The Jealous Mistress, Part X: Multi-Tasking in the Wild

Many years ago a game warden in California by the name of Carl Lund was found dead in his government-issued car in a remote location in the northern part of the state. He had been on duty the night of his death, and the area was one where illegal deer hunting often occurred. As a convenience, wardens’ cars had been equipped with beds, and the wardens were permitted to sleep in them when on night patrol.

Lund failed to return from one such outing, and a search discovered him dead in his car. The two-way radio, ignition switch, and heater were on and the gas tank was empty. All the windows but one small wing vent were closed. Lund’s skin was cherry red, a classic sign of carbon monoxide poisoning. The scene was that of a common suicide or accidental asphyxiation, except for one thing: beside Lund’s body was the similarly dead body of a woman, one Chelsea Miami. “The bodies were clad respectively only in shorts and panties and were partially covered by a blanket,” according to the court opinion. You can do the math.

Lund’s widow filed a workers compensation claim, asserting that her husband's death had occurred in the line of duty. The state—Lund’s former employer—argued that he had left his post in favor of dalliance, that he was therefore not on duty at the time, and that workers compensation was therefore not due. The Industrial Accident Commission, overseer of the workers compensation system, agreed with Mrs. Lund and issued death benefits. The state appealed.

It is not the prerogative of appellate courts to substitute their interpretation of the facts for that made in the tribunal below. We saw this in Buck v. Bell, where Carrie Buck, her mother, and her daughter were deemed mentally handicapped by the jury based the evidence before them. Unless there was no way a reasonable jury could have reached that conclusion from the evidence presented, those facts had to be accepted by the appellate courts. Their only province is to determine whether the lower courts applied the law correctly.

Interestingly, the situation is much like the instant replay rule in professional sports. Unless a review shows that the referee's call was clearly wrong, “the ruling on the field stands.”

In Lund, the  California appellate court clearly knew what was going on that car one chilly night in 1948. They even said as much:

[W]e are well aware of the contrary inferences which might have been drawn from the same set of facts. The secluded spot in a remote area could have been selected by Lund for its advantages as a rendezvous in which to conduct an illicit love affair. The manner in which the cars were parked, the state of partial dishabille [undress] in which the bodies were found, the fact that Lund had divested himself of his uniform and placed his gun and boots underneath the seat, all are circumstances from which the trier of facts [in this case, the Industrial Accident Commission] might have reasonably concluded that he had either abandoned or deviated from his duty.

In other words, had these judges been sitting on the Commission they might have decided that at the time of his death Lund was more engaged in sexual congress than law enforcement and should not be entitled to benefits. But workers compensation laws intentionally favor claimants, and the judges could not say that the commissioners’ decision was clearly wrong. They wrote:

Lund, while acting in the scope of his employment, was permitted to drive to isolated spots where game violators might be found. It was a matter of discretion with him whether or not at such times he converted the car into a bed and slept. In so doing he was acting within the course of his employment. There was no rule which forbade him from having company while on duty, and the presence of a woman in the car with him does not necessarily compel a conclusion that he had thereby either abandoned his employment or deviated therefrom.

To use a twenty-first century expression, Lund was “multi-tasking.” And one can sensibly conclude that he was still on duty at the time of his death. So the court deferred to the judgment of the IAC. “There being a choice between two inferences reasonably deducible from the evidence, we cannot say that the commission acted … in excess of its power or that its findings of fact were unreasonable,” the opinion states.

Although undoubtedly chagrined by the circumstances, Mrs. Lund was probably somewhat mollified by the outcome of the case.

No word on the family of the late Ms. Miami. ■

The Jealous Mistress, Part IX: Hey Diddle Diddle

Sex enlivens a story. Illicit sex enlivens it even more. This particular vignette occurred some three score years ago in North Carolina.

Jeffrey Mazza suffered from bipolar disorder. Patients with this diagnosis have extreme and usually unpredictable mood swings that cycle between mania and depression. They have difficulty organizing and planning, judging others’ emotions, and staying in touch with reality. Every experience to them seems either positive or negative, triumphal or disastrous. There is a high risk of suicide.

Bipolar disorder is usually treated with medication and/or counseling. Robert Huffaker, a psychiatrist, had been treating Mazza for four years and had prescribed him both medication and psychoanalysis. During counseling he was “encouraged to have very intimate, self-revelatory, and uninhibited discussions” with Dr. Huffaker. At least once he “expressed to Huffaker serious concern about maintaining a healthy marital relationship with his wife.” While undergoing this psychotherapy Mazza came to think of Huffaker as his best friend. In medical jargon this is called “transference,” a common but unfortunate phenomenon, as we shall see.

One day in the summer of 1979, Mazza called his estrange wife at home. He testified that because of her telephone demeanor, he became “concerned about her well-being.” In truth, it is likely that he knew something was afoot. He decided to pay her a visit “to make sure everything was OK.” The judge describes the scene as follows:

Plaintiff observed his psychiatrist's automobile parked near the ... house and saw some of his psychiatrist’s clothing strewn about the family room. Upon approaching and [breaking into] the locked master bedroom, plaintiff discovered his psychiatrist … and his wife … together in bed. Huffaker was naked and putting on his undershorts, and [Mrs. Mazza] was naked and putting on a light housecoat. 

As can be expected there followed a bit of a kerfuffle, about which more later.

This scene is not particularly uncommon, human nature being what it is. And medical standards being what they are, the jury in the ensuing lawsuit found Dr. Huffaker to have breached his professional duty and violated his patient’s trust and “friendship.” They awarded Mazza a hefty sum.

No surprise thus far. But what is surprising about Mazza v. Huffaker is the vigor with which the defendant appealed to the North Carolina Supreme Court. Through his lawyers he raised more than 13 points that he said justifying reversing the lower court’s decision. I say “more than 13” because the opinion alludes to “additional assignments of error” that the judges considered and rejected en masse. Apparently those assertions were even more puerile than the ones the court did address. Of the thirteen somewhat tenable arguments, three are worthy of the Jealous Mistress’s attention.

First, Huffaker argued that too much importance was given to expert testimony which said that having sex with your patient’s wife is an act of malpractice. And next the good doctor contended that it was an error to allow “expert testimony that sexual relations between a psychiatrist and the wife of a patient would render useless the previous treatment of the patient by the psychiatrist and would make it extremely difficult for the patient to enter ever again into a trusting relationship with any other psychiatrist.” [Translation: That seeing your doctor diddle your wife could send you off the deep end, especially if you have manic depressive psychosis, mood swings, lose touch with reality, tend toward catastrophizing, and are suicidal.]

The court rejected both of these arguments out of hand. They were puerile, to be sure, but the most inane argument Huffaker made concerned Mazza’s alleged “contributory negligence.”

Contributory negligence is a common legalism that essentially means “it's the plaintiff’s own dumb fault.” Huffaker argued that Mazza contributed to his own psychological injury and should have known better because: (1) before coming to the house he already suspected the two were having an affair; (2) before he broke down the door he had seen the doctor’s car outside and his clothes in the family room; and (3) he knew enough about his mental condition that he should have know the situation would be distressing to him.

Huffaker’s lawyers argued that “this evidence shows that plaintiff in entering the bedroom did not exercise ordinary care for his own safety in light of a foreseeable danger and unreasonable risk and that his conduct contributed to his injury.”

OMG! The lawyers actually argued this with a straight face? In the courtroom? In front of God and everybody? The justices’ closed-door deliberations on this point must have been something to behold.

After composing themselves, the judges disposed of the issue as summarily: “We have carefully perused the record in light of defendant’s imaginative contentions with respect to an issue of contributory negligence.…  We can hardly perceive of a situation where an issue of contributory negligence would be less appropriate.” The JM admires their restraint.

Finally, in the trial court Dr. Huffaker had asserted a retaliatory claim against Mazza for assault, battery, and destruction of personal property. This was because, after finding the two lovebirds in flagrante delicto, Mazza “aimed a loaded shotgun at Huffaker and fired the gun over Huffaker's head, just missing him. Plaintiff and Huffaker then wrestled and during the affray plaintiff tried to gouge out both of Huffaker's eyeballs and thereby bruised them.”

“A few days later,” the opinion continues, “Mazza located defendant Huffaker's automobile and slashed two of its tires with a pocketknife and removed from the automobile Huffaker's briefcase and suitcase.”

The trial judge refused to let the jury consider this claim and the Supreme Court agreed:

[W]e hold as a matter of law that the trial judge correctly refused to submit [to the jury] an issue of punitive damage on defendant’s counterclaim, in light of the undeniable evidence of Huffaker’s provoking conduct. 

In other words, you had it coming, doc!

Thus did the justices of the North Carolina Supreme Court affirm the verdict against Dr. Huffaker and enshrine in the law books a delicious human-interest story. In the process they may have confirmed some conventional wisdom: “Ya’ gotta be nuts to see a psychiatrist … or to be one.”

* * *

Mazza v. Huffaker did not set any significant legal precedent, and I have not found it referred to in any other judicial decisions. The brazenness of the arguments aside, it is a mundane case—one of many involving an illicit tryst gone bad. Most such cases end up in divorce court or the criminal justice system. Strangely, however, at least one found its way into California’s workers compensation system. That will be the subject of our next chapter: “Multi-Tasking in the Wild.”

The Jealous Mistress, Part VIII: How Cars Changed the Law

Special Note: This is another article in the series begun last October by the Jealous Mistress. She hopes you will enjoy, or at least tolerate, her reflections on interesting court decisions. Posts from the Hermit Philosopher himself may appear from time to time on this blog, but the point of the JM’s musings is to collect articles for a forthcoming book manuscript. And now please consider: How Cars Changed the Law.

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Thinking about poor Mrs. Palsgraf (see previous blog post) leads the Jealous Mistress to recall another famous Cardozo case: MacPherson v. Buick Motor Co.  Decided twelve years before Palsgraph, this involved a 1909 model Buick Runabout and its wooden wheels. (Yes, like those of horse-drawn carriages, car wheels were made of wood in the early days.)

A third party manufactured the wheels, Buick installed them on the vehicle and sold it to a local dealer who then sold it to Mr. MacPherson. While he was driving one day, one of the wheels suddenly collapsed and MacPherson was thrown out and injured. “One of the wheels was made of defective wood, and its spokes crumbled into fragments,” the opinion states.  

There was evidence of negligence—the defects could have been discovered upon inspection and no inspection was done—but Buick denied liability because there was no privity of contract between it and Mr. MacPherson. (“Privity” is the principle that a contract cannot impose obligations upon anyone who is not a party to it.)

The question for Justice Cardozo, therefore, was “whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser.” Today we would certainly say “yes,” and that’s why cars come with warranties. But in 1916 this was a novel question. If privity of contract controlled the case, MacPherson would be standing out in the cold beside his broken-down vehicle.

Before repairing to the garage, so to speak, to see how Cardozo managed to achieve justice and change the common law, some New York history is in order.

In the 1840s a couple of industrious gentlemen, Messrs. Winchester and Gilbert, were engaged in selling medicine in lower Manhattan. Among their potions were extracts of dandelion and belladonna. Dandelion was used to treat fevers, boils, diarrhea, skin ailments, and sundry other maladies. Women used belladonna (Italian for “beautiful lady”) to dilate their pupils and make them look more attractive to the males of the species. Unfortunately, belladonna is actually the highly toxic vegetable poison known as “deadly nightshade.”

One day a certain druggist named Aspinwall obtained from Winchester and Gilbert a jar of belladonna that had been mislabeled as dandelion extract, which is harmless. Aspinwall later sold the mislabeled product to another druggist who, filling a physician's prescription for extract of dandelion, unknowingly dispensed some belladonna to Mrs. Mary Ann Thomas. The court record shows that “a small quantity of the medicine thus purchased was administered to Mrs. Thomas, on whom it produced very alarming effects ... such as coldness of the surface and extremities, feebleness of circulation, spasms of the muscles, giddiness of the head, dilation of the pupils of the eyes, and derangement of mind.” Mrs. Thomas eventually recovered, but for awhile she was in mortal danger.

Undoubtedly thankful to be alive but resentful of the pharmacists’ carelessness, Mrs. Thomas sued Winchester and Gilbert. But she had a problem: she had no contractual relationship (no “privity”) with them. They had sold the mislabeled belladonna to a druggist, who sold it to another druggist, who eventually dispensed it to the unfortunate patient. Being thus contractually distant from the miscreant, the ordinary legal principles were of no use to Mrs. Thomas.

But this was of no moment to the New York Court of Appeals. Sensibly, they ruled that a deadly poison is inherently dangerous and that one who labels it negligently is responsible for the foreseeable result of his error. “The defendant's negligence put human life in immediate danger,” they wrote. “Can it be said that there was no duty on the part of the defendant to avoid the creation of that danger by the exercise of greater caution?”   

Decided in 1852, the Thomas case begat Devlin v. Smith in 1882 (involving a defective scaffold), which begat Statler v. Ray Mfg. Co. in 1909 (involving an exploding coffee urn).  In each of these cases, the one who created the offending article was accountable not because he was in privity with the ones injured but because his product was likely to be dangerous if not made properly. So in MacPherson Cardozo writes:

It may be that [Devlin and Statler] have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons—things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning.

Let's pause to consider what is happening here. The Thomas case involved poison, something that is dangerous even when made and used correctly, so in deciding that case it was enough to talk only of items that are inherently dangerous. But an automobile is not such an instrumentality, thus Cardozo has to apply the dangerousness principle to a situation that was not foreseen when it was first articulated. In doing so, he is laying the foundation for products liability law, an entirely new concept. He does so carefully:

A scaffold … is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn … may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction…. We are not required at this time either to approve or disapprove the application of the rule that was made in these earlier cases. It is enough that they help to characterize the trend of judicial thought.

So even if an instrumentality is not inherently dangerous in the same way that poisons, explosives, and similar things are, this general principle still applies: “[I]f it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger.”  

Now Cardozo returns to the matter of poor Mr. MacPherson’s wrecked Buick:

From this survey of the decisions, there thus emerges a definition of the duty of a manufacturer which enables us to measure this defendant's liability. Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This automobile was designed to go fifty miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The defendant knew the danger. It knew also that the car would be used by persons other than the buyer.… The maker of this car supplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin supplied the scaffold for use by the servants of the owner. The dealer was indeed the one person of whom it might be said with some [degree of] certainty that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion.

Finally, the Judge drives home his point with three important sentences. “Precedents drawn from the days of travel by Stagecoach do not fit the conditions of travel today. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.”

In McPherson, Cardozo has used experience to create the basic premise of products liability law: that the producer must bear his goods’ external costs to society. That duty comes from the perception of risk.

Undoubtedly, automobile magnates around Detroit used terms like “activist judges” and “judge made law” over their brandy and cigars in condemning the McPherson decision. But judges don’t actively seek out cases; they only decide the ones brought to them. And Cardozo was better at it than most.

We thank the gods of Serendip—the old name for Sri Lanka and the source of the word serendipity—for the gift of fortunate discovery. We have discovered that Mr. McPherson's juridic family tree has branches that touch the Thomas, Devlin, Statler, and Palsgraf families. The concept of “duty” was the genetic marker all of them shared. ■

The Jealous Mistress, Part VII: A Writer Extraordinaire

Benjamin Nathan Cardozo—called the “hermit philosopher” due to his lofty principles and permanent bachelorhood—was one of the great jurists and legal stylists of the twentieth century. He served on New York’s highest tribunal and the US Supreme Court.

His opinions in both venues have sometimes been criticized for excessively flowery language, but “his use of metaphor and aphorism make for compression and vividness [and result in] works of judicial art,” according the US Court of Appeals judge Richard Posner, himself a writer extraordinaire. A sampling of Cardozo’s opinions reveals why he is so highly regarded.

Although not always right (by today’s standards, at least), Cardozo was seldom in doubt. And he often stated his conclusions in a way that effectively foreclosed further debate. For example, in People v. Defore he held that evidence could be admitted at trial even if it was illegally seized by the police. He felt it wrong that “the criminal is to go free because the constable has blundered.”

A turn of phrase like this brings one up short. And right or wrong, these eleven memorable words—which remain burned into the memories of many judges, prosecutors and law students—underlay the law of New York for more than three decades until the US Supreme Court adopted the “exclusionary rule” in 1961.

Continuing our sample of Cardozo’s opinions we see that he was fond of reversing subject and predicate. Others have done this to fine effect, like Robert Frost (“something there is that does not love a wall”), Shakespeare (“something wicked this way comes”), and even Yoda (“named must your fear be before banish it you can”).

These constructions sound strange to our twenty-first century ears, but the technique gives one’s prose a poetic feel, and most effectively did Cardozo use it.

[By the way, Cardozo was also fond of “postpositives,” the technique of placing the adjective behind the noun it modifies, as in “writer extraordinaire” and “An Honor Most Sensitive,” the title of my previous blog entry.]

Palsgraf v. Long Island Railroad Co. contains an example of Cardozo’s fetish for subject/verb inversion. While trying to help a late-arriving passenger to board a moving train, a railroad employee dislodged an unremarkable package the man was carrying. The package contained fireworks. (Why the man was carrying fireworks is not clear, and it doesn’t really matter, but today he couldn’t get through security.) The package fell onto the rails and exploded when the train’s wheels ran over it.

According to the opinion, “The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which he sues.”

To this day I don’t understand how “fireworks” could knock scales over, but how it happened is beside the point. The fact is that the plaintiff was injured and it was the courts’ job to sort through the legal jumble. After Mrs. Palsgraf won at the trial and appellate court levels, the railroad appealed to New York’s highest court. The issue there was: what duty did the railroad, through its employees, owe to Mrs. Palsgraf?

In Cardozo’s view, her injury was not a foreseeable result of someone being helped onto the train, even if the help was provided negligently. He used an example (and a subject/predicate reversal) to make his point:

We are told that one who drives at a reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but … only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality.

In other words, there was no apparent hazard to Mrs. Palsgraf; she was “many feet away” and not in any danger zone due to the railroad employee’s actions.

Millions of words have been penned in analyzing this case. And countless frustrated first-year law students have bumbled through cross examination by torts professors while presenting it in class. Further analysis I will not attempt, but the opinion is classic Cardozo: vibrant, poetic, and anything but banal.

My train of thought, with or without exploding fireworks, will travel next to another classic Cardozo opinion: one in which the wheels of justice are made of wood. Stay tuned for the next blog posting.

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