Thanks for joining this episode of the No. 86 lecture series, where we discuss basic principles and applications of Tort Law along with landmark cases. Today's episode features Greg Dickinson, who is an Assistant Professor of Law at the University of Nebraska, where he teaches Contracts, Business Torts and Unfair Competition, and Remedies. He is also a fellow with the Stanford Law School Program in Law, Science and Technology. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Professor Dickinson, a lot of Torts cases involve negligence. What are the criteria for establishing that someone has been negligent? GREG DICKINSON: So, negligence in a nutshell, the idea of negligence is that you've acted carelessly in some way that has caused physical injury, injury to somebody else or, or to their property. And so that's negligence in a nutshell. Formally stated, the law of negligence requires four elements to make out a cause of action, you, you have to have an injury. There has to have been a duty between the, the plaintiff and the defendant, some duty, to behave carefully. You have to have a breach of that duty, meaning you, you weren't as careful as you should have been. And there has to be causation, meaning it, it has to be the case that the breach of the duty to act carefully is what caused the injury. And so the, the, quick rundown as you're trying to figure out whether you've observed an instance of negligence is to ask whether there's been an injury, whether a duty existed, whether that duty was breached, and whether you have causation, whether the breach of duty caused the injury. But again, generally speaking, when you're trying to spot negligence, you're looking for somebody was not as careful as they should have been. And somebody got hurt as a result. That's generally speaking what negligence looks like. PUBLIUS: Could you explain what premises liability is and how it differs from ordinary negligence? GREG DICKINSON: Premises liability is a special set of rules for how to evaluate negligence claims, involving the upkeep of property. And so, unlike the ordinary context where you just ask, well, what would a reasonably prudent person do? Which is kind of the, the basic test in negligence law. A slightly different test applies in the context of premises liability. And premises liability is claims where somebody was hurt by your property. And so, this is a, a very particular subset of claims, but think of it like slip and falls. You know, you've got some water on your floor and somebody slips and falls and gets hurt. That would be premises liability. It's not the case that any sort of injury on your property is premises liability. You know, if you punch somebody in the nose in your house, it doesn't make it a premises liability claim. It's still, you know, a battery claim or a negligence claim potentially. But if it's about the upkeep or the status of your property, the way that it's maintained, if that's how the injury is caused, and that's what the case is about. It's called a premises liability case, and the law has developed a special set of rules for cases like this. PUBLIUS: Does premises liability categorize different types of visitors? Do different rules apply depending on why someone is on the property? GREG DICKINSON: The way that the rules operate is by dividing the plaintiff- the, sort of person who got injured - into one of three categories: an invitee, a licensee, or a trespasser. So the person who who gets injured on the property is one of these three things, and the terminology is confusing, for a number of reasons. So an invitee applies really to commercial sorts of transactions. You're a store and you invite somebody onto your property because you're hoping that this is going to result in a purchase. And so think of commercial transactions when you're categorizing someone as an invitee, and the reason it's counterintuitive is because, say you invite someone to your house for dinner as a social guest, you invite them over. That's not an invitee, somebody that you invite over, to your house socially, that's, that's the second category. That's a licensee. That's somebody that you've given license. It would be an old-fashioned way of saying it. You've allowed them, you've permitted them to be on your property, but not for purposes of some sort of commercial transaction, just because you, you're a nice guy, or something. So maybe you've invited somebody to your house as a social guest. Maybe you've given permission to walk around on your property or, to, to hunt on your land or something like that. and so these are, are people that are not on your, on your property for some sort of commercial reason, but are there, at your permission. And the last category of, of people on your property for this analysis would be trespassers. And this is somebody who does not have your permission, somebody who you have not, authorized to be on your property. and so the way the law of premises liability works, is it first categorizes the plaintiff into one of these three categories. And depending on which of these three categories the plaintiff falls into, that's how you decide what the duty is. So, unlike ordinary negligence claims where the duty is always the same, the duty to behave as would a reasonably prudent person, that's not quite how it works in premises liability here. The duty varies based on the status of the person who got hurt, the status of the plaintiff. And so, for invitees, this is the commercial one, this is the one involving some sort of commercial benefit. For this one, this is the highest duty. This is a duty that looks something like the reasonable person standard. The owner of the premises has a duty to maintain reasonably safe premises. and so, whatever that means, you'd have to ask the reasonable person type question. But whatever it means to have reasonably safe premises, that's what you owe to somebody that you commercially allow on your land for commercial purposes. That's the invitee. The licensee, which remember is for social guests, the licensee, has, quite a bit lower, standard, under the common law, at least the common law duty owed to a licensee. This is somebody that you've kind of invited maybe for social reasons onto your property. The licensee is owed a duty to warn them of concealed dangers or hidden dangers. And so, if you have dangers that are pretty obvious on your property, if you have banana peels lying around on your sidewalk for some reason, well, that's not concealed. So that might not be reasonably safe premises to have banana peels lying around, but they aren't concealed either. and so you'd satisfy your duty to a social guest without having to do anything about the banana peels. You can leave those lying on your property, and you're okay. But if, suppose you have a hidden spike pit, under one of the carpets in the guest bedroom, well then, that's a hidden danger. Nobody necessarily knows that they can't walk on the carpet. In fact, they'd think they could. Or maybe, something like a railing that actually is just for decoration and if you try to put any weight on it at all, you'll fall down the steps. That would be the sort of thing that would be a hidden danger, not an obvious danger. And so you have a duty to licensees - folks that you give permission or invite onto your property- to them you owe a duty to warn them of hidden risks, To trespassers then - this is the final category - to trespassers your duty is even lower than that. Your duty to trespassers is not to cause a wanton injury. And this is an old-fashioned, kind of common law term. It means something like, don't intentionally hurt them. Don't set up traps, hoping that they'll fall into spike pits on your property. Don't try to set cages and, and things, don't intentionally hurt people that are trespassing. And so you don't have any duty to keep the premises safe. You don't have a duty to maintain the premises in good condition, but you have a duty not to intentionally hurt them. You aren't allowed to try to hurt trespassers. PUBLIUS: Professor, I've heard the "reasonable person" standard is one of the trickier concepts in tort law. How do courts handle cases where someone claims they just aren't as capable as the average person? GREG DICKINSON: One of the more difficult areas of tort law, in negligence law in particular, is figuring out what exactly is the reasonable person. And so when we're dealing with the question, has there been a breach of the duty to behave as what a reasonably prudent person? The question naturally comes up, well, what do we do with people who are a little different? There's a famous case, Vaughan v. Menlove, and this is one of my favorite cases in all of tort law because it teaches me something. And it's also, just so memorable. I didn't know this despite growing up in the middle of nowhere in the country. If you leave piles of hay around, and, and don't do anything with them, apparently they can just spontaneously combust. They release some sort of chemical that can produce heat, and a pile of hay can just catch on fire. For no reason.. So I didn't realize this, and there's a famous case involving a guy who had a big pile of hay, sitting at the border of his property and his neighbor came over, and warned him and said, Hey, could you, could you not have that nearby? I'm afraid it's gonna catch fire and it's gonna burn down my, my barn here. And he complained about it. And the guy with the hay just said, well, I'll chance it. I'm not worried about that. And the case eventually went to trial, because, in fact the hay did catch fire and it did burn down the neighbor's property. And he was mad about that. And so he sued, he says, I lost my property, and I lost my property because you were not as careful as would've been reasonably prudent person. You were careless. You breached your duty of care. and, the defendant had an interesting argument. What he said is, well, maybe an average person would do that, but I'm unusually dumb. I'm especially stupid. And so really I did the best that I could. I did as good as I could do, and I'm just not as gifted as, as other people. and so I shouldn't be held liable because I tried my very best. It just turned out that I, I was kind of dumb. and that was his argument. And the, the court had to very squarely take up this question, well, what do I do? Because there certainly are some people who have more skill than others. And what do we do when we're applying the reasonable person standard? And we're trying to figure out if you've behaved reasonably when we're applying that standard to somebody who maybe isn't reasonable. And the court, very firmly, it's very well established now that if somebody is lesser than the reasonable person, if they, if they don't have the full mental competence of the reasonable person, well, they're still responsible for living up to the reasonable person's standard. and so in, in one sense, the law doesn't take into account things like foolishness, things like age, if you're advanced in years, the law doesn't apply a special standard. It says, well, you're still responsible for meeting the standard of a reasonably prudent person. Even if you are advanced in years. Even if you are foolish. to use the, the language of the old court decision, you still have to behave as a reasonably prudent person and you can imagine the reasons for this. You know, imagine you're driving down the highway and somebody sideswipes you, and you you're trying to recover. And they say, well, it just turns out, I'm, I'm not as smart as average, and so I, I forget to look when I'm changing lanes. Sometimes you'd say, Hey, come on then, then what are you doing driving a car? And, and so, what the, the law's response is to say, if you're gonna do something, you're, you're responsible to live up to the care of the reasonably prudent person, even if that's not you. Even if that's above and beyond your abilities, that's still what you're required to do because we don't wanna leave this other guy in lurch that you hurt through your silly actions. And so that's a core principle. But, another core principle is the law does recognize certain special characteristics. and so people with physical disabilities, for instance, are not treated as if they didn't have physical disabilities. and so if you have a physical disability that prevents you from walking as fast or something as somebody else, the law doesn't say you're obligated to move around as if you had, full use of your legs. And so the law takes account of physical disabilities, but not foolishness, is, is, the short answer. There are nuances there that have evolved in the law over time, but that's, that's in brief. PUBLIUS: Are there any other pivotal tort cases in the development of negligence law that we should know about? GREG DICKINSON: So McPherson v Buick Motor is a famous tort law case in the evolution of negligence law in particular. And what happened in that case is a guy bought a car from a car dealer, as we still do now, this was in the early 20th century. He bought a car from a dealer, and the dealer had of course bought the car from, the car manufacturer in this case, Buick Motor. And what happened was the, the guy was driving his car and the wheel flew off. And he, of course, had damage to his car and, and perhaps also to himself. And he sued Buick. He said, you made a bad car. You negligently made this car. You didn't do it as carefully as you should have done. If you had taken proper care in manufacturing this car and, and checking it out afterward, then the wheel wouldn't have flown off. And, my car wouldn't have gotten wrecked. I wouldn't have had this accident. So pretty normal claim, by modern negligence law standard. But the issue in this case was that negligence law at the time arguably required what's called privity, between the, the person who was injured, and the person against whom the lawsuit was brought. And so here, what Buick said in defense was, well, don't come to us, complaining about this. Our only relationship is with the dealer. We sold the car to the dealer. If the dealer wants to come to us and complain about the quality of the car, they can do that. But, but who are you? Who are you to come and, and talk with us? We never had any relationship with you at all. We don't have a duty to you. and so that was Buick's argument. And the, the court in resolving this, made what, what has, in subsequent years become, the, the basic, rule of tort law, which is that you don't have to have privity, you don't have to have a special relationship or a particular, relationship with someone for them to owe you a duty of reasonable care. You have a duty with any foreseeable victim of your carelessness, you have a duty to them, not to, not to take careless actions that injure them. And so the court said yes, maybe historically it would've been true, that you would need, some sort of contractual relationship, with or, or some sort of privity, not necessarily contract, but some sort of relationship with Buick. But, in this day and age with modern manufacturing techniques and the way products get distributed all over the place, you need to be able to sue Buick, even though you didn't have a specific relationship with them. And so you Buick can be liable if you didn't take reasonable care in the way you manufactured this. And you can be liable not just to the person that you immediately sold the car to, but you can be liable even to to downstream victims because they are, are also foreseeable victims. If you're careless, you could foreseeably hurt, not just the dealer who's selling your car, but the end user, who's also buying the car from the dealer. PUBLIUS: What is strict liability? Is that related to negligence? Are they assessed the same way? GREG DICKINSON: Negligence is a, a tort law cause of action, a, a claim under tort law where you're saying somebody was careless, in a way that hurt me. And they should have been able to foresee that, they should have been more careful. And so I'm going to sue them and, and try to recover, whatever my injury was from the fact that they were careless and hurt me. That's what a negligence claim is all about. People failing to live up to the standard of care. Which is that of a reasonably prudent person. strict liability, is not in itself a tort claim. You don't sue somebody for strict liability in the way that you sue somebody for negligence or you would sue somebody for assault or battery. So strict liability isn't a, a type of wrongdoing or a type of tort. Strict liability is actually, or could be thought of almost like a level of mens rea, where the level of mens rea is, it doesn't matter what you were thinking. It doesn't matter whether you did something wrong or not, you're going to be liable just because you caused an injury even if you didn't do something wrong, in the, in the context of causing that injury. And historically, the areas where this applied, was in a, a category of cases, involving what, what were called, ultra hazardous or abnormally dangerous activities; and so things like, blasting with dynamite, things like keeping wild animals. You know, you keep an elephant or something and, and it hurts someone. And also like, damming up large bodies of water, like you build a, a huge dam and create a reservoir. The law said these things are just so dangerous. Keeping a tiger is just so dangerous that even if you, you take every possible precaution, even if you act as what a reasonably prudent person, which is the standard for, for negligence liability. Even if you do act as carefully as you could reasonably do. Even if you go above and beyond that, you know, you spend $10 billion building a tiger cage and somehow the tiger still gets out and hurts someone, you are strictly liable for that injury just because you caused it. Just because you are, you are keeping of the tiger caused it, even if there's no fault, even if there's not something that you could have or, or should have done better, just to the fact that the injury occurred and that you are the reason for it in keeping the wild animal, is enough. And that's a concept called strict liability. Strict liability because you're held liable, you're held responsible, without any, without any showing that you did something wrong or, or not as good as you could have done. PUBLIUS: Cases involving animals must be entertaining to discuss in class. Are there standards involving normal pets as well as exotic animals? GREG DICKINSON: So animal cases, and these are often fun cases to read. In a tort law case book, injuries caused by animals, the law treats two different categories. And so on the one hand you have wild animals, that, that aren't domesticated. Things like a tiger or an elephant, or a gorilla, you know, something, zoo type animals. If those cause people injury, and, and it's your animal, you're strictly liable for that. That's what's called an ultra hazardous activity or an abnormally dangerous activity. The keeping of wild animals falls into the, the strict liability category where if somebody is harmed, by, by your keeping of wild animal, there's strict liability, the plaintiff doesn't have to show that you weren't as careful as you could have been or should have been. They just have to show they got hurt by your wild animal. And so that's wild animals that applies to, to certain ultra hazardous or normally dangerous activities. But. domesticated animals, things like dogs or cats would follow the usual principles under the traditional common law, you'd say, well, were you keeping your dog, in the manner of a reasonably prudent person? And so you might ask things like, well, has the dog bitten anybody before? Did you have reason to be aware that the dog might bite somebody? Was it growling and you didn't do anything to restrain it? You would ask the normal sorts of questions about whether the person was as prudent as a reasonable person. And that's how you'd figure out whether there's liability for a, a domesticated animal or a non wild animal. So the question there is the same as for other cases of negligence with the caveat that some states have enacted particular statutes, that say, for instance, I, I used to practice in New York, and they had a special statute governing dog bites that said, you know, you get the, you as an owner get one, one free bite. And so once, once your dog has ever bitten somebody, you're, you're, you're liable after that. But the first time you, you can't have foreseen it. And so some states have modified the, the rule, by statute to, to slightly tweak the reasonable person's standard in that, in those states. PUBLIUS: What are some of the reasons for the proliferation of negligence cases in modern society? Has negligence taken on a more prominent role in tort law than it used to? GREG DICKINSON: So over the last few hundred years, negligence law has taken on a much bigger role in the law of torts than it used to, for a couple different reasons. One is, is just that society has evolved. And so if you think back to, you know, 1300’s England, what were you very most concerned about? If, if you're the king and you're trying to establish law and justice in your kingdom, you're gonna target the very worst abuses first. And what are those? Those are intentional, use of violence against other people. That's, that's the very first thing you're going to want to stamp out if, if you're going to have peace and justice. and so those were the first, sorts of wrongs recognized in tort law because they're, they're the very most obvious abuses of, or, or violations of human norms. And, and two things happened. Humans kind of became more civilized; physical violence against people is even less acceptable now than, than it once was. And as we became more civilized, more governed by law, we started to hold higher expectations of others than that they not cause us intentional physical injuries. We said, well, maybe you shouldn't even be, causing me careless injuries. Maybe the law should say that even if it was an accident, well, you should have been careful. you should have been more careful than that. And so that should count too, as the sort of wrong for which compensation is due. And so tort law expanded over time to say not just intentional wrongs, uh, but even accidental wrongs that are attributable to somebody not being as careful as they should have been. should be compensable under tort law too. And that's one shift. It's just societal changes. But another shift is think about how different society looks now, than it used to look. There's all sorts of products being created, new stuff that didn't exist before. There's new human to human interactions. Not everybody is, is a farmer kind of dealing in their, their own area of land with their own, longstanding practices that they've built up over the years anymore. We have people, doing new things, a lot more, innovation, a lot a lot more, business and products. And all of that comes with with risks. The railroad is a famous example of this. The railroad is responsible for just tremendous economic benefit in, in the United States and around the world. But railroads are also kind of dangerous. And as you start building, really long rails that cross the country that require workers to, to work on them and run them, that are great big furnaces, running down the tracks and, and carrying tons of weight behind them. Well, that hurts people too. and so as technology evolved and industry evolved to become more complicated, there became more and more instances in which it was very possible to accidentally hurt people. and the law evolved to respond to that and say, well, compensation is needed here to correct a wrong, even though it wasn't an intentional one. And so with, with societal change, has come an expansion of the role of negligence because so often now that's how people get hurt is through careless conduct rather than intentional physical abuse. PUBLIUS: What about cases where the plaintiff bears some of the fault? Can he or she still initiate a negligence lawsuit to recover damages? GREG DICKINSON: So the law has changed quite a bit over time and how it treats plaintiffs who are also, kind of a little bit at fault. And so, most of the time in tort class, you talk about instances where the defendant has been the one that, that did the wrong. the defendant was careless, or, or the defendant committed an intentional tort. And the plaintiff is kind of guiltless. the plaintiff hasn't, uh, participated in the process. But, a longstanding problem in tort law is how to deal with the fact that, well, often the world is more complicated than that. Often the plaintiff did something that wasn't so careful too. And the, the kind of historical case that, that they teach in the old case books is, there's a, a guy, and he's keeping timber on his property. He's keeping lumber, chopped logs, and they end up in the roadway. For whatever reason, he ends up keeping them in the roadway where they shouldn't be, rather than on his own property. So they're in the roadway. And later on, along comes a wagon. The wagon runs into the, the lumber or the, the timber that's in the road. And a lawsuit happens. The guy's wagon gets damaged, and he sues and says, look, you were negligent. You had your lumber just lying here in the roadway. You should have known better. A reasonably prudent person would be more careful than that. And the defendant, the, the timber owner guy, he says, well, well, that might be true, but well, you should have been driving your wagon better. If you'd had your eyes open, you wouldn't have run your wagon into my wood in the road. And so really, this is all your fault. And so that's, that's the basic setup, where it can be important to question the plaintiff and defendant's relative responsibility. And historically, up until, up until the 20th century, the way that the law would've dealt with this was to ask, well, who had the last chance? Did the plaintiff have the last chance to avoid this? Imagine the guy driving his wagon, in the, in the early 20th century or, or earlier, the law might have said, well, you were driving your wagon, you had an obvious chance to avoid driving it into the wood. So this is on you. You can't sue the defendant. This is really your fault, for driving your wagon poorly. This isn't the, the lumber guy's fault. and so that's, for much of tort law's history, that's how it would've worked. But, in the last century, the law has evolved to be much more nuanced and much fairer than that. And what the law does. Now, the, the old doctrine was called contributory negligence. The idea was if you plaintiff contributed in some way to this accident, if this is in some way your fault, plaintiff, you, if you were plaintiff, weren't as careful as you could have been, well then you can't sue, you aren't allowed to sue if this is, if this is partly your fault. This is on you plaintiff, so no lawsuit. But, imagine the weird result that that can create, in certain instances, imagine that the plaintiff is 1% responsible and the defendant is 99% responsible. You'd have this odd result under the old rule, or you could have this odd result where, even though the defendant was 99% responsible, the plaintiff can't recover because the plaintiff was himself or herself 1% responsible. And so that's the, the problem that crept up with the old rule, the old rule of contributory negligence, is that even for cases where the plaintiff was a very small amount, at fault in comparison to the defendant, the plaintiff could be barred from recovering. And so what the, the modern law has done, the modern rule is one of comparative fault. And the law looks at, each party's, blameworthiness, how much each party was at fault for causing the accident. And so in the case of the, the wood stacking case, and the wagon, the law nowadays, the law would ask, well, how much at fault was the timber owner? How much at fault was the wagon driver? And say they're 50 50, cuz that's an easy number to work with. Say each of them is 50% at fault. Modern law, the law of comparative fault, would say, okay, plaintiff, if you suffered $10,000 in injury, rather than let you recover your full $10,000 of injury, we're going to reduce the amount that you can recover. By the amount that you were at fault here, you plaintiff, you yourself were 50% at fault. And so you can only recover $5,000. You can only recover half the amount of your injury because after all this thing is 50% your fault. and the same would work, for other numbers. you know, if the, if the plaintiff was, was only 10% at fault, well then the plaintiff could recover 90% of his injury. So you, you subtract the amount that the plaintiff himself, or herself is at fault. and then that's how you figure out the maximum possible recovery. And so rather than bar the plaintiff completely from recovering, we say, the plaintiff's recovery gets reduced by the amount that the plaintiff was at fault. Thank you for listening to this episode of the No. 86 Lecture series on Tort Law. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it's released. You can also go to no86.fedsoc.org for lectures and videos on Federalism, Contracts, Jurisprudence and more. Thanks for listening. See you in class!