Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
is so overwhelming as to justify a court in withdrawing the negligence evaluation from the jury.”
They cite, for example, highway cases involving seatbelts, where the considerations are “of such
force as to make it acceptable for a state’s highest court to reach a final, general decision as to
whether not wearing seat belts is or is not contributory negligence.” Id.
3. The judge-jury debate. The judge versus jury debate is by no means confined to rail
crossing accidents. Similar debates have cropped up around other repeat fact pattern cases. For
example, New York courts sought to manage slip-and-fall cases in public spaces with the doctrine
that businesses have no duty to warn customers of “open and notorious” hazards over which they
could trip and fall. See, e.g., Michalski v. Home Depot, Inc., 225 F.3d 113 (2d Cir. 2000); Pinero
v. Rite Aid of New York, Inc., 294 A.D. 2d 251 (N.Y. App. Div. 2002). Where a hazard is “open
and notorious” as a matter of law, a defendant has no duty to warn.
4. Studying the jury. The canonical study of juries was done at the University of Chicago by
Professors Harry Kalven and Hans Zeisel, who studied 8,000 civil and criminal juries in the early
1960s. They concluded that juries and judges agreed on a case’s outcome in 78% of criminal
cases and 79% of civil cases. As they put it, “the jury agrees with the judge often enough to be
reassuring, yet disagrees often enough to keep it interesting.” Harry Kalven, Jr., The Dignity of
the Civil Jury, 50 VA. L. REV. 1055, 1064 (1964).
In the 20% of criminal cases in which the jury and judge disagreed, the jury was far more
likely than a judge to acquit rather than convict. See HARRY KALVEN, JR. & HANS ZEISEL, THE
AMERICAN JURY 55-81 (1966). But the asymmetry of judge-jury disagreement in criminal cases
did not extend to the civil cases in the Kalven and Zeisel sample. In civil cases involving
disagreement, judges and juries exhibited no systematic divergence from one another as between
plaintiffs and defendants. “Whereas the greater leniency of the jury toward the criminal defendant
is congruent with popular expectations, the equality of pro-plaintiff response between judge and
jury in civil cases is in sharp contrast to popular expectations.” Kalven, The Dignity of the Civil
Jury, supra at 1065.
Indeed, common popular perceptions of the jury tend to ascribe to the institution the
failures of costliness, inefficiency, and inexperience—and sometimes even sheer incompetence.
See, e.g., FRANKLIN STRIER, RECONSTRUCTING JUSTICE: AN AGENDA FOR TRIAL REFORM (1994).
Yet more recent surveys of empirical work on the jury system tend to confirm Kalven and Zeisel’s
initial work, suggesting that judges and juries are not as different decision-makers as one might
imagine. See, e.g., Neil Vidmar, The Performance of the American Civil Jury: An Empirical
Perspective, 40 ARIZ. L. REV. 849 (1998).
So if Kalven and Zeisel’s findings continue to hold true today—if judges and juries agree
the vast majority of the time and are as pro-plaintiff as one another—is there anything to be said
on behalf of juries than cannot also be said on behalf of judges? For example, neither judges nor
juries bring subject-matter expertise to the resolution of complicated questions of health and
safety.
One area where juries seem to behave differently on a systematic basis from judges is in
the awarding of punitive damages. We will turn to punitive damages at the end of this casebook.
For now, the important point is that juries seem to handle punitive damages awards quite
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