Wednesday, August 30, 2006
We should be teaching about race in torts. Torts is not divorced from our society, as many of the posts point out. Yet, generally torts is treated as if race and racism were entirely separate from it. This is not true.
Certain tort cases can be used as an excellent tool for teaching about race in our society alongside teaching about doctrine.
Two examples make this point. The first is a fascinating Fifth Circuit case that deals with duty and foreseeability, and the empirical conclusions that go into making duty determinations, Bullock v. Tamiami Trail Tours, Inc., 266 F.2d 326 (5th Cir. 1959). This case is not in any casebooks that I know of (yet). Bullock dealt with the 1957 assault by a bus passenger of a married couple from Jamaica. The couple was sitting in the front of the bus when they were assaulted. The husband appeared black and the wife appeared white. The narrow legal issue was whether the bus company should have had a duty to protect the couple from an assault by a fellow passenger. The District Court had answered this question in the negative, 162 F. Supp. 203 (N.D. Fla. 1958). The Fifth Circuit reversed, noting that given the racial dynamics of the situation, 'mischief was hovering about' so that the bus company did have a duty. The decision includes the assailant's testimony (he was enraged to see a black man sitting with a white woman in the front of the bus), the bus driver's testimony, testimony that a white woman and black man had never sat in the front of a bus in Taylor county before, and so forth. The Fifth Circuit put all these facts together to form a conclusion that an attack of some sort on these passengers was foreseeable and should have been prevented, while the District Court had drawn an opposing conclusion. Altogether this case is a great case to use to teach about duty, foreseeability, common carriers, and race. I discuss this more in Toward a Feminist Revision of Torts, 13 American University Journal of Gender, Social Policy & the Law(2005).
The second example is Gulf v. Luther, 90 S.W. 44, 45 (Tex. Civ. App. 1905), which displays powerful stereotypes of fragile helpless white women and masculine, scarey black women in the course of holding a railroad liable for a black woman attendant's shaking of her finger at a white women in a 'ladies' waiting room.' This is also discussed in the above-cited article. More discussion about race and torts is found in my article Torts, Race, and the Value of Injury, 1900-1949, 49 Howard L. J.99 (2005).