Notes
See Keating 2018. This piece extends his earlier work, e.g., Keating 2003. See also Shiffrin 2012.
Holmes 1881: 107–129.
A “precaution plan” is typically a plan to use nondurable precaution at reasonable intervals or when a risk of harm is evident. The famous case of Pokora v. Wabash Ry., 292 U.S. 98 (1934) held that a jury would not be allowed to find a driver negligent because he failed to adopt the precaution plan of getting out of his car and looking down railroad tracks when he possessed a foreshortened view of these tracks from the driver’s seat. I think of this case as one in which the court could use cost–benefit analysis to establish an upper bound on nondurable precaution. Nevertheless, when a precaution plan passes cost–benefit analysis, each individual nondurable precaution cannot be effectively subjected to it, especially at high rates of consistency.
Courts allow juries to forgive failures of durable precaution, too, especially when the omission was not willful and wanton.
Abraham 2001.
Salmond 1907: 18–19.
Holmes 1881: 122–123.
The case Holmes used to illustrate his theory was Crafter v. Metropolitan Ry., L.R. 1 C.P. 300 (1866) (in slip–and–fall case, court held, despite jury verdict to contrary, that defendant was not required to install handrail on staircase; replace the worn–out brass nosing on this staircase; or to have installed a nosing made of a more durable material than brass).
See, e.g., Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928 (7th Cir. 1989) (per Easterbrook, J.).
Holmes 1881: 128–129. The example was prescient because later, when he was a Supreme Court justice, Holmes sought to implement his thinking by making someone struck by a train contributorily negligent as a matter of law. See Baltimore & Ohio R.R. v. Goodman, 275 U.S. 66 (1927) (per Holmes, J.) (driver had to get out of car to check whether defendant’s railroad tracks were clear). The case was ceremoniously limited by a later court in Pokora v. Wabash Ry., 292 U.S. 98 (1934) (per Cardozo, J.) (driver did not have to get out of car to check whether defendant’s tracks were clear).
60 F.2d 737 (2d Cir. 1932) (defendant committed breach of duty as a matter of law when it failed to equip its tugboats with radio receiving sets). Two other admiralty cases that are often included in casebooks are United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947) (Conners Co. liable as a matter of law for failing to have bargee on board on day of accident) and Smith v. Lampe, 64 F.2d 201 (6th Cir. 1933) (judgment for defendant as matter of law because he was reasonably ignorant of customs of sea). The T.J. Hooper and Carroll Towing are much more misleading for an understanding of common–law negligence doctrine because judgments of nonliability as a matter of law, as in Smith v. Lampe, are equally usual in common law cases, whereas judgments of liability as a matter of law are much more common in admiralty and FTCA cases than they are in common law cases.
See generally J. L. Jones, Annot., Malpractice: Liability of Physician, Surgeon, Anesthetist, or Dentist for Injury Resulting from Foreign Object Left in Patient, 10 A.L.R.3d 9 (1966 & Supp.).
530 A.2d 1217 (D.C. App. 1987).
Willaby v. Bendersky, 891 N.E.2d 509 (Ill. App. 2008) (jury allowed to forgive surgeon who left 12–inch–by–12–inch laparotomy sponge in patient). See also Deuel v. Surgical Clinic, PLLC, No. M2009–01551–COA–R3–CV, 2010 WL 3237297 (Tenn. App.) (defendant surgeon left lap sponge in patient during pancreatic surgery; parties cross–moved for summary judgment; court denied both motions; appeals court affirmed and made clear that jury possessed power to acquit surgeon or not), after remand, Estate of Deuel v. Surgical Clinic, PLLC, 2013 WL 11021322 (Tenn. App.) (jury did indeed forgive surgeon, and appeals court held that jury was properly instructed and again stressed that jury possessed power to acquit surgeon as jury had done).
See, e.g., Akridge v. Noble, 41 S.E. 78 (Ga. 1902) (defendant left lap pad in patient during surgery; trial court instructed that jury needed to decide whether this was below the standard of care; jury acquitted surgeon, and trial court entered judgment accordingly); Rayburn v. Day, 268 P. 1002 (Or. 1928) (jury allowed to forgive surgeon who left surgical sponge in patient). See also Milsom 1981: 283–313 and 392–400; cited and discussed in Kelley & Wendt 2002: 588–590.
See, e.g., Dickerson v. Fatehi, 484 S.E.2d 880 (Va. 1997) (although plaintiff had suffered severe pain for 20 months, jury possessed power to forgive surgeon and surgical nurses who during diskectomy left hypodermic needle and plastic marker of it in plaintiff’s neck); Easterling v. Walton, 156 S.E.2d 787 (Va. 1967) (during caesarean childbirth defendant surgeon left lap pad in plaintiff’s abdomen; although lap pad caused plaintiff injury and a 14–day hospital stay, jury was entitled to forgive and acquit surgeon).
See, e.g., Breaux v. Thurston, 888 So. 2d 1208 (Ala. 2003) (in first trial jury forgave defendant for leaving surgical clamp in plaintiff; trial judge sua sponte ordered new trial because of his own perceived error in instructing jury; jury found defendant liable on second trial, and he appealed; Alabama Supreme Court ordered third trial because of failure of trial judge to give a sufficiently forgiving instructions under Alabama tort reform statute; court made very clear that third jury would possess the power again to acquit the surgeon); Houserman v. Garrett, 902 So. 2d 670 (Ala. 2004) (defendant surgeons left lap pad in plaintiff while undoing prior fallopian tube ligation; jury returned verdict for plaintiff; appeals court reversed because jury should not have been told that the left lap pad was prima facie evidence of the surgeons’ negligence when jury could have properly forgiven surgeons based on surgeons’ reliance on a nurse’s faulty count of the lap pads used and removed during operation), overruling Ravi v. Williams, 536 So. 2d 1374 (Ala. 1988) (proper to instruct jury that, to find surgeon liable, jury had to find only that surgeon left sponge inside plaintiff and that she suffered damage from it).
See also Ales v. Ryan, 64 P.2d 409 (Cal. 1936) (jury forgave surgeon for leaving laparotomy sponge in patient’s abdomen during routine gall bladder operation; patient died from peritoneal infection due to retained pad; California Supreme Court remanded for new trial based on errors in jury instructions favoring surgeon, but made it clear that jury possessed power to absolve surgeon of any negligence); Warner v. Stewart, No. F037392, 2002 WL 1970072 (Cal. App.) (defendant left surgical retractor behind plaintiff’s heart during bypass operation; court stressed that jury possessed power to acquit defendant of any negligence); Baumgardner v. Yusuf, 51 Cal. Rptr. 3d 277 (Cal. App. 2006) (jury forgave surgeon for leaving lap sponge in patient’s leg during vascular surgery; appeals court reversed and remanded because of incorrect jury instructions, but made clear that a properly instructed jury possessed the power to acquit defendant); Miller v. Tongen, 161 N.W.2d 686 (Minn. 1968) (jury allowed to absolve surgeon who left sponge in patient); Rayburn v. Day, 268 P. 1002 (Or. 1928) (jury allowed to absolve surgeon who left surgical sponge in patient); Kissinger v. Turner, 727 S.W.2d 750 (Tex. App. 1987) (jury allowed to absolve surgeon who left surgical clamp in patient); Hutchins v. Fletcher Allen Health Care, Inc., 776 A.2d 376 (Vt. 2001) (jury allowed to absolve defendant hospital whose doctor–employees left surgical sponge in patient).
See Cobb v. Fisher, 20 So. 3d 1253 (Ala. 2009) (defendant surgeon left cement in patient’s knee during reconstructive surgery; hospital and surgeon moved for summary judgment based on affidavits that surgeon had complied with standard of care; plaintiff submitted no statement of expert testimony under Alabama tort reform statute that surgeon had failed to comply with standard; trial court dismissed complaint, and Alabama Supreme Court affirmed); Kennedy v. Holder, 1 S.W.3d 670 (Tenn. 1999) (defendant obstetrician inadvertently left three lap pads in patient’s vagina after childbirth; trial court denied doctor’s motion for summary judgment, but held that, to qualify for trial under Tennessee tort reform statute, plaintiff needed an expert affidavit stating that doctor’s conduct fell below standard of care).
226 P. 752 (Kan. 1924).
See Rule v. Cheeseman, 317 P.2d 472 (Kan. 1957), which held that evidence showing that a surgeon left a gauze pad in his patient raised only a prima facie case of negligence against the surgeon and that a jury would possess the power to acquit him of liability.
See Chi Yun Ho v. Frye, 865 N.E.2d 632 (Ind. App. 2007) (defendant surgeon left lap pad in plaintiff during hysterectomy; jury found for defendant; intermediate appeals court entered judgment as a matter of law for patient on ground that surgeon said only that he relied entirely on nurse’s count of pads), rev’d, Chi Yun Ho v. Frye, 880 N.E.2d 1192 (Ind. 2008) (case remanded for new trial on ground that jury possessed power to acquit surgeon of any negligence); Laws v. Harter, 534 S.W.2d 449 (Ky. App. 1975) (trial court directed verdict in favor of surgeon who closed patient after inaccurate nurses’ sponge count, but appeals court held that surgeon was negligent as a matter of law), rev’d, Nazar v. Branham, 291 S.W.3d 599 (Ky. 2009) (defendant left Durahook in plaintiff’s brain cavity; he suffered pain and $11,900 in subsequent surgery expenses to remove it; trial court denied plaintiff judgment as a matter of law on issue of liability, and jury then acquitted surgeon of negligence; on appeal Kentucky Supreme Court overruled Laws case and held that jury acted within its proper discretion in acquitting surgeon); Baxter v. AHS Samaritan Hosp., LLC, 328 S.W.3d 687 (Ky. App. 2010) (trial court properly denied plaintiff’s motion for summary judgment against surgeon who had left sponge in her during prior caesarean operation and when plaintiff’s evidence indicated that sponge had killed her second child, because question of breach of duty was for the jury in this type of case).
See generally Annot., Timothy E. Travers, Druggist’s Civil Liability for Injuries Sustained as Result of Negligence in Incorrectly Filling Drug Prescriptions, 3 A.L.R.4th 270 (1981); Annot., Liability of Druggist for Injury in Consequence of Mistake, 31 A.L.R. 1336 (1924); Annot., Liability of Manufacturer or Seller for Injury Caused by Drug or Medicine Sold, 79 A.L.R.2d 301 (1961); see Faulkner v. Birch, 120 Ill. App. 281 (1905) (pharmacist who dispensed atropine instead of prescribed codeine, seriously injuring plaintiff, entitled to jury instruction fairly apprising jury of their right to acquit pharmacist of negligence); Ohio County Drug Co. v. Howard, 256 S.W. 705 (Ky. 1923) (pharmacist is not “insurer” of accuracy of his dispensing, and question of his negligence is for jury), overruling, Fleet & Semple v. Hollenkemp, 13 B. Mon. 219, 1852 WL 1716 (Ky.); Dunlap v. Oak Cliff Pharmacy Co., 288 S.W. 236 (Tex. Civ. App. 1926) (jury could find defendant pharmacist negligent or not after he substituted poisonous drug for requested nonpoisonous drug). See also Johnson v. Smolinsky, 81 S.W.2d 434 (Mo App. 1935) (jury given instruction favorable to plaintiff, but was still entitled to find for defendant). The favorable plaintiff instruction given in Johnson v. Smolinsky seems inconsistent with the later Missouri case of State ex rel. Malan v. Huesemann, 942 S.W.2d 424 (Mo. App. 1997) (issue of pharmacist’s breach of duty was for jury).
See also Brown v. Marshall, 11 N.W. 392 (Mich. 1882) (in case in which pharmacist dispensed wrong drug and plaintiff suffered damages therefrom plaintiff’s verdict must be reversed and case remanded for new trial because trial judge failed to instruct jury that negligence issue was theirs and verdict and judgment would depend on their finding pharmacist was negligent); MacKay v. Crown Drug Co., 420 P.2d 883 (Okla. 1966) (pharmacist dispensed ten times dose of anti–hypertensive drug, but jury acquitted him and was upheld); Crozier v. Henry Ford Hospital, No. 279924, 2008 WL 5197153 (Mich. App.) (plaintiffs did not require expert testimony on standard of care after plaintiff injured by pharmacist’s dispensing ten times prescribed dose of medicine; jury could find either way on this evidence); Drury v. Connecticut CVS Pharmacy, No. CV126028814S, 2012 WL 5519612 (Conn. Super.) (negligence question was for jury when defendant mistakenly dispensed very harmful Pregnisone, instead of doctor–prescribed Pregabalin, for plaintiff’s seizure disorder); Ex parte Rite Aid of Alabama, Inc., 768 So.2d 960 (Ala. 2000) (issue of whether pharmacist who dispensed twice prescribed dose was negligent was for jury even when plaintiff’s decedent died from error).
The rule allowing juries to forgive pharmacist errors runs so contrary most people’s understanding of the negligence rule that federal courts, trying to apply state law, may sometimes get it wrong. Compare Franklin v. K–Mart Corp., 997 F. Supp. 2d 453 (W.D. Va. 2014) (citing supposed general principles of Virginia law to conclude patient entitled to partial summary judgment on issue of pharmacist’s liability for dispensing error) with Gressman v Peoples Service Drug Stores, Inc., 10 Va. Cir. 397 (Va. Cir. Ct. 1988) (pharmacist not “strictly liable” for dispensing injurious “chlorpropamide” instead of prescribed “chlorpromazine,” but jury would decide whether to acquit pharmacist or not).
288 S.W. 588 (Tex. Civ. App. 1926).
Peavy v. Hardin, 288 S.W. 588 at 589–90 (Tex. Civ. App. 1926). The appeals court also stressed that the jury found that the plaintiffs had failed to incur any “pecuniary expense,” which was an additional reason to bar their negligence action. It seems hard to credit this finding, however, because at minimum the plaintiffs must have incurred some sort of burial cost as a result of the defendant’s negligence, and of course they also incurred a purely pecuniary expense from purchasing the drug that killed their child.
See also Bean v. Dempsey, 233 S.W.2d 417 (Ky. 1950) (on evidence strongly favoring plaintiff’s claim that defendant pharmacist erroneously dispensed wrong substance, jury still would have been entitled to find for the defendant); MacKay v. Crown Drug Co., 420 P.2d 883 (Okla. 1966) (when defendant pharmacist erroneously dispensed ten times prescribed dose, jury allowed to absolve pharmacist on ground that plaintiff was contributorily negligent in failing to notice unusual effects of misdispensed drug); Moresi v. Evans, 572 S.E.2d 327 (Ga. App. 2002) (harmless error to tell jury that pharmacist committed breach of duty as a matter of law when other instructions invited jury to assess whether there was breach of duty and when jury acquitted pharmacist). Increasingly, a victim of a pharmacist who has mistakenly dispensed the wrong drug must comply with a malpractice reform statute that requires him to produce an expert’s report asserting that the error violated the “standard of care” observed by health care practitioners. See, e.g., Rendon v. Walgreens, 144 F. Supp. 3d 894 (N.D. Tex. 2015). Cases indicate that it will not be obvious to many experts that a dispensing error, even one that produced serious damages, did violate the standard of care. But see Morgan v. Publix Super Markets, Inc., 138 So. 3d 982 (Ala. 2013) (Alabama malpractice reform statute does not require expert report in case in which pharmacist has dispensed wrong drug, but it is still a jury issue whether such a pharmacist was negligent).
See, e.g., Higgins v Thrifty Payless, Inc., No. B141142, 2002 WL 57403 (Cal. App. 2002) (on jury’s verdict pharmacist liable for $250,000 for simple dispensing error).
126 N.E. 814 (N.Y. 1920) (plaintiff contributorily negligent as a matter of law for violating statute requiring his buggy to show a light after dark).
998 N.Y.S.2d 198 (App. Div. 2014).
N.Y. Vehicle and Traffic Law § 1142 (a).
Even in New York, when two defendants have each committed traffic violations, the jury can forgive one of them on proximate cause grounds. See Gibson v. Singh Towing, Inc., 64 N.Y.S.3d 233 (App. Div. 2017); Pierre v. Andre, 48 N.Y.S.3d 704 (App. Div. 2017); Kohler v. Barker, 48 N.Y.S.3d 242 (App. Div. 2017). In New York, a defendant who rear–ended plaintiff’s vehicle and pleaded guilty to traffic violation of traveling too closely could still be forgiven on evidence that truck in front of plaintiff’s vehicle stopped suddenly, Jones v. Egan, 676 N.Y.S.2d 305 (App. Div. 1998). The strict New York rule may be changing. In Zhubrak v. Petro, 48 N.Y.S.3d 704 (App. Div. 2017), a New York jury was allowed to forgive the defendant’s apparent traffic violation in failing to yield the right of way.
208 Cal. Rptr. 3d 655 (2016).
Minnegren v. Nozar, 208 Cal. Rptr. 3d at 664.
See, e.g., Spriesterbach v. Holland, 155 Cal. Rptr. 3d 306 (Cal. App. 2013) (defendant without statutory right of way ran directly into bicyclist with right of way; after accident plaintiff rudely complained to defendant; defense jury verdict affirmed even with concededly erroneous instructions unfavorable to plaintiff, determined by appeals court to be “harmless error”); Safirstein v. Nunes, 241 Cal.App.2d 416 (Cal. App. 1966) (car without statutory right of way ran directly into car in which plaintiff was passenger; defense verdict affirmed).
California courts often stress that “mistakes are made even in the exercise of ordinary care” and even with respect to statutory duties. This doctrine seems originally seems to have arisen as a means of forgiving the plaintiff’s contributory negligence. This doctrine is now applied to primary negligence.
No. SC118166, 2015 WL 4878907 (Cal. Super.) (Trial Order).
Minnegren v. Nozar, 208 Cal. Rptr. 3d at 655, 666.
Holmes (1881: 110) wrote: “A man may have as bad a heart as he chooses, if his conduct is within the rules. In other words, the standards of the law are external standards, and, however much it may take moral considerations into account, it does so only for the purpose of drawing a line between such bodily motions and rest as it permits, and such as it does not. What the law really forbids, and the only thing it forbids, is the act on the wrong side of the line, be that act blameworthy or otherwise.”
On this point, Holmes (1881: 113–114) wrote: “No doubt, a defendant could justify or excuse being on the wrong side [of the road] under some circumstances. The difference between alleging that a defendant was on the wrong side of the road, and that he was negligent, is the difference be between an allegation of facts requiring to be excused by a counter allegation of further facts to prevent their being a ground of liability, and an allegation which involves a conclusion of law. and denies in advance the existence of an excuse. Whether the former allegation ought not to be enough, and whether the establishment of the fact ought not to shift the burden of proof, are questions which belong to the theory of pleading and evidence, and could be answered either way consistently with analogy. I should have no difficulty in saying that the allegation of facts which are ordinarily a ground of liability, and which would be so unless excused, ought to be sufficient. But the forms of the law, especially the forms of pleading, do not change with every change of its substance, and a prudent lawyer would use the broader and safer phrase.”
When the Minnegren defendant claimed he was “only human” and “made a mistake,” he was not “counter alleging further facts.” It was already clear from the plaintiff’s complaint that the defendant was human and had made a mistake. If a pleading analog is needed, it is as if the Minnegren defendant pleaded an ancient and opaque “not guilty” and “threw himself on the country,” which then acquitted him.
See Vines v. United States, No. 2:05–cv–02370–FCD–GGH, 2008 WL 4470795 (E.D. Cal.) (in FTCA case judgment as a matter of law for plaintiff on breach of duty issue against surgeon who inadvertently left “small wire” in patient’s back); Gills v. United States, No. 7:08–cv–00245, 2010 WL 1444590 (W.D. Va.) (in FTCA case surgeon found negligent as a matter of law for leaving sponge in patient, but plaintiff unable to prove sponge was cause in fact of death); Kellar v. Department of Veterans Affairs, No. 08–cv–00761–WYD–KLM, 2010 WL 3785569 (D. Colo.) (in FTCA case surgeon committed breach of duty as a matter of law by leaving metal clamp in patient’s chest). Cf. Prindle v. United States, No. 4:10–CV–054–A, 2011 WL 1869795, n.1 (N.D. Tex.) (opines that judgment as a matter of law would be given for plaintiff in FTCA case in which plaintiff suffered damage from surgeon leaving a foreign object in this body). But see Callahan v. Cho, 437 F. Supp. 2d 557 (E.D. Va. 2006) (FTCA plaintiff whose Veterans Administration surgeon left small needle tip in his body because it could not be easily removed needed to comply with West Virginia malpractice reform statute which required expert statement to create triable issue of fact). See also McCubbin v. Hastings, 27 La. Ann. 713 (La. 1875) (Louisiana Supreme Court ordered judgment as a matter of law to plaintiff who sued for pharmacist dispensing error when case had been tried to judge); Dietze v. King, 184 F. Supp. 944 (E.D. Va. 1960) (diversity case tried to bench resulted in judgment as a matter of law for plaintiff where surgeon had left small sponge in patient).
See Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998) (per Calabresi, J.) (plaintiff entitled to judgment as a matter of law in FTCA case when Navy hospital pharmacy dispensed twice recommended dose to her decedent); Boyle v. United States, 948 F. Supp. 2d 570 (D.S.C. 2012), related proceeding, 948 F. Supp. 2d 577 (D.S.C. 2012) (after Navy pharmacist accidently dispensed ten times prescribed dose to plaintiffs’ deceased, they sued under FTCA and got judgment); Espinosa v. United States, No. 00 C 3435, 2001 WL 1518536 (N.D. Ill.) (in FTCA case, Veterans Administration pharmacist committed breach of duty as matter of law by filling prescription with incorrect dose of drug, but also held incorrect dose was not cause in fact of injury), aff’d, 47 Fed. Appx. 402 (7th Cir. 2002).
See, e.g., Gilles 1994 and Kelley & Wendt 2002: 588–90.
For divergent views on this subject, see Gilles 2001 and 2002, Papayannis 2014, Geistfeld 2001 and 2009, Keating 1996.
See Blyth v. Birmingham Water Works Co., 156 Eng. Rep. 1047 (Exch. 1856) (court held that cleaning frost off fire plug was not required, despite jury verdict to contrary, because no experience demonstrated that precaution was useful); Crafter v. Metropolitan Ry., L.R. 1 C.P. 300 (1866) (court held, despite apparent jury verdict to contrary, that defendant was not required to install handrail on staircase; replace the worn–out brass nosing on this staircase; or to have installed a nosing made of a more durable material than brass).
125 N.E. 93 (N.Y. 1919).
Cardozo wrote: “The trolley wire was so placed that no one standing on the bridge or even bending over the parapet could reach it. Only some extraordinary casualty, not fairly within the area of ordinary prevision, could make it a thing of danger. Reasonable care in the use of a destructive agency imports a high degree of vigilance (Nelson v. Branford L. & W. Co., 75 Conn. 548, 551; Braun v. Buffalo Gen. El. Co., 200 N.Y. 484). But no vigilance, however alert, unless fortified by the gift of prophecy, could have predicted the point upon the route where such an accident would occur. It might with equal reason have been expected anywhere else. At any point upon the route, a mischievous or thoughtless boy might touch the wire with a metal pole, or fling another wire across it (Green v. W.P. Rys. Co., 246 Penn. St. 340). If unable to reach it from the walk, he might stand upon a wagon or climb upon a tree. No special danger at this bridge warned the defendant that there was need of special measures of precaution. No like accident had occurred before. No custom had been disregarded. We think that ordinary caution did not involve forethought of this extraordinary peril.” (Adams v. Bullock, 125 N.E., at 93) Cardozo also said: “There is, we may add, a distinction not to be ignored between electric light and trolley wires. The distinction is that the former may be insulated. Chance of harm, though remote, may betoken negligence, if needless. Facility of protection may impose a duty to protect. With trolley wires, the case is different. Insulation is impossible.” (Adams v. Bullock, 125 N.E., at 94)
10 A.2d 673 (N.H. 1940).
The court said: “In the case before us, there was danger of electrocution in the street. As long as the Telephone Company’s safety devices are properly installed and maintained, there is no danger of electrocution in the house. The only foreseeable danger to the telephone subscriber is from noise—fright and neurosis. Balancing the two, the danger to those such as the plaintiff is remote, that to those on the ground near the broken wires is obvious and immediate. The balance would not be improved by taking a chance to avoid traumatic neurosis of the plaintiff at the expense of greater risk to the lives of others.” (Cooley v. Public Service Co., 10 A.2d, at 676)
The case is also interesting because there had been a custom to install wire baskets, but the court used cost–benefit analysis to reject this custom.
United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947), rev’g, Conners Marine Co. v. Pennsylvania R. Co, 66 F. Supp. 396 (E.D.N.Y. 1946).
Our principal author, Professor Keating, also adopts this view.
936 P.2d 70 (Cal. 1997).
See Vasquez v. Residential Investments, Inc., 12 Cal. Rptr. 3d 846 (Ct. App. 2004) (landlord liable for crime when cheap replacement of window pane would have prevented it); Delgado v. Trax Bar & Grill, 113 P.3d 1159 (Cal. 2005) (landlord liable for crime when cheap changes in procedures would have prevented it); Morris v. De La Torre, 113 P.3d 1182 (Cal. 2005) (landlord liable for crime when cheap 911 call would have prevented it).
See Saelzler v. Advanced Group 400, 23 P.3d 1143 (Cal. 2001) (landlord not liable for crime when even a second shift of security guards might not have prevented it); Casteneda v. Olsher, 162 P.3d 610 (Cal. 2007) (landlord not liable for crime when only socially costly eviction of “suspicious” individuals might have prevented it).
Cf. A.C. ex rel. Cooper v. Bellingham School District, 105 P.3d 400 (Wash. App. 2004) (first–grade teacher able to win jury’s forgiveness and appeals court’s affirmance of that verdict after she testified that she was totally focused on safety when she let piñata bat slip from her hands, injuring one of her pupils; parents also testified that she was safety–minded teacher).
Goldberg & Zipursky 2007: 1144–1145. See also Grady 1994: 7.
Holmes (1897: 459-460) wrote in this famous article: “The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other [that is, from the moral realm to the legal realm] without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some stage of the argument, and so to drop into fallacy.”
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