As people venture out after the lock down in England, a man in Windsor, England has a cautionary tale. The man decided to take in the sun in his backyard when, according to news reports, he and his entire yard were covered in human waste dumped by a passing plane. That is not the end to this rather obnoxious situation.
We have previously discussed falling objects including frozen poop from planes. It does raise a curious question, if the heightened liability of a “common carrier” extended to falling poop.
In England, common carriers were liable under strict liability for the loss of goods. Rich v. Kneeland, Hob. 17, Eng. Rep. (K.B. 1613). In both the United Kingdom and the United States, a heightened duty applied for personal injuries. This was explained in Philadelphia & R. R.R. v. Derby, 55 U.S. (14 How.) 468 (1852):
“When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence, in such cases, may well deserve the epithet of ‘gross.'”
This personal injury was, of course, to a pedestrian but would certainly constitute a “gross” tort.
In Chesapeake Ferry Co v. Cummings, 158 Va. 33, 164 S.E. 281 (Va. 1932), the Virginia Supreme Court described the duty of a common carrier as “the duty to use the highest degree of care for their safety known to human prudence and foresight, and is liable for the slightest negligence against which human care and foresight may guard.”
What was curious however was this line: “According to the Maidenhead Advertiser, the Windsor resident was unable to claim any insurance from the ordeal as the cost of the damage was relatively low.”
Putting aside the contamination of human waste, the line seemed to indicate that the man could not recover for his personal injuries. In the United States, absent some statutory immunity, dumping human waste on an individual would be a cause for not just negligence liability but the negligent infliction of emotional distress. In using a recklessness claim, it could even be alleged to be a form of battery.
It could also be a case for the application of res ipsa loquitur. As Dean Prosser explained, the doctrine is used when “(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.”
One would hope that dumping a load of raw human waste on a person is an accident “of a kind which ordinarily does not occur in the absence of someone’s negligence.” As for exclusivity of control, the waste was certainly in the control of various third parties but was deposited in the exclusive control of the airline.
The cases reminds one of that of Pillars v. R.J. Reynolds Tobacco (Mass. 1918) where a human toe was found in chewing tobacco. The Court remarked: “We can imagine no reason why, with ordinary care human toes could not be left out of chewing tobacco, and if toes are found in chewing tobacco, it seems to us that somebody has been very careless.”
It is not clear which airline is responsible. Some slogans however are not just menacing but potentially incriminating:
American Airlines – “Something Special in the Air”
Air New Zealand – “The World’s Warmest Welcome”
Continental Airlines – “We move our tail for you”
Malaysia Airlines – “Going Beyond Expectation”
Southwest Airlines – “How do we love you? Let us count the ways”
Austrian Airlines – “Like a smile in the sky”
Great. So airlines are like the homeless RV campers who dump their sewage on city streets to avoid the cost and inconvenient of dumping at designated facilities.
Having your yard spattered by the human waste of hundreds of people is not just a minor inconvenience. It’s not just the cost of a dented BBQ. That’s infectious waste. His vegetable garden will be ruined unless he has an excavator remove all the soil, and replace with good topsoil. You can get very sick eating produce fertilized with human waste. Just ask a North Korean. How would you like to receive a gift of vegetables from this gentleman’s garden next spring? Would you feed those carrots to your kids?
The smell will permeate the space for a very long time. The waste will become part of the dirt and dust, and it will stink like a Port-A-Potty every time it rains, which is rather often in Windsor.
He will have been exposed to numerous infectious diseases, including hepatitis, cholera, and typhoid. This will require repeated medical testing. Think typhoid can’t happen in modern times? Think again. There was an outbreak of typhus and typhoid in homeless camps in CA.
Then there was the emotional distress of having his home violated with human feces and urine.
The airline needs to pay up. The FAA needs to investigate if airlines are cutting costs with polluting the environment with raw human sewage instead of pumping it out following all health and safety protocols.
Off topic. The world series is in Georgia and Texas. Not on the east coast or west coast and not up north. Good. No more Yankee this or LA that!
I gleefully love how the Democrats got the All Star game taken away from Georgians, costing the state millions, only for the World Series to take place in Georgia and Texas.
Democrats have willfully misrepresented the GA voting laws. Joe Biden, the man who promised a return to civility, lied and called it “Jim Crow on steroids.” The law does nothing of the sort. Most Americans support voter ID, and it is in no way associated with any interference with black people voting. Black Americans have ID just like anyone else.
Instead of wasting our time with such nonsense, Turley could take a stand on the important controversies in the news at this very moment. He could take a stand on the John Eastman memo like this Conservative lawyer:
https://www.theatlantic.com/ideas/archive/2021/10/john-eastman-cancel-culture/620424/
Instead, Turley fills his blog with crap. Why won’t he make any comment whatsoever on the Eastman memo? We are waiting to hear his analysis!
Why the crickets, Jonathan?
Gosh. You honestly have it in for the good professor. Perché? It’s as though you life’s mission is to battle him.
Suze claims:
“It’s as though you life’s mission is to battle him.”
Not at all. I give him the greatest praise. I have steadfastly complimented him for not being a lying Trumpist as are most of his followers on this blog.
I only fault him for his silent hypocrisy for not calling out his employer Fox News as well as Newsmax and OAN for the same criticism he *correctly* points out at Fox’s cable competitors. All networks are engaged in advocacy journalism which Turley decries, but CNN and MSNBC are the only networks he criticizes because he has an obvious conflict of interest between his impartiality to us as a legal commentator and his allegiance to his bosses at Fox News.
JeffSilberman…….”Nonsense”? There’s a sunbather in Windsor,England who would beg to differ.
He’s the only one on earth who gives a sh*t….
Good retort Cindy!
😉
I think mine is just as good, but you will not give me the pleasure of saying so.
Jeff, you are not entitled to make any demands on Professor Turley, who neither reads nor cares about your comments. He doesn’t read the comments and will never answer you.
If there is a news worthy topic you are interested in, and you don’t see it here, then create your own blog.
Karen says:
“Jeff, you are not entitled to make any demands on Professor Turley, who neither reads nor cares about your comments. He doesn’t read the comments and will never answer you.”
I don’t need to be entitled to make a demand of Turley. I have a Natural Right to do so- just ask Olly.
I have never flattered myself to think that Turley either reads or cares what I think. I write to his blog as if he cares because I care less what anybody else thinks.
If he does get wind of my comments via some friend, student or associate, perhaps he will respond indirectly by addressing an issue he so far has evaded. It does take courage for him to declare publicly that the claim of massive voter fraud was and continues to be a Big Lie since he stood silent as his employer, Fox, broadcast it to millions and is currently being sued for defamation. On the other hand, it takes courage to remain silent to this day when he knows his Liberal academic colleagues, his law partners and associates as well as his law students expect him to do the right thing and denounce this Big Lie once and for all.
You say:
“If there is a news worthy topic you are interested in, and you don’t see it here, then create your own blog.”
I will create my own blog if and only if you promise to join it! Otherwise, I will continue to remind the vanishing few Never Trumpers on this blog the important items in the news that Turley is deliberately evading to his discredit.
I’m thinking this calls for a Writ of Mans-Anus.
currentsitguy………………..So lovely, so poetic……….You’re the Bard of the bidet.
P.S. currentsitguy………….If it were an American airline company…….”E Pluribus Anum”?
Well at the very least he should get a per diem for their post anum.
Subpoena duces fecum
“As for exclusivity of control, the waste was certainly in the control of various third parties but was deposited in the exclusive control of the airline”
Snert: who says lawyers don’t have a sense of humor. Well played, Mr. Turley.
That’s some Brexit!
Touché, Professor. 😂
Britain. Fly over and flush.
Ewwww
They used to have signs in the toilets of railroad passenger cars that said “Please do not flush while train is stopped in the station”. Perhaps the airlines need to come up with something similar.
Oh those wacky Brits
Toebacco
Or “res ipsa loquitoe”
ex post factoe
A “factor” is important if the toe is on the right foot. I don’t mean left or right. I mean on a foot that can kick a soccer ball.
I misspelled. It’s factoe.