A Learned Hand in the Days of the New Coronavirus

coronavirusMy college-aged daughter tried to persuade my husband and me that it would be best for her to return to campus after spring break and complete her senior year of online classes from her apartment with her young and healthy roommates. She argued that they aren’t in the demographic likely to contract the new coronavirus and even if they did, they would be very likely to recover.

My husband and I countered that even if the risk to her is small, she may carry the virus and the consequences for others may be quite large. We recommended that she stay at home and self-isolate with us.

I knew this principle was the bedrock of our tort law and was able to refresh my recollection easily. In United States v. Carroll Towing, 159 F.2d 169 (1947), a tug set out to remove one of a series of barges moored at Pier 52 in New York Harbor. After removal of a certain mooring line, several barges broke free and the barge Ana C, loaded with flour owned by the U.S., sank.

In deciding the indemnity action filed by the U.S. against Carroll Towing Co., Judge Learned Hand noted that there was no general rule that applied liability to the situation when a barge breaks free with no one on board and causes damage. He noted there were three variables to the tugboat owner’s duties in the situation: the probability that the vessel will break away, the gravity of damage that results if she does so, and the burden of adequate precautions.

In finding against the barge owner, the court noted that leaving a barge unattended during daylight hours posed a significant risk such that it would be fair to require a crew member to be aboard the ship. Judge Hand proceeded to state a famous negligence formula: a defendant is negligent if he creates a risk where the probability of the risk occurring (P) multiplied by the seriousness of the risk if it materializes (L) is greater than the burden of eliminating the risk (B). Thus, the algebraic Hand formula: the defendant is negligent if B<PL.

We are living in a time of a new and highly contagious coronavirus that disproportionately impacts older adults and people who have severe underlying chronic medical conditions. The virus may be undetected in many carriers. We are told the risk drops dramatically by hand washing and social distancing.

Applying Judge Hand’s analysis: the probability of the risk occurring (the coronavirus spreading) multiplied by the seriousness of the risk if it materializes (potentially fatal to some people) is much greater than the burden of eliminating the risk (self-isolating).

The law provides a steady hand in uncertain times. My daughter will be staying at home.

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Jayne Reardon
As a prior trial lawyer, Jayne leads lawyers to embrace the transformative possibilities of future law practice. As a prior disciplinary counsel, Jayne is passionate about promoting the core values of the legal profession. She is a graduate of the University of Michigan Law School and the University of Notre Dame. Jayne lives in Park Ridge, Illinois with her husband and those of her four children who are not otherwise living in college towns and beyond.
Jayne Reardon

4 thoughts on “A Learned Hand in the Days of the New Coronavirus

  1. We can agree to disagree.

    The probability of the risk occurring (the coronavirus spreading) (P) depends on the measures taken to prevent its spread (social distancing, cleanliness such as washing hands, etc.). By using social distancing, by washing hands, by avoiding infectious carriers, and by taking similar measures, the probability of the risk occurring can be reduced. The degree to which the risk can be reduced has not been reported. If the probability of the risk is driven toward zero by proper precautions, then the right side of your algebraic equation goes toward zero.

    Are you trying to protect your daughter? At home, your daughter is exposed to you and to your husband who are each potential carriers. Do you go to a doctor’s office where you might be exposed? Do you go to the supermarket? Do you go to the hardware store? Do you go for gasoline for the car or for the lawnmower where you might be exposed to others pumping gas or to virus on gas pump handles? Does your refrigerator / plumbing / stove / HVAC / etc need repair by a repair person who might have the virus? Do you go to a pharmacy? At school, your daughter is exposed to her roommates. As young presumably healthy students, your daughter’s roommates are less likely to go to a doctor’s office (unless ill). Your daughter would continue to need to shop for food. Because of the apartment, it is unlikely that she would go to a hardware store and, unless she has a car and given that most social gathering places are shutting down, there is declining need to buy gasoline. Because of the apartment, your daughter might be exposed to maintenance people. She might need to go to a pharmacy.

    Are you thinking about you and your husband? Conversely, you and your husband, an older and reportedly more at-risk population than your daughter and her roommates, are potentially exposed to your daughter. You state above that “my husband and I countered that even if the risk to her is small, she may carry the virus and the consequences for others may be quite large.” You also admit “we are living in a time of a new and highly contagious coronavirus that disproportionately impacts older adults ….” Your daughter will presumably be asked to participate in family chores such as cleaning and shopping. Her shopping for food or supplies may introduce the contagion into the household.

    The burden of eliminating the risk (self-isolating, social distancing, cleanliness, avoidance of those infected) for you and your daughter remains the same whether she is with you or with her roommates. The potential consequences of your daughter remaining at home, even driving the probability of the risk toward zero, are higher at home in that the home population is disproportionately “older adults” and having your daughter at home increases the potential sources of home contagion by one person.

    On key phrase of The 2Civilty Blog is “Wellness.” “Wellness” encompasses not only physical well being but also emotional well being. By removing the stability of friends and companions in times of turmoil, one’s wellness may be affected. The senior year of college is a stressfull (and sometimes joyful) time in one’s life. Acknowledging that your daughter might communicate with her roommates by making visual phone calls, by Skype, or by other methods, her emotional well being, and the concept of “wellness,” should be considered in this situation.

    P.S. I am the father of 1) a computer programmer who is currently telecommuting in Germany and 2) an athlete whose U.S. Olympic trials were recently cancelled because of the coronavirus.

    1. Dear Mr. Shirley,

      You make some great points here. My Learned Hand post was written in a time period before the Governor issued his order telling everyone to shelter in place. Many of your questions refer to situations where any one of our family members might have been able to choose to go places or run errands. Now we are not leaving the house, nor do we allow any visitors. The college campus has been emptied out. Thank you for raising the importance of emotional well-being in all of this uncertainty. I agree with you wholeheartedly that remaining connected to friends and family members who can provide emotional support is key. I can relate to having a computer programmer child telecommuting from far away—my son is in Mountain View, CA. Also, my sympathies to you and your athlete child. I can only imagine the pain of your child (and so many others) whose goals have been dashed by the postponement of the Olympics.

      Warmly,
      Jayne

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