Posted on Thursday, 9 December 2004
Emma Woodhouse, handsome, clever, and rich, with a comfortable home and happy disposition, seemed to unite some of the best blessings of existence; and had lived nearly twenty-one years in the world with very little to distress or vex her. Of course, the question of whether or not she was a Tortfeasor had a great deal more to do with what she had done to distress or vex others.
It all began when Emma lost her governess, not to any tort but to marriage to a near neighbour, Mr. Weston. Mr. Weston had lost his first wife, very likely to Medical Malpractice, though no Negligence was ever proven. Mr. Weston was left with a son to support, but of this Duty he was soon relieved by the boy's uncle, who raised him as his heir. This son, Frank Churchill, had never visited Highbury, even on the occasion of his father's wedding, possibly because he did not care to undertake a journey by a Common Carrier, notwithstanding their Heightened Duty of Care towards passengers.
Emma was left all alone at Hartfield with her aging father, who was cared for only by the apothecary Perry, who had his Informed Consent to attempt every novel medical remedy, but nevertheless could not seem to ease him of his many ailments. Perhaps an Expert Witness could have testified as to whether his Standard of Care conformed to the Norm in that particular Locality, although it is possible, given Perry's influence, he might have found himself bound by a Conspiracy of Silence. As it happened, no such expert ever appeared, and Perry happily held sway over Highbury, even after his children were spotted eating wedding cake.
Mr. Wodehouse was tempted to sue for Loss of Consortium, which, after all, had originated as an action for the loss of the services of a servant, but Emma persuaded him out of this particular Cause of Action. She felt the loss herself, however, and befriended Harriet Smith, a boarder of mysterious parentage at Mrs. Goddard's school. Harriet Smith was young and easily influenced, and followed Emma in all things, even when Emma went so far as to Defame Harriet Smith's young lover, Robert Martin. In Emma's defense, she stated nothing more than an Opinion, though Harriet Smith, being perhaps somewhat less than a Reasonable Person, certainly took her opinion as Verifiable Fact.
Emma had romantic troubles enough of her own, for Mr. Elton, the man she intended should marry Harriet, preferred her, and Falsely Imprisoned her in a carriage in order to plead his suit. When Emma pointed out that he had (1) restricted her in a confined space (2) without possibility of escape (3) while she was aware of the restraint, he defended himself by saying that her silence at his previous overtures implied consent (Prosser's Moonlight Presumption). When she did escape the carriage, Emma had to face the dilemma of whether she should keep Mr. Elton's revelations in confidence or whether she had a Duty of Disclosure towards Harriet, the Third Party likely to be injured by Mr. Elton's revelations (Tarasoff v. U.C. Board of Regents), and taking the safer path, decided on full disclosure.
Of course, it was Emma's own actions that had Proximately Caused Harriet's Injury, and she was well aware of the Direct Consequences of her actions (In Re: Polemis). Mr. Knightley, her sister's brother-in-law and her own dear friend and conscience, pointed out that these consequences had been Foreseeable all along (Wagon Mound).
But Emma was soon distracted at the advent of Jane Fairfax, the only other young lady in Highbury who was possibly her peer, and Frank Churchill, a new romantic prospect. Jane Fairfax was impeccably bred and Emma could never like her, while Frank Churchill, whose high spirits often caused him to stray from the bounds of perfect decorum, she became extremely fond of.
Frank Churchill soon managed to offend all of Highbury on the pretext of going all the way to London just to get a haircut, right around the time that Jane Fairfax received a brand new piano. Yet despite the Correlation, no one was able to prove Actual Causation, perhaps because the science of statistics had not then reached the heights it has since scaled. Nevertheless, a case might have been constructed using Res Ipsa Loquitor, since it is certainly arguable here that the thing itself is the cause (Byrne v. Boadle, since I needed to work in at least one case that would have been good law at the time the story was written), (1) pianos don't appear out of thin air, (2) the instrumentality (and you thought lawyers didn't pun!) was not in Jane's control, and (3) given Jane's impeccable breeding, she certainly was not contributorily negligent. And still Emma believed that Frank Churchill preferred her, though she might have argued that he Fraudulently Misrepresented himself, and she worried that Mr. Knightley favoured Jane Fairfax, whom she didn't want Converting her nephew's inheritance.
And then Mr. Weston threw a ball at the Hartfield Inn, and Mr. Elton, who had returned with a very vulgar wife, Intentionally Inflicted Emotional Distress on Harriet Smith when he failed to dance with her, and perhaps Emma wanted to Assault or even Batter him, but there proved to be no need to do so when Mr. Knightley stepped in to dance with poor Harriet. And soon after that there was a picnic at Box Hill where Emma Negligently Inflicted Emotional Distress (Gammon v. Osteopathic Hospital of Maine) on Mrs. Bates, Jain Fairfax's talkative aunt. Jane Fairfax, a Third Party victim, may well have been affected as well, being as she was in the Zone of Danger, and Mr. Knightley certainly was (Portee v. Jaffee). Emma got a good talking to herself from Mr. Knightley, whose well placed admonishments probably had a Punitive impact Deterring such Reckless conduct.
Soon afterwards, Emma might have gotten a taste of her own medicine, for it turned out that Frank Churchill had been engaged to Jane Fairfax all along, and the Westons were excessively concerned that he had Negligently Inflicted Emotional Distress on her. But Emma did suffer Emotional Distress when she learnt that Harriet Smith preferred Mr. Knightley to all other gentlemen, which educated her as to her own feelings for him. But Harriet Smith and Robert Martin were both sent off to London, and when they came back they were engaged, and Emma's Mr. Knightley was unattached.
And not much remains to be told, for when Mr. Knightley learnt that Emma might be in Pain and Suffering, he returned from London to offer her comfort. But Emma assured him that Frank Churchill had caused no Damage, and without Damages, Negligence is not a Cause of Action. Mr. Knightley got his own dose of Negligently Inflicted Emotional Distress when Emma would not let him speak, but eventually she relented, and he hesitantly offered himself. Lacking any hesitation, she accepted. And I might dwell on the moment longer had a single Tort been then committed or averted. But since it was nothing more or less than the formation of a contract we shall move on.
But even so their troubles were not at an end, for they dared not tell Mr. Wodehouse, with his propensity for Loss of Consortium claims, that he would not be losing a daughter but gaining a son. But of course it was a Tort of a sort that cleared their path, for foxes attacked Mr. Wodehouse's hens. And had these Wild Animals had an owner Mr. Wodehouse could have sued him under Strict Liability (Fletcher v. Rylands). But since they did not he was very happy to learn that he would have a new son-in-law to come and live with them in Defense of their Life and Property.
And so they were married, and one hopes that they had a very good Torte at their wedding after all their troubles.