The case -- Kelly v. Kroger Co., 484 F.2d 1362 (10th Cir. 1973) -- is from the 1970s, but it continues to be cited, and its logic is consistent with the logic of other recent negligent provocation arguments, so I thought I'd pass it along:
[D]ecedent was a customer in defendant’s store in Kansas City, Kansas, when a holdup took place. The robbers entered the front of the store with guns, took money from the checkout stands, and then ordered the store manager to open the safe in his office. The opening of the safe caused an alarm to sound at the Kansas City police department, but not at the store.
Several police officers responded immediately to their alarm, and when they entered the front door, the robber ran to the rear part of the store. The police fired a shot at one of the robbers at this time in the store. The decedent was in the rear of the store, and a robber seized her as a hostage or a shield. As the robber left the store at the front, he forced her with him up the street a block or so as he attempted to escape. The police followed and the robber then shot and killed the decedent. The police then shot at the robber as he ran some distance, and captured him.
The attempted robbery took place about 1:30 in the afternoon. During the course of the robbery, the store employees did not sound any other alarm nor attempt to direct or assist the police. This store had been robbed about a month before. Some fourteen robberies of grocery stores in the northeastern part of the city, where the store here concerned is located, had taken place in the prior eighteen-month period. An armed guard had been stationed in this store from time to time.
The complaint is based on the theory that the defendant was negligent in store procedure it had adopted to be followed during the course of such a robbery. The negligence alleged is thus the action taken once the holdup was in progress. The allegations are directed particularly to the silent alarm attached to the store safe....
The trial court, in granting summary judgment for the defendant, held in effect that no negligence was stated in the allegations, and even had there been it could not have been the proximate cause of the injury because the consequences could not reasonably have been foreseen....
The standard of care owed to business invitees [under Kansas law] is ... one of “due care to keep the premises reasonably safe” for their use, but the proprietor is not an insurer of their safety.... The defendant had issued a pamphlet to its employees telling them what to do in the event of a holdup. The particular emphasis in the pamphlet was to do nothing to excite or startle the robbers. It stated in part that many robberies are by young persons who might start shooting if something unexpected should happen. The employees were warned particularly not to give any verbal alarm in the street because this would greatly increase the probability of injury. Thus the plaintiff asserts that the triggering of the silent alarm was not in accordance with the instructions given employees, was not a prudent act, and did not show an exercise of due care for the safety of the customers....
[Under Kansas law, it] is perhaps an aspect of “foreseeability,” not so much that a particular incident may occur, but once one is in progress, when the danger to the customer is evident. Thus under this standard if there is an opportunity to comprehend the danger, negligence can then become a jury question.... The same theory is advanced by the plaintiff in his complaint, that is, that the danger to customers and employees of the store during the course of the robbery was apparent, and that the wrong action was taken — action which served to increase the hazard and which in fact caused the injury. Under this theory of the case, the granting of summary judgment was error.
Note that this is not a case claiming that it was negligent not to hire a security guard, or that the security guard was negligent in reacting too aggressively to the robbers, or even that a store employee was negligent in refusing to hand over the money to the robbers (a highly problematic theory, in my view, but I set it aside here). The theory of liability is simply that it was negligent to trigger a silent alarm that called the police.
That the store manager should have told the robbers "sorry, I can't open the safe for you?"
Or that the safe shouldn't have had an alarm on it?
the danger to customers and employees of the store during the course of the robbery was apparent, and that the wrong action was taken
Leaving aside the question of whether the court's theory is reasonable or valid, it simply doesn't apply to the facts of the case anyway. The theory is that negligence can attach to decisions made in the moment based on currently-evolving circumstances, but the decision to install an alarm on the safe was not made while the burglars were there.
It seems to me that this opinion snippet is even more problematic than those cases. It seems that it is alleged:
1) Defendant told employees not to excite or alarm robbers.
2) Defendant placed a silent alarm on the safe in the office.
3) Store manager was told by robbers to open safe he did so, triggering the alarm.
4) Store manager was negligent (and hence business) for triggering alarm.
It seems then the question is then referred to trial, suggesting that one should question whether the store manager should have given the robbers money that was in the safe, should have disarmed the alarm first (possibly located elsewhere, causing the robbers much concern), or whether he acted appropriately.
It seems to me that this sets the bar EXTREMELY low to liability. Fortunately, I can't imagine any jury saying "Sure! Don't cooperate with armed robbers" or even "Tell them you have to disarm the alarm first!" So I can't really understand why summary judgement couldn't be given. Even accepting all the facts alleged by the plaintiff, I have a hard time imagining a rational juror faulting the manager for doing exactly what the robbers told him to do at gunpoint.
[Whoops, sorry, added it. -EV]
The store can always call the police after the robbery, but here they chose to adopt a policy which alerted the police during a robbery, obviously in hopes of preventing the robbery's successful completion. I might not agree with the theory, but a plaintiff can certainly argue that it was unreasonable for the store to value its money above the safety of its customers. Again I ask - what principle exists in the common law to allow the judge to take this question away from the jury?
This is a case where beyond question, any liability belongs to the criminals and perhaps arguably to the police. It is inconceivable to me that any liability could attach to the business.
Arguing that the installation of the silent alarm could be negligent is especially absurd. I could see it if the alarm alerted the criminals.
Based upon what? The opinion states: "The complaint is based on the theory that the defendant was negligent in store procedure it had adopted to be followed during the course of such a robbery." The silent alarm is obviously part of the procedure the store had adopted.
If you want to argue that look, the store had no choice because it had to either trigger the alarm or refuse to open the safe, I have no problem with that argument. But it should be made to the jury.
Why? It is certainly foreseeable that alerting the police while a robbery is still in progress could lead to a situation that is dangerous for store employees and customers.
Again, I ask if there's some established common-law principle that a shopkeeper has a privilege to summon the police even if it might expose his customers to danger. I'm wondering where all the people are who show up in the constitutional law threads to insist that judges shouldn't just make the law up.
But then plaintiff would need to prove defendant's state-of-mind, a difficult task. The store owner/manager can reasonably argue that he installed the alarm to help bring justice to any would-be robbers and that the deterrence effect of this would make his store (and other stores) safer overall because fewer robberies would be attempted.
Intervention of third party's criminal actions might, as a matter of law, preclude liability. Also if the liability would stem from the store's communication to the police, then the First Amendment might preclude such liability. The store owner certainly has the right to inform the police that his store is being robbed, so any legal rule that imposes liability for exercising this right would infringe the store owner's rights.
So what? A person should only be liable for damages inflicted by his own actions, not for the criminal actions of unrelated third parties, even if said criminal actions are made more likely by the first party's lawful and justifiable actions. E.g., suppose someone draws a cartoon of Muhammad that provokes a bunch of Muslim extremists go berserk and starting killing people. The cartoonist is not liable for negligence, because the responsibility for the killings belongs 100% to the criminals who committed those crimes.
The language that "The opening of the safe caused an alarm to sound" does not seem to indicate any option to decide not to trigger the alarm except by refusing to open the safe, so I don't see how any negligence can attach to the triggering of the alarm. An argument that the installation of the alarm was negligent would be a different matter, but that's not the complaint.
This case is very, very easy to understand. It was against Kroger, a big corporation.
Someone put their thumb on the scale and made a B.S. argument to hold the big evil corporation liable.
Every other person knows that the alarm was not a wrong action during the course of the robbery, because the alarm was installed previously and was a given. It wasn't an independent action that would be apparent to cause negligence, because it would have occurred once the safe was open.
It is foreseeable the opening a bank creates a robbery target that could put its customers at risk in potential burglaries. If is foreseeable that starting a shipping company may allow some nut to send a bomb to someone and that bomb might kill them.
That the harm is foreseeable is certainly a requirement. But that it be fairly attributable to the action is another. Secretly alerting the police to a robbery in progress arguably makes things more safe, but I defy anyone to argue with a straight face that it is unreasonably dangerous.
There is simply no way a reasonable jury could argue that triggering a silent alarm that alerted the police to a robbery in progress was unreasonable. It's absurd beyond measure.
Sure, if you italicize that sentence and ignore the one right before it, you can argue that the plaintiff had a nonsensical theory, but I'm willing to give the court a little more credit than that.
If someone can make the case that there's some common-law principle that would prohibit the plaintiff from taking the case to the jury on a theory that it was negligent to have an alarm, then I'd like to hear what it is. Otherwise, if people just want to argue that the theory would have been valid, but there's an oddly-worded sentence that can be read to suggest that the plaintiff didn't advance that theory, there's not much there for me to engage with.
The store owner/manager can reasonably argue that he installed the alarm to help bring justice to any would-be robbers and that the deterrence effect of this would make his store (and other stores) safer overall because fewer robberies would be attempted.
That's a jury argument, not a basis for summary judgment.
So what? A person should only be liable for damages inflicted by his own actions, not for the criminal actions of unrelated third parties, even if said criminal actions are made more likely by the first party's lawful and justifiable actions.
This might or might not be a valid argument, but it's certainly not the law in any jurisdiction I'm familiar with. A property owner can certainly be held liable for the foreseeable criminal acts of a third party under common law - and the existence of the alarm makes it pretty clear that a robbery was foreseeable.
Also if the liability would stem from the store's communication to the police, then the First Amendment might preclude such liability.
This is a creative argument, at a minimum. Is there any case law to support it?
Where did people get this notion that all one has to do is advance any crackpot theory and one is entitled to take it to a jury?
And if the judge doesn't buy your argument that summary judgment should be granted because you personally find the theory absurd, do you have any actual authority to cite? Any actual common-law principles to point to?
There are obviously plenty of situations where shopowners have been found liable due to steps taken in response to a robbery. For example, if an employee tries to heroically stop the robbery and someone gets hurt, there may be liability. If an employee refuses to hand over cash and someone gets hurt, there may be liability. These fact patterns present fairly clear jury questions.
Alerting the police certainly strikes me as safer than trying to wrestle the gun out of the robber's hand, but since it's clearly less safe than simply cooperating with the robber and calling the police after the fact, a jury question is present just like in the other fact patterns.
For a judge to sit there and say that one type of noncooperation by the store employee might be unreasonable, but a different type of noncooperation must be reasonable as a matter of law, is a pure case of the judge substituting his judgment for that of the jury. Unless, of course, someone can show me that the common-law recognizes a privilege to act in this manner, which no one seems to be able to do.
The plaintiff is not a "bystander," but a business invitee. Of course the owner has a duty not to subject a business invitee to an unreasonable danger.
It's certainly foreseeable that alerting the police could lead to a firefight or another type of situation that poses harm to the customers. Whether it's unreasonable to create that risk is a jury question.
And merely opening a business in area where they have been robberies of businesses foreseeably subjects a business invitee to unreasonable danger. Therefore, the business owner was negligent, unreasonably so, for having opened a business.
The alarm was designed to alert law enforcement without the knowledge of the criminal. I note the plaintiff didn’t sue the cops for entering the store instead of waiting for the criminal outside. Kroger’s, of course, was the target with deeper pockets than the city, and less protection from liability.An armed robbery in progress is already “a situation that is dangerous for store employees and customers.” You could just as easily hold that not installing an alarm was negligent.
Methinks people need to brush up on their torts. Some here need to read a little Learned Hand. Like the 10th Circuit...
Of course all we are seeing is a short appellate ruling here. Presumably there is more to the trial courts ruling that might go into it. However, I think your viewpoint is a little off.
The robbers asked the store manager to open the safe. He did. The alarm was triggered. What in your view would have been an appropriate response, "I am sorry, I cant cooperate because my company might get sued if I do?" Maybe the manager is supposed to inform the robbers that the safe is alarmed and that it must be disarmed before he can proceed?
What is absurd about this is that, unlike liability for refusing to hand over money, this is liability for cooperating with the robbers and doing EXACTLY as they say without any delay.
The problem for me in this case is that if this is a matter for a jury, I am hard-pressed to think of a tort matter regarding a third-party-crime-gone-wrong that could be resolved via summary judgement.
Hand was writing about breach. This is a duty issue, not a breach issue.
Duty has traditionally been a matter of minimal foreseeability. Prof. Volokh, like many others, is implicitly criticizing this traditional
conception of duty. Of course, in many states, there is doctrinal room to do cost-benefit analysis of duty questions, but courts which do it are taking a key function of articulating the bounds of reasonable conduct away from juries who are in the best position to make such calls.
An alarm is just such a "hue and cry". (I leave aside the issue of a silent hue and cry, which seems, it must be said, a bit odd. 8-) )
Has the traditional duty to summon aid upon the witnessing of a crime been overridden by statute in Kansas? If there is no duty, it seems to me that voluntarily summoning aid would be one of the unenumerated traditional rights under Judge Bork's ink blot.
And failing that, I suspect I could make an argument based on petition for redress of grievance. I'm pretty sure that the store manager had a valid grievance that needed redress.
Some of these fershlugginger legal theories would seem to require that a business keep all of its cash in the trunk of a stolen car, kept idling in front of the business, as a convenience to the thieves. "Thanks for shopping at Kroger, and have a nice day!"
1. Could the store manager have reasonably foreseen that the presence of the police, alerted surreptitiously by the silent alarm, would make the situation more dangerous? Are store managers expected to be intimately familiar with police procedure to make a judgment call as to whether to alert the police silently or not?
2. If the answer to #1 is yes, presumably the police would have an even clearer idea that their presence would make the situation more dangerous -- a silent alarm can really only be interpreted as a situation where guys with guns are demanding the safe be opened for them. They, not the store manager, are the experts on how to respond to dangerous situations. So why does liability fall on the store and not on the police department?
I suspect the real-world answer to #2 is that the police department is generally immune to such lawsuits while the store has deep pockets. What is the legal answer, though? Certainly, this is very different from a manager who tries to play hero or who disobeys the robbers -- he did nothing observable to the robbers that changed the situation. The fact that the alarm was silent is critical here.
1. Did the store's insurance contract require it to have an alarmed safe? If not, it is easy to see that applying in another similar case. And if yes, would the next step be to sue the store's insurer for negligence for mandating the alarm?
2. Steve, suggestion that the store only cared about its own money is plausible (though not if it was insured) but not the only possibility. Having a bunch of guys waving around guns is a very dangerous situation. I suspect most police departments would rather be there on the scene rather than wait until after the robbers flee a safe distance -- you never know when someone might get trigger-happy. Again, if a police department is too incompetent to deal with an armed robbery in progress, why aren't they the ones being held liable?
"Traditionally," duty arose from privity.
And again, as for foreseeability, I refer to the good Samaritan situation: walk by, see a stranger drowning, shrug and walk away. Foreseeable, yes. Duty, no. Negligent, no.
This does not mean that the procedure itself was negligent. It means that the procedure was negligently followed. "Negligent in store procedure" does not mean "negligent in creating the procedure", it means "negligent in the following of the procedure". All of the rest of the opinion makes it abundantly clear that the complaint is about the actions taken in the moment, not about the previous installation of the alarm.
Consider the broad outlines of what happened: {store robbery; customer shot by robber). No matter how it happened, one can craft an argument, based on foreseeability.
* The store shouldn't have triggered a silent alarm because it was foreseeable that police surprising the robber would lead to a shootout.
* The store shouldn't have triggered an audible alarm because it was foreseeable that police arriving at all would lead to a shootout.
* The store SHOULD have triggered an alarm (silent or audible) because it was foreseeable that the robber would shoot witnesses as he made his getaway.
* The store should have cooperated with the robber...
* The store shouldn't have cooperated with the robber because that would make it more likely it would be robbed...
* The store should have had a security guard...
* The store shouldn't have had a security guard...
* The store shouldn't accept cash, because this made it a robbery target.
* (As one person referenced above) The store shouldn't have opened in the first place, because it was foreseeable that a robbery might take place, and if a robbery took place, it was foreseeable that a customer would get hurt.
Since in hindsight a trial lawyer can always craft an argument that whatever the store happened to choose made the injury more likely, there's nothing a store can do -- in the doctrinal view of some of the posters above -- to avoid having a case go to the jury. They're trying to remove summary judgment from negligence law.
A similar issue occurs in product liability -- particularly with vehicles -- all the time. There's an accident and someone is injured, maybe the gas tank blows up. Well, if the gas tank had been placed elsewhere on the car, it wouldn't have blown up. But you have to put the gas tank *somewhere*.
To withstand summary judgment, there has to be some way a reasonable jury could find that the actions where negligent -- that is, they presented an unreasonable increase in danger.
People at a Kroger are not experts in crime response, nor are they expected or required to be. They do have to have reasonable procedures to follow in foreseeable crime events and they do have to act reasonably. There is no question whatsoever that they did so in this case. None at all. Period.
He created the store procedure pamphlet. He also created the silent alarm, though not expressly written, the implicit procedure would be to use it in the event of a robbery, unless someone can point out another reason for one to exist.
It appears that there are two store procedures in the event of the robbery. One clearly implies that he should trigger a silent alarm. The other clearly states that employees should not raise verbal alarm. His actions did not directly contravene either of these procedures and directly complied with one of them.
The very theory presented by the court, seems to call for a summary judgment.
Is anyone who believes this case is reasonable willing to argue that it's reasonable for police to adopt a policy of ignoring silent burglary alarms from stores almost certainly occupied by customers?
If triggering the alarm presents an unreasonable risk, mustn't responding to it likewise do so?
I still think it's more likely that this B.S. decision was done because it was against a big, evil corporation. Most bad decisions involve someone with their thumb on the scale favoring one side. That's what empathy on the bench will get you.
What the store created was the equivalent of an employee handbook. The theory of the case seems to be that the employer violated its own rules, which told employees what to do and what not to do. But the rules focused on employee behavior; they said nothing about what the employer would do on its own. The previously installed silent alarm was automatically triggered as a result of the employer's policy; it was not something in the power of any employee to prevent. As such, it was not covered in the instructions given to the employees.
As I read the quote, the plaintiff's theory is that the employees violated the employer's rules, but the claim is clearly based on what the employer had already done. No employee consicously triggered the alarm; no employee could have prevented the alarm from being activated. There was no employee negligence at all.
I also have found a case, Helms v. Church's Fried Chicken, Inc., in which Kelly is cited for the proposition that "If plaintiff could present sufficient evidence to convince a jury that the employee, foreseeing the apparent risks and dangers of his action, acted unreasonably under the circumstances, increasing the hazard which ultimately caused the death, plaintiff would be entitled to recover." But the facts in that case were different.
You missed the relevant legal standard for review:
I.e. the issue is what happens once the event is in progress, not whether a particular event might occur at some point in the abstract and possibly distant future.
There is NO allegation that installing the alarm was negligent, and such would be inconsistent with the standard in question.
My analysis misses the point only if you want to impose liability and do not care how you do it. I would like to think that I have exposed the plaintiff's theory as logical nonsense. From the way the court phrased the plaintiff's argument, the store's instructions defined the concept of reasonableness, for why else would the instructions have been brought into the picture?
A decision likes this makes me hate plaintiffs' attorneys.
The Tenth Circuit panel that heard the case consisted of Judges Hill, Seth, and Holloway. Judge Seth wrote the opinion. The decision comes from a time when that court was generally regarded as the worst of the federal appeals courts. Nothing in the ruling cries out for that appraisal to be reconsidered.
Negligence law, accordinf to edward white's 'tort law in america: an intellectual history, is at least 150 years old and was available before then througfh an action for tresspass on the case. The relaxation of privity requirements surely expanded its reach, but buainess invitees always satisfied the privity requirements anyway.
We've had a century of duty as minimal foreseeability. We can't be taking cases away from juries just because right-wingers don't like the results.
Does that statement suggest that you agree with the Tenth Circuit? Are you suggesting that only right-wingers think that the decision was wrong?
I have an even more fundamental question: Did a tort actually occur? What was the negligence? Installing a silent alarm? I do not think that a rational public policy would encourage businesses to do nothing at all when they are robbed. A silnt alarm is the least dangerous way of sommoning help. It is unfortunate that someone was killed here, but the blame goes somewhat to the police perhaps, though mostly to the shooter.
I don't mind making summary judgment rulings on the basis of no breach as a matter of law, i.e., that no reasonable jury could find that the defendant did anything unreasonable. And one could certainly argue that activating the silent alarm isn't negligent as a matter of law.
I also don't mind making summary judgment rulings on the basis of minimal foreseeability, and again, I think there's a colorable argument that the risks of activating a silent alarm was unforeseeable as a matter of law.
But what I do mind is the type of reasoning, seen in this thread, that says we should make "no duty" rulings whenever we think that a jury might make an award that conservatives disagree with. The whole point of jury discretion is that sometimes they will make rulings that people don't agree with, but we place these matters in the jury's care because juries are in the best position to articulate norms of reasonable conduct based on community standards.
In the end, therefore, arguments that we should use duty law to take large swaths of cases away from duty are arguments that we shouldn't have a jury system at all in tort law and that judges should simply weigh the costs and benefits.
Gregory Keating and I published a rather long treatment of this in the Southern California Law Review a few years ago; I invite anyone interested in this topic to check it out.
Why do you inject conservatives and right-wingers into this discussion? I am neither and still hate the ruling without reservation.
Is it your position that the concept of "duty" is always entirely for the jury?
Is this statement by David M. Nieporent wrong?
"Duty" in tort law is a term of art. Basically, it is not case specific. You don't say "you have a duty to watch for cross-traffic before making a left turn at a crowded intersection" as a matter of negligence law. The duty you owe is to exercise reasonable care in the operation of your vehicle. The question of whether your left turn is unsafe is a matter of BREACH, determined by the duty, i.e., did you act reasonably?
The reason this is important is it is the division between judge and jury in negligence law. Judges determine whether you have a duty. Juries determine whether you breached it.
And sometimes a breach question is clear cut, and a court can issue summary judgment on the ground that no reasonable jury could find otherwise. That may be appropriate in the silent alarm situation.
But that's different from expanding the court's role by particularizing duty just because conservatives don't like some jury awards. The fact that juries sometimes do things that people don't like doesn't mean that we should take the questions away from them. If you start pouring all sorts of specifics into "duty", especially involving cost-benefit analyses and the like, you end up usurping the role of the jury in determining the issue of negligence. That happens to be a result many conservatives favor, but it isn't consistent with the traditions and history of negligence law, and it also is a very bad idea on its own merits because juries are actually better than judges at determining issues of community standards of reasonable conduct.
But in this case, that isn't what is alleged. What is alleged was that a form of COOPERATING with the robbers was potentially unreasonable. Alternatives would have to have been at least in form non-cooperating, even informing the robbers that an alarm needed to be deactivated first.....
I don't think that tort law should be second-guessing folks' cooperation during an armed robbery under any circumstances.
The case cited in comments here where someone says "When you leave call the police because we are being robbed" is a non-cooperative act and is hence entirely severable from this issue.
As for taking cases away from juries: once again, since when was it ever the law ("traditionally") that all you had to do was advance any theory of responsibility on the part of a defendant and you could get to a jury? You're the one trying to read one of the elements of negligence out of the law here.
No, David. It's a way of containing the power of judges to prevent cases from going to juries by making it very difficult to grant summary judgment on duty issues.
The reality is, behind all the rhetoric about how this or that case is a "bad" result, what conservatives really want is for these cases not to get to juries because they don't trust their fellow citizens to make the "correct" calls on what constitutes reasonableness. As long as we are just controlling for outlier cases, allowing a court to come in and hold something truly unforeseeable is fine. But when it becomes more than that, it's dangerous.
As for taking cases away from juries: once again, since when was it ever the law ("traditionally") that all you had to do was advance any theory of responsibility on the part of a defendant and you could get to a jury?
The law has been that the jury, not the judge, gets to decide reasonable care for over a century, David. You are stacking the deck with this "any theory of responsibility" business, but the fact of the matter is, the jury gets to decide if the defendant is responsible, and that's a good thing. Conservatives just don't trust their fellow citizens to make decisions they agree with.
Should the question of whether cooperation by flight staff with the hijackers created unreasonable safety issues for which the airlines should be liable (not only for the air deaths but the ground deaths as well) be something that goes to a jury? Under this standard it would seem have to go to a jury.
So can you give an example to support your generalization?
In any cases where it is alleged someone negligently did X, you can phrase that as "as a matter of law, is there a duty not to do X" and turn any factual question into a legal one.
But yes, sure, I think that people will not make correct calls on what constitutes reasonableness, when they're playing with someone else's money rather than their own.
That is not quite the law yet, despite the best efforts of ATLA, and was certainly not "traditionally" the law, contrary to your claim. You yourself admit in your papers with Keating that you're trying to read duty out of the law entirely.
Agree wholeheartedly with that. "Loser pays" would get rid of a whole lot of litigation. And not just frivolous complaints but frivolous defenses and counterclaims.
One example we used in our paper was Atkins v. Glens Falls, 424 N.E.2d 531 (N.Y. 1981), where the plaintiff's claim was that a baseball stadium owner was negligent in not building screening for foul balls that extended all around the field. This was non-negligent as a matter of law, because no reasonable jury could find that screening that extended to areas where foul balls did not generally land and where the patrons had more time to get out of the way and see the ball coming, and which was not customary in baseball stadium construction, was required as a matter of reasonable care.
The thing is, what you don't want to do is get courts in the business of saying "we are going to take cases away from juries and delineate ourselves what constitutes reasonable care in the construction of a baseball stadium". But it's perfectly OK to police the outlying cases, so long as it is restricted to situations where no reasonable jury truly could come to the opposite conclusion.
I can think of no better group of people to assess compensation for accidents than a group of my fellow citizens, based on standards of reasonableness that they can fully understand.
As for it being "other people's money", David, unless you believe that there should be no tort system whatsoever, there's always going to be someone awarding "other people's money" to another person. And since I assume you believe there should be a tort system, your criticism is meaningless, over-the-top rhetoric that you don't even believe.
Not off the top of my head, but I can tell you that the universal legal rule back then was that businesses were liable to their business invitees for failing to exercise due care with respect to their safety. How this played out in specific cases was for juries to decide.
This is a complete and total lie and I defy you to find one statement where I have ever said that there should be no duty element to a negligence cause of action.
I defy you to show me a statement where I said that the duty element should "automatically" be satisfied.
Look, David, you need to tell the truth. If someone says that I am an advocate of a narrow, modest duty requirement that is relatively easy for plaintiffs to satisfy, I think that's perfectly fair. But that's not the same thing as claiming that I don't think there's any room for "no duty" rulings in tort cases. I have never said that and in fact endorsed several justifications for finding "no duty" in our paper.
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