passive, and not to take action with his | quiry is not confined to the immediate body.1 This rests upon the ethical individualist spirit of Anglo-Norman tradition, that a person should not meddle in another's affairs, and conversely, that if he remains passive, he will always be safe from responsibility. point of time of the harm; the person's conduct may be traced back through prior events until an exercise of active volition is reached.2 But an active volition at such earlier time may be found to be not culpable on the principle of § 169, post, and then the § 161. For determining whether person is not the legal cause. there has been active volition, the in (1) By an initial request to the other person to act in his behalf in a certain matter or class of matters (Agency); 3 Topic 2. Personal Physical Passivity, with Instigation of Another's Activity § 162. Instigation and Permission. A| person who remains physically passive may nevertheless, by his volition communicated to another person, instigate the other person to initiate a physical activity, and may thus become a legal cause of the other's act as well as if he had himself physically done it. The chief examples are: (2) By encouraging, guiding, or assisting the other person while the other is doing an act begun by the other. (3) But not by merely permitting or declining to obstruct the other person." SUB-TITLE (II): EXCEPTIONS TO THE GENERAL PRINCIPLE The following exceptions to the general principle, sanctioned by experience, make a person responsible for harm caused by his passivity: principle is concerned; but the principle of Culpability (post, § 178) will often exonerate him. § 163. Defective Buildings. A person who is the occupant of a building or land and has such property right as entitles him to repair defects of construction is responsible for harm caused by such a defect, even though he (1) Is a tenant by lease only," (2) or, Is a grantee only," and the defect existed before he became tenant or grantee. (1) In the tenant's case, as well as in the grantee's, he must also at least have had notice of the defect; but this is by virtue of the principle of Culpability, post, §§ 169, 192. (2) The landlord, for harm caused while his tenant is in occupation, might be responsible, so far as the present (3) The case of an ordinary owner, without tenant, who himself erects a building, is one of active causation, and does not need this Exception to account for it. Where he found the building already erected, his case is that of a grantee (Par. 2 of the Exception). Where the defect was in the land, the case is that of the main Exception above. § 164. Nuisance. A person who is the occupant of premises as in § 163 is responsible for harm caused by a nuisance (in the strict sense, ante, § 140) existing on the premises, [even] if he has [not] actively created it.8 Here also he must at least have had notice (post, § 192). § 165. Highways; Municipalities. A municipality is responsible for harm 1 Smith v. Stone, No. 383 (perhaps explainable by § 151); Gibbons v. Pepper, No. 384; Laidlaw v. Sage, No. 385; Anon., No. 386; Ross v. Johnson, No. 387. 2 Vaughan v. Menlove, No. 388. Joel v. Morrison, No. 391. Hamilton v. Hunt, No. 395; Brown v. Perkins, No. 396. 5 Robinson v. Vaughton, No. 394. Johnson v. Glidden, No. 397, is better ex plainable as an Exception (below). 6 R. v. Watts, No. 399; Tarry v. Ashton, No. 400. 7 Penruddock's Case, No. 402; Martin v. R. Co., No. 403. 8 Atty'-Gen'l v. Heatley, No. 401; Hogle v. Mfg. Co., No. 518. Some Courts, unsoundly, are contra. caused by a defect existing in a highway or other public land, even though not a defect actively created by itself, provided the municipality has the legal control of the premises [and has been expressly by statute given the duty to keep them in repair].1 Here also there must at least be notice of the defect and time to act (post, § 198). § 166. Highways; Abutters. A person owning or controlling premises abutting on a highway is responsible for harm caused by a defect existing in the adjacent part of the highway, (1) if he by his own act caused the defect, [(2), or, even though he did not by his act cause it, if by statute he has expressly or impliedly been given the duty to keep the highway in repair.] Some Courts, unsoundly, reject Par. (2); ignoring the consistency of it with other instances of the principle of this exception. Practically, it is more wholesome for the community to recognize Par. (2). Here, also, the abutting owner must be Culpable, under § 198, post. § 167. Sundry Statutory Responsi bilities. A person is responsible for harm caused by his passivity where by statute he has been directed to do the act whose omission has caused the harm, provided the statutory direc tion was (1) expressly or (2) impliedly for the benefit of the class of persons to which the injured person belongs.* This includes the cases of highway(which may also be worked out by a defects (ante, § 165), water-supply contract-principle), municipality's repression of mob-violence, building-owner's fire-escapes, factory-appliances, and a few others; and is capable of wide extension in the future. § 168. Sundry Special Responsibilities. [A person is responsible for harm caused by his passivity where the circumstances make him physically able and morally bound, specially and rather than any other person, to do the act whose omission has caused the harm.] 4 recognized. A family's responsibility This Exception is not yet generally for isolating a disease-infected member is the plainest case. The near future will see much expansion of the principle's application. TITLE C: CULPABLE CAUSATION § 169. General Principle. (1) A person, though he has caused a harm (ante, § 151) and by active exercise of volition (ante, § 160), is not therefore necessarily the legally responsible cause." (2) He is responsible only if at the time of his exercise of volition his position was such that he, instead of the injured person, should in fairness be made to bear the burden of the harmful consequence of his act. (3) He is in such a position if under the circumstances, measured by the mental and moral capacity of the ordi 1 Russell v. Devon, No. 404; Bay, No. 406; Messrs. Elliott, nary adult in that community, he had opportunity of foreseeing and avoiding, by different action, the harmful consequence. § 170. Intent and Negligence. The application of the foregoing principle depends in all cases on the moral measure of the person's foresight. (a) A person incurs this requirement who at the time of his act consciously foresees the certainty of the harmful consequence and expects it to follow his act. The harm is then said to be caused by his Intent. Lyme Regis v. Henley, No. 405; Bloomington v. No. 407. 2 Goddard, Pet'r, No. 408; Toutloff v. Green Bay, No. 410; Chicago v. O'Brien, No. 409. Atkinson v. Waterworks, No. 413; Allegheny Co. v. Gibson, No. 415; Hayes v. R. Co., No. 530. Hill v. Asylum District, No. 416; Pittsfield C. M. Co. v. P. S. Co., No. 417. 5 Gilman v. Noyes, No. 427; Atchison, T. & S. F. R. Co. v. Stanford, No. 429; Fleming v. Beck, No. 428. (b) A person fulfils this requirement of the harm under all the circumstances who at the time of his act consciously as he knew (or ought to have known) foresees a degree of probability of the them when he was about to do the harmful consequence, but does not de- causing act.1 sire nor expect it, and yet, in view of the degree of probability as related to the nature of the harm foreseen, ought morally to have refrained from acting in view of the risk. The harm is then said to be caused by his Negligence. (c) A person fulfils this requirement who at the time of his act did not actually foresee as in Par. (2) but under the circumstances could have foreseen had he reflected. To this also the term Negligence is applied. Where there is Intent, no further legal problem arises under the Causation element. The problems are all concerned with the application of the Negligence principle. In practice, the two cases of Par. (b) and Par. (c) are assimilated; i. e. no inquiry is made, and no legal controversy arises, whether the person did or did not actually foresee the probability; for if he could have foreseen it, the same rule applies to him. Thus, the real opportunity for controversy arises in inquiring whether the harmful consequence was so probable that he ought morally to have refrained from acting in view of the risk of harm. This varying degree of probability is the implication in the terms "remote" and "proximate." The Court, to be sure, seldom expressly uses in the definition the term "morally ought to have refrained." But this idea is always implicit in the word "negligence," as practically understood. Hence, it is better to draw out the idea frankly in the definition. This principle will herein be termed, for brevity, that of Culpable Probability. § 172. Specific Details of Harm not Foreseeable. Where there was no culpable probability of the precise species of harm actually incurred, the person is nevertheless responsible if there was a culpable probability of some other species of the same genus of harm as that which actually was incurred.2 [Harms are related as species of the same genus when they are substantially the same in respect to the conduct which would be required of the causing person for avoiding them.] This is an attempt to state a fair and workable rule which will explain most of the cases. § 173. Judge and Jury. (1) The foregoing principles are applied ordinarily by judge and jury as follows: The judge states the legal principle as § 171. Tests for Negligence. In to culpable probability without ruling phrasing the foregoing principle (§ 170, on the case in hand; the jury then deterpar. (b) and par. (c)), Courts use the mines whether in the case in hand there terms "natural," "probable," "imme- was a culpable probability, by applydiate," "reasonable," "usual," "ordi- ing the legal principle to the facts as nary," and the like, in varying com- found by them. The function of the binations, to express the relation as legal rule is thus divided into, first, viewed from the standpoint of the spe- the abstract rule of law, and secondly, cific harmful consequence; and they the application of that rule to the paruse the terms "proximate" and "re- ticular mass of circumstances by each mote" as viewed from the standpoint successive jury using its own judgment. of the causing act. But all the terms The first is the only part that remains are designed to define, for the jury's as precedent for other cases; the use or their own, the single principle second disappears with the individual above, namely, that the person is re- case and has no concern for future sponsible if, and only if, he ought cases. The question of Negligence is morally to have refrained (or, acted then said (conventionally) to be a differently) in view of the probability | "mixed question of law and fact;" 1 Rigby v. Hewitt, No. 430; Sharp v. Powell, No. 431; and other cases. 2 Smith v. R. Co., No. 432; Brown v. R. Co., No. 434; Hill v. Winsor, No. 433; Walbridge v. Walbridge, No. 435. meaning, that a part of it is left to such circumstances mark the case. each jury to decide.1 (2) But also, and less commonly, the function of the legal rule is not subdivided, but is exercised entirely by the judge. This may be done in two ways: (a) The particular judge may apply the abstract rule to the such particular case's circumstances, as the jury does, but in control over the jury, to prevent a biased or whimsical verdict. The judge in such case does not apply the standard of the abstract rule precisely as the jury does; but considers broadly the possible applications of it, and if by no possible reasonable application of it could the jury reach any but one result, the judge applies the rule to that effect, whether for the plaintiff or for the defendant. Here also the ruling, as with a jury's verdict under par. (1), does not become a precedent but disappears with each individual case.2 Such a concrete rule is therefore valid as a precedent for other like cases.3 The law of Negligence, for the purpose of the practitioner in general, consists (other than the general and abstract rule of par. (1)) only in such concrete rules as have been laid down for specific classes of situations. These rules may be rules applying the abstract principle either to charge or to absolve the causing person; i. e. the rules may declare that a specific harm, caused in specific circumstances by a specific act, in law is not culpably probable, or in law is culpably probable. The former class of rule is commonly said to be a rule as to Remoteness of Damage. It will here be so termed. The latter class of rule is commonly said to be a rule as to Negligence per se; or a rule that the person Acted at Peril (i. e. must bear the consequences of the risk which he took in acting); or a rule of Absolute Liability. It will here be termed a rule of Proximateness of Damage, so as to correlate with the other term. (b) Or, the law may develop the abstract rule to a concrete detailed rule governing certain combinations of circumstances frequently recurring, and this concrete rule, binding for all judges, controls both the particular judge and the particular jury whenever examined. A few such typical rules will now be SUB-TITLE (II): SUNDRY RULINGS DECLARING REMOTENESS AS MATTER OF LAW IN SPECIFIC CIRCUMSTANCES The following rules are, or may be, | probably have occurred but for another made more detailed by judicial rul- cause also, consisting in an act or conings on various detailed circumstances: dition of the injured person, not itself culpably probable." § 174. Intervening Event or Force of Inanimate Nature. A harmful conse(1) Where the intervening cause is quence may be too remote to be cula physical condition of the injured pably probable when it could not person, the result will usually turn on probably have occurred but for an- whether it was or could have been other cause also, consisting in an ex-known to the defendant. In such traordinary force, event, or condition of inanimate nature, not itself culpably probable.4 § 175. Intervening Act or Condition of the Injured Person himself. A harmful consequence may be too remote to be culpably probable when it would not 1 Fent v. R. Co., No. 442; cases, the doctrine of generic harm (details not foreseeable, ante, § 171) also plays an important part. the injured person's act of effort to (2) Where the intervening cause is save himself, the defence of contribu tory negligence (post, Tit. A, Book III) raises also a question, and must be Haverly v. R. Co., No. 444. 2 Bridges v. R. Co., No. 439; Wabash R. Co. v. Brown, No. 440. 3 Justice Holmes, No. 437; Mr. Terry, No. 438; Pennsylvania R. Co. v. Kerr, No. 441. Sharp v. Powell, No. 446; Haverly v. R. Co., No. 447. Dickson v. Hollister, No. 448; Green v. Shoemaker, No. 449. considered; but the two principles | is not to be judged by a principle of would usually give identical results. mechanical causation. (3) Where the intervening cause is the injured person's fright, producing nervous illness, the doctrine of Corporal Harm (ante, § 15), if it denies recognition to such damage, will prevent any recovery; otherwise, the present principle controls. § 178. Third Person as Intermediate Lessee. The owner of premises, who would otherwise be responsible, under the rules of § 163, ante, and § 192, post, for a harm caused by a defective condition of the premises, is not responsible § 176. Third Person's Act, Induced if before the time of the injury the by the Defendant's Act. A harmful con-premises have by lease been transsequence may be too remote to be ferred to the occupation of a third culpably probable when it would not person; unless probably have happened but for another cause also, consisting in a third person's act induced by the defendant's act, but so whimsical as not to be culpably probable.1 The precedents here show a singular inconsistency, most of them being too strict in favor of the defendant. The rule itself presents no inherent difficulties. § 177. Third Person's Act, Intervening Independently. A harmful consequence may be too remote to be culpably probable when it would not probably have happened but for another cause also, consisting in a third person's act originating independently, and not in itself culpably probable.2 [Such a consequence is always too remote when the third person's act was criminal or malicious.]3 (1) the defect already existed at the time of making or of renewing the lease; 5 (2) or, the defect consisted in a construction which was adapted to the dangerous use that caused the harm and was so used by the tenant though not by the owner during his occupancy; 6 (3) or, the defect arose during the tenant's occupation, but was under the lease within the legal power and duty of the owner to repair, and was or could have been known to him in season to repair." For the tenant's responsibility, see ante, § 163, and post, § 192. 8 179. Third Person as Intermediate Bailee. The owner of a chattel is not responsible for a harm caused by its defective condition, if before the time of the injury it has been by bailment transferred to the possession of a third person; unless The bracketed clause is of course quite unsound, both on principle and practically. Its favor with some Courts is due solely to the fallacious the defect already existed during metaphor of mechanics (originating in the owner's possession and was one Mr. Wharton's treatise) that the third for which he would then have been person's act "breaks the chain of responsible, and the chattel (a) was causation." The metaphor expresses not in the bailee's legal right to repair, the precise opposite of what occurs, even from the standpoint of mechanor (b) was not long enough in the ics; but in any event, moral causation bailee's possession for the defect to be discovered and repaired." 1 Ashley v. Harrison, No. 450; Tarleton v. McGawley, No. 451; Lynch v. Knight, No. 452; Guille v. Swan, No. 453; Lamb v. Stone, No. 454; Hastings v. Stetson, No. 455; Southern Transp. Co. v. Harper, No. 456. 2 Lynch v. Nurdin, No. 458; Lane v. Atlantic Works, No. 460; Stone v. R. Co., No. 461. 3 Currier v. McKee, No. 462. 4 No. 460. 5 Rich v. Basterfield, No. 464. Rich v. Rasterfield, No. 464; Clifford v. Mills, No. 465. 7 Payne v. Rogers, No. 463; Clifford v. Mills, No. 465. 8 Glynn v. R. Co., No. 465. |