Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

We all read it in law school, and here it is again.  The  fascinating opinion by Judge Learned Hand in In re Eastern Transportation Co. (The T.J. Hooper), 60 F.2d 737 (2d Cir. 1932) reminds us that just because just an industry ignores safety practices that are readily available does not  mean that due care does not require the practice.

An excerpt:

Indeed in most cases reasonable prudence is in fact common prudence, but strictly it is never its measure. A whole calling may have unduly lagged in the adoption of new and available devices. . . . Courts must in the end say what is required. There are precautions so imperative that even their universal disregard will not excuse their omission.

John mentioned this case in a recent comment on a post about the use of IPhones apps in a medical setting.  My post asked whether the use of such apps would become the standard of care.  I don't think T.J. Hooper would apply in a standard-of-care analysis under Tennessee law because we have a statute that tells us where the standard of care of health care providers comes from - and that is from the providers themselves.   

Of course, one could  argue that use of such technology is a duty  issue, not a standard of care issue.  That is, one could argue that, say, an emergency room physician has a legal duty to use this type of technology regardless of whether emergency room physicians actually use it.   The courts can, and have, imposed duties on doctors and others that result in obligations over and above the standard of care.  However, that is a different argument than saying that the courts should rule as a matter of law that the standard of care requires the use of such technology by emergency room physicians.

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Last Monday I referred to the Palsgraf opinion and took the opportunity to re-read it.  I suggest you do the same.  The dispute between Justice Cardozo and Justice Andrews lives on.  Read this and tell me who could have written the exact same words almost 100 years later:

The proposition is this. Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. There needs be duty due the one complaining but this is not a duty to a particular individual because as to him harm might be expected.

The first couple sentences sound exactly like Chief Justice Holder's position on the law of premises liability in Tennessee.  To be sure, she would likely draw the causation circle a little tighter than Justice Anderson, but she views the concept of duty much differently than Justices Clark, Wade and Koch (who are relying on precedent).  We don't know where Justice Lee is on the issue yet.

In any event, here is the Palsgraf opinion.  Read and enjoy.

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The website of the Tennessee Administrative Office of the Courts maintains a set of all of the Local Rules for the state's circuit and chancery courts.  View.

The site makes it clear that the AOC only posts what it has been given, so it would be prudent to check with the local clerk's office and get a current set of the rules if you do not normally practice in the venue.

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I need to tell you about a fascinating tort opinion I came across recently, one that presents an interesting yet troubling view of the state of the law at the time.

The decedent was awaiting trial for rape and murder when he was dragged from his jail cell and hanged. Suit was filed against the vigilantes. A White County jury returned a verdict against the vigilantes, but it was appealed as inadequate.

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