Andersons Business Law and the Legal

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Chapter 8

TORTS

RESTATEMENT

Torts are civil breaches of conduct that permit recovery by individuals who are victims of the breaches. To establish
liability for a tort there are various elements of proof required. For some torts, the party must establish a specific act and
intent. For negligence, the party seeking recovery must establish that there was a duty (statutory or imposed as a
general standard of conduct such as professional competence), a causal relationship between the breach of duty and the
injury, and a foreseeability of the injury resulting from the breach of duty.

Intentional torts are those committed voluntarily and include false imprisonment, emotional distress, invasion of privacy,
defamation (slander and libel), disparagement, contract or business relationship interference, trespass and computer
torts.

Liability for negligence is based on the standard of the reasonable person, a standard that requires a certain degree of
care on the part of all citizens with respect to each other. The liability of the defendant is mitigated to the extent
negligence of the plaintiff is established through the defenses of contributory or comparative negligence.

STUDENT LEARNING OUTCOMES

LO.1: Explain the difference between torts and crimes.

LO.2: Distinguish between an assault and a battery.

LO.3: Explain the three different torts of invasion of privacy.

LO.4: Explain the torts of defamation and defenses.

LO.5: Explain the elements of negligence and defenses.

LO.6: Explain the tort of strict liability and why very few defenses are available.

INSTRUCTOR’S INSIGHTS

Break the chapter down into four components – related Learning Outcomes are indicated in ( ):

1. What are the general characteristics of torts and principles of tort law?

• Present the differences between crimes and torts (LO.1)

• Discuss the basis for tort liability
• Cover who can bring suit for recovery under tort
• Present the defenses and immunities to tort liability

2. What are the elements and requirements for intentional torts?

• Distinguish between an assault and a battery (LO.2)

• Discuss the following torts and provide the elements of proof required:

 false imprisonment
 intentional infliction of emotional distress
 invasion of privacy (LO.3)
 defamation (LO.4)
 product disparagement
 wrongful interference with contracts
 trespass
 computer torts
3. What is negligence?

• List the elements of negligence (LO.5)

• Explain the defenses to negligence (LO.5)
• Cover the liability for negligence

4. What is strict liability?

• Define strict liability (LO.6)

• Discuss when strict liability is imposed (LO.6)

CHAPTER OUTLINE

I. What are the General Characteristics and General Principles of Tort Law?

A. What is a tort?

1. A tort is a violation of a private duty

2. From Latin “tortus” for crooked, dubious or twisted

3. Interference with property or person

B. Tort and crime distinguished

1. A crime is a violation of public duty that imposes a sentence of a fine and/or jail time

2. Tort is a violation of private duty that gives a right of compensation – use O.J. Simpson example to
illustrate that there were two trials: one for crime of murder and the other for wrongful death

C. Types of torts

1. Intentional torts

a. Intentional conduct
b. Voluntary act, even though consequences may not have been intended

2. Negligence

a. Careless actions
b. Produce injury
c. Liability imposed for certain careless actions

3. Strict liability

a. Imposed for activity so dangerous that there must be full accountability

b. Dynamiting a building or road, crop dusting
c. Products liability is a form of strict liability

II. What are the Elements and Requirements for Intentional Torts?

A. Assault

1. Intentional act

2. Fear of imminent harm

B. Battery

1. Intentional, wrongful touching of another

2. Damages required
CASE BRIEF: Moore v. Beye
122 P.3d 1212 (Mont. 2005)

FACTS: Moore and Beye had an altercation after a public meeting regarding airport expansion. Beye punched
Moore on the left side of the jaw. Moore stumbled, but caught himself before falling. He then
exclaimed to the crowd, “You saw that. You are my witnesses. I’ve been assaulted. I want that man
arrested.” Ravalli County deputies took Beye into custody and the State charged him with
misdemeanor assault. Moore visited the hospital complaining of back and neck pain two days later
and contends that he injured his back while reeling from Beye’s punch. He filed a civil complaint
against Beye for damages. Moore’s evidence mostly concerned his alleged back injury. Beye did not
contest that he punched Moore. His evidence countered that Moore’s back problems existed before
the altercation. The judge instructed the jury that Beye had committed a battery as a matter of law and
directed that they answer the question “[Was] Moore damaged as a result of the battery?” The jury
voted 11 to 1 that the battery did not injure Moore and Moore appealed.

ISSUE: Were Moore’s injuries directly caused by Beye’s battery of Moore?

HOLDING: No.

REASONING: Beye presented the testimony of several eyewitnesses and a medical expert that Moore sustained no
damages. Though Moore presented considerable evidence to the contrary, it was not the court’s
function to agree or disagree with the verdict. Beye presented sufficient evidence to uphold the jury’s
verdict.

C. False imprisonment

1. Intentional detention of a person without consent

2. Shopkeeper’s Tort: detention of suspected shoplifters

3. Defense is the shopkeeper’s privilege

a. Reasonable basis to detain

b. Reasonable detention
c. Reasonable time
d. Reasonable manner

CASE BRIEF: Holguin v. Sally's Beauty Supply, Inc.

264 P.3d 732 (N. Mex. App. 2011)

FACTS: Patricia Holguin went to Sally’s Beauty Supply Store carrying her “eco-friendly canvas shopping tote,”
a large bag that is conspicuous when used. Upon entering the store, there were no posted signs
stating that shopping totes were not allowed. She picked up a can of mousse that was not exactly what
she wanted and started to carry it in her tote toward the front counter to ask the cashier a question
about it. As she walked toward the front of the store the assistant manager approached her and asked
what was in the bag. She was detained by this manager, who told her that once she put the hair
mousse in her tote bag, she was shoplifting. Holguin’s lawsuit for false imprisonment against the store
was dismissed with prejudice by the trial court. This court held that once she placed the merchandise
in her bag, the store had probable cause to believe she was shoplifting and had a statutory conditional
privilege to detain her, free from civil liability for false imprisonment, because she “willfully concealed
merchandise.” Holguin appealed.

ISSUE: Did Holguin “willfully conceal” a can of mouse by simply placing the object in an “eco-friendly canvas
shopping tote” to carry to the front of the store to ask a question?

HOLDING: No. “Willfully conceal” required more than putting the merchandise out of sight in a self-service store.

REASONING: The court of appeals reversed the district court’s decision. In general, merchants and their employees
have a conditional privilege to detain a person free from civil liability based on probable cause, or
reasonable grounds to believe that the individual “willfully concealed” merchandise without paying for
it, provided the detention is for a reasonable time and conducted in a reasonable manner. “Willfully
concealed,” however, requires more than merely putting merchandise out of sight. In self-service
 stores customers have implied permission to pick up, handle, move, try on, replace, and carry about
merchandise within the store. There must be circumstances which reflect that the purpose of the
concealment is adverse to the store’s right to be paid before the conclusion can be drawn that the
merchandise was “willfully concealed” under the statute providing the conditional privilege to detain a
customer. Placing the can of mousse in a reusable, personal canvas shopping bag to carry to the front
of the store to ask a question, without more, did not constitute “willful concealment.”

D. Intentional infliction of emotion distress

1. Conduct beyond the bounds of decency

2. Produces mental anguish (use Erica Schoen example at Freightliner)

3. Used as a basis for recovery in outrageous debt collection cases

E. Invasion of privacy

1. Intrusion into private affairs (microphone in an office or home)

2. Public disclosure of private facts (business displays bounced checks)

3. Appropriation of name, image or likeness

CASE BRIEF: Ignat v. Yum! Brands, Inc.

154 Cal. Rptr. 3d 275 (Cal. App. 2013)

FACTS: Melissa Ignat suffered from a bipolar disorder for which she was being treated with medications. Side
effects of medication adjustments occasionally caused her to miss work. She alleged that after
returning from one such absence her supervisor, Mary Shipma, informed her that she had told
everyone in the department that Ignat was bipolar. Subsequently, her coworkers avoided and
shunned her, and one of them asked Shipma if Ignat was likely to “go postal” at work. Ignat brought
suit for public disclosure of private facts, and the trial court granted summary judgment for Yum!
Brands on the ground that the right of privacy can be violated only by a writing, not by word of mouth.

ISSUE: Can the right of privacy be violated only by a writing, not by word of mouth?

HOLDING: No.

REASONING: Times have changed since 1890. Private facts can be just as widely disclosed through oral media as
through written ones. Disclosure in writing is not required to maintain a cause of action for public
disclosure of private facts.

CASE BRIEF: Orthopedic Systems, Inc. v. Schlein

135 Cal. Rptr. 3d 200 (Cal. App. 2011)

FACTS: OSI and Dr. Schlein entered into a contract were OSI would manufacture and sell an unpatented
product designed by Schlein. OSI agreed to pay Schlein royalties. OSI stopped paying the royalty
payments after a number of years claiming that since the product was unpatented it did not have to
pay royalties. However, OSI continued to market the product using Schlein’s name and made
$1,220,000 in profit using his name.

ISSUE: Did state law limit damages to $750, precluding Dr. Schlein from recouping profits made from the
misappropriation of his name?

HOLDING: No.

REASONING: The court held that Schlein was entitled to the $1.2 million in profits as opposed to the statutory
amount of $750. The court held that if a company makes money by using a person’s name, it does not
make sense to limit the individual to statutory damages when real damages exist. Interpreting the
statute to limit damages to $750 when profits existed would not be in the spirit of the statute.
 F. Defamation

1. Slander – oral or spoken

2. Libel – written (some states include a broadcast)

3. Statement about a person’s honesty, reputation or integrity that is untrue that is heard and understood and
causes damage

4. Defenses

a. Truth
b. Privilege such as Congressional debate
c. Qualified media privilege for coverage of celebrities/public figures – must prove malice (knowledge it
was false or reckless disregard)
d. Witnesses granted immunity for their testimony have a privilege
e. Qualified privilege for employer references

G. Product disparagement

1. Slander of title or trade libel

2. Product disparagement

3. Same elements as defamation but statement is about product

4. New statutes often called “veggie libel” laws protect generic products such as eggs, beef, broccoli from
slander and libel

H. Wrongful interference with contracts (tortious interference)

1. Third party induces breach of contract

2. Uses persuasion to intentionally induce breach – use Disney example in text

I. Trespass

1. Unpermitted entry to land

2. Unauthorized use of personal property (car)

III. What is Negligence?

A. Elements of negligence

1. Duty of reasonable care: the reasonable person

Because negligence is such an important area, make sure you work through a hypothetical case involving
simple negligence. Point out to the class that the reasonable person will follow them throughout the
semester. The following example might be useful:

Pat, a college student, is driving home from class and is having problems with the tape deck in
the automobile. Suddenly, the cassette in the unit starts spitting out tape all over the drivers
compartment. Pat is hurriedly trying to fix it and is not watching where the vehicle is going. Pat
fails to see that the traffic signal ahead has turned red, goes into the intersection, and collides
with another vehicle.

Ask your class to answer the following questions:

Did Pat fail to exercise the degree of care that a reasonable person would have exercised under
the circumstances? Yes. If so, what would a reasonable person have done? A reasonable
person would have pulled out of traffic, stopped, and fixed the problem or would have ignored it
until safely at home. Was the damage sustained approximately caused by Pat? Yes.

Use Lowe and Cost as example.

 2. Variable character of the standard

a. Does not tell you in advance what should be done

b. Depends on circumstances

3. Degree of care/duty of care

a. Defined as what an ordinary prudent person would exercise under the circumstances
b. Can be professional standards; falling short is malpractice

4. Duty

a. Imposed by statute
b. Imposed by professional standards
c. Imposed by reasonable care

5. Causation

a. “But for” test

b. Failure to warn

CASE BRIEF: Palsgraf v. Long Island R.R. Co.

162 N.E. 99 (N.Y. 1928)

FACTS: Helen Palsgraf was standing on the platform at the railroad station for the Long Island Railway as she
waited for her train to Rockaway Beach. Two men at the other end of the platform where Mrs. Palsgraf
was standing ran to catch another train that was already moving. One man, with the help of a railroad
employee who was on the train, made it safely onto the moving train, but the second man, who was
carrying a package, fell and dropped the package. The package, full of fireworks, exploded, and the
resulting vibrations on the platform caused the scales standing near Mrs. Palsgraf to fall and strike and
injure her. Mrs. Palsgraf sued the railroad for negligence.

ISSUE: Did the Railroad employee cause Mrs. Palsgraf’s injury?

HOLDING: No.

REASONING: The railroad was held not liable for Mrs. Palsgraf’s injuries. While the railroad could foresee injury to
those the employee helped onto the train and even those passengers in the same car, it could not
foresee injury to Mrs. Palsgraf, who was not in the immediate zone of danger created by the
unreasonable conduct of the employee. While there was negligence in the air, it was no sufficiently
close or tied to Mrs. Palsgraf to permit her to recover.

6. Damages

a. Medical bills
b. Lost wages
c. Property damages
d. Punitive damages for gross negligence – use Tyson example to discuss damages

B. Defenses to negligence

1. Contributory negligence – defense

a. The plaintiff recovers nothing

b. It’s the last clear chance

2. Comparative negligence: assign percentage of fault, then applied to reduce recovery

3. Assumption of risk

a. Knowledge of risk
b. Voluntary
CASE BRIEF: Hardesty v. American Seating Co.
194 F. Supp. 2d 447 (D. Md. 2002)

FACTS: Lawrence Hardesty is an over-the-road tractor-trailer truck driver who picked up a load of stadium
seating equipment for the NFL stadium under construction in Baltimore. The equipment was
packaged in large corrugated cardboard boxes weighing several hundred pounds. The shipper,
American Seating Co., loaded the trailer while Hardesty remained in the cab of his truck doing
“paperwork” and napping. Considerable open space existed between the boxes and the rear door of
the trailer. The evidence showed that Hardesty failed to properly examine the load bars used to
secure the boxes from movement during transit. When Hardesty arrived at the Baltimore destination,
he opened the rear trailer door and boxes at the end of trailer fell out and injured him. Hardesty
brought a personal injury negligence action against the shipper. American Seating Co. responded that
Hardesty was contributorily negligent, thus barring his negligence claim.

ISSUE: Was Hardesty contributorily negligent?

HOLDING: Yes.

REASONING: Judgment for American Seating Co., as the claim is barred by Hardesty’s contributory negligence. His
decision to ignore the loading process by remaining in his truck, oblivious to the manner and means of
the loading of the trailer, coupled with his own failure to examine the load bars sufficiently to confirm
that they would “adequately secure” the cargo, together with his decision, in the face of his prior
omissions, to open the doors of the trailer upon his arrival in Baltimore while standing within the zone
of danger created by the possibility (of which he negligently failed to inform himself) of injury from
cargo falling out of the trailer, cohered to rise to the level of a cognizable breach of duty – contributory
negligence.

C. Liability for negligence

1. Age (minor) is not always a defense

2. Immunity for some government agencies

3. Liability for negligently causing mental distress

DISCUSSION POINTS: Sports & Entertainment Law

Liability for Injuries Under the Sports Exception Doctrine

1. Proof of reckless or international conduct is much more difficult to establish than proving a negligence case. A court
may consider four factors in determining the extent of the duty owed by the defendants under the heightened
reckless or intentional conduct standard of care: (1) the normal expectations of participants in the sport in which the
plaintiff and the defendant were engaged; (2) the public policy of encouraging continued vigorous participation in
recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation;
and (4) the decisions of other jurisdictions.
2. Major contact team sports which qualify under the sports exception doctrine are soccer, football, basketball, hockey,
and lacrosse.
3. In Mallin v. Paesani, 892 A.2d 1043 (Conn. Super 2005), the court determined that golf was not a contact team sport
where the sports exception applied. Golf is neither a team sport in the true sense nor a contact sport. Negligence
law applied.

a. Defendant sets in motion series of events

b. Result has emotional impact (damage to graveyard)

4. Bystander recovery

a. Some recovery allowed

b. Must be close to the victim or at the scene
DISCUSSION POINTS: Thinking Things Through
Torts and Public Policy

Some additional facts on Stella Liebeck’s injuries may be considered. Her grandson was driving the car and he parked
his car so Liebeck could add cream and sugar. She placed the cup between her knees and pulled the lid toward her to
remove it when the cup spilled the coffee into her lap. Note that today McDonald’s employees add the cream and sugar
to reduce the risk of harm.
In the discovery process it was revealed that more than 700 complaints about the temperature of McDonald’s coffee had
been registered with the company some of which resulted in injuries. McDonald’s chose not to do anything about the
problem.

IV. What is Strict Liability?

A. Liability imposed for serious conduct

B. Very few if any defenses to these acts

C. Found in statutory violations

D. Also found in product liability

E. Imposing strict liability

ANSWERS TO QUESTIONS AND CASE PROBLEMS

1. Right-to-publicity tort. Tiger sued the shipyard under Right-to-Publicity and breach of contract theories. (The courts
have struggled with the First Amendment right to express “facts” such as a right of the builder to…). The courts have
struggled with the issue of whether a Right-to-Publicity claim is nevertheless prohibited by the First Amendment;
especially where the promotional materials were factual. Some courts have used a “relatedness” test to allow for the
use of the celebrity name. However, in this case, Tiger’s attorneys anticipated the problem and had a clause in the
construction contract that prohibited all publicity without permission. The case was settled with a $1.6 million
payment to Tiger Woods.

2. Defamation. Although the word “pimp” may be reasonably capable of a defamatory meaning when read in isolation,
we agree with the district court’s assessment that “the term loses its meaning when considered in the context of this
case where it appeared among other photos using loose, figurative slang language directed at a younger,
lighthearted audience.” The term “pimp” as used on the ESPN.com website was not intended as a criminal
accusation, nor was it reasonably susceptible to such a literal interpretation. Ironically it was most likely intended as
a compliment. But we need not definitively resolve that issue here because even if the photograph and caption are
reasonably capable of a defamatory meaning, they are not actionable under the First Amendment. [Knievel v.
ESPN, 393 F.3d 1068 (9th Cir.)]

3. Assumption of the risk not applicable where reckless conduct is involved. It is true that collisions between
snowboarders are one of the risks inherent in the sport of snowboarding, and if this case were brought on a
negligence theory related to an ordinary collision the defense would be successful. However, the plaintiff’s case is
pursued under the heightened burden of proof on the part of the plaintiff asserting reckless conduct. Snowboarding
downhill at a fast rate of speed while engaged in a snowball fight is dangerous activity, and the court concluded that
there was a [triable] issue of fact whether David’s conduct was so reckless that it was totally outside the range of
ordinary activity of the sport of snowboarding. [Mammoth Mountain Ski Area v. Graham, 38 Cal. Rptr. 3d 422 (Cal.
App.)]

4. Invasion of privacy. Judgment against both Cynthia and her family. The essential elements of the “public disclosure
of private facts” theory are public disclosure of private facts. A matter that is already public or has become part of the
public domain is not private. While Cynthia expected a limited audience, by posting the article on MySpace.com for
six days, Cynthia opened the article to the public at large. The potential audience was vast. The right to privacy is
purely personal and cannot be asserted by her parents and sister. [Moreno v. Hanford Sentinel, Inc., 91 Cal. Rptr.
3d 858 (Cal. App.)]

5. Right of publicity. Bosley pursued the injunction under the right of publicity tort theory. Judgment for Bosley. The
First Amendment does not immunize defendants from damages for infringement of the right of publicity. No
significant editorial comment or artistic expression involving First Amendment protections applies in this case. If any
“speech” interest is involved it is commercial speech. At its core the defendants are selling Bosley’s image for a
 profit without her consent. It is in violation of her right of publicity, which protects one’s right to be free from the
appropriation of one’s persona. The injunction sought was granted. [Bosley v. Wildwett.com, 310 F. Supp. 2d 914
(N.D. Ohio)]

6. Negligence: Assumption of Risk. The State Supreme Court declined to adopt the Baseball Rule stating:

Under our system of limited government, the legislative branch is entrusted with decisions of public
policy. Judges and Justices are servants of the law, not the other way around. Judges are like umpires.
Umpires don’t make the rules, they make sure everybody plays by the rules, but it is a limited role.
Nobody ever went to a ball game to see the umpire.

Charles Fried, Balls and Strikes, 61 Emory L.J. 641, 642 (2012), quoting the Confirmation Hearing on
the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Should the General
Assembly wish to adopt the Baseball Rule in statutory form, of course, it is free to do so; indeed, four
other state legislatures have done just that. Ms. DeJesus was unsuccessful in her premises liability and
negligence claims. [South Shore Baseball, LLC v. DeJesus, 11 N.E.3d 903 (Ind.)]

7. Trespass. Damage to property by entry with the emissions; this is a trespass. [Maryland Heights Leasing, Inc. v.
Mallinckrodt, Inc., 706 S.W. 2d 218 (Mo. App.)]

8. Negligence; duty. The court held that the spontaneous explosion of the abandoned van’s gas tank was not
reasonably foreseeable and the city owed no duty to protect the boy who was playing nearby. The city was not
negligent in its failure to tow the van. In determining whether there was a legal duty on the part of the city, the
question to be answered is whether the occurrence (explosion) was reasonably foreseeable. Liability cannot be
based on surmise or conjecture. [Ortiz v. Chicago, 398 N.E. 2d 1007 (Ill. App.)]

9. Qualified privilege; defamation. The circumstances of the investigation, the relevance of the matter to the
employer’s business, and the fact that the statement was privately told to a superior led to the conclusion that Hooks
did not make the statement with malice. Because the statements were nonmalicious and were made to the employer
regarding a matter within the range of corporate business, Hooks was protected by a qualified privilege from liability
for slander. [Hooks v. McCall, 272 So. 2d 925 (Miss.)]

10. Substantial factor test of proximate causation. No. The court applied the substantial cause test. Each defendant
had been a substantial cause of the plaintiff’s harm. Accordingly, neither defendant could defend on the grounds
that another person, the other defendant, had also been a cause of the harm. [Bumbardner v. Allison, 78 S.E. 2d
752 (N.C.)]

11. Primary assumption of the risk; comparative negligence. The appeals court decided that the doctrine of primary
assumption of the risk did not apply to the facts of this case. Such a doctrine is a complete defense. Carl was not
engaged in the sport of boating when he was injured. He may well have been comparatively negligent in jumping off
the moving vessel to help tie up the boat, which could be compared to the negligence of the Yacht Club by a jury in
determining responsibility and apportioning damages. Primary assumption of the risk is a complete bar to the
recovery of damages. [Kindrich v. Long Beach Yacht Club, 84 Cal. Rptr. 3d 824 (Cal. App.)]

12. Negligence; duty. The driver who collided with the motorist owed no duty of care to the yet unconceived child who
later was delivered prematurely due to pressure from the motorist’s lumbo-peritoneal shunt. There was no duty to
the infant. [Hegyes v. Unjian Enterprises, Inc., 286 Cal. Rptr. 85 (Cal. App.)]

13. Comparative negligence statutes; assumption of risk. Kendra was not negligent in taking part in the game. There
was nothing in the fact of participation in the game that would have alerted a reasonable person to the fact that such
an injury was foreseeable. By taking part in the game, she voluntarily assumed risks of normal harm that could
reasonably be associated with the game. Her experience with the game showed that she knew what could be
expected, and there was no proof that the defendant acted recklessly or caused harm intentionally. That is, nothing
went beyond the reasonable expectations of a reasonable person. Therefore, there was no problem of allocating
degree of fault; thus, the comparative negligence statute did not apply, and Kendra was barred by her assumption of
risk.

For an advanced class, it may be noted that there is confusion in the law as to the relationship of contributory
negligence to assumption of risk. This typically results from failing to distinguish between whether the plaintiff was
negligent in acting as the plaintiff acted or whether the defendant was at fault. Justice Frankfurter of the U.S.
Supreme Court has commented on this confusion: “The phrase ‘assumption’ is an excellent illustration of the extent
to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its
lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and
sometimes contradictory ideas.” Tiller v Atlantic Coast Line RR Co., 318 US 54, 68, 87 L Ed 610, 143 ALR 967
(1943), concurring opinion.
14. Duty; causation. The court of appeals reversed the directed verdict holding that a ship owner, however, may have a
higher duty of care than a land owner, depending on the danger. The case was remanded for trial with the jury to
decide whether there was a higher duty of care to be imposed on the cruise line. [Kalendareva v. Discovery Cruise
Line Partnership, 798 So. 2d 804 (Fla. App.)]

15. Requirement of duty for tort liability. The court held that there was no liability because there was no duty to
communicate any warning. The court reached this result on the grounds that psychiatry is not such a precise science
that the doctor would know that a real danger existed, and it would tend to undermine the confidentiality of the
psychiatrist-patient relationship if the psychiatrist were required to give warnings.

A dissenting opinion points out that the majority of the court first decided that it desired that there be no liability and
then worked backward to justify that result by saying that there was no duty. It can be pointed out that in many
situations, it is obvious that a court makes up its mind as to the desired result, then works backward to explain that
result in a way that looks logical. One is reminded of the cynic’s definition of a statistician: “A [person] who draws a
mathematically straight line from an unwarranted assumption to a foregone conclusion.”

The Florida statutes were amended in 1988 to protect the psychiatrist who concludes that a threat made by his
patient will be carried out. The statutes now provide that “the psychiatrist may disclose patient communications to
the extent necessary to warn any potential victim or to communicate the threat to a law enforcement agency. No civil
or criminal action shall be instituted, and there shall be no liability on account of disclosure of otherwise confidential
communications by a psychiatrist in disclosing a threat pursuant to this section [of the statute].” [Boynton v.
Burglass, 590 So. 2d 446 (Fla. App.)]

LAWFLIX

Class Action (1991) (R)

Movie that depicts the magnitude of damages and recovery when multiple injuries occur. Provides insights on tort reform
and the ethics of lawyers. Students can gain insight into the magnitude of discovery and evidence.

Notting Hill (1999) (PG-13)

A story of famous star gets guy, dumps guy, gets guy back, dumps guy again, and then guy dumps famous star, and on
and on. But, the guy owns a bookstore that sells travel books and he has a shoplifter. Hugh Grant, as the guy, illustrates
perfection in exercising the shopkeeper's privilege.

To access additional videos that illustrate business law concepts, visit www.cengage.com/blaw.dvl.

© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part, except for use as
permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management
system for classroom use.
Another random document with
no related content on Scribd:
oath in heaven. He calmly and bravely heard the voice of doubt and
fear all around him; but he had an oath in heaven, and there was not
power enough on earth to make this honest boatman,
backwoodsman, and broad-handed splitter of rails evade or violate
that sacred oath. He had not been schooled in the ethics of slavery;
his plain life had favored his love of truth. He had not been taught
that treason and perjury were the proof of honor and honesty. His
moral training was against his saying one thing when he meant
another. The trust which Abraham Lincoln had in himself and in the
people was surprising and grand, but it was also enlightened and
well-founded. He knew the American people better than they knew
themselves, and his truth was based upon this knowledge.
Fellow citizens, the fourteenth day of April, 1865, of which this is
the eleventh anniversary, is now and will ever remain a memorable
day in the annals of this republic. It was on the evening of this day,
while a fierce and sanguinary rebellion was in the last stages of its
desolating power; while its armies were broken and scattered before
the invincible armies of Grant and Sherman; while a great nation,
torn and rent by war, was already beginning to raise to the skies loud
anthems of joy at the dawn of peace, it was startled, amazed, and
overwhelmed by the crowning crime of slavery—the assassination of
Abraham Lincoln. It was a new crime, a pure act of malice. No
purpose of the rebellion was to be served by it. It was the simple
gratification of a hell-black spirit of revenge. But it has done good
after all. It has filled the country with a deeper abhorrence of slavery
and a deeper love for the great liberator.
Had Abraham Lincoln died from any of the numerous ills to
which flesh is heir; had he reached that good old age of which his
vigorous constitution and his temperate habits gave promise; had he
been permitted to see the end of his great work; had the solemn
curtain of death come down but gradually—we should still have been
smitten with a heavy grief, and treasured his name lovingly. But
dying as he did die, by the red hand of violence, killed, assassinated,
taken off without warning, not because of personal hate—for no man
who knew Abraham Lincoln could hate him—but because of his
fidelity to union and liberty, he is doubly dear to us, and his memory
will be precious forever.
Fellow citizens, I end as I begun, with congratulations. We have
done a good work for our race to-day. In doing honor to the memory
of our friend and liberator, we have been doing highest honors to
ourselves and those who come after us; we have been fastening
ourselves to a name and fame imperishable and immortal; we have
also been defending ourselves from a blighting scandal. When now it
shall be said that the colored man is soulless, that he has no
appreciation of benefits or benefactors; when the foul reproach of
ingratitude is hurled at us, and it is attempted to scourge us beyond
the range of human brotherhood, we may calmly point to the
monument we have this day erected to the memory of Abraham
Lincoln.

west india emancipation.

Extract from a speech delivered by Frederick Douglass in Elmira,
N. Y., August 1, 1880, at a great meeting of colored people, met to
celebrate West India emancipation, and where he was received with
marked respect and approval by the president of the day and the
immense crowd there assembled. It is placed in this book partly as a
grateful tribute to the noble transatlantic men and women through
whose unwearied exertions the system of negro slavery was finally
abolished in all the British Isles.
 A. Lincoln
Mr. President:—I thank you very sincerely for this cordial
greeting. I hear in your speech something like a welcome home after
a long absence. More years of my life and labors have been spent in
this than in any other State of the Union. Anywhere within a hundred
miles of the goodly city of Rochester, I feel myself at home and
among friends. Within that circumference, there resides a people
which have no superiors in point of enlightenment, liberality, and
civilization. Allow me to thank you also, for your generous words of
sympathy and approval. In respect to this important support to a
public man, I have been unusually fortunate. My forty years of work
in the cause of the oppressed and enslaved, has been well noted,
well appreciated, and well rewarded. All classes and colors of men,
at home and abroad, have in this way assisted in holding up my
hands. Looking back through these long years of toil and conflict,
during which I have had blows to take as well as blows to give, and
have sometimes received wounds and bruises, both in body and in
mind, my only regret is that I have been enabled to do so little to lift
up and strengthen our long enslaved and still oppressed people. My
apology for these remarks personal to myself, is in the fact that I am
now standing mainly in the presence of a new generation. Most of
the men with whom I lived and labored in the early years of the
abolition movement, have passed beyond the borders of this life.
Scarcely any of the colored men who advocated our cause, and who
started when I did, are now numbered among the living, and I begin
to feel somewhat lonely. But while I have the sympathy and approval
of men and women like these before me, I shall give with joy my
latest breath in support of your claim to justice, liberty, and equality
among men. The day we celebrate is preëminently the colored
man’s day. The great event by which it is distinguished, and by which
it will forever be distinguished from all other days of the year, has
justly claimed thoughtful attention among statesmen and social
reformers throughout the world. While to them it is a luminous point
in human history, and worthy of thought in the colored man, it
addresses not merely the intelligence, but the feeling. The
emancipation of our brothers in the West Indies comes home to us
and stirs our hearts and fills our souls with those grateful sentiments
which link mankind in a common brotherhood.
In the history of the American conflict with slavery, the day we
celebrate has played an important part. Emancipation in the West
Indies was the first bright star in a stormy sky; the first smile after a
long providential frown; the first ray of hope; the first tangible fact
demonstrating the possibility of a peaceable transition from slavery
to freedom of the negro race. Whoever else may forget or slight the
claims of this day, it can never be other to us than memorable and
glorious. The story of it shall be brief and soon told. Six-and-forty
years ago, on the day we now celebrate, there went forth over the
blue waters of the Carribean sea a great message from the British
throne, hailed with startling shouts of joy and thrilling songs of praise.
That message liberated, set free, and brought within the pale of
civilization eight hundred thousand people, who, till then, had been
esteemed as beasts of burden. How vast, sudden, and startling was
this transformation! In one moment, a mere tick of a watch, the
twinkle of an eye, the glance of the morning sun, saw a bondage
which had resisted the humanity of ages, defied earth and heaven,
instantly ended; saw the slave-whip burnt to ashes; saw the slave’s
chains melted; saw his fetters broken, and the irresponsible power of
the slave-master over his victim forever destroyed.
I have been told by eye-witnesses of the scene, that, in the first
moment of it, the emancipated hesitated to accept it for what it was.
They did not know whether to receive it as a reality, a dream, or a
vision of the fancy.
No wonder they were thus amazed, and doubtful, after their
terrible years of darkness and sorrow, which seemed to have no end.
Like much other good news, it was thought too good to be true. But
the silence and hesitation they observed was only momentary. When
fully assured the good tidings which had come across the sea to
them, were not only good but true; that they were indeed no longer
slaves, but free; that the lash of the slave-driver was no longer in the
air, but buried in the earth; that their limbs were no longer chained,
but subject to their own will, the manifestations of their joy and
gratitude knew no bounds, and sought expression in the loudest and
wildest possible forms. They ran about, they danced, they sang, they
gazed into the blue sky, bounded into the air, kneeled, prayed,
shouted, rolled upon the ground, embraced each other. They
laughed and wept for joy. Those who witnessed the scene say they
never saw anything like it before.
We are sometimes asked why we American citizens annually
celebrate West India emancipation when we might celebrate
American emancipation. Why go abroad, say they, when we might
as well stay at home?
 The answer is easily given. Human liberty excludes all idea of
home and abroad. It is universal and spurns localization.

“When a deed is done for freedom,

Through the broad earth’s aching breast
Runs a thrill of joy prophetic,
Trembling on from East to West.”

It is bounded by no geographical lines and knows no national

limitations. Like the glorious sun of the heavens, its light shines for
all. But besides this general consideration, this boundless power and
glory of liberty, West India Emancipation has claims upon us as an
event in this nineteenth century in which we live, for rich as this
century is in moral and material achievements, in progress and
civilization, it can claim nothing for itself greater and grander than
this act of West India Emancipation.
Whether we consider the matter or the manner of it, the tree or
its fruit, it is noteworthy, memorable, and sublime. Especially is the
manner of its accomplishment worthy of consideration. Its best
lesson to the world, its most encouraging word to all who toil and
trust in the cause of justice and liberty, to all who oppose oppression
and slavery, is a word of sublime faith and courage—faith in the truth
and courage in the expression.
Great and valuable concessions have in different ages been
made to the liberties of mankind. They have, however, come not at
the command of reason and persuasion, but by the sharp and
terrible edge of the sword. To this rule West India Emancipation is a
splendid exception. It came, not by the sword, but by the word; not
by the brute force of numbers, but by the still small voice of truth; not
by barricades, bayonets, and bloody revolution, but by peaceful
agitation; not by divine interference, but by the exercise of simple,
human reason and feeling. I repeat, that, in this peculiarity, we have
what is most valuable to the human race generally.
 It is a revelation of a power inherent in human society. It shows
what can be done against wrong in the world, without the aid of
armies on the earth or of angels in the sky. It shows that men have in
their own hands the peaceful means of putting all their moral and
political enemies under their feet, and of making this world a healthy
and happy dwelling-place, if they will faithfully and courageously use
them.
The world needed just such a revelation of the power of
conscience and of human brotherhood, one that overleaped the
accident of color and of race, and set at naught the whisperings of
prejudice. The friends of freedom in England saw in the negro a
man, a moral and responsible being. Having settled this in their own
minds, they, in the name of humanity, denounced the crime of his
enslavement. It was the faithful, persistent, and enduring enthusiasm
of Thomas Clarkson, William Wilberforce, Granville Sharpe, William
Knibb, Henry Brougham, Thomas Fowell Buxton, Daniel O’Connell,
George Thompson, and their noble co-workers that finally thawed
the British heart into sympathy for the slave, and moved the strong
arm of that Government in mercy to put an end to his bondage.
Let no American, especially no colored American, withhold a
generous recognition of this stupendous achievement. What though
it was not American, but British; what though it was not Republican,
but Monarchical; what though it was not from the American
Congress, but from the British Parliament; what though it was not
from the chair of a President, but from the throne of a Queen, it was
none the less a triumph of right over wrong, of good over evil, and a
victory for the whole human race.
Besides: We may properly celebrate this day because of its
special relation to our American Emancipation. In doing this we do
not sacrifice the general to the special, the universal to the local. The
cause of human liberty is one the whole world over. The downfall of
slavery under British power meant the downfall of slavery, ultimately,
under American power, and the downfall of negro slavery
everywhere. But the effect of this great and philanthropic measure,
naturally enough, was greater here than elsewhere. Outside the
British Empire no other nation was in a position to feel it so much as
we. The stimulus it gave to the American anti-slavery movement was
immediate, pronounced, and powerful. British example became a
tremendous lever in the hands of American abolitionists. It did much
to shame and discourage the spirit of caste and the advocacy of
slavery in church and state. It could not well have been otherwise.
No man liveth unto himself.
What is true in this respect of individual men, is equally true of
nations. Both impart good or ill to their age and generation. But
putting aside this consideration, so worthy of thought, we have
special reasons for claiming the First of August as the birthday of
negro emancipation, not only in the West Indies, but in the United
States. Spite of our national Independence, a common language, a
common literature, a common history, and a common civilization
makes us and keeps us still a part of the British nation, if not a part
of the British Empire. England can take no step forward in the
pathway of a higher civilization without drawing us in the same
direction. She is still the mother country, and the mother, too, of our
abolition movement. Though her emancipation came in peace, and
ours in war; though hers cost treasure, and ours blood; though hers
was the result of a sacred preference, and ours resulted in part from
necessity, the motive and mainspring of the respective measures
were the same in both.
The abolitionists of this country have been charged with bringing
on the war between the North and South, and in one sense this is
true. Had there been no anti-slavery agitation at the North, there
would have been no active anti-slavery anywhere to resist the
demands of the slave-power at the South, and where there is no
resistance there can be no war. Slavery would then have been
nationalized, and the whole country would then have been subjected
to its power. Resistance to slavery and the extension of slavery
invited and provoked secession and war to perpetuate and extend
the slave system. Thus in the same sense, England is responsible
for our civil war. The abolition of slavery in the West Indies gave life
and vigor to the abolition movement in America. Clarkson of England
gave us Garrison of America; Granville Sharpe of England gave us
our Wendell Phillips; and Wilberforce of England gave us our
peerless Charles Sumner.
These grand men and their brave co-workers here, took up the
moral thunder-bolts which had struck down slavery in the West
Indies, and hurled them with increased zeal and power against the
gigantic system of slavery here, till, goaded to madness, the
trafficers in the souls and bodies of men flew to arms, rent asunder
the Union at the center, and filled the land with hostile armies and
the ten thousand horrors of war. Out of this tempest, out of this
whirlwind and earthquake of war, came the abolition of slavery, came
the employment of colored troops, came colored citizens, came
colored jurymen, came colored congressmen, came colored schools
in the South, and came the great amendments of our national
constitution.
We celebrate this day, too, for the very good reason that we
have no other to celebrate. English emancipation has one advantage
over American emancipation. Hers has a definite anniversary. Ours
has none. Like our slaves, the freedom of the negro has no birthday.
No man can tell the day of the month, or the month of the year, upon
which slavery was abolished in the United States. We cannot even
tell when it began to be abolished. Like the movement of the sea, no
man can tell where one wave begins and another ends. The chains
of slavery with us were loosened by degrees. First, we had the
struggle in Kansas with border ruffians; next, we had John Brown at
Harper’s Ferry; next, the firing upon Fort Sumter; a little while after,
we had Fremont’s order, freeing the slaves of the rebels in Missouri.
Then we had General Butler declaring and treating the slaves of
rebels as contraband of war; next we had the proposition to arm
colored men and make them soldiers for the Union. In 1862 we had
the conditional promise of a proclamation of emancipation from
President Lincoln, and, finally, on the 1st of January, 1863, we had
the proclamation itself—and still the end was not yet. Slavery was
bleeding and dying, but it was not dead, and no man can tell just
when its foul spirit departed from our land, if, indeed, it has yet
departed, and hence we do not know what day we may properly
celebrate as coupled with this great American event.
 When England behaved so badly during our late civil war, I, for
one, felt like giving up these 1st of August celebrations. But I
remembered that during that war, there were two Englands, as there
were two Americas, and that one was true to liberty while the other
was true to slavery. It was not the England which gave us West India
emancipation that took sides with the slaveholder’s rebellion. It was
not the England of John Bright and William Edward Forster, that
permitted Alabamas to escape from British ports, and prey upon our
commerce, or that otherwise favored slaveholding in the South, but it
was the England which had done what it could to prevent West India
emancipation.
It was the tory party in England that fought the abolition party at
home, and the same party it was, that favored our slaveholding
rebellion.
Under a different name, we had the same, or a similar party,
here; a party which despised the negro and consigned him to
perpetual slavery; a party which was willing to allow the American
Union to be shivered into fragments, rather than that one hair of the
head of slavery should be injured.
But, fellow-citizens, I should but very imperfectly fulfil the duty of
this hour if I confined myself to a merely historical or philosophical
discussion of West India emancipation. The story of the 1st of
August has been told a thousand times over, and may be told a
thousand times more. The cause of freedom and humanity has a
history and destiny nearer home.
How stands the case with the recently emancipated millions of
colored people in our own country? What is their condition to-day?
What is their relation to the people who formerly held them as
slaves? These are important questions, and they are such as trouble
the minds of thoughtful men of all colors, at home and abroad. By
law, by the constitution of the United States, slavery has no
existence in our country. The legal form has been abolished. By the
law and the constitution, the negro is a man and a citizen, and has
all the rights and liberties guaranteed to any other variety of the
human family, residing in the United States.
 He has a country, a flag, and a government, and may legally
claim full and complete protection under the laws. It was the ruling
wish, intention, and purpose of the loyal people after rebellion was
suppressed, to have an end to the entire cause of that calamity by
forever putting away the system of slavery and all its incidents. In
pursuance of this idea, the negro was made free, made a citizen,
made eligible to hold office, to be a juryman, a legislator, and a
magistrate. To this end, several amendments to the constitution were
proposed, recommended, and adopted. They are now a part of the
supreme law of the land, binding alike upon every State and Territory
of the United States, North and South. Briefly, this is our legal and
theoretical condition. This is our condition on paper and parchment.
If only from the national statute book we were left to learn the true
condition of the colored race, the result would be altogether
creditable to the American people. It would give them a clear title to a
place among the most enlightened and liberal nations of the world.
We could say of our country, as Curran once said of England, “The
spirit of British law makes liberty commensurate with and
inseparable from the British soil.” Now I say that this eloquent tribute
to England, if only we looked into our constitution, might apply to us.
In that instrument we have laid down the law, now and forever, that
there shall be no slavery or involuntary servitude in this republic,
except for crime.
We have gone still further. We have laid the heavy hand of the
constitution upon the matchless meanness of caste, as well as the
hell-black crime of slavery. We have declared before all the world
that there shall be no denial of rights on account of race, color, or
previous condition of servitude. The advantage gained in this respect
is immense.
It is a great thing to have the supreme law of the land on the side
of justice and liberty. It is the line up to which the nation is destined
to march—the law to which the nation’s life must ultimately conform.
It is a great principle, up to which we may educate the people, and to
this extent its value exceeds all speech.
But to-day, in most of the Southern States, the fourteenth and
fifteenth amendments are virtually nullified.
 The rights which they were intended to guarantee are denied
and held in contempt. The citizenship granted in the fourteenth
amendment is practically a mockery, and the right to vote, provided
for in the fifteenth amendment, is literally stamped out in face of
government. The old master class is to-day triumphant, and the
newly enfranchised class in a condition but little above that in which
they were found before the rebellion.
Do you ask me how, after all that has been done, this state of
things has been made possible? I will tell you. Our reconstruction
measures were radically defective. They left the former slave
completely in the power of the old master, the loyal citizen in the
hands of the disloyal rebel against the government. Wise, grand, and
comprehensive in scope and design, as were the reconstruction
measures, high and honorable as were the intentions of the
statesmen by whom they were framed and adopted, time and
experience, which try all things, have demonstrated that they did not
successfully meet the case.
In the hurry and confusion of the hour, and the eager desire to
have the Union restored, there was more care for sublime
superstructure of the republic than for the solid foundation upon
which it could alone be upheld. They gave freedmen the machinery
of liberty, but denied them the steam to put it in motion. They gave
them the uniform of soldiers, but no arms; they called them citizens,
and left them subjects; they called them free, and almost left them
slaves. They did not deprive the old master class of the power of life
and death which was the soul of the relation of master and slave.
They could not of course sell them, but they retained the power to
starve them to death, and wherever this power is held, there is the
power of slavery. He who can say to his fellow-man, “You shall serve
me or starve,” is a master, and his subject is a slave. This was seen
and felt by Thaddeus Stevens, Charles Sumner, and leading stalwart
Republicans, and had their counsels prevailed the terrible evils from
which we now suffer would have been averted. The negro to-day
would not be on his knees, as he is, abjectly supplicating the old
master class to give him leave to toil. Nor would he now be leaving
the South as from a doomed city and seeking a home in the
uncongenial North, but tilling his native soil in comparative
independence. Though no longer a slave, he is in a thraldom
grievous and intolerable, compelled to work for whatever his
employer is pleased to pay him, swindled out of his hard earnings by
money orders redeemed in stores, compelled to pay the price of an
acre of ground for its use during a single year, to pay four times more
than a fair price for a pound of bacon, and be kept upon the
narrowest margin between life and starvation. Much complaint has
been made that the freedmen have shown so little ability to take care
of themselves since their emancipation. Men have marvelled that
they have made so little progress. I question the justice of this
complaint. It is neither reasonable, nor in any sense just. To me, the
wonder is, not that the freedmen have made so little progress, but,
rather, that they have made so much; not that they have been
standing still, but that they have been able to stand at all.
We have only to reflect for a moment upon the situation in which
these people found themselves when liberated: consider their
ignorance, their poverty, their destitution, and their absolute
dependence upon the very class by which they had been held in
bondage for centuries, a class whose every sentiment was averse to
their freedom, and we shall be prepared to marvel that they have
under the circumstances done so well.
History does not furnish an example of emancipation under
conditions less friendly to the emancipated class, than this American
example. Liberty came to the freedmen of the United States, not in
mercy but in wrath; not by moral choice but by military necessity; not
by the generous action of the people among whom they were to live,
and whose good will was essential to the success of the measure,
but by strangers, foreigners, invaders, trespassers, aliens, and
enemies. The very manner of their emancipation invited to the heads
of the freedmen the bitterest hostility of race and class. They were
hated because they had been slaves, hated because they were now
free, and hated because of those who had freed them. Nothing was
to have been expected other than what has happened, and he is a
poor student of the human heart who does not see that the old
master class would naturally employ every power and means in their
reach to make the great measure of emancipation unsuccessful and
utterly odious. It was born in the tempest and whirlwind of war, and
has lived in a storm of violence and blood. When the Hebrews were
emancipated, they were told to take spoil from the Egyptians. When
the serfs of Russia were emancipated, they were given three acres
of ground upon which they could live and make a living. But not so
when our slaves were emancipated. They were sent away empty-
handed, without money, without friends, and without a foot of land to
stand upon. Old and young, sick and well, were turned loose to the
open sky, naked to their enemies. The old slave quarter that had
before sheltered them, and the fields that had yielded them corn,
were now denied them. The old master class in its wrath said, “Clear
out! The Yankees have freed you, now let them feed and shelter
you!”
Inhuman as was this treatment, it was the natural result of the
bitter resentment felt by the old master class, and in view of it, the
wonder is, not that the colored people of the South have done so
little in the way of acquiring a comfortable living, but that they live at
all.
Taking all the circumstances into consideration, the colored
people have no reason to despair. We still live, and while there is life
there is hope. The fact that we have endured wrongs and hardships,
which would have destroyed any other race, and have increased in
numbers and public consideration, ought to strengthen our faith in
ourselves and our future. Let us then, wherever we are, whether at
the North or at the South, resolutely struggle on in the belief that
there is a better day coming, and that we by patience, industry,
uprightness, and economy may hasten that better day. I will not
listen, myself, and I would not have you listen to the nonsense, that
no people can succeed in life among a people by whom they have
been despised and oppressed.
The statement is erroneous and contradicted by the whole
history of human progress. A few centuries ago, all Europe was
cursed with serfdom, or slavery. Traces of this bondage still remain
but are not easily visible.
 The Jews, only a century ago were despised, hated, and
oppressed, but they have defied, met, and vanquished the hard
conditions imposed upon them, and are now opulent and powerful,
and compel respect in all countries.
Take courage from the example of all religious denominations
that have sprung up since Martin Luther. Each in its turn, has been
oppressed and persecuted.
Methodists, Baptists, and Quakers, have all been compelled to
feel the lash and sting of popular disfavor—yet all in turn have
conquered the prejudice and hate of their surroundings.
Greatness does not come to any people on flowery beds of
ease. We must fight to win the prize. No people to whom liberty is
given, can hold it as firmly and wear it as grandly as those who
wrench their liberty from the iron hand of the tyrant. The hardships
and dangers involved in the struggle give strength and toughness to
the character, and enable it to stand firm in storm as well as in
sunshine.
One thought more before I leave this subject, and it is a thought I
wish you all to lay to heart. Practice it yourselves and teach it to your
children. It is this, neither we, nor any other people, will ever be
respected till we respect ourselves, and we will never respect
ourselves till we have the means to live respectably. An exceptionally
poor and dependent people will be despised by the opulent and
despise themselves.
You cannot make an empty sack stand on end. A race which
cannot save its earnings, which spends all it makes and goes in debt
when it is sick, can never rise in the scale of civilization, no matter
under what laws it may chance to be. Put us in Kansas or in Africa,
and until we learn to save more than we spend, we are sure to sink
and perish. It is not in the nature of things that we should be equally
rich in this world’s goods. Some will be more successful than others,
and poverty, in many cases, is the result of misfortune rather than of
crime; but no race can afford to have all its members the victims of
this misfortune, without being considered a worthless race. Pardon
me, therefore, for urging upon you, my people, the importance of
saving your earnings; of denying yourselves in the present, that you
may have something in the future, of consuming less for yourselves
that your children may have a start in life when you are gone.
With money and property comes the means of knowledge and
power. A poverty-stricken class will be an ignorant and despised
class, and no amount of sentiment can make it otherwise. This part
of our destiny is in our own hands. Every dollar you lay up,
represents one day’s independence, one day of rest and security in
the future. If the time shall ever come when we shall possess in the
colored people of the United States, a class of men noted for
enterprise, industry, economy, and success, we shall no longer have
any trouble in the matter of civil and political rights. The battle
against popular prejudice will have been fought and won, and in
common with all other races and colors, we shall have an equal
chance in the race of life.
Do I hear you ask in a tone of despair if this time will ever come
to our people in America? The question is not new to me. I have tried
to answer it many times and in many places, when the outlook was
less encouraging than now. There was a time when we were
compelled to walk by faith in this matter, but now, I think, we may
walk by sight. Notwithstanding the great and all-abounding darkness
of our past, the clouds that still overhang us in the moral and social
sky, the defects inherited from a bygone condition of servitude, it is
the faith of my soul that this brighter and better day will yet come.
But whether it shall come late or come soon will depend mainly upon
ourselves.
The laws which determine the destinies of individuals and
nations are impartial and eternal. We shall reap as we sow. There is
no escape. The conditions of success are universal and
unchangeable. The nation or people which shall comply with them
will rise, and those which violate them will fall, and perhaps will
disappear altogether. No power beneath the sky can make an
ignorant, wasteful, and idle people prosperous, or a licentious people
happy.
 One ground of hope for my people is founded upon the returns
of the last census. One of the most disheartening ethnological
speculations concerning us has been that we shall die out; that, like
the Indian, we shall perish in the blaze of Caucasian civilization. The
census sets that heresy concerning us to rest. We are more than
holding our own in all the southern states. We are no longer four
millions of slaves, but six millions of freemen.
Another ground of hope for our race is in the progress of
education. Everywhere in the south the colored man is learning to
read. None now denies the ability of the colored race to acquire
knowledge of anything which can be communicated to the human
understanding by letters. Our colored schools in the city of
Washington compare favorably with the white schools, and what is
true of Washington is equally true of other cities and towns of the
south. Still another ground of hope I find in the fact that colored men
are strong in their gratitude to benefactors, and firm in their political
convictions. They cannot be coaxed or driven to vote with their
enemies against their friends.
Nothing but the shot-gun or the bull-dozer’s whip can keep them
from voting their convictions. Then another ground of hope is that as
a general rule we are an industrious people. I have traveled
extensively over the south, and almost the only people I saw at work
there were the colored people. In any fair condition of things the men
who till the soil will become proprietors of the soil. Only arbitrary
conditions can prevent this. To-day the negro, starting from nothing,
pays taxes upon six millions in Georgia, and forty millions in
Louisiana. Not less encouraging than this is the political situation at
the south.
The vote of the colored man, formerly beaten down and stamped
out by intimidation, is now revived, sought, and defended by
powerful allies, and this from no transient sentiment of the moment,
but from the permanent laws controlling the action of political parties.
 Transcriber’s Notes
Punctuation, hyphenation, and spelling were made
consistent when a predominant preference was found in the
original book; otherwise they were not changed.
Simple typographical errors were corrected; unbalanced
quotation marks were remedied when the change was
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page 413 was not referenced on that page. Both of these
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