Vail Daily column: Inherently dangerous instrumentalities |

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Vail Daily column: Inherently dangerous instrumentalities

Life is dangerous as I’m sure you already know. Just sitting on your couch is rife with hazards. The spine could suddenly break, sending you reeling. You could choke on your popcorn. You could spill your soda and catch your death of cold. Lightning could strike, chase down your walls, wriggle through the electrical wiring, find the cell phone charging in your lap, and delivery you a stunning jolt. Heck, Martians might attack and find you an easy target.

But some things are – needless to say – more hazardous than others. Take, for example, a pile of explosives, say compared to a cumquat. Sure you could do some real harm with a cumquat. But c’mon …

So what’s any of this this got to do with law?

Well, it’s all about liability, so let’s go there first.

“Liability” means, naturally enough, the state of being liable. “Liable,” in turn, means obligated according to law. A synonym for “being liable” may be “being legally responsible.” If you are injured owing to my act, I may be liable to you for your injuries.

Notice, I said “may be” in the preceding sentence.

I order for me to be liable to you, four elements must be fulfilled. First, I must owe you some sort of duty. If you put an eye out with your cumquat and both you and the cumquat have no connection to me, game over as far as I’m concerned. You may have, indeed, suffered a grievous injury, but it has no connection to me. Hey, I’m sorry and all that, but it’s not my fault. Second, presuming I had a duty to you, I must breach that duty. Say I was the grocer who sold you that cumquat and had a duty to you to ensure that it was fit for human consumption. Say, instead of putting your eye out with it doing God knows what, instead I – oops – forgot to wash off the stew of toxic chemicals in which it was reared and poisoned you. That, my friends, might well be a breach of my duty to ensure your cumquat consuming safety.

Third, for liability to attach, an injury must actually transpire. If I, the cumquat salesman, fail to property sanitize the tasty citrus morsel from its Jacuzzi bath of toxins but it sails down your gullet without ill effect, hey, all is well. Although you might have been injured by my inattention, in fact, you were not. Essentially, no harm no foul. I dodged a bullet.

Lastly, for me to be liable to you, there must be a “causal” (or “direct”) connection between my breach of duty and your injury. Let’s accept the toxins-on-the-cumquat scenario. Let’s say, instead of suffering from the toxic effects of the chemical brew, instead, a month later, you ride your Flexi Flyer off a cliff. Next, you come after me for your damages. But hold on a sec; unless you can prove a direct connection between the cumquat and your inability to safely steer a Flexi Flyer, you are simply out of luck. For me to be liable to you, there must be a direct and reasonable connection between the evil potion in which the cumquats were nurtured and your injuries. More likely than not, the Flexi Flyer incident is just a bit too attenuated from my failure to give the fruit a proper bath to hold me responsible for the recent rearrangement of your facial features. If, however, you can prove that the malevolent venom in which the cumquat was raised is, in fact, a neurotoxin which, in turn, impaired your ability to steer, well then, perhaps, game on.

What then about inherently dangerous instrumentalities? Well first things first. An “instrumentality” is just a $20 word for the nickel concept of something that causes something else. An “instrumentality” is the “agent” for a related thing. Something that is “instrumental” serves as a tool or gateway to something else. If I kick a football, my muscle power is “instrumental” in the impressive arc the football takes.

“Inherent” simply means “characteristic of the thing itself.” Slithering is, for example, inherent to a snake. “Dangerous” means, naturally enough, able or likely to inflict injury or harm.

Putting ’em all together. An “inherently dangerous instrumentality” is a danger naturally inhering in the condition of a thing itself. In other words, an “inherently dangerous instrumentality” is an object which has contained within the nature of the thing itself the potential for causing harm. It is dangerous per se.

Back to cumquats. By most lights, they are not inherently dangerous. In order for a cumquat to be rendered dangerous something nefarious must be done to it. A pile of explosives, however, most would agree, is by its very nature, something to be accorded wide berth. It might, say… explode.

So what is the difference between a cumquat and a pile of explosives? Really? You had to ask? Well, at law, at least, it’s this: a cumquat, by its nature, doesn’t impose any special duties or obligations. A pile of explosives does. As the pile of explosives is likely to (or may potentially) cause harm by virtue of its ordinary state of being and ordinary use, the owner of a pile of explosives – or other dangerous instrumentality — is generally liable for any damage caused by it. As the risk of harm is inherent in the thing itself, the owner will be held responsible for any harm which may be caused, even where the thing is controlled by or operated by others.

Inherently dangerous instrumentalities impose both special risks and special liabilities. And so, the law reasonably requires a heightened duty of care, cumquat may.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, or

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