Modern Strict Liability?

• Author: John Fabian Witt
• Pages: 501-634

9. Liability without Fault?

501

CHAPTER 9. MODERN STRICT LIABILITY?

For most of this book, we have been focused on torts that involve wrongful

behavior, either intentional or unintentional. We have allocated hundreds of pages to

explicating the cause of action for negligence. But from the very outset of the course we

have entertained the possibility of other, non-fault based liability standards in the law of

unintentional torts. This chapter picks up this non-fault strand in the law and asks

whether there ought to be strict liability for unintended harm – and, if so, under what

circumstances?

We begin with a startling observation: we have actually been dealing in a form of

non-fault liability for weeks. The doctrine is called respondeat superior; it establishes

the vicarious liability of employers, without regard to the fault of the employer, for

certain tortious acts of their employees.

A. Vicarious Liability

Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968)

FRIENDLY, J.

While the United States Coast Guard vessel Tamaroa was being overhauled in a

floating drydock located in Brooklyn's Gowanus Canal, a seaman returning from shore

leave late at night, in the condition for which seamen are famed, turned some wheels on

the drydock wall. He thus opened valves that controlled the flooding of the tanks on one

side of the drydock. Soon the ship listed, slid off the blocks and fell against the wall.

Parts of the drydock sank, and the ship partially did -- fortunately without loss of life or

personal injury. The drydock owner sought and was granted compensation by the District

Court for the Eastern District of New York in an amount to be determined . . . ; the

United States appeals.

. . . .

The Tamaroa had gone into drydock on February 28, 1963; her keel rested on

blocks permitting her drive shaft to be removed and repairs to be made to her hull. The

contract between the Government and Bushey provided in part:

(o) The work shall, whenever practical, be performed in such manner as

not to interfere with the berthing and messing of personnel attached to the

vessel undergoing repair, and provision shall be made so that personnel

assigned shall have access to the vessel at all times, it being understood

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that such personnel will not interfere with the work or the contractor's

workmen.

Access from shore to ship was provided by a route past the security guard at the

gate, through the yard, up a ladder to the top of one drydock wall and along the wall to a

gangway leading to the fantail deck, where men returning from leave reported at a

quartermaster's shack.

Seaman Lane, whose prior record was unblemished, returned from shore leave a

little after midnight on March 14. He had been drinking heavily; the quartermaster made

mental note that he was “loose.” For reasons not apparent to us or very likely to Lane, he

took it into his head, while progressing along the gangway wall, to turn each of three

large wheels some twenty times; unhappily, as previously stated, these wheels controlled

the water intake valves. After boarding ship at 12:11 A.M., Lane mumbled to an off-duty

seaman that he had “turned some valves” and also muttered something about “valves” to

another who was standing the engineering watch. Neither did anything; apparently Lane's

condition was not such as to encourage proximity. At 12:20 A.M. a crew member

discovered water coming into the drydock. By 12:30 A.M. the ship began to list, the

alarm was sounded and the crew were ordered ashore. Ten minutes later the vessel and

dock were listing over 20 degrees; in another ten minutes the ship slid off the blocks and

fell against the drydock wall.

The Government attacks imposition of liability on the ground that Lane’s acts

were not within the scope of his employment. It relies heavily on § 228(1) of the

Restatement of Agency 2d which says that “conduct of a servant is within the scope of

employment if, but only if: * * * (c) it is actuated, at least in part by a purpose to serve

the master.” Courts have gone to considerable lengths to find such a purpose, as witness a

well-known opinion in which Judge Learned Hand concluded that a drunken boatswain

who routed the plaintiff out of his bunk with a blow, saying “Get up, you big son of a

bitch, and turn to,” and then continued to fight, might have thought he was acting in the

interest of the ship. . . . It would be going too far to find such a purpose here; while

Lane's return to the Tamaroa was to serve his employer, no one has suggested how he

could have thought turning the wheels to be, even if -- which is by no means clear -- he

was unaware of the consequences.

In light of the highly artificial way in which the motive test has been applied, the

district judge believed himself obliged to test the doctrine's continuing vitality by

referring to the larger purposes respondeat superior is supposed to serve. He concluded

that the old formulation failed this test. We do not find his analysis so compelling,

however, as to constitute a sufficient basis in itself for discarding the old doctrine. It is

not at all clear, as the court below suggested, that expansion of liability in the manner

here suggested will lead to a more efficient allocation of resources. As the most astute

exponent of this theory has emphasized, a more efficient allocation can only be expected

if there is some reason to believe that imposing a particular cost on the enterprise will

lead it to consider whether steps should be taken to prevent a recurrence of the accident.

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Calabresi, The Decision for Accidents: An Approach to Non-fault Allocation of Costs, 78

Harv. L. Rev. 713, 725-34 (1965). And the suggestion that imposition of liability here

will lead to more intensive screening of employees rests on highly questionable premises,

see Comment, Assessment of Punitive Damages Against an Entrepreneur for the

Malicious Torts of His Employees, 70 Yale L.J. 1296, 1301-04 (1961). The

unsatisfactory quality of the allocation of resource rationale is especially striking on the

facts of this case. It could well be that application of the traditional rule might induce

drydock owners, prodded by their insurance companies, to install locks on their valves to

avoid similar incidents in the future,6 while placing the burden on shipowners is much

less likely to lead to accident prevention.7 It is true, of course, that in many cases the

plaintiff will not be in a position to insure, and so expansion of liability will, at the very

least, serve respondeat superior's loss spreading function. . . . But the fact that the

defendant is better able to afford damages is not alone sufficient to justify legal

responsibility . . . , and this overarching principle must be taken into account in deciding

whether to expand the reach of respondeat superior.

A policy analysis thus is not sufficient to justify this proposed expansion of

vicarious liability. This is not surprising since respondeat superior, even within its

traditional limits, rests not so much on policy grounds consistent with the governing

principles of tort law as in a deeply rooted sentiment that a business enterprise cannot

justly disclaim responsibility for accidents which may fairly be said to be characteristic of

its activities. It is in this light that the inadequacy of the motive test becomes apparent.

Whatever may have been the case in the past, a doctrine that would create such

drastically different consequences for the actions of the drunken boatswain in Nelson and

those of the drunken seaman here reflects a wholly unrealistic attitude toward the risks

characteristically attendant upon the operation of a ship. We concur in the statement of

Mr. Justice Rutledge in a case involving violence injuring a fellow-worker, in this

instance in the context of workmen's compensation:

"Men do not discard their personal qualities when they go to work. Into

the job they carry their intelligence, skill, habits of care and rectitude. Just

as inevitably they take along also their tendencies to carelessness and

camaraderie, as well as emotional make-up. In bringing men together,

work brings these qualities together, causes frictions between them,

creates occasions for lapses into carelessness, and for fun-making and

emotional flare-up. * * * These expressions of human nature are incidents

inseparable from working together. They involve risks of injury and these

risks are inherent in the working environment."

. . . .

6 The record reveals that most modern drydocks have automatic locks to guard against unauthorized use of

valves.

7 Although it is theoretically possible that shipowners would demand that drydock owners take appro priate

action, see Coase, The Problem of Social Cost, 3 J.L. & Economics 1 (1960), this would see m unlikely to

occur in real life.