This case, materials collected at B & M 572, was seen in the 18th and 19th centuries as inventing what American lawyers took Lemuel Shaw to have invented in Brown v. Kendall. Please explain how they can both be right or how both were wrong, and what the pleadings in Mitchell show the case should be remembered for.
I'll take this topic.
-- MatthewPodolsky - 06 Nov 2008
In June of 1673, Thomas Scrivener brought two horses and a coach, belonging to his employer, William Allestry, into Little Lincoln’s Inn Fields. Little Lincoln’s Inn Fields was busy city square and the horses escaped, knocking Mary Mitchell to the ground and running over her with the coach. Mary Mitchell and her husband, James, brought suit on the case for negligence against Scrivener and Allestry (Mitchell v. Allestry, KB 27/1973, m. 1283; 3 Keb. 650, pl. 2; 1 Vent. 295; ECO MS. 178, p. 183).
Little Lincoln’s Inn Fields
The history of Little Lincoln’s Inn Fields provides some insight into the growth of London. Originally, the Templars owned the Little Lincoln’s Inn Fields and used it, along with the larger Lincoln’s Inn Fields just to the North West, as tilting grounds (Heckethorn 48; Hunter 991-2).
After the Order of the Templars was abolished, the Fields were assigned to St. John’s Priory. By 1376, the Fields had been arrayed with trees and walking paths for the use of the Chancery clerks and apprentices and students of law. In 1399, a petition appeared in Parliament alleging that Roger Legit had been setting metal traps around the square to harm the clerks (Heckethorn 48).
After the dissolution of the monastery, the square reverted to King Henry VIII, and, after he granted ownership of the square, it descended through a confusing chain of private ownership during the second half of the 16th and first half of the 17th centuries. Until 1620, Little Lincoln’s Inn Fields were frequently used as a site for executions (Heckethorn 48-9).
Throughout the changes in ownership, clerks and law students continued to use the square as a place to walk outdoors. In 1683, a formal agreement was reached between the benchers and the owner of the square, permitting the owner to refit the square with new gates and buildings. By 1720, the square was entirely surrounded by housing occupied by lawyers (Heckethorn 49-50).
Although much of this work was not completed until the end of the 17th century, it is certainly true that when Scrivener attempted to break his horses in Little Lincoln’s Inn Fields, he was doing so in a public square frequently used as a place for outdoor walks and reflection, particularly by the legal community (Heckethorn 49-50).
Little Lincoln’s Inn Fields, now New Square, remains in much the same condition today, located in central London just two blocks north of the London School of Economics (see attached maps).
Mitchell originally brought suit under the theory that Allestry and Scrivener “did negligently permit” the horses to run upon Mitchell. Mitchell was non-suited in that claim because there was evidence that the defendants did everything they could to prevent the accident (Mitchell, ECO MS. 178, p. 183; see also Baker 465). Judge Hale directed the plaintiffs to bring the suit again by challenging the decision to bring the horses into Little Lincoln’s Inn Fields, rather than claiming negligence in the conduct by the defendant in the square itself. The court granted the plaintiff judgment and at nisi prius the jury found for the plaintiff in the amount of 40 marks (Mitchell, ECO MS. 178, p. 183).
The bill contains one peculiarity of special note: in order to bring suit against Allestry, who as the employer presumably was not judgment-proof, the plaintiff alleged that Allestry was present during the accident, even though he was not in fact at Little Lincoln’s Fields (Mitchell, KB 27/1973, m. 1283).
The defendants’ counsel argued that the suit was a case of first impression for three reasons: the plaintiff made no claim that (1) the location of the accident was a public highway; (2) the defendants knew that the horses were wild; and (3) the defendant negligently allowed the horses to run over the victim (Mitchell, ECO MS. 178, p. 183). Indeed, all that the plaintiffs did allege was that the defendants drove the horses “improvidently, rashly and without due consideration of the unsuitability of the place for the purpose” (Mitchell, KB 27/1973, m. 1283).
The claim, therefore, lay outside established categories of fault. Although a defendant could be held liable for knowingly keeping animals with dangerous propensities or for bringing such animals to a public highway, there was no allegation that the defendants had such knowledge (see Baker 462). A defendant could also be held liable for negligently driving a horse and causing an accident, but no liability would lie where the horse itself was at fault (see Baker 464). It was a novel claim, then, for the plaintiffs to seek damages based upon the unwise decision to bring horses and a coach to a public square used for walking and relaxation.
For this reason, 18th and 19th century treatises referred to Mitchell v. Allestry as establishing a new branch of actions on the case for accidents simply arising out of negligence (Baker 466). Under this view, Mitchell v. Allestry stands for the principle that a plaintiff may hold a defendant liable on a showing that injury was caused by actions the defendant should reasonably have prevented, whereas prior cases required the plaintiff to establish either that the defendant directly caused the accident or that there existed some special customary duty for the defendant. Further, Mitchell v. Allestry seems to preempt the old rule that the defendant may prevent liability on a showing that he or she could not reasonably have prevented the accident, at least where some negligence of the defendant subsequently resulted in the accident (see Baker 464-5).
This negligence-founding view sets up Mitchell v. Allestry as establishing the same principle as the 1850 American case Brown v. Kendall, 60 Mass. 292. In that case, the plaintiff sued the defendant for injury sustained when the defendant used a stick to separate two fighting dogs and accidentally struck the plaintiff (Brown, 60 Mass. at 292). It was held that the fact that the act was unintentional was no defense, and that the defendant could be held liable for injury resulting from the defendant’s lack of ordinary care, meaning, “that kind and degree of care, which prudent and cautious mean would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger” (Brown, 60 Mass. at 296).
Although both cases similarly charged the defendants with taking a certain degree of care with their decisions, it does not seem as if the judges in Mitchell were contemplating establishing a new standard of ordinary care. Rather, the judges focused on precedents concerning loose animals and public areas. Judge Wilde argued that a defendant should be held liable for damage caused by a horse when the defendant failed to lock the stable, and, along with Judge Twisden, analogized the situation to a prior case in which monkey broke loose and hurt some children. Chief Judge Raynsford made the more general assertion that a defendant should be punishable for murder if he or she throws a rock into a market and it kills someone (Mitchell, ECO MS. 178, p. 183).
Baker interprets these statements merely as extending the principle of scienter to embrace public nuisances (Baker 466). That is, Baker understands the case to expand upon the rule that defendants may be liable for knowingly keeping animals with dangerous propensities to include liability for knowingly bringing animals to crowded public spaces. Under this view, Mitchell v. Allestry represented another step toward a general negligence standard, but did not stand for the same sweeping tort rule as Brown v. Kendall.
Indeed, the most striking part of the case is the plaintiff’s efforts to circumvent obstacles to vicarious liability. At the time, there was no rule of vicarious liability. In fact, husbands were not yet liable for accidents cause by their wives (Baker 464-5). Hence, an employer would not be liable for the actions of his or her employees unless actually present and directly responsible (Baker 464).
The plaintiffs therefore engaged in some slight of hand, alleging that Allestry was, in fact, present at the time of the accident (Mitchell, KB 27/1973, m. 1283). It is not entirely clear how necessary this construction was, since, at least according to one report, the court held that the master is as liable as the servant if he ordered the servant’s conduct (Mitchell, 3 Keb. 650, pl. 2 (untr.)). Whether or not the court was shifting strongly toward vicarious liability therefore depends on whether Allestry actually ordered Scrivener to bring the horses to Little Lincoln’s Inn Field, which is not made clear from the report. Nevertheless, it is clear that Mitchell v. Allestry was part of a move toward respondeat superior liability. By 1697, the court had firmly established that an employer could be held liable for the actions of his servant without an express command if the servant had the authority to engage in the conduct and the conduct was for the employer’s benefit (Turbervile v. Stampe, 1 Ld Raym. 264 (untr.)).
Therefore, Mitchell v. Allestry was at least as important for the doctrine of vicarious liability as for the growth of the tort of negligence. Still, Mitchell v. Allestry did mark an important swing toward a general liability standard. As London became an increasingly densely populated city, the court had to deal with conflict between traditional uses of public land, such as the breaking in of horses, and regular urban use. In Mitchell v. Allestry, the court expanded liability to include negligence in one’s use of public space. The court also, though, seems to have moved away from the categorical thinking of prior cases and held the defendants liable not for directly causing the victim’s injury, but for making the ‘improvident’ decision that ultimately resulted in the accident.
Mitchell v. Allestry, KB 27/1973, m. 1283; 3 Keb. 650, pl. 2; 1 Vent. 295; ECO MS. 178, p. 183.
Turbervile v. Stampe, 1 Ld Raym. 264 (untr.)
Brown v. Kendall, 60 Mass. 292 (1850)
J.H. Baker, An Introduction to English Legal History (1990)
Charles William Heckethorn, Lincoln’s Inn Fields and The Localities Adjacent (1896)
Robert Hunter, Lincoln’s Inn Fields: Past and Present, 130 English Illustrated Magazine 991 (1894)
-- MatthewPodolsky - 19 Dec 2008