RE: Duty, and Breaking Eggs
I agree that no tort or wrong has been done to one who has not actually suffered any injury as a result of the defendant's (negligent or otherwise tortious) conduct. A complete tort or civil wrong requires not merely duty and breach, but also actual causation and attributable responsibility ('proximate' causation or lack of 'remoteness').
The issue in the Sikh case does not, as Rob implies, turn on the the debate between those, like me and the Restatement Third, who agree with Andrews' view of a duty owed to the world at large not to create unreasonable foreseeable risks to others (which, by the way, the English courts have adopted without acknowledging doing so by treating any nonfantastic risk as foreseeable in Wagon Mound 2), rather than Cardozo's narrow (and incoherent given the many exceptions made to it) view of a duty owed only to specifically foreseeable (classes of) plaintiffs (on both points, see my article, The Grounds and Extent of Legal Responsibility, in the San Diego Law Review, which is accessible through the hyperlink in my 'signature'). As I stated in my original post, the victim in the Sikh case was within the class of foreseeable plaintiffs (assuming it is foreseeable that persons with allergies to eggs would or might reasonably rely on there being no eggs in the food served at the Sikh event), so a duty was owed according to Cardozo's view as well as Andrews' view. Cardozo himself separated the issue of duty from the subsequent distinct issues of causation, both actual and 'proximate'.
Rather, what divides Rob from me (and, I believe, many others) is whether one has the duty concept swallow up the entire tort, by including within the duty analysis the issues of causation and attributable responsibility. Rob believes that a duty is owed to others only not to injure them (in foreseeable, nonremote ways) through conduct that creates an unreasonable foreseeable risk of such injury. No matter how unreasonable one's conduct is and no matter how foreseeable and significant the risks to others, one has no duty not to engage in such conduct unless it subsequently turns out to have actually injured others (in a foreseeable and nonremote way). For Rob, duty is equivalent to wrong and requires ex post actual causation and attributable responsibility analysis as well as ex ante foreseeable risk analysis. He, I assume, defines negligence or 'potentially liability creating conduct' not as a breach of duty but rather as creating an unreasonable foreseeable risk to others. But what makes it unreasonable? It would seem that, according to Rob, it is not unreasonable if not wrongful in a strict sense, that is, if it does not end up actually causing injury to another. It is not even enough in the Sikh case for the unsuspecting guest to have eaten the egg (as Rob states); it must also be the case that eating the egg caused an allergic reaction, and that the allergic reaction caused physical harm.
Perhaps Rob has some other name for what everyone else calls duty/breach/negligence. It may just be semantics, but I don't find his semantics helpful. Moreover, I don't think his approach to duty, which has also been espoused by Ripstein and Zipursky, is merely idiosyncratic semantics, I think it also is bad conceptually. On his view, it seems one should not be able to enjoin risky conduct unless it is certain that the risky conduct will injure (in a foreseeable, nonremote way) a foreseeable victim, and perhaps not even then. After all, on his view there has been no breach of duty until a cognizable legal injury has been suffered by the plaintiff.
Richard W. Wright
Distinguished Professor of Law
Illinois Institute of Technology
Chicago-Kent College of Law
565 West Adams Street
Chicago, IL 60661, U.S.A.
phone: 312-906-5044
fax: 312-906-5280
http://www.kentlaw.edu/faculty/rwright/
From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]
Sent: Sat 1/23/2010 9:58 AM
To: Wright, Richard
Cc: obligations@uwo.ca
Subject: RE: Duty, and Breaking Eggs
For me this is definitional. I prefer to say that a tort is a civil wrong.
A civil wrong is a breach of a duty owed to someone else.
So, if we say, as Richard does, that the defendant has breached his duty
to those with egg allergies when the meal is served then there is a tort,
at that moment and without more ado, with respect to all those at the meal
with the egg allergy. I don't, myself, think that is correct. Similarly, I
don't think there is any civil wrong (which is synonymous with a breach of
a duty owed to someone else) if I drunkenly drive the wrong way around a
roundabout and hit nobody. It is a duty to take care not to injure, and so
can only be breached when someone is in fact injured.
Personally, I prefer to say that there is no tort, which is the same as
saying no breach of any duty, before the egg is eaten by someone who has
assumed that there is no egg in the meal. 'Causation' is for me only a
separate distinct issue which properly arises when we are considering what
the consequences of a civil wrong are, not whether there is a civil wrong.
I cannot breach any duty owed to you without injuring you because
negligence in the air is not enough. Whether my negligence has caused you
injury is a matter going to breach, not a freestanding question in its own
right.
Of course, I do know that lots of people don't think like that. Andrews J
in Palsgraf for example, and the American Restatement (Third) of Torts
too. If you think a tort is not a civil wrong, but rather a formula or
recipe for relief, you can divide up its constituent elements in any way
you like.
Rob
> I think Rob is confusing duty and breach with causation. If it was
> foreseeable to the defendant, given the religious circumstances, that
> people attending the Sikh event would assume that food with eggs was not
> being served and that people allergic to eggs would rely on that
> assumption, then all such people are foreseeable victims and the defendant
> has breached his duty to them by serving the food with eggs without
> warning. If the particular plaintiff would have eaten the food containing
> eggs even if he knew about the eggs, then there is a lack of causation.
> It is the same as in any other case where a defendant omits a required
> warning, but the warning would not have been heeded by the victim.
>
> ________________________________
>
> From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]
> Sent: Fri 1/22/2010 10:19 AM
> To: Jones, Michael
> Cc: Robert Stevens; Hedley, Steve; obligations@uwo.ca
> Subject: RE: Duty, and Breaking Eggs
>
>
>
>> I'm not sure that the claimant's subjective reasoning process should be
>> relevant to whether the defendant owed a duty.
>
> It is a question of what makes the defendant's conduct negligent vis a vis
> the claimant. If we think that supplying eggs without warning by caterers
> is not generally negligent per se vis a vis potential consumers (and I
> think that is probably correct, unlike the case of nuts) what made it
> potentially negligent vis a vis this claimant was that on this occasion he
> would not take the normal precautions someone with an egg allergy would,
> because it was food in a Sikh temple. That is why Moor-Bick LJ stresses
> this point at para 25 (which I extracted) and why he thinks this case is
> 'unusual'. If the deceased was unaware of his egg allergy or if, as Steve
> suggests, he was the sort of person who thought "My doctor says I
> shouldn't risk eating eggs, but I don't listen to doctors" then his death
> was not wrongful as it was not the sort of injury the caterer had a duty
> to protect him from suffereing.
>
> Negligence 'in the air' is not enough, so if the claimant had died because
> he had slipped on some of the eggy ras malai spilled on the floor, no
> claim.
>
> Rob
> --
> Robert Stevens
> Professor of Commercial Law
> University College London
>
>
>
>
--
Robert Stevens
Professor of Commercial Law
University College London