On First Looking Into Posner's Opinions, and Finding One Where He Didn't Exactly Hit a Homer
September 07, 2017
From Passing the Bar: Poems to Learn the Law By, by John Crouch
Negligence — The Offhand Formula
McCarty v. Pheasant Run, Inc.
826 F.2d 1554 (U.S. 7th Circuit 1987)
Held, by the Foremost Jurist of his Time, and an Admirer of Rustic Scenery, that if a Lodging-House have a Secret Door, affording Convenient Ingress to Sundry Villains, then So Be It; inasmuch as Caveat Emptor, Mercatum Non Potest Peccare, etc.
One evening a conventioneer checked into her hotel room,
not wanting any view, she said, just a quiet place-to-dwell room.
She didn’t open her curtain, though it was six o’clock,
and she assumed it cloaked a window — not a door, which was unlocked!
Through which an intruder entered, beat her and threatened rape.
She fought him off successfully, but he made good his escape.
He took her purse, and left her bruised and emotionally distressed,
for which she sued the inn, which had afforded her no rest.
When you check into a resort hotel, you go inspect the view.
At least I know that’s the first thing that all reasonable people do.
I’m not too busy to do that, so I’d like to know who is.
I guess my meager résumé would sure be dwarfed by his.
If this Philistine had moved the curtain, she would have seen the door,
affording access to a walkway, for that’s what it was for.
And reasonably, when she went to bed, she’d make sure and lock it.
So why should the cost of her negligence be paid from Defendant’s pocket?
Must the maids or clerks make sure it’s locked each time someone checks out,
just to safeguard the virginity of one thoughtless layabout?
Must they pay someone to do this, when each reasonable guest
will repeat their labor, anyhow, when laying down to rest?
It would not be economical. Thus the costs it would prevent
must be shouldered by the victim of this improbable event.
This case shows the dangers involved when a judge merely uses his own experience and tastes as the measure of “reasonableness,” in contrast to the Carroll Towing case, which is based on a review of numerous cases imposing various requirements in similar situations, and also looking at custom and usage in the industry. But in Judge Posner’s defence it may be pointed out that it was originally the jury, not a judge, who decided that it would not be reasonable to require hotels to make sure that such doors are locked.