Mulloy v Hop Sang (Supreme Court of Alberta, Appellate) 1935
Facts: Plaintiff claimed for professional fees for an operation involving amputation of defendants hand
that was injured in motor-car accident
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Plaintiff called into hospital was asked by defendant to fix his hand but not cut it off because he
wanted it looked at in his home city; plaintiff said the decision would be governed by the
anaesthetic (decided operation was necessary bc delay would mean blood poisoning) and was
supported by two other physicians; defendant probably didn’t understand what the doctor
meant
Plaintiff should have gotten full consent if necessary
Defendant counterclaimed for damages (artificial hand and balance of loss of wages)
Issue: Should the plaintiff have made full explanation and endeavored to get the defendant to consent
to an operation?
Conclusion: D is entitled to damages because of trespass to the person (damages should be substantial
but only sufficient to make them substantial rather than nominal); action is dismissed with costs and D is
entitled to his costs of the counterclaim
Notes: A surgery with general anesthesia requires to be treated immediately; surgeons must seek
general consent from patients. Consent forms are ambiguous
Lane V Holloway (Court of Appeal, 1967) Self Defense: Defense of Person
Facts: Lane (plaintiff; retired gardener 64) and Holloway (defendant; café owner 23); people of court
didn’t like sound of juke-box and claimed people would relieve themselves in the courtyard so Holloway
built lavatories); got into altercation..Lane though Holloway was going to strike so Lane threw a punch at
Holloways shoulder and Holloway severely hit Lanes eye
Issue: Was there an assault by Mr Holloway for which damages are recoverable in a civil court? (yes; bc
of a blow out of proportion); Holloway went to far
The amount of damages?
Answer: To a substantial extent the plaintiff brought the injury on himself which will extensively reduce
damages
Conclusion: Judge shouldn’t have reduced damages bc he had cases before him where damages could
have been reduced. Damages should be increased
Rule: provocation could be used to wipe out element of exemplary or aggravated damages but could not
be used to reduce the actual figure of pecuniary compensation. Should Australian court be our guide?
Defendant has done a civil wrong and should pay compensation for physical damage caused
Notes: Provocation is always relevant on the issue of punitive damages; case must be remanded to trial
court for retrieval of entire case or issue of damages; cannot be resolved in the appellate. To avoid
retrial, an appellate may issue conditional judgement remanding the case to trial court for new trial
unless plaintiff agrees to reduction of damages, or unless defendant agrees to increase damages
Silas v Brown (United States District Court, District of South Caroline 1967)
Facts: plaintiff is a resident of Missouri who is a prof basketball player (St. Louis Hawks); engaged in
basic training as member of Missouri National Guard in SC. Defendant is a Columbia, SC resident and
operates a parking lot outside main gate entrance to Fort Jackson. (week before incident) P and another
serviceman brought third-party car to lot of D and engaged a mechanic at the lot (not employed by D) to
make repairs. Following week, returned to get car an pay full repair. Noticed repairs weren’t satisfactory
(had been drinking; claimed to go back to lot at 1 but it was 6). Testimony of P is denied by D, his wife,
and a witness. P got out of car and approached D w/ threats. D got a shotgun; P said he wasn’t afraid
and grabbed D. D fired at the floor and shot him in the foot by accident.
Issue: whose testimony is more credible?
Conclusions of law: (judgement entered for defendant) Commission of assault and battery by D on P is
conceded, and D seeks exoneration on his affirmative plea of self-defense. Plaintiff was a trespasser
though initially perhaps an invite.
Rules: Defendant had right to order plaintiff and companion to depart and use reasonable force when
plaintiff refused to withdraw. Though reasonable forces do not encompass a deadly weapon, it is
authorized by means of self defense where trespasser courages an apprehension of an assault by
trespasser. No disagreement that a property owner may shoot with impunity where the incursion upon
his property is also attended by a threat of personal harm to himself, his family or others he is entitled
to defend.
Other: In order for the defendant to make a plea of self-defense, D must have not been at fault in
provoking difficultly; D acted within legal rights and cannot be regarded in provoking the difficulty of the
case
Notes: it is irrelevant that the plaintiff may not have desired or intended to harm defendant. Self
defense focuses on how the situation would have appeared to a reasonable person. “Castle doctrine”
one need not retreat from his home to the uncertainties of the street.
Brown v Martinez (Supreme Court of NM) 1961
FACTS:
Defendant property owner shot and injured plaintiff when he and several other boys had trespassed
onto the property owner's land to steal watermelons. Defendant testified that he only intended to scare
the boys when he fired the rifle. Plaintiffs filed an action or injuries. The trial court found in favor of the
property owner and held that he acted reasonably and prudently to prevent further trespassing, that he
did not use excessive force, and that he was free from malice or wilful intent to injure the boy. On
appeal, the court reversed. The matter was remanded for the reinstatement of the son's action and the
determination of his damages.
ISSUE:
Can a landowner be held liable for injuries even if he intended to shoot only for the purpose of scaring a
trespasser?
ANSWER:
Yes.
RULE:
If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily
contact or of putting another in apprehension of either a harmful or offensive bodily contact, and such
act causes a bodily contact to the other, the actor is liable to the other for a battery although the act
was not done with the intention of bringing about the resulting bodily harm. If an act is done with the
intention of affecting a third person in the manner but causes a harmful bodily contact to another, the
actor is liable to such other as fully as though he intended so to affect him.
CONCLUSION:
The son's actions were misdemeanor's under N.M. Stat. Ann. § 40-12-10, and therefore, the property
owner was not justified in using a deadly weapon in the defense of his property. The court reasoned
that the applicable case law clearly stated that the use of firearms to prevent unlawful acts that did not
amount to felonies was unreasonable and could not be excused. Further, the fact that the property
owner did not intend to harm the boys did not relieve him of liability for his actions.
Ploof v Putnam (Supreme Court of Vermont) 1908
FACTS:
Defendant was the owner of a dock attached to an island. Plaintiff was sailing in a loaded sloop with his
wife and children. A storm arose and plaintiff moored the sloop to defendant's dock to avoid danger to
their lives and to their property. Defendant's servant unmoored the sloop, and the sloop was driven
upon the shore by the storm and destroyed. Plaintiff sued defendant alleging that defendant by his
servant negligently unmoored the sloop. Defendant demurred to both counts, which the trial court
denied. On appeal, the supreme court affirmed the trial court's denial of defendant's general demurrers.
ISSUE:
Were the plaintiff’s actions reasonably necessary to save the lives of the sloop’s occupants?
ANSWER:
Yes.
RULE:
The doctrine of necessity applies with special force to the preservation of human life. One assaulted and
in peril of his life may run through the close of another to escape from his assailant. One may sacrifice
the personal property of another to save his life or the lives of his fellows.
CONCLUSION:
The allegations are, in substance, that the stress of a sudden and violent tempest compelled the plaintiff
to moor to defendant's dock to save his sloop and the people in it. The condition of necessity is
complete, for it covers not only the necessity of mooring, but the necessity of mooring to the dock.
Vincent v Lake Erie Transp. Co. (Supreme Court of Minnesota) 1910
FACTS:
Plaintiffs owned a wharf in which ships docked to unload cargo. Defendant owned a ship that docked at
plaintiffs' wharf during a storm. During the storm, plaintiffs' wharf was damaged by defendant's ship.
Plaintiffs brought an action against defendant to recover for the damages to their wharf. The trial court
denied defendant's motion for a directed verdict and entered judgment in favor of plaintiffs, and denied
defendant's motion for a new trial.
ISSUE:
Is Defendant liable for damages incurred to Plaintiff’s property?
ANSWER:
Yes.
RULE:
If during a storm a ship owner enters a harbor, becomes disabled, and his ship thrown against the
plaintiffs' dock, the plaintiffs cannot recover. Again, if while attempting to hold fast to the dock the lines
part, without any negligence, and the vessel is carried against some other boat or dock in the harbor,
there would be no liability upon her owner. But where those in charge of the vessel deliberately and by
their direct efforts hold their vessel in such a position that the damage to the dock results, and, having
thus preserved the ship at the expense of the dock, the owners are responsible to the dock owners to
the extent of the injury inflicted.
CONCLUSION:
On appeal, the state supreme court affirmed, reasoning the damage to plaintiffs' wharf was not caused
by an act of God, which would have excused defendant's liability, but was an injury caused by the
defendant's prudent intention to use plaintiffs' property for the purpose of preserving its own more
valuable property, and the plaintiffs, therefore, were entitled to compensation for the injury done.
Brzoska v Olson (Supreme Court of Delaware, 1995)
Facts: Raymond Owens was a dentist who was diagnosed with AIDS in March 1989 and died in March
1991. From the time he was diagnosed he continued his practice up until a month before his death
without his patients knowing. Throughout that time, the dentist was deteriorating physically and
mentally. In the superior court the ruling was in favor of Olson by stating the absence of physical harm.
Issue: Can a patient who had been treated by a health provider who was diagnosed with AIDS sue for
battery?
Rule: Restatement (Second) of Torts 18: "An actor is subject to liability to another for battery if (a) he
acts intending to cause a harmful or offensive contact with the person... and (b) a harmful contact with
the person of the other directly or indirectly results."
Analysis: It is a must to meet the requirements for the applicable tort of battery so that a patient has
standing. Battery does simply mean the unwanted touching of another person yet it does not expand to
those easily offended and who suffer phobia. Owens had better than average precautionary methods
and 0 out of 630 patients tested were HIV (+).
Conclusion: The ruling was affirmed and reversed. In this case battery is not applicable because the
simple touch of an HIV positive health provider during routine procedures is not enough to sustain a
claim in that the patient was being exposed to HIV. Battery would be applicable and “offensive” if there
were results that a patient did in fact result in actual exposure to HIV.
Dickens v. Puryear (Supreme Court of North Caroline, 1981)
Facts: Dickens (31) was sharing sex, alcohol, and marijuana with Puryear’s seventeen-year-old
daughter. On April 2,1975 Puryear and four men in ski masks beat the plaintiff to a semiconscious state.
Throughout the beating, Puryear threatened to castrate Dickens and finally threatened to kill him if he
did not leave the state of North Carolina. Dickens filed a complaint in March 1978 alleging that he he
suffered from mental distress, which was brought upon by the defendants. Judge Braswell sided with
the defendants by describing the one-year statute limitation on the assault and battery.
Issue: Does a threat need to be immediate for a course of action to ensue regarding intentional infliction
of emotional distress?
Rule: Restatement (Second) of Torts (1965): “To make the actor liable for an assault he must put the
other in apprehension of an imminent contact.” 29(1) “The apprehension created must be one of
imminent contact, as distinguished from any contact in the future.”
Analysis: Threats of the future are not to be considered assaults but as intentional infliction of mental
distress. Constituting battery was only applicable when it came to the actual beating of the plaintiff
which was time-barred under the one-year statute limitation.
Conclusion: The Supreme Court reversed the lower court’s ruling, affirmed summary judgement and
remanded for new trial because even though the threat to the plaintiff was not prominent, it was still
set in place for the future. The threat of future harm may be sufficient for a course of action.