What Is a Tort?(harvardlawreview.org)
harvardlawreview.org
What Is a Tort?
https://harvardlawreview.org/print/vol-139/what-is-a-tort/
33 comments
For anyone wondering, she (plaintiff) won at a jury trial and an appeal, but the railroad appealed again and ultimately won as the judges determined tort requires a breach of a duty of care to the individual harmed and the consequence of the guard's actions was not foreseeable.
I wonder if she'd have had better luck against the guy who dangerously hopped the train while carrying explosive material. Or in the post-911 world where society seems to have normalized a more paranoid level of expectations around security.
"The scales startled a sleeping cat inside the station. The cat lept in alarm, claws bared, and clung to a length of cord. Suspended by the cord was a small anvil, dangling above a board balanced atop a saw horse. Frayed from the cat's claws, the cord severed, and the anvil plunged towards one end of the board. On the other end of that board was a marble..."
Now when the bricks had fallen from the barrel to the floor
I then outweighed the barrel and I started down once more
I clung on tightly to the rope, and sped toward the ground --
And landed on the broken bricks a-lying all around.
I lay there groaning on the ground and thought I'd passed the worst
When the barrel hit the pulley wheel, and then the bottom burst
A shower of bricks came down on me, 'twas then I gave up hope
And lying there upon the ground, I let go the bloody rope.
[...]
I then outweighed the barrel and I started down once more
I clung on tightly to the rope, and sped toward the ground --
And landed on the broken bricks a-lying all around.
I lay there groaning on the ground and thought I'd passed the worst
When the barrel hit the pulley wheel, and then the bottom burst
A shower of bricks came down on me, 'twas then I gave up hope
And lying there upon the ground, I let go the bloody rope.
[...]
Sue the enthusiastic butterfly in 2004
This comment brought me back in time 40+ years to a Saturday morning perched in front of our TV. Thank you.
Given the mention of Rockaway this sounds like a story that Richard Feynman would tell about how his wife.
So that's what counts as good legal writing, huh?
I see a lot of extraneous detail (e.g. "bound for another place", "a package of small size, about fifteen inches long, and was covered by a newspaper"). The sentence "The fireworks when they fell exploded" is clunky.
It's also missing the critical detail of who she is suing. The point of the story is to explain how she got injured, but gives no idea who is actually involved. The guards? The other man who got on the train and vanished from the story? (Turns out it's the railroad company, who is not mentioned in the story at all.)
Wikipedia summarizes the relevant facts in one sentence:
Two men attempted to board the train before [the plaintiff's]; one (aided by railroad employees) dropped a package that exploded, causing a large coin-operated scale on the platform to hit her.
Incidentally, can you set off fireworks just by dropping them? That sounds unlikely to me.
I see a lot of extraneous detail (e.g. "bound for another place", "a package of small size, about fifteen inches long, and was covered by a newspaper"). The sentence "The fireworks when they fell exploded" is clunky.
It's also missing the critical detail of who she is suing. The point of the story is to explain how she got injured, but gives no idea who is actually involved. The guards? The other man who got on the train and vanished from the story? (Turns out it's the railroad company, who is not mentioned in the story at all.)
Wikipedia summarizes the relevant facts in one sentence:
Two men attempted to board the train before [the plaintiff's]; one (aided by railroad employees) dropped a package that exploded, causing a large coin-operated scale on the platform to hit her.
Incidentally, can you set off fireworks just by dropping them? That sounds unlikely to me.
There's a bit of advocacy involved here-- the writer is trying to convince you that the sequence of events was so absurd as to be not "foreseeable". Other than that, I agree with you that it's a bit verbose; it's just how a lot of these judgments were written back then.
Court decisions are often prosaic, even flowery; brevity is not the primary (or at least, certainly not the sole) metric by which they are judged.
That said, I don't really see what is special about the quoted passage either. I have read many decisions and this seems pretty standard for a recounting of the basic facts.
That said, I don't really see what is special about the quoted passage either. I have read many decisions and this seems pretty standard for a recounting of the basic facts.
> Incidentally, can you set off fireworks just by dropping them? That sounds unlikely to me.
I understand there is speculation that Cardozo downplayed a suspicion that these were some kind of domestic terrorists carrying actual explosives.
I understand there is speculation that Cardozo downplayed a suspicion that these were some kind of domestic terrorists carrying actual explosives.
> story? (Turns out it's the railroad company, who is not mentioned in the story at all.)
Palsgraf v. LIRR, it’s right there in the caption.
Palsgraf v. LIRR, it’s right there in the caption.
It's in the caption but there's no indication of how they fit into the story. If this is a recounting of the facts of the matter, I'd expect LIRR to say "there is no suggestion that we were involved at all".
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The methodology here is interesting.
I'm looking at this exercise in exploring hypothetical situations as like throwing fuzz tests at the law, and using the results to correct the "code" (either legal code or how to interpret the common law, depending on how your juristiction functions). I can't say it's a bad approach for "engineering" a good system.
I'm looking at this exercise in exploring hypothetical situations as like throwing fuzz tests at the law, and using the results to correct the "code" (either legal code or how to interpret the common law, depending on how your juristiction functions). I can't say it's a bad approach for "engineering" a good system.
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> distributing the costs of accidents to those who can best bear them
wtf? I thought it was the entity/entities responsible for the accident?
wtf? I thought it was the entity/entities responsible for the accident?
Yes, that's the general rule.
You then get lots of interesting exceptions and difficulties in applying that rule: who pays when you have multiple potential defendants (but some of them have died or gone out of business or are in a different jurisdiction), or there are fiddly causation issues, or the defendant is an organisation that's vicariously liable for their employee/contractor/authorised religious leader/any number of other relationships, or there's insurance involved, or there's some third party interest, or the purportedly tortious act was mandated by some law or other obligation, or the government decides to set up some kind of alternative process of compensation which may or may not indemnify the tortfeasor, and so on and so on.
When dealing with the not-so-straightforward cases, appellate courts do look at questions like "is this a fair and equitable distribution of the cost?" and legal scholars compare the pros and cons of tort liability to other mechanisms (compensation by the government, industry self-regulation, no-fault/strict liability, mandatory insurance etc).
You then get lots of interesting exceptions and difficulties in applying that rule: who pays when you have multiple potential defendants (but some of them have died or gone out of business or are in a different jurisdiction), or there are fiddly causation issues, or the defendant is an organisation that's vicariously liable for their employee/contractor/authorised religious leader/any number of other relationships, or there's insurance involved, or there's some third party interest, or the purportedly tortious act was mandated by some law or other obligation, or the government decides to set up some kind of alternative process of compensation which may or may not indemnify the tortfeasor, and so on and so on.
When dealing with the not-so-straightforward cases, appellate courts do look at questions like "is this a fair and equitable distribution of the cost?" and legal scholars compare the pros and cons of tort liability to other mechanisms (compensation by the government, industry self-regulation, no-fault/strict liability, mandatory insurance etc).
An Irish lady of easy virtue.
A baby tortoise.
What the teacher did.
A tort is a harm done to a person. Generally, this word is only used in civil legal proceedings.
Because it can be a fuzzy concept, books and (non-criminal & non-constitutional) courses on law (at least in the US) will spend a lot of time on torts.
Because it can be a fuzzy concept, books and (non-criminal & non-constitutional) courses on law (at least in the US) will spend a lot of time on torts.
Not to be confused with a torte, which only harms your waistline.
Thank you. I had read a few pages of the linked article and was disappointed that it contained no legible definition of the term.
> What Is a Tort?
My brain always starts with the assumption that it's some sort of British pastry, and takes a minute to adjust.
My brain always starts with the assumption that it's some sort of British pastry, and takes a minute to adjust.
A torte is (according the Wikipedia):
> a rich, usually multilayered, cake that is filled with whipped cream, buttercreams, mousses, jams, or fruit
So you could be excused
> a rich, usually multilayered, cake that is filled with whipped cream, buttercreams, mousses, jams, or fruit
So you could be excused
> Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues.