Case Outline
Intentional Torts
- Torts to Person
o Battery
 Vosberg v. Putney (Defendant kicked plaintiff’s knee and plaintiff had to have
leg amputated because there was a previous condition that was worsened by the
kick)
o Putney was liable for harms, despite the resulting harms being
much greater than the harms he intended.)
 Offensive Battery:
 Alcorn v. Mitchell- There was a trial involving the two parties. After
trial commenced, Mitchell deliberately spit in Alcorn’s face. Alcorn
sued him for offensive battery.
 Alcorn was able to sue for punitive damages because that
act was outrageous and obviously done to humiliate him.
o Contact can include to items “so closely attached”
 Respublica v. De Longchamps- Defendant intentionally
struck the cane of the French ambassador and he was
prosecuted under the law of nations.
 The insult was greater than the harm itself and this
was seen as an offensive battery
 Attachment to a person must be reasonable
o Assault
 I. de S. and Wife v. W. de S. (Woman owned tavern and man struck the
building with a hatchet. He did not hit her but there was harm and a trespass
against the woman.)
 No need for physical harm to be assault
 Tuberville v. Savage (Plaintiff put his hand on his sword and stated that if the
judge were not in town, he would kill him.)
 This is not an assault because there must be apprehension of imminent
danger. This is not imminent because judge is in town.
 This is a conditional threat- not imminent.
o False Imprisonment
 Area of confinement can be somewhat large
 Ex: Whitaker- Confined woman on his yacht.
 Coblyn v. Kennedy’s Inc. – 70-year-old man was wrongfully accused of
shoplifting in a department store. An employee of the department store grabbed
the man by the arm and brought him upstairs. Coblyn was so upset by the
incident that he had to be later hospitalized. Plaintiff was allowed to recover.
 There must be “reasonableness” to confine someone
o Intentional Infliction of Emotional Distress (IIED)
 Wilkinson (Boss told her that her husband was dead as a “joke” and as a result,
she had a nervous breakdown)
 The joke was much more than a practical joke. It was outrageous
conduct.
 Bystander Liability
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 Defendant knows plaintiff is present
 IIED of 3rd Parties
 A 3rd party must be physically present at the time of the incident
o Family member that witnesses does not have to show harm
o Non-family member does have to show physical harm, due to the
high potential for fraud.
Torts to Property
o Trespass to Land
 Mistake of fact and mistake of law are not defenses
 Dougherty v. Stepp (P owned undisclosed area of land and claimed that
D was trespassing because he and surveyors went onto property and
looked around. D thought this was his property, but they did not mark or
harm any trees.)
o Mistake of fact is not a defense, therefore it does not matter
 Do NOT need to show harm
 Unless it is an intangible invasion
o Public Service Co. of Colorado v. Van Wyk (Electromagnetic
waves onto property)
 Must show intent to invade and actual harm.
o Trespass to Chattel
 Need to show injury
 Intel Corp v. Hamidi- Intel Corp has a communication system for
employees that allows employees to talk to each other. Hamidi had been
emailing all of intel’s employees disparaging things about the company.
Employees were allowed to opt out of his emails if they wanted to.
o There was no actual injury to intel’s computers or email system.
Unwanted email interaction can constitute a trespass if the volume
and frequency is sufficient to overly burden a recipient’s email.
However, this was not the case in this example.
o Conversion
 Poggi v. Scott- Poggi owned and stored barrels of wine in Judge Mouser’s
cellar. Mouser sold the cellar to Scott and told Scott about his arrangement with
Poggi. Two men wanted to buy empty barrel and Scott sold them full barrels.
The men knew they were full and sold the wine.
 Scott sold the wine that belonged to Poggi
o Even if he acted without bad faith, he is still liable for the
conversion of the wine.
 Mistake of fact is not a defense
 Moore v. Regents of the University of California- Doctor at the University
performed surgery on Moore and used his spleen cells to develop a cell line. He
made Moore come in for subsequent appointments and do more tests because of
his development.
 Doctors must disclose personal interests to their patients. There was no
conversion because Moore’s cells were no longer his property once they
left his body.
o Nonfeasance
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Ex: Montgomery v. National Convoy & Trucking Co.- Defendant's trucks were
stalled on a highway and were blocking the street, but oncoming traffic could
not see them until they were already down the hill. plaintiff could not see trucks
obstructing view and was already past the hill and could not stop by the time he
saw the trucks.
 Defendant’s failure to put warning signs at the top of the hill was
negligence
o It was a legal duty to warn
Defenses
o Consent
 Expressed Consent
 If consent for something is outwardly said (for example, a signed
consent form)
o Ex: Hoofnel v. Segal (women wanted lesion on colon removed
and previously stated she didn’t want lady parts removed.
However, she signed a consent form stating that she consented if
removal was necessary)
 If the patient signs a consent form for a procedure to
happen “if necessary,” the consent form supersedes prior
statements
 Implied
o Ex: O’Brien v. Cunard steamship Co.
 Holding out arm when prompted is implied consent to
be vaccinated
 Not valid if induced by fraud
 Consent is not valid if it is achieved through misrepresentation
o Hudson v. Craft- 2 men participated in an illegal boxing match.
Although both boxers consented to the fight, the promotor was
found liable for facilitating the event. He was an aider and abettor.
 Public policy favors protecting unsuspecting individuals
(the boxers).
 Capacity Required
 Christiansen v. Royal School District- 13-year-old sues teacher and
school district after having sexual relations with him
o Court rules that child was not mature enough to have consented.
The teacher was held to higher standard because a higher
responsibility for someone increases expectation of care.
 Emergency where consent would be presumed
 Kennedy v. Parrot (appendectomy where Doctor punctured ovarian cysts
on purpose for patient’s health and one punctured a blood vessel)
o If relative unavailable, doctor can perform more extensive surgery
if it is necessary to well-being of patient and without their explicit
consent if they are anesthetized and there is no one present to
consent for them.
 Mohr v. Williams (Women came into doctor about right ear, he
examined both ears and couldn’t make judgement about left. When she
was unconscious, he ended up operating on left ear because it was much
worse at time of surgery.)
o Mohr claimed she did not consent to surgery on left ear and that
this was assault and battery.
o Although the doctor did not have an evil intent and there was no
negligence, the doctor is still liable for assault and battery.
o Self-Defense
 Defending self when reasonably thought to be in danger
 Necessity
o Ex: Kirby v. Foster (dock worker thought his pay was less than he
was entitled to and kept the money he believed he was entitled
to.)
 Court decided it was not allowed to take matters into his
own hands and taking money was not justified.
o Courvoisier v. Raymond- Jewelry store owner accidentally
injured cop, thinking he was a robber. Owner was not found liable
because he had reason to believe he was in danger due to the cop
having a gun and walking towards him.
 If it is a reasonable mistake (threat of harm is valid), you
are not liable
o Defense of Property
 The use of deadly mechanical devices is not allowed
 Ex: Bird v. Holbrook (Defendant placed a spring gun in his garden
without a notice. Spring gun went off and injured plaintiff.)
o By failing to put up signs, Holbrook was intentionally hiding the
spring gun from intruders. Court decides it was his intention to
harm intruders and that this force was not appropriate for
defending his property. Holbrook liable for battery.
o Private Necessity
 Justified: When there is an attack of nature, a person has the privilege to defend
self and property
 Ex: Ploof v. Putnam (Plaintiff tied his ship to the defendant’s dock
during a large storm. The defendant’s servant unmoored the boat from
the dock, which resulted in it floating away and being destroyed.)
o Because the value of human life is larger than that of the dock,
tying the boat to the dock was considered a necessity.
 Ex: Vincent v. Lake Erie Transportation Company (Violent storm that
kept Trans. Co.’s boat in the harbor. They tied their boat to Vincent’s
dock to prevent it from being destroyed)
o D was justified in mooring to dock during a storm out of private
necessity but had to compensate for damages to dock
Negligence
- Duty
o Ex: Brown v. Kendall- The parties’ dogs were fighting and to separate them, Kendall
grabbed a stick. When Kendall raised the stick above his head, he hit Brown, injuring
him.
 Brown was not able to recover because Kendall was acting reasonably to keep
the dogs away from each other.
o If the actor is physically disabled, he has the same duty as the “reasonable” person
with the same disability.
 Ex: Fletcher v. City of Aberdeen- City was constructing underground
network of wires and dug hole. The hole had barriers around it, but one
worker removed the barriers and did not replace them. Plaintiff was
blind and fell into the ditch and was injured. Plaintiff was using a cane
and would not have fallen into the ditch if the barrier was still there.
o The city has a duty to protect all passersby regardless of their
disability or lack thereof
o No comparative negligence because Fletcher exercised the same
level of care that a reasonable person with the same disability
would have.
o Insanity
 Ex: Breunig v. American Family Insurance Co.- Erma Veith, insured of the
defendant, was driving when she had sudden hallucination that she was batman.
She veered into oncoming traffic and hit plaintiff.
 She history of hallucinations. Negligent because she knew it was
possible to have a hallucination while driving but decided to drive
anyway.
o Mentally Disabled
 Ex: McGuire v. Almy - Almy was mentally insane person and McGuire was her
nurse. Usually, defendant was locked in her room, and she had a history of
violence. On one occasion, defendant was tearing apart furniture and while
trying to calm her down, Almy hit McGuire in the head.
 Although Almy was mentally insane, she
could act with intent and thus, is still liable
for assault and battery.
o A higher level of wealth does not raise the standard of care that is owed by the actor.
 Ex: Denver & Rio Grande R.R. v. Peterson- Plaintiff suffered damaged by a
wealthy warehouseman
 The damages by a defendant are constant regardless of wealth
 Professionals
 Medical Malpractice
o Informed Consent
 Ex: Canterbury v. Spence- Canterbury came to Spence for
back pain, who recommended surgery. Spence told
Canterbury’s mother that the risk was no more than any
other surgery. Canterbury fell out of hospital bed and
became paralyzed.
 A doctor has a duty to disclose all risks that
a reasonable person would find significant
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Patient must have right to choose (only
capable of this when aware of all the
reasonable risks)
 Doctor does not need to disclose when disclosure would
only result in mental/emotional harm to the plaintiff
o Emergency
 Schloendorff v. Society of New York Hospital If it is an emergency, a doctor can go ahead
even without the consent of the patient
 Ex: Hurley v. Eddingfield- physician was sick and called upon defendant
who was his family physician to care for him. no other physician could
be procured. defendant refused to come to plaintiff’s aid having no
apparent reason and plaintiff died.
o A physician does not have an obligation to tend to everyone that
asks for medical care
o The only obligation is one of a moral one
Children
 The standard of care for a child is that of a child of the same age,
intelligence, education, and experience/maturity
o Ex: Roberts v. Ring- Ring was a 70-year-old man who was
hearing and sight impaired and was driving a car. While driving,
the plaintiff’s minor son ran out from behind a truck, and he hit
him. Ring saw him but failed to stop (even though he had ample
time to stop).
 Comparative negligence cannot be used as a defense if the
actions of the child were reasonable for someone his age. A
typical child of that age cannot be expected to fully
appreciate the dangers of running across the street. Ring
should have exercised the caution of a reasonable person
and stopped the car when he saw the minor.
 When the child is engaged in an adult activity, they are held to the
standard of a reasonable adult
o Daniels v. Evans- 19-year-old Daniels was killed while riding a
motorcycle and collided with Evan’s automobile.
 When a minor is engaged in a particularly dangerous
activity that is reserved for adults, they are expected to act
with the same caution as a reasonable adult.
Common Carriers
 Andrews v. United Airlines- a passenger on a United Airlines flight and
a briefcase from an overhead bin fell on him and injured him. Two
expert witnesses stated that American Airlines could have taken further
precautions to prevent the foreseeable risk.
o Other airlines had already retrofitted some cabins to prevent
falling items and there was no reason why United could not do
that.

The costs to take further precautions would not have been
extensive.
o Owners and Occupiers of Land
 Owners and occupiers have a duty to take precautions regarding unreasonably
dangerous conditions
 Ex: Rowland v. Christian- Rowland was a social guest of Christian Anne
was at her house when he went to go use the bathroom. While washing
his hands he sliced his hand open on the bathroom sink. Christian was
Privy to the crack in the fixture 2 weeks earlier and had asked the
landlord to fix it.
o Christian could reasonably expect that Rowland would use the
bathroom and failed to warn him. She was aware of the dangerous
situation, but it was not obvious and therefore Rowland could not
have expected it
 Types of entrants
 Trespasser
o Ex: Robert Addie & Sons v. Dumbreck- the four-year-old son of
the plaintiff snuck onto the defendant’s property through an
opening in a hedge and was playing near a wheel the wheel began
to spin and the plaintiff's son died.
 The plaintiff’s son was a trespasser, and the defendant had
no legal obligation to warn him of the dangerous
machinery.
o Other sources of duty
 Statutory standard: Negligence per se
 Ex: Osborne v. McMasters- Drug store owner (D) sold a bottle of poison
that was not labeled. Intestate of Osborne (P) drank the poison and died.
There is a statute that requires warning labels on all poisonous
substances.
o If a statute prescribes a right, there is an action for the failure to
abide by the statute.Negligent because he failed to act in
accordance with that the statute said.
 Ex: Martin v. Herzog- Car accident between the two parties and the
plaintiff did not have lights on, as was required by a statute.
o The plaintiff acted with negligence per se because he drove his
car without lights when there was a statute that said lights are
required
o Plaintiff cannot recover because of negligence per se by violating
the headlight statute (contributory negligence)
 2 elements must be satisfied to recover with negligence per se
o Ex: Gorris- statute was there that required pens for sheep to
prevent disease. The sheep did not contract disease, they jumped
off the ship and drowned because no pens.
o Affirmative Duty to Act
 Gratuitous Undertaking
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Ex: Coggs v. Bernard- the defendant promised the plaintiff that he
would move several barrels of his Brandy. this was a gratuitous promise
because there was no consideration exchanged. defendant caused many
of the barrels to spill open and lost Brandy
 There is a level of trust that was established between the promisor and
the promisee. Failure to deliver the barrels in good condition was a
breach of that trust. An agreement of this nature implies a duty to
exercise size reasonable care
Voluntary Security Measures
 Ex: Erie Railroad v. Stewart- Erie typically employed a watchman to
alert passersby of trains crossing. Plaintiff was crossing the area while
the watchman was off his post and was struck by an oncoming train.
o Because it was their ordinary practice and was well known to the
public, it was negligence that their watchman was off duty
without warning oncoming traffic.
o If a company previously volunteered to perform a service, even
though it was not required to, it is now expected to perform that
service
Breach
o Res Ipsa: Because the incident occurred, there is negligence (fact finder assumes
negligence)
 Ex: Byrne v. Boadle- Plaintiff was passing along on a highway under the
defendant’s shop when a barrel of flour fell on him.
 Res Ipsa Loquitur can be used when the incident is not traceable to any one
defendant
 Ex: Ybarra v. Spangard- Ybarra had an appendectomy performed by
Spangard and various nurses and an anesthesiologist. When Ybarra
woke up from surgery, he had intense pain in shoulders and neck and
was later paralyzed.
o All the people that had control over his body while unconscious
may be held liable using res ipsa.
o This type of injury could not have occurred but for negligent
conduct
o Defenses to Breach
 Contributory Negligence
 Ex: Butterfield v. Forrester- Defendant placed a pole across the road
while repairing his house, but left part of the road unobstructed.
Butterfield was riding his horse very fast and ran into the pole. To the
person riding with reasonable care, the pole was seen 100 feet away.
o If Butterfield had not been riding so hard and exercised
reasonable care, he would have seen the pole in the road.
Butterfield was unable to recover due to his failure to act with
ordinary care
 Last Clear Chance (Defense only to contributory negligence)
o Ex: Fuller v. Illinois Central R.R.- Plaintiff was crossing the train
tracks in a carriage. Conductor of defendant railroad was driving a
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train across the tracks. Defendant saw the plaintiff on the tracks
but did not stop (even though he could have) and the only warning
he gave was a whistle sound, 20 seconds before crashing into
plaintiff.
 The plaintiff was negligent because they did not look out
for the train, but it does not matter because the defendant
had the last clear chance, making them solely liable.
 Dangerous Activity
o Ex: Beems v. Chicago, Rock Island & Peoria R.R.- Plaintiff was
employed by defendant company and was on top of two railroad
box cars trying to uncouple them. This as an abnormally
dangerous activity. When the box cars were going dangerously
fast, plaintiff signaled to slow down. Driver ignored him signal
and the plaintiff ended up dying.
 Even though the plaintiff was engaged in a dangerous
activity, a reasonable person would expect that the driver
would listen to their signal to slow down. The plaintiff
acted to reduce the risk of the activity but was ignored and
ultimately suffered because of the defendant’s negligence.
 Another’s Wrongdoing
o Ex: Leroy Fibre Co v. Chicago, Milwaukee & St. Paul Ry.Plaintiff stacked flax on his property about 75 feet away from the
railroad tracks. The defendant’s train drove by, and the spark
caused the flax to catch on fire.
 A property owner has a duty to not cause harm to others,
but they are not obligated to protect against harms that
others cause (he is allowed to assume that others will act
lawfully).
 Plaintiff cannot be held contributorily negligent for
another’s wrongdoing
 Contributory Negligence Did Not Cause the Harm in Question
o Even if a plaintiff was negligent, if the negligence is not a
proximate cause of their harm, then they can still recover
 Ex: Berry v. Sugar Notch- Berry was driving in an excess
of 8 mph (which was the speed limit) and a tree fell on him
while he was driving under it
 Although Berry was speeding, his speeding
was not the reason the tree fell on him.
Comparative Negligence
 Ex: Li v. Yellow Cab Co- Li was driving and attempted to cross three
lanes of traffic. At the same time, a cab of the defendant company was
driving at excessive speed and ran a yellow light. The two cars collided.
o Both parties acted negligently but the liability was assessed to be
proportionate to the fault.
Assumption of Risk
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Ex: Lamson v. American Axe- Plaintiff was employed to paint hatches
for the defendant. He warned the defendant that the hatchets were going
to fall because the shelf was dangerous. Defendant told him he could
either continue using the shelf or leave. Plaintiff kept working and was
injured by the shelf
 Because plaintiff knew it was dangerous, alerted his
employer, and continued to work there, he was not able to
recover: he assumed the risk.
 Ex: Murphy v. Steeplechase Amusement Co. (Flopper Case)Amusement part had a ride called the flopper that would fling you
around. The belt caused a sudden jerking motion and the plaintiff fell,
fracturing his kneecap.
 Murphy voluntarily participated in the park ride and he
knew the risk
 This would not be the case if there were unobservable
dangers
Rescue Doctrine
 Ex: Wagner v. International Ry.- Plaintiff and cousin were on a train and
the defendant’s conductor failed to close the doors of the train. Decedent
was thrown out of the train. Wagner went looking for his cousin and fell
off the bridge
o It was foreseeable that Plaintiff would go to his cousin’s rescue
o Where the rescue actions reasonable given the conditions?
 If they were reasonable, then the RR might be liable
 If the rescuer acted dangerously, negligently, or recklessly,
then the RR is not liable for recovery.
Causation
o Cause in fact/ “But for” Causation
 Ex: New York Central R.R. v. Grimstad- Grimstad fell overboard the barge,
owned by the defendant, when another barge bumped into it. His wife ran to get
a rope, but he drowned. Grimstad’s wife sued for defendant negligently not
equipping the barge with life preservers.
 The cause of the drowning was Grimstad falling into the water, not the
lack of life preservers on the boat.
o No telling if the life preserver would have been thrown to
Grimstad in time and he could still have died
o Proximate cause
 Foreseeable Plaintiff
 There is generally no duty by the defendant to someone who is outside
the range of reasonably foreseeable harm
o Palsgraf v. Long Island R.R.- Palsgraf standing on a platform
owned by defendant while she was waiting to catch a train.
Another train pulled up and two men ran to catch it. the second
man was having trouble and two train employees helped him get
onto the train, but he dropped his package. the package contained
fireworks and exploded, injuring Palsgraf.
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Zone of danger- There is a certain area that there is
reasonably foreseeable harm.
Occasionally, D can still be liable, even if the harm was not foreseeable.
 Ex: In re Polemis & Furness, Withy & Co.- Plaintiff rented his ship to
defendant, who used it to transport gasoline. Defendant’s servants were
unloading planks of wood and one fell and sparked, causing the gasoline
to light on fire. The ship was destroyed from the fire.
o Even though a fire is not reasonably foreseeable from dropping a
plank of wood, it was still directly caused by negligence.
Intervening Act/Superseding Cause
 Ex: Brauer v. New York Central & H.R.R- the defendants RR hit the
plaintiff and caused his car and goods to scatter. The two detectives on
the railroad that were there to prevent theft did nothing. Passersby stole
the plaintiff's cargo.
o It was foreseeable that the plaintiff’s goods would be stolen
because the crash happened in a dangerous area and the railroad
had employed detectives to prevent theft
 The railroad was therefore liable for the value of the stolen
property.
 Ex: Scott v. Shepard- Shepard threw a lighted squib into a marketplace.
It landed near a vendor who then threw it further and this happened a
few more times. The squib exploded near Scott’s face, putting out one of
his eyes.
o The injury was technically caused by the intervention of a third
party, but it was a direct result of the original action of Shepard
throwing the squib.
 Superseding Cause
o Ex: Marshall v. Nugent- Plaintiff was in car accident with a truck
company. Plaintiff went onto the highway to warn oncoming
traffic. Defendant was driving towards the plaintiff and swerved
to avoid the truck blocking the path and hit the plaintiff.
 Even though the negligent conduct itself was the car
accident between the plaintiff and the truck company, the
truck company is still liable for the defendant hitting the
plaintiff because their accident was not too far removed
from the original accident
Damages
o Economic Losses
 Ex: O’Shea v. Riverway Towing Co.- plaintiff was a cook on a tugboat
and she was injured by defendant company Anne not able to work for
the rest of her life.
o When calculating the plaintiffs award for damages the court
considered projected inflation and discounted to present value
S/L
o Domesticated Animals

Ex: Gehrts v. Batteen- St Bernard dog bit plaintiff, after she had asked to
pet it and tried to.
 There were no known dangerous propensities of the dog and even the
dog breed was docile.
o As a result, defendant would be considered negligent if she did
not reduce the risk of foreseeable harm. In this case, defendant did
try to reduce risk.
o Escaping Impoundments
 Ex: Fletcher v. Rylands- Defendant had built a reservoir on his property for the
purpose of supplying water to his mill. The reservoir broke and flooded the
plaintiff’s coal mines and caused harm to his land. Plaintiff sued for recovery of
damages.
 Rylands lawfully brought water onto his property, and he was
responsible for making sure it did not damage his neighbors
 Water is uncontrollable when it escapes and person who is responsible
for the escape is strictly liable.
o Rylands was liable for damages
o Ultrahazardous and abnormally dangerous activities
 Ex: Spano v. Perini Corp.- defendant was employed by city of New York to
construct an underground tunnel. Defendants set off dynamite deconstruct
tunnel and plaintiffs’ garage was damaged during the blast.
 Setting off dynamite was in ultrahazardous and abnormally dangerous
activity
 Everyone has a right to conduct business how they please they are not
allowed to conduct their business in a way that harms others
o Setting off the dynamite infringed upon plaintiffs’ ability to enjoy
his land.
 A property owner’s rights trumped those of a business
owner.
 Ex: Indiana Harbor Belt R.R. v. American Cyanamid Co.- define at least a valid
card to ship poisonous chemical and it's spilled on the Indiana harbor belt
railroad’s property. The Illinois Department of Environmental Protection orders
the cleanup for $1,000,000.
 The inherent dangerousness of the poison does not mean shipping it is
abnormally dangerous. The leak was caused by a corroded tank valve
and negligent maintenance of the car. The poison does not corrode tank
valves and can be transmitted without harm.
Nuisance
- Private Nuisance
o Ex: Vogel v. Grant-Lafayette Electric Cooperative- Plaintiffs were dairy farmers who
complained that the defendant's electric company emitted stray voltage, and this was
harming their cows. The plaintiff sued the defendants for negligence and nuisance
due to the “annoyance and inconvenience” caused by stray voltage.
 The stray voltage was found to interfere with the interest in the private use and
enjoyment of his land
 As a result, this was a private nuisance
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o A property owner may only be prevented from causing injury to a neighbor's rights to
that property that are protected by law
 Ex: Fontainebleau Hotel Corp v. Fort-Five Twenty-Five Inc.- defendant and
plaintiff were neighboring hotels. defendant wanted to build an extension on
their hotel, and this would block valuable sunlight during the day for it the
neighboring hotel’s pool deck.
 There is a duty for a property owner not to infringe upon the rights of
neighbors or their property, but this doesn't mean that it is never
allowed.
o There is no right to sunlight or flow of air
o Nuisance is defined as what is annoying to the average, ordinary person.
 Ex: Rogers v. Elliot- defendant was ringing a church bell that injured plaintiff.
he was injured because he was already having seizures and was ill.
 The defendant was not obligated to stop ringing the bell because it did
not harm the average person.
Public Nuisance
o Ex: Anonymous- Plaintiff sued the defendant for blocking a portion of the Kings
highway so he could not get by to his nearby field. the highway was closed to
everyone.
 Everyone in the area experienced the same hardship and the plaintiff’s harm
was not unique.
 Ex: Burgess v. M/V Tamano- Defendant spilled oil into a bay. Plaintiff was one
of the fishermen that used the Bay for his livelihood.
 The harm to the fishermen was different and distinct than the harm to
others in the area because it affected their livelihood directly: fishing
was their job.
Remedies
o Equity: Injunctive Relief
 Ex: Boomer v. Atlantic Cement Co.- plaintiff was part of a class action suit
people that lived near the defendant cement plant. The plaintiffs claimed that
the byproduct of the cement operation was a nuisance and caused damage to
the plaintiffs’ properties.
 The harm that the plaintiffs were enduring was significantly less than the
benefit that the cement plant was receiving. Additionally, the burden of
shutting down the plant (reducing jobs in the area, reducing production,
etc.) is much larger than the harms of the plaintiff.
o An injunction was ordered until permanent damages were paid.
o Abatement
 Ex: Michaelson v. Nutting- defendant had a tree on his property in the roots
grew into his neighbor’s property and cause significant damage to his plumbing.
 Although defendant was allowed to plant a tree on his property, plaintiff
was allowed to take measures to reduce the impact of the trees and was
allowed to cut off offending branches and roots without penalty.
 Reasonable costs are recoverable.
Defenses
o Coming to the Nuisance

Ensign v. Walls- defendant have been raising Saint Bernard dogs for
over 20 years. neighbor had moved in and sued defendant claiming that
their business was a nuisance because it was smelly, and the dogs
frequently escaped.
o Just because the defendant had been operating business for years
does not escape liability for the nuisance
o the business became a nuisance and infringed upon the neighbors
use and enjoyment of their property
Defamation
- Ex: Mims v. Metropolitan Life Insurance Co- Employee was discharged from his employer,
after 32 years, and believed it was because of distaste for a political candidate. He asked his
friend, Senator Taft, to inquire about the reason for his discharge. The defendant's president
sent a letter back, stating that he was fired because of dissatisfaction with his work
performance. This letter was dictated to the president's stenographer, who wrote it,
o The stenographer and the president count as the same entity because they were
writing on behalf of the company.
o The senator does not count because the plaintiff induced the action himself and the
letter would not have been sent to the Senator if the plaintiff hadn't requested it.
Invasion of Privacy
- Basis for Liability
o Misappropriation
 Ex: NCAA Student Athlete Name and Likeness- EA games tried to use the
name and likeness of a college football player.
 It was found that they were allowed to use the name and likeness of the
athlete if there was a substantial transformation beyond just the name
and likeness
o Action does not survive death
 Factors Etc., inc v. Pro Arts, Inc.- Defendant try to use Elvis Presley's picture
when he died to sell posters. the plaintiff had already purchased the rights to
everything Elvis Presley related while he was still alive.
 the court ruled that the right of publicity extended beyond death
Misrepresentation
- Intentional
o Prima Facie Case
 Deliberate misrepresentation
 Ex: Pasley v. Freeman- Pasley wanted to sell credit to fault and asked
freeman about Falch’s credit history. Freeman gave Pasley a favorable
view of Falch and possibly preceded with selling goods on credit.
o Freemans knowing false statement about Falch’s creditworthiness
cause damage to Pasley.
 A plaintiff must prove that the defendant's false statement was the proximate or
direct cause of his injury
 Ex: Laborers Local 17 Health and benefits fund v. Philip Morris Inc.- the
plaintiff was an insurance company that was claiming that the defendant's
misrepresentations about cigarettes caused the union members to have increased
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health care needs. they claimed that cigarettes were not fast for them, so more
union workers smoked them and eventually needed more medical care.
 The court ruled that the harm caused by the defendant's
misrepresentation was not a proximate or direct cause of their injury
because the direct harm was to the union workers
 Plaintiff’s justifiable reliance
 Ex: Edgington v. Fitzmaurice- Defendant tried to obtain a loan and
called the plaintiff that the company was doing much better than it was
and that he was using the loan to pay off pressing liabilities of the
company and not to improve the building like he said.
o Plaintiff was induced to act based on what defendant had told him
and would not have given him the loan if he had known the truth
o Plaintiff must prove that teacher sentence false statement was the
sole cause of plaintiff’s act.
 If the knowledge about extrinsic information is equally accessible to
both parties, the knowing party does not have a duty to disclose, just a
duty not to mislead
o Ex: Laidlaw v. Organ- plaintiff was negotiating to buy tobacco
from defendant and asked him if he had any reason to know if the
market price of tobacco would suddenly change. defendant knew
that tobacco prices were going to go up, but he told plaintiff that
he did not know.
 Defendants’ misrepresentation caused economic hardship
to plaintiff
 A jury must decide whether defendant misled the plaintiff
by not disclosing information he knew.
Negligent misrepresentation
o Ex: Ultramares Corp v. Touche- Defendant was hired buy a company to produce their
financial audit and used false information provided to him by the heads of the
company that stated the company was in better condition than it was. The plaintiff
was using the audits to make some financial judgments.
 The audit company was only in a contract with Fred stern and Co who hired
them to produce their audit. The plaintiff was not in a contract with the
defendant and therefore the defendant had no duty to him
o Hypo: what if an account it performs in audit with false information, but it is so
obviously fault that no reasonable accountant would believe it and publish the audit?
This level of negligent misrepresentation amounts to fraud.
Vicarious Liability
o General rule
 Ex: Ira S. Bushey v. United States- The US government had a contract with the
dry dock owner which allowed Coast Guard personnel to have access to the
ship. One night a drunken sailor tried to come aboard this ship and caused the
intake valves to open. the ships fell against the dry dock wall and caused severe
damage.
 Liability attaches to an employer even if the active issue was not done in
service to the employer if the act was reasonably foreseeable.
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o It was reasonably foreseeable that a drunken sailor would try to
get access to the dock
o Worker’s Compensation
 Scope of Coverage
 Ex: Clodgo v. Rentavision, inc.- Plenty was injured when defendant was
firing staples with a staple gun at him.
o Plaintiff was injured due to his own horseplay, and nothing
related to the conditions and obligations of his employment.
 Exclusive Remedy
 Ex: Rainer v. Union Carbide Corp- Plaintiff was part of a class action
suit against defendant who was a uranium processing plant. the harms
they were claiming was an increased risk of cancer due to the dangerous
uranium byproducts. defined that knew about these dangerous
byproducts and failed to warn their employees
o The plaintiffs were unable to show that the defendant
intentionally and deliberately tried to cause them injury
Multiple Defendants
o Alternative Liability
 Ex: Summers v. Tice- Tice and Simonson went quail hunting with Summers and
one of the two accidentally shot him in the eye. It was impossible to determine
who was the one that hit him.
 Summers was able to recover from both defendants
o It is up to defendants to apportion the damages and decide who
will pay what.
o Release of Liability
 Ex: Union Stock Yards Co of Omaha v. Chicago, Burlington, and Quincy R.R.There was a defective nut on a railroad car that went unnoticed. Both the Union
and the railroad would have noticed it if there was an inspection. An employee
was injured by the car with the defective nut and sued Union Stock Yards.
 When multiple parties engage in negligent conduct together, but only
one is found liable, the one found liable is not able to seek recovery from
the other parties.
o Exception exists if the one found liable is not the principal
reason/cause for the injury.
 Ex: A victim is injured while lawfully traveling on a
defective public street or sidewalk. They are allowed to sue
the municipality. Although the municipality is legally liable
to the victim, they can seek damages from the property
owner who caused the defect in the sidewalk.
o Collateral Benefits
 Ex: Harding v. Town of Townshend- Plaintiff had purchased an insurance
policy. plaintiff was injured in an accident with an automobile owned by the
defendant. plaintiff received $130 from insurance company (net profit was
$123).
 Just because the plaintiff received money from his insurance company
did not mean that the defendant did not have to pay that amount
o Equitable Indemnity
 Ex: American Motorcycle Association v. Superior Court- Motorcycle
race was organized by AMA, where a minor was injured. AMA filed a
cross complaint against the minor’s parents, claiming that they were
negligent because of their failure to supervise their son.
o Comparative fault basis for equitable indemnity allows tortfeasors
to recover from other tortfeasors that are partially liable.
o Multiple Sufficient Causes
 Ex: Kingston v. Chicago & N.W. Ry.- A fire was started on the plaintiff’s
property by sparks from the railroad. At the same time, there was another fire
started in the northwest. The fires both merged and formed one large fire, which
eventually destroyed the property.
 Only one cause of the fire was identified (the origin of the NW Fire
could not be identified)
o Plaintiff can recover the whole number of damages from the
identifiable plaintiff because both fires were manmade
 If one of the fires was due to an act of God, plaintiff could
only recover part of the damages
Tort Reform
- Landlord Duty
o Ex: Kline v. 1500 Massachusetts Avenue Apartment Co.- Plaintiff was living in an
apartment building owned by defendant. When plaintiff moved in, there was a
security guard stationed at three of the entrances but at this point, there were no
security guards. There was a history of robberies in the building and the defendants
continued not to have security guards. Plaintiff was assaulted and robbed in the
hallway of her building.
 The landlord has a duty to reduce foreseeable harm to its tenants, especially in
common areas.
 The defendant had exclusive control over the common areas of the
building (the hallways).
- Duty on Therapist
 Tarasoff v. Regents of University of California- Plaintiff was killed by a fellow
student. The student had been seeing a therapist that worked at the University
and told her of his desire to kill Tarasoff. The student was in a mental hospital
for some time but was allowed to leave. Therapist made no effort to warn
Tarasoff of the potential dangers.
 Failure to warn constitutes actionable negligence
o A therapist does not have to warn against all threats of violence
displayed by the patient, but they have a duty to use their
professional discretion and act ho a reasonable therapist would act
o NIED
 Ex: Dillon v. Legg- Defendant struck and killed child of plaintiff as she was
crossing a public street. Plaintiff witnessed the death of her child and was
located near the scene of the accident.
 emotional distress she endured was due to witnessing her child's death
o It was reasonably foreseeable that a mother would have emotional
distress after watching their child die
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Products Liability
o Compensable Harm
 Compensable harm does not extend to mere economic loss
 Economic losses can be lost profits, lost business, and damages arising
primarily from the one party not getting the bargain
 Property damage can be recovered if it is damage to property other than the
defective item
 Ex: The consumer can recover if a blender explodes and causes damage
to their kitchen. They can recover the price of the kitchen damages but
not the blender damages
o Product Defect
 The defect of the product must be the proximate and actual cause of the injury
 Ex: There is a statute stating chainsaws must have 15 or 20 ft power
cables. The man loses control of the chainsaw when he uses it because
he is unprepared for the kickback. He also discovers that the chainsaw
has a 9ft power cord. He is not able to recover because the power cord
length did not cause his injury.
 Initial manufacture
 Ex: Escola v. Coca Cola Bottling Co. of Fresno- plaintiff was unloading
Coca Cola bottles from the refrigerator and one exploded due to
excessive pressure and sliced her hand open.
o The court relied on Res Ipsa, stating that excessive pressure
would not have occurred without negligence
o For the doctrine to apply, the defendant must be in exclusive
control of the item that caused the injury or have had control and
the item had not been changed.
 Privity creates duty
 Ex: Winterbottom v. Wright- the defendant owned a coach business and
contacted with postmaster general to supply coaches. another company
supplied postmaster with the horses and drivers. the plaintiff was a
driver of the coach and was thrown off the coach due to a defect.
o There was no privity between the defendant and the driver
(plaintiff) and therefore there is no duty of care to the plaintiff
 There is only liability if the defendant contracted to perform a public
service or to prevent public nuisance
 MacPherson v. Buick- Buick sold a car to a retailer, who then sold it to the
plaintiff. one of the wheels was defective and caused the automobile to collapse
and the plaintiff was injured.
 It was foreseeable that want the automobile was sold to the retailer, it
would be sold to someone else.
 Actual owes a duty of care when it produces something that can become
inherently dangerous
 There was a duty by Buick to inspect the car
Economic Torts
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Intentional Interference with Prospective Advantage
o Tarleton v. M’Gawley- plaintiff was trying to conduct business with Africans when
the defendant shot a cannonball into the Africans canoe and made them not want to
engage in trade with the plaintiff.
 defendant unlawfully interfered with prospective trading relationship by
illegally shooting a cannonball
 Plaintiff has an action for interference against an individual who uses unlawful
means
o Inducement of Breach of Contract
 Ex: Lumley v. Gye- Gye tried to persuade one of the plaintiffs employees to
break her employment contract. The employee broke her employment contract
and discontinued her performance at the Opera House owned by the plaintiff.
 Guy was held liable for damages that breaking the
o Unfair Competition
 Ex: Mogul Steamship v. McGregor, Gow & Co.- defendant where part of this
same tea trade industry and the defendant price its product so low as to drive out
the plaintiff’s and other competitors.
 Defendant acted in a lawful manner because they were able to act for
commercial gain and had no desire to bring a detriment to the plaintiff.
 If this was predatory pricing, the defendant would be liable.
 Property rights
 Ex: International News Service v. Associated Press- the defendant was
unlawfully gathering news from the plaintiff by bribing their employees
and taking news from their bulletins and passing it off as their own.
o There is a quasi-property right that exists in published news
Negligent Interference with Prospective Advantage
o Ex: People Express Airlines v. Consolidated Rail Corp- plaintiff is a commercial
airline that conducted business next to a railroad. A hazardous chemical leaked out of
one of the train cars of the defendant. plaintiff had to evacuate the area for 12 hours.
 Plaintiff was part of a foreseeable class of plaintiffs because they were next
door to the train station
 Plaintiff suffered economic loss because they had to cancel their flights and
were not able to book flights for the 12 hours that they had to be evacuated