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Chapter 07 - Negligence and Strict Liability
CHAPTER 07
NEGLIGENCE AND STRICT LIABILITY
I. OBJECTIVES:
This chapter is designed to acquaint students with the other two bases of tort liability: negligence
and strict liability. After reading the chapter and attending class, a student should:
A. Be able to identify the basic elements of a negligence action.
B. Be able to apply negligence principles to various fact patterns, in order to ascertain whether
they justify the imposition of liability.
C. Understand how strict liability differs from negligence.
See also the Learning Objectives that appear near the beginning of the chapter.
II. ANSWERS TO INTRODUCTORY PROBLEM:

A. In Cabral v. Ralphs Grocery Co., 248 P.3d 1170 (Cal. Sup. Ct. 2011), the Supreme Court
of California held that the California Court of Appeal erred in holding that neither Horn
nor his employer (Ralphs) owed a duty of reasonable care to the decedent. The key
consideration in determining whether a duty of reasonable care exists is one of
foreseeability. See the further discussion in the text.
B. Breach of duty and causation of injury would also have to be proven. In addition, see the
discussion in II.C (immediately below).
C. Assuming Horn was negligent, he would be liable. But Ralphs could also be liable on
either (or both) of two bases. First, Ralphs could be vicariously liable on respondeat
superior grounds. Under that doctrine, an employer (here, Ralphs) is liable for a tort
committed by its employee (here, Horn) if the tort occurred within the scope of
employment. Horn was clearly acting within the scope of employment at the time of his
negligence (if any). Ralphs also could face liability for its own negligence, if the plaintiff
could establish that Ralphs failed to use reasonable care (such as by failing to have
adequate policies making it clear that its drivers were not to stop alongside the roadway).
If both Horn and Ralphs could be held liable, the plaintiff could sue either or both.
D. Because of the comparative negligence or comparative fault approach adopted in nearly
all states, the decedent’s own negligence would not necessarily bar the plaintiff from
recovery. Here, the jury had concluded that the decedent’s own negligence accounted for
90 percent of the causation and that the defendants’ negligence supplied the other 10
percent. Controlling California law set up a pure comparative negligence scheme of the
sort discussed later in the chapter. This that Cabral could still win the case if she proved
all elements of her claim, but that the damages would be reduced by 90 percent. Under a
mixed comparative negligence scheme of the sort described later in the chapter (and
applicable in many states), the fact that the decedent’s degree of responsibility exceeded
that of the defendants would have barred the plaintiff from winning the case.
E. Yes, presumably, given the foreseeability of harm to others if the company were to put an
unsafe truck driver on the road. A strong argument could be made that an ethical
obligation along those lines would seem to be present as well. (See Chapter 4’s
discussion of ethical theories.)
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III. SUGGESTIONS FOR LECTURE PREPARATION:

A. Negligence
1. Outline the elements of a negligence claim in order to provide a basic roadmap of what
the plaintiff must prove. Note that the defendant may attempt to raise defenses (the
details of which will be discussed later).
2. Duty and Breach of Duty:
a. With regard to the reasonable care/reasonable person standard:
i. Reasonable care--the duty to act as the hypothetical reasonable person would--is
the usual duty for purposes of negligence law. This assumes, however, that a
duty exists in the first place. Note the role of foreseeability in determining
whether a duty exists. Stress the modern tendency of courts to take a broad view
of the group of persons who may be foreseeable “victims” of defendants’
conduct. This means that a duty will be held to have existed in the vast majority
of negligence cases. The focus must then turn to whether the duty was breached.
ii. One way to view the breach of duty element is that it contemplates the
defendant's having failed to live up to the behavioral standard set by the
reasonable person. In this connection, observe that negligence is behavior, not
some mental state.
iii. So how would the reasonable person behave? This depends on all of the relevant
facts and circumstances and on the various factors discussed in the text
(foreseeability, magnitude, etc.). Stress that discretionary, factor-based balancing
occurs here and that the weight of each factor will vary with the facts. Ordinarily,
however, foreseeability of harm is the most important of the bunch. This means
that foreseeability is important not only to the determination of whether a duty
was owed, but also to the determination of whether the duty was breached.
Examples: Problems #1, #4 (formerly a text case), #5 (formerly a text case), #8,
and #11; Dick’s Sporting Goods (a text case discussed later); Kroger Co. v.
Plonski (formerly a text case; discussed below; now Problem #7); Currie (a text
case discussed later); and Shafer (a text case discussed below).
Shafer v. TNT Well Service, Inc. (p. 228): The Supreme Court of Wyoming holds
that the district court erred in granting summary judgment in favor of the
defendant (TNT) in a case in which the plaintiffs sustained personal injuries and
property damage as a result of a motor vehicle accident caused by the negligence
of Clyde, whose employment with TNT supposedly had been terminated just
prior to the accident. Clyde was driving a TNT vehicle at the time of the
accident. A post-accident blood test revealed the presence of controlled
substances in his blood. In reversing and remanding, the court held that the
plaintiffs could proceed with their negligent supervision and negligent
entrustment theories.
Points for Discussion: Ask the students what the plaintiffs’ claims were (initially
respondeat superior, negligent supervision, and negligent entrustment, but only
the latter two by the time of the appeal because the plaintiffs gave up on the
respondeat superior claim). Ask why the district court concluded that respondeat
superior didn’t apply. (If his employment had been terminated prior to the
accident, he couldn’t have been acting in the scope of employment when the
accident occurred.) Note, however, that the Supreme Court said there were
genuine issues of material fact as to whether Clyde’s employment had been
terminated prior to the accident. Perhaps, then, the plaintiffs shouldn’t have
abandoned their respondeat superior claim? Importantly, however, the court
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indicates that the questions as to whether Clyde’s employment had been

terminated also relate to the direct liability claim for negligent supervision. Ask
how a claim for negligent supervision of an employee (or negligent hiring or
negligent retention) differs from respondeat superior. (Respondeat superior can
cause the employer to be liable for the employee’s tort, whereas a negligent
hiring, negligent retention, or negligent supervision is the employer’s own tort.)
Explain the difference between direct liability and vicarious (or imputed)
liability. Might there have been a failure to use reasonable care on TNT’s part in
supervising Clyde? The court indicates that there may have been, and again
points to the relevance of disputed factual questions that need to be resolved on
remand. Ask about the role of foreseeability in a determination of whether TNT
owed a duty of reasonable care in supervising Clyde and whether TNT breached
that duty. (Note the drug-induced state Clyde was in at the time of the accident,
his prior DUIs, and the failure of TNT to give Clyde a pre-employment drug test
despite some witnesses’ statements that drug tests supposedly were given
regularly to newly hired employees.) Ask about the role of foreseeability in
regard to the duty and breach questions associated with the negligent entrustment
claim. (Some of the same things noted in the earlier parenthetical are relevant
here as well.) Note the essence of a negligent entrustment claim, and stress that
it doesn’t require an employment relationship between the entrusting party and
the entrusted party (even though such a relationship existed here as of the time
TNT provided a company vehicle to Clyde). Note, too, that the fact of TNT’s
ownership of the vehicle doesn’t by itself make TNT liable (contrary to what
many students might believe). Finally, this case provides a good basis for
discussing the summary judgment standard and the effect of an appellate court’s
reversal of a grant of summary judgment.
b. Note the special duties (discussed at p. 235) for professionals, common carriers, and,
in appropriate instances, innkeepers. The mention of landlords’ possible liability
stemming from foreseeable criminal acts of third parties relates to the immediately
following material on duties of owners and possessors of property, as well as to the
causation discussion that appears later in the chapter.
c. Note the traditional duties owed by owners and possessors of real property to persons
on that property. In emphasizing that these rules depend heavily upon the status of
the person who is on the property, distinguish among the traditional classifications of
invitee, licensee, and trespasser. Note the trend among some courts to merge the
invitee and licensee classifications.
d. Note that cases dealing with duties owed to persons on property are often referred to
as “premises liability” cases. Traditionally, premises liability cases focused on
physical conditions at the relevant premises--conditions that could harm persons who
are on the premises. Examples: Problem #3 (the Hresil case--one that students
usually like); Dick’s Sporting Goods (a text case discussed later). In recent years,
premises liability has been extended so that negligence cases of that nature may be
based, in appropriate instances, on the behavior of other persons on the premises.
Sometimes an owner or possessor of property may face liability to invitees who were
injured by the foreseeable criminal acts of third parties who were on the premises.
See, for instance, Currie, which is discussed below; Kroger v. Plonski (now Problem
#7 but formerly a text case; see later discussion); and Lord v. D&J Enterprises (a text
case discussed later). See also Problem #4 and the Ethics in Action box at. p. 234.
Currie v. Chevron U.S.A., Inc. (p. 231): A gas station attendant allowed gas to flow
to the pump, though a physical altercation was taking place next to it. The assailant
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pumped gas onto the victim and lit her on fire. The jury found the attendant had
breached the duty of care by allowing the gas to flow to the pump when she might
have anticipated that gas would be used as a weapon. The 11th Circuit upheld the
denial of the defendants' motion for judgment as a matter of law, as the evidence
offered room for a reasonable difference of opinion on what the attendant should
have expected.
Points for Discussion: The underlying killing in this case was intentional rather than
merely negligent. Should Shukla really be held to account when Muhammad
deliberately committed a heinous act? Should Chevron? Hitting the button after
hearing the beep likely borders on a Pavlovian response, and under normal
circumstances, we would understand if Shukla hadn't given much thought to it. (But
were these normal circumstances?) Consider as well that Shukla probably didn't
violate any part of her training. Her training regarding "the button" probably
addressed payment issues rather than these out-of-the-ordinary safety issues. Did
Chevron have a duty (as part of a duty of reasonable care) to train employees about
how to handle situations of the sort present in this case? (Probably not, prior to this
strange incident.) What about going forward, after this case? (Maybe so, given that
Chevron is on notice that this kind of thing can happen. And as a practical matter,
Chevron probably would want to get the word out to employees about what happened
here even though it was an unusual set of facts, because Chevron wouldn’t want to be
subjected to liability again if a comparable out-of-the-ordinary situation again arose.)
Note that Chevron’s liability in this case is really on respondeat superior grounds
(because Shukla’s negligence occurred within the scope of her employment), not
because of any ruling that Chevron itself was negligent. Finally, note that
Muhammad of course would be liable (for battery). But she’s almost certainly
judgment-proof. That probable fact surely helps to explain why Currie seeks to have
other possible defendants held liable.
Dick’s Sporting Goods, Inc. v. Webb (p. 235): The Supreme Court of Kentucky holds
(as had the Kentucky Court of Appeals) that the trial court erred in granting summary
judgment in favor of the defendant (Dick’s) in Webb’s case, which pertained to the
injuries she suffered when, on a rainy day, she slipped on the wet tile floor of the
defendant’s floor shortly after entering the premises. The Supreme Court concludes
that Webb’s case should be resolved by a jury.
Points for Discussion: Ask what duty the store owner normally has to customers with
regard to physical conditions on the premises. (The duty to use reasonable care to
keep the premises reasonably safe.) Why did the trial court think Dick’s was entitled
to summary judgment? (According to that court, the wet floor was an open-and-
obvious condition, and that an open-and-obvious condition effectively makes the
usual duty of reasonable care inapplicable—or at least not violated under the
circumstances.) Ask what the intermediate appellate court concluded regarding the
open-and-obvious condition issue. (That the duty of reasonable care applies even if
the condition was open and obvious.) Even though the Supreme Court concluded
that the intermediate appellate court was right in setting aside the trial’s court’s grant
of summary judgment to the defendant, how was the Supreme Court’s rationale
different from that of the intermediate appellate court? (The Supreme Court didn’t
think that the wet tile on which Webb slipped was an open-and-obvious condition
anyway, so there was no reason to rule on the effect of an open and obvious condition
and no reason to think that the usual duty of reasonable care didn’t at least potentially
apply to the case.) Note the role of foreseeability of harm in cases such as this. Note
that given the posture of the case, the Supreme Court didn’t hold that Webb
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ultimately will win the case. Rather, it ruled that jury questions were present in
regard to disputed maters of fact and whether Dick’s breached its duty of reasonable
care. Finally, note that this case is a fairly traditional premises liability case in which
the plaintiff claims that the defendant failed to take adequate measures to eliminate a
supposedly dangerous physical condition on the premises. As cases such as Lord (a
text case) to be discussed shortly) and Kroger v. Plonski (formerly a text case;
discussed below) indicate, the duty of reasonable care owed by owners or possessors
of property can sometimes extend to taking reasonable steps to lessen the danger that
a person legitimately on the premises could be harmed by a third-party wrongdoer).
Kroger v. Plonski (formerly a text case; now Problem #7): The Supreme Court of
Indiana holds that the trial court correctly denied Kroger’s motion for summary
judgment in a case in which the plaintiff (Plonski) claims that Kroger negligently
failed to provide adequate security in the parking lot area outside a Kroger store.
Points for Discussion: Ask a student to summarize the basic facts. What is Kroger’s
argument for why it should receive summary judgment? (No duty; alternatively, even
if duty, no breach). Why does the court conclude that Kroger owed Plonski a duty?
(Foreseeability of harm to invitee if adequate security measures not taken.) Note that
criminal acts of third parties—what we have here—often used to be considered
unforeseeable as a matter of law, but that’s not necessarily true now. Such acts may
be foreseeable. Ask the students what evidence there was regarding foreseeability
here. Who should decide whether there was a breach of the duty of reasonable care?
(A jury, according to the court.) What evidence in this case might justify a jury in
concluding that there was a failure to use reasonable care on Kroger’s part? If
Kroger is ultimately held liable here, wouldn’t it amount to being held liable for a
third-party criminal’s act? (No. Kroger would be held liable for its own negligence.
The attacker would be liable for battery, though odds are he’s judgment-proof.)
Lord v. D&J Enterprises, Inc. (p. 237): The Supreme Court of South Carolina holds
that the trial court erred in granting summary judgment in favor of defendant D&J in
a case based on plaintiff Lord’s having been shot by a third-party wrongdoer while
Lord was at D&J’s Cash on the Spot business premises. The court holds that jury
questions were present with regard to whether D&J breached its duty of reasonable
care.
Points for Discussion: Ask the basis for the trial court’s decision to grant summary
judgment to the defendant. (The trial court concluded that D&J didn’t owe a duty to
the plaintiff.) Why, according to the Supreme Court, was there a duty of reasonable
care on the part of D&J and why that duty could involve an obligation to take greater
security measures to guard against such as that of the third-party gunman?
(Foreseeability, given the armed robberies that had been occurring in the area and the
knowledge of D&J’s president and the store’s manager that the armed robberies had
been taking place.) What’s necessary for a third-party wrongdoer’s acts to be
foreseeable? Is it only prior criminal acts on the premises, or criminal acts occurring
in the area? (The court says, of course, the former would be relevant if they
occurred, but that the latter can be enough for foreseeability kick in, as here, and help
to shape the duty of reasonable care.) So, on remand, the case will focus on whether
D&J breached its duty of reasonable care. Didn’t D&J take some security measures
already? (Yes, bars on windows and bullet-proof glass on tellers’ windows.) But do
those steps protect customers? Should D&J’s duty of reasonable care include, under
the circumstances, having a security guard on the premises? As the court’s analysis
indicates, that question will become important on remand.
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e. Negligence per se should be presented as an alternative way of establishing a duty

and a breach thereof. Certainly its content is different from the reasonable person
standard. It seems to have had its roots in the courts' desire to pump some content
into the open-ended reasonable person standard. The Restatement (Second) says, in
§286, that in addition to statutes, ordinances and administrative regulations may give
rise to negligence per se claims. Example: Problem #2.
Kaltman v. All American Pest Control, Inc. (p. 240): The Supreme Court of Virginia
concludes that the trial court erroneously sustained the defendants’ demurrer to the
Kaltmans’ negligence per se claim.
Points for Discussion: Students should have little difficulty recognizing the presence
of the two elements of negligence per se in this case. After asking a student to
summarize the basic facts, ask why negligence per se applies to this case involving a
violation of a safety regulation that effectively outlawed residential use of the
pesticide that the defendants used at their customers’ home. Were the plaintiffs
within the class of persons the statue was designed to protect? Yes. Was the harm
they experienced of the sort the statute was designed to prevent? Yes. Also note
why the court rejected the defendants’ argument that the contract they had with the
plaintiffs (their customers) exclusively established the duties the defendants owed the
plaintiffs.
3. Causation of Injury
a. The actual injury requirement means that plaintiffs cannot recover nominal damages
in a negligence case.
b. Distinguish among the major types of harm that may be present in negligence cases:
personal injury (also called physical injury or bodily injury); property damage; and
economic loss. Note that compensatory damages are available for such harms. Note,
also, that with regard to personal injury, the compensatory damages may include so-
called “special” damages for more readily quantifiable harms (medical expenses, lost
wages, and the like) and so-called “general” damages for more intangible harms such
as pain and suffering. Be certain that students understand the difference between
compensatory damages and punitive damages. They should also know, at least in a
general sense, when punitive damages tend to be awarded and why they typically are
not available in a negligence case (absent proof of something going beyond
negligence).
c. Comment briefly on how negligence law deals with claimed emotional harms. Note
that when they are logically connected with a physical injury (or at least with some
physical impact on or contact with the plaintiff’s body), courts routinely award
damages for emotional harms. Although many courts no longer insist on a physical
injury or a physical impact as a perquisite to recovery of damages for emotional harm
(i.e., many courts now allow recovery for emotional harm standing alone), a
significant number of courts still follow the older approach. You may wish to discuss
the Hagan case, a negligent infliction of emotional distress case that appears in
Chapter 1’s section on case law reasoning.
Atlantic Coast Airlines v. Cook (p. 243): The Supreme Court of Indiana rejects a
claim for negligent infliction of emotional distress stemming from the airline’s
having allowed an apparently threatening passenger to remain on a flight for too
long, frightening the other passengers.
Points for Discussion: The modified impact rule and the proximity rule play a
necessary role as limiting principles in emotional distress cases. If negligent
infliction of emotional distress claims were not limited in some way, the range of
potential liabilities would reach far too wide. As limiting principles, though, are the
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modified impact rule and the proximity rule much better than arbitrary (for instance,
a requirement that the victim either cry or suffer some sort of stomach trouble)? The
plaintiffs' strained attempts to satisfy the impact rule by reference to cigarette smoke
and floor vibrations call attention to the problem. Which is worse—the apparent
sophistry of the plaintiffs' argument or the law's requirement that plaintiffs bend over
backwards to meet its almost accidental-seeming requirements? In the time of social
networking and Googlable journals, the impact and proximity rules feel especially
arbitrary. If we accept that some principle is necessary to limit liability, is it possible
to come up with a scheme more “principled” than the one in existence? More
broadly, is the definition of the claim even the proper place to encode the limit?
Could a damages cap work? How about a requirement that the emotional distress
claim piggyback on a more concrete claim? How about a requirement that there be a
significant number of plaintiffs suing for the same distress?
d. The “third-party” emotional distress case is a special type of negligent infliction of
emotional distress case. (This type of case is discussed briefly in the Cook case.)
Such cases generally involve claims for emotional distress suffered by the plaintiff
when the defendant's negligence causes physical harm to someone else (usually
someone closely related to the plaintiff). Traditionally, the "impact rule" prevented
recovery in such cases. Now, however, many courts say that plaintiffs who are in the
"zone of danger" created by the defendant's negligence can recover for emotional
injuries caused by the threat of harm to them--even if there was no physical impact
experienced by the plaintiff (e.g., the defendant’s negligently driven car strikes the
plaintiff’s companion and narrowly misses the plaintiff). Other courts have
abandoned the zone of danger rule. These courts, however, limit recovery in other
ways, such as by requiring (a) a close personal relationship between the plaintiff and
the person harmed by the defendant's negligence, and (b) the plaintiff's direct
observation of the infliction of this harm on the other person. A few courts will push
liability even further, by allowing recovery simply for the plaintiff's observing a
closely related victim in an injured state after the accident has occurred.
4. The Causation Link
a. Regarding actual cause:
i. Open your discussion with an example such as the one in the text.
ii. Discuss the basic "but for" test. This test can be stated more rigorously by
asking: "If not for [but for] the breach, would the injury have happened anyway?"
If the answer is yes, then there is no but-for causation. If the answer is no, then
but-for causation exists.
iii. Explain the "substantial factor" test that courts employ when two or more actors
may have caused the plaintiff's harm. Either “but-for” causation or causation in
the “substantial factor” sense will satisfy the actual cause element.
b. Regarding proximate cause:
i. Stress that we are assuming the existence of actual causation here, and that
proximate cause is concerned with the question of how far along the causal chain
the defendant's liability extends. Although it is sometimes more difficult to
establish than actual cause, proximate cause will usually exist if actual cause
exists. Sometimes, however, there will be no proximate cause even though there
was actual cause--meaning that the causation element of a negligence claim
would not be satisfied.
ii. Note the consequences of choosing one test or another and the social policy
choices involved. For example, it often is claimed that in the 19th century, courts
interpreted proximate cause narrowly to protect infant manufacturing industries
and railroads from liability. Note, however, that when proximate cause tests are
7-7
applied broadly--as they often tend to be today--proximate cause is more likely to

be held to have existed.
iii. You may want to discuss some of the various proximate cause tests employed by
courts. You may also find it helpful to construct a hypothetical fact situation and
ask students to solve it using the tests you have discussed. Alternatively, you may
wish to hand out some contrasting proximate cause cases for class discussion.
Three classics are: In Re An Arbitration Between Polemis and Furness, Withy &
Co., Ltd., 3 K.B. 560 (Eng. 1921); Overseas Tankship Ltd. v. Morts Dock &
Eng'g Co., Ltd., [1961] A.C. 338 (Privy Council) [noted in 36 N.Y.U. L. REV.
1043]; Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. Ct. App. 1928).
(Palsgraf’s “scope of the foreseeable risk” test is often referred to as a proximate
cause test. In effect, however, it is a test for whether a duty exists.) On the other
hand, you may want to tread fairly lightly on this subject, and simply adopt one
test or another as a convention for the class. If you elect this approach, the
natural and probable consequences test may be a good one to choose. Note the
possible effect of a narrow construction of what is natural and probable (maybe a
lack of proximate cause). Contrast that effect with the effect of a broad
construction of what is natural and probable (proximate cause likely). The broad
construction is often employed today.
iv. Problem #9 (formerly a text case) illustrates a further approach to the proximate
cause question: one in which the existence of a duty and the breach thereof are
assumed, and the court then asks whether, given the nature of the breach, the
plaintiff’s injury was foreseeable.
Black v. William Insulation Co. (p. 247): The Supreme Court of Wyoming
rejects a wrongful death claim against a subcontractor based on an automobile
accident caused by the subcontractor's off-duty employee. The plaintiff alleged
that the employee would not have fallen asleep at the wheel if the subcontractor
had taken measures to prevent exhaustion. The court held that the employee was
exhausted on account of his decisions to commute to work and to work a second
job, not on account of the 10-hour workday mandated by the subcontractor.
Points for Discussion: The court consistently portrays Ibarra-Viernes’ work
schedule as a voluntary matter of personal choice. Do your students agree?
Could Ibarra-Viernes have been completely desperate and strapped for cash?
Most people would not “voluntarily” take on a schedule as backbreaking as
Ibarra-Viernes’ schedule. And if the second job was not “voluntary,” what about
Ibarra-Viernes’ decision to commute rather than to spend the $30 “offset” on a
hotel near the work site? The second job, after all, would have been near where
he lived. Whatever the proper outcome of the case, should the court have
considered the role of Ibarra-Viernes’ wage (a figure that no doubt exercised a
far greater influence on his driving activities than the $30 lodging “offset”)? But
if Ibarra-Viernes shouldn’t absorb all the blame for this tragedy (he’s almost
certainly judgment-proof, by the way), then who will pay the victim? Plenty of
parties profit by the conditions that keep Ibarra-Viernes from sleeping: the
subcontractor; Exxon, certainly, which benefits from the subcontractor’s low bid;
arguably, the whole society; arguably, people like the decedent. But is there any
means built into tort law for collection from those parties? Ask why the court
came down so hard on Ibarra-Viernes. Was the point simply to deflect blame
from the subcontractor toward a party who was unlikely to pay in any case? Did
the court see this as a “that’s life” case where there just isn’t anyone to blame?
v. The Stahlecker case (p. 250; commented on below) addressed proximate cause
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issues in addition to the intervening cause issues that serve as the main reason
why it was chosen as a text case.
c. In discussing later acts, forces, or events that help bring about or worsen the
plaintiff’s injuries, make certain to distinguish between acts, forces, or events that are
foreseeable and those that are unforeseeable. Only the latter are intervening causes,
which limit the extent of the defendant’s liability by restricting it to whatever harm
had occurred up to the time of the intervening cause. In other words, the harm
directly traceable to the intervening cause will not be the defendant’s responsibility.
If, however, the later, act, force or event was foreseeable, the defendant’s liability
includes responsibility for the further or worsened injuries stemming form the
foreseeable act, force, or event. Foreseeability, which plays a key role concerning
duty and breach issues, thus holds further significance with regard to causation
issues. Note that a later act, force, or event may sometimes involve wrongful
behavior by another party. That wrongful behavior may be foreseeable or
unforeseeable, depending upon all of the relevant facts and circumstances. Using
examples similar to those in the text, note that criminal acts of third parties are no
longer considered to be unforeseeable as a matter of law and therefore are not
automatically classified as intervening causes. Criminal acts of third parties may
sometimes be foreseeable--as is illustrated by recent years’ expansion of premises
liability principles (e.g., the XYZ scenario addressed in the text).
d. Stahlecker v. Ford Motor Co. (p. 250): The Supreme Court of Nebraska holds that
Cook's abduction, sexual assault, and murder of the plaintiffs' decedent was an
intervening cause preventing Ford and Firestone from possible liability for alleged
failures to use reasonable care in connection with the marketing and sale of an
allegedly defective tire whose malfunction left the decedent stranded in a remote
location. The demurrers of Ford and Firestone were held to have been appropriately
sustained.
Points for Discussion: Note the court's useful discussion of foreseeability as it relates
to duty and to causation. Note, also, the court's observation that the actual and
proximate cause issues in this case can't be divorced from the intervening cause
analysis. (What's a "but for" cause for purposes of the actual cause analysis? What's
a natural and probable consequence for purposes of the proximate cause analysis?
What's an intervening cause? All of these questions require consideration of
foreseeability.) Ask the students what's necessary for a later act, force, or event to be
an intervening cause. (It must be unforeseeable.) Were Cook's actions
unforeseeable? The court thinks so. If there wasn't an intervening cause in the
Shelton case discussed by the court, how could there be an intervening cause here?
In Shelton, there appeared to be a decent argument for foreseeability even though the
court in that case didn't buy it. Here, the foreseeability argument seems a good bit
weaker than in Shelton (and the argument failed in Shelton). Ask the students how
the court distinguishes this case from the psychiatric ward case and the invitee case it
mentions. Ask about the plaintiffs' attempt to argue that statistics about crime should
suffice to establish foreseeability on the part of Ford and Firestone. The court says
that statistics alone won't get the job done in the foreseeability analysis. More
specifics would be necessary. Finally, note that Cook almost certainly is judgment-
proof. (He is unlikely to accumulate significant assets while in prison.) The
plaintiffs have a meritorious claim against Cook, but what good will it do them if
they can't collect any of the damages that might be awarded?
e. If you have time, discuss the special rules/exceptions listed in the text’s section on
intervening cause. Stress that these rules defeat the proximate cause and intervening
force rules discussed earlier.
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f.A very different special rule is supplied by a federal law that may protect appropriate
defendants against liability in certain cases dealing with information supplied in the
Internet context by an information content provider. That rule is discussed in the
Cyberlaw in Action box on p. 253.
5. Discuss the doctrine of res ipsa loquitur, demonstrating how it can aid some plaintiffs in
proving a negligence case. Note that res ipsa is based on two considerations: the
defendant's superior knowledge (derived from his "exclusive control"); and the logical
inference that someone was probably negligent and that the defendant is probably the
relevant “someone.” Res ipsa is sometimes used today in plane crash cases in which
plaintiffs are often at a significant disadvantage in proving the crash’s cause. You may
wish to note some commentators’ suggestion that the third element of res ipsa (proof that
the plaintiff was in no way responsible for his own injury) should be dropped if the
jurisdiction has adopted a comparative fault system.
6. Defenses to Negligence Claims
a. Contributory negligence. Under this traditional defense, the plaintiff's failure to
exercise reasonable care for his own safety would prevent him from winning the case
if his failure to use reasonable care was a substantial factor in producing his injury.
Just as there must have been a causal relationship between the defendant's breach of
duty and the plaintiff's injury before the defendant will be liable for those injuries, so
too must there have been a causal relationship between a plaintiff's failure to exercise
reasonable care for his own safety and his injury in order for that failure to have the
effect of barring his recovery. Stress that under the traditional contributory
negligence rule, a plaintiff’s failure to use reasonable care for his own safety could be
a substantial causation factor even if it was significantly less of a causation factor
than the defendant’s breach of duty. Accordingly, the rule often had the harsh effect
of barring the plaintiff from recovery even when the defendant was much more at
fault than the plaintiff was. The harshness of the contributory negligence rule has
caused nearly all states to replace with it with a comparative negligence or
comparative fault scheme. Even so, it is important to understand contributory
negligence because it provides the underpinnings for what happens in “mixed”
comparative negligence states when the plaintiff’s degree of fault exceeds that of the
defendant.
b. Comparative negligence. Open with a reminder of the potential harshness of the
traditional contributory negligence rule, under which a defendant could have a
complete defense even when the defendant was considerably more at fault than the
contributorily negligent plaintiff. Comparative negligence rules have received the
widespread adoption noted in the text because of their ability to lessen the harshness
of contributory negligence. Explain the operation of comparative negligence
principles, making certain to distinguish between the "pure" and "mixed" forms.
Note that under the mixed form, the defendant has a complete defense--as with
traditional contributory negligence--if the plaintiff’s degree of responsibility for her
injuries exceeds that of the defendant.
c. Assumption of risk. Traditionally, plaintiffs who voluntarily expose themselves to a
known danger created by the defendant's negligence assumed the risk of injury and
were denied any recovery. This is assumption of risk of the implied variety. Note
that knowledge and voluntariness typically are inferred from the facts. Sometimes
the inference is a matter of law; the classic example is getting hit by a foul ball at a
baseball game. There is also an express variety of assumption of risk. For this variety
to exist, there must normally be an enforceable exculpatory clause in a contract.
Such clauses are discussed in Chapter 15. You may want to assign that portion of
Chapter 15.
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d. The emergence of comparative fault. Often the terms comparative negligence and
comparative fault are used interchangeably. Technically, however, the former covers
only negligence and the latter incorporates all kinds of fault, including assumption of
risk (except for express assumption of risk). Many states have comparative fault
statutes.
Berberich v. Jack (formerly a text case but now Problem #6): The Supreme Court of
South Carolina regards the state’s comparative negligence statute as setting up a
comparative fault rule, and holds that a plaintiff’s negligent failure to use reasonable
care for his own safety is relevant not only in cases in which the defendant is alleged
to have been negligent but also in cases in which the defendant is alleged to have
acted recklessly.
Points for Discussion: Ask a student to summarize the basic facts here. Ask how
Berberich (the plaintiff) seeks to have Jack’s actions characterized here. (As reckless
actions rather than merely negligent actions.) Why? (Presumably because he thought
her actions went beyond negligence, but almost certainly also because he hoped the
court would conclude that any negligence on his own part shouldn’t be compared
against the defendant’s fault if that fault amounted to reckless rather than
negligence.) How does the court resolve the issue, and why? (By treating the
comparative negligence law as setting forth a broader principle of comparative fault
(as many courts do), and by concluding that the policy underlying the comparative
approach adopted by the legislature seemed applicable regardless of whether the
defendant acted negligently or in a somewhat worse manner (recklessly). However,
if the defendant had committed an intentional tort, the comparative negligence statute
wouldn’t have applied. So that students have a clear understanding of the case, you
might suggest that they review Chapter 6’s introduction to types of fault in tort cases
(negligence, recklessness, and intentional wrongdoing).
Additional example: Problem #12.
B. Strict Liability
1. By way of introduction, stress:
a. What strict liability is and how it is different from the fault-based approaches of
negligence and intentional torts.
b. The rationale for imposing it. When strict liability is imposed on an activity, the
legal system often is telling the operator of that activity something along these lines:
"O.K., what you're doing has enough social utility that we won't outlaw it, but it is
sufficiently dangerous that you should shoulder the economic risk associated with it.
And if you can pass the costs of bearing that risk--mainly insurance costs--on to
consumers, then it's spread about through society and no one really gets seriously
hurt."
c. The forms it assumes.
2. Abnormally dangerous activities
a. Here, the main question is what sorts of activities qualify. After giving a few
examples, use the Dyer case to discuss the Restatement's factors for answering this
question.
Dyer v. Maine Drilling & Blasting, Inc. (p. 255): The Supreme Judicial Court of
Maine overrules a precedent that had established negligence principles as controlling
cases alleging harm from defendants’ blasting activities. Instead, the court adopts
strict liability as the controlling legal doctrine in such cases.
Points for Discussion: Have a student summarize the basic facts. Note that in
adopting strict liability for blasting cases, the court decides it’s time to quit
swimming against the tide. Most courts say that even though blasting is a necessary
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and important activity in some instances, strict liability should apply to it. Ask
students why blasting is typically classified as an abnormally dangerous activity.
Work through the Restatement factors outlined in the court’s opinion.
b. Additional Example: Problems #10.
2. Statutory strict liability
a. When you consider workers' compensation statutes, you may wish to incorporate
Chapter 51's more complete discussion of the subject.
b. Briefly hit the other kinds of statutory strict liability. You might want to bring in
Chapter 20'sdiscussions of Restatement (Second) § 402A and of the new Restatement
(Third) of Torts: Product Liability.
C. Tort Reform
1. Discuss the origins of the tort reform movement and the controversy that surrounds it.
Also note typical tort reform devices and their objectives.
IV. RECOMMENDED REFERENCES:

A. W. PROSSER & W. KEETON, THE LAW OF TORTS. The classic torts hornbook.
B. M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 85-99 (1977). A useful
analysis of, among other things, the evolution of modern negligence principles.
C. L. FRIEDMAN, A HISTORY OF AMERICAN LAW 409-27 (2d ed. 1985). Its treatment of
the evolution of modern negligence principles includes a discussion of many seminal cases.
V. ANSWERS TO PROBLEM CASES:

1. Yes. Cingular owes no duty to Williams. Although it is widely understood that auto
accidents are more likely when the driver is operating a cellular phone, responsibility for
those accidents lies with the driver. The car accident traces back to the driver’s inattention,
not to some fault with the phone. The causal link from the phone sale to the car accident,
though does exist, is too attenuated to be called “proximate.” There is no way for Cingular to
foresee, at point of sale, which phones will wind up in wrecked cars. Holding Cingular to a
duty to protect against auto accidents would therefore force Cingular to close shop entirely,
an unacceptable result for public policy. Williams v. Cingular Wireless, 809 N.E.2d 472 (Ind.
Ct. App. 2004)
2. No. The Supreme Court of Kentucky held that the plaintiff could rely on negligence per se to
establish the duty and breach of duty elements of her claim against Baize. The government
safety regulation dealing with the unloading of logs was designed to protect persons, such as
Hargis, who worked at sites where logs were being unloaded. Moreover, the harm
experienced by Hargis was the very type of harm the regulation was meant to guard against.
Therefore, the requirements for negligence per se were present. Hargis v. Baize, 168 S.W.3d
36 (Ky. Sup. Ct. 2005).
3. No, Sears has not breached a duty under the reasonable person standard. This is a landowner
case and Hresil is an invitee. Therefore, the relevant duty is Sears's obligation to protect
invitees against dangerous conditions of which it was actually or constructively aware. The
court in Hresil v. Sears, Roebuck & Co., 403 N.E.2d 678 (Ill. Ct. App. 1980) concluded that
Hresil could only prove that the gob was on the floor for ten minutes. This, it said, was
insufficient for constructive notice. A tougher standard, it suggested, would make it too
difficult to avoid the risk to customers. In effect, Sears would have had to run "phlegm
patrols" down the store's corridors every ten minutes.
4. No. Delgado was an invitee to whom Trax owed a duty of reasonable care to keep the
premises reasonably safe. That duty can include an obligation to take reasonable steps to
guard against harm coming to the invitee at the hands of third parties who are on the
premises, if such harm was foreseeable. Here, the relevant facts (including what Trax’s
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interior guard (Nichols) had observed) made it foreseeable that Delgado could experience
harm in the absence of reasonable safeguards. Those safeguards could include such measures
as having more security guards on duty, ensuring that the outside security guard was at his
post, or escorting Delgado to his vehicle, or matters of that nature. Whether Trax breached its
duty of care was a matter to be considered on remand. Delgado v. Trax Bar & Grill, 113 P.3d
1159 (Cal. Sup. Ct. 2005).
5. Performance was not liable on respondeat superior grounds. With the accident occurring as
Weese drove home from work, Weese was outside the scope of employment at that time.
Neither was Performance liable for negligent hiring. Although Performance failed to verify
that Weese had a driver’s license when he was hired (and also failed to check Weese’s
driving record), Weese’s work reponsibilities did not then include driving for the company
during the work day. Although driving during the workday later became part of Weese’s job
and although Performance still did not check Weese’s driving record, any negative
information learned in such a check probably would have influenced only Performance’s
decision on whether to have Weese engage in work-related driving and would not have made
any difference with regard to Weese’s after-work driving. Therefore, the fact that the
accident occurred while Weese was driving home was again relevant. The court noted that
had the accident occurred during the day, the plaintiffs’ negligent hiring claim would have
had a better chance of success. Raleigh v. Performance Plumbing and Heating, Inc., 130
P.3d 1011 (Colo. Sup. Ct. 2006)
6. The Supreme Court of South Carolina reversed the lower court’s decision and remanded the
case for a new trial because the legal instructions had the potential to confuse the jury and to
do so in a way that gave an unfair advantage to the defendant. Hence, a new trial was
warranted. Assuming that non-confusing legal instructions had been given, that the jury
found Jack’s fault to be only negligence, and that the jury appropriately assigned 75% of the
causation to Berberich because of his own negligence, the jury would have ruled correctly
under South Carolina’s comparative negligence law. An instruction on recklessness was
warranted here, according to the Supreme Court, which also held that even if Jack’s conduct
were determined by the jury to have been reckless, Berberich’s own negligence should be
compared with the fault on Jack’s part. In the course of these rulings, the Supreme Court
interpreted the comparative negligence statute as a comparative fault statute. Berberich v.
Jack, 709 S.E.2d 607 (S.C. Sup. Ct. 2011).
7. The Supreme Court of Indiana holds that the trial court correctly denied Kroger’s motion for
summary judgment and that the Indiana Court of Appeals was correct in affirming the
summary judgment denial. The court noted other courts’ decisions establishing that a
business’s duty of reasonable care regarding its invitees may include an obligation to adopt
security measures suitable to protect them against foreseeable acts by third-party wrongdoers
who come on the premises. Here, sufficient evidence suggested foreseeability, warranting a
conclusion that Kroger owed such a duty. On remand, key facts that were in dispute would
then bear upon the issue of whether Kroger breached the duty. Kroger Co. v. Plonski, 930
N.E.2d 1 (Ind. Sup. Ct. 2010).
8. The Supreme Court of Oklahoma held that the trial court wrongly granted summary judgment
in Carolina Forge’s favor. Given the nature of the business trip (which was sole reason why
Garris and Billlups were sent to Joplin) and given Carolina Forge’s allowance of considerable
discretion on the part of their employees in deciding how to allocate their time on such trips,
there was a jury question as to whether Garris and Billups were within the scope of their
employment at the time of the accident. Hence, summary judgment sh0uld not have been
granted in favor of the defendant on the respondeat superior claim. Neither should the trial
court have granted the defendant summary judgment on the negligent entrustment claim.
Carolina Forge was aware that alcohol would be consumed on this business trip, which called
7-13
for considerable entertaining of clients. Carolina Forge’s expense policies clearly

contemplated that alcohol would be involved in such entertaining. Carolina Forge also
contemplated that Garris and Billups would be using a rental car. Under the circumstance, the
Supreme Court ruled, there was a jury question as to whether Carolina Forge failed to use
reasonable care in the sense contemplated by the negligent entrustment theory. Sheffer v.
Carolina Forge Co., 306 P.3d 544 (Okla. Sup. Ct. 2013).
9. Yes. The U.S. Court of Appeals for the Fifth Circuit stated that the applicable proximate
cause test under Texas law (which controlled the case) was whether the defendants “might by
the exercise of ordinary care have foreseen that some similar injury [similar to what occurred
in the case] might result” from the defendants’ breach of duty. The court concluded that the
explosion--as opposed to merely a fire--was an unforeseeable consequence because even
experts did not realize until this catastrophe occurred that FGAN was capable of exploding.
Hence, the court reasoned, there was no proximate cause as to harms stemming from the
explosion. Republic of France v. United States, 290 F.2d 395 (5th Cir. 1961).
10. No. Acrylonitrile is one of a large number of hazardous chemicals shipped in highest volume
on the nation's railroads. Among the other materials that rank higher on the hazard scale are
phosphorous (number 1), anhydrous ammonia, liquified petroleum gas, vinyl chloride,
gasoline, crude petroleum, motor fuel antiknock compound, methyl and ethyl chloride,
sulfuric acid, and chloroform. The U.S. Court of Appeals for the Seventh Circuit observed
that the logic of the district court's opinion would dictate strict liability for all 52 materials
that rank higher than acrylonitrile on the list, and quite possibly for the 72 that rank lower as
well, since all are hazardous if spilled in quantity while being shipped by rail. Every shipper
of any of the materials would therefore be strictly liable for the consequences of a spill or
other accident that occurred while the material was being shipped through a metropolitan
area. The Seventh Circuit stressed that no cases recognize so sweeping a liability. There was
no reason, the court stated, to believe that negligence principles would not be perfectly
adequate to remedy and deter, at reasonable cost, the accidental spillage of acrylonitrile from
rail cars. The railroad network is a hub-and-spoke system and the hubs are in metropolitan
areas. With most hazardous chemicals (by volume of shipment) being at least as hazardous as
acrylonitrile, it is unlikely that the shipment thereof could be rerouted around all metropolitan
areas in the country, except at prohibitive cost. One would hardly expect shippers, as distinct
from carriers, to be the firms best situated to do the rerouting. Therefore, the court held, this
was not an apt case for strict liability. Indiana Harbor Belt Railroad Co. v. American
Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990).
11. Yes, according to the U.S. Court of Appeals for the Fourth Circuit. In light of the facts,
APCO had neither actual nor constructive knowledge of potential histoplasmosis risks
and therefore did not owe Hoschar a duty of reasonable care. There was no evidence that
anyone at APCO actually knew of such risks. The reference to histoplasmosis on the
OSHA website, without more, was insufficient to give rise to a conclusion that
constructive knowledge existed. Hence, it was not foreseeable to APCO that Hoschar
and others were being exposed to such risks. Hoschar v. Appalachian Power Co., 739
F.3d 163 (4th Cir. 2014).
12. The South Carolina Supreme Court held that in view of South Carolina's adoption of
comparative negligence, implied assumption of risk no longer is a complete defense to
recovery in a negligence case. Instead, it is one of the factors to be balanced against the
defendant's negligence in determining the parties' relative fault. The court effectively treated
South Carolina’s mixed comparative negligence system as a comparative fault system. Ono
remand, a question for the jury would be whether the plaintiff’s fault exceeded that of the
defendant. Davenport v. Cotton Hope Plantation, 508 S.E.2d 565 (S.C. Sup. Ct. 1998).
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NOTES TO THE LAOCOON.
Note 1, p. 8.
Antiochus (Anthol. lib. ii. cap. 4). Hardouin, in his commentary on
Pliny (lib. xxxv. sect. 36), attributes this epigram to a certain Piso.
But among all the Greek epigrammatists there is none of this name.
Note 2, p. 9.
For this reason Aristotle commanded that his pictures should not
be shown to young persons, in order that their imagination might be
kept as free as possible from all disagreeable images. (Polit. lib. viii.
cap. 5, p. 526, edit. Conring.) Boden, indeed, would read Pausanias
in this passage instead of Pauson, because that artist is known to
have painted lewd figures (de Umbra poetica comment. 1, p. xiii). As
if we needed a philosophic law-giver to teach us the necessity of
keeping from youth such incentives to wantonness! A comparison of
this with the well-known passage in the “Art of Poesy” would have
led him to withhold his conjecture. There are commentators, as
Kühn on Ælian (Var. Hist. lib. iv. cap. 3), who suppose the difference
mentioned by Aristotle as existing between Polygnotus, Dionysius,
and Pauson to consist in this: that Polygnotus painted gods and
heroes; Dionysius, men; and Pauson, animals. They all painted
human figures; and the fact that Pauson once painted a horse, does
not prove him to have been a painter of animals as Boden supposes
him to have been. Their rank was determined by the degree of beauty
they gave their human figures; and the reason that Dionysius could
paint nothing but men, and was therefore called pre-eminently the
anthropographist, was that he copied too slavishly, and could not rise
into the domain of the ideal beneath which it would have been
blasphemy to represent gods and heroes.
Note 3, p. 11.
The serpent has been erroneously regarded as the peculiar symbol
of a god of medicine. But Justin Martyr expressly says (Apolog. ii. p.
55, edit. Sylburgh), παρά παντὶ τῶν νομιζομένων παρ’ ὑμῖν θεῶν,
ὄφις σύμβολον μέγα καὶ μυστήριον ἀναγράφεται; and a number of
monuments might be mentioned where the serpent accompanies
deities having no connection with health.
Note 4, p. 12.
Look through all the works of art mentioned by Pliny, Pausanias,
and the rest, examine all the remaining statues, bas-reliefs, and
pictures of the ancients, and nowhere will you find a fury. I except
figures that are rather symbolical than belonging to art, such as those
generally represented on coins. Yet Spence, since he insisted on
having furies, would have done better to borrow them from coins
than introduce them by an ingenious conceit into a work where they
certainly do not exist. (Seguini Numis. p. 178. Spanheim, de Præst.
Numism. Dissert. xiii. p. 639. Les Césars de Julien, par Spanheim, p.
48.) In his Polymetis he says (dial. xvi.): “Though furies are very
uncommon in the works of the ancient artists, yet there is one
subject in which they are generally introduced by them. I mean the
death of Meleager, in the relievos of which they are often represented
as encouraging or urging Althæa to burn the fatal brand on which the
life of her only son depended. Even a woman’s resentment, you see,
could not go so far without a little help from the devil. In a copy of
one of these relievos, published in the ‘Admiranda,’ there are two
women standing by the altar with Althæa, who are probably meant
for furies in the original, (for who but furies would assist at such a
sacrifice?) though the copy scarce represents them horrid enough for
that character. But what is most to be observed in that piece is the
round disc beneath the centre of it, with the evident head of a fury
upon it. This might be what Althæa addressed her prayers to
whenever she wished ill to her neighbors, or whenever she was going
to do any very evil action. Ovid introduces her as invoking the furies
on this occasion in particular, and makes her give more than one
reason for her doing so.” (Metamorph. viii. 479.)
In this way we might make every thing out of any thing. “Who but
furies,” asks Spence, “would have assisted at such a sacrifice?” I
answer, the maid-servants of Althæa, who had to kindle and feed the
fire. Ovid says (Metamorph. viii.):—
Protulit hunc (stipitem) genetrix, tædasque in fragmina poni
Imperat, et positis inimicos admovet ignes.
“The mother brought the brand and commands torches to be placed
upon the pieces, and applies hostile flame to the pile.”
Both figures have actually in their hands these “tædas,” long pieces
of pine, such as the ancients used for torches, and one, as her
attitude shows, has just broken such a piece. As little do I recognize a
fury upon the disc towards the middle of the work. It is a face
expressive of violent pain,—doubtless the head of Meleager himself
(Metamorph. viii. 515).
Inscius atque absens flamma Meleagros in illa
Uritur; et cæcis torreri viscera sentit
Ignibus; et magnos superat virtute dolores.
“Meleager, absent and unconscious, is consumed in that fire, and

feels his bowels parched with the unseen flames; yet with courage he
subdues the dreadful pains.”
The artist used this as an introduction to the next incident of the
same story,—the death of Meleager. What Spence makes furies,
Montfaucon took to be fates, with the exception of the head upon the
disc, which he also calls a fury. Bellori leaves it undecided whether
they are fates or furies. An “or” which sufficiently proves that they
are neither the one nor the other. Montfaucon’s further
interpretation should have been clearer. The female figure resting on
her elbows by the bed, he should have called Cassandra, not
Atalanta. Atalanta is the one sitting in a grieving attitude with her
back towards the bed. The artist has very wisely turned her away
from the family, as being only the beloved, not the wife, of Meleager,
and because her distress at a calamity of which she had been the
innocent cause must have exasperated his family.
Note 5, p. 14.
He thus describes the degrees of sadness actually expressed by
Timanthes: “Calchantem tristem, mæstum Ulyssem, clamantem
Ajacem, lamentantem Menelaum.” Ajax screaming would have been
extremely ugly, and since neither Cicero nor Quintilian, when
speaking of this picture, so describe him, I shall venture with the less
hesitation to consider this an addition with which Valerius has
enriched the canvas from his own invention.
Note 6, p. 15.
We read in Pliny (lib. 34, sect. 19): “Eundem [Myro] vicit et
Pythagoras Leontinus, qui fecit statiodromon Astylon, qui Olympiæ
ostenditur: et Libyn puerum tenentem tabulam, eodem loco, et mala
ferentem nudum. Syracusis autem claudicantem: cujus hulceris
dolorem sentire etiam spectantes videntur.” “Pythagoras Leontinus
surpassed him (Myro). He made the statue of the runner, Astylon,
which is exhibited at Olympia, and in the same place a Libyan boy
holding a tablet, and a rude statue bearing apples; but at Syracuse a
limping figure, the pain of whose sore the beholders themselves seem
to feel.” Let us examine these last words more closely. Is there not
evident reference here to some person well known as having a
painful ulcer? “Cujus hulceris,” &c. And shall that “cujus” be made to
refer simply to the “claudicantem,” and the “claudicantem,” perhaps,
to the still more remote “puerum?” No one had more reason to be
known by such a malady than Philoctetes. I read, therefore, for
“claudicantem,” “Philoctetem,” or, at least, both together,
“Philoctetem claudicantem,” supposing that, as the words were so
similar in sound, one had crowded out the other. Sophocles
represents him as στίβον κατ’ ἀνάγκην ἕρπειν, compelled to drag his
limping gait, and his not being able to tread as firmly on his
wounded foot would have occasioned a limp.
Note 7, p. 24.
When the chorus perceives Philoctetes under this accumulation of
miseries, his helpless solitude seems the circumstance that chiefly
touches them. We hear in every word the social Greek. With regard
to one passage, however, I have my doubts. It is this:—
Ἵν’ αὐτὸς ἦν πρόσουρος οὐκ ἔχων βάσιν,
οὐδέ τιν’ ἐγχώρων,
κακογείτονα παρ’ ᾧ στόνον ἀντίτυπον
βαρυβρῶτ’ ἀποκλαύ—
σειεν αἱματηρόν.
Lit.: I myself, my only neighbor, having no power to walk, nor any

companion, a neighbor in ill, to whom I might wail forth my echoing,
gnawing groans, bloodstained.
The common translation of Winshem renders the lines thus:—
Ventis expositus et pedibus captus
Nullum cohabitatorem
Nec vicinum ullum saltem malum habens, apud quem gemitum mutuum.
Gravemque ac cruentum
Ederet.
The translation of Thomas Johnson differs from this only in the

choice of words:—
Ubi ipse ventis erat expositus, firmum gradum non habens,
Nec quenquam indigenarum,
Nec malum vicinum, apud quem ploraret
Vehementur edacem
Sanguineum morbum, mutuo gemitu.
One might think he had borrowed these words from the translation
of Thomas Naogeorgus, who expresses himself thus (his work is very
rare, and Fabricius himself knew it only through Operin’s
Catalogue):—
... ubi expositus fuit
Ventis ipse, gradum firmum haud habens,
Nec quenquam indigenam, nec vel malum
Vicinum, ploraret apud quem
Vehementer edacem atque cruentum
Morbum mutuo.
If these translations are correct, the chorus pronounces the strongest

possible eulogy on human society. The wretch has no human being
near him; he knows of no friendly neighbor; even a bad one would
have been happiness. Thomson, then, might have had this passage in
mind when he puts these words into the mouth of his Melisander,
who was likewise abandoned by ruffians on a desert island:—
Cast on the wildest of the Cyclad isles
Where never human foot had marked the shore,
These ruffians left me; yet believe me, Arcas,
Such is the rooted love we bear mankind,
All ruffians as they were, I never heard
A sound so dismal as their parting oars.
To him, also, the society of ruffians was better than none. A great and
admirable idea! If we could but be sure that Sophocles, too, had
meant to express it! But I must reluctantly confess to finding nothing
of the sort in him, unless, indeed, I were to use, instead of my own
eyes, those of the old scholiast, who thus transposes the words:—Οὐ
μόνον ὅπου καλὸν οὐκ εἶχέ τινα τῶν ἐγχωρίων γείτονα, ἀλλὰ οὐδὲ
κακόν, παρ’ οὗ ἀμοιβαῖον λόγον στενάζων ἀκούσειε. Brumoy, as well
as our modern German translator, has held to this reading, like the
translators quoted above. Brumoy says, “Sans société, même
importune;” and the German, “jeder Gesellschaft, auch der
beschwerlichsten, beraubt.” My reasons for differing from all of these
are the following. First, it is evident that if κακογείτονα was meant to
be separated from τιν’ ἐγχώρων and constitute a distinct clause, the
particle οὐδέ would necessarily have been repeated before it. Since
this is not the case, it is equally evident that κακογείτονα belongs to
τίνα, and there should be no comma after ἐγχώρων. This comma
crept in from the translation. Accordingly, I find that some Greek
editions (as that published at Wittenberg of 1585 in 8vo, which was
wholly unknown to Fabricius) are without it, but put a comma only
after κακογείτονα, as is proper. Secondly, is that a bad neighbor from
whom we may expect, as the scholiast has it, στόνον ἀντίτυπον,
ἀμοιβαῖον? To mingle his sighs with ours is the office of a friend, not
an enemy. In short, the word κακογείτονα has not been rightly
understood. It has been thought to be derived from the adjective
κακός, when it is really derived from the substantive τὸ κακόν. It
has been translated an evil neighbor, instead of a neighbor in ill. Just
as κακόμαντις means not an evil, in the sense of a false, untrue
prophet, but a prophet of evil, and κακότεχνος means not a bad,
unskilful painter, but a painter of bad things. In this passage the poet
means by a neighbor in ill, one who is overtaken by a similar
misfortune with ourselves, or from friendship shares our sufferings;
so that the whole expression, οὐδ’ ἔχων τιν’ ἐγχώρων κακογείτονα, is
to be translated simply by “neque quenquam indigenarum mali
socium habens.” The new English translator of Sophocles, Thomas
Franklin, must have been of my opinion. Neither does he find an evil
neighbor in κακογείτων, but translates it simply “fellow-mourner.”
Exposed to the inclement skies,
Deserted and forlorn he lies,
No friend nor fellow-mourner there,
To soothe his sorrow and divide his care.
Note 8, p. 34.
Saturnal. lib. v. cap. 2. “Non parva sunt alia quæ Virgilius traxit a
Græcis, dicturumne me putatis quæ vulgo nota sunt? quod
Theocritum sibi fecerit pastoralis operis autorem, ruralis Hesiodum?
et quod in ipsis Georgicis, tempestatis serenitatisque signa de Arati
Phænomenis traxerit? vel quod eversionem Trojæ, cum Sinone suo,
et equo ligneo cæterisque omnibus, quæ librum secundum faciunt, a
Pisandro pene ad verbum transcripserit? qui inter Græcos poetas
eminet opere, quod a nuptiis Jovis et Junonis incipiens universas
historias, quæ mediis omnibus sæculis usque ad ætatem ipsius
Pisandri contigerunt, in unam seriem coactas redegerit, et unum ex
diversis hiatibus temporum corpus effecerit? in quo opere inter
historias cæteras interitus quoque Trojæ in hunc modum relatus est.
Quæ fideliter Maro interpretando, fabricatus est sibi Iliacæ urbis
ruinam. Sed et hæc et talia ut pueris decantata prætereo.”
Not a few other things were brought by Virgil from the Greeks, and
inserted in his poem as original. Do you think I would speak of what
is known to all the world? how he took his pastoral poem from
Theocritus, his rural from Hesiod? and how, in his Georgics, he took
from the Phenomena of Aratus the signs of winter and summer? or
that he translated almost word for word from Pisander the
destruction of Troy, with his Sinon and wooden horse and the rest?
For he is famous among Greek poets for a work in which, beginning
his universal history with the nuptials of Jupiter and Juno, he
collected into one series whatever had happened in all ages, to the
time of himself, Pisander. In which work the destruction of Troy,
among other things, is related in the same way. By faithfully
interpreting these things, Maro made his ruin of Ilium. But these,
and others like them, I pass over as familiar to every schoolboy.
Note 9, p. 35.
I do not forget that a picture mentioned by Eumolpus in Petronius
may be cited in contradiction of this. It represented the destruction
of Troy, and particularly the history of Laocoon exactly as narrated
by Virgil. And since, in the same gallery at Naples were other old
pictures by Zeuxis, Protogenes, and Apelles, it was inferred that this
was also an old Greek picture. But permit me to say that a novelist is
no historian. This gallery and picture, and Eumolpus himself,
apparently existed only in the imagination of Petronius. That the
whole was fiction appears from the evident traces of an almost
schoolboyish imitation of Virgil. Thus Virgil (Æneid lib. ii. 199–224):
—
Hic aliud majus miseris multoque tremendum
Objicitur magis, atque improvida pectora turbat.
Laocoon, ductus Neptuno sorte sacerdos,
Solemnis taurum ingentem mactabat ad aras.
Ecce autem gemini a Tenedo tranquilla per alta
(Horresco referens) immensis orbibus angues
Incumbunt pelago, pariterque ad litora tendunt:
Pectora quorum inter fluctus arrecta, jubæque
Sanguineæ exsuperant undas: pars cetera pontum
Pone legit, sinuatque immensa volumine terga.
Fit sonitus, spumante salo: jamque arva tenebant,
Ardentesque oculos suffecti sanguine et igni
Sibila lambebant linguis vibrantibus ora.
Diffugimus visu exsangues. Illi agmine certo
Laocoonta petunt, et primum parva duorum
Corpora natorum serpens amplexus uterque
Implicat, et miseros morsu depascitur artus.
Post ipsum, auxilio subeuntem ac tela ferentem,
Corripiunt, spirisque ligant ingentibus; et jam
Bis medium amplexi, bis collo squamea circum
Terga dati, superant capite et cervicibus altis.
Ille simul manibus tendit divellere nodos,
Perfusus sanie vittas atroque veneno:
Clamores simul horrendos ad sidera tollit.
Quales mugitus, fugit cum saucius aram
Taurus et incertam excussit cervice securim.
And thus Eumolpus, in whose lines, as is usually the case with
improvisators, memory has had as large a share as imagination:—
Ecce alia monstra. Celsa qua Tenedos mare
Dorso repellit, tumida consurgunt freta,
Undaque resultat scissa tranquillo minor.
Qualis silenti nocte remorum sonus
Longe refertur, cum premunt classes mare,
Pulsumque marmor abiete imposita gemit.
Respicimus, angues orbibus geminis ferunt
Ad saxa fluctus: tumida quorum pectora
Rates ut altæ, lateribus spumas agunt:
Dat cauda sonitum; liberæ ponto jubæ
Coruscant luminibus, fulmineum jubar
Incendit æquor, sibilisque undæ tremunt;
Stupuere mentes. Infulis stabant sacri
Phrygioque cultu gemina nati pignora
Laocoonte, quos repente tergoribus ligant
Angues corusci: parvulas illi manus
Ad ora referunt: neuter auxilio sibi
Uterque fratri transtulit pias vices,
Morsque ipsa miseros mutuo perdit metu.
Accumulat ecce liberûm funus parens
Infirmus auxiliator; invadunt virum
Jam morte pasti, membraque ad terram trahunt.
Jacet sacerdos inter aras victima.
The main points are the same in both, and in many places the
same words are used. But those are trifles, and too evident to require
mention. There are other signs of imitation, more subtle, but not less
sure. If the imitator be a man with confidence in his own powers, he
seldom imitates without trying to improve upon the original; and, if
he fancy himself to have succeeded, he is enough of a fox to brush
over with his tail the footprints which might betray his course. But he
betrays himself by this very vanity of wishing to introduce
embellishments, and his desire to appear original. For his
embellishments are nothing but exaggerations and excessive
refinements. Virgil says, “Sanguineæ jubæ”; Petronius, “liberæ jubæ
luminibus coruscant”; Virgil, “ardentes oculos suffecti sanguine et
igni”; Petronius, “fulmineum jubar incendit æquor.” Virgil, “fit
sonitus spumante salo”; Petronius, “sibilis undæ tremunt.” So the
imitator goes on exaggerating greatness into monstrosity, wonders
into impossibilities. The boys are secondary in Virgil. He passes them
over with a few insignificant words, indicative simply of their
helplessness and distress. Petronius makes a great point of them,
converting the two children into a couple of heroes.
Neuter auxilio sibi
Uterque fratri transtulit pias vices
Morsque ipsa miseros mutuo perdit metu.
Who expects from human beings, and children especially, such self-
sacrifice? The Greek understood nature better (Quintus Calaber, lib.
xii.), when he made even mothers forget their children at the
appearance of the terrible serpents, so intent was every one on
securing his own safety.
... ἔνθα γυναῖκες
Οἴμωζον, καὶ πού τις ἑῶν ἐπελήσατο τέκνων
Aὐτὴ ἀλευομένη στυγερὸν μόρον....
The usual method of trying to conceal an imitation is to alter the

shading, bringing forward what was in shadow, and obscuring what
was in relief. Virgil lays great stress upon the size of the serpents,
because the probability of the whole subsequent scene depends upon
it. The noise occasioned by their coming is a secondary idea,
intended to make more vivid the impression of their size. Petronius
raises this secondary idea into chief prominence, describing the noise
with all possible wealth of diction, and so far forgetting to describe
the size of the monsters that we are almost left to infer it from the
noise they make. He hardly would have fallen into this error, had he
been drawing solely from his imagination, with no model before him
which he wished to imitate without the appearance of imitation. We
can always recognize a poetic picture as an unsuccessful imitation
when we find minor details exaggerated and important ones
neglected, however many incidental beauties the poem may possess,
and however difficult, or even impossible, it may be to discover the
original.
Note 10, p. 36.
Suppl. aux Antiq. Expl. T. i. p. 243. Il y a quelque petite différence
entre ce que dit Virgile, et ce que le marbre représente. Il semble,
selon ce que dit le poëte, que les serpens quittèrent les deux enfans
pour venir entortiller le père, au lieu que dans ce marbre ils lient en
même temps les enfans et leur père.
Note 11, p. 37.
Donatus ad v. 227, lib. ii. Æneid. Mirandum non est, clypeo et
simulacri vestigiis tegi potuisse, quos supra et longos et validos dixit,
et multiplici ambitu circumdedisse Laocoontis corpus ac liberorum,
et fuisse superfluam partem. The “non” in the clause “mirandum non
est,” should, it seems to me, be omitted, unless we suppose the
concluding part of the sentence to be missing. For, since the serpents
were of such extraordinary length, it would certainly be surprising
that they could be concealed beneath the goddess’s shield, unless this
also were of great length, and belonged to a colossal figure. The
assurance that this was actually the case must have been meant to
follow, or the “non” has no meaning.
Note 12, p. 39.
In the handsome edition of Dryden’s Virgil (London, 1697). Yet
here the serpents are wound but once about the body, and hardly at
all about the neck. So indifferent an artist scarcely deserves an
excuse, but the only one that could be made for him would be that
prints are merely illustrations, and by no means to be regarded as
independent works of art.
Note 13, p. 40.
This is the judgment of De Piles in his remarks upon Du Fresnoy:
“Remarquez, s’il vous plaît, que les draperies tendres et légères,
n’étant données qu’au sexe féminin, les anciens sculpteurs ont évité
autant qu’ils out pu, d’habiller les figures d’hommes; parce qu’ils ont
pensé, comme nous l’avons déjà dit qu’en sculpture on ne pouvait
imiter les étoffes, et que les gros plis faisaient un mauvais effet. Il y a
presque autant d’exemples de cette vérité, qu’il y a parmi les
antiques, de figures d’hommes nuds. Je rapporterai seulement celui
du Laocoon, lequel, selon la vraisemblance, devrait être vêtu. En
effet, quelle apparence y a-t-il qu’un fils de roi, qu’un prêtre
d’Apollon, se trouvât tout nud dans la cérémonie actuelle d’un
sacrifice? car les serpens passèrent de l’île de Tenedos au rivage de
Troye, et surprirent Laocoon et ses fils dans le temps même qu’il
sacrifiait à Neptune sur le bord de la mer, comme le marque Virgile
dans le second livre de son Enéide. Cependant les artistes qui sont
les auteurs de ce bel ouvrage, ont bien vu qu’ils ne pouvaient pas leur
donner de vêtements convenables à leur qualité, sans faire comme
un amas de pierres, dont la masse ressemblerait à un rocher, au lieu
des trois admirables figures, qui ont été, et qui sont toujours,
l’admiration des siècles. C’est pour cela que de deux inconveniens, ils
out jugé celui des draperies beaucoup plus fâcheux, que celui d’aller
contre la vérité même.”
Note 14, p. 42.
Maffei, Richardson, and, more recently, Herr Von Hagedorn.
(Betrachtungen über die Malerei, p. 37. Richardson, Traité de la
Peinture, vol. iii.) De Fontaines does not merit being reckoned in the
same class with these scholars. In the notes to his translation of
Virgil, he maintains, indeed, that the poet had the group in mind, but
he is so ignorant as to ascribe it to Phidias.
Note 15, p. 44.
I can adduce no better argument in support of my view than this
poem of Sadolet. It is worthy of one of the old poets, and, since it
may well take the place of an engraving, I venture to introduce it here
entire.
DE LAOCOONTIS STATUA JACOBI SADOLETI CARMEN.
Ecce alto terræ e cumulo, ingentisque ruinæ

Visceribus, iterum reducem longinqua reduxit
Laocoonta dies; aulis regalibus olim
Qui stetit, atque tuos ornabat, Tite, Penates.
Divinæ simulacrum artis, nec docta vetustas
Nobilius spectabat opus, nunc celsa revisit
Exemptum tenebris redivivæ mœnia Romæ.
Quid primum summumque loquar? miserumne parentem
Et prolem geminam? an sinuatos flexibus angues
Terribili aspectu? caudasque irasque draconum
Vulneraque et veros, saxo moriente, dolores?
Horret ad hæc animus, mutaque ab imagine pulsat
Pectora, non parvo pietas commixta tremori.
Prolixum bini spiris glomerantur in orbem
Ardentes colubri, et sinuosis orbibus errant,
Ternaque multiplici constringunt corpora nexu.
Vix oculi sufferre valent, crudele tuendo
Exitium, casusque feros: micat alter, et ipsum
Laocoonta petit, totumque infraque supraque
Implicat et rabido tandem ferit ilia morsu.
Connexum refugit corpus, torquentia sese
Membra, latusque retro sinuatum a vulnere cernas.
Ille dolore acri, et laniatu impulsus acerbo,
Dat gemitum ingentem, crudosque evellere dentes
Connixus, lævam impatiens ad terga Chelydri
Objicit: intendunt nervi, collectaque ab omni
Corpore vis frustra summis conatibus instat.
Ferre nequit rabiem, et de vulnere murmur anhelum est.
At serpens lapsu crebro redeunte subintrat
Lubricus, intortoque ligat genua infima nodo.

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