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, we've heard about different types of tort law before, but could you explain why negligence seems to be such a central concept in civil litigation? What exactly is negligence and has it always been this important historically? Gregory Dolin: Negligence is probably what takes up most of the study of tort law. And it simply is failure to act as a reasonable person would under the like circumstances or failure to live up to your duty of care. And, what makes negligence interesting to study is that, once again, it's easy to say what it is, but precisely because human affairs are so varied and situations which might arise are so unusual, or, or usual, right? So you can have all sorts of things that happen all the time or things that are entirely new, but there's just huge variability in human lives. And, in each of those situations, the question is always the same: what would a reasonable person do under like circumstances? And, it becomes an interesting question to answer as to, well, how does a person act under new circumstances? What circumstances matter? Do we look at, do we look at a person's individual circumstances, his own abilities, et cetera. But at the end of the day, negligence is failure to be reasonable. Negligence is probably one of the newer doctrines in tort law. It used to be that generally speaking, if you caused harm, you paid for things. And so it used to be tort law was more similar to strict liability. Kind of you did something or your animal did something, and so you paid for it. But, especially as technology developed when sort of the world became less simple than it was in, say, the Middle Ages, judges began to understand, although this is I guess pre formal law and economics movement, but they begin to understand that, if we make people pay for the damage they caused, even though they were as careful as they possibly could be, that actually this would disincentivize adoption of otherwise useful technologies. So, Losee versus Buchanan, kind of these boiler cases, was one of those situations where, the person who operated the boiler did so with all due care. This was actually undisputed in the case, and yet the boiler explodes. Why? Because, you know, while boilers were new at the time and sometimes they exploded, and so the judges had to decide whether a better outcome overall would be where people who operate boilers will pay for any damage that boilers cause, which in some senses seems kind of fair. But in the other sense, in terms of incentives being created, some people will not adopt boilers because they may not have the money to pay for any damage that those boilers cause. And so they would rather be safe than sorry. And what kind of society would that result in? Less hot water, less ability to accomplish your tasks. And so the judge decided that for the sake of overall improvement in society for the sake of this technological advancement, it makes sense to impose liability only where a person is acting unreasonably, and is not taking due care. And so then imposing liability was, would incentivize him to, to take that care. Whereas imposing liability no matter what, would, perhaps be too much of a disincentive to adopt new technology. And so I think that's how negligence came to be. It's as society became more complex, the idea that we, in order to encourage further improvement, you need to perhaps dial back a little bit the possibility of liability. Negligence has only four factors, and it's something that I make my students memorize and oftentimes repeat back to me until they're sick of it. And the four factors are duty, breach, causation, and damages. Meaning that first element that a plaintiff alleging the defendant was negligent, to establish the defendant had some duty to that person, that there was some sort of legal relationship. So for example, it could be a spousal relationship. It could be because you were in some sort of contractual relationship. It could be because a defendant undertook something, right? PUBLIUS: Can you give some concrete examples of why you need all four factors – duty, breach, causation, and damages? Gregory Dolin: So for example, you're both drivers on the road. You have a legal relationship to your fellow drivers, not to, say, get into their lane, not to, you know, basically like run 'em off the road, et cetera. So they have some sort of duty, right? Usually the duty is to behave reasonably once that relationship exists. Factor number two, that duty was breached, that you didn't behave reasonably, right? That's for some reason or another you failed. Number three, that not only did you fail, in, in your duty, but that failure was a cause of something. So again, for example, imagine you, you go to a bar, you get into a car, you drive home drunk. You certainly have a duty not to be drunk on the road. You get into behind the wheel drunk, you've breached that duty. But imagine that you are lucky and nothing bad happened, right? So your behavior was not a cause of any damage. Again, the state might have its own say and arrest you for driving drunk, but there is no private party that you've injured, so no negligence. So there must be causation, and then there must be damages. So I think most of us have been in a situation, for example, where somebody rear ends you, but it's actually a light tap. You get out of the car, you see there's no scratches, your neck doesn't hurt, et cetera. So, does the person have a, did they have a duty to keep a safe distance? Yes. They breached the duty. Well, obviously because they ran into your car, was there, was their breach a cause of the collision? Yes. But were there any damages and the answer? And if the answer is no, then your case for negligence fails. Right, whereas, which is different by the way, from intentional torts, where, damages, any sort of physical damages are not necessary. It's enough that your protected interest had been invaded. So, if I, for example, go around and flick your nose, don't break anything, don't, you know, don't cause a nose bleed, don't do anything. It's just basically nothing happened. Nevertheless, I'm still liable for battery because I just shouldn't be doing that. Right? It affects your dignity, affects your sense of self, your bodily security. So even if you can't show me that there's, you know, you have to go to a hospital or whatever, but for negligence you must actually show there was some sort of damage. Doesn’t have to be huge, but there's gotta be something before liability is imposed. So let's talk about a case. It's an interesting case. It's a somewhat controversial case. Not all states follow the rules laid down in this case. I sometimes tend to teach it towards the end of the semester, but we can look at it because it's, it's a fairly rich case and we can see kind of all the elements of that case presented in it. And the case is known as Tarasoff versus Regents of University of California. So in Tarasoff, it’s a tragic case actually. So it's not one of those where I tend to make, you know, jokes about it. It's actually a tragic case. So in Tarasoff, you had a student at the University of California who came to a school psychologist and confided in the psychologist that he had homicidal ideations, homicidal thoughts, about murdering another fellow student at the university, Miss Tarasoff. The psychiatrist sort of listened to the story, she actually, she alerted the campus police who briefly detained the, the male student, but ultimately judged that he was not that much of a danger and let him go. The psychiatrist never notified Miss Tarasoff herself, so Miss Tarasoff could not have, you know, had she known perhaps of this, she could have sought shelter, she could have, you know, maybe went to stay with her parents or whatever else. But, instead, kind of that psychiatrist kept the conversation confidential. And once the male student was released from, you know, brief detention by the university police, he did in fact follow through on his threat. And he did murder Miss Tarasoff. And her family, her estate brought a damage suit against the University of California. So, like I said, a tragic case. But looking at this case, you can look at all four elements. So the first question that became: did the psychiatrist owe a duty to Miss Tarasoff? So, and that, that became a very multilayered question. So first the question became, what would a reasonable psychiatrist do? Would a reasonable psychiatrist keep confidences? And there's certainly good arguments to be made for that. Or would the reasonable psychiatrist, given the fact that now they know, not just generally that this person, you know, that who is in their office is unstable, but as specific threats against a specific individual, would they inform that individual? The second question became, even if a reasonable psychiatrist wouldn't inform somebody like Miss Tarasoff, did the psychiatrist have any sort of legal relationship to Miss Tarasoff? Miss Tarasoff was not her patient, unlike the, the person who came to her. It's easy to say that a doctor has a duty to the patient, right? You have some sort of contractual relationship. A person comes seeking specifically your advice. You are telling him something. You're performing some sort of surgery, you're giving him some medication, whatever it is. But that was the second question. Is there sufficient legal relation between a psychiatrist and somebody who is not her patient? Then the third question was, is the failure to inform, was that, so, you know, causation and duty are oftentimes, you know, they're linked together. So if the reasonable doctor would've informed and this one didn't, right? That would be a breach of duty. Then the question is causation, right? Would the situation be different? Would the case come out differently, had information been provided? And maybe the answer is yes, and maybe the answer is no. For example, if Miss Tarasoff has nowhere else to go, if maybe she would've blown off the, you know, the warning, we don't know. So, but that's the question of causation. And again, in this case, damages are easy, but you can see how it's easy to say, look, all we care about is we want to ensure that the psychiatrist behaves reasonably. But what's reasonable may be a very complicated question. Again, is it reasonable to inform or is it reasonable to keep confidences? And you know, there's good arguments for both, which is why I said it's a controversial case, and states have kind of split. Not all states have adopted it. In California actually adopted the rule that psychiatrists had to inform and held the University of California liable. But not all states have adopted that. PUBLIUS: A case like this seems like an incredibly complex ethical dilemma. How do courts determine whether the reasonableness standard is met? Does a perfectly reasonable person actually exist? Gregory Dolin: In order to determine whether or not a particular action is reasonable or unreasonable, courts engage in what’s called a risk calculus analysis. So in layman's terms, it basically is how likely is a bad thing to happen if you don't take a particular precaution, and how bad is it gonna be. This is known as the Hand Formula. It's named after a judge, Learned Hand, on the Second Circuit, by the way, is a great name for a judge. It's, you know, his parents obviously the vision of what he's going to be to name their son Learned Hand. But the formula goes something like this. Although most students go to law school to avoid math, this is not that complicated. On one side, we figure out how much will it cost to add the extra protection, so how much would it cost, for example, to install airbags in all cars? How much would it cost? Okay, now we have airbags. How much would it cost to also have passenger side airbags? Okay, now we have that. How much would it cost to also fit all the cars with side airbags? Basically, what would be the cost of this additional level of protection, on one hand? On the other side of the equation is, okay, let's suppose we don't do that. We don't have airbags, we don't have, or we do have one airbag, but not passenger side airbags, right? Whatever extra protection we think ought to be done, we say, okay, let's assume it's not done. What's the worst that could happen? Right? And what's the likelihood of that happening? Oh, you can say, look, the worst that could happen is gonna be the person who is not protected by the airbag will die. And I'll say, okay, sure, but how likely that given the fact that we already have cars that are built fairly safe, that they're wearing a seatbelt, et cetera, et cetera, what is, even in an accident, what's the likelihood of death? Times, you know, how severe the damage will be. Is it gonna be death, is it gonna be, you know, broken legs? They're gonna be, you know, paralyzation, whatever it is. And that was to figure out. Again, on one hand, how much will it cost to actually adopt this safety feature? On the other hand, how much will it cost us as society not to adopt it? How many people will die? Excess people? How many people will die? Because you know, some people will die even with airbags, some accidents will be that bad. What will be the excess death or the excess injuries, et cetera, and how likely they would be, and if, for example, if we could say, look, by adopting airbags, we're gonna save one life a year, but we have to retrofit millions of cars with airbags. It's probably not worth doing it. Those resources are better spent potentially, say, taking care of that poor person who dies, like their children or their family, et cetera, paying for their funeral. On the other hand, if we're saving a million lives a year, right, maybe it makes sense to adopt the airbags because it's cheaper, and I don't just mean dollars and cents, it's cheaper in terms of our societal resources to adopt the airbags rather than deal with the consequences of injuries without airbags. Standard for reasonableness in torts is a somewhat problematic concept because oftentimes people want to take a shortcut and say, well, it's what an average person would do. But actually turns out it's not because, maybe what the average person currently does is unreasonable, right? Maybe, for example, in an industry they're trying to, the entire industry is trying to cut corners, right? So it's actually not what's reasonable, what necessarily is reasonable, maybe it's what's often done right? Maybe what is generally done, but again, maybe, we are doing things wrong overall. So because we have not adopted new modes of behavior to evolving, to the evolving world. It's also kind of problematic because a reasonable person is this sort of annoying creature. Because none of us are actually that person because a reasonable person in tort law is reasonable all the time. They're reasonable. When they're angry, they're reasonable. When they just woke up, they're reasonable; when they pulled an all-nighter, they're reasonable; when they had to take care of a screaming child. They're always reasonable. Like literally no person in the history of the world has ever existed, who was like that. Yet when in a world of tort law and we try to put the world right and try to compensate for damage, we demand that you be reasonable at all times. So in that sense, it's very difficult to actually imagine a real person who is like that. So it's always a hypothetical and annoying creature because he never fails to be reasonable. But how do you judge that standard? You do look at things, well, what does this industry do like, so you know, for example, if I'm a judge or a juror and somebody asks me what's the right way to do this particular surgery? Or how do you read this ekg? I'm like, I don't know. I'm not an expert. Or even at basic things. So I always ask my students, how many of you have ever stacked hay? Forget about doing heart surgery. How many of you have ever stacked hay? And you know, usually I'll have one or two people. And and I ask him, well, if you were a judge or a jury having to figure out whether or not, this person, the defendant, Vaughan versus Menlove, stacked hay right or wrong, how would you know if you've never done it yourself? And ultimately the answer is like, we ask experts, we look at books. We, you know, kind of just like we prove most anything else in the world. So, it is important to remember that as Justice Holmes once wrote, the standard is still that of a reasonable person, and that which is usually done is good evidence of what ought to be done right? Because again, those are the people who are experts to those people who know. So what is evidence of what ought to be done? But ultimately what ought to be done is a question of law reserved for judges, who will rely on things like calculus of risk, doesn't mean they always get it right. PUBLIUS: Can you give us an example of a case where the “reasonable person” test and the risk calculus were at odds? Gregory Dolin: Let me sort of tell you about this one case, that I teach and students seem to like the outcome until we start talking about the cost. And so this is a case that came up from Washington in the 1970s, where a woman, she starts going to her ophthalmologist, she’s complaining about vision problems. And, you know, he treated her for 10 or 12 years and can't quite figure out what's wrong with it. And there's no allegation that he does anything what his specialty tells him not to do or vice versa. He never tests her for glaucoma because she's very young. She comes, she starts seeing him, when she's in her twenties. And at the time, all the ophthalmology textbooks, all the ophthalmology studies basically tell 'em like, do not test people for glaucoma who are under 40 years of age, because the chance of A finding it are infinitesimally small. And even if you do get a positive result, the chance of you're getting false positive is 96%. So out of every a hundred tests you do that are positive, 96 of them are actually wrong. So don't do it. It's, it's not useful. Unfortunately, she is one of that tiny, tiny minority of people under 40 who had glaucoma. It was never tested until, you know, 10 or 12 years into the treatment. And by the time it was tested, it was not quite too late, but late enough that she has lost significant amount of vision that she was never gonna get back. And the question was, is the doctor, was he negligent? Did he fail to behave like a reasonable physician? And doctor says, of course not. Look at all the textbooks. Look at my professors who taught me, look at what they teach at ophthalmology residency. And the court said, that's nice, but the test is cheap. It's easy, it's not invasive. You should have done it even for somebody who was under 40, It's a case that's roundly criticized, because you know, there's no real good basis for it as to determining what's reasonable. But it does illustrate the principle even if the outcome is incorrect. It does illustrate the principle that in determining what ought to be done is ultimately the question for the court that they can look at calculus of risk, they can look what other people are doing, et cetera, but it's ultimately finally a question of law for the court. PUBLIUS: What is the concept of Res Ipsa Loquitur and how does it factor into tort cases? Gregory Dolin: Res Ipsa Loqitur is a fun doctrine. It literally translates as “the thing speaks for itself”. But as I always ask my students, tongue-in-cheek it's like, if it speaks for itself, why does it do so in a foreign language? Why can't it tell us what it speaks? Um, Res Ipsa Loquitur is a, essentially a rule of evidence. And so the classic case for res ipsa is called Byrne versus Boadle. It's an English case. We take it, remembering that there is a real person who's getting injured, but it seems like kind of one of those funny cases where our plaintiff just walks around on the streets, in England, merry old England, and just looks up and out of nowhere a barrel of flour falls on his head out of a shop that's on the second story of this building that sells flour and injures our plaintiff. Plaintiff sues the shop owner and he says, look I have damages, and you have a duty to keep your flour safe because a reasonable shopkeep would not allow barrels to roll around on his, you know, shop floor. But what he's failing to show is that it's like, but I don't know what happened because, you know, I was all the way down on the street. I was not in the shop. And the shop owner said like, well then how do you know that I breached my duty? For all you know, maybe it's a customer who mishandled the barrel of flour. Maybe it's somebody who kicked the flour. You know, maybe it was secure, but somebody actually came there with a knife and cut the line, and that's how it fell out. How do you know I wasn't acting reasonably? You failed to show that I breached my duty. Yeah, I agree. I have a duty to secure my flour. You have no evidence that I breached my duty. And the court says, the fact that the flour barrel fell out of a second story window kind of speaks for itself. It said, what do we know from our everyday human experience? We know that things generally don't fall out of second story windows unless somebody either throws them or is not careful about securing them. So if things fall out, somebody somewhere screwed up. Okay? And now the only question is, well, who knows better? Who screwed up is it the shop owner and his employees or is it the guy, poor guy who was down there on the street and the court said, well, obviously the person who's in control of the flour knows better. They can explain what happened. And to the extent they can't explain, we are okay saying that it's their fault because after all it's their shop, they're in control. Now again, is it possible that, for example, at that very moment, a bunch of, you know, hooligans broke into the shop and started throwing things out on the street. Of course it's possible. Does it make a shop owner liable? Of course not. And so we're willing to listen to explanations that it's really not his fault that he was not unreasonable. But Res Ipsa says as a default, absent that explanation, the thing speaks for itself. The fact that barrel flour fell out of a second story window speaks for itself, that somebody screwed up and who's the most likely to have screwed up? The person who owns the shop. Thank you for listening to this episode of the No. 86 Lecture series on Tort Law. 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