From the 1938 Restatement of Torts:
An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage. (p. 896)
Differences can and do exist and even though they are difficult to articulate in words, it does not mean they should be ignored. The courts and juries are left to make distinctions among such words as "slight" negligence, negligence, "gross" negligence and recklessness. In other words, "distinctions are recognized in the law even though the distinctions cannot, in any very helpful sense, be adequately articulated" (p. 902).
Once distinctions are made in several prior cases, later cases that align with these cases can be decided in the same fashion. The judge can notify the jury members that in past cases "slight" negligence meant driving at 35 miles per hour and negligence meant driving at 60 miles per hour. The jury members thus have a criterium on which to base their determination.
Vagueness, Christie concludes, is a necessity. First, because it is too difficult to clearly articulate all situations. Second, and more important, because flexibility is necessary in law. He does have one caveat:
there are some jobs which our linguistic tools, partly even because of vagueness, cannot completely perform without the adi of other communicaiton devices. The error to be avoided here, it has been submitted, is that of assuming that because general rules cannot do it alone the job cannot be done, or is not worth doing. That would be an error of the first magnitude. (p.911)
It is difficult to find fault with Christie when he discusses the problem with trying to clarify every law in specific...
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