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 Gregory Dolin, who is a Professor of Law at the University of Baltimore, where he teaches Torts, Contracts, Property, Intellectual Property, Federal Courts, and Constitutional Law. 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 Dolin, in a previous podcast we discussed the centrality of negligence and duty of care in modern tort law. Is the duty of care standard the same in an emergency? Gregory Dolin: The duty of care is always the same, right? The duty of care, you always have to act reasonably, but what that involves may vary with circumstances. So, for example, again, something we know from our everyday lives; you should, you probably ought to drive somewhat differently if the road is covered by a sheet of ice, then you can drive in a very dry, on a very dry summer day. You probably ought to drive a little differently at night than you should during the day with great visibility or in the fog when it isn’t clear visibility. So the duty stays the same. You still gotta act reasonably, but what it means, might change from time to time. We talked earlier a bit about emergency, and so I said at least in the world of intentional torts, emergency is really not its own doctrine, sort of more kind of bleeds into necessity. But what about in the world of negligence? Well turns out emergency doesn't actually change the answer, you still have to behave reasonably. However, of course, what's reasonable in an emergency, may be something different than what's reasonable in non-emergency. So just last semester, for example, on my exam, on my final exam, I had a hypothetical where, one of the parties involved was driving his pregnant wife to the hospital who was in the middle of delivery, middle of giving birth, and decided to run a red light while, you know, signaling and flashing his lights, et cetera, that he's gonna run the red light now. Is it reasonable to run red lights? Generally speaking, no. That's why we have laws about running red lights. Might it be reasonable to do so in an emergency, right? When it's actually maybe safer to get a woman who is in the middle of giving birth, to the hospital earlier than to stand and wait for a red light maybe. But notice again, the standard is the same. It's still reasonable. But in one circumstance, it may be unreasonable to run a red light. In the other circumstances, it may be reasonable to run a red light. And then the final point is what matters in determining what is or what is not reasonable are kind of surrounding circumstances, right? Is it rainy? Is it foggy? Is somebody giving birth? Are you trying to escape people who are shooting at your car? I mean, whatever it is. What generally doesn't matter are your own peculiar situations. So being stupid as in Vaughan versus Menlove doesn't matter. Being a novice driver doesn't matter, right? Being a young doctor doesn't matter. You have to meet the standard of reasonableness or don't. Basically, the message is, if you don't know how to do it, don't do it until you learn. PUBLIUS: With these reasonableness standards - are there any exceptions or distinctions for certain groups or types of people? Gregory Dolin: There are exceptions. In a couple of circumstances, although I'm not even quite sure you, it's best to think of 'em as exceptions, as perhaps variations on it. So for example, children are generally not held to the same standard as adults. But only when children are engaged in childhood-like activities. So if a child and anybody who's 16, at least legally is a child, they're not yet an age of maturity, anybody at 16 gets behind the wheel of a car, even with a license and everything. So we're not even talking about people going for a joy ride. When they start engaging in adult-like activities, they're held to the same standard as an adult, even if they're legally a child. But when a child is engaged in childlike activities, you know, they're playing ball on the street. They are, you know, doing whatever things that children do, right? They, you know, they play hide and seek and whatnot. Then they're held to the standard of a child of like age and maturity. And that is obviously at least somewhat of a variation on a reasonable person's standard. Because when you are engaged in adult activities, whether you're a child or an adult or a really old person, right? So an 80 year old is held to the same standard of driving as a 40 year old who's held to the same standard as a 16 year old. So why do we hold children to a lower potentially standard when they're engaged in childlike activities? Several explanations. One is that children may not, if the, if the idea of tort law is to help people adjust their behavior to societal expectations. Well then children may be too young to really understand it. So it is, the law is not gonna help 'em. It may also be that we want children to kind of explore the world to figure things out for themselves and to hold 'em to the same standard as adults who already have done that may not accomplish that goal. So for children who are engaged in the childhood like activities, the standard is a little different. Still doesn't mean anything goes; they still have to act like a, like child of a similar age of maturity. They can't just say, well, I'm under 18 so I can do whatever I want. But they don't necessarily have to live up to this generic reasonable person standard. The other time when, there may be, and, again, not so much an exception, and maybe this is not even a variation, on the standard…maybe this is just kind of a way to satisfy the standard. So there's, there's a great case that I teach called Padula versus State. It comes from New York. Mr. Padula was admitted to a psychiatric institution in New York for a drug addiction. I believe he was admitted somewhat involuntarily, but nevertheless. And so he was there with a number of other similar situated people. One day, him and his buddies at night, they broke into a, uh, medicine cabinet that was not apparently very well locked, and they made themselves drinks with Tang mix, orange mix Tang and methanol. Now, methanol looks and tastes and feels exactly like drinking alcohol, which is ethanol. The only difference is a single carbon atom. The problem is ethanol, which those of us who drink, like and enjoy, you know, tastes good and, you know, that basically is the entire consequence, if you drink it in moderation. Methanol on the other hand can kill you. It's not something that the human body's able to process. Or it can make you go blind. It's really inadvisable to drink methanol. And what's interesting, Padula knew that. And to the extent that he wasn't sure, the bottle that him and his buddies used had a giant skull and bones on it and a warning saying “do not drink, can cause all sorts of problems”. And yet they ignored it, they drank it and with predictable consequences. And then Padula sued the state and it comes from New York. So I also imagine, imagine the chutzpah, right? To to do that, saying you voluntarily, you broke into the cabinet, you drank the bottle that specifically said not drink, and then you go ahead and sue. Interesting enough, Padula wins, right? Why does Padula win? How could it possibly be reasonable for an adult person who can read and even if he can't read, he can see the skull bones to drink that? And the answer perhaps, although there are multiple explanations, perhaps the answer lies in the following. We ask, what would a reasonable drug addict or alcoholic do? What would we expect of a reasonable person in that circumstance? And the answer is, we would expect if the person can't really control themselves to check themselves into a rehab facility. That's what a reasonable person trying to work or deal with that affliction do. And what did Padula do? Well, he did exactly that. He checked himself into the hospital. He put himself into the care of this institution saying, I'm unable to control my urges. That's why I'm asking you to do it for me. And what did the hospital say to him? Said, okay, we will take care of you. And what did the hospital not do? They didn't, they didn't lock the methanol properly. They allowed Padula and his friends to break into that cabinet. And so while, like I said, perhaps it's not an exception to a standard of care and maybe not even a variation, but you can see how, although on the surface we can think, how could possibly be the drinking, something that says do not drink makes you reasonable. And the answer might be, well, because you have already done everything that we would've expected of you, you've checked yourself into the hospital, not just into a program, but into a residential facility. We can't expect more out of you. So, no, there's not really much exceptions, but there are these interesting variations as to figuring out like, well, when will we say you've done enough? So what happens when a person is disabled? So I've said before that generally we do not take into account, person's individual circumstance, right? So the fact that you're a novice, the fact that you are not particularly knowledgeable, the fact that you're not maybe very smart, we don't care. We generally say, well, if you don't know how to do things, if you're unable to do things, don't do them. But what happens when a person is disabled? Are we really asking a blind person to see what a sighted person would see? I mean, and maybe the answer ought to be yes. Saying, well, you know, we, it would be unreasonable to expect, you know, people not to look where they're going. But of course, that presents real problems because the world, again, torts world recognizes that the world is imperfect. It exists as it exists, and we need to encounter it again on its own terms. Unfortunately the world does have people who through no fault of their own are disabled. Some are blind, some may be deaf, some may have a seizure condition, all sorts of other things. So how do we treat them? And the answer is they have to behave like reasonable people, like reasonable people in like circumstances. PUBLIUS: Tell us more about what that means. How is the reasonable person standard applied in a case where someone has a disability or other extenuating circumstance? In these cases, how much responsibility falls on the shoulders of the plaintiff versus the defendant? Gregory Dolin: If you're a blind person, you shouldn't get behind the wheel of a car, right? It's unfortunate that you have that disability, but a reasonable blind person, much like for example, Padula, what would a reasonable person afflicted with addiction would do? He would check himself into a hospital. What would a reasonable blind person do or not do? Well, a reasonable blind person would not get behind the wheel of the car. At the same time, are we going to require the blind person becomes sighted? No, right? So one case I teach is actually a great case because it comes up in San Francisco in right around the gold rush. And, it's fun to teach it because I get students to think what is actually happening on the ground, not just in the law books, but on the ground. And if you think about what was happening in San Francisco at the time, right? It's almost exclusively a male only town, right? Women have not yet arrived. There's just a bunch of men, trying to strike gold and pre Netflix, pre-internet. How do they entertain themselves? They drink, right? And one day there's our plaintiff. He walks home drunk on an unlighted street as again, pre really electricity, widely being available. And the people who were doing street repairs left and they took a sort of a manhole cover and they left it open, and our person falls right in. And, company is like, well, you know, should have been looking where he's going. And so, Supreme Court of California said a drunk person, or by extension a blind person is entitled to safe streets, no less so than a sighted person or a sober person. So how does that get back to disability? We take into account the fact that sometimes people are drunk, sometimes people are blind, et cetera. Does that mean anything goes for them? No. We know what blind people have to do to be reasonable. They have to walk around, if they wanna behave reasonably, with a seeing eye dog or with a one of those canes that sort of tells them where they're going or somebody helping them, or, or you know, maybe with new technology being available with sort of, orienting themselves by their hearing or whatever else, they have to adjust their behavior. Again, remember, tort is a behavior adjustment mechanism. They have to adjust their behavior to their own disability so they don't get behind the wheel of the car. They do get those walking canes, but in turn, we adjust our behavior to recognize that not everybody's sighted. So we don't leave open manhole covers, say, thinking that, well, you know, a person who has eyes will see because not everybody has them. So again, the standard is the same. You have to behave like a reasonable person. But that standard does take into account the fact that something's about you cannot change, right? You cannot change whether or not you do have eyesight or not. You can make adjustments for it so you don't engage in some activities, you get some additional help, and so you still have to behave reasonably. Not anything goes, but it's kind of, it's a two-way street. We make adjustments for you, but you have to make adjustments in your own behavior, take into account of your own disabilities as well. PUBLIUS: Are there circumstances in which a plaintiff is held entirely responsible for his own injury? For example if he was knowingly and voluntarily engaging in a risky activity? Gregory Dolin: Assumption of risk is a defense available to a defendant, tortfeasor, of course, again, the defendant carries the burden of proof and it basically goes something like this: the reason you, the plaintiff, are injured is because you engaged in a dangerous activity and you voluntarily chose to engage in that dangerous activity. So for example, you know you went ice skating, right? It's wintertime now. DC at some point, well, if doesn't already, have like an ice skate somewhere near our National Gallery of Art, you go ice skating and while ice skating you fall and you break your leg. It would be somewhat weird to complain like, well, you know, the ice is too hard. Well, I'm sorry, but the ice is supposed to be hard. That's what, that's what makes it ice and not water, right? And one of the inherent risks of ice skating is falling because ice is also slippery and breaking your leg, right? So that's the assumption of risk, which is why when you go engage in particular sports and particular activities, you get to sign a whole bunch of waivers, right? So if you go skydiving, they say look, there are chances that, you know, wind might blow and you might get tangled up in a high power lines, right? That's a risk that you assume, right? You might go, you might go diving, you know, scuba diving and say, look, there sometimes are currents and you might get washed into the sea and be lost forever. That's a risk that you assume. So, now of course you don't necessarily assume all risks, so, you know, if you go sky diving. You might assume the risk that, you know, wind will blow. You don't necessarily assume the risk that instead of a backpack with a parachute packed in it accidentally, your instructor will give you a backpack with a, you know, bushel of apples, right? So, but you oftentimes assume the risk that either inherent in the activity such as, you know, that ice is hard. Or again, to go back to the ice skating example, imagine you show up to the ice rink and you see that, you know, maybe the ice rink owner is not actually doing a very good job upkeeping it. And so the ice is slowly melting. And so you have a film of water, right? Making of course, ice more dangerous than usual, right? Nobody owes you to make ice, not ice. So if you wanna go ice skating, you know it's gonna be on a hard surface, right? Nobody owes you to make, you know, ice soft. But the, but if you're running an ice rink as an owner, as an operator, you do owe a duty to maintain it. Suppose you breach that duty and there's this film of water, which makes it more dangerous than otherwise. A person comes in, they see the film of water and say, you know what? What the hell? I'll go skate anyways. I know it. I see it. I appreciate it, but I really wanna skate so much that I'll do it anyways. Right. That's also assumption of risk, right? You see the danger and you choose to voluntarily encounter it. I can tell you sort of the story of my, of my life that I always tell my students. When we were in the process of immigration, when we were living in Italy, my grandmother fell ill and she was, you know, she was taken to a hospital and, you know, we were immigrants. We didn't really have any money and so, we couldn't really afford to go visit my grandmother daily on a bus. And so my dad asked our ask our land lady to let him borrow a bicycle. And so she was gracious enough to give us a bicycle, but she said it doesn't have brakes, so you may need to go like to a local city dump and get, you know, those brake pads. So the bicycle had brake pads, but they were worn down to a nub. So I, at the time was 12. I saw it. I'm like, Hey, new bicycle. And my dad's like don't ride it. It doesn't have functional brakes. But I saw it, I saw it had nubs. I'm like, ah, it's fine. It's gonna be okay. Of course, I rode the bicycle and it, you know, when you, when I rode it like two miles an hour, it was indeed fine and so I increased, increase the speed, finally decided to roll downhill and make a sharp turn to the right, and of course, couldn't stop it because it did not indeed have brakes and ran straight into a wall. Broke my finger, you know, had got no sympathy from my parents because why? I assumed the risk. They told me not to do it. I said, I'll do it. No, I'll do it anyways. Despite the danger, I got hurt by the very danger I chose to voluntarily encounter. That's assumption of risk. PUBLIUS: How do courts handle cases where both parties were both clearly at fault to some degree? Is a case automatically dismissed if the plaintiff contributed to the accident in some way? Gregory Dolin: So traditionally in a world of tort law, any negligence on the part of the plaintiff was a complete bar to recovery. Even if the defendant was 99% negligent and the plaintiff was only 1% negligent. Any contribution to your own injury completely barred recovery. And so that doctrine is known as contributory negligence, not comparative, contributory negligence. And you can think of two justifications for that doctrine. One is that it incentivizes people to be careful about their own health, about their own life, and kind of forces 'em to adjust their own behavior. And number two, you can think of it almost as an echo of the fundamental doctrine of equity that he who comes to court must come with clean hands. If you yourself are not really careful, if you don't care about your own life and health, why should the court care about you? But that potentially creates serious inequities. So even though you've only did very, very little, right, like I said, you are only 1% responsible for what happened to you. While the other side is 99% responsible, you get no compensation at all. And that's, even though it's the other side that ultimately created a greater loss, they completely escape responsibility. And again, that creates a problem both from kind of this moral fairness perspective and also potentially economic perspective. Because you can be pretty careless and still get lucky enough that, you know, if you can manage to prove that the other person was even just a little bit responsible, completely escape responsibility and thus, basically chance that and instead of adjusting your own behavior. So in response to these inequities, courts have begun to develop a doctrine actually adopted in 45 states. The only jurisdictions in US that have not adopted have stuck to the old contributory negligence doctrine are Maryland, DC, Virginia, North Carolina. You can see the pattern and also strangely enough Alabama, right? So it's kind of this, it's mid-Atlantic states and Alabama being the holdout. So most states have adopted in one form or another comparative negligence doctrine. And that doctrine basically says, okay, there was an accident, there was a damage, let's say, of $10,000. Let's figure out who contributed how much to this. Defendant did X, Y, and Z that, and that contributed 80% to that $10,000 loss. The plaintiff also was not super careful, and so he did A, B, and C and he contributed 20% to his own $10,000 loss, so we should compensate him. How much did he lose? He lost $10,000. How much of it was because of his own actions? Well, 20%. That's $2,000. So how much did he get compensated for by the defendant? Eight. Right? So you compare, you don't compare negligence to the perfect world. You compare negligence between the parties. You say who was more and who was less, who contributed more, who contributed less? And each party pays in proportion to their contribution to the final damage. Again, this has been adopted in different forms everywhere. Some states have adopted pure comparative negligence, so even if defendant is only 1% liable and the plaintiff himself is actually 99% at fault, defendant will still pay. He'll only still pay 1%, right? But he will still pay for his own contribution. Some states have adopted the rule saying that the only time defendant will pay is if he contributed more than the plaintiff. Some states have adopted the rule saying that the defendant has to contribute not just more, but have to contribute over 50%. Some states have adopted the rule, for example, you can have one plaintiff, three defendants, right? So let's say the plaintiff contributed 40% and three defendants between them 20% each. So we’re together 60, right? So some states have adopted the rule saying the plaintiff cannot recover unless any given defendant he's suing contributed more than the plaintiff himself. So there's a variety of way that the states have adopted the rule. The, the classical one is the pure comparative negligence where you're just paying proportion to the damage you've caused. And now plaintiff's own actions do not completely bar recovery. They just reduce the recovery based on the amount of fault that the plaintiff himself contributed to the ultimate injury. It, it kind of, it's both the same and different. Contributory negligence is it is the same in the sense that analysis is exactly the same. You are still asking, was the plaintiff careful? If not, like, where did he fail? If he failed, was his failure actually a cause of his injury, right? Because contributory negligence and comparative negligence is analyzed exactly same way as regular run of the mill negligence. Just now we're focusing instead of on the defendant, we're focusing on the plaintiff. So in that sense, they're exactly the same whether you're doing contributory negligence or comparative negligence doctrine. And the only difference in the outcome, if the answer is that the plaintiff contributed in any way to their own injury in a world of contributory negligence. So if you're in DC, Maryland, Virginia, North Carolina, Alabama, you get no recovery. If you happen to be in Delaware, or New York or California, you will get reduced recovery; reduced by the amount of negligence that the plaintiff himself brought forth. 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. 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