!!Экзамен зачет 2023 год / Deacademification of tort law

(Cite as: 48 U. Kan. L. Rev. 59)

Chusa, 771 P.2d 814, 816-30 (Cal. 1989) (limiting Dillon v. Legg, 441 P.2d 912 (Cal. 1968)). Becker, nevertheless, demonstrates the ease with which strict liability can be moved from the realm of products to premises liability. Moreover, the case for strict liability in our proposals is even more compelling because, unlike the residential landlord, the business enterprises in our proposals are in possession and control of their premises. (The authors of the present Article co-authored the amicus brief submitted by the California Trial Lawyers Association to the California Supreme Court in Becker.)

[FN364]. See Nolan & Ursin, Enterprise Liability, supra note 119, at 858. Courts presently apply the hazardous activity strict liability doctrine to activities, such as oil drilling, see Green v. General Petroleum Corp., 270 P. 952 (Cal. 1928), and the hauling of fuel by tanker trucks, see Siegler v. Kuhlman, 502 P.2d 1181 (1972)- activities that, although "common," create hazards unlike those routinely created by individual citizens pursuing their everyday activities. See Nolan & Ursin, Revitalization, supra note 340, at 299. It would be no stretch to move from the tanker truck precedent to railroad accidents. Like the commercial hauling of fuel by a tanker truck, railroading creates hazards unlike those routinely created by individual citizens pursuing their everyday activities.

[FN365]. Green, Duty Problem, supra note 9, at 270.

[FN366]. See id. at 272-74 (suggesting compensation plans for automobile accidents, for accidents at railroad crossings, and for children injured while trespassing on industrial properties, such as railway yards).

[FN367]. See id.

[FN368]. See Jeffrey O'Connell, A "Neo No-Fault" Contract in Lieu of Tort: Preaccident Guaran-tees of Postaccident Settlement Offers, 73 Cal. L. Rev. 898 (1985) [hereinafter, O'Connell, Neo No-Fault]. For a discussion of baseball spectator injuries, compare Davidoff v. Metropolitan Baseball Club, 463 N.E.2d 1219, (1984) (5-2 decision) (holding assumption of risk bars recovery) with Jones v. Three Rivers Management Corp., 394 A.2d 546 (1978) (stating the "no-duty" rule was inapplicable to a patron hit in eye by a batted ball while walking in the interior walkway) and Lowe v. California League of Professional Baseball, 65 Cal. Rptr. 2d 105 (1997) (holding that a duty was owed to a spectator hit by a foul ball after being distracted by team mascot's antics). See also Woman Hit by Baseball Wins $2.7 Milllion Verdict, The Legal Intelligencer, Apr. 22, 1999, at 4 (involving a wild warmup pitch thrown in bullpen). For high-school athletic competitions, see O'Connell, Neo No-Fault, supra. For a discussion of commercial amusement park injuries, see Tracy Weber, Disneyland a Fierce Foe in Court, L.A. Times, Jan. 31, 1999, at B1 (recounting numerous injuries at Disneyland and the aggressive Disney legal defense tactics).

[FN369]. We have chosen these examples because we believe that no-fault enterprise liability can be readily adapted to these factual contexts. Far more complex issues arise in toxic, environmental, and mass torts. Jeffrey O'Connell has cautioned that it "puts the cart before the horse . . . to tackle [[[[these] . . . incalculably more complex and unknowable" problems, as opposed to the problems posed by "simple traumatic injuries such as those from malfunctioning products." O'Connell & Oldfather, supra note 308, at 328. Also, the activities involved in our examples are unlikely to be the source of "outrageous misconduct" that could justify calling forth the expensive and complex machinery of traditional tort law to unearth the sort of misconduct that characterized the asbestos industry. See generally David Rosenberg, The Dusting of America: The Story of Asbestos-Carnage, Cover-Up, and Litigation, 99 Harv. L. Rev. 1693 (1986) (reviewing Paul Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial (1985)). These accident settings are, in short, more akin to routine traffic accidents than to mass toxic environmental torts or even to injuries occurring during medical treatment. It should also be noted that the adoption of an enterprise liability approach would not necessarily preclude the retention of a residual cause of action for what Ehrenzweig called "reprehensible conduct," under which traditional damages could be awarded. Ehrenzweig, supra note 53, at 12. Once adopted, these doctrines could serve as a pattern for other applications of the enterprise liability principle.

[FN370]. Joseph A. Page, The Law of Premises Liability § 6.9, at 142 (2d ed. 1988).

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(Cite as: 48 U. Kan. L. Rev. 59)

[FN371]. Abraham, supra note 322, at 248.

[FN372]. 2 Reporters' Study, supra note 12, at 128.

[FN373]. 2 id.

[FN374]. 563 P.2d 858, 862 (Cal. 1977) (in banc).

[FN375]. See, e.g., Fein v. Permanente Med. Group, 695 P.2d 665, 680-81 (Cal. 1985) (in banc) (upholding a legislative cap on pain and suffering damages); Turpin v. Sortini, 643 P.2d 954, 964 (Cal. 1982) (in banc) (denying pain and suffering damages in a wrongful life action).

[FN376]. Traynor, Ways and Meanings, supra note 43, at 376.

[FN377]. 532 P.2d 1226 (Cal. 1975) (in banc).

[FN378]. See id. at 1243-44.

[FN379]. 2 Reporters' Study, supra note 12, at 511.

[FN380]. In their consideration of the proper measurement of damages under this new enterprise liability, courts could examine the array of approaches suggested by the enterprise liability scholars in the 1950s and early 1960s and by Jeffrey O'Connell a decade later. See supra notes 52-62 and accompanying text.

Courts could also examine the variety of damages reform proposals that have emerged with the renewal of scholarly interest in tort reform since the mid-1980s. See, e.g., 2 Reporters' Study, supra note 12, at 161-316. A summary of reform proposals is contained in Oscar G. Chase, Helping Jurors Determine Pain and Suffering Awards, 23 Hofstra L. Rev. 763 (1995). See also John C.P. Goldberg, Misconduct, Misfortune, and Just Compensation: Weinstein on Torts, 97 Colum. L. Rev. 2034, 2048-59 (1997) (explaining Judge Jack Weinstein's approach to damages in mass tort cases as an application of a Jamesian (enterprise liability) perspective); Virginia E. Nolan & Edmund Ursin, Enterprise Liability Reexamined, 75 Or. L. Rev. 467, 489-90 (1996) (discussing various approaches courts might take).

In determining the appropriate measure of damages, courts would need to consider the issue of attorneys' fees and the effect of the level of damages on incentives for victims to bring claims. See Randall R. Bovbjerg & Frank A. Sloan, No-Fault for Medical Injury: Theory and Evidence, 67 U. Cinn. L. Rev. 53, passim (1998) (discussing Virginia and Florida no-fault plans for neurologically impaired infants with birth-related injuries).

[FN381]. See 2 Reporters' Study, supra note 12, at 534.

[FN382]. Prosser, Citadel, supra note 104, at 1120.

[FN383]. See Landes & Posner, supra note 28, at 5 n.14.

[FN384]. Paul J. Mishkin & Clarence Morris, On Law in Courts 256 (1965).

[FN385]. Id.

[FN386]. See Prosser, Handbook, supra note 41, § 67, at 434-35.

[FN387]. See Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973).

[FN388]. See Li v. Yellow Cab Co., 532 P.2d 1226, 1243 (Cal. 1975) (in banc).

[FN389]. See Kaatz v. Alaska, 540 P.2d 1037, 1049 (Alaska 1975).

[FN390]. This failure of prediction can be explained in part by the fact that Prosser and Morris held views of judicial lawmaking that reflected the legal process scholarship of that era. See Ursin, Creativity, supra note 88, at

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(Cite as: 48 U. Kan. L. Rev. 59)

233-59. As previously discussed, courts were guided by a different view. See supra Part III.C.; see also, e.g., Traynor, Magic Words, supra note 91.

[FN391]. Posner, Constitutional Theory, supra note 2, at 21.

[FN392]. See, e.g., Hanson & Logue, Exteranlity, supra note 348; Keating, The Idea, supra note 34.

[FN393]. 2 Reporters' Study, supra note 12, at 534.

[FN394]. Schwartz, Foreword, supra note 1, at 548; see also James, The Future, supra note 15, at 916.

[FN395]. James, Columbia Study, supra note 10, at 424. This sort of judicial lawmaking is sup-ported by the jurisprudential views of our greatest judges. See supra note 88 (discussing Shaw, Holmes, Cardozo, Traynor, and Posner). Indeed, the same year that England enacted its worker's compensation legislation, see Epstein, Historical Origins, supra note 183, at 797, Holmes suggested that courts might reconsider the requirement that employees prove negligence in cases of injuries received in the course of their employment, see Holmes, The Path of the Law, supra note 83, at 466-67. He wrote in 1897 that "even now our theory upon this matter is open to reconsideration, although I am not prepared to say how I should decide if a reconsideration were proposed." Id. at 467. This view of the judicial role also finds support in public choice theory. See, e.g., Farber & Frickey, supra note 12, at 139-43. Justice Traynor's writings in the 1950s and 1960s anticipated many of the insights now associated with public choice theory. Farber and Frickey suggest that "[p] erhaps it should not have taken advanced mathematical models and econometric studies to remind us of the sage perspective of [James] Madison." Id. at 143. And, they might have added, Holmes and Traynor.

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