Following Blacker v. Lake, Levi turns the discussion to cases which he believes exemplify the third stage or, phase of the development of the inherently dangerous rule. According to Levi, the third stage involves the breakdown of the legal concept or category which has emerged, first slowly and indirectly in stage one, and, then, more clearly and concretely in stage two.
The initial case that Levi mentions in this regard is MacPherson v. Buick, which occurred in 1916. This case was brought to court as a result of serious injuries sustained by the plaintiff while driving a care manufactured by the Buick Motor Company. The car collapsed as a result of a defect in the wheel assembly.
Interestingly enough, although the car had been built by The Buick Motor Company, the defective wheel had been supplied to Buick by the Imperial Wheel Company, and the car, in turn, had been delivered to a rental car dealer from whom the plaintiff had purchased the car. Consequently, it is somewhat mystifying why either the Imperial Wheel Company or the retail dealer were not named as co-defendants along with Buick, since, seemingly, some degree of "want of care" may have been displayed by all three businesses -- although not necessarily to the same degree in all three instances.
In any event, despite the plaintiff's counsel's several attempts to argue that an automobile should be categorized as belonging to the inherently dangerous class of commodities and, thereby, establish a basis from which to draw upon previous precedents concerning such commodities in order to substantiate his client's claims, the trial judge specifically had instructed the jury that "an automobile is not an inherently dangerous vehicle". (p.20) The trial judge, then, proceeded, however, to indicate to the jury that if the automobile were defective "they might find it 'imminently dangerous".
Although counsel for the plaintiff remarked to the jury, in reference to the judge's having drawn a distinction between inherently dangerous and imminently dangerous objects, that it served no purpose to quibble over such differences, he may have missed the point the judge was attempting to make and which would be quite in line with the character of the argument being put forth in this essay. In effect, the judge appeared to be saying that even though he did not feel an automobile could be classified as an inherently dangerous object (which may be a debatable point), nevertheless, it could be considered an imminently dangerous object if shown to be defective.
In other words, the emphasis was being placed not on whether car - as a generic class - was, in and of itself, a dangerous object, but on whether the existence of a defect in a particular car made it a dangerous object. This opens up the possibility that a defective car, which is imminently dangerous due to a defect, might be treated as an object that has been "left in a state capable of doing mischief", and, thereby, may demonstrate the existence of a "want of care".
In summing up the rule which controlled the New York Court of Appeal's decision to uphold the plaintiff's claim for damages, Levi first quotes from Judge Cardozo's opinion and, then, follows with his own comment:
"The rule was, ‘If the nature of a thing is such that it is reasonably certain to place life and limb in peril, when negligently made, it is then a thing of danger.’ But ‘there must be a knowledge of a danger not merely possible but probable.’ Thus what was only latently dangerous in Thomas v. Winchester now becomes imminently dangerous or inherently dangerous, or, if verbal niceties are to be disregarded, just plain or probably dangerous. (p.23)
Prior to the above excerpt, Judge Cardozo had been described by Levi as showing "a certain impatience for what he called "verbal niceties", involving the distinctions between imminently and inherently dangerous objects. In view of this alleged impatience on Judge Cardozo's part and in light of the statement quoted above, a stage may have been reached in which the controlling concept in third party liability cases is no longer that of inherent danger or imminent danger, but of simply, known, probable danger and that, therefore, the categories which, supposedly, had risen to prominence and application during stage two of the etiology of the given legal concepts were now beginning to be eclipsed by new categories and emphases which presumably were more serviceable or defensible than the older categories.
But, in concluding the section on case law, Levi is careful to point out that:
"... it would be a mistake to believe that the breakdown makes possible a general rule, such as the rule of negligence, which now can be applied. A rule so stated would be equivalent to the flight of Brett. Negligence itself must be given meaning by the examples to be included under it. Unlimited liability is not intended. As the comparison of cases proceeds, new categories will be stressed. (p.27)
However, it is somewhat ironic that Levi's concluding statement should mention Brett in a critical manner since Levi himself pointed out on page 21 of his book, that Judge Cardozo believed the controlling principle of imminent danger does not change -- rather, only the contingencies to which the principle is applicable change.
Levi further notes that Judge Cordozo also stipulated that the underlying principles which are operative in such cases are reflected "more or less, Cardozo said, by Brett in Heaven v. Pender." (p.21)
While Levi continues on, a few pages later, to say that one of Cardozo's subsequent reflections upon law - which was written a number of years after the MacPherson v. Buick case - seemed to be somewhat equivocal about the actual value or place of underlying principles in controlling decisions, nonetheless, the fact that Cardozo should have cited Brett's reasoning in Heaven v. Pender as embodying the sort of thing to which Cardozo was referring, is significant. At the same time, Cardozo still believed that certain qualifications might have to be made in applying such a rule to other cases.
Such possible qualifications aside, a brief, comparative examination of Cardozo's opinion concerning MacPherson v. Buick in light of Brett's opinion in Heaven v. Pender, might help place Cardozo's judgement in proper perspective vis-a-vis Levi's basic thesis. This also might indicate how, contrary to Levi's stated position, a general rule or principle is, in fact, at stake in MacPherson v. Buick - a rule or principle whose deep structure does not, and will not, change even if the surface structure categories used to refer to it do change over time.
If one were to try to encapsulate the main theme of Brett's opinion in Heaven v. Pender, it would probably revolve about the idea of "ordinary care". The problem with the term, as with many words and phrases, is that although we understand well enough the surface structure of the words involved in the sense that "ordinary" might be construed in terms of "normal", "not abnormal", "usual", "what generally happens in certain circumstances", and so on, and that "care" might be rendered to signify, "concern" "attention", "thoughtfulness", "regard", etc., one still does not necessarily grasp what the deep structure of "ordinary care" is when considering issues of liability.
So far, the framework of interpretation with respect to many third party liability cases has largely been a function of the idea of: things "left in a state capable of doing mischief". However, starting with Longmeid v. Holliday - but implicit in Dixon v. Bell, as an inverse instance of a "want of care" - one comes across the notion of latent defects "discoverable by the exercise of ordinary care" (p.13).
Although the court in Longmeid v. Holliday believed it was too much to expect "so much care is required in the ordinary intercourse of life." (p.13), that commodities with latent defects should carry a liability for the supplier or manufacturer in the event of injuries sustained by someone using that commodity, this contention already has been criticized, on a number of occasions, during the course of this essay. However, the issue raised by the court in Longmeid v. Holliday bears serious investigation.
While the nature of the court's judgement which is quoted by Levi is of such a hypothetical character that this very character brings into question the tenability of the court's opinion due to its willingness to concede that a latent defect could have been discoverable through the "exercise of ordinary care", nonetheless, one still would like to know what constitutes ordinary care in cases where one does not assume, as the court did in Longmeid, that the latent defect is, in fact, discoverable through the exercise of ordinary case - that is, one would like to know what constitutes the parameters for demonstrating ordinary care in such cases.
According to Judge Brett in Heaven v. Pender, if an individual who supplies equipment (presumably through either sale or loan) to another individual and the nature of the equipment is such that an individual who thought or reflected on the matter even a little would recognize its use involves danger or risk and in order to minimize such a risk, consideration should be given "to the condition of the thing supplied or the mode of supplying it" - or, in the words of Lord Ellenborough in Dixon v. Bell, the thing supplied or the manner of supplying it should not result in that thing being "left in a state capable of doing mischief".
According to Judge Cardozo, however, as expressed in his opinion on MacPherson v. Buick, "there must be a knowledge of a danger not merely possible but probable." (p.23) Consequently, from Cardozo's point of view, anything knowingly left in a state of causing probable or likely danger would represent an instance in which ordinary expectations of care presumably would have been violated.
But if the foregoing position is true, then, what ramifications and implications does this approach carry for cases like Winterbottom v. Wright, Longmeid v. Holliday, Heaven v. Pender, or in cases involving defective circular saws, defective soldering lamps, and defective cars? More importantly, is one necessarily forced to accept Judge Cardozo's idea of knowledge of probable danger as a defensible basis for interpreting what is meant by the exercise of ordinary care - especially in view of the fact that Judge Brett's decision in Heaven v. Pender tends to raise questions as to whether the idea of "ordinary care" refers to action in relation to overt knowledge of a probable problem, or whether it refers to having taken the requisite time and made the requisite effort to determine if a problem or defect or danger exists. With respect to this latter possibility, the question, in turn, arises as to what sort of expended effort would be reasonably considered to be acceptable as a basis for releasing the vendor, supplier, or manufacturer from the duty of care which is said to exist in such circumstances.
In view of Judge Cardozo's emphasis upon 'knowledge of probable danger' as one of the essential features of liability, one might suppose that evidence must have existed in MacPherson v. Buick capable of implicating The Buick Motor Company with respect to their having had knowledge of the likelihood of a defect in at least some of the wheels sold to them by the Imperial Wheel Company. Otherwise, Judge Cardozo’s assertion that the rule concerning knowledge of probable danger was the controlling concept in the Court of Appeal's decision to uphold the plaintiff's claim makes little sense if, in fact, The Buick Motor Company had no knowledge that a particular wheel defect probably would place in jeopardy the lives of those using the car.
If such knowledge did exist, then, the situation in MacPherson v. Buick is comparable to the circumstances of Langridge v. Levy 6 in which a gun known to be defective had been sold to the plaintiff's father and the defect later resulted in the plaintiff sustaining an injury. In other words, Cardozo seems, in effect, to be limiting liability to cases of fraud since one has difficulty - given the circumstances of the case - to understand what else the knowledge of probable danger might mean that he is emphasizing. Knowledge which is not knowledge of a specific defect seems to be a rather amorphous concept, and if Judge Cardozo has this kind of ambiguity at the heart of his rule, then just what the rule is, or what it entails, is not at all clear.
Giving Judge Cardozo the benefit of a doubt and assuming that his idea of knowledge of probable danger is related to, if not an instance of, fraud and is not ambiguous in its range of application, nonetheless, one seems to be able to argue in a persuasive, if not tenable, manner that Judge Brett in Heaven v. Pender had a much broader concept in mind when speaking of the exercise of "ordinary care". Indeed, the wording of the excerpt from Judge Brett's opinion, as quoted earlier in this essay, appears to delineate "ordinary care" in terms of an individual's: taking the time, making the effort, and giving thoughtful consideration to ensuring, to the best of one’s ability, that those materials which one supplies to another human being that could, if not in proper condition, result in injury to the latter, are, in fact, supplied to said individual in a safe condition.
Presumably, in Heaven v. Pender, this would entail such things as Pender's having checked out the ropes he was supplying to the workmen on the dock - checking the ropes for such things as: possible weaknesses, fraying, or potentially dangerous nicks. This process might also require Pender to take into consideration: the age of the ropes; how frequently they had been used, and whether, or not, the ropes had been treated abusively at any point, such that the average expected life time of effective safety in using the rope might have been seriously undermined. If the dock owner had taken all of the foregoing steps - none of which need have consumed a great deal of time or required any extraordinary effort on the part of the dock owner, and, then, proceeded to supply the ropes and other equipment to the workmen, and yet, if the plaintiff still had sustained injuries in using those ropes, then, one might suppose that, nevertheless, the dock owner had complied with, and conformed to , the sort of process which Judge Brett had in mind when he spoke of "ordinary care".
Given the foregoing interpretation of Judge Brett's role, one has difficulty seeing why this sort of safety-check actually would be expecting too much care from people in the "ordinary intercourse of life" as the court had declared in Longmeid v. Holliday or as had been implied to be the case by the Court in Winterbottom v. Wright. In fact, the issue becomes one of whether, or not, in exercising such care, the defect of the coach in Winterbottom v. Wright or the defect of the lamp in Longmeid v. Holliday were capable of being discovered.
Were there ways of testing the respective products - ways that were readily available to, and accessible by, the manufacturers or suppliers in question and which, conceivably, could have afforded them with an opportunity to discover the problem inherent in those commodities? If there were, and, yet, if such methods were not used, and if little, or no, actual consideration was given to ensuring, within reason, that the commodities to be sold were safe as far as could be determined using a variety of tests, then, in light of Judge Brett's opinion, would not such lack of activity express a "want of care" or a failure to show "ordinary care" in relation to what one is supplying to another individual - even though no knowledge of a probable danger actually existed as required by Judge Cardozo?
To be sure, the framework of what constituted "ordinary care" might change form one set of circumstances to another such that the sort of activity required to check the condition of a set of ropes would be different from the tests one might employ to check the condition of a coach, lamp, or car. However, in each instance, the controlling factor would be whether or not the individual had taken sufficient time and/or made enough effort to reasonably ensure the likelihood that a commodity was safe and defect free. In addition, one might suspect that with increasing complexity of circumstances and/or potential danger associated with a given commodity, the level of sophistication and extent of effort made would increase proportionately.
At the same time, one might anticipate that in each set of circumstances, standards of quality control would be, or could be, established that indicated what constituted a reasonable understanding of "ordinary care". The task, then, would be to decide if the existing standards were sufficient to justifiably lead one to believe that: (1) a commodity which was tested against those standards could be considered safe and reliable; and, (2) whether a given commodity had been exposed to such testing and, if not, whether the reasons for this not having been done7 are defensible.
Judge Brett's opinion seems to require the performance of a number of steps which are reasonably capable of eliminating, as much as is ‘ordinarily’ possible under a given set of circumstances, those commodities that are in "a state capable of doing mischief". Failure to show this sort of "ordinary care" would tend to demonstrate the presence of a "want of care" independent of any actual knowledge of probable danger associated with such commodities.
Moreover, while requiring the exercise of such ordinary care might lead to a certain amount of difficulties and expenses for manufacturers, suppliers, or merchants, nonetheless, why the courts should contend this either would lead to "absurd and outrageous circumstances" (Winterbottom v. Wright) or "would be going too far to say that so much care is required in the ordinary intercourse of life between one individual and another" (Longmeid v. Holliday) is neither self-evident nor clear. In fact, being able to focus on whether, or not, a duty of care existed in a given set of circumstances or whether there was some degree of "want of care" in evidence with respect to those circumstances would provide all parties (manufacturers, suppliers, merchants, customers, and courts) with a baseline, of sorts, against which to determine how to proceed in such situations.
FOOTNOTES
6.) I am assuming here, of course, that although direct dealing was one of the issues of Langridge v. Levy it was not the main controlling concept.[Return to Text]
7.) In instances where no standards have been officially or unofficially established, it becomes the duty of the jury or the court to determine what would be a reasonable exercise of ordinary care in such circumstances. However, this determination would not be arbitrary but would have to be in terms of a defensible argument in support of some given interpretation of reasonableness under such circumstances.[Return to Text]
|
