liability -- indeed, according to the court, "it would be going much too far to say that so much care is required in the ordinary intercourse of life" (p.13) that a manufacturer, supplier, or storekeeper should have to take the time to ensure that the products each makes available are safe and relatively defect free.
For the court to say, simply, that ‘to expect such care to be manifested in the ordinary intercourse of life was going too far’ is not adequate. One wants to know what kind of argument, if any, could erase the fact that an object had been "left in a state capable of doing mischief" and had, subsequently, been the focal cause of such "mischief" actually transpiring.
Finally, in Heaven v. Pender, I criticized the majority opinion, which based its decision in favor of the plaintiff on the issue of "invitation", for being elliptical. I indicated that the majority opinion really had not gotten to the heart of the matter in the way Judge Brett had done.
In all three cases with which I took critical exception to the majority decision, I did so on the grounds that I considered those judgements to be in error -- both in the sense that the arguments put forth by the respective courts in defense of their opinions were not, in certain respects, defensible, and also in the sense that the respective decisions had failed to characterize the problem before them in a way which was defensible and which was rooted in a clear precedent such as had been enunciated in Dixon v. Bell - the first case which Levi cited and discussed. In other words, I have attempted to show how a consistent line of legal reasoning could be drawn that links all of the cases considered, in a way that seems to do much more justice, so to speak, to the particulars of the various cases than sometimes the courts, themselves, appeared to do.
Yet, the foregoing has not been accomplished through - as Levi has done on several occasions - imposing categories such as "imminently dangerous"or "inherently dangerous" on to the cases despite the fact such concepts either played no part or no essential role in the reasoning outlined by the courts in the respective decisions. Instead, the point of distinction between the perspective argued for in this essay and the ones argued for in the three aforementioned cases is a function of the differences of characterization and interpretation concerning the significance of the facts of each case and what would constitute the most defensible and most consistent sort of argument that ties legal principles and facts together in support of a judgement in relation to those cases.
Continuing on, now, with an analysis of other cases involving the inherently dangerous rule, in Blacker v. Lake, Levi suggests that a soldering lamp which was defective also fell into the category of objects that were not considered to be inherently dangerous. Oddly enough, there seemed to be a difference of opinion between the two judges deciding the case - at least as those opinions are described by Levi -- concerning whether or not the soldering lamp was dangerous.
Levi notes how "there appears to have been no difficulty in classifying the soldering lamp as not dangerous" (pp. 18-19) on the part of one judge. Yet, Levi, then, proceeds to state that:
"The second judge ... suggested that no recovery should be permitted even though the lamp fell into the class of things dangerous in themselves.[emphasis mine] The duty of the vendor in such a case, he pointed out, would be a duty to warn but that duty is discharged if the nature of the article is obvious or known, as was true in this case." (p.19)
Aside from wondering how Levi can conclude that a soldering lamp falls into the category of non-dangerous commodities when not even the two judges, apparently, could agree on an appropriate classification for that lamp, one also wonders about the relevance of the second judge's argument in relation to a soldering lamp which is defective.
As described by Levi, there is a certain amount of ambiguity surrounding the second judge's opinion, especially with respect to whether the lamp which the judge is classifying as a thing dangerous in itself refers to the defective soldering lamp or to soldering lamps in general, which may be defect free. Presumably, the judge has the second kind of lamp in mind since he is reported to have gone on to contend that where the dangerous "nature of the article is obvious or known", then, according to that judge, a vendor has no explicit or implicit duty to warn the customer about the potential danger of the article in question.
On the other hand, one cannot suppose, automatically, that the defect in the given soldering lamp which led to the suit was "obvious or known", for if it had been, then, one might reasonably anticipate that the customers would request another lamp for purchase, rather than the defective one. Moreover, if the customer did not request another lamp and, instead, knowingly purchased a defective soldering lamp which, subsequently, led to his or her own injury, then, one could hardly claim that the merchant had shown a "want of care" by selling the lamp - especially if the merchant had pointed out the defect to the customer and warned the person about its potential or imminent danger.
Consequently, if a merchant warns a customer about the potential danger of an inherently dangerous object considered to be defect free, or if the dangerous nature of the object is "obvious and known", but still considered to be defect free and, therefore, in the second judge's opinion, releases the merchant from his duty of care to warn the customer, then, one can see the point of the second judge's argument. Yet, if the object in question has a defect which is not "obvious and known", then, the vendor's responsibility toward the customer has not been discharged even if the merchant has warned the customer about the known dangerous aspects associated with such commodities that are free of defects.
In short, the opinion of the second judge does not appear to have addressed the real issue of the case before him. However legitimate his comments might be with respect to the situation he does focus on, those comments are irrelevant to the problems posed by a soldering lamp that is defective and, therefore, "left in a state capable of doing mischief" above and beyond what might reasonably be expected from the normal operation of a defect free object considered to be dangerous. As a result, the sale of a defective soldering lamp appears to entail a "want of care" on the part of the merchant and/or supplier and/or manufacturer with respect to the customer who, in using it in a normal manner - with ordinary care given to its recognizable dangerous aspects - sustains injuries, nonetheless, from the use thereof.
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