On Elevators, Frightened Horses, and Disappearing Types of Tort Claims
posted by Kyle Graham
The other day, a woman was killed in a horrific elevator accident in New York City.
Happily, this is a rare occurrence, though one that’s well-represented in Torts casebooks. Over at Point of Law, Ted Frank has blogged before about the dwindling number of accidents that involve elevators. In his post, Ted cites to a 1926 New York Times newspaper article, which I subsequently dug up, that relates 87 deaths connected to elevators and elevator shafts in 1925—just in the city of New York! Somewhat comfortingly, however, only 36 of these people were crushed by elevators. Forty-seven fell into elevator shafts (which is still somewhat traumatic to me, especially after I watched this scene as an impressionable youth), three were killed when elevators fell, and one “fell through a dumbwaiter” (eep).
I don’t know how many of these elevator-related accidents led to tort suits. A quick online search, however, suggests that these cases were once pretty common. These suits appear to have percolated in the 1870s and 1880s, and developed into a well-recognized type of case by the 1890s or the early 1900s, at the latest.
This development paralleled the construction of the first wave of high-rise structures in American cities (the first modern “skyscraper,” the Home Insurance Building in Chicago, was built in 1884). I don’t know if there’s a causal connection between the proliferation of high-rises and the development of the elevator-suit case type (after all, any multistory building could claim an elevator, and lots of early cases involved apartment buildings and department stores that clearly were not skyscrapers), but it bears mentioning that Illinois, home of many early skyscrapers, produced a large number of appellate decisions involving elevators during this time period; perhaps appellate courts with discretionary jurisdiction in that state decided that these cases were worth hearing, if only because the construction of more high-rise buildings would mean more elevators, and a greater need for appellate precedent to guide the cases that would result from accidents involving these devices.
I’ll go into a little more detail about the disappearance of tort subspecies like the falling-elevator cases, after the jump.
These cases represent another example of a type of tort suit that was once fairly common and prominent, but is now relatively rare and shrouded in obscurity. I’m not talking about moribund torts like alienation of affections here; instead, I’m referring to subspecies of negligence, libel, or other still-recognized causes of action that were once important, but no longer produce many lawsuits because the factual predicates for their occurrence have dwindled or disappeared. Other examples include lawsuits over exploding soda bottles and garbled telegrams. (Here, I should add that elevator cases are not totally defunct—just less important, perhaps, than they once were. After all, I do teach Portee v. Jaffee.)
In this spirit, these days I am doing some research on the first batch of tort suits that involved automobiles. Many of these cases involved plaintiffs who were either the owner of, or injured by, a horse that took fright at an early automobile, causing the animal to rear or bolt. In fact, these cases dominated the initial caselaw surrounding automobiles; in a November 1902 listing of known lawsuits involving automobile use, printed in the trade publication Horseless Age, a substantial majority of the cases identified involved frightened horses.
I suspect that one of the reasons why these cases predominated in the early caselaw was that similar frightened-horse cases had been quite common over the preceding decades. Frightened-horse suits brought against bicyclists and street rail operators, in particular, had produced a substantial volume of caselaw in the 1880s and early 1890s.
Through these cases, a set of rules coalesced that elaborated upon the reasonable-care standard, as it applied to this type of suit, in sufficient detail that prospective plaintiffs in frightened-horse cases that involved automobiles could both appreciate the existence of a potential cause of action and anticipate a fair probability of recovery if certain factual predicates existed. Moreover, juries were conditioned to accept at least some frightened-horse cases as legitimate.
This sort of certainty was missing from most other types of potential lawsuits involving the automobile, in part because there were fewer analogous suits involving earlier technologies, in part because other theories of recovery in tort implicated significant technological differences between automobiles and earlier devices (complicating the process of reasoning by analogy), and in part because it was unclear how certain defenses (such as contributory negligence, assumption of the risk, and immunities from suit) would apply to these cases.
The bigger point may be this: There’s a lot of literature on how uncertainty vis-a-vis tort liability can chill innovation. I am sympathetic to most of these arguments, but there’s another side to the debate, as well: uncertainty among prospective plaintiffs and their attorneys can sometimes chill the filing of tort suits, too. Moreover, with innovations, it can take time for the necessary doctrine, expectations, and infrastructure to develop to fully assimilate prospective claims that implicate the invention into everyday legal practice.
In any event, I anticipate that I’ll be writing about this issue for an upcoming Santa Clara Law symposium on autonomous vehicles, if anyone wants to follow up on the point.