One Hundred Years of Harmful Error: The Historical


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One Hundred Years of Harmful Error: The Historical Jurisprudence of Medical Malpractice
Theodore Silver Touro Law Center, [email protected]

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Recommended Citation 1992 Wis. L. Rev. 1193 (1992)
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ONE HUNDRED YEARS OF HARMFUL ERROR: THE HISTORICAL JURISPRUDENCE OF MEDICAL MALPRACTICE
THEODORE SILVER'
In this Article, Professor Silver examines the origins of present-day malpractice law. He begins by noting that negligence and medical malpractice as the common law now knows them made their debut in the nineteenth century although their roots lie deep in the turf of trespass and assumpsit. He argues, however, that toward the turn of the century several episodes of linguistic laziness purported to produce a separation between negligence and medical malpractice so that the two fields are conventionally thought to rest on separate doctrinal foundations.
According to Professor Silver, historically based scrutiny of medical malpractice and its ties to negligence reveal that any differentiation between the two bodies of law arose solely by accident; the distinction is devoid of rational basis and serves only to confound and confuse. Thus, he concludes, the common law, through its own devices or those of our legislatures, should be forced to renounce it.
'Twill be recordedfor aprecedent, And many an errorby the same example
Will rush into the state.'
I. INTRODUCTION
A medical malpractice action is identical in all vital respects to any and every suit sounding in negligence. That simple truth, however, has been lost in a maze of judicial mistakes one century in the making. Consequently, most legal minds identify medical malpractice as a discrete body of law and the medical malpractice suit is thought to proceed from its own set of "rules," "doctrines," and "principles."
That fundamental misconception is traceable primarily to nineteenth century courts who built and bequeathed to the common law a host of unfortunate inventions. These include "the professional custom standard," "the locality rule," "the best judgment" principle, the "expert witness" requirement, the "common knowledge exception," and "special rules" concerning the so-called doctrine of res ipsa loquitur. All of these doctrines purportedly followed from some rational design, but historical
* B.A. Yale University, J.D. University of Connecticut, M.D. Yale University; Associate Professor of Law, Touro College Jacob D. Fuchsberg Law Center.
1. WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE act 4, sc. 4.
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and jurisprudential scrutiny reveals that they were sired not by reason, but by a series of conceptual accidents. Hence, these misbegotten creatures are children of failed thought that have generated a plethora of unsound
decisions. The locality rule itself is largely a memory,' although, like the
ancient forms of action, it governs from the grave.3 Yet the other named doctrines still thrive and flourish still. The cause of rational jurisprudence requires that each doctrine be understood for the peculiar manner in which it arose and for its failure ever to play a legitimate role in the law
of medical malpractice. It next requires that a corrective statute be devised so that medical malpractice law may henceforth proceed from sound premises. Such are the purposes of this article and of the two which will follow it in series.
This first article probes the jurisprudence surrounding the professional custom and locality rules.4 The professional custom rule provides that the duty of care physicians owe their patients is measured not by ordinary notions of reasonableness but by customary practice among physicians.
Patients do not prevail in a medical malpractice action by establishing negligence in the usual legal sense. Rather, they must establish that the
defendant physician's actions contravened customary practice. Unlike any other group of persons or professionals, physicians enjoy the somewhat inexplicable privilege of establishing the legal standard to which they are answerable through their own behavior.5 The locality rule, to the extent it still operates, compounds this anomaly by holding physicians liable only
if they contravene the custom that prevails among physicians practicing in their geographic community or in communities "similar" to their own. Hence, where the locality rule governs, physicians within one geographic
community are peculiarly privileged to fashion, by their own practices, the standard of care they are legally obliged to satisfy."
This article explores the history and jurisprudence surrounding these
two improbable doctrines in order to demonstrate that they arose not by plan or purpose but by want of judicial attention to the jurisprudence that underlies medical malpractice and negligence. Section II lays the ground

2. See infra note 116 and accompanying text. 3. FREDERIC W. MAITLAND, LECTURES ON THE FORMS OF ACTION AT COMMON LAW 1 (1936) ("The forms of action we have buried, but they still rule us from their graves. "). 4. The second article will address the "best judgment" principle, the "expert witness" requirement, and the "common knowledge exception." The third will concern the doctrine of res ipsa loquitur and will also suggest a statute designed to correct the flawed jurisprudence to which the entire three-part series pertains. 5. See infra notes 58-65 and accompanying text. 6. See infra notes 108, 133, 135 and accompanying text.

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for subsequent discussion. By exploring the historical roots of medical malpractice suits from the fourteenth through the nineteenth centuries, it demonstrates, conventional wisdom notwithstanding, that a malpractice action always represented the action known today as ordinary negligence. Section III describes the flawed jurisprudence that fostered the "professional custom standard" as well as the problems it creates. Section IV
describes the misconceptions that gave rise to the locality rule and the injury it has done the law. Finally, Section V presents an imaginary opinion that would have diverted the late nineteenth century common law
from the erroneous path it followed with respect to medical malpractice.

II. MEDICAL MALPRACTICE As NEGLIGENCE:
HISTORY AND JURISPRUDENCE

The words "negligence" and "malpractice" were strangers to fourteenth century common law.7 Yet through action on the case," medieval physicians were held answerable for professional misfeasance,
and it is almost inescapable that the rules through which their liability attached grew from the same sociopolitical impulses on which the concept of negligence9 as we know it now rests.'0

7. 1 THOMAS A. STREET, FOUNDATIONS OF LEGAL LIABILITY 187 (1906).

Indeed, they had no significance even to fifteenth, sixteenth, and seventeenth century

common law. Percy H. Winfield, The History of Negligence in the Law of Torts, 42 L.Q.

REV. 184, 194-95 (1926).

8. See infra notes 15, 16.

9. The modem American doctrine of negligence rests on the tenet that a

tortfeasor is liable when he or she causes injury by conduct falling short of judgment and

prudence that would be exercised by a person of ordinary sense and sensibility under

similar circumstances. See Henry T. Terry, Negligence, 29 HARV. L. REV. 40 (1915)

("[Niegigence is doing what a reasonable and prudent man would not have done or not

doing what such a man would have done."); 2 FOWLER V. HARPER & FLEMING JAMES,

JR., THE LAW OF TORTS 902-20 (1956) (Regarding any particular act under consideration,

"[tihe question [is] whether, considering how people generally act and the ordinary

exigencies of life, it will generally be reasonable to act in that way ....

The test of

reasonableness is what would be the conduct or judgment of what may be called a

standard man in the situation of the person whose conduct is in question."); See also infra

note 57 and accompanying text.

10. See Robert L. Rabin, The HistoricalDevelopment of the Fault Principle: A

Reinterpretation, 15 GA. L. REV. 925 (1981) (discussing the historical and sociopolitical

foundations of the negligence and fault principles). See generally Morris S. Arnold,

Accident, Mistake, And Rules of Liability In The Fourteenth-CenturyLaw of Torts, 128

U. PA. L. REV. 361 (1979); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN

LAW, 1770-1860, pp. 94-97 (1977); ALBERT K. R. KIRALFY, THE ACTION ON THE CASE

(1951); Percy H. Winfield & Arthur L. Goodhart, Trespass and Negligence, 49 L.Q.

REV. 359 (1932); Nathan Isaacs, Fault and Liability, 31 HARV. L. REV. 954 (1918); 2

SIMON GREENLEAF, A TREATISE ON THE LAW OF EVIDENCE §§ 85-92 (Edward A.

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Conceptually, therefore, medical malpractice actions were from their earliest origins no different from ordinary negligence suits."' That proposition is fundamental to the arguments that follow. However, this proposition is easier to state than prove-it occasions inquiry into
jurisprudence of the past. For as Justice Holmes taught, "[i]n law also, doctrine is illuminated by history. " "2
The reign of Henry IV offers the first reported recovery brought for damage by a physician's faulty practice. 3 The decision arose from the burgeoning doctrine requiring persons who practiced a "common calling" (meaning, probably, a skilled profession)14 to act as would any reason-
ably competent person practicing under like conditions or be liable for an action in trespass on the case. Conversely, persons selling services not
associated with a common calling were liable for flawed performance only if they had breached an "express" agreement to achieve or avoid a given result. The action raised in these cases was not trespass on the case but

Harriman ed., 16th ed. 1899); John H. Wigmore, Responsibility For Tortious Acts: Its History, 7 HARV. L. REV. 315 (1894); OLIVER W. HOLMES, THE COMMON LAW 77-96, 112 (1881). See also 3 THOMAS STREET, THE FOUNDATIONS OF LEGAL LIABILITY 182 (F.B. Rothman ed., 1980); THOMAS BEVIN, NEGLIGENCE IN LAW (3rd. ed. 1908).
11. The term "malpractice" apparently did not arise until the early nineteenth century. See infra note 32 and accompanying text.
12. .Kovacs v. Cooper, 336 U.S. 77, 95 (1949). 13. DeBance, Mich. 12 Hen. IV,m. 615, Yorks Arch. Soc. Rec., Ser. XVIII, p. 78. It is often reported that the first medical malpractice case arose in 1374 wherein plaintiff alleged that defendant surgeon had negligently treated his hand and thus caused damage. See also Allan H. McCoid, The Care Required of Medical Practitioners, 12 VAND. L. REV. 549, 550 (1959); C. Joseph Stetler, The History of Reported Medical ProfessionalLiability Cases, 30 TEMP. L.Q. 366, 367 (1957). In the 1374 case the court did indicate that the surgeon would be liable for failure to treat in a competent manner but barred the suit on the ground that it had been pled in trespass on the case and not in trespass vi et armis. Y.B. Hill. 48 Edw. III, f. 6 (1374). That decision derived from a pleading principle that was then near the end of its useful life. See F. W. MAITLAND, EQUITY; ALSO THE FORMS OF ACTION AT COMMON LAW (A.H. Chaytor & W.J.
Whittaker eds., 1916); FREDERICK G. KEMPN, LEGAL HISTORY LAW AND SOCIAL CHANGE, 71-75 (1963); H. POTTER, HISTORICAL INTRODUCTION TO ENGLISH LAW AND ITS INSTITUTIONS 455-65 (A.K.R. Kiralfy ed., 4th ed. 1958). The law had not yet adopted the emerging rule requiring that the practitioner of a common calling deliver competent professional service or be chargeable in trespass on the case. See infra notes 15 and 16; see also McCoid, supra, at 543.
14. Although the meaning of the phrase "common calling," as then used, was elusive and equivocal, it probably described a profession that: (1) called for skill, and (2) on the occasion in question was actually practiced by one who regularly held himself out as possessing such skill. Hence, the word "common" bespoke both the notion of skill and the fact that the practitioner held himself out as commonly practicing the profession with the requisite skill. See 3 WILLIAM BLACKSTONE, COMMENTARIES 165. See also Winfield, The History of Negligence in the Law of Torts, 42 L.Q. REV. 184, 185-89; OLIVER W. HOLMES, THE COMMON LAW 183 (1881).

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assumpsit on the case. 5 Under early common law, such cases required
the plaintiff to establish that the defendant had expressly promised to avoid the alleged damage. 6 With respect to a common calling, however, the practitioner had a legal duty to exercise care and prudence independent of any express agreement.
Hence, in the 1500s, Fitzherbert averred that "[i]f a smith prick my horse with a nail, I shall have my action on the case against him without
any warranty by the smith to do it well; for it is the duty of every artificer to exercise his art rightly and truly as he ought." 17 "Such
actions," wrote a fourteenth century court, "go to a matter. . . beyond
. . . covenant. . . The plaintiffs have suffered a wrong."'" Medicine,

15. See MArLAND, supranote 13, at 360-63 (regarding the history of assumpsit on the case, its historical-jurisprudential relationship to pure assumpsit and to trespass on the case, and its relevance to the modem contract action). See also F. B. Ames, The History of Asssumpsit, ." Express Assumpsit, 2 HARV. L. REV. 1 (1888); F. B. Ames, The History of Asssumpsit, II." Implied Assumpsit, 2 HARV. L. REV. 53 (1888); George E. Woodbine, The Origins of the Action of Trespass, 34 YALE L.J. 343 (1925); C. H. S. FIFOOT, HISTORY AND SOURCES OF THE COMMON LAW (1949):
16. See supra note 15; see also FREDERICK G. KEMPIN, JR., LEGAL HISTORY LAW AND SOCIAL CHANGE, 79-83 (1963); Charles K. Burdick, The Origin of The Peculiar Duties of Public Service Companies, 11 COLUM. L. REV. 514, 516 (1911); Norman F. Arterbum, The OriginAnd First Test of Public Callings, 75 U. PA. L. REV. 411, 418 (1927); James B. Ames, History of Assumpsit, in SELECT ESSAYS IN ANGLO AMERICAN LEGAL HISTORY 259-65 (Assoc. of American Law Schools ed., 1909).
As a result, substandard treatment of a plaintiff's horse thus imposed no liability on the practitioners who had not held themselves out as skilled veterinarians. Y.B. 19 Hen. VI, f. 49, pl. 5 (1440) ("You have not shown that he is a common surgeon to cure such horses, and so, although he killed your horse by his medicines, you have not action against him without an assumpsit."); see also Winfield, supra note 7, at 185-89 (1926).
17. Fitz. Nat. Brev. 94 D (1514).
18. 3 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW, 430 (6th ed. 1934)
(citing Y.B. 14 Hy. VI. p. 18.; cf Ames' summary, Lectures 130) (emphasis added): If a carpenter ... makes a covenant with me to make me a house good and strong and of a certain form, and he makes me a house which is weak and bad
and of another form, I shall have an action of trespass on my case. So if a smith makes a covenant with me to shoe my horse well and properly, and he shoes him and lames him, I shall have a good action. So if a doctor takes upon himself to cure me of my diseases, and he gives me medicines, but does not cure me, I shall have action on my case. So if a man makes a covenant with me to plough my land in seasonable time, and he ploughs in a time which is not seasonable, I shall have action on my case. And the cause is in all these cases that there is an undertaking and a matter in fact beyond the matter which sounds merely in covenant ... In these cases the plaintiffs have suffered a wrong. 3 HOLDSWORTH, supraat 430. (all emphasis supplied). Referring to the fourteenth century, Holmes wrote likewise: If damage had been done or occasioned by the act or omission of the

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of course, was a "common calling," 9 and careless or inattentive physicians were thus answerable not for breach of agreement, but for a "wrong" per se. 2' They were liable in action on the case, and their

defendant in the pursuits of some of the more common callings ... it seems
that the action would be maintained, without laying an assumpsit. . . Mhe
• . . principle . . . expressed the general obligation of those exercising a public or common business to practise their art on demand, and show skill in it. HOLMES, supra note 14, at 183-84. See also Winfield, supra note 7, at 185-89. 19. See Winfield, supra, at 187 note 7, n.7 (citing Y.B. Hil. 48 Edw. III, f. 6; Groenvelt's Case, 91 Eng. Rep. 1038 (1697); Slater v. Baker, 95 Eng. Rep. 860 (1767); Seare v. Prentice, 103 Eng. Rep. 376 (1807). 20. The obligation of care imposed on common callings was said to arise from a contract "implied by law." It was written, by law the professional was party to an
implied contract requiring him to practice his profession skillfully, carefully and properly. Blackstone wrote of the early common law "supposition, that every one who undertakes any office, employment, trust, or duty, contracts with those who employ or entrust him, to perform it with integrity, diligence, and skill. And, if by his want of either of those qualities any injury accrues to individuals, they have therefore their remedy in damages by a special action on the case." 3 BLACKSTONE, supra note 14, at 165 (emphasis added). Such contracts "implied by law," however, constitute no more than a perverse legal fiction through which the medieval courts sought to reconcile, in form, a new and novel legal duty with existing legal doctrine and device. In 1893, Keener studied the genesis of the contract "implied in law" (known also as quasi-contract) and wrote, in relation to the early common law,
[i]f the wrong complained of would not sustain an action, either in contract or [trespass] then the plaintiff was without redress . . . . The judges attempted, however, by means of fictions, to adapt the old remedies to ... new rights, with the result usually following the attempt to put new wine into old bottles. ..
mhe courts in using a purely contractual remedy to give relief in a
class of cases possessing none of the elements of contract . . . resorted to
fictions to justify such a course. mhe insuperable difficulty of proving a
promise where none existed was met by the statement that "the law implied a promise. William A. Keener, Quasi-Contract,Its NatureAnd Scope, 2 HARV. L. REV. 57, 66-67 (1893) (emphasis added). "The statement that the law imposes the obligation would not have met the difficulties," Keener explained, because it would not have been consonant with any doctrine then known. "The fiction of a promise was adopted then in this class of cases -solely that the remedy of a [contract] might be used to cover a class of cases where, in fact, there was no promise." Id. See also infra note 51 and accompanying text. There can be no substantive difference between a contract implied by law wherein one is bound to manifest care, prudence, and attention and a forthrightly identified legal duty whereby one is bound to fashion her behavior after those same attributes. Any distinction between the two is misleading. Notwithstanding the references to contract, logic and scrutiny dictate that the obligations attached to the common callings in medieval England were legal duties arising from the law's wish to create them anew. The contract implied in law is a costume designed to disguise that truth.

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patients need not have pled assumpsit.
Trespass on the case, is often described as the precursor to negligence, but the two actions are not so tightly tied as is often taught.2 To elucidate the link between the liability early imposed on the careless physician and today's notions of negligence one must first examine certain
of the basic principles from which modern negligence law proceeds and, second, study the medieval common calling rule to ascertain whether it vindicates those principles.
A negligence action proceeds from two oft-stated premises. The first pertains to duty and the Second to the circumstances surrounding the defendant at the time of the allegedly negligent conduct. With respect to

Such, of course, is always the use of legal fictions: they are distortions of language and thought, pressed into service when a court wishes to change nothing while it changes everything. See ROBERT H. JACKSON, STRUGOLE FOR JUDICIAL SUPREMACY 293 (1941) (Legal fictions "enable lawyers to use old forms and procedures to gain new ends."); Oliver R. Mitchell, The Fictions of the Law: Have They Proved Useful or Detrimental To Its Growth?, 7 HARV. L. REV. 249, 262 (1893) ("A legal fiction is a device which attempts to conceal the fact that a judicial decision is not in harmony with the existing law. The only use and purpose, upon the last analysis, of any legal fiction is to nominally conceal this fact that the law has undergone a change at the hands of the judges."). See also JOHN C. GRAY, THE NATURE AND SOURCES OF THE LAw 30 (1909); Jeremy Bentham, Preface Intended For The Second Edition of the Fragment on Government, in A COMMENT ON THE COMMENTARIES AND FRAGMENT ON GOVERNMENT 502, 509 (James H. Burns & H.L.A. Hart eds., 1977); Jeremy Bentham, A Comment on the Commentaries, in A COMMENT ON THE COMMENTARIES AND FRAGMENT ON GOVERNMENT, supra, at 58; Jeremy Bentham, The Elements ofthe Art of Packing, as Applied to Special Juries,in 5 THE WORKS OF JEREMY BENTHAM 61, 92 (John Bowring ed., 1843); Oliver W. Holmes, Law in Science and Science in Law, 12 HARV. L. REV. 443, 460 (1899); Louise Harmon, Falling Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment, 100 YALE L.J. 1, 2-16 (1990).
21. In 1926, Winfield probed the historical connection between negligence and action on the case by examining, among other sources, the "abridgments" of scholars who, from the fifteenth to nineteenth centuries, sought to catalog, translate, and annotate English decisions. Winfield, supra note 7. Referring to.the works of Rolle, Sheppard, Bacon, Viner, and Comyns, Winfield wrote that the term negligence as a subject heading
generally does not exist. . . . But under the title, 'Actions upon the case,' there are attempts to classify the heap of unsifted matter of which those remedies had become the nucleus, and there is a misty conception that inadvertent acts and
omissions should form a separate class. The idea barely exists in Rolle (1668), but it gets less nebulous with his successors, until it appears as 'action upon the case for negligence' in Comyns (1762). Winfield, supra note 7, at 194-95. Winfield concludes that until the nineteenth century,
"the history of negligence is a skein of threads, most of which are fairly distinct, and no matter where we cut the skein we shall get little more than a bundle of frayed ends." Id. at 185.

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the first premise, defendants must owe a plaintiff a so-called duty of care;' That is, his relationship with the plaintiff must legally oblige them to meet some specified standard of conduct. Unreasonableness,
carelessness, neglect, imprudence, and inattentiveness do not of themselves create liability for damage they cause. They do so only if, with respect to the plaintiff, the defendant has some legal duty to be reasonable, careful, prudent, and attentive. Such has been the rule since scholars first explained the essence of negligence.' Whether the courts
took their cues from the commentators or the commentators took theirs from the courts is unclear, but in either event the notion of duty as prerequisite to a negligence action took root early among common law judges and holds fast today in Anglo-American jurisprudence.'

22. See Fleming James, Jr., Scope ofDuty in Negligence Cases, 47 NW. U. L.
REv. 778 (1953). 23. See 1 C. G. ADDISON, A TREATISE ON THE LAW OF TORTS 19 (4th ed. 1876)
("But before an action can be maintained, it must of course be clearly proved that the law imposes upon the defendant the duty which he is charged with neglecting."); THOMAS M.
COOLEY, A TREATISE ON THE LAW OF TORTS 791-92 (2d ed. 1888) ("The first requisite in establishing negligence is to show the existence of the duty which it is supposed has not been performed. A duty may be general and owing to everybody or it may be particular, and owing to a single person only, by reason of his peculiar position."); 1 THOMAS A. STREET, FOUNDATIONS OF LEGAL LIABILITY 195 n.5 (1906) ("The law of negligence historically starts from the idea of failure in the performance of a determinable provable legal duty."); FOWLER V. HARPER, A TREATISE ON THE LAW OF TORTS 157 (1933)
("Negligence can exist only when the law imposes a duty to employ care."). See also 1 THOMAs BEVEN, NEGLIGENCE IN LAW 7-8 (4th ed. 1928).
24. See, e.g., Degg v. Midland Ry. Co., 156 Eng. Rep. 1413 (1857) ("inhere is no absolute or intrinsic negligence; it is always relative to some circumstances of time, place or person .... There can be no action except in respect of a duty infringed.");
Heaven v. Pender, 52 L.J.K.B. 702 (1883) ("[Whenever one person is by circumstance placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger."); Le Lievre v. Gould, 1 Q.B. 491, 497 (1893) ("The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence .... A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them."); Bottomley v. Bannister, 12 K.B. 458, 476 (1932) ("It is a commonplace of the law of negligence that before you can establish liability for negligence you must first show that the law recognizes some duty towards the person who puts forward the claim .... English law does not recognize duty in the air, so to speak; that is, a duty to undertake that no one shall suffer from one's carelessness."); Tappen v. Ager, 599 F.2d 376, 379 (10th Cir. 1979) ("Negligence does not exist in the abstract, it contemplates a legal duty owing from one party to another and the violation of that duty by the person
owing it.").
Scholars are reminded, however, that "duty" as theoretical concept poses one of the

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Where the defendant's duty is established, he is required to exercise
the care that would be given by a reasonable person. To the modern legal mind, the importance of "surrounding circumstances" is nearly selfevident, for it means that conduct is reasonable or unreasonable depending on the situation in which it is undertaken. Yet this was not obvious to lawyers of the nineteenth century, and some conscientious courts took trouble to make it plain:

The issues . . . involve [] the question of the exercise of ordinary care and prudence.... The solution of these questions depends upon the peculiar facts and circumstances of each case, the state and condition of the parties; the manner in which, and the circumstances under which, the injury was received or inflicted; in short, all the circumstances surrounding the transaction which in any way reflect upon either the degree of care or the manner in which, in the particular case, it should have been exercised. The circumstances are all relevant, and may be given to the jury. . . . They form, so to speak, a part of the res gesta of the transaction; they are the circumstances under which it occurred, and indicate the agencies which caused
it .... 25

more vexing questions to which modem jurisprudence is heir. See, e.g., William L. Prosser, PalsgrafRevisited, 52 MICH. L. REv. 1 (1953); W. W. Buckland, The Duty To Take Care, 51 L. Q. REV. 637; Leon Green, The Duty Problem in Negligence Cases, 28 COLUM. L. REV. 1014 (1928); Leon Green, The Duty Problem in Negligence Cases: I1, 28 COLUM. L. REV. 1014 (1928).
25. Cleveland, Columbus & Cincinnati R.R. Co. v. Terry, 8 Ohio St. 570, 580 (1858).
So what would be reasonable care, in one driving a carriage on an ordinary road, and about to meet another carriage, coming upon another road of the same description, which intersects it might, if that were a railroad on which cars were advancing, be considered gross negligence, in consequence of the velocity with which carriages, on the latter kind of road, are propelled, and the comparative difficulty of controlling them. So, for obvious reasons, it is usually less safe, to drive rapidly in turning the corners or passing the crosswalks of streets, it is usually less safe, to drive rapidly in turning the corners or passing the cross-walks of streets, than where the course is straight, or there are no such walks. Reasonable care requires that, in all cases, the precautions should be proportioned to the probable danger of injury; and the question as to the exercise of such care, is to be determined like other questions of fact. Id. at 580. See also Beers v. Housatonue R.R. Co., 19 Conn. 566, 577 (1849); Cayzer v. Taylor, 76 Mass. (10 Gray) 271, 280 (1883); ("What would be ordinary care in one case may be gross negligence in another."); Brown v. Kendall, 60 Mass. (6 Cush.) 292, 293 (1850) (ordinary care varies according to the exigencies); Fletcher v. Boston & Maine R.R., 83 Mass. (1 Allen) 9, 15 (Mass. 1861) ("Ordinary care is a term that has relation

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One Hundred Years of Harmful Error: The Historical