Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
problem of statutes that had become, by passage of time and changes in values, out of date or
otherwise out of step with the spirit of the times.
4. Meta institutional choice. Does Lehman’s opinion require a general theory of the relative
virtues of courts as opposed to legislatures as decision-makers about risk? Or does Lehman need
merely to establish a meta rule about which institution is properly authorized to decide which
institution is the better decision-maker under the circumstances?
5. Statutory standards. Even when a court does defer to the statute as supplying the relevant
standard of conduct, it does not necessarily follow that any loss caused by a departure from the
statutory standard is a loss for which the departing party may be held liable. As Cardozo wrote in
Martin, courts are “less rigid” when the party charging negligence on the basis of a statutory
safeguard “is not a member of the class for whose protection the safeguard is designed.”
Moreover, courts have generally held that statutory standards are only to be treated as negligence
per se when the losses that occur are the kinds of losses the legislature sought to guard against in
passing the statute. Consider the terrible case of the very wet sheep:
Gorris v. Scott, [1874] L.R. 9 Ex. 125
KELLY, C.B.
This is an action to recover damages for the loss of a number of sheep which the
defendant, a shipowner, had contracted to carry, and which were washed overboard and lost by
reason (as we must take it to be truly alleged) of the neglect to comply with a certain order made
by the Privy Council, in pursuance of the Contagious Diseases (Animals) Act, 1869. The Act was
passed merely for sanitary purposes, in order to prevent animals in a state of infectious disease
from communicating it to other animals with which they might come in contact. Under the
authority of that Act, certain orders were made; amongst others, an order by which any ship
bringing sheep or cattle from any foreign port to ports in Great Britain is to have the place
occupied by such animals divided into pens of certain dimensions, and the floor of such pens
furnished with battens or foot holds. The object of this order is to prevent animals from being
overcrowded, and so brought into a condition in which the disease guarded against would be
likely to be developed. This regulation has been neglected, and the question is, whether the loss,
which we must assume to have been caused by that neglect, entitles the plaintiffs to maintain an
action.
The argument of the defendant is, that the Act has imposed penalties to secure the
observance of its provisions, and that, according to the general rule, the remedy prescribed by the
statute must be pursued . . . .
But, looking at the Act, it is perfectly clear that its provisions were all enacted with a
totally different view; there was no purpose, direct or indirect, to protect against such damage;
but, as is recited in the preamble, the Act is directed against the possibility of sheep or cattle being
exposed to disease on their way to this country. . . . [T]he damage complained of here is
something totally apart from the object of the Act of Parliament, and it is in accordance with all
the authorities to say that the action is not maintainable.
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