Slip and fall case (with Nixonian footnote) will go to the jury

One of the great legal minds in the United States on tort liability is Guido Calabresi, former Dean of Yale Law School who has been sitting on the Second Circuit Court of Appeals since 1995. So when a traditional torts claim comes before him, I imagine that Judge Calabresi dives right in. In this case, the Second Circuit reverses summary judgment in favor of the U.S. government on a torts claims and remands the case for trial.

The case is Borley v. United States, issued on December 28. The plaintiff fell and hurt herself at at U.S. military commissary on Long Island. She got hurt because the emergency doors at the facility had a low metal bar along the ground that she tripped over. These were not the doors that people were supposed to use when entering and exiting the commissary. But they would open and close on their own if, by way of example, customers pushed their shopping carts against them. The warnings about the metal bar were not readily visible. While plaintiff's lawyer argued that it was foreseeable that this notice defect might cause someone to get hurt, the trial court granted the government's motion for summary judgment. The Court of Appeals (Calabresi, Lohier and Walker) reverses. 

Law students are told on the first day of torts class that torts liability turns on the following issues: duty, breach, causation, and harm. If you breach a duty of care to a foreseeable plaintiff, and that breach of duty causes her some harm, then you are on the hook for torts liability. This case asks whether the jury may find in plaintiff's favor on the "duty" issue. Did the commissary fail to show due care to customers by maintaining its premises in a reasonably safe condition? 

Judge Calabresi drops a long and scholarly footnote on the issue of whether it is appropriate for a court to decide the "breach of duty" question as a matter of law and whether it should be left for the jury. You can expect footnotes like this when the opinion-writer is a torts expert and thinks about these issues all the time, whether he is on the bench or taking out the garbage or shooting the bull with other torts scholars. Since you will probably not read the footnote, I can tell you that Judge Calabresi notes that many scholars (including a young Richard Milhous Nixon, decades before he stopped caring about complying with accepted legal principles and standards) think judges should resolve the "breach of duty" question on their own. But this footnote further notes that the torts-world has largely rejected that view. The opinion as a whole provides further discussion on other torts-related principles.

We're going to impanel a jury for this case, folks, as New York law largely leaves these issues to the conscience of the community, not a judge. The Court of Appeals finds a jury could find that the commissary could have taken better care to protect customers like the plaintiff in this case.