As of November 24, 2002
I. Precedent, Formalism and Legal Realism
A. State v. Post (slavery upheld under N.J. Constitution)
1. Judges weren’t necessarily pro-slavery. No one is completely free.
a. The N.J. Constitution could explicitly have outlawed
slavery had the drafters so desired.
i. Maybe this was the best compromise they could get.
ii.Slavery almost extinct by ratification, so maybe
framers didn’t think it was a big deal.
b. Such a small number of slaves remained in N.J. that it
might actually harm slaves to free them (old & sick).
2. Judges’ disagreement may mirror that of the framers and ratifiers.
3. This case points up:
a. Significance of history and past practice.
b. Difficulty of ambiguous statutorylanguage.
c. Difference between legal argument and emotional appeals.
B. Winterbottom v. Wright (carriage driver)
1. Slippery slope: judgment brings avalanche of litigation.
a. How do we know the postulated result is undesirable?
b. Why is slippage inevitable? Can’t cases be distinguished?
c. A different ruling might result in actions by sellers that would alleviate risk of increased litigation.2. Damnum absque injuria: There are some injuries for which the
law provides no remedy.
3. “Hard cases make bad law.”
a. Where the judge’s inclination conflicts with the law he
either makes a limited ruling with no precedential value or creates a bad precedent.
C. Levy v. Langridge (father bought son a gun; seller liable for son’s injuries)
1. Distinguishable from Winterbottom:father acted as son’s proxy.
a. Arguable proxy in Winterbottom wasn’t acting in
Plaintiff’s interests but in his own. Not true here.
2. Explicit warranty in Winterbottom; seller silent here.
a. Solution: contract with employers for injury coverage.
b. But Plaintiff has little bargaining power or negotiating skill.
D. Longmeid v. Holliday (lamp exploded—husband can’t sue for wife)1. Injury not to a party to the contract and no malfeasance by
Defendant toward Plaintiff’s wife, so this is a “nonsuit”.
2. Distinguished from Levy: Plaintiff wasn’t acting as wife’s proxy.
a. This distinction wouldn’t relieve Defendant of liability where injured person couldn’t protect herself.
E. Thomas v. Winchester (Plaintiff’s wife took belladonna by mistake)
1. Same as Longmeid,except here product was “inherently dangerous,” so Defendant’s actions assured to end in injury.
a. So Defendant’s actions look like more than negligence.
2. Injury here resulted from victim’s following instructions.
3. Evolution of common law negligence: privity of contract required
unless object is “inherently dangerous”—but what does that mean?
a. Victim here had no opportunity tocontract with seller.
b. Victim had no expertise, unlike Plaintiff in Winterbottom.
4. This is quasi legislative action by judges.
F. Loop v. Litchfield (borrowed flywheel killed Plaintiff’s testator)
1. Object not inherently dangerous & no privity, thus no liability.
a. Doesn’t matter if deceased knew of defect or had
permission to use.
2. Plaintiff could argue court overreachedin ruling beyond facts.
a. But shouldn’t judges provide guidance?
G. Losee v. Clute (boiler exploded)
1. Defendant (manufacturer) knew of defect in boiler.
2. Buyer tested boiler upon receipt (implied release of Defendant).
3. D liable only to its employees for injuries caused by defects.
4. Boiler not “inherently dangerous”, so Loop, not Thomas, controls.
H. Statler v. RayManufacturing Co. (coffee urn exploded)
1. No privity of contract.
2. Urn exploded on first use.
3. New definition of “inherently dangerous”: if vendor knows product
is likely to be dangerous it is responsible for adequate testing.
I. MacPherson v. Buick Motor Company (Car wheel broke; Defendant
didn’t test wheel)—Cardozo.
1. No evidence Defendant knew of defect, no privity of...