One of the last cases discussed by Levi in the section dealing with the supposed development of the inherently dangerous rule in liability cases is that of Donaghue v. Stevenson. This case arose in England in 1932 and involved the plaintiff’s complaints about a bottle of ginger beer that "contained the decomposed remains of a snail". Apparently, the discovery of the snail during the process of consuming the ginger beer had sufficiently unsettled Donaghue that damages were sought from Stevenson, the producer of the bottle of ginger beer.
This case has several interesting aspects when considered in relation to the discussion of the last several pages of this essay that have dealt with the notion of "ordinary care". First of all, the very existence of the decomposed snail in the bottle of ginger beer seems to represent a prima facie case that "ordinary care" had not been exercised by the manufacturers when filling the ginger beer contents into the bottle. After all, counsel for the plaintiff, might reasonably ask the following question: under what circumstances would the existence of the decomposed remains of a snail - something which had nothing do with the normal production of ginger beer - be considered evidence that even "ordinary care" had been taken during the production of the sealed bottles of ginger beer? 8
Presumably, the manufacturer of the bottles is largely, if not solely, responsible for the snail problem. As one of the judges indicated in the majority decision:
"A manufacturer puts up an article of food in containers which he knows will be opened by the actual consumer. There can be no inspection by any purchaser and no reasonable preliminary inspection by the consumer." (p. 25)
What is true of the consumer with respect to "preliminary inspection" is also true of the merchant and supplier of such goods. All of them are relying on the manufacturer's having taken sufficient "ordinary care" to provide problem-free goods. Consequently, the locus of control in the sort of case in which, once a particular good is manufactured, inspection is not possible, rests with a manufacturer, and it is the manufacturer's responsibility to apply appropriate tests, according to reliable standards, in seeking to eliminate defects and problems with the commodities being produced.
With respect to the issue of locus of control in relation to "ordinary care", it is interesting that Levi notes how:
"Lord Atkin, while stating that Brett's rule in Heaven v. Pender was too broad, found that the moral rule requiring the love of one's neighbor in law was translated into the injunction 'you must not injure your neighbor.' The question then was: 'Who is my neighbor?' The practical rule evolved was of persons 'closely and directly affected' and as to acts 'which you can reasonably forsee would be likely to injure your neighbor.'" (p. 25)
What makes the foregoing interesting is that while, on the one hand, Lord Atkin considers Judge Brett's rule in Heaven v. Pender too broad, Lord Atkin, himself, is actually giving, in effect, an interpretation of "ordinary care" in terms of conditions of "proximity" and the forseeability of likely injury to one's neighbor. Thus, the majority opinion of the Court in Donaghue v. Stevenson is quite clear that a bottle of ginger beer which had been sealed by the manufacturer and was, thereby, not amenable to "preliminary inspection" by either customers or consumers, constituted a "relationship between the manufacturers. and the remote Vendee" (p. 25) that could be subsumed under the condition of proximity set forth by Lord Atkin. Nevertheless, one is less clear about how the condition of ‘forseeability’ can be satisfied without following something very similar to the deep structure of the rule set down by Judge Brett in Heaven v. Pender .
Being able to forsee that the presence of a decomposed snail in a bottle of ginger beer might create difficulty or injury for the customer or consumer of such a bottle is not the issue. There are any number of ‘foreign’ items which might end up in a bottle of ginger beer and one might not have been t anticipate any of this happening.
What can be grasped, however, is that a failure to maintain standards of cleanliness and quality control during the bottling process, is likely, eventually, to lead to the emeergence of problems similar to the one encountered by Donaghue when he drank the bottle of ginger beer. In other words, the issue is a matter of a failure to exercise "ordinary care" according to the deep structure entailment of Judge Brett's principle that required a manufacturer or merchant to spend sufficient time and/or effort to carefully attend "to the condition of the thing applied or the mode of supplying it" (p. 17) during the production of goods. Or, to state the same principle differently and once again in the words of Lord Ellenborough, the commodity (in this case, the bottle of ginger beer) had been; "left in a state capable of doing mischief" and, thereby, displayed a "want of care."
Although the respective surface structures of Judge Brett's rule and Lord Ellenborough's declaration are somewhat different (i.e., the circumstances surrounding their respective court cases), the hermeneutical, deep structure of the two judgements actually converge. Moreover, both individuals use a principle or rule that, upon examination, is capable of consistently and defensibly dealing with all of the major cases discussed by Levi in the first section of his book.
Yet, the conceptual deep structure of each of these cases has been shown to be largely independent of the idea of any rule involving inherently dangerous objects - the rule which Levi believes to be at issue throughout the three stages of that concept's supposed etiology. In addition, the deep structure of the idea of "ordinary care"- together with its complement of "want of care" - really has not changed over time as required by Levi's thesis.
As outlined earlier Levi contends there is no overall, general rule at work in the various cases cited. According to Levi, such cases are, instead, related - to the extent that they are at all - by a dialectic of conceptual movement, in which one argues from case to case by analogy and in which a certain legal concept (in this case, ‘inherently dangerous objects’) proceeds through the three historical stages which he has proposed.
However, the idea of "want of care" was clearly present in Dixon v. Bell, and the same idea could be seen to run consistently through all of the cases leading up to and including Donaghue v. Stevenson in 1932 - a span of some 116 years. Furthermore, this "want of care" notion did not begin with a conceptual ‘fumbling about’ by judges as Levi's first stage suggests is the case; nor did it breakdown at any point in any of the cases that have been discussed, as Levi's third stage requires. What did breakdown, however, and what did manifest certain qualities of conceptual fumbling, were some of the interpretative approaches of individual judges involved in the various cases who failed (or so it has been argued in this essay) to, on the one hand, properly "characterize" some of the underlying issues of the cases with which they dealt or who, on the other hand, failed to recognize how the case before them could be shown to be congruent with the deep structure of the principles set down in Dixon v. Bell as well as other cases and opinions.
In other words, from the perspective of this essay, Levi has established an inappropriate framework of demarcation through which to critically analyze liability issues which occurred between the time of: Dixon v. Bell, down to the Donaghue v. Stevenson case. In the area of legal liability involving manufactured commodities, he has settled upon the idea of ‘inherently dangerous’ objects as his legal tool through which: (a) to exemplify how legal reasoning supposedly develops over time according to a tripartite cyclical process; as well as, (b) to demonstrate there is no general legal rule which is consistently present throughout this process of conceptual transformation - rather, legal categories change as contingencies and problems generate social circumstances which require such legal changes.
Levi's choice of focus not only seems entirely arbitrary but also seems to be based on the erroneous assumption that because some judges may have applied the idea of inherently or imminently dangerous objects with varying degrees of success, therefore, that rule represents a tenable, interpretative approach to the legal issues and uses to which it was applied. In point of fact, it only confused the whole situation by appearing to embody a legitimate line of precedent on which subsequent lawyers and judges might base their legal arguments.
The phrase "appearing to embody a precedent", as well as the term "arbitrary" are used in relation to Levi’s "inherently dangerous rule" because I believe the previous, 60 pages of discussion have more than adequately demonstrated that there is an alternate way to characterize the controlling issues at the heart of the cases which have been discussed. This alternative model - centered around the notions of "duty of care" and "want of care" - also seems to be capable of offering a deeper, more consistent, more encompassing, and more defensible way of proceeding with respect to the issue of legal reasoning in case law than Levi's position does.
To whatever extent and degree the ideas of "want of care" or "ordinary care" are associated with change over time, the underlying principle is not what is changing. As suggested previously, social circumstances change (e.g., technology, education, etc.), and these changes often require the development of more sophisticated standards and tests, and/or the revision of old standards and tests, in order to establish a basis for creating parameters of reasonableness appropriate to the kind of circumstances being considered and through which one can recognize when, and in what way, a "want of care" will be manifested and a given commodity will be "left in a state capable of doing mischief" if certain steps of not taken to avoid this result .
To be sure, whenever one is involved in the interpreting or establishing of standards there are bound to be differences of opinion. However, the possibility of such differences does not necessarily mean the legal situation is ambiguous, and it need not mean that it's unclear.
The clarity required in rules and principles is not necessarily a matter of providing for every contingency through an exhaustive inclusiveness of all possibilities which might occur in a given set of circumstances There always are likely to be circumstances and contingencies which occur that give expression to possibilities that no on could have forseen.
Rather, the clarity necessary in rules is a clear delineation of the character of the problem or issue with which the rule is dealing. If the legal principle or concept characterizes a given problem clearly and correctly (as the "want of care" approach did, but the "inherently dangerous" model did not in the matter of liability cases), then, that characterization allows one to establish a hermeneutical framework of demarcation through which one can recognize that character as being consistently present in the kinds of issue or problem which can be subsumed under them.
The clarity of a rule, therefore, is a function of its deep structure. Deep structure is a matter of presenting a hermeneutic of experience that is capable of being defended in relation to a given legal issue.
The determination of "reasonableness" with respect to the issue of how much effort must be shown in order to establish that ordinary care has been taken, requires a separate characterization process for each new set of circumstances - although, undoubtedly, there will be certain overlapping features with characterizations that have been done in relation to other sets of circumstances. In general, however, each kind of technology and manufacturing process has characteristics peculiar to it, and when one is trying to determine the character of reasonableness in any given set of circumstances one will have to take into consideration the critical attributes which are peculiar to that particular set of circumstances. This kind of characterization must wait upon contingencies before it can be developed.
On the other hand, the foregoing sort of characterization process does not set the tone, so to speak, for the legal issue at stake but instead, takes cues, itself, from prior characterizations which have been done in relation to - in the present context - the ideas of "want of care" and "ordinary care." In a sense, the characterization of "ordinary care" and "want of care" that are embodied in the underlying issues of liability sets up the general legal framework against which the characterization of reasonableness takes place in a given set of contingent circumstances.
Thus, from the perspective of this essay, an individual consumer or customer has a right to expect that manufacturers, suppliers, and vendors will all attempt to provide one with defect-free merchandise by exercising "ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it" (p. 17) - especially in relation, but not limited, to those circumstances in which even brief reflection would lead manufacturers and merchants to realize that the commodity being supplied, or its mode of being supplied, could, if defective, result in injury to the user, or the property of the user, of that commodity. Consequently, where coaches, lamps, poisons, hair washes, circular saws, scaffolds, soldering lamps, cars, bottles of ginger beer, and so on, can be shown to contain defects or problems that subsequently cause injury, and, yet, which could have been discoverable and either corrected or eliminated, had "ordinary care" been exercised during the manufacturing or supplying of such commodities, then, a basis for liability has been established through demonstrating a want of care in which the commodity has been left, knowingly or unknowingly, in a condition capable of causing mischief. On the other hand, where the defects in such commodities could not have been discoverable, even if ordinary care had been exercised with regard to their condition of being supplied or manufactured, then, no basis for liability has been established for one has gone beyond the bounds of what it's reasonable to expect in the way of a duty of care of manufacturer, vendor or supplier, with respect to their customers.
Furthermore, and in contrast to Levi, I do not believe that the clarity which is achieved or the ambiguity which is avoided in the foregoing statement concerning the rules, principles, or concepts 9 involved in liability case law have set society an impossible task. On the contrary, the alternative approach being outlined in this essay provides citizens with a means of being able to accurately assess what one has a right to expect from manufacturers and merchants with respect to the exercise of "ordinary care" under various commercial circumstances.
FOOTNOTES
8.) 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]
9.) This kind of argument does not universally apply to all cases in which a problem or defect exists in a commodity such that the very existence of the defect constitutes a prima facie case that "ordinary care" could not have been present in the production or supplier of the given commodity. A product could have been tested in a number of ways and, yet, still contain an undetected defect. Nonetheless, the presence of the decomposed snail in the ginger bottle is such that it's difficult, if not impossible, to imagine any responsible explanation for how, if ordinary care had been exercised, that snail still would have "found its way into the bottle."
[Return to Text]
|
