Torts Outline
Professor Andrew R. Klein
Fall 2021
Intentional Torts
Battery
● Contact
○ Objects “closely identified with” plaintiff’s body count (Fisher v. Carrousel)
● Harmful or Offensive
○ Objective standard for offensive (reasonable person)
● Intent
○ Purpose or knowledge beyond as substantial certainty to cause injury (Garratt)
○ Transferred Intent (A shoots gun at B and hits C, intent transferred to C from B)
○ Limits if knowledge is too generalized (Shaw), specific knowledge can count
Assault
● Apprehension of
● Immediate Contact
● Intent
○ Purpose or substantial certainty
○ Transferred intent (Holloway)
■ Victim to Victim (intended victim to actual/additional victim)
■ Tort to Tort (Battery to Assault)
False Imprisonment
● Confinement
○ Threats of force suffice
○ Plaintiff must know about confinement as it takes place
○ Length of confinement unimportant
● Bounded Area
○ Exception: Reasonable means of escape that Plaintiff knows about
● Intent
○ Purpose or substantial certainty
○ Transferred intent
Trespass to Land
● Entry
○ Trespass by object must be tangible (Amphitheaters: light doesn’t count)
● Onto Land
○ Airspace Above, Subsurface Below
● Intent
● Damages?
○ Traditional Rule: None Required
○ Bradley: “Substantial Damages” required if ceasing trespass is not practical
Trespass to Chattels and Conversion
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Interference
Personal Property
Intent
“Damages”
○ Trespass to Chattels: Physical damage to chattel
○ Conversion: Includes interference with possessory rights
Intentional Infliction of Emotional Distress
● Outrageous Conduct
○ “Beyond all possible bounds of decency ... and utterly intolerable in a civilized community”
○ Importance of relationship (Figueiredo-Torres)
● Causing Severe Emotional Distress
○ “No reasonable [person] could be expected to endure it” (Figueiredo-Torres, Caldor)
● Intent (or Recklessness)
○ Recklessness: “Disregard of a high degree of probability that the emotional distress will follow”
○ No Transferred Intent
Defenses to Intentional Torts
Consent
● Express Consent
● Implied Consent
○ Basic Rule: O’Brien, Smith
○ Scope of Consent: Hackbart
Self Defense
● Reasonable belief
● Reasonable force
Defense of Others
● Defendant “stands in shoes” of person defended
● Mistaken belief?
Defense of Property
● Reasonable Force
○ No Deadly Force! (Katko)
Necessity
● Private Necessity: A qualified privilege (Ploof, Vincent)
● Public Necessity: An absolute privilege (Caltex)
Negligence
● Duty: Reasonably Prudent Person standard (Vaughn)
○ Exceptions:
■ Superior skills or knowledge
■ Physical characteristic
■ Children: “Child of like age, intelligence, and experience” (Charbonneau)
● “Adult Activity”: Adult standard ( Daniels)
■ Mental Disability (Breunig, Gould)
● Sudden and unforeseeable incapacitation gives exception (no history)
● Breach of Duty (“negligence”)
○ Basic Test: Risk/Utility Balancing Test
■ Learned Hand Test: B<PL (Carroll Towing, Grimes, Brotherhood Shipping)
○ Proving Breach:
■ Custom Evidence
■ Statutory Violation (“Negligence Per Se”) (Osborne, Herzog)
● Statute must be made to protect the class of person and class of risk
● Exceptions: More dangerous/impossible to follow statute
■ Res Ipsa Loquitur (Byrne, Larson)
● Type of accident does not normally occur in absence of negligence
● Instrumentality in defendant’s control
● No fault of plaintiff
● Cause in Fact
○ Basic Test: “But For”
■ Dillon Problem=Limited Damages
■ Loss of Chance Problem (Weymers)
● Pure lost chance approach: plaintiff recovers even though it was more likely than not
that he would have suffered the injury if the defendant had not been negligent
● Proportional approach: plaintiff's recovery is limited to the percent of chance lost
multiplied by the total damages that would ordinarily be recovered in that action.
● Substantial possibility approach: plaintiff must show that there is a substantial
possibility that the defendant's negligence caused his injury
○ Alternative Tests
■ Commingled Cause/“Substantial Factor” (Anderson)
■ Unknown Cause/Burden Shifting (Summers)
■ Market Share Liability (Sindell, etc.)
● Proximate Cause
○ Directness Approach (Polemis, J. Andrews/Palsgraf)
○ Foreseeability Approach
■ Type of Harm (Wagon Mound)
■ Plaintiff (J. Cardozo/Palsgraf)
■ Manner of Occurrence
■ Extent of Harm (Stoleson)
○ Intervening Cause Problem (Herman, Derdiarian) (IC must be foreseeable)
● Damages
Limited Duty
● Basic Rule: Reasonable Care to protect others
● “No Duty” Rules
○ Nonfeasance: No Duty to Act (Yania, Weirum)
■ Exception: D’s conduct put P in peril (Day)
■ Exception: D voluntarily assumes duty (Florence)
■ Exception: Special Relationship (Farwell, Tarasoff)
■ Exception: Emotional Distress (Dziokonski, Thing)
● Impact Rule: Spade case says you must have physical reaction
● Zone of Danger Rule: expansion of Impact rule, must feel threatened/have emotional
distress from conduct (near miss rule)
● Bystanders (Dillon Rule)
○ Relational Proximity: close relationship between parties
○ Physical Proximity: located near scene of accident
○ Temporal Proximity: sensory/contemporaneous observance
Premises Liability
● Trespassers
○ No duty
■ Exception: Intentional, willful, or wanton conduct
■ Exception: Discovered trespasser
■ Exception: Child trespasser
● Attractive Nuisance Doctrine (Mozier), applies to child trespassers and licensees
● Licensees
○ Definition: On premises for own purposes (social guests)
○ Scope of duty: Protect against activities and known and concealed dangerous conditions
○ Firefighter’s Rule (Chapman)
● Invitees
○ Definition: On premises for benefit of land possessor; includes those on public property
○ Scope of duty: Reasonable care, including inspection of property
Damages
Compensatory Damages (Personal Injury)
● Medical Expenses
● Lost Income
● Pain & Suffering (McDougald)
○ Lost enjoyment of life?
○ Necessity of cognitive awareness
Punitive Damages
● Purpose: Punish and deter
● Standard: Malice, recklessness, etc.
○ (Sturm Ruger)
● Reforms
○ Caps (Ind. Code§ 34-51-3-4)
○ Split Recovery (Ind. Code § 34-51-3-6)
○ Constitutional Challenge (Campbell)
■ BMW factors: Reprehensibility, ratio (single digit), comparable criminal sanctions
Defenses to Negligence
● Contributory Negligence
○ Rule: Plaintiff is completely barred from recovery. (Butterfield)
○ “Ameliorating” Doctrines
■ Last Clear Chance: allows P to recover if D did final negligent act
■ Imminent Peril Rule: third party who didn’t cause situation can recover from defendant if injured
while rescuing victim of original negligence
■ Willful and Wanton Conduct
● Comparative Fault
○ Pure Comparative Fault: P recovers regardless of % fault less their %fault
○ Modified Comparative Fault
■ 50% (e.g., Texas, Indiana)
■ 49% (e.g., West Virginia)
○ Subsidiary Issues
■ Joint and several liability: multiple def. contribute (quail hunting case)
● P can choose one D to pay full damages regardless of % fault
○ P may not recover more than the full amount of their awarded damages
Cases/Hypotheticals
Battery
● Brown v. Kendall (Intent)
○ Brown and Kendall’s dogs began fighting, and Kendall attempted to break up the dogs by hitting them
with a stick, Brown was accidentally struck and injured. Court ruled that Brown cannot recover because
Kendall was acting with ordinary care and that this was pure accident
● Garratt v. Dailey
○ Child defendant pulled a chair out from underneath the Plaintiff and injured her, court ruled that the
child had necessary intent to commit a battery here because there was a substantial certainty or
knowledge that injury could occur
● Shaw v. Brown and Williamson
○ Shaw was a truck driver who often rode with people who smoked B/W’s cigarettes, Shaw did not
himself but later developed lung cancer and sued B/W, court ruled that B/W had no intent here and did
not acknowledge the risks of secondhand smoke, only the risks of smoking yourself (flood of litigation
concern)
● Fisher v. Carrousel Motor Hotel (objects closely associated with body)
○ Fisher was dining at Carrousel at a buffet that did not serve African Americans, manager of Carrouself
forcibly removed a plate from Fisher’s hand and called him a racial slur (no physical contact), court
ruled that this was batter even if there was no physical contact because there was unwanted/intentional
invasion of his person through the taking of an object closely associated with the body
● Hypotheticals
○ Guy taps Friend on shoulder to get his attention at a party, Friend sues for Battery
■ Purpose to cause contact can be intent, but a tap on the shoulder is common social contact that
would likely not qualify as intent
■ If Guy slapped Friend on should and Friend had recently had shoulder surgery (Guy didn’t
know), there would likely be a battery because there was purpose to cause contact that wasn’t
common social contact
○ Guy accidentally slips on ice while walking with Friend and knocks Friend down
■ There is no intent here because intent is either (1) a purpose to cause contact or (2) knowledge
beyond a substantial certainty to cause injury
Assault
● Holloway v. Wachovia
○ Wachovia sent agent to repossess car from Holloway, agent pointed gun at Holloway and her family to
persuade them to allow agent to take car, Holloway’s daughter filed suit for assault (gun not aimed at her
but was very close to her face), court ruled that this was assault because there was an apprehension to
contact or harm and that the agent’s intent to induce apprehension of Holloway transferred to her
daughter in this case
● Battery/Assault Hypothetical:
○ Facts: Rupert was having a rally for his campaign for governor in the park, Klein and Dean Thompson
went to the rally. Rupert became angry at Klein and swung a sign at him, knocking Klein’s hat off of his
head and hitting Dean Thompson. Rupert later admitted that he only wanted to scare Klein and did not
mean to hit Dean Thomspon
○ Battery: The elements of battery are (1) contact, (2) contact was harmful or offensive, and (3) intent.
Ruper did not physically hit Klein, but Rupert did strike an object closely associated with Klein's body
by hitting his hat. Hitting an object closely associated with one’s body can be classified as contact for
the purposes of battery based on Fisher v. Carousel, where a court ruled that a man whose plate was
forcefully taken from his hand had battery committed on him. Rupert hitting Klein’s hat off of his head
would likely be considered harmful or offensive when compared to the objective standard of whether a
reasonable person would consider this harmful or offensive. For the element of intent, Rupert said that
he did not intend to hit Klein but only to scare him. This is irrelevant because intent can be satisfied if
there was either a purpose to cause contact or a reasonable knowledge that an injury would occur from
the conduct. One can reasonably infer when swinging a large sign at someone's head that injury could be
caused from that action. Due to the elements of intent being satisfied here, Rupert committed assault
when he swung a sign at Klein and knocked Klein’s hat off of his head.
○ Assault: The elements of assault are (1) apprehension to (2) an immediate contact with (3) intent. The
standard for satisfying whether there was apprehension to an action is the objective reasonable person
standard, where apprehension is found if a reasonable person in that scenario would be apprehensive.
Here, it is reasonable to say that a reasonable person would be apprehensive of someone swinging a
large sign at their heads with the intention of scaring them. There also was an immediate contact with
Klein’s hat from the conduct, which can satisfy the second element of assault because Klein’s hat is an
object closely associated with his body, similar to the Fisher case. It has already been established that
Rupert acted with intent because Rupert should have reasonably known that an injury could occur from
swinging a sign at another person’s head. Rupert’s conduct satisfied all of the elements of Assault, so
Rupert committed assault by swinging the sign at Klein’s head.
False Imprisonment
Trespass to Land
● Amphitheaters v. Portland Meadows
○ PM built a racetrack with large lights across from Amphitheaters' drive in theater, lights interfered with
drive in, Amphitheaters alleged this was a trespass to land, court ruled that light did not exist as a
nuisance or trespass because of Amphitheaters’ specific personal peculiarities
● Bradley v. American Smelting
○ Bradley alleged that AS operations deposited microscopic materials of heavy metals on property and
that this was a trespass, court ruled that this was a trespass but made an exception to the traditional rule
requiring no damages and said that this trespass did not cause any “substantial damages” and ruled with
AS
● Quimbee Torts Exam 19:
○ Fact Pattern: A farmer keeps six horses in a stable. The stable is located at the western edge of the
farmer’s pasture, and is immediately adjacent to the farmer’s western property line. The property line is
marked with a fence. On the other side of the fence is the neighbor’s estate, which includes elaborate
gardens and other landscaping. The farmer’s pasture is a square tract of land that measures
approximately half a mile on each side. During the day, the farmer lets the horses graze in the pasture.
At night, the farmer closes the horses in the stable. The horses are pedigreed animals, and some of them
are trained as show horses. The total combined market value of the horses is $100,000. One night, the
farmer is awakened by noises coming from the stable. The farmer looks outside and sees that the stable
is on fire. The farmer runs to the stable and lets the horses out. The stable doors face north. Instead of
driving the horses east, into the pasture, the farmer drives the horses west, where they jump the fence
and run through the neighbor’s estate. The horses trample large portions of the neighbor’s landscaping,
causing $5,000 in damage. While this is happening, the neighbor grabs his shotgun and fires over the
heads of the horses, attempting to scare the horses away. An errant shot kills one of the horses, which
was a show horse worth $30,000. Applicable law provides that a landowner is privileged to kill any
animal on the landowner’s property, unless the animal is privileged to be there. The neighbor sues the
farmer for trespass. The farmer asserts the defense of necessity, and counterclaims against the neighbor
for the value of the dead horse.
1. Ignoring the farmer’s defense, is the farmer liable for trespass? Explain.
● Answer: The issue here is whether the farmer can be charged with trespass to land of his neighbor
regardless of any necessity defenses he may have.
The intentional tort of trespass to land has four relevant elements, including (1) entry, (2) onto
land, (3) intent, and the (4) question of damages. The entry onto land for trespass in regard to objects
must be tangible and this was shown in the Amphitheatres case where the court ruled that a horse track’s
lights shining onto a drive-in's property was not a tangible trespass. The entry onto the land can qualify
as the reasonable airspace above or the subsurface below the property. The surface is not the only
relevant aspect. Intent by the defendant must be present to satisfy a trespass to land, and intent is defined
as a purpose or the knowledge to a substantial certainty that an entry onto land will occur. Finally,
damages are not traditionally required to constitute trespass to land because the tort of trespass is more
concerned with the possessory rights of the land possessor being interfered with. However, the Bradley
case showed that when ceasing a trespass is inconvenient or unfeasible, substantial damages may be
required to constitute trespass.
Applying these rules to the facts at hand, the farmer’s property (the horses) ran onto the
neighbor’s land after their stables caught fire. This satisfies the first two elements of trespass to land.
The intent aspect is also likely satisfied by the farmer directing the horses to the west (toward his
neighbor’s property). It is reasonable to assume that the farmer had knowledge to a substantial certainty
that driving scared horses toward his neighbor’s land that is adjacent to the stables could occur in the
horses entering his neighbor’s land. Also, the farmer did have a distinct purpose in driving them away
from the barn ,but why the farmer did not drive the horses north toward the open pasture is a question of
fact or circumstance that could lend to the “purpose” aspect of the intent element. Finally, the horses
trampled the neighbor’s garden and caused $5,000 worth of damages, so the unrequired element of
damages that accompany a trespass to land are also satisfied. It should be noted that the Bradley rule
does not likely apply here because the farmer ceasing this trespass is not unreasonable.
All of the elements of trespass to land were satisfied through the conduct of the farmer in saving
his horses from his burning barn and directing them toward his neighbor’s property. As a result, the
farmer is liable for trespass and the neighbor has a prima facie case for trespass to land against the
farmer.
2. Assuming that the farmer’s actions otherwise constitute trespass, can the farmer successfully assert the defense
of necessity? Explain, including an analysis of the respective monetary liabilities of the farmer and the neighbor
in light of your answer.
● Answer: The issue in this section si whether or not the farmer has any defenses to his previously stated
tort of trespass to land. The main necessity defenses to trespass to land are public necessity and private
necessity.
Public necessity is an absolute immunity from liability for trespass to land. Public necessity is
absolute because if one qualifies as having a valid public necessity defense, that person is not liable for
any damages reasonably related to the property use. Public necessity requires that the trespass/use of the
property was for the greater good of saving a large number of peoples’ property damages or injuries to
many that outweigh the cost of using the property. Public necessity was notably used in the Caltex case
where the U.S. government commandeered oil products from an oil company in the Philippines in a time
of war so that the approaching enemy could not use the oil for themselves. The government successfully
pleaded public necessity because the oil would have been used to inflict untold damage in World War 2
against civilians and allied combatants alike. Private necessity is different from public necessity in that it
is a qualified immunity to save an individual’s or group of individuals’ property from greater damage by
using another person’s property. This immunity is “qualified” because private necessity requires that a
person who uses this defense must pay back the owner for any damages that their use of the property
causes. Private necessity was used in the Ploof case wherein a sailor encountered a dangerous storm and
moored his boat to another person’s dock for safety and the property owner’s servant unmoored the boat
and caused significant damage. The Ploof court ruled that the property owner was liable for the damages
because the sailor had a private necessity to trespass, but was liable for any damages his use of the
property caused.
Applying these rules to the facts at hand, the farmer was saving the lives and thus the property
value of his $100,000 in horses from the fire. His horses were likely more valuable than the neighbor’s
garden, which ended up only suffering $5,000 in damages after the horses trampled the garden.
Additionally, the neighbor was not legally allowed to damage the horses or the farmer’s property under
private necessity, as shown inPloof.
Not even taking into account the intangible value of the horses’ lives, the farmer will be able to
assert a defense of private necessity to the neighbor’s trespass to land claim. However, this means that
the farmer is liable for the $5,000 in damage his horses caused to the neighbor’s property, but this will
likely be offset by the estimated $30,000 in damages that the neighbor wrongfully caused to the farmer
by shooting his horse.
Trespass to Chattels/Conversion
IIED
● Figueiredo-Torres v. Nickel (IIED)
○ Torres and Wife sought marriage counseling from Nickel, Nickel began to have intimate relationship
with Wife and purposefully make Torres destroy his own marriage, court ruled that there was IIED
because Nickel satisfied all 4 elements
● Caldor v. Bowden (IIED)
○ Bowden was detained at work for many hours being accused of stealing and not allowed to leave, later
went in with his mother and was arrested by store security and called a racial slur, court said that this
was not IIED because the conduct was not extreme and outrageous (disgraceful verdict).
● Dziokonski v. Babineau (Negligent IIED)
○ Dziokonski came to see her daughter was hit by a car and was so emotionally distraught that she dies in
the ambulance on the way to the hospital with her daughter, court ruled that reasonable foreseeability
should be used as standard to determine connection between parent’s physical and emotional response to
emotional distress.
● Thing v. La Chusa (Negligent IIED)
○ Thing was hit by a car driven by La Chusa, Thing’s mother was nearby but did not see the accident
occur, Thing’s mother alleged emotional distress and brought suit, court ruled that she could not recover
emotional distress damages because she was not an eyewitness to the accident, court used/reinforced
Dillon rule
Consent
● Smith v. Calvary Church
○ Smith joined CC as a member and agreed to specific religious rules/punishments that came with
membership, Smith was later singled out and disciplined in accordance with these punishments, Smith
sued for IIED claiming that he had renounced his membership and did not consent to the discipline,
court ruled that even though Smith had formally revoked membership, he still continued church
activities, so his consent was not actually revoked and CC’s actions were not tortious.
● Hackbart v. Cincinnati Bengals
○ Clark was a Bengals player and illegally struck Hackbart in the head and neck during a game unrelated
to a play, Hackbart sustained chronic injuries and brought suit, court ruled that the violent nature of
football did not bar Hackbart from damages because the scope of his consent in playing football related
only to injuries relating to the customs/rules of the game, Clark’s hit on Hackbart was outside of the
rules of football and unrelated to the playing of the game.
Self Defense
Defense of Others
Defense of Property
● Katko
○ This case dealt with a trespasser who broke into a couple’s house that had set up a shotgun trap aimed at
the door to hit trespassers, trespasser was shot by shotgun and brough suit, court ruled that the couple
was liable because defense of property is not justified by deadly force unless a property owner is in
immediate danger (the couple here was not in the same town and was in no danger)
Necessity
● Ploof v. Putnam
○ Ploof was sailing his boat and a strong storm suddenly appeared, Ploof moored his boat to Putnam’s
dock for safety so he wasn’t injured and his boat wasn’t destroyed, but Putnam had Ploof’s boat
disconnected from his dock and Ploof’s boat was destroyed, court ruled that Ploof had a private
necessity to moor his boat and Putnam is liable for all damages resulting from unmooring Ploof’s boat
● Vincent v. Lake Erie Transport
○ Vincent was docked at LET and a violent storm broke out, Vincent’s boat damaged LET’s dock during
the storm and LET brought suit, court ruled that even though it would have been unreasonable for
Vincent to go out on the storm, he was responsible for the damage he caused to LET’s dock during his
private necessity because PN is a qualified privilege (still responsible for damage)
● US v. Caltex
○ US destroyed Caltex assets in the Philippines so that it wouldn’t fall into enemy hands at the beginning
of WW2, Caltex sued for damages and court said that the US’s actions were in a time of war and that
this was an absolute immunity (no damages required to be paid)
● Ch. 3 intro problem (Trespass and Necessity and IIED)
○ Facts: Thurston flew Jumbo and Spud in his plane but had to make an emergency landing on Farmer
Jones’s land, tearing up Jones’s cornfield. Thurston was so relieved that he fainted in the pilot’s seat, but
Spud was so scared that he blocked the doorway and said that they were not leaving until Thurston said
it was okay. Jumbo did not say anything for five minutes before eventually they all got out of the plane.
Jones estimated the damage to his fields at $10,000
○ A. Jones’ lawsuit against Thurston: The elements of trespass to land for the purpose of establishing a
prima facie case are (1) entry to (2) land with (3) intent. It should be noted that damages are generally
not required under the traditional rule to prove a trespass to land, but “substantial damages” can be
required if the trespass cannot be easily remedied or stopped under the Bradley rule. Here, Thurston
crash landed his plane onto Jones’s cornfield. This was an (1) entry onto (2) Jones’s land that would be
tangible to any reasonable person. While Thurston’s choices were limited, he still landed on farmland
that he knew not to be his own property and that he did not have permission to use.because his plane
could not safely land at the airport. This choice by Thurston shows his (3) intent to trespass because he
had a purpose or knowledge beyond a substantial certainty that a trespass would occur. In this case,
Jones has a prima facie case against Thurston for trespass to land. However, Thurston will likely counter
with the defense of private necessity. Private necessity is a qualified privilege that allows trespass to
land but is qualified in that those claiming private necessity to limit their own property damage must pay
for any damages that their use of the other party’s property causes.Thurston will likely succeed in his
defense of private necessity because his plane was dysfunctional and he used his specialized judgement
to determine that it would have been more dangerous to land his plane at the airport. However, this does
not mean that Thurston is not liable for the $10,000 in damages that he caused to Jones’s field by
landing there. Thurston will not be found guilty of trespass but will have to pay the $10,000 to reimburse
Jones for his damages.
○ B. Jumbo’s lawsuit against Spud (False Imprisonment):
Negligence
● Vaughan v. Menlove (reasonably prudent person (objective) standard for Duty)
○ Menlove had a large stack of hay near his property line that he was repeatedly warned was a fire hazard,
Vaughan had cottages near his property line and near the hay, one day the hay burst into flames and
burned down Vaughan’s cottages, court ruled that Menlove was liable even though he claimed to not be
very smart because Menlove did not act as a reasonably prudent person would.
● Charbonneau v. MacRury (Child of like age/intelligence/experience (subjective) standard)
○ Macrury (minor) was driving his father’s car when he struck and killed Charbonneau’s three year old
son, court ruled that the standard of care for children is reasonable care for a child of like age,
intelligence, and experience when determining whether there was a duty.
● Daniels v. Evans
○ Daniels was killed when his motorcycle hit Evans, court ruled that the Charbonneau standard for
evaluating the conduct of children for a duty only applied when the children/minors were engaged in
activities appropriate to their age and not adult activities (riding a motorcycle), objective standard used
● Breunig v. American Family Ins. Co.
○ Breunog was hit by Veith driving her car because Veith experienced a severe insane delusion that caused
her to be unable to operate her car, court ruled that insanity may be a defense to liability for negligence
if an individual is suddenly overcome, without forewarning, by a mental disability or disorder that
makes him incapable of conforming his conduct to the standards of a reasonable man under like
circumstances, court found Veith/Am. Fam. liable because Veith had a history of these delusions so she
should have not been driving her car.
○ Gould case: used Breunig rule in a suit where a nursing home worker sued an Alzheimer’s patient who
injured her, court used Breunig rule to rule against worker because she was not an innocent member of
the public (she worked with patients like this daily) and that this patient had a history of this behavior so
there was no issue
● US v. Carroll Towing (Learned Hand Test: B<PL)
○ Agents of Carroll were not on barge for extended period (21 hrs.) and did not see hole in boat that led to
its sinking, contributory negligence was argued here and the court said that liability for negligence due
to failure to take safety precautions exists if the burden of taking such precautions is less than the
probability of injury multiplied by the gravity of any resulting injury, symbolized by B < PL =
negligence liability.
● Grimes v. Norfolk Railway (Learned Hand Test: B<PL)
○ Grimes was a train conductor who had mechanical issues and left his train to inspect the issues, Grimes
then stepped in a hole and injured his foot and sued the railway for negligence in not making the track
safe, court used Hand Tes (B<PL) and ruled that it would have been an extremely large burden (B) for
the railway to fix 22,000 miles of railways to prevent a few injuries per year that are usually minor in
severity (L) and not all that probable to occur (P).
● Learned Hand Test (Breach of Duty) Hypo:
○ Facts: A car company is considering putting sleeves around 11 million of its cars’ gas tanks to prevent
fires. The safety experts estimate that the spending of $11 per vehicle will prevent 200 cases of
death/severe bodily injury. The wrongful death estimates are around $250,000 per death or $50 million
total. Will the car company be negligent if it does not put the sleeves on?
○ Technically no, the company would not be negligent because B= $11*11,000,000=121,000,000 and
PL=$250,000*200=50,000,000. In this case the burden (B) is larger than the probability of accident
times the likely magnitude (PL), so the company would not be negligent (breach of duty) under the
Hand test. However, punitive damages would likely be considered in a real life situation.
● Mayhew v. Sullivan Mining co.
○ Mayhew fell through a hole in a mining platform and sustained injuries, Mayhew claimed that there was
no warning and that no other mine he worked for made such holes (not custom of mines), court ruled
that this hole was negligent and that even if it were customary to cut hole like this, it would not have
been the actions of a reasonably prudent person (universal carelessness doesn’t constitute want of
ordinary care)
● The TJ Hooper (custom doesn’t excuse gross negligence)
○ TJ Hooper ship sunk because it did not know about incoming storm that it would have foreseen if it had
radio equipment, cargo owners sued ship, court said that even if most ships in the industry did not have
these radios, their value under the Hand test was so great (low burden, extremely high magnitude of
harm couple with a relatively high probability) that it was negligent to not have the radios for weather
updates and other purposes (custom does not excuse gross negligence)
● Doe v. Cutter (custom evidence means nothing if industry is small/related)
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○ Doe and others were infected with HIV after taking a treatment for blood thinning called Factor VIII,
court ruled that industry knowledge was very limited on the risks of HIV being transmittable through
blood but the “industry” here was very small and only made up of 4 companies, so custom was less
persuasive
Osborne v. McMasters (negligence per se)
○ Defendant owned a store and sold Plaintiff a poison that Defendant failed to label as “poison”, court
ruled that Defendant was liable because nonperformance of a legal duty required by statute constitutes
negligence.
Martin v. Herzog (negligence per se)
○ Decedent Plaintiff was killed when Defendant’s car crashed into Plaintiff’s buggy, which had no lights
(violation of statute), court ruled that the lack of lights on Plaintiff’s buggy that were required by statute
was negligence per se and that this was contributorily negligent on Plaintiff’s part.
Byrne v. Boadle (Res Ipsa Loquitur)
○ Byrne was walking down the street when he immediately blacked out, witnesses say that a barrel of
flour had come out of the second story building above and hit him on the head, court ruled that the
bakery was negligent because even though no specific negligence could be proven, the negligence could
be presumed because large barrels of flour flying out of second story windows is not an occurrence that
happens in the absence of negligence (Res Ipsa Loquitur)
Larson v. St. Francis Hotel
○ Larson was walking on the street on VJ day and an armchair hit her from the hotel above, court ruled
that even though the hotel’s guests were likely the ones that threw the armchair out of the window and
that the occurrence would not have happened in the absence of negligence (Res Ipsa Loquitur), the
instrument of negligence must be under the exclusive control of the defendant for claims to prevail
under Res Ipsa Loquitur.
Add 9/23 Hypo (Movie theater)
Ybarra v. Spangard (Res Ipsa Loquitur medical treatments)
○ Ybarra was operated on for an appendectomy but woke up with extreme shoulder/arm pain, court ruled
that wa plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all
those defendants who had any control over his body or the instrumentalities that might have caused the
injuries may be held liable in an action based on res ipsa loquitur.
Lyons v. Midnight Sun (“But-for” causation)
○ Decedent Plaintiff pulled out on front of Defendant and Defendant swerved to avoid Plaintiff, Defendant
may have been speeding, court ruled that Defendant was not liable because even though he may have
been negligent by speeding, his negligence did not cause the accident (the accident would have
happened regardless and not but for his speeding)
Dapp v. Larson
○ Plaintiff slipped and fell down Defendant porch steps and saw a doormat at the bottom of the steps near
her, Plaintiff sued and said doormat had to be the cause of the fall because it was near the bottom of the
stairs with her after her fall, court disagreed and ruled that the Defendant must prove that the Plaintiff
created or had notice of the dangerous condition and that the accident would not have happened “but
for” the actions or inaction of the Plaintiff.
Anderson v. Minneapolis St. Paul RR (Commingled Cause/“Substantial Factor”)
○ MSP’s trains started a fire in a bog near Anderson’s property, bog fire joined with fire of unknown origin
and damaged Anderson’s property, court ruled that MSP was liable because even though but for
causation could not be proven (unsure if either fire would have independently burned Anderson’s
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property), it would not be fair to allow MSP to avoid liability because their fire was a substantial factor
or a commingled cause in the destruction of Anderson’s property
Dillon v. Twin State Gas/Electric (Dillon Problem)
○ Foreman for Twin complained to Twin that children often played on bridges with exposed wires, Dillon
was playing there one day and lost his balance, this caused him to fall off of the bridge but he grabbed a
live wire to save himself and died instantly, court ruled that Twin was liable because twin had a duty to
add insulation to the wires because of its knowledge of kids playing on wires, Twin is only liable for the
difference in what happened (death) and what would have happened if the boy wasn’t electrocuted
(could have fallen to death, only sustained some injury, or none at all), this is a problem in assigning
damages (limited damages).
Problem #2 on p.208
○ Plaintiff decedent died after falling off of Defendant’s boat and drowning. It was found that Defendat did
not have the proper lifesaving equipment on board the boat. However, eyewitnesses said that the
Plaintiff immediately went under the water and never came. Is Plaintiff negligent?
■ Duty: Using the reasonably prudent person test, it was likely that Defendant should have had the
proper life saving equipment on board their ship when going out on the water where injury could
occur
■ Breach of Duty: The Hand test shows there was a breach because the burden (B) of purchasing
or putting life saving equipment on the boat is likely much smaller than the probability of an
accident (P) multiplied by the likely magnitude of accidents that the life saving equipment would
prevent (L).
■ Cause in Fact: However, Plaintiff did immediately go under the water and did not come up, so
the death would have occurred regardless of the presence of the lifesaving equipment. Therefore,
there is no “but for” causation here and thus no negligence.
Summers v. Tice (Burden Shifting/Alternative Liability)
○ Plaintiff and two Defendants went quail hunting, Plaintiff gave clear instructions for safety, both
Defendants simultaneously shot at a quail near Plaintiff and one pellet hit Plaintiff in the eye (unknown
which Defendant's projectfasile hit Plaintiff), court ruled that it would be wrong to deny a Plaintiff their
damages simply because you can’t determine which negligent defendant actually caused injury so both
of the Defendants are liable for the full amount each.
Sindell v. Abbott Laboratories (Market Share Liability)
○ Defendants are a group of companies that marketed the DES drug to prevent miscarriages, later found
that DES causes cancer in babies whose mothers took DES while pregnant, Plaintiff is one of those
children experiencing DES side effects but is not certain which of the companies created the DES that
her mother took, court ruled that each company was liable for damages based on their market share
contribution.
Weymers v. Khara (Loss of Chance)
○ Weymers became ill and was misdiagnosed multiple times by doctors, condition worsened until a kidney
transplant was needed, affidavits said a proper diagnosis would have given a 30-40% chance of saving
kidney, court ruled there was no cause of action for harm less than death.
In re an arbitration between Polemis and Furness (Proximate Cause: Directness)
○ A ship was leaking petrol gas all over the ship, a worker unloading the ship dropped a board into the
bottom that ignited the ship, court ruled that the direct consequence of the falling board was the fire and
that the unloaders were liable for the damages regardless of foreseeability.
Wagon Mound case (Foreseeability)
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○ Wagon Mound was a ship that leaked oil into the harbor at Morts’ dock, Morts knew of oil in the water
and many hours later were welding above water, sparks from welding ignited fire on top of the water,
court ruled that Wagon Mound was not liable because the fire was not a reasonably foreseeable
consequence of the oil spill even though it was a direct consequence.
Palsgraf v. Long Island RR co.
○ Palsgraf was standing on a train platform when two men attempted to jump on the train, one man had a
package with unknown contents and began to fall off of the train, the man was pushed onto the train by
railway workers, the man dropped the package (which contained fireworks) and it exploded, dislodging
some scales on the other side of the platform and injuring Palsgraf, court (J. Cardozo) ruled that the
Plaintiff (Palsgraf) was outside of the scope of reasonably foreseeable harm and that there was no duty
owed to her, it is not reasonably foreseeable to expect rail workers helping a person onto a train to think
that a random unmarked package contains explosives that will injure someone nowhere near them.
■ Dissent: J. Andrews dissents here and says that the Plaintiff should be able to recover because the
negligence of the rail workers in knocking the package down directly led to Palsgraf being
injured and that there is no zone of danger that should be used for this (favors Directness
approach)
Stoleson v. U.S. (Extent of Harm doesn’t matter to Foreseeability)
○ Stoleson was exposed to nitroglycerin at work and developed heart issues as a result, Stoleson’s
symptoms were worsened by her hypochondria, US tried to argue that they were not liable for the extent
of Stoleson’s harm because of her preexisting hypochondria, court ruled that the eggshell skull doctrine
applied here, making the US liable for the aggravation of preexisting conditions because they had to
“take Stoleson as she came (with all conditions)”.
Herman v. Markham Air Rifle
○ Plaintiff was shopping for air rifles and inspected a rifle that they were told was unloaded (advertised to
be completely harmless), the rifle was loaded and discharged, injuring them, the court ruled that the
advertisement of the rifle as “harmless” and sending them to be sold loaded was negligent and that the
Plaintiff negligently discharging the rifle was an intervening cause but was within the scope of
reasonable foreseeability for Markham’s negligence so it did not shift liability off of Markham.
Derdiarian v. Felix Contracting
○ Derdarian was working with molten enamel for Felix at their site, another person was driving their truck
and had a seizure, which caused them to lose control and cause the enamel to cover Derdiarian and
cause near-fatal injuries, experts later found that this accident could have been avoided if Felix built a
barrier to block traffic near the enamel, court ruled that Felix was liable because even though the driver
causing the accident was an intervening cause, this did not break the causal chain because a car
accident at a worksite on the side of a road was within the scope of reasonable foreseeability.
Hypothetical: Hoosier Hardware Store Driver
○ Elaine runs Hoosier hardware store and hires Billy (loser with poor driving record), Bill is driving
through the school zone around when school lets out and is texting on his phone while driving, Bill flies
past crossing guard and hits one of a kind $100k vase out of the school librarian’s hand. Can the school
bring a suit against Elaine?
○ The school likely has a prima facie case for negligence on Elaine. This is because the elements of
negligence are (1) duty existed, (2) a breach of duty, (3) cause in fact, and (4) proximate cause. There
was likely a duty here by Elaine to not hire someone with a poor driving record and a suspended license
to be a driver, as a reasonably prudent person would not do so. There was likely a breach of this duty by
Elaine in hiring Billy because employing someone to drive with a suspended license (or driving at all
with a suspended license) is against the law, so this is negligence per se. The law against driving with a
suspended license was made to protect both the class of person (pedestrians or other drivers vulnerable
to reckless driving) and the class of risk (a car accident). The accident with Bill would not have
happened but for the action of Elaine hiring a known bad driver with a suspended license, so there is
cause in fact here. For proximate cause, it was reasonably foreseeable that hiring a known bad driver
with a suspended license could result in an accident. However, Elaine may argue that there was an
intervening cause here: Billy was the one texting and driving. However, this does not stand because
Derdiarian illustrated that an intervening cause within the scope of duty does not break the causal chain.
Here, it was within the scope of reasonable foreseeability that Billy would be irresponsible/negligent in
his driving because of Elaine’s knowledge of his poor driving record and suspended license. Elaine was
negligent in the accident with the destruction of the school’s $100k vase. However, it should be noted
that it is unlikely that the school will recover fully for the vase, because Wagon Mound ruled that the
negligent Defendant is not liable for types of harm not reasonably foreseeable to the negligence. Here, it
is not reasonably foreseeable that a minor car accident would involve a unique $100k vase; that is highly
unusual.
● Quimbee Torts Exam 4
○ Facts: D owns a business that supplies fruits and vegetables to local restaurants. One morning, as D is
driving a delivery truck, the truck drifts over the road’s center line and into the opposite lane of
oncoming traffic. At the same time, in the opposite lane, P is driving straight towards D, so P swerves to
avoid colliding with the truck. This causes P to lose control of her car, skid off the road, and crash into a
tree. D does not notice the accident, so she returns to the correct lane and continues on her way. A
motorist who witnessed the accident, M, immediately stops and rushes to P’s car. P is still in the driver’s
seat, mumbling incoherently and bleeding from several cuts to her head. M opens the car door and helps
P to get out. At this point, P is able to stand and walk, but only by leaning heavily on M. M walks P
toward his car, intending to take P to a hospital. When M and P reach the side of the road, M realizes
that he will be late for an important meeting if he takes P to the hospital. Mumbling a word of apology,
M gently lowers P to the ground on the shoulder of the road. He then gets back in his car and drives
away. While driving, M calls 911 and reports P’s accident. Meanwhile, still severely disoriented from
the accident, P crawls from the shoulder into the nearest lane of traffic. A cabbie accidentally drives over
P’s leg, causing extensive injuries. The state’s department of transportation recently promulgated a valid
and binding regulation governing the weight of commercial trucks. That regulation provides as follows:
Operating Weights: WHEREAS operating commercial vehicles at weights greater than their rated
capacity increases wear on roads and bridges, and increases the risk of highway accidents, which often
arise when drivers lose control of overweight vehicles, it is hereby ORDERED that no person shall
operate a commercial vehicle at a gross vehicle weight greater than the manufacturer’s stated maximum.
Each violation shall be subject to fines and penalties as provided in this regulation. The gross weight is
defined as the combined weight of the vehicle, its passengers, and its cargo. The manufacturer has rated
D’s truck for a maximum gross weight of 20,000 pounds, but at the time of the accident, D’s truck was
overloaded to a gross weight of 22,000 pounds. D thus violated the weight regulation when the accident
occurred.
○ P sues D and M for personal injury. Before trial, P files a motion in limine, asking the judge to rule that
D’s violation of the weight regulation is negligence per se. Applicable state law recognizes the doctrine
of negligence per se, but there is no precedent addressing whether the doctrine applies to the weight
regulation at issue.
○ Has M breached any duty toward P? Explain.
■ Answer: The issue here relates to the duty standard in negligence. It will be relevant to this
discussion to define both duty and what constitutes a breach of that duty. There is also the
concept of limited duty that is relevant to this discussion.
Duty in negligence cases is set upon the reasonably prudent person standard, stating that
all people have a duty to act as a reasonably prudent person. However, there is also the limited
duty rule as it relates to nonfeasance as explained in the Yania case. Yania showed us that a
person has no duty to help another person in peril if they had no part in creating that perilous
situation. However, it has also been established within limited duty that if a person begins to act
or provide assistance, then that person has to do so reasonably. In regard to whether there was a
breach of duty here, the basic test for breach of duty is a risk-utility balancing test. This was
quanitfieid in Carroll Towing by Judge Learned Hand as B<PL, which says there is a breach if
the burden of preventing the breach is less that the probability multiplied by the likely magnitude
of injury. Further ways to prove breach involve custom evidence, negligence per se (statutory
violation), and res ipsa loquitur. However, it is not likely that any of these alternatives will be
relevant in this discussion.
Applying these rules to the facts at hand, M stopped to help P after their crash and began
to assist them to their car before leaving them on the side of the road for a meeting. M had no
duty to act or assist P in this case under limited duty because M did not create the predicament
that P was in. However,M still had a duty to act reasonably and likely did not by leaving a clearly
disoriented P on the side of the highway completely unattended. P may not have been hit by the
cabby if it weren’t for M moving P and leaving. Applying the Hand test here as well, the burden
(B) for M to act reasonably was to miss their meeting, which is likely less than the high
probability (P) that further injury (L) would occur by leaving P on the side of the road while they
P was delirious.
Due to both the unreasonably nature of M’s actions in begging to act under limited duty
and likely breaching under the Hand test, M breached the duty of reasonable care toward P.
○ How should the judge rule on the issue of negligence per se? Explain.
■ Answer: The issue here is whether D breached their duty of care to P (and other drivers) by
violating the statutory truck weight requirement under negligence per se.
As stated in the previous part, the basic test for breach of duty is a risk-utility balancing
test. This was quantified in Carroll Towing by Judge Learned Hand as B<PL, which says there is
a breach if the burden of preventing the breach is less that the probability multiplied by the likely
magnitude of injury. Further alternative ways to prove breach involve custom evidence,
negligence per se (statutory violation), and res ipsa loquitur. Negligence per se essentially
assigns a breach based on the fact that the defendant violated some statute in their conduct. An
additional requirement to successfully argue res ipsa loquitur is that the statute in question has to
have specifically been made to protect the class of person and class of risk at issue in the present
case.
Applying the present case to these rules, there was a violation of the statute stated in the
facts because the manufacturer rated capacity was 20,000 lbs. and the truck in this case driven by
D was loaded up to 22,000 lbs. The next question is whether this statute was designed to protect
both the class of person and class of risk in this case. The statute specifically states that
overweight vehicles “increases the risk of highway accidents”, so this is specifically naming the
class of risk. It can then be assumed from this that the victims of highway accidents are often
other drivers on the highway, like P in this case.
D was in direct violation of the truck weight limit statute stated previously and the
accident as well as P were in the class of risk and class of person, respectively. Due to this, the
judge should grant the motion in limine and rule that D’s violation of the weight regulation is
negligence per se.
Limited Duty (Limitations on the Scope of Duty)
● Nonfeasance vs. Misfeasance
○ Nonfeasance: when Defendant fails to help Plaintiff for Plaintiff’s benefit (Yania)
○ Misfeasance: when Defendant is responsible for making Plaintiff’s situation worse, like creating a risk
(Weirum)
● Yania v. Bigan (Nonfeasance)
○ Bigan was strip mining near a large pit with water and Bigan enticed Yania to jump in the water, Yania
jumped in and drowned, Bigan did not help him, court ruled that Bigan had no duty to act here
(nonfeasance) because he was not responsible for the situation that Yania was in.
● Weirum v. RKO General (Misfeasance)
○ RKO ran radio station that ran summer promotion to go around the city and find the radio host for a cash
prize, two teenagers in cars were chasing the radio host on the highway and crashed into another car,
killing them, court ruled that RKO was liable for damages because their actions were the reasonably
foreseeable cause of the negligent third party’s conduct that caused the accident here.
● Day v. Waffle House (Exception to No Duty)
○ Farris was eating at WH and found broken glass in his food and began coughing up blood, Day ordered
that they call an ambulance but the only phone was behind a locked door that WH employees couldn’t
open, Day then put Farris in his car and tried to drive him to hospital, but was hit by another car on the
way and sustained injuries, court ruled that WH was liable because they may not have had a duty to act
but their conduct put Day in peril, so WH did have a duty to act.
● Florence v. Goldberg (Assumed Duty Exception to No Duty)
○ 6 year old Florence was accompanied to school by her mother for two weeks, her mother observed
crossing guards at all school intersections, so she let her go alone, Florence was hit by a car and severely
injured on her first day unaccompanied, court ruled that the municipality voluntarily assumed a duty
because a special class of persons relied on this specific duty (duty was assumed, so
nonfeasance/inaction was a breach of duty)
● Farwell v. Keaton (Special Relationship Exception to No Duty)
○ Farwell and Siegrist were harassing girl friends of Keatons, Keatons severely beat Farwell, siegrist
attempted to aid Farwell and drove him around for a few hours before leaving him in the car, Farwell
went into a coma before dying later, court ruled that Siegrist was liable because while normal there is no
duty to act in a situation not created by the defendant (Siegrist), there is a duty to act if a person
voluntarily attempts to aid someone or there is a special relationship between the parties
(affirmative duty arises)
● Tarasoff v. Regents of UCLA (Special Relationship Exception to No Duty)
○ Tarasoff was a student at UC Berkeley who had a short relationship with Poddar, Poddar told his
psychiatrist that he intended to kill Tarasoff, Psychiatrist did not warn Tarasoff, Poddar later killed
Tarasoff, court ruled that the Psychiatrist’s nonfeasance (inaction) was negligence and that this special
relationship came with negligence because of the nonfeasance.
● Special Relationship Exceptions to No Duty Rule:
○ Common Carriers (hospitality, hotels, innkeepers)
○ Business-customer (Invitor-invitee)
○ Social Venture Companions (Friends) (Farwell)
○ Third-Party Relationship (Tarasoff case)
Premises Liability
● Holzheimer v. Johannsen
○ Both parties were fruit orchard owner who often shared/sold cheap fruit boxes to one another,
Holzheimer was shown how to retrieve boxes on his own and did so when Johannesen was not there,
Holzheimer fell and became injured, Holzheimer argued that he was an invitee because he was
purchasing fruit boxes (most protection), court ruled he was both an invitee and licensee and Johannesen
was not liable.
● Mozier v. Parsons (Attractive Nuisance)
○ Moziers were social guests (licensees) at pool party of Parsons, Moziers’ daughter was later found
floating dead in the pool, court ruled that the attractive nuisance doctrine did not apply to establish
liability here because swimming pools are not attractive nuisances
● Hypothetical: Problem #2 p.473
○ Facts: Alice entered supermarket looking for packing boxes (did not intend to buy anything), a Manager
eventually pointed her toward the back of the store where Alice went past an “Employees Only” sign
and eventually found some boxes, but not before slipping and falling on a banana peel that was left on
the ground by a supermarket employee. What was the status of Alice at the time of her fall (three
premise statuses)? What will happen if she brings a negligence claim?
○ Alice is unlikely to be an invitee because she never intended to buy anything,but is not necessarily a
trespasser due to the Manager pointing her to the prohibited area. She would likely be a licensee and
would likely not succeed in her negligence claim because the banana peel was not concealed and not
really in the control of the store.
● Hypothetical: p.479-480
○ #1: Home was shoveling snow and shoveled it into a big pile at the end of his driveway and went inside,
seven year old Bill was walking by later that day and ran to the top of the pile and jumped off onto what
looked like a soft mound of snow, but Homer had left his shovel concealed under the snow by accident
and the shovel cut Billy badly.
■ Bill is probably a trespasser (discovered), the snow pile could probably be classified as an
attractive nuisance, and Billy would likely prevail here because the condition on the property
(shovel) that injured him was both artificial and concealed.
○ #2: Norma is an eldeely widow in a neighborhood that is almost exclusively elderly people, she had an
old swing in her yard that she was unable to move, the swing was visibly frayed on the ropes that held it,
ten year old Junior spotted the tire swing and ran to try it out, injuring himself when the rope broke.
■ Junior is a (child) trespasser, the swing may be difficult to classify as an attractive nuisance when
taken into context because there are very few children in the neighborhood, Norma could not
remove the swing itself, and the dangerous condition (frayed swing ropes) was not concealed.
● Cadillac Dealer Hypothetical:
○ Ed is a Cadillac dealer. In September, he sent invitations to his hundred best customers, inviting them to
his dealership to look at the new 2021 models. Byron received one of Ed’s invitations. He decided to
go to the party with his friend Cindy, who had not received an invitation.
○ On the day of the event, a crowd gathered in a roped-off area of Ed’s lot. Shortly after Byron arrived, he
engaged Ed in conversation about Byron’s interest in a new Escalade. While Ed and Byron chatted,
Cindy wandered away from the roped-off area to a part of the lot where many of the new Cadillacs were
parked.
○ Shortly thereafter, Ed asked his son (Ed, Jr.) to bring a new Escalade from the parking area toward the
roped-off area so that Byron could look at the car. Ed, Jr. is a new driver and, although he had not been
in a wreck previously, Ed knew that his driving skills were poor.
○ After taking the keys from his father, Ed, Jr. went to the Escalade, started the ignition, and began driving
recklessly. After a few moments, he drove the car into Cindy, injuring her.
○ Does Ed owe a duty of care to Cindy?
■ Holzheimer shows us that Cindy would likely be a licensee (dealership wants her to be a
trespasser because she wasn’t invited, Cindy wants to be an invitee because she was there for
business purposes). This is because while she may have been there for business purposes, she
was getting a social benefit herself from being there that the owner was not receiving. Also, she
was outside of the designated roped off area. Ed likely owes a duty of care to Cindy to protect
her from his (or his agents) activities.
● Chapman v. Craig (Firefighter’s rule)
○ Chapman was a police officer who was called to remove Burkhead due to being overserved drinks and
being disorderly, Chapman was injured in the process and brought suit, court upheld the Fireman’s rule
that said that first responders like police and firemen cannot recover for reasonable injuries sustained in
situations where they were called (they are licensees, have more training than the average person).
● Rowland v. Christian
○ Christian invited Rowland over her home and Christian injured himself on a broken part of a sink,
Christian knew about the broken sink and had asked her landlord to fix it, but failed to tell Rowland
about the danger, court ruled that the landowner has a duty to act as a reasonable person at all times to
all people on their property regardless of status (court disregarded statuses here and said the rule should
be reasonableness)
Damages
● McDougald v. Garber (Pain and Suffering, Compensatory Damages)
○ McDougald was left in a permanent coma after anesthesia from a C-section deprived her of oxygen, the
family sued for pain and suffering/lost enjoyment of life, court ruled that cognitive awareness of loss by
the Plaintiff is required for recovery for loss of enjoyment of life.
● Ruger v. Day (Punitive Damages)
○ Day bought Ruger firearm and was loading gun in his truck in what he thought was a safe position when
it misfired, turns out this gun was manufactured poorly so that gun could be fired from loading position
(unusual), only warning to this was in a separate manual that was difficult to find, court found that
Ruger was liable for $2.895 million in punitive damages because this was the cost of the manufacturing
fix for the gun multiplied by how many guns Ruger sold.
● State Farm v. Campbell (Punitive Damages)
○ Campbell was driving and attempted to pass a van on a two lane road, this caused him to make another
car crash, killing its passengers, State Farm covered Campbell and refused to pay the $50,000 policy
limit to settle, State Farm assured Campbell that he would not be responsible for any excess damages,
then State Farm said Campbell would likely have to sell his house after judgement was over three times
the policy limit, Campbell brought suit against State Farm and was awarded Campbell $2.6 million in
compensatory damages and $145 million in punitive damages, court ruled that this punitive damages
award was excessive and said that it violated due process clause of 14th Amendment, court said that
punitive damage award shouldn’t exceed single digit ratio with compensatory damages, court ruled
that three factors determine if punitive damages are excessive:
1. Degree of responsibility of defendant
2. Disparity between actual/potential harm and punitive award
3. Difference between punitive award and civil penalties in similar cases
Defense to Negligence
● Butterfield v. Forrester (Contributory Negligence)
○ Forrester was working on his house and placed a pole across part of the road, left the pole there until
night, Butterfield left local tavern and was seen riding extremely fast, pole was visible at least 100 feet
away, Butterfield hit pole and was injured, court ruled that Butterfield did not use ordinary care to avoid
obstruction and was contributorily negligent (no recovery)
● Bradley v. Appalachian Power Co. (Comparative Fault)
○ Plaintiffs in lower courts were barred from recovery under contributory negligence, court ruled that the
Plaintiffs who were negligent to a smaller degree (less than 50% negligence) than the combined
negligence of all other actors were able to recover, known as comparative fault