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Saturday, February 04, 2012

Duty, breach, and bottle rockets

Librarians, taxonomists, cartographers, philosophers, priests, lawyers — many professions categorize things, trying thereby to define and explain them. One of the first times I got a sense of the sweep of the law, and its elegance, was when I learned the definition of "tort."

A tort is a noncontractual civil wrong.

A client, Paul, comes to a lawyer and says, "Doug hurt me and I need justice!" Paul's lawyer must not only decide what he can do for Paul, but what sort of law will be involved in getting Paul the relief he seeks from Doug. How did Doug come to hurt Paul? Was a contract involved? No? Was a crime committed? No. Then it must have been — a tort!

As legal reasoning goes, this is roughly the equivalent of the great chef boiling a pot of water: basic, basic.

Of course, Paul's and Doug's respective obligations toward, and rights against, one another depend on their respective positions and relationship. If Doug was Paul's next-door neighbor in a condo complex, Paul may have different expectations of Doug than if Doug had been, say, a business competitor from another continent. But one of the law's lowest common denominators — and therefore one of law's most commonly applied classifications — is simply that of the "reasonable person" who coexists with other reasonable people in the society subject to our laws. The civil law — tort law in particular, and negligence law even more particularly — implies a duty upon each of us, as a reasonable person, to use due care not to harm the people or property with which we interact. If one breaches that duty, one has committed the tort of negligence.

When tort lawyers plead their clients' cases in written petitions to the relevant court, then, those lawyers have, for centuries, been careful to touch all these bases: duty, breach, resulting injury.

And such is the magnificence of the law that almost anything you can imagine a person doing that might hurt some other person — so long as we're not talking crimes or contracts — can be dealt with through civil tort law. It's all about how you frame the legal issues to fit your particular factual setting, and, in particular, how you identify the relevant duty, breach, and injury.

That, I think, fully explains this case, in which the plaintiff alleged that the defendant owed, and breached, a duty to use reasonable care "not to fire bottle rockets out of his anus."

That would be the defendant's anus; sorry for the imprecision, but of course you can imagine a slightly different set of facts where a parallel duty and breach might arise with respect to the plaintiff's own anus. Law professors delight in setting up factual hypotheticals like this, and then selectively varying one fact at a time to see when and why the outcome might change. At some point during the variations on this particular hypothetical, there's a near certainty that flying monkeys will become involved.

Majestic and subtle is the law. Isn't it? (Hat-tip: InstaPundit.)

Posted by Beldar at 03:15 PM in Humor, Law (2012) | Permalink


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(1) Captain Ned made the following comment | Feb 4, 2012 11:39:20 PM | Permalink

Flying monkeys.

Be you Wayne or be you Garth?

(2) Beldar made the following comment | Feb 4, 2012 11:41:38 PM | Permalink

Party on, Captain Ned.

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