Motor Vehicle Crash Fatalities and Fatality Rates (per Hundred Million Vehicle Miles Traveled), 1899-2009
B. Cost / Benefit Calculations and the Learned Hand Formula
1. Negligence Basics
Stone v. Bolton, [1950] 1 K.B. 201 (C.A.)
On August 9, 1947, the plaintiff, Miss Bessie Stone, of 10, Beckenham Road, Cheetham, near Manchester, had just stepped from her garden gateway on to the
pavement of the highway when she was struck on the head by a cricket ball and suffered injury. The ball had been driven by a player of a visiting team over the fence or hoarding surrounding the Cheetham Cricket Club ground, which at its northern boundary abuts on to the Beckenham Road. The said ground had been in use as a cricket club for some 80 to 90 years [considerably longer than Beckenham Road had existed]. The fence or hoarding surrounding it was 12 feet high and at the northern boundary, owing to a rise in the ground, was 17 feet above the level of the wicket. . . . The distance from the southern wicket to the northern boundary fence was estimated to be 78 yards. The “hit” in question was described by a member of the club with long experience as “quite the biggest seen on that ground,” but evidence was adduced at the trial that on some six to ten occasions cricket balls had been hit over the fence into the road in the past 30 years.
The plaintiff sued the defendants, as representing all the members of the club, for damages for personal injuries, alleging that the defendants were negligent. . . . The case came on for hearing before Oliver J. at Manchester Assizes on December 20, 1948, and the learned judge dismissed the claim. [The plaintiff appealed.]
JENKINS L.J. . . . [L]egitimate as the playing of cricket may be, a cricket ball hit
out of the ground into a public highway is obviously capable of doing serious harm to anyone using the highway who may happen to be in its course, and I see no justification for holding the defendants entitled to subject people in Beckenham Road to any
reasonably foreseeable risk of injury in this way. Accordingly, I am of opinion that the defendants were under a duty to prevent balls being hit into Beckenham Road so far as there was any reasonably foreseeable risk of this happening. The case as regards to negligence, therefore, seems to me to resolve itself into the question whether, with the wickets sited as they were, and the fence at the Beckenham Road end as it was, on
August 9, 1947, the hitting into Beckenham Road of the ball which struck and injured the plaintiff was the realization of a reasonably foreseeable risk, or was in the nature of an unprecedented occurrence which the defendants could not reasonably have foreseen.
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On the evidence this question seems to me to admit of only one answer. Balls had been hit into Beckenham Road before. It is true this had happened only at rare intervals, perhaps no more than six times in thirty seasons. But it was known from practical experience to be an actual possibility in the conditions in which matches were customarily played on the ground from about 1910 onwards, that is to say, with the wickets sited substantially as they were, and the fence at the Beckenham Road end, I gather, exactly as it was as regards height and position on August 9, 1947. What had happened several times before could, as it seems to me, reasonably be expected to happen again sooner or later. It was not likely to happen often, but it was certainly likely to happen again in time. When or how often it would happen again no one could tell, as this would depend on the strength of the batsmen playing on the ground (including visitors about whose capacity the defendants might know nothing) and the efficiency or otherwise of the bowlers. In my opinion, therefore, the hitting out of the ground of the ball which struck and injured the plaintiff was a realization of a reasonably foreseeable risk, which because it could reasonably be foreseen, the defendants were under a duty to prevent.
The defendants had, in fact, done nothing since the rearrangement of the ground on the making of Beckenham Road in or about 1910, whether by heightening the fence (e.g., by means of a screen of wire netting on poles) or by altering the position of the pitch, to guard against the known possibility of balls being hit into Beckenham Road. It follows that, if I have rightly defined the extent of the defendants’ duty in this matter, the hitting out of the ground of the ball which injured the plaintiff did involve a breach of that duty for the consequences of which the defendants must be held liable to the plaintiff in damages. . . .
The hitting of a ball into the road was a reasonably foreseeable event, and no steps at all had been taken to prevent it beyond the erection and subsequent maintenance in its original form of the fence put up in or about 1910, which had been shown by experience to be inadequate. We were, in effect, invited to hold that in as much as the hitting of a ball into Beckenham Road was a rarity, and the odds were against anyone in Beckenham Road being struck on one of the rare occasions when this did happen, the risk of anyone being injured in this way was so remote that the defendants were under no obligation to take any further precautions at all, but were entitled to subject people in Beckenham Road (whether cricket enthusiasts or not) to this remote risk, so to speak in the interests of the national pastime. I see no justification for placing cricketers in this privileged position. . . .
It was also, I think, suggested that no possible precaution would have arrested the flight of this particular ball, so high did it pass over the fence. This seems to me an irrelevant consideration. If cricket cannot be played on a given ground without
foreseeable risk of injury to persons outside it, then it is always possible in the last resort to stop using that ground for cricket. The plaintiff in this case might, I apprehend, quite possibly have been killed. I ask myself whether in that event the defendants would have claimed the right to go on as before, because such a thing was unlikely to happen again for several years, though it might happen again on any day on which one of the teams in the match included a strong hitter. No doubt as a practical matter the defendants might
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decide that the double chance of a ball being hit into the road and finding a human target there was so remote that rather than go to expense in the way of a wire screen or the like, or worse still abandon the ground, they would run the risk of such an occurrence and meet any ensuing claim for damages if and when it arose. But I fail to see on what principle they can be entitled to require people in Beckenham Road to accept the risk, and, if hit by a ball, put up with the possibly very serious harm done to them as damnum sine injuria, unless able to identify, trace, and successfully sue the particular batsman who made the hit.
For these reasons I am of opinion that the plaintiff is entitled to succeed on her claim in negligence.
Bolton v. Stone, [1951] A.C. 850
[The defendant cricket club members appealed to the House of Lords.]
LORD REID. My Lords, it was readily foreseeable that an accident such as befell the respondent might possibly occur during one of the appellants’ cricket matches. Balls had been driven into the public road from time to time and it was obvious that, if a person happened to be where a ball fell, that person would receive injuries which might or might not be serious. On the other hand it was plain that the chance of that happening was small.
The exact number of times a ball has been driven into the road is not known, but it is not proved that this has happened more than about six times in about thirty years. If I assume that it has happened on the average once in three seasons I shall be doing no injustice to the respondent’s ease. Then there has to be considered the chance of a person being hit by a ball falling in the road. The road appears to be an ordinary side road giving access to a number of private houses, and there is no evidence to suggest that the traffic on this road is other than what one might expect on such a road. On the whole of that part of the road where a ball could fall there would often be nobody and seldom any great number of people. It follows that the chance of a person ever being struck even in a long period of years was very small.
This case, therefore raises sharply the question what is the nature and extent of the duty of a person who promotes on his land operations which may cause damage to
persons on an adjoining highway. Is it that he must not carry out or permit an operation which he knows or ought to know clearly can cause such damage, however improbable that result may be, or is it that he is only bound to take into account the possibility of such damage if such damage is a likely or probable consequence of what he does or permits, or if the risk of damage is such that a reasonable man, careful of the safety of his neighbour, would regard that risk as material? . . . .
Counsel for the respondent in this case had to put his case so high as to say that, at least as soon as one ball had been driven into the road in the ordinary course of a match, the appellants could and should have realized that that might happen again and that, if it did, someone might be injured; and that that was enough to put on the appellants a duty to
159 take steps to prevent such an occurrence. . . .
It would take a good deal to make me believe that the law has departed so far from the standards which guide ordinary careful people in ordinary life. In the crowded conditions of modern life even the most careful person cannot avoid creating some risks and accepting others. What a man must not do, and what I think a careful man tries not to do, is to create a risk which is substantial. Of course there are numerous cases where special circumstances require that a higher standard shall be observed and where that is recognized by the law. But I do not think that this case comes within any such special category. It was argued that this case comes within the principle in Rylands v. Fletcher, but I agree with your Lordships that there is no substance in this argument. In my judgment the test to be applied here is whether the risk of damage to a person on the road was so small that a reasonable man in the position of the appellants, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to prevent the danger.
In considering that matter I think that it would be right to take into account not only how remote is the chance that a person might be struck but also how serious the consequences are likely to be if a person is struck; but I do not think that it would be right to take into account the difficulty of remedial measures. If cricket cannot be played on a ground without creating a substantial risk, then it should not be played there at all. . . . [H]aving given the whole matter repeated and anxious consideration I find myself unable to decide this question in favour of the respondent. But I think that this case is not far from the borderline. If this appeal is allowed, that does not in my judgment mean that in every case where cricket has been played on a ground for a number of years without accident or complaint those who organize matches there are safe to go on in reliance on past immunity. I would have reached a different conclusion if I had thought that the risk here had been other than extremely small, because I do not think that a reasonable man considering the matter from the point of view of safety would or should disregard any risk unless it is extremely small. . . .
LORD RADCLIFFE. My Lords, I agree that this appeal must be allowed. I agree
with regret, because I have much sympathy with the decision that commended itself to the majority of the members of the Court of Appeal. I can see nothing unfair in the appellants being required to compensate the respondent for the serious injury that she has received as a result of the sport that they have organized on their cricket ground at Cheetham Hill. But the law of negligence is concerned less with what is fair than with what is culpable, and I cannot persuade myself that the appellants have been guilty of any culpable act or omission in this case.
I think that the case is in some respects a peculiar one, not easily related to the general rules that govern liability for negligence. If the test whether there has been a breach of duty were to depend merely on the answer to the question whether this accident was a reasonably foreseeable risk, I think that there would have been a breach of duty, for that such an accident might take place some time or other might very reasonably have been present to the minds of the appellants. . . .
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[A] breach of duty has taken place if they show the appellants guilty of a failure to take reasonable care to prevent the accident. One may phrase it as “reasonable care” or
“ordinary care” or “proper care”—all these phrases are to be found in decisions of authority—but the fact remains that, unless there has been something which a reasonable man would blame as falling beneath the standard of conduct that he would set for himself and require of his neighbour, there has been no breach of legal duty. And here, I think, the respondent’s case breaks down. It seems to me that a reasonable man, taking account of the chances against an accident happening, would not have felt himself called upon either to abandon the use of the ground for cricket or to increase the height of his surrounding fences. He would have done what the appellants did: in other words, he would have done nothing. Whether, if the unlikely event of an accident did occur and his play turn to another’s hurt, he would have thought it equally proper to offer no more consolation to his victim than the reflection that a social being is not immune from social risks, I do not say, for I do not think that that is a consideration which is relevant to legal liability.
[The House of Lords ruled unanimously in favor of the appellant cricket club members.]
Notes
1. Judge Jenkins views the relevant consideration as the foreseeability of an injury.
Lords Reid and Radcliffe add an additional element, namely the gravity of the
foreseeable injury. Are these two factors sufficient in evaluating the reasonableness of a party’s behavior?
2. Does it matter that the homes on Beckenham Road were built after the cricket pitch was in place?
3. Why does the case proceed on the assumption that the relevant precaution is one that the cricket club might have taken, rather than one that Bessie Stone might have taken?
Are there, for example, helmets that could have protected her head from long hits?
4. In the next case below, Judge Learned Hand adds a further consideration to the analysis of negligence, one that did not appear in any of the Stone v. Bolton opinions.
Hand asks not merely whether an injury was foreseeable, nor what the severity of any such injury would have been, but also what the costs of avoiding that injury would have been.
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United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)
L. HAND, J. These appeals concern the sinking of the barge, ‘Anna C,’ on January 4, 1944, off Pier 51, North River. [The barge accident occurred when the tug Carroll (owned by the Carroll Towing Company) attempted to move a barge tied up just to the north of the Anna C., which was owned by the Conners Company. The maneuver dislodged the Anna C. from its pier, and through a series of unfortunate events, a six-barge pile-up including the Anna C slowly careered down the Hudson. When the Anna C collided with a tanker, the tanker’s underwater propeller pierced the hull of the Anna C., which began to take water. The Anna C. dumped its cargo—flour owned by the United States government—and sank. The United States, as owner of the flour, sued the Carroll Towing Company, which raised a defense of contributory negligence. The Conners Company employee who was supposed to mind the Anna C. (the so-called “bargee”) had not been on board the barge and indeed had been nowhere to be found when the barge broke loose of its moorings. Carroll Towing argued that had the bargee been on board, he would have noticed the leak and been able to call for help in time to save the barge and its cargo. The case thus turned on whether the Conners Company (the Anna C.’s owner) had been contributorily negligent because of the absence of its bargee.]
It appears from the foregoing review that there is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. However, in any cases where he would be so liable for injuries to others obviously he must reduce his damages proportionately, if the injury is to his own barge. It becomes apparent why there can be no such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her, the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.
Applied to the situation at bar, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about. On the other hand, the barge must not be the bargee’s prison, even though he lives aboard; he must go ashore at times. We need not say whether, even in such crowded waters as New York Harbor a bargee must be aboard at night at all;
it may be that the custom is otherwise, as Ward, J., supposed in “The Kathryn B. Guinan,”
and that, if so, the situation is one where custom should control. We leave that question open; but we hold that it is not in all cases a sufficient answer to a bargee’s absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her. In the case at bar the bargee left at five o’clock in the afternoon of January 3rd, and the flotilla broke away at about two o’clock in the afternoon of the following day, twenty-one hours afterwards. The bargee had been away all the time, and we hold that his fabricated story was affirmative evidence that he had no excuse for his
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absence. At the locus in quo -- especially during the short January days and in the full tide of war activity -- barges were being constantly “drilled” in and out. Certainly it was not beyond reasonable expectation that, with the inevitable haste and bustle, the work might not be done with adequate care. In such circumstances we hold -- and it is all that we do hold -- that it was a fair requirement that the Conners Company should have a bargee aboard (unless he had some excuse for his absence), during the working hours of daylight.
Notes
1. Learned Hand’s formula. The so-called Hand Formula for determining negligence rounds out the considerations cited in the opinions from Stone v. Bolton, and it adds an additional factor: the burden of adequate precautions. But the algebra doesn’t by itself supply all the elements needed to make the negligence inquiry. For example, to estimate the probability of the injury’s occurrence, we need to know something about the
temporality of the Hand Formula. Is it the probability ex ante or ex post – before or after the fact? The typical Learned Hand test adopts an ex ante perspective, comparing the cost of a precaution with the risk of loss at the time the decision about whether to take the precaution in question ought to have been made. Ex post, the probability of injury is typically 100%, since we only have a torts question if there has been some injury.
(Though note that we will see an ex post version of the Hand Formula when we get to products liability in chapter 9.)
Another element needed to operationalize the Hand Formula is to identify the kind of person making this ex ante analysis. An expert with perfect information will often come to a different conclusion than a layperson about the reasonableness of a particular course of conduct. Typically, however, the Hand Formula imposes no such obligation of perfect information. Instead, it asks what a reasonable person in the position of the party whose conduct is under evaluation would have thought about the likely costs and benefits in question; in other words, it asks what values the reasonable person would have inserted into the equation.
Two additional points round out our first pass at the Learned Hand approach. The first is to observe that in the common law’s adversary system it is the party charging negligence – often but not always the plaintiff – who sets the agenda by identifying the precaution that the defendant allegedly ought to have taken. Judge and jury need not comb the world for precautions that might have been taken in any given situation. They need only consider precautions that the party charging negligence contends ought to have been taken. The second is that the cost-benefit calculations required by the Hand formula are social cost benefit calculations, not private ones. The question is whether the social costs of the precaution at issue seemed at the time to a reasonable person in the position of the relevant party greater or less than its social benefits. We are interested in the costs and benefits to society of taking any given precaution, not merely the costs and benefits borne or captured by the decision-maker.