|
Abstract
|
... "The timorous may stay at home." -- Judge Benjamin Cardozo, Murphy v. Steeplechase Amusement Co.3
In 1929, the New York State Court of Appeals rendered its decision in a personal injury lawsuit brought by a man injured in an amusement park.4 Steeplechase Amusement Company, which operated a park at Coney Island, featured a thrill ride known as "The Flopper," in which riders attempted to stand on a conveyor belt moving on an upward incline.5 Part of the purported fun of the ride came when the riders, unable to maintain their balance due to the belt's motion, tumbled to the ground.6 For one rider, however, the fun came to a swift end when the jolting conveyor belt sent him falling forward, causing him to suffer a fractured kneecap.7 Angered by his injuries, this rider--characterized by the court as "a vigorous young man"--sued Steeplechase Amusement Company, arguing that the ride was "dangerous to life and limb" and pointing to his fractured patella as a demonstration of The Flopper's perils.8
Yet the plaintiff, despite an initial victory in the First Department of New York State's Appellate Division, found no sympathy at the New York State Court of Appeals.9 Writing for the court's majority, Chief Judge Benjamin Cardozo declared that when this "vigorous young man" boarded The Flopper on that fateful day, he had assumed all risks of injury.10 "The plaintiff was not seeking a retreat for meditation," Cardozo wrote.11 "Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took a chance of a like fate, with whatever damage to his body might ensue from such a fall."12
Had Cardozo ended there, posterity might have known little of Murphy v. Steeplechase Amusement Company and the debates about The Flopper in the halls of the New York State Court of Appeals. Cardozo, however, had an uncanny knack for taking relatively obscure cases and elevating them to judicial immortality through his prescient language.13 This case proved to be no exception to that trend, for Cardozo concluded the pivotal paragraph of his opinion with words that resounded far beyond the confines of this dispute, a single sentence that judges and lawyers have recited in personal injury cases for nearly a century since: "The timorous may stay at home."14
In the personal injury context, Cardozo's overall opinion in Murphy makes sense. A person who goes to an amusement park seeking a thrill inherently assumes the risk of injuries resulting from that thrill.15 All evidence indicated that The Flopper was well-known as a ride where riders tumbled against each other and onto the ground.16 No credible evidence, according to Cardozo's findings, suggested that the ride had malfunctioned, nor did the facts of the case indicate that any other form of misconduct had occurred on that day.17 This was simply a matter involving a young man who knowingly and willingly boarded a risky ride and suffered the consequences of his actions when that risk ended in physical harm.18 Centuries earlier, the Roman jurist Ulpian had formulated the maxim Volenti non fit injuria--roughly translated as "to a willing person, an injury is not done"--regarding Roman citizens who voluntarily placed themselves in positions of heightened risk.19 In the case of the injury resulting from The Flopper, Ulpian's ages-old doctrine continued to maintain its time-honored relevance.20
Today, however, this strain of thought from Ulpian to Cardozo has morphed in new and broader directions.21 "The timorous may stay at home" is no longer merely a phrase applied to plaintiffs who voluntarily assumed risk in a personal injury matter.22 Instead, it is now a central ideological pillar of rhetoric from politicians, commentators, and even from the United States Supreme Court itself.23 None of these parties tend to reach back to 1929 and quote Cardozo's language directly, but the principle that certain places in this world are simply not fit for "the timorous" has become a feature of American political and legal life.24...
3 Murphy v. Steeplechase Amusement Co., 166 N.E. 173, 174 (N.Y. 1929).
4 See id. at 174-75.
5 See id. at 173.
6 See id. at 174
7 See id.
8 See id.
9 See id. at 175.
10 See id. at 174.
11 Id.
12 Id.
13 See, e.g., Palko v. Connecticut, 302 U.S. 319, 327-29 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969) (quoting Hebert v. Louisiana, 272 U.S. 312, 316 (1926)) (taking a routine double jeopardy case and crafting a still-cited opinion focusing on the "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions"); MacPherson v. Buick Motor Co., 111 N.E. 1050, 1054-55 (N.Y. 1916) (writing, in a products liability case, an opinion focusing on the duty of care from manufacturer to purchaser that today is still quoted in tort law casebooks in law schools across the nation); Wood v. Lucy, Lady Duff-Gordon, 118 N.E. 214, 214-15 (N.Y. 1917) (establishing in a short, but still-quoted opinion, principles of implied promises in a contract); Palsgraf v. Long Island R.R., 162 N.E. 99, 101 (N.Y. 1928) (providing, in a seemingly routine personal injury case, an opinion with language regarding the principles of proximate cause and the "law of causation" that continues to be quoted to this day in personal injury decisions); see also, e.g., JAMES UNDERWOOD, TORT LAW: PRINCIPLES IN PRACTICE 257, 705 (3d ed. 2022) (discussing MacPherson and Palsgraf); RANDY E. BARNETT & NATHAN B. OMAN, CONTRACTS: CASES AND DOCTRINE 410 (7th ed. 2021) (discussing Wood); Danforth v. Minnesota, 552 U.S. 264, 270 (2008) (quoting Palko, 302 U.S. at 325)
14 See Murphy, 166 N.E. at 174; see also Nalwa v. Cedar Fair, L.P., 290 P.3d 1158, 1165 (Cal.
2012) (quoting id.).
15 See Murphy, 166 N.E. at 174.
16 Id. Cardozo pointed out that the plaintiff and the plaintiff's wife even observed other riders falling to the ground before they decided to board The Flopper. Id. "We are told by the plaintiff's wife that the members of her party stood looking at the sport before joining in it themselves," Cardozo wrote. Id. "Some aboard the belt were able, as she viewed them, to sit down with decorum or even to stand and keep their footing; others jumped or fell. The tumbling
bodies and the screams and laughter supplied the merriment and fun." Id.
17 See id.
18 See id. at 174-75.
19 See id. at 174; Summer J. v. U.S. Baseball Fed'n, 258 Cal. Rptr. 3d 615, 618 (Ct. App. 2020); Thomas Beven, "Volenti Non Fit Injuria" In the Light of Recent Labour Legislation, 8 J. SOC'Y COMPAR. LEGIS. 185, 185-86 (1907); see generally Charles Warren, Volenti Non Fit Injuria in Actions of Negligence, 8 HARV. L. REV. 457 (1895) (describing the origins and historic applications of this principle in negligence cases).
20 See Murphy, 166 N.E. at 174.
21 See infra Parts I-III.
22 See infra Parts I-III; Murphy, 166 N.E. at 174
23 See infra Part I (discussing political and popular rhetoric); Part II (discussing four recent decisions from the United States Supreme Court in which certain timorous Americans were implicitly told to stay at home).
24 See infra Parts I-II
... Today, and in the years to come, this issue merits close observation. It would be easy to dismiss some of the language discussed in this Article as mere puffery, political bravado, sticks and stones that cannot wound. Yet, words matter, especially when those words come from national leaders and within the opinions of the federal judiciary's highest court, for such words lead to actions with consequences on the daily lives of American citizens. The consequence of the words discussed in this Article is that the United States of America, at present, is a place where the message seems clear: the timorous--at least those who are timorous about things which the traditional rugged American is not supposed to fear--may stay at home. The question now for the people to ask is whether this represents the United States of America in which they wish to live. The answers to this question will define this nation's future.
Language: en |