Torts
Library
Gray Publishing & Media, Inc.
Publishers
Copyright © 2006 By Gray Publishing & Media, Inc.
Dear Students:
Welcome to CasebriefsTM Digital Editions, the original digital briefs.
Since 1995, Casebriefs has been published and offered electronically to law
students throughout the U.S.
Casebriefs was first published to facilitate the seamless integration of the “hand
written, paper briefing process” with contemporary electronic techniques. Its
purpose is to save you time, and facilitate your being more efficient and
productive in your briefing process. Its objective is to enable you to spend your
time more efficiently for analyzing and discerning the concepts of the law and for
developing your legal perception.
Casebriefs should never be used as a substitute for assigned reading and writing
assignments. It should be used only to assist you in your assignments and not
as authority. You will only shortchange yourself if you do not read and perform
according to your professor’s instruction.
Understand that while we have taken great care in publishing Casebriefs, at
times, mistakes may be made that even we do not catch, and therefore, we
apologize for this at the outset.
We wish you the greatest success in your studies and should you wish to contact
us, please visit our Web site at www.eCasebriefs.com or call us at 561-249-4140
x 103.
Thank you,
Gray Publishing & Media, Inc.
2
Prosser v. Keeton
Table of Contents
Torts Keyed to Dobbs & Hayden
CHAPTER I. Tort Law: Aims, Approaches, And Processes.......................................... 22
Prosser v. Keeton .......................................................................................................... 23
Holden v. Wal-Mart Stores, Inc.................................................................................... 24
Estevez v. United States................................................................................................ 25
CHAPTER III. Establishing A Claim For Intentional Tort To Person Or Property....... 27
Van Camp v. McAfoos ................................................................................................. 28
Snyder v. Turk .............................................................................................................. 29
Cohen v. Smith.............................................................................................................. 30
Leichtman v. WLW Jacor Communications................................................................. 32
Garratt v. Dailey............................................................................................................ 34
Hall v. McBryde by and through McBryde .................................................................. 35
Polmatier v. Russ .......................................................................................................... 36
White v. Muniz ............................................................................................................. 37
Cullison v. Medley........................................................................................................ 39
Koffman v. Garnett ....................................................................................................... 40
McCann v. Wal-Mart Stores, Inc.................................................................................. 41
Brown v. Muhlenberg Township .................................................................................. 43
CHAPTER IV. Defenses To Intentional Torts-Privileges.............................................. 45
Great Atlantic & Pacific Tea Co. v. Paul...................................................................... 46
Katko v. Briney............................................................................................................. 47
Brown v. Martinez ........................................................................................................ 49
Surocco v. Geary........................................................................................................... 50
Wegner v. Milwaukee Mut. Ins. Co.............................................................................. 51
Vincent v. Lake Erie Transportation Co. ...................................................................... 53
CHAPTER V. The Prima Facie Case For Negligence ................................................... 54
Stewart v. Motts ............................................................................................................ 55
Wilson v. Sibert ............................................................................................................ 57
Robinson v. Lindsay ..................................................................................................... 58
Creasy v. Rusk .............................................................................................................. 59
Roman v. Estate of Gobbo ............................................................................................ 61
Chaffin v. Brame........................................................................................................... 62
Rains v. Bend of the River............................................................................................ 63
Wright v. Brown ........................................................................................................... 64
Impson v. Structural Metals, Inc................................................................................... 65
CHAPTER VI. Negligence: The Breach Or Negligence Element Of The Negligence
Case................................................................................................................................... 66
Indiana Consol. Ins. Co. v. Mathew.............................................................................. 67
Stinnett v. Buchele ........................................................................................................ 68
Bernier v. Boston Edison Co. ....................................................................................... 69
United States v. Carroll Towing Co.............................................................................. 70
3
Prosser v. Keeton
Santiago ex. rel. Martinez v. First Student, Inc. ........................................................... 71
Upchurch v. Rotenberry................................................................................................ 72
Thoma v. Cracker Barrel Old Country Store ................................................................ 74
Wal-Mart Stores, Inc. v. Wright ................................................................................... 75
The T. J. Hooper ........................................................................................................... 76
Byrne v. Boadle ............................................................................................................ 77
Giles v. City of New Haven.......................................................................................... 78
Warren v. Jeffries.......................................................................................................... 79
Widmyer v. Southeast Skyways ................................................................................... 80
CHAPTER VII. Harm And Causation In Fact................................................................ 82
Preston v. Cestaro ......................................................................................................... 83
Salinetro v. Nystrom ..................................................................................................... 84
Landers v. East Texas Salt Water Disposal Co............................................................. 86
Anderson v. Minneapolis, S. P. & S. S. M. R. Co. ....................................................... 88
Dillon v. Twin State Gas & Elec. Co............................................................................ 90
Summers v. Tice ........................................................................................................... 91
Lord v. Lovett ............................................................................................................... 93
CHAPTER VIII. Negligence: The Scope Of Risk Or "Proximate Cause" Requirement 94
Medcalf v. Washington Heights Condo. Ass'n ............................................................. 95
Palsgraf v. Long Island R. Co....................................................................................... 97
Derdiarian v. Felix Contracting Corp. .......................................................................... 99
Sheehan v. New York ................................................................................................. 101
Ventricelli v. Kinney System Rent A Car, Inc............................................................ 102
Marshall v. Nugent...................................................................................................... 104
CHAPTER IX. Contributory/Comparitive Fault .......................................................... 105
Butterfield v. Forrester................................................................................................ 106
Sollin v. Wangler ........................................................................................................ 107
Wassell v. Adams........................................................................................................ 108
Mercer v. Vanderbilt University, Inc.......................................................................... 110
Bexiga v. Havir Mfg. Corp. ........................................................................................ 112
Leroy Fibre Company v. Chicago, Milwaukee & St. Paul Railway........................... 114
CHAPTER X. Assumption of the Risk......................................................................... 116
Moore v. Hartley Motors, Inc. .................................................................................... 117
Crews v. Hollenbach................................................................................................... 118
Turcotte v. Fell............................................................................................................ 120
CHAPTER XI. Defenses Not on the Merits ................................................................. 121
Crumpton v. Humana, Inc........................................................................................... 122
Schiele v. Hobart Corp................................................................................................ 123
Doe v. Maskell ............................................................................................................ 125
Hoery v. United States ................................................................................................ 126
CHAPTER XII. Carriers, Host-Drivers and Landowners ............................................ 127
Gladon v. Greater Cleveland Regional Transit Auth.................................................. 128
Bennett v. Stanley ....................................................................................................... 130
O'Sullivan v. Shaw...................................................................................................... 131
Minnich v. Med-Waste, Inc. ....................................................................................... 132
Rowland v. Christian .................................................................................................. 133
4
Prosser v. Keeton
Pagelsdorf v. Safeco Ins. Co. ...................................................................................... 135
CHAPTER XIII. Duties of Medical and Other Professionals ...................................... 137
Walski v. Tiesenga...................................................................................................... 138
Vergara v. Doan .......................................................................................................... 140
Velazquez ex rel. Velazquez v. Jiminez ..................................................................... 141
Smith v. Knowles........................................................................................................ 142
States v. Lourdes Hospital .......................................................................................... 144
Ybarra v. Spangard ..................................................................................................... 145
Harnish v. Children's Hospital Medical Center .......................................................... 146
Arrington v. Wong ...................................................................................................... 147
Horizon/CMS Healthcare Corp. v. Auld..................................................................... 148
CHAPTER XV. Governmental Entities And Officers ................................................. 150
Loge v. United States.................................................................................................. 151
Maas v. United States ................................................................................................. 152
Riss v. New York........................................................................................................ 154
Harry Stoller & Co. v. Lowell .................................................................................... 156
Thompson v. County of Alameda............................................................................... 158
Vaughn v. Ruoff.......................................................................................................... 160
Navarro v. Block......................................................................................................... 161
CHAPTER XVI. Nonfeasance...................................................................................... 163
Yania v. Bigan ............................................................................................................ 164
Wakulich v. Mraz........................................................................................................ 166
Farwell v. Keaton........................................................................................................ 167
DeShaney v. Winnebago County................................................................................ 169
CHAPTER XVII. Contract And Duty .......................................................................... 171
Thorne v. Deas ............................................................................................................ 172
Mobil Oil Corp. v. Thorn............................................................................................ 173
H. R. Moch Co. v. Rensselaer Water Co. ................................................................... 174
Paz v. State Of California ........................................................................................... 175
Florence v. Goldberg .................................................................................................. 177
CHAPTER XVIII. The Duty To Protect From Third Persons...................................... 178
Posecai v. Wal-Mart Stores......................................................................................... 179
Marquay v. Eno........................................................................................................... 181
Tarasoff v. Regents of University of California ......................................................... 183
Brigance v. Velvet Dove Restaurant, Inc.................................................................... 185
CHAPTER XIX. Emotional Harm ............................................................................... 187
GTE Southwest, Inc. v. Bruce .................................................................................... 188
Homer v. Long ............................................................................................................ 190
Grube v. Pacific Union R.R. ....................................................................................... 192
Boucher v. Dixie Medical Center ............................................................................... 194
Sacco v. High Country Independent Press.................................................................. 196
Potter v. Firestone Tire & Rubber Co......................................................................... 198
CHAPTER XX. Prenatal Harms................................................................................... 200
Remy v. MacDonald ................................................................................................... 201
Chaffee v. Seslar ......................................................................................................... 202
CHAPTER XXI. Death................................................................................................. 203
5
Prosser v. Keeton
Smith v. Whitaker ....................................................................................................... 204
CHAPTER XXII. Vicarious Liability........................................................................... 206
Hinman v. Westinghouse Electric Co......................................................................... 207
Edgewater Motels, Inc. v. Gatzke............................................................................... 209
Lisa M. v. Henry Mayo Newhall Memorial Hospital................................................. 210
Kastner v. Toombs ...................................................................................................... 212
District of Columbia v. Hampton................................................................................ 213
O'Banner v. McDonald's Corp. ................................................................................... 215
Pusey v. Bator ............................................................................................................. 217
Otero v. Jordon Restaurant Enterprises ...................................................................... 218
CHAPTER XXIII. The Development Of Common Law Strict Liability ..................... 220
Weaver v. Ward .......................................................................................................... 221
Brown v. Kendall ........................................................................................................ 222
Bamford v. Turnley..................................................................................................... 223
Rylands v. Fletcher ..................................................................................................... 224
CHAPTER XXIV. Tort Liability For Defective Products............................................ 225
Moorman Manufacturing Co. v. National Tank Co.................................................... 226
Lee v. Crookston Coca-Cola Bottling Co. .................................................................. 227
Knitz v. Minster Machine Co...................................................................................... 229
Honda of America Mfg., Inc. v. Norman.................................................................... 231
McCarthy v. Olin Corp. .............................................................................................. 232
Liriano v. Hobart Corp................................................................................................ 234
Lewis v. Lead Industries Ass’n, Inc............................................................................ 236
Turpin v. Merrell Dow Pharmaceuticals, Inc.............................................................. 237
Bowling v. Heil Co. .................................................................................................... 239
Hughes v. Magic Chef, Inc. ........................................................................................ 241
Reid v. Spadone Machine Co...................................................................................... 243
Boyle v. United Technologies Corporation ................................................................ 244
Newmark v. Gimbel's, Inc. ......................................................................................... 245
United Blood Services, Division of Blood Systems, Inc. v. Quintana ....................... 246
CHAPTER XXV. Settlement and Apportionment ....................................................... 249
Gleason v. Guzman..................................................................................................... 250
Ascheman v. Hancock ................................................................................................ 252
Safeway Stores, Inc. v. Nest-Kart............................................................................... 253
Hymowitz v. Eli Lilly & Co. ...................................................................................... 255
Cartel Capital Corporation v. Fireco of New Jersey................................................... 257
D’Amario v. Ford Motor Co....................................................................................... 259
Board of County Commissioners of Teton County v. Bassett. Supreme Court of
Wyoming (2000)......................................................................................................... 261
Turner v. Jordan .......................................................................................................... 262
CHAPTER XXVI. Damages ........................................................................................ 264
Martin v. United States ............................................................................................... 265
McDougald v. Garber ................................................................................................. 267
Mercado v. Ahmed...................................................................................................... 269
Keans v. Bottiarelli ..................................................................................................... 271
State Farm Mutual Automobile Insurance Co. v. Campbell....................................... 273
6
Prosser v. Keeton
CHAPTER XXVIII. Worker's Compensation .............................................................. 276
Jaeger Baking Co. v. Kretschmann............................................................................. 277
State Industrial Commissioner v. Leff ........................................................................ 279
Carvalho v. Decorative Fabrics Co............................................................................. 280
Harris v. Board of Educ. of Howard County .............................................................. 282
Martin v. Lancaster Battery Co................................................................................... 283
Kerans v. Porter Paint Co............................................................................................ 285
CHAPTER XXIX. Public Compensation Systems, Including Social Security ............ 288
Heckler v. Campbell ................................................................................................... 289
CHAPTER XXX. Private Insurance Solutions............................................................. 291
Licari v. Elliott ............................................................................................................ 292
CHAPTER XXXII. Communication Of Personally Harmful Impressions To Others . 294
New York Times v. Sullivan ...................................................................................... 295
Gertz v. Robert Welch Inc. ......................................................................................... 298
Friedman v. Dozorc .................................................................................................... 301
Solano v. Playgirl, Inc................................................................................................. 303
CHAPTER XXXIII. Communication Of Commercially Harmful Impressions To Others
......................................................................................................................................... 304
Jeffrey v. Cathers ........................................................................................................ 305
Brunson Communications, Inc. v. Arbitron, Inc......................................................... 306
Alyeska Pipeline Service Co. v. Aurora Air Services ................................................ 307
Caruso v. Local Union No. 690 of International Brotherhood of Teamsters ............. 309
Qualitex Co. v. Jacobson Products Co., Inc................................................................ 311
Sears, Roebuck & Co. v. Stiffel Co. ........................................................................... 312
CHAPTER XXXIV. Misrepresentation And Other Misdealings ................................. 314
Ultramares Corp. v. Touche, Niven & Co. ................................................................. 315
Gauerke v. Rozga........................................................................................................ 317
Pinnacle Peak Developers v. TRW Investment Corp. ................................................ 319
Ollerman v. O'Rourke Co. .......................................................................................... 321
Torts Keyed to Epstein
CHAPTER I. Intentionally Inflicted Harm: The Prima Facie Case And Defenses ...... 323
Vosburg v. Putney....................................................................................................... 324
Dougherty v. Stepp ..................................................................................................... 326
Intel Corp. v. Hamidi .................................................................................................. 327
Mohr v. Williams ........................................................................................................ 329
Canterbury v. Spence .................................................................................................. 331
Hudson v. Craft........................................................................................................... 333
McGuire v. Almy ........................................................................................................ 335
Courvoisier v. Raymond ............................................................................................. 336
Bird v. Holbrook ......................................................................................................... 338
Kirby v. Foster ............................................................................................................ 339
Ploof v. Putnam........................................................................................................... 341
Vincent v. Lake Erie Transportation Co. .................................................................... 343
I. de S. and Wife v. W. de S........................................................................................ 345
Tuberville v. Savage ................................................................................................... 346
Alcorn v. Mitchell....................................................................................................... 347
7
Prosser v. Keeton
Bird v. Jones................................................................................................................ 348
Coblyn v. Kennedy's Inc............................................................................................. 349
Wilkinson v. Downton ................................................................................................ 351
CHAPTER II. Strict Liability And Negligence: Historic And Analytic Foundations.. 352
The Thorns Case ......................................................................................................... 353
Weaver v. Ward .......................................................................................................... 355
Scott v. Shepherd ........................................................................................................ 356
Brown v. Kendall ........................................................................................................ 358
Fletcher v. Rylands ..................................................................................................... 360
Fletcher v. Rylands ..................................................................................................... 362
Rylands v. Fletcher ..................................................................................................... 364
Brown v. Collins ......................................................................................................... 365
Powell v. Fall .............................................................................................................. 366
Stone v. Bolton............................................................................................................ 367
Bolton v. Stone............................................................................................................ 368
Hammontree v. Jenner ................................................................................................ 370
CHAPTER III. The Negligence Issue........................................................................... 372
Vaughan v. Menlove................................................................................................... 373
Roberts v. Ring ........................................................................................................... 375
Daniels v. Evans.......................................................................................................... 376
Breunig v. American Family Insurance Co. ............................................................... 377
Fletcher v. City of Aberdeen....................................................................................... 379
Robinson v. Pioche, Bayerque & Co. ......................................................................... 380
Denver & Rio Grande R.R. v. Peterson ...................................................................... 381
Blyth v. Birmingham Water Works ............................................................................ 382
Eckert v. Long Island R.R........................................................................................... 383
Osborne v. Montgomery ............................................................................................. 384
Cooley v. Public Service Co. ...................................................................................... 385
United States v. Carroll Towing Co............................................................................ 387
Lyons v. Midnight Sun Transportation Services, Inc. ................................................ 388
Andrews v. United Airlines ........................................................................................ 390
Titus v. Bradford, B. & K. R. Co................................................................................ 392
Mayhew v. Sullivan Mining Co.................................................................................. 394
The T.J. Hooper .......................................................................................................... 395
The T.J. Hooper .......................................................................................................... 396
Lama v. Borras............................................................................................................ 398
Canterbury v. Spence .................................................................................................. 400
Anon............................................................................................................................ 402
Osborne v. McMasters ................................................................................................ 403
Martin v. Herzog......................................................................................................... 404
Brown v. Shyne........................................................................................................... 405
Uhr v. East Greenbush Central School District .......................................................... 407
Baltimore and Ohio R.R. v. Goodman........................................................................ 409
Pokora v. Wabash Ry. Co. .......................................................................................... 410
Jewell v. CSX Transportation, Inc.............................................................................. 412
Byrne v. Boadle .......................................................................................................... 414
8
Prosser v. Keeton
Colmenares Vivas v. Sun Alliance Insurance Co. ...................................................... 415
Ybarra v. Spangard ..................................................................................................... 417
CHAPTER IV. Plaintiff's Conduct ............................................................................... 419
Butterfield v. Forrester................................................................................................ 420
Beems v. Chicago, Rock Island & Peoria R.R. .......................................................... 421
Gyerman v. United States Lines Co............................................................................ 422
LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. ........................................... 424
Derheim v. N. Fiorito Co. ........................................................................................... 426
Fuller v. Illinois Central R.R....................................................................................... 428
Mills v. Armstrong...................................................................................................... 430
Lamson v. American Axe & Tool Co......................................................................... 431
Murphy v. Steeplechase Amusement Co. ................................................................... 432
Obstetrics & Gynecologists Ltd. v. Pepper................................................................. 434
Li v. Yellow Cab Co. of California............................................................................. 436
CHAPTER V. Multiple Defendants: Joint, Several, And Vicarious Liability ............. 438
Union Stock Yards Co. of Omaha v. Chicago, Burlington, & Quincy R.R. .............. 439
American Motorcycle Associations v. Superior Court ............................................... 441
McDermott, Inc. v. AmClyde & River Don Castings, Ltd. ........................................ 443
Ira S. Bushey & Sons, Inc. v. United States ............................................................... 445
Petrovich v. Share Health Plan of Illinois, Inc............................................................ 447
CHAPTER VI. Causation ............................................................................................. 449
New York Central R.R. v. Grimstad........................................................................... 450
Zuchowicz v. United States ........................................................................................ 451
General Electric Co. v. Joiner ..................................................................................... 453
Herskovits v. Group Health Cooperative.................................................................... 455
Kingston v. Chicago & N.W. Ry. ............................................................................... 457
Summers v. Tice ......................................................................................................... 459
Skipworth v. Lead Industries Association .................................................................. 460
Ryan v. New York Central R.R. ................................................................................. 462
Berry v. Sugar Notch Borough ................................................................................... 463
Brower v. New York Central & H.R.R....................................................................... 464
Wagner v. International Ry. Co. ................................................................................. 465
In re Polemis & Furness, Withy & Co........................................................................ 466
Palsgraf v. Long Island R.R........................................................................................ 468
Marshall v. Nugent...................................................................................................... 470
Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. (Wagon
Mound (No. 1)) ........................................................................................................... 472
Mitchell v. Rochester Railway.................................................................................... 474
Dillon v. Legg ............................................................................................................. 476
CHAPTER VII. Affirmative Duties ............................................................................. 478
Buch v. Amory Manufacturing Co. ............................................................................ 479
Hurley v. Eddingfield.................................................................................................. 480
Montgomery v. National Convoy & Trucking Co...................................................... 481
Robert Addie & Sons (Collieries), Ltd. v. Dumbreck ................................................ 482
Rowland v. Christian .................................................................................................. 484
Coggs v. Bernard ........................................................................................................ 486
9
Prosser v. Keeton
Erie R.R. v. Stewart .................................................................................................... 487
Marsalis v. LaSalle...................................................................................................... 489
Moch Co. v. Rensselaer Water Co.............................................................................. 491
Kline v. 1500 Massachusetts Avenue Apartment Corp. ............................................. 493
Tarasoff v. Regents of University of California ......................................................... 495
CHAPTER VIII. Traditional Strict Liability ................................................................ 498
Poggi v. Scott .............................................................................................................. 499
Moore v. Regents of the University of California ...................................................... 500
Gehrts v. Batteen......................................................................................................... 503
Spano v. Perini Corp. .................................................................................................. 505
Indiana Harbor Belt R.R. v. American Cyanamid Co. ............................................... 507
Vogel v. Grant-Lafayette Electric Cooperative .......................................................... 509
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. ...................................... 511
Rogers v. Elliot ........................................................................................................... 513
Ensign v. Walls ........................................................................................................... 514
Boomer v. Atlantic Cement Co................................................................................... 515
Anonymous ................................................................................................................. 517
532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. ........................ 518
Camden County Board of Chosen Freeholders v. Beretta, U.S.A. Corp.................... 520
CHAPTER IX. Products Liability ................................................................................ 522
Winterbottom v. Wright.............................................................................................. 523
MacPherson v. Buick Motor Co. ................................................................................ 524
Escola v. Coca Cola Bottling Co. of Fresno ............................................................... 526
Casa Clara Condominium Association, Inc. v. Charley Toppino & Sons, Inc........... 528
Cafazzo v. Central Medical Health Services, Inc. ...................................................... 530
Speller v. Sears, Roebuck & Co.................................................................................. 531
Campo v. Scofield....................................................................................................... 533
Volkswagen of America, Inc. v. Young ..................................................................... 534
Barker v. Lull Engineering Co.................................................................................... 536
Linegar v. Armour of America ................................................................................... 538
Potter v. Chicago Pneumatic Tool Co......................................................................... 540
Halliday v. Sturn, Ruger & Co.................................................................................... 542
MacDonald v. Ortho Pharmaceutical Corp................................................................. 544
Vassallo v. Baxter Healthcare Corp............................................................................ 546
Hood v. Ryobi American Corp. .................................................................................. 548
Daly v. General Motors Corp...................................................................................... 550
Geier v. American Honda Motor Co........................................................................... 552
CHAPTER X. Damages................................................................................................ 554
Sullivan v. Old Colony Street Railway....................................................................... 555
Zibbell v. Southern Pacific Co.................................................................................... 556
McDougald v. Garber ................................................................................................. 557
O'Shea v. Riverway Towing Co. ................................................................................ 559
Duncan v. Kansas City Southern Railway.................................................................. 561
Harding v. Town of Townshend ................................................................................. 563
Kemezy v. Peters ........................................................................................................ 564
State Farm Mutual Automobile Insurance Co. v. Campbell....................................... 565
10
Prosser v. Keeton
CHAPTER XI. The Institution Of Insurance................................................................ 568
Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Insurance Corp. ............................ 569
Crisci v. Security Insurance Co. ................................................................................. 571
CHAPTER XII. The No-Fault Systems........................................................................ 573
Clodgo v. Industry Rentavision, Inc. .......................................................................... 574
Wilson v. Workers' Compensation Appeals Board .................................................... 576
Beauchamp v. Dow Chemical Co............................................................................... 577
Pinnick v. Cleary......................................................................................................... 579
Colaio v. Feinberg....................................................................................................... 581
CHAPTER XIII. Defamation........................................................................................ 583
Doe v. Gonzaga University......................................................................................... 584
Firth v. State of New York.......................................................................................... 586
Parmiter v. Coupland .................................................................................................. 588
Wilkow v. Forbes, Inc................................................................................................. 589
Muzikowski v. Paramount Pictures Corp. .................................................................. 591
E. Hulton & Co. v. Jones ............................................................................................ 593
Terwilliger v. Wands .................................................................................................. 594
Ellsworth v. Martindale-Hubbell Law Directory, Inc................................................. 595
Faulk v. Aware, Inc. (1962) ........................................................................................ 596
Faulk v. Aware, Inc. (1963) ........................................................................................ 597
Auvil v. CBS 60 Minutes............................................................................................ 598
Watt v. Longsdon........................................................................................................ 600
Kennedy v. Cannon..................................................................................................... 602
Brown & Williamson Tobacco Corp. v. Jacobson ..................................................... 604
New York Times Co. v. Sullivan................................................................................ 606
Curtis Publishing Co. v. Butts..................................................................................... 608
Gertz v. Robert Welsh, Inc. ........................................................................................ 611
Philadelphia Newspapers v. Hepps............................................................................. 613
CHAPTER XIV. Privacy .............................................................................................. 615
Nader v. General Motors Corp.................................................................................... 616
Desnick v. American Broadcasting Co., Inc............................................................... 618
Sidis v. F-R Publishing Corp. ..................................................................................... 620
Cox Broadcasting Corp. v. Cohn ................................................................................ 622
Haynes v. Alfred A. Knopf, Inc.................................................................................. 624
Time, Inc. v. Hill......................................................................................................... 626
White v. Samsung Electronics America, Inc. ............................................................. 628
Zacchini v. Scripps-Howard Broadcasting Co............................................................ 630
Factors Etc., Inc. v. Pro Arts, Inc................................................................................ 632
CHAPTER XV. Misrepresentation............................................................................... 633
Pasley v. Freeman ....................................................................................................... 634
Vulcan Metals Co. v. Simmons Manufacturing Co.................................................... 636
Swinton v. Whitinsville Savings Bank ....................................................................... 638
Laidlaw v. Organ ........................................................................................................ 639
Edgington v. Fitzmaurice............................................................................................ 640
Laborers Local 17 Health and Benefit Fund v. Philip Morris, Inc. ............................ 642
Ultramares Corp. v. Touche........................................................................................ 644
11
Prosser v. Keeton
CHAPTER XVI. Economic Harms .............................................................................. 646
Lumley v. Gye ............................................................................................................ 647
Tarleton v. M'Gawley ................................................................................................. 649
People Express Airlines, Inc. v. Consolidated Rail Corp. .......................................... 650
Mogul Steamship Co. v. McGregor, Gow, & Co. ...................................................... 652
International News Service v. Associated Press ......................................................... 654
The National Basketball Assn. v. Motorola, Inc......................................................... 656
Ely-Norris Safe Co. v. Mosler Safe Co....................................................................... 658
Mosler Safe Co. v. Ely-Norris Safe Co....................................................................... 660
CHAPTER XVII. Tort Immunities............................................................................... 661
Berkovitz v. United States .......................................................................................... 662
Clinton v. Jones........................................................................................................... 664
Torts Keyed to Prosser, Wade & Schwartz
CHAPTER I. Development Of Liability ...................................................................... 666
Anonymous ................................................................................................................. 667
Weaver v. Ward .......................................................................................................... 668
Brown v. Kendall ........................................................................................................ 669
Cohen v. Petty............................................................................................................. 671
Spano v. Perini Corp. .................................................................................................. 672
CHAPTER II. Intentional Interference With Person Or Property ................................ 674
Garratt v. Dailey.......................................................................................................... 675
Spivey v. Battaglia ...................................................................................................... 677
Ranson v. Kitner ......................................................................................................... 678
McGuire v. Almy ........................................................................................................ 679
Talmage v. Smith ........................................................................................................ 680
Cole v. Turner ............................................................................................................. 681
Wallace v. Rosen ........................................................................................................ 682
Fisher v. Carrousel Motor Hotel, Inc. ......................................................................... 684
I de S et ux. v. W de S................................................................................................. 685
Western Union Telegraph Co. v. Hill ......................................................................... 686
Big Town Nursing Home, Inc. v. Newman ................................................................ 688
Parvi v. City of Kingston ............................................................................................ 689
Hardy v. LaBelle's Distributing Co............................................................................. 690
Enright v. Groves ........................................................................................................ 691
Whittaker v. Sandford................................................................................................. 692
State Rubbish Collectors Ass'n v. Siliznoff ................................................................ 693
Slocum v. Food Fair Stores of Florida........................................................................ 694
Harris v. Jones............................................................................................................. 695
Taylor v. Vallelunga ................................................................................................... 696
Dougherty v. Stepp ..................................................................................................... 697
Bradley v. American Smelting and Refining Co. ....................................................... 698
Herrin v. Sutherland.................................................................................................... 700
Rogers v. Board of Road Com'rs for Kent County ..................................................... 701
Glidden v. Szybiak...................................................................................................... 702
Compuserve, Inc. v. Cyber Promotions, Inc............................................................... 703
Pearson v. Dodd .......................................................................................................... 704
12
Prosser v. Keeton
CHAPTER III. Privileges ............................................................................................. 705
O'Brien v. Cunard S.S. Co. ......................................................................................... 706
Hackbart v. Cincinnati Bengals, Inc. .......................................................................... 707
Mohr v. Williams ........................................................................................................ 708
De May v. Roberts ...................................................................................................... 709
Katko v. Briney........................................................................................................... 710
Hodgeden v. Hubbard ................................................................................................. 711
Bonkowski v. Arlan's Department Store..................................................................... 712
Surocco v. Geary......................................................................................................... 713
Vincent v. Lake Erie Transp. Co. ............................................................................... 714
Sindle v. New York Transit Authority........................................................................ 715
CHAPTER IV. Negligence........................................................................................... 716
Lubitz v. Wells............................................................................................................ 717
Blyth v. Birmingham Waterworks Co. ....................................................................... 718
Gulf Refining Co. v. Williams.................................................................................... 719
Chicago B. & Q.R. Co. v. Krayenbuhl ....................................................................... 720
Davison v. Snohomish County ................................................................................... 721
United States v. Carroll Towing Co............................................................................ 722
Vaughan v. Menlove................................................................................................... 723
Delair v. McAdoo ....................................................................................................... 724
Trimarco v. Klein........................................................................................................ 725
Cordas v. Peerless Transportation Co......................................................................... 726
Roberts v. State of Louisiana ...................................................................................... 727
Robinson v. Lindsay ................................................................................................... 728
Breunig v. American Family Ins. Co. ......................................................................... 729
Heath v. Swift Wings, Inc........................................................................................... 730
Hodges v. Carter ......................................................................................................... 731
Boyce v. Brown .......................................................................................................... 732
Morrison v. MacNamara............................................................................................. 733
Scott v. Bradford......................................................................................................... 734
Moore v. The Regents of the University of California ............................................... 735
Pokora v. Wabash Ry. Co. .......................................................................................... 736
Osborne v. McMasters ................................................................................................ 737
Stachniewicz v. Mar-Cam Corp.................................................................................. 738
Ney v. Yellow Cab Co. ............................................................................................... 739
Perry v. S.N. and S.N.................................................................................................. 740
Martin v. Herzog......................................................................................................... 741
Zeni v. Anderson......................................................................................................... 742
Goddard v. Boston & Maine R.R. Co......................................................................... 743
Anjou v. Boston Elevated Railway Co. ...................................................................... 744
Joye v. Great Atlantic and Pacific Tea Co.................................................................. 745
Ortega v. Kmart Corp. ................................................................................................ 746
Jasko v. F.W. Woolworth Co...................................................................................... 748
H.E. Butt Groc. Co. v. Resendez ................................................................................ 749
Byrne v. Boadle .......................................................................................................... 750
McDougald v. Perry.................................................................................................... 751
13
Prosser v. Keeton
Larson v. St. Francis Hotel ......................................................................................... 752
Ybarra v. Spangard ..................................................................................................... 753
Sullivan v. Crabtree .................................................................................................... 754
CHAPTER V. Causation In Fact .................................................................................. 755
Perkins v. Texas and New Orleans Railroad Co......................................................... 756
Reynolds v. Texas & Pac. Ry. Co............................................................................... 757
Gentry v. Douglas Hereford Ranch, Inc. .................................................................... 758
Kramer Service, Inc. v. Wilkins.................................................................................. 759
Herskovits v. Group Health Cooperative of Puget Sound .......................................... 760
Daubert v. Merrell Dow Pharmaceuticals, Inc............................................................ 761
Hill v. Edmonds .......................................................................................................... 763
Anderson v. Minneapolis, St. P. & S.St. M. R.R. Co. ................................................ 764
Summers v. Tice ......................................................................................................... 765
Sindell v. Abbott Laboratories.................................................................................... 766
CHAPTER VI. Proximate Or Legal Cause................................................................... 767
Atlantic Coast Line R. CO. v. Daniels........................................................................ 768
Ryan v. New York Central R.R. Co............................................................................ 769
Bartolone v. Jeckovich................................................................................................ 770
In re Arbitration Between Polemis and Furness, Withy & Co., Ltd........................... 771
Overseas Tankship v. Morts Dock & Engineering Co., Ltd. "Wagon Mound No. 1" 772
Overseas Tankship Ltd. V. Miller Steamship Co. "Wagon Mound No. 2"................ 773
Palsgraph v. Long Island R.R. Co............................................................................... 774
Yun v. Ford Motor Co. ............................................................................................... 776
Derdiarian v. Felix Contracting Corp. ........................................................................ 778
Watson v. Kentucky & Indiana Bridge & R.R. Co..................................................... 779
Fuller v. Preis .............................................................................................................. 780
McCoy v. American Suzuki Motor Corp.................................................................... 781
Kelly v. Gwinnell........................................................................................................ 783
Enright v. Eli Lilly & Co. ........................................................................................... 785
CHAPTER VII. Joint Tortfeasors................................................................................. 787
Bierczynski v. Rogers ................................................................................................. 788
Coney v. J.L.G. Industries, Inc. .................................................................................. 789
Bartlett v. New Mexico Welding Supply, Inc............................................................. 791
Bundt v. Embro........................................................................................................... 793
Cox v. Pearl Investment Co. ....................................................................................... 794
Elbaor v. Smith ........................................................................................................... 795
Knell v. Feltman.......................................................................................................... 797
Yellow Cab Co. of D.C., Inc. v. Dreslin..................................................................... 799
Slocum v. Donahue..................................................................................................... 800
Bruckman v. Pena ....................................................................................................... 802
Michie v. Great Lakes Steel Division, Nat'l Steel Corp. ............................................ 803
Dillon v. Twin State Gas & Electric Co. .................................................................... 805
CHAPTER VIII. Duty Of Care..................................................................................... 806
Winterbottom v. Wright.............................................................................................. 807
MacPherson v. Buick Motor Co. ................................................................................ 808
H.R. Moch Co. v. Rensselaer Water Co. .................................................................... 809
14
Prosser v. Keeton
Clagett v. Dacy............................................................................................................ 810
Hegel v. Langsam ....................................................................................................... 812
L.S. Ayres & Co. v. Hicks .......................................................................................... 813
J.S. and M.S. v. R.T.H. ............................................................................................... 815
Tarasoff v. Regents of University of California ......................................................... 817
State of Louisiana ex rel. Guste v. M/V Testbank...................................................... 819
Daley v. LaCroix......................................................................................................... 821
Thing v. La Chusa....................................................................................................... 823
Endresz v. Friedberg ................................................................................................... 825
Procanik by Procanik v. Cillo ..................................................................................... 827
CHAPTER IX. Owners And Occupiers Of Land ......................................................... 829
Taylor v. Olsen............................................................................................................ 830
Salevan v. Wilmington Park, Inc. ............................................................................... 831
Sheehan v. St. Paul & Duluth Ry. Co. ........................................................................ 832
Barmore v. Elmore...................................................................................................... 833
Campbell v. Weathers................................................................................................. 835
Whelan v. Van Natta................................................................................................... 836
Rowland v. Christian .................................................................................................. 837
Borders v. Roseberry .................................................................................................. 839
Pagelsdorf v. Safeco Ins. Co. of America................................................................... 841
Kline v. 1500 Massachusetts Ave. Apartment Corp................................................... 843
CHAPTER X. Damages................................................................................................ 845
Anderson v. Sears, Roebuck & Co. ............................................................................ 846
Richardson v. Chapman .............................................................................................. 848
Montgomery Ward & Co., Inc. v. Anderson .............................................................. 850
Zimmerman v. Ausland .............................................................................................. 852
Cheatham v. Pohle ...................................................................................................... 853
State Farm Mutual Automobile Insurance Co. v. Campbell....................................... 855
CHAPTER XI. Wrongful Death And Survival............................................................. 858
Moragne v. States Marine Lines, Inc. ......................................................................... 859
Selders v. Armentrout ................................................................................................. 860
Murphy v. Martin Oil Co. ........................................................................................... 862
CHAPTER XII. Defenses ............................................................................................. 864
Butterfield v. Forrester................................................................................................ 865
Davies v. Mann ........................................................................................................... 866
McIntyre v. Balentine ................................................................................................. 867
Seigneur v. National Fitness Institute, Inc. ................................................................. 869
Rush v. Commercial Realty Co. ................................................................................. 872
Blackburn v. Dorta...................................................................................................... 873
Teeters v. Currey......................................................................................................... 875
Freehe v. Freehe.......................................................................................................... 877
Renko v. McLean........................................................................................................ 879
Abernathy v. Sisters of St. Mary's .............................................................................. 881
Ayala v. Philadelphia Board of Public Education ...................................................... 883
Riss v. New York........................................................................................................ 884
DeLong v. Erie County ............................................................................................... 885
15
Prosser v. Keeton
Deuser v. Vecera......................................................................................................... 887
CHAPTER XIII. Vicarious Liability ............................................................................ 889
Bussard v. Minimed, Inc............................................................................................. 890
O'Shea v. Welch.......................................................................................................... 892
Murrell v. Goertz ........................................................................................................ 894
Maloney v. Rath.......................................................................................................... 895
Popejoy v. Steinle ....................................................................................................... 896
Shuck v. Means........................................................................................................... 898
Smalich v. Westfall..................................................................................................... 899
CHAPTER XIV. Strict Liability................................................................................... 900
Rylands v. Fletcher ..................................................................................................... 901
Miller v. Civil Constructors, Inc. ................................................................................ 902
Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.......................................... 904
Foster v. Preston Mill Co. ........................................................................................... 906
Golden v. Amory ........................................................................................................ 907
Sandy v. Bushey.......................................................................................................... 908
CHAPTER XV. Products Liability............................................................................... 909
MacPherson v. Buick Motor Co. ................................................................................ 910
Baxter v. Ford Motor Co............................................................................................. 911
Henningsen v. Bloomfield Motors, Inc....................................................................... 913
Greenman v. Yuba Power Products, Inc..................................................................... 915
Rix v. General Motors Corp........................................................................................ 917
Prentis v. Yale Mfg. Co. ............................................................................................. 918
O'Brien v. Muskin Corp.............................................................................................. 920
Anderson v. Owens-Corning Fiberglass Corp. ........................................................... 922
Friedman v. General Motors Corp. ............................................................................. 923
Daly v. General Motors Corp...................................................................................... 925
Ford Motor Co. v. Matthews....................................................................................... 927
Medtronic, Inc. v. Lohr ............................................................................................... 928
Peterson v. Lou Bachrodt Chevrolet Co. .................................................................... 930
Hector v. Cedars-Sinai Medical Ctr............................................................................ 931
CHAPTER XVI. Nuisance ........................................................................................... 932
Philadelphia Electric Company v. Hercules, Inc. ....................................................... 933
Morgan v. High Penn Oil Co. ..................................................................................... 935
Carpenter v. The Double R Cattle Company, Inc....................................................... 937
Winget v. Winn-Dixie Stores, Inc............................................................................... 939
Boomer v. Atlantic Cement Co., Inc........................................................................... 941
Spur Industries, Inc. v. Del E. Webb Development Co. ............................................. 943
CHAPTER XVII. Defamation ...................................................................................... 945
Belli v. Orlando Daily Newspapers, Inc. .................................................................... 946
Grant v. Reader's Digest Ass'n.................................................................................... 948
Kilian v. Doubleday & Co., Inc. ................................................................................. 949
Neiman-Marcus v. Lait ............................................................................................... 950
Bindrim v. Mitchell..................................................................................................... 951
Shor v. Billingsley ...................................................................................................... 953
Terwilliger v. Wands .................................................................................................. 954
16
Prosser v. Keeton
Economopoulos v. A.G. Pollard Co............................................................................ 955
Carafano v. Metrosplash.Com, Inc. ............................................................................ 956
Ogden v. Association of the United States Army ....................................................... 958
New York Times v. Sullivan ...................................................................................... 959
St. Amant v. Thompson .............................................................................................. 961
Harte-Hanks Communications, Inc. v. Connaughton ................................................. 963
Gertz v. Robert Welsh, Inc. ........................................................................................ 965
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. .................................................. 967
Philadelphia Newspapers, Inc. v. Hepps..................................................................... 968
Milkovich v. Lorain Journal Co.................................................................................. 969
Sindorf v. Jacron Sales Co., Inc.................................................................................. 970
CHAPTER XVIII. Privacy ........................................................................................... 971
Joe Dickerson & Associates, LLC v. Dittmar............................................................. 972
Sanders v. American Broadcasting Companies, Inc., et al. ........................................ 974
Hall v. Post.................................................................................................................. 976
Cantrell v. Forest City Publishing Co. ........................................................................ 978
Hustler Magazine v. Falwell ....................................................................................... 979
CHAPTER XIX. Civil Rights....................................................................................... 980
Ashby v. White ........................................................................................................... 981
Camp v. Gregory......................................................................................................... 982
Memphis Community School Dist. v. Stachura.......................................................... 983
CHAPTER XX. Misuse Of Legal Procedure ............................................................... 984
Texas Skaggs, Inc. v. Graves ...................................................................................... 985
Friedman v. Dozorc .................................................................................................... 987
Grainger v. Hill ........................................................................................................... 988
CHAPTER XXI. Misrepresentation ............................................................................. 989
Swinton v. Whitinsville Savings Bank ....................................................................... 990
Griffith v. Byers Constr. Co. of Kansas, Inc............................................................... 991
Derry v. Peek .............................................................................................................. 992
International Products Co. v. Erie R.R. Co................................................................. 993
Winter v. G.P. Putnam's Sons ..................................................................................... 994
Hanberry v. Hearst Corp. ............................................................................................ 995
Richard v. A. Waldman and Sons, Inc........................................................................ 996
Credit Alliance Corporation v. Arthur Andersen & Co.............................................. 997
Citizens State Bank v. Timm, Schmidt & Co. ............................................................ 999
Ultramares Corporation v. Touche ........................................................................... 1000
Williams v. Rank & Son Buick, Inc. ........................................................................ 1001
Saxby v. Southern Land Co. ..................................................................................... 1002
Vulcan Metals Co. v. Simmons Mfg. Co.................................................................. 1003
Sorenson v. Gardner.................................................................................................. 1004
McElrath v. Electric Investment Co.......................................................................... 1006
Burgdorfer v.Thielemann.......................................................................................... 1007
Hinkle v. Rockville Motor Co., Inc .......................................................................... 1009
CHAPTER XXII. Interference With Advantageous Relationships............................ 1011
Ratcliffe v. Evans...................................................................................................... 1012
Horning v. Hardy ...................................................................................................... 1013
17
Prosser v. Keeton
Testing Systems, Inc. v. Magnaflux Corp................................................................. 1015
Lumley v. Gye .......................................................................................................... 1017
Bacon v. St. Paul Union Stockyards Co. .................................................................. 1018
Della Penna v. Toyota Motor Sales, U.S.A., Inc. ..................................................... 1019
Adler, Barish, Daniels, Levin and Creskoff v. Epstein............................................. 1021
Brimelow v. Casson .................................................................................................. 1023
Harmon v. Harmon ................................................................................................... 1024
Neibuhr v. Gage ........................................................................................................ 1025
Freeman & Mills, Inc. v. Belcher Oil Company....................................................... 1026
Nash v. Baker............................................................................................................ 1027
CHAPTER XXIII. Torts In The Age Of Statutes ....................................................... 1028
Burnette v. Wahl ....................................................................................................... 1029
Nearing v. Weaver .................................................................................................... 1031
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics................. 1033
Alexander v. Sandoval .............................................................................................. 1035
De Falco v. Bernas.................................................................................................... 1037
Pulliam v. Coastal Emergency Svcs. ........................................................................ 1040
CHAPTER XXIV. Compensation Systems as Substitutes for Tort Law ................... 1041
Blankenship v. Cincinnati Milacron Chemicals, Inc. ............................................... 1042
Torts keyed to Franklin, Rabin & Green
CHAPTER I. Introduction to Tort Liability ............................................................... 1043
Hammontree v. Jenner .............................................................................................. 1044
Christensen v. Swenson ............................................................................................ 1046
Roessler v. Novak ..................................................................................................... 1048
CHAPTER II. The Negligence Principle.................................................................... 1050
Brown v. Kendall ...................................................................................................... 1051
Adams v. Bullock...................................................................................................... 1052
United States v. Carroll Towing Co.......................................................................... 1053
Bethel v. New York City Transit Authority.............................................................. 1054
Baltimore and Ohio R.R. v. Goodman...................................................................... 1055
Pokora v. Wabash Ry. Co. ........................................................................................ 1056
Andrews v. United Airlines ...................................................................................... 1058
Trimarco v. Klein...................................................................................................... 1060
Martin v. Herzog....................................................................................................... 1061
Tedla v. Ellman......................................................................................................... 1061
Negri v. Stop and Shop, Inc. ..................................................................................... 1063
Gordon v. American Museum of Natural History .................................................... 1064
Byrne v. Boadle ........................................................................................................ 1065
McDougald v. Perry.................................................................................................. 1066
Ybarra v. Spangard ................................................................................................... 1067
Sheeley v. Memorial Hospital................................................................................... 1069
States v. Lourdes Hosp. ............................................................................................ 1071
Matthies v. Mastromonaco........................................................................................ 1072
CHAPTER III. The Duty Requirement: Physical Injuries......................................... 1074
Harper v. Herman...................................................................................................... 1075
Farwell v. Keaton...................................................................................................... 1076
18
Prosser v. Keeton
Randi W. v. Muroc Joint Unified School District .................................................... 1077
Tarasoff v. Regents of University of California ....................................................... 1079
Uhr v. East Greenbush Central School District ........................................................ 1082
Strauss v. Belle Realty Co. ....................................................................................... 1084
Reynolds v. Hicks ..................................................................................................... 1085
Vince v. Wilson ........................................................................................................ 1086
Carter v. Kinney........................................................................................................ 1087
Heins v. Webster County .......................................................................................... 1088
Posecai v. Wal-Mart Stores....................................................................................... 1090
Broadbent v. Broadbent ............................................................................................ 1092
Riss v. New York...................................................................................................... 1093
Lauer v. City of New York ....................................................................................... 1094
Friedman v. State of New York ................................................................................ 1096
Cope v. Scott............................................................................................................. 1098
CHAPTER IV. The Duty Requirement: Nonphysical Harm..................................... 1100
Falzone v. Busch....................................................................................................... 1101
Metro-North Commuter Railroad Company v. Buckley .......................................... 1102
Gammon v. Osteopathic Hospital of Maine, Inc. ..................................................... 1104
Portee v. Jaffee.......................................................................................................... 1105
Johnson v. Jamaica Hospital ..................................................................................... 1106
Nycal Corporation v. KPMG Peat Marwick LLP..................................................... 1107
532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. ...................... 1109
Emerson v. Magendantz............................................................................................ 1111
CHAPTER V. Causation ............................................................................................ 1113
Stubbs v. City of Rochester ...................................................................................... 1114
Zuchowicz v. United States ...................................................................................... 1115
Alberts v. Schultz...................................................................................................... 1117
Summers v. Tice ....................................................................................................... 1119
Hymowitz v. Eli Lilly & Co. .................................................................................... 1121
Benn v. Thomas ........................................................................................................ 1123
In re an Arbitration Between Polemis and Another and Furness, Withy & Co., Ltd.
................................................................................................................................... 1124
Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. (Wagon
Mound (No. 1)) ......................................................................................................... 1125
Doe v. Manheimer .................................................................................................... 1127
Palsgraf v. Long Island R.R...................................................................................... 1129
CHAPTER VI. Defenses ............................................................................................ 1131
Fritts v. McKinne ...................................................................................................... 1132
Dalury v. S-K-I, Ltd.................................................................................................. 1134
Murphy v. Steeplechase Amusement Co. ................................................................. 1135
Davenport v. Cotton Hop Plantation Horizontal Property Regime .......................... 1137
Levandoski v. Cone .................................................................................................. 1138
Geier v. American Honda Motor Co......................................................................... 1139
CHAPTER VII. Strict Liability .................................................................................. 1141
Fletcher v. Rylands ................................................................................................... 1142
Rylands v. Fletcher ................................................................................................... 1144
19
Prosser v. Keeton
Sullivan v. Dunham .................................................................................................. 1145
Indiana Harbor Belt R.R. v. American Cyanamid Co. ............................................. 1146
CHAPTER VIII. Liability for Defective Products ..................................................... 1148
MacPherson V. Buick Motor Co. ............................................................................. 1149
Escola V. Coca Cola Bottling Co. of Fresno ............................................................ 1151
Soule v. General Motors Corporation....................................................................... 1153
Camacho v. Honda Motor. Co., Ltd.......................................................................... 1155
Hood v. Ryobi America Corp. .................................................................................. 1157
Edwards v. Basel Pharmaceuticals ........................................................................... 1158
Vassallo v. Baxter Healthcare Corp.......................................................................... 1159
General Motors Corporation v. Sanchez................................................................... 1161
Jones v. Ryobi, Ltd. .................................................................................................. 1162
Liriano v. Hobart Corp.............................................................................................. 1163
Royer v. Catholic Medical Center ............................................................................ 1165
East River Steamship Corp. v. Transamerica Delaval Inc........................................ 1166
CHAPTER IX. Trespass and Nuisance ...................................................................... 1168
Martin v. Reynolds Metals Co. ................................................................................. 1169
Boomer v. Atlantic Cement Co................................................................................. 1170
CHAPTER X. Damages and Insurance ...................................................................... 1172
Seffert v. Los Angeles Transit Lines ........................................................................ 1173
McDougald v. Garber ............................................................................................... 1174
Arambula v. Wells .................................................................................................... 1176
Taylor v. Superior Court ........................................................................................... 1177
State Farm Mutual Automobile Insurance Co. v. Campbell..................................... 1179
Frost v. Porter Leasing Corp..................................................................................... 1182
Lalomia v. Bankers & Shippers Insurance Co.......................................................... 1184
Pavia v. State Farm Mutual Automobile Insurance Co. ........................................... 1185
CHAPTER XII. Intentional Harm .............................................................................. 1187
Garratt v. Dailey........................................................................................................ 1188
Picard v. Barry Pontiac-Buick, Inc. .......................................................................... 1190
Wishnatsky v. Huey .................................................................................................. 1192
Lopez v. Winchell’s Donut House............................................................................ 1193
Womack v. Eldridge ................................................................................................. 1194
McDermott v. Reynolds............................................................................................ 1196
Hustler Magazine v. Falwell ..................................................................................... 1197
Hart v. Geysel ........................................................................................................... 1198
Courvoisier v. Raymond ........................................................................................... 1199
Katko v. Briney......................................................................................................... 1201
Vincent v. Lake Erie Transportation Co. .................................................................. 1203
Wilson v. Layne ........................................................................................................ 1205
CHAPTER XIII. Defamation...................................................................................... 1207
Romaine v. Kallinger ................................................................................................ 1208
Matherson v. Marchello ............................................................................................ 1209
Matherson v. Marchello ............................................................................................ 1210
Liberman v. Gelstein................................................................................................. 1211
Liberman v. Gelstein................................................................................................. 1213
20
Prosser v. Keeton
Medico v. Time, Inc.................................................................................................. 1214
Burnett v. National Enquirer, Inc.............................................................................. 1216
Carafano v. Metrosplash.Com, Inc. .......................................................................... 1218
New York Times v. Sullivan .................................................................................... 1220
Gertz v. Robert Welch Inc. ....................................................................................... 1223
Wells v. Liddy........................................................................................................... 1226
Milkovich v. Lorain Journal Co................................................................................ 1228
Flamm v. American Association of University Women........................................... 1229
Khawar v. Globe International, Inc........................................................................... 1231
CHAPTER XIV. Protecting Privacy........................................................................... 1233
Haynes v. Alfred A. Knopf, Inc................................................................................ 1234
The Florida Star v. B.J.F........................................................................................... 1236
Humphers v. First Interstate Bank of Oregon........................................................... 1238
Cantrell v. Forest City Publishing Co. ...................................................................... 1240
Nader v. General Motors Corp.................................................................................. 1241
Galella v. Onassis...................................................................................................... 1243
Desnick v. American Broadcasting Co., Inc............................................................. 1244
Shulman v. Group W Productions, Inc. .................................................................... 1246
Bartnicki v. Vopper................................................................................................... 1248
Zacchini v. Scripps-Howard Broadcasting Co.......................................................... 1250
Winter v. DC Comics................................................................................................ 1251
CHAPTER XV. Intentional Economic Harm............................................................. 1252
Ollerman v. O'Rourke Co. ........................................................................................ 1253
Imperial Ice Co. v. Rossier ....................................................................................... 1255
Della Penna v. Toyota Motor Sales, U.S.A., Inc. ..................................................... 1256
All-Tech Telecom, Inc. v. Amway Corp. ................................................................. 1258
21
CHAPTER I.
Tort Law: Aims, Approaches, And Processes
22
Prosser v. Keeton
Prosser v. Keeton
Citation. 143 Unrep. Case 1113.
Brief Fact Summary. Prosser (Plaintiff) brought an action against Keeton (Defendant)
in connection with his stolen watch. The trial judge held that Defendant, having obtained
the watch in good faith, nevertheless was liable for conversion and ruled that Defendant
had to either return the watch or pay Plaintiff the fair market value of the watch.
Synopsis of Rule of Law. The purchase of stolen property, even where the buyer was
acting in good faith and was unaware the seller did not have valid title, constitutes
conversion by both the seller and innocent buyer.
Facts. Plaintiff brought an action against Defendant in connection with his stolen watch.
The trial judge held that Defendant, having obtained the watch in good faith, nevertheless
was liable for conversion and ruled that Defendant had to either return the watch or pay
Plaintiff fair market value.
Issue. Is a purchaser liable for conversion where he acts in good faith and is not aware
that the seller does not possess title to the merchandise in question?
Held. Yes. The court stated that a thief, not having valid title to the goods in his
possession, cannot lawfully transfer such goods to a buyer. The transfer of good thus
constitutes unlawful conversion and the buyer, even when acting in good faith is liable.
Discussion. The Restatement of Torts § 222A defines conversion as "an intentional
exercise of dominion and control over a chattel, which so seriously interferes with the
right of another to control it that the actor may justly be required to pay the other the full
value of the chattel." Public policy dictates that, because the inherent difficulties in
requiring all purchasers to verify every transaction would cause complete inertia of the
market system. The law require one who is guilty of conversion, even when acting in
good faith, be held liable and thus required to either return the goods or pay the rightful
owner reasonable value.
23
Holden v. Wal-Mart Stores, Inc.
Holden v. Wal-Mart Stores, Inc.
Citation. 259 Neb. 78, *; 608 N.W.2d 187, 2000 Neb.
Brief Fact Summary. This is a slip and fall case where plaintiff appealed a Scotts Bluff
County District Court (Nebraska) decision awarding plaintiff damages in the amount of
$3,600. The jury found defendant to be 60 percent negligent and plaintiff 40 percent
negligent and awarded damages in the amount of $ 6,000.
Synopsis of Rule of Law. "An award of damages may be set aside as excessive or
inadequate when, and not unless, it is so excessive or inadequate as to be the result of
passion, prejudice, mistake, or some other means not apparent in the record. If an award
of damages shocks the conscience, it necessarily follows that the award was the result of
passion, prejudice, mistake, or some other means not apparent in the record."
Facts. Plaintiff fell after stepping in a hole in Wal-mart Store parking lot. At trial,
plaintiff offered evidence of other occasions where people fell due to the condition of the
pavement in other Wal-mart parking lots. Based on an analysis of probative value versus
potential for prejudice, the trial court excluded this evidence. Plaintiff appealed that
judgment, maintaining that the court erred in refusing to allow the evidence in question
and thus the amount of damages awarded was inadequate. The higher court affirmed the
original judgment, concluding that plaintiff failed to show how the other incidents were
sufficiently similar to her fall and that the damages awarded by jury were proper.
Plaintiff's putative evidence involved accidents occurring at different locations, under
disparate circumstances.
Issue. At issue is whether the damages awarded were excessive due to mistake by jury.
Held. A jury is entitled to determine what portion of a claimed injury was proximately
caused by the incident and what portion of the medical bills was reasonably required.
Thus, the lower court's ruling was affirmed.
Discussion. The computation of damages rests on the plaintiff's meeting the burden of
proof with respect to proximate cause and proportionality. Further, as the trier of fact a
jury may reach multiple conclusions with respect to damages, including lost wages or
earning capacity, medical and related expenses, and pain and suffering.
24
Estevez v. United States
Estevez v. United States
Citation. 72 F. Supp. 2d 205; 1999 U.S. Dist.
Brief Fact Summary. Both parties submitted evidence regarding possible damages after
the United States (Defendant) was found negligent under the Federal Tort Claims Act, 28
U.S.C.S. §§ 1346 (9b) and 2671-80, and liable for injuries sustained by Plaintiffs when
the vehicle in which they were riding collided with a postal truck.
Synopsis of Rule of Law. In actions brought under the Federal Tort Claims Act,
damages are determined in the same manner and to the same extent as a private
individual under like circumstances, but interest may not be awarded prior to judgment or
for punitive damages.
Facts. Several members of the Estevez family (Plaintiffs) were injured in a collision
with a postal truck for which Defendant was responsible. Having determined that the
car's driver was negligent, the court ruled that Plaintiffs were each entitled to recover for
past and future medical expenses, lost earnings, and pain and suffering. One Plaintiff's
award was reduced because of her failure to properly use her seatbelt-thus assigning to
her a proportional amount of liability. The awards based on future damages were further
discounted to their present day values. Defendant argued that failure to reduce the awards
for future lost earnings by accounting for future income taxes effectively resulted in a
punitive damages award. However, the court disagreed, finding that taxes were not
deductible under New York law.
Issue. Does the Federal Tort Claims Act authorize judgments (i.e., structuring the
judgment in a manner that considers income taxes and the time value of money) other
than lump sum damage awards?
Held. The court found in favor of Plaintiffs and awarded damages for future pain and
suffering, lost income, and medical expenses, discounted to their present day value.
However, the court found that the failure to deduct taxes from future lost earnings did not
constitute punitive damages under New York law.
Discussion. Calculating damages is an area that raises any number of difficulties,
primarily because losses cannot always be precisely quantified. Thus, a number of
jurisdictions have enacted legislation to address the issue. For example, as the court
explained in Estevez: "[s]imilar to California and Wisconsin, in 1986, the New York
legislature enacted CPLR Section 5041, extending the structured judgment requirement
to tort actions generally, including: personal injury, injury to property, and wrongful
death. Because the New York legislature, unlike that of Rhode Island, has enacted a law
requiring structured payouts when future damages exceed $ 250,000." The court then
noted, "This court has discretion to structure damage awards in this case, where future
damages for Joseph total $ 750,000. In addition, Joseph is five years old, and an annuity
is necessary to ensure that when he reaches the age of majority, Joseph will in fact
receive his due." In other instances, where there is more than one tortfeasor, such
25
Estevez v. United States
calculations become more complicated and several factors need to be taken into account,
including apportionment of blame and consideration of tax liability to name just two
disparate considerations.
26
CHAPTER III.
Establishing A Claim For Intentional Tort To
Person Or Property
27
Van Camp v. McAfoos
Van Camp v. McAfoos
Citation. 261 Iowa 1124, 156 N.W.2d 878.
Brief Fact Summary. Van Camp (Plaintiff) sued, alleging that Mark McAfoos
(Defendant), while riding his tricycle collided with Plaintiff causing injury to her achilles
tendon. The trial court sustained a motion to dismiss. Plaintiff appealed.
Synopsis of Rule of Law. Where an essential element of the cause of action is missing,
the question is not what may be shown under the pleading but whether a cause of action
has been pled.
Facts. Plaintiff alleged that three year-old Defendant was riding his tricycle on a
sidewalk, and without warning drove it into the rear of the Plaintiff injuring her Achilles
tendon. She contended that Defendants' behavior was the proximate cause of her injury,
which required surgery. The thrust of Plaintiff's claim, the court observed, was that she
was entitled to recovery regardless of the presence of fault or wrongdoing.
Issue. Did Plaintiff plead a cause of action?
Held. The decision of the trial court was upheld, the Supreme Court of Iowa maintained
that, while a child of "tender years: may be held liable in tort, the relevant precedents
have fault as an essential element." That element was absent in this case.
Discussion. McAfoos is illustrative of the factors to be examined with respect to
evaluating the bases or grounds for liability. In other areas of tort law, such as medical
malpractice, toxic torts, and product liability, the "net" may be considerably broader, not
requiring the intentionally wrongful or negligently wrongful behavior of the Defendant.
The court in McAfoos was not inclined to extend such liability to a child on a tricycle.
28
Snyder v. Turk
Snyder v. Turk
Citation. 90 Ohio App. 3d 18; 627 N.E.2d 1053; 1993 Ohio App.
Brief Fact Summary. Snyder, a nurse, (Plaintiff) brought an action against Turk, a
doctor, (Defendant) for intentional infliction of emotional distress, civil battery, and
slander. The trial court (Ohio) dismissed her complaint with prejudice and granted a
directed verdict. The Plaintiff sought review.
Synopsis of Rule of Law. 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 of the other or a
third person, or an imminent apprehension of such a contact, and (b) an offensive contact
with the person of the other directly or indirectly results.
Facts. The Defendant was performing an operation to remove a patient's gall bladder.
The Defendant became increasingly frustrated with the Plaintiff's performance, raising
his voice and castigating her for being incompetent. When Plaintiff handed Defendant the
incorrect surgical tool, he grabbed her by the shoulder and gown and pulled her face
toward the patient's open surgical wound. The Plaintiff did not suffer any physical injury.
She later filed an action against him for intentional infliction of emotional distress, civil
battery, and slander. The trial court granted the Defendant's Motion for a Directed
Verdict and dismissed the Plaintiff's complaint. The court reversed the order, holding that
the Defendant was not entitled to a directed verdict. The court held that reasonable minds
could have concluded that he was guilty of battery, and that he intended to commit an
offensive contact with the Plaintiff.
Issue. Could a reasonable jury conclude that there was intent to commit a battery?
Held. Yes. Since a reasonable mind could infer intent on the Defendant's part, the issue
was one of fact for a jury. The lower court thus erred in its directed verdict. The court
reversed and remanded the lower court's order.
Concurrence. The concurrence merely summarizes the majority's reasoning, stating: "I
believe the evidence in the record was sufficient for a reasonable juror to conclude that
the Defendant had committed a battery when he allegedly grabbed the Plaintiff and
brought her down to within twelve inches of the surgical wound."
Discussion. Snyder v. Turk draws the fine distinction between the intent to cause actual
harm and the intent to cause either harmful or offensive contact. The element of intent
becomes an issue for the trier of fact thus rendering a directed verdict improper.
29
Cohen v. Smith
Cohen v. Smith
Citation. 269 Ill. App. 3d 1087; 648 N.E.2d 329; 1995 Ill. App.
Brief Fact Summary. Patricia Cohen and her husband (Plaintiffs), filed suit against
Robert Smith, nurse, and St. Joseph's Memorial Hospital (Defendants) in the Circuit
Court of Jackson County (Illinois) after Smith observed and touched her naked body in
violation of her religious beliefs. The complaints alleged battery, intentional infliction of
emotional distress, and violation of the Right of Conscience Act, 745 Ill. Comp. Stat.
70/2 (1992). The court granted Defendants' Motions to Dismiss. Plaintiffs appealed.
Synopsis of Rule of Law. When considering a motion to dismiss, the court must view
all properly pleaded facts in the light most favorable to the plaintiff; a court may only
dismiss for failure to state a cause of action, based solely on the pleadings, only when it is
clear that the alleged set of facts cannot be proven.
Facts. Ms. Cohen was admitted to St. Joseph's Memorial Hospital (Hospital) to deliver
her baby. She was examined and informed of the necessity for a Caesarian Section
delivery. She and her husband told their doctor, who informed the hospital staff, that such
a procedure was in violation of their religious beliefs as it would require Ms. Cohen to be
seen naked by a male. Their doctor gave assurances that their beliefs would not be
violated. During the procedure Roger Smith, a male nurse, allegedly viewed and touched
Ms. Cohen's naked body. The Plaintiffs filed suit.
Issue. Is the conduct in question sufficiently harmful and offensive to rise to the level of
battery?
!
Was Plaintiffs informing their physician of their religious beliefs sufficient
notice to a degree that Defendants knew, or should have known, that the
conduct in question would violate Plaintiff's personal integrity, thus
forming a sufficient basis for claims of battery and/or intentional infliction
of emotional distress?
Held. The battery and the intentional infliction of emotional distress counts were
properly alleged, and thus the court erred in its dismissal of Plaintiffs' causes of action.
With regard to the Defendant's having sufficient notice, the court concluded that when
Ms.Cohen made her wishes known to the hospital, the latter implicitly agreed to provide
her with treatment within the restrictions placed by her religious beliefs. The decision
was reversed and the case remanded.
Discussion. As noted in Snyder v. Turk, "A person may be held liable for battery when
he or she intends to cause harmful or offensive contact and harmful or offensive contact
results." Further, courts have drawn fine distinctions between conduct that results in
bodily harm and conduct that violates a plaintiff's personal integrity. The court notes that
the "application of battery the remedy offensive and insulting conduct is deeply ingrained
in our legal history." Specifically with regard to religious beliefs and medical treatment,
30
Cohen v. Smith
the court observed that, while people in modern society generally accept the various
intrusions on one's privacy as a necessity, the determination of bodily integrity is
ultimately the purview of the person alleging improper contact. The court in Cohen v.
Smith concluded also: "The fact that the Plaintiffs hold deeply ingrained religious beliefs
which are not shared by the majority of society does not mean that those beliefs deserve
less protection than more mainstream religions." Finally, quoting Justice Cardozo, the
court observed: "Every human being of adult years and sound mind has the right to
determine what shall be done with his own body." Thus, when a physician violates a
patient's right of consent concerning medical procedures, that physician may be liable for
damages.
31
Leichtman v. WLW Jacor Communications
Leichtman v. WLW Jacor Communications
Citation. 92 Ohio App. 3d 232; 634 N.E.2d 697; 1994 Ohio App.
Brief Fact Summary. Leichtman (Plaintiff) brought an action against defendants, WLW
Jacor Communications, host, and smoker for battery, invasion of privacy, and a violation
of a Cincinnati, Ohio ordinance, alleging that a radio station co-host repeatedly blew
smoke in his face. The Hamilton County Court of Common Pleas (Ohio) dismissed his
complaint. Plaintiff appealed
Synopsis of Rule of Law. The blowing of smoke on one's person meets the
requirements of a cause of action for battery because, however trivial the incident, when
the elements of the cause of action are met (in this case battery, i.e., when the defendant
acts intending to cause an offensive or harmful contact and an offensive or harmful
contact actually results) the court must permit a cause of action.
Facts. The guest entered the radio studio to make a public radio appearance with the
host. At the host's urging, the smoker repeatedly blew cigar smoke in the guest's face.
The guest contended that his complaint was sufficient to sustain a claim of battery.
Issue. Does the blowing of smoke on one's person constitute battery?
!
Were the guest's claims invasion of his privacy and violation of a local
non-smoking regulation sufficient to withstand a motion to dismiss?
!
Does the doctrine of respondeat superior (an employer's being liable for
the actions of his or her employees) apply, i.e., was the employee was
acting within the scope of employment?
Held. The court held that no matter how trivial the incident, a battery was actionable,
even where damages would be nominal. The court held also that the invasion of his
privacy and violation of a local non-smoking regulation claims were not sufficient to
withstand a motion to dismiss. The court further held that there existed no basis under
common law for regulation creating rights for nonsmokers and that here was no implied
private remedy for violation of the non-smoking regulation because sanctions were
provided to enforce the regulation. The court held that the issue of liability pursuant to
respondeat superior (whether the employee was acting within the scope of employment)
was a question of fact. In sum: The court affirmed the dismissal of the invasion of
privacy and violation of a local smoking regulation claims but reversed the dismissal of
the battery claim. The case was thus remanded.
Discussion. Central to this case is the necessity of fulfilling the elements of battery and
the definition of its various components, i.e., what constitutes intentionality, and harmful
and offensive touching. First, an act may be deemed intentional where 1) the defendant
intends to cause the consequences of his acts; or 2) where there exists substantial
certainty that the tortuous conduct will result.
32
Leichtman v. WLW Jacor Communications
!
Regarding what may be deemed harmful and offensive, the court here
employed a rule from the Supreme Court, defining offensive contact as:
"Contact which is offensive to a reasonable sense of personal dignity."
The court identified tobacco smoke as "particulate matter," thus having the
requisite "physical properties capable of making contact."
!
The doctrine of respondeat superior falls under the rubric of vicarious
liability and will be discussed with greater detail at a later juncture.
Suffice it to say in this instance, at issue is whether the actions of an
employee were within the scope of employment, i.e., "to facilitate or
promote" the employer's business. The court here ruled that the conduct in
question did not fulfill such requirement and thus dismissed that portion of
the judgment.
33
Garratt v. Dailey
Garratt v. Dailey
Citation. 46 Wn.2d 197; 279 P.2d 1091; 1955 Wash.
Brief Fact Summary. Five year-old Brian Dailey (Defendant) visited Naomi Garrett
Plaintiff at her sister Ruth's home. The later contends that as she was about to sit on a
lawn chair, Dailey pulled it out from under her causing her injury. The Superior Court for
Pierce County (Washington) found in favor of defendant in an action for assault and
battery and Plaintiff appealed.
Synopsis of Rule of Law. Intentionality is central to the tort of battery, and while a
minor who has committed a tort with force is liable as any other would be, a plaintiff
must establish that the defendant committed his or her act for the purpose of causing the
harmful contact or with substantial certainty that such contact will result.
Facts. Plaintiff alleged that she came out into the backyard to talk with her sister and
that, when she was about to sit down in a wood and canvas lawn chair, five year-old
Dailey (Defendant) deliberately pulled the chair out from under her. The trial court
accepted found Defendant's version of the events that he was attempting to move the
chair toward Plaintiff to help her in sitting down in the chair. He maintained that, due to
his small size and lack of dexterity, he could not get the chair under Plaintiff in time to
keep her from falling. Plaintiff was injured in the fall. The trial court ruled for the
Defendant. On appeal, the Supreme Court of Washington remanded for a factual
determination of Defendant's intention.
Issue. In an action for battery, what constitutes willful and unlawful intent?
Held. The Supreme Court for Washington remanded for clarification, with instructions
to make definite findings on the issue of whether Defendant knew with substantial
certainty that Plaintiff would attempt to sit down where the chair had been. If so, the
court was to change the judgment.
Discussion. The concept of "intent" denotes a defendant's desires to cause the
consequences of his actions, or his belief (with substantial certainty) that the results will
follow. The distinction to be drawn is not merely whether the defendant intends to
commit the act in question, but whether he intends to cause the consequences of his act.
34
Hall v. McBryde by and through McBryde
Hall v. McBryde by and through McBryde
Citation. 919 P.2d 910 (Colo.App. 1996)
Brief Fact Summary. Plaintiff, Eric Hall, was shot by Defendant neighbor, Marcus
McBryde as Defendant shot towards a group of men outside his home.
Synopsis of Rule of Law. When a tortfeasor intends to harm a party or intends to put a
party in apprehension of harm, the intent will transfer to a third party that is actually
injured due to the conduct.
Facts. Plaintiff sued Defendant Marcus for battery and his parents for negligent
maintenance of a weapon and negligent supervision. During an exchange of gunfire
between Defendant Marcus and four other men, Plaintiff was shot in the abdomen.
Defendant Marcus found the loaded weapon under his parents bed. The mother never
knew of the weapon and the father did not recall telling Defendant Marcus of the weapon.
Defendant Marcus insists he was not shooting at a particular person but just wanted to
scare the other people.
Issue.
!
The first issue is whether the intent to put a party in apprehension of harm will
transfer to a third party.
!
The second issue is whether the parents of Defendant Marcus can be held
liable under negligent maintenance of a weapon or negligent supervision.
!
The claim of battery against Defendant Marcus will stand because by law
shooting at a vehicle would be considered an intent to at least cause
apprehension of harm, and the intent will transfer to a party that is actually
injured by the conduct.
!
The Defendant mother was not liable for the weapon because she was never
aware of the weapon. There was no evidence to disturb the lower court’s
finding that the father was not negligent in maintaining the weapon.
Additionally, there was no evidence to disturb the finding that the parents
were negligent in their supervision.
Held.
Discussion. Intent will transfer to a third party if they are injured while the tortfeasor is
trying to harm another party.
35
Polmatier v. Russ
Polmatier v. Russ
Citation. 206 Conn. 229; 537 A.2d 468; 1988 Conn.
Brief Fact Summary. In November, 1976, Norman Russ (Defendant) was charged with
murder in the shooting death of his father-in-law, Arthur Polmatier (Polmatier). Dorothy
B. Polmatier (Plaintiff) brought an action against Defendant to recover damages for the
wrongful death of her husband.
Synopsis of Rule of Law. The majority of American jurisdictions take the view that a
defendant's insanity is not alone an excuse from tort liability.
Facts. In November, 1976, Defendant, along with his 2-month-old daughter visited the
home of his father-in-law, Polmatier. Polmatier lived in East Windsor, Connecticut with
his wife, Plaintiff, and their son, eleven year-old Robert Polmatier. In the course of the
evening, Robert Polmatier heard a disturbance in the living room and upon investigation
discovered Defendant beating Polmatier with a beer bottle. The boy went to get help and
Defendant retrieved a 30-30-caliber rifle from the bedroom and shot Polmatier to death.
Subsequent to his being charged with murder, Defendant was examined by a psychiatrist
who concluded that the Defendant was legally insane at the time of the homicide. The
trial court concurred, and Defendant was found not guilty by reason of insanity.
Issue. Can a defendant who has been deemed mentally incompetent nevertheless be held
liable for their intentional torts?
Held. The court affirmed the trial court's judgment in favor of the executrix on her
wrongful death claim against the Defendant.
Discussion. Even though there are instances when the trier of fact may conclude that a
defendant did not form a rational choice to commit tortious conduct, he may nevertheless
be held liable for his actions. A rational choice is not a necessary element to forming the
requisite intent to violate the interest of another. In Polmatier, the court also relied on
public policy grounds to arrive at its decision. First, relying on reasoning taken from the
Supreme Court of Kansas, the court concluded: "where one of two innocent persons must
suffer a loss, it should be borne by the one who occasioned it." Second, the enforcement
of liability provides a degree of incentive for the relatives or caretakers of those with
mental illnesses to sufficiently restrain them where there exists the possibility of injuries
to third parties. Finally, a mechanism for assessing liability anticipates and precludes the
possibility that those committing tortious acts may feign mental illness in order to escape
liability.
36
White v. Muniz
White v. Muniz
Citation. 999 P.2d 814; 2000 Colo.
Brief Fact Summary. Shortly after having taken residence at Beatrice Hover Personal
Care Center, an adult assisted living facility, eighty-three year-old Helen Everly
(Defendant) struck Sherry Lynn Muniz (Plaintiff), a professional caregiver at the center.
Plaintiff subsequently brought suit against Barbara White, Everly's granddaughter, and
Everly (Defendants). The jury found in Defendants' favor having concluded that Everly
lacked the requisite intent to sustain a cause of action. This case is a challenge to the
decision of the Court of Appeals of Colorado, which determined that a mentally
incapacitated adult should be held liable for her intentional tort even if she was unable to
appreciate the wrongfulness of her actions.
Synopsis of Rule of Law. A jury, as trier of fact, may conclude that a mentally deficient
person is liable for tortious conduct; however, in so doing the jury must find that the actor
intended offensive or harmful consequences.
Facts. Everly, an elderly woman who was placed in a personal care center, began to
exhibit erratic behavior. She became easily agitated, and would occasionally act
aggressively toward others. An examination by a physician revealed that Everly was
suffering from Alzheimer's disease. In one instance, she struck Plaintiff in the jaw. In
Plaintiff's actions for assault and battery, the trial judge instructed the jury that Everly's
suffering from Alzheimer's did not prevent a finding that she acted intentionally, even if
her reasons or motive were irrational.
Issue. At issue, is whether an intentional tort requires some proof that the tortfeasor not
only intended to contact another person, but also intended that the contact be harmful or
offensive to the other person.
Held. The court reversed the judgment and remanded, having found that the jury
determined that alleged tortfeasor did not intend to cause offensive or harmful
consequences by her act.
Discussion. Intentional torts may be committed in one of two ways: 1) when the
defendant intends to cause the harm resulting from his or her actions; and 2) when the
defendant has substantial certainty that harm will result.
!
Mental illness is not a defense to an intentional tort, however it may, like
other mental states (such as infancy), be viewed as one factor in the
totality of circumstances upon which a jury relies to make its
determination. With respect to battery, an actor is generally subject to
liability when he or she acts intending to cause harmful or offensive
contact to another, or place the other in apprehension of such contact.
Further, such harmful or offensive contact must result. However, the actor
does not have to intend the harm that actually results. If, for example, a
37
White v. Muniz
blow to the victim was intended to simply bruise the victim but serious
trauma resulted, the actor would be held liable for any resulting injuries.
38
Cullison v. Medley
Cullison v. Medley
Citation. 570 N.E.2d 27 (Ind. 1991)
Brief Fact Summary. Plaintiff, Dan Cullison, approached one of the Defendants, Sandy
Medley, and invited her to his home. The armed Defendants came to Plaintiff’s home
and threatened and taunted him over his invitation to their daughter.
Synopsis of Rule of Law. Indiana will now abandon the “impact rule” requiring physical
harm to accompany emotional harm and recognize as causes of action for emotional
distress.
Facts. Plaintiff exchanged pleasantries with 16-year old Sandy Medley, who was the
daughter and sister to the remaining defendants. Plaintiff invited Sandy back to his
home. She arrived that evening with two brothers and her parents, and they entered the
home uninvited. The father, Ernest Medley, carried a gun and threatened or reached for
the gun several times during their talk with Plaintiff. A short time after that evening,
Plaintiff saw Ernest again at a restaurant wherein Ernest threatened him with his gun
again. Plaintiff alleged that he suffered emotional distress severe enough to require
therapy, and his job suffered as a consequence of the medication he had to take.
Issue. The issue is whether the “impact rule” prevents Plaintiff from recovering damages
for emotional distress where it was not accompanied by physical harm.
Held. The Supreme Court of Indiana abandoned the “impact rule” as outdated, and
subsequently allowed claims for emotional damage. Therefore, the court reversed the
dismissal for Plaintiff’s trespass and assault claims because a reasonable jury could
determine the extent of the emotional damage suffered by Plaintiff. The court did not
allow a cause of action for invasion of privacy because Plaintiff already presented a claim
for trespass. Also, the court did not allow a cause of action for the intentional infliction
of emotional distress because there was no credible evidence that Defendants intended to
cause the harm.
Discussion. The court adopted abandoned the former line of thinking as it pertained to
emotional injuries. They abandoned the impact rule, and they accepted causes of action
for intentional infliction of emotional distress. The court cited the advances in
calculating damages for emotional distress as the primary reason for overturning prior
law.
39
Koffman v. Garnett
Koffman v. Garnett
Citation. 265 Va. 12 (Va. 2003)
Brief Fact Summary. Plaintiffs, Richard and Rebecca Koffman on behalf of their son
Andrew Koffman, brought suit for gross negligence, assault and battery against
Defendant coach, James Garnett. Defendant injured Andrew during football practice.
Synopsis of Rule of Law. A participant of an inherently dangerous activity such as
football does not consent to conduct that is unanticipated and more dangerous than the
scope of the consented activity.
Facts. Andrew Koffman was a 13-year old third-string defensive player on a football
team that Defendant coached. After losing the first game of the season, Defendant told
the team that their tackling skills were sub-par, and Defendant demonstrated proper
tackling using Andrew as the recipient of his tackle. Andrew’s arm was broken during
the tackle. Plaintiffs brought suit against Defendant for gross negligence, assault and
battery. Defendant claimed sovereign immunity for simple negligence as a school
employee. The trial court dismissed the causes of action because there were no facts to
establish gross negligence or assault and battery, reasoning that football is inherently
dangerous.
Issue. The issue is whether the facts alleged by Plaintiffs are sufficient to bring causes of
action for gross negligence, assault and battery.
Held. The facts as presented by Plaintiffs would establish causes of action for gross
negligence, assault and battery. Defendant was larger than Plaintiffs’ son and should
have known that the size difference may be more dangerous than normal contact between
boys of the same size. Additionally, Plaintiffs’ son was not aware of any contact between
Defendant and the players prior to this incident. Defendant also gave no warning prior to
grabbing him and throwing him to the ground. The conduct was outside the scope of any
conduct that Plaintiffs’ son consented to when joining football. The conduct was not
assault however because there was never any apprehension on behalf of the son. Because
the conduct reached the level of gross negligence and battery, Defendant does not have
sovereign immunity. And because battery is an intentional tort, punitive damages are
available.
Dissent. The dissent agrees with the gross negligence and assault characterizations but
believes the conduct was within the realm of what Plaintiffs’ son consented to, and
therefore a charge of battery should not stand.
Discussion. Consent to an inherently dangerous activity raises the bar for conduct against
the consenting person during the activity. But the consent should not be read as broadly
as to consent to conduct that could be considered gross negligence or battery.
40
McCann v. Wal-Mart Stores, Inc.
McCann v. Wal-Mart Stores, Inc.
Citation. 210 F.3d 51; 2000 U.S. App.
Brief Fact Summary. In a false imprisonment case, Debra McCann (Plaintiff)
contended that Wal-Mart Stores, Inc.'s (Defendant) employees stopped the McCanns as
they were leaving the store, claiming that Plaintiff's children had been previously caught
shoplifting, and could not re-enter the store. The employees detained Plaintiffs until a
security officer determined that the children were not the children who had been caught
previously.
Synopsis of Rule of Law. False imprisonment occurs when a person confines another
intentionally without lawful privilege and against his consent within a limited area for
any appreciable time, however short.
Facts. This case involves a claim for false imprisonment. In December, 1996, Ms.
McCann and two of her children were shopping at the Maine Wal-Mart store. After
approximately an hour and a half, the McCanns went to a register and paid for their
purchases. As the McCanns were leaving the store, two Wal-Mart employees, stepped out
in front of the McCanns' shopping cart, blocking their path to the exit. The employees
told Plaintiff that the children were not allowed in the store because they had been caught
stealing on a prior occasion. Defendant's employees had said they were calling the police,
but actually called a store security officer to identify the earlier shoplifter. Eventually, the
security officer, Rhonda Bickmore (Bickmore), arrived at the store and informed the
employees that the McCanns were not the family whose son had been caught shoplifting.
The employees acknowledged their mistake to the McCanns, and they left the store.
Issue. Did the conduct of Defendant's employees constitute the tort of false
imprisonment?
Held. The court affirmed the lower court's decision, noting that Plaintiffs adequately
proved the elements of false imprisonment. The court ruled, however, that Defendant's
refusal to allow the 12-year old boy, to use the restroom was not sufficiently outrageous
to warrant the imposing of punitive damages.
Discussion. In false imprisonment, the defendant unlawfully acts to intentionally cause
confinement or restraint of the victim within a bounded area. Accidental confinement is
not included and must be addressed under negligence or strict liability. [See Restatement
§§ 35-45A.] The transferred intent doctrine is applicable.
!
The victim must be confined in such a manner as to preclude his or her
escape. The bounded area can be, however, a large area, even an entire
city. The confinement may be accomplished by (1) physical barriers; (2)
force or threat of immediate force against the victim, the victim's family or
others in her immediate presence, or the victim's property; (3) omission
41
McCann v. Wal-Mart Stores, Inc.
where the defendant has a legal duty to act; or (4) improper assertion of
legal authority.
42
Brown v. Muhlenberg Township
Brown v. Muhlenberg Township
Citation. 269 F.3d 205 (3rd Cir. 2001)
Brief Fact Summary. A police officer shot the dog of the Plaintiffs, Kim and David
Brown. Kim Brown saw the shooting and yelled for the officer to stop, and after
hesitating a moment, the officer shot the dog.
Synopsis of Rule of Law. An officer will not be granted qualified immunity if a
reasonable officer would know that the conduct at issue was unlawful.
Facts. Plaintiffs filed suit against Defendant officer, Robet Eberly, as well as the
township of Muhlenberg and the former and current chiefs of police, for violating their
civil rights and for the state claim of intentional infliction of emotional distress. Plaintiffs
were in the process of moving from their home when their dog left their yard and entered
an adjacent vacant lot. A witness saw Eberly exit his patrol car, attempt to call the dog
over, and then proceed to walk toward the dog. According to the witness, the dog did not
act in an aggressive manner, but Eberly pulled his gun and shot five times. While the gun
was drawn, Kim Brown shouted for the officer to stop, and she alleged that Eberly then
hesitated before finally shooting. The United States District Court for the Eastern District
of Pennsylvania granted summary judgment for Defendants.
Issue.
!
The first issue is whether any Defendants were responsible for any
constitutional violations.
!
The second issue is whether there is an available state claim for intentional
infliction of emotional distress.
!
The shooting of the dog, when viewing the facts in a light most reasonable to
Plaintiffs, could be considered an unreasonable seizure under the Fourth
Amendment to the United States Constitution. An officer in Eberly’s position
should have reasonably known that laws were clearly established that would
prohibit his conduct, and therefore Eberly is not entitled to qualified
immunity. The other defendants could not be held liable for Eberly’s conduct
because they did not authorize the conduct through formal policy or custom,
and they were not derelict in their supervision and training of Eberly.
Plaintiffs were not entitled to a predeprivation process under a Fourteenth
Amendment Due Process claim.
!
Pennsylvania does allow a claim for intentional infliction of emotional
distress, and Plaintiffs can bring this action against Eberly.
Held.
43
Brown v. Muhlenberg Township
Dissent. The dissent would grant summary for all Defendants, including Eberly. There
was no clearly established law that would prohibit Eberly’s conduct. When viewing the
facts in a light most favorable to Plaintiffs, the dissent still believes there is no cause of
action.
Discussion. Once the court established that there was a constitutional violation, their
argument turned to whether, if taking the Plaintiff’s version of events, Eberly could
reasonably believe his conduct was lawful. The majority’s description of the facts then
differed greatly from the dissent. Plaintiffs could not meet the additional burden of
proving that the municipality authorized the conduct.
44
CHAPTER IV.
Defenses To Intentional Torts-Privileges
45
Great Atlantic & Pacific Tea Co. v. Paul
Great Atlantic & Pacific Tea Co. v. Paul
Citation. 256 Md. 643; 261 A.2d 731; 1970 Md.
Brief Fact Summary. Paul (Appellee) claimed that a food store's employee falsely
accused him of shoplifting, searched him, and detained him unlawfully. In his action
against the food store for assault and battery, slander, and false imprisonment the shopper
recovered compensatory and punitive damages. On appeal, the court affirmed the
judgment.
Synopsis of Rule of Law. The necessary elements of a case for false imprisonment are a
deprivation of the liberty of another without his consent and without legal justification.
Facts. Appellee recovering from a recent heart attack, went shopping at a local grocery
store in December, 1967. He left his cart at the end of one aisle, selected an item, and
returned to the cart. An assistant manager of the store, believing that Appellee had
shoplifted an item, detained and searched him. No stolen item was recovered. There was
testimony that word of the incident spread throughout Appellee's neighborhood and,
Appellee having lived in the community approximately ten years, contended that the
incident aggravated his heart condition, causing him physical pain and suffering, as well
as personal humiliation. The jury awarded compensatory and punitive damages.
Issue. Should the court have applied the rule, expressed in Restatement (Second) of
Torts, Sec. 120, that a shopkeeper who believes a shopper has committed a theft or other
tortious act "is privileged, without arresting the other, to detain him on the premises for
the time necessary for a reasonable investigation of the facts"?
Held. The court affirmed the judgment below in favor of Appellee in his action against
the Great Atlantic & Pacific Tea Company (Appellant) for assault and battery, slander,
and false imprisonment. The court found that Appellant did not have probable cause to
detain the Appellee because there was no evidence that the Appellee manifested control
over the property with the intention to steal.
Discussion. The court in Great Atlantic stated concisely: "Arrest or detention without
legal authority, with or without probable cause, will render the arresting person liable for
such damages 'as the jury may consider actual compensation for the unlawful invasion of
his [the plaintiff's] rights and the injury to his person and feelings.'" Further, the court
noted that "In a self-service store we think no probable cause. . . for detention exists until
the suspected person actually attempts to leave without paying," and that "the existence
of probable cause is a question to be determined as a matter of law by the court upon a
given state of facts, but when the facts are disputed the question may properly be
submitted to the jury under adequate instructions."
46
Katko v. Briney
Katko v. Briney
Citation. 183 N.W.2d 657; 1971 Iowa Sup.
Brief Fact Summary. Marvin E. Katko (Plaintiff), filed an action for damages resulting
from serious injury caused by a shot from a 20-gauge spring shotgun. The shotgun was
set by Edward and Bertha Briney (Defendants), in a bedroom of an old farmhouse, which
had been uninhabited for several years.
Synopsis of Rule of Law. The value of human life and limb both to an individual and as
a matter of public policy outweighs the potential damage to property. Thus, while a
defendant may use reasonable force in defense of her property, he has no right to
willfully and intentionally injure a trespasser in a manner that may result in loss of life or
great bodily injury. The only exception is when the trespasser is committing a violent
felony with the potential of endangering human life.
Facts. Defendants inherited an unoccupied farmhouse and over the course of ten years
the house was subject to a series of break-ins. The property sustained considerable
damage and despite boarding up the windows and posting no trespass signs, the incidents
continued. Defendants then set up a shotgun trap, where the gun was secured to an iron
bed with its muzzle pointed at the door. A wire was fastened from trigger to doorknob,
pointed in such a manner as to wound an intruder's feet. When Plaintiff, having broken
and entered on at least one prior occasion entered, the gun went off, injuring Plaintiff's
right leg. A jury found for the Plaintiff, awarding both actual and punitive damages.
Defendants appealed.
Issue. Did Defendants employ a reasonable means of preventing the unlawful entry of
trespassers on their property?
Held. No. The Supreme Court of Iowa affirmed the judgment because the use of spring
guns to protect uninhabited property was not permissible.
Dissent. The dissent opined that the majority wrongfully assumed that by installing a
spring gun in the bedroom of their unoccupied house, the Defendants intended to shoot
any intruder who attempted to enter the room. The dissent frames the issue in the
following manner: there exist two definite issues of fact, i.e., did the Defendants intend to
shoot the invader, and if so, did they employ unnecessary and unreasonable force against
him? The dissent asserts that in its view there is no absolute liability for injury to a
criminal intruder by setting up such a device on his property unless done with an intent to
kill or seriously injure the intruder.
!
The dissent further objected to the awarding of punitive damages,
contending that such an award is "court-made law, not statutory law." In
sum, the dissent maintains that "under such circumstances as we have here
the issue as to whether the set was with an intent to seriously injure or kill
an intruder is a question of fact that should be left to the jury under proper
47
Katko v. Briney
instructions, and that the mere setting of such a device with a resultant
serious injury should not as a matter of law establish liability."
Discussion. The question presented in Katko centers around the determination of the
general privilege of an owner to defend property and what level of force is reasonable to
do so. The ruling in Katko is consistent with all other areas of tort law with regard to the
use of force, the standard being one of reasonableness. In short, an individual is permitted
to use a degree of force commensurate with the threat with which they are confronted.
Thus, as here, where the owner of the property in question is not faced with a threat of
death or grave bodily injury, that owner cannot do indirectly, by means of "a mechanical
device that which, were he present, he could not immediately do in person."
48
Brown v. Martinez
Brown v. Martinez
Citation. 68 N.M. 271; 361 P.2d 152; 1961 N.M.
Brief Fact Summary. Brown (Plaintiffs) brought an action for injuries sustained when
shot while stealing watermelons. The District Court for McKinley County (New Mexico)
ruled in favor of Martinez (Defendant), the property owner. Plaintiffs appealed.
Synopsis of Rule of Law. There is no privilege to use any force calculated to cause
death or serious bodily injury when only property is threatened.
Facts. The property owner shot and injured Plaintiff when he and several other boys had
trespassed onto the Defendant's land to steal watermelons. The Defendant testified that he
only intended to scare the boys when he fired the rifle. Upon firing the weapon, however,
he struck one of the fleeing boys in the back of his left leg causing considerable injury.
Issue. Was the use of a firearm to prevent trespass or theft a reasonable one?
Held. As there was no proof that Defendant was at any time in danger, the degree of
force he employed was unwarranted and unlawful. The case was remanded with
instructions to set aside the original dismissal and to determine appropriate damages.
Discussion. The central issue with regard to the use of force is always reasonableness,
which is usually a question reserved for a jury. Certain precepts are central, however, the
first being that the level of force employed must be appropriate to the circumstances. The
law has always placed greater value on human life and safety that on property. As
Professor Prosser has noted, a "person may use only the force reasonably necessary to
overcome resistance and expel the intruder, and if in the process his own safety is
threatened, he may defend himself."
49
Surocco v. Geary
Surocco v. Geary
Citation. 3 Cal. 69; 1853 Cal.
Brief Fact Summary. Alcalde of San Francisco (Defendant), in the midst of a massive
fire, destroyed Plaintiff's house in an effort to stave off the fire.
Synopsis of Rule of Law. A person who tears down or destroys the house of another, in
good faith, and under apparent necessity, during a deadly fire, in an effort to save the
adjacent buildings and to stop the fire's progress, cannot be held personally liable in an
action by the owner in connection with the destroyed property.
Facts. In the midst of a raging fire, Geary (Defendant), in his capacity of public official,
made the decision to destroy Plaintiff's building; it was subsequently blown up to stop the
progress of the fire. Plaintiffs brought an action against Defendant for the destruction of
Plaintiffs' house and store. The trial court awarded damages to Plaintiffs.
Issue. Can a person who, in good faith, destroys property out of public necessity in order
to prevent greater damage be held liable?
Held. The Supreme Court of California reversed the trial court's award of damages to
Plaintiffs, maintaining that the court clearly erred; a person who destroys the house of
another in good faith, and under apparent necessity, cannot be held personally liable.
Discussion. The central legal tenet embodied in Surocco is that the private rights of the
individual must yield to the considerations and the interests of society. The court notes
further "the right to destroy property, to prevent the spread of a conflagration, has been
traced to the highest law of necessity." In other words, what under normal circumstances
would be a tortious act may be justified in exigent circumstances such as a raging fire.
!
The court does take note of the role of the legislature with regard to issues
of public policy, i.e., who makes the determination as to which property
may properly be destroyed during an emergency. Lawmakers, the court
suggests, should make determinations as to the manner in which such
property may be destroyed, and the mode in which compensation should
be paid.
50
Wegner v. Milwaukee Mut. Ins. Co.
Wegner v. Milwaukee Mut. Ins. Co.
Citation. 479 N.W.2d 38; 1991 Minn.
Brief Fact Summary. The Court of Appeals of Minnesota affirmed a trial court's
granting of summary judgment to Milwaukee Mutual Insurance Company (Defendant) in
Harriet G. Wenger's (Plaintiff's) action for damages caused to her house when city police
flushed out a criminal suspect hiding in the house. The homeowner challenged the
judgment.
Synopsis of Rule of Law. In situations where an innocent third party's property is taken,
damaged or destroyed by the police in the course of apprehending a suspect, it is for the
municipality to compensate the innocent party for the resulting damages.
Facts. On August 27, 1986, Minneapolis police were staking out an address in Northeast
Minneapolis in the hopes of apprehending two suspected felons who were believed to be
coming to that address to sell stolen narcotics. The suspects arrived at the address with
the stolen narcotics. Before arrests could be made, however, the suspects spotted the
police and fled in their car at a high rate of speed with the police in pursuit. Eventually,
the suspects abandoned their vehicle, separated, and fled on foot. The police exchanged
gunfire with one suspect as he fled. This suspect later entered Plaintiff's house and hid in
the front closet. Plaintiff's granddaughter, who was living at the house, and her fiancé
then fled the premises and notified the police.
A SWAT Team was dispatched, and they fired the tear gas to every level of the house,
breaking virtually every window in the process. Additionally, the police cast three
concussion grenades into the house to confuse the suspect. The police then entered the
home and apprehended the suspect. The tear gas and flash-bang grenades caused
extensive damage to Plaintiff's house, and Plaintiff commenced an action against both the
City of Minneapolis and Milwaukee Mutual to recover damages. The City both brought
motions for summary judgment on all claims. The district court granted partial summary
judgment in favor of the City on the "taking" issue, holding that "Eminent domain is not
intended as a limitation on [the] police power."
Issue. At issue was whether the exercise of the city's admittedly legitimate police power
resulted in a "taking", and thus required compensation on the part of the city.
Held. When a homeowner's property is taken (in the legal sense), damaged or destroyed
by the police in the course of apprehending a suspect, the municipality is required to
compensate the innocent party for the resulting damages. Thus, the judgments of the
lower courts were reversed and the cause remanded for trial on the issue of damages.
Discussion. The Minnesota State Constitution essentially mirrors the federal rule:
"[p]rivate property shall not be taken, destroyed or damaged for public use without just
compensation, first paid or secured. This provision imposes a condition on the exercise of
the state's inherent supremacy over private property rights. This type of constitutional
51
Wegner v. Milwaukee Mut. Ins. Co.
inhibition is designed to bar the government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be borne by the public as a
whole." Further, as the court pointed out, "The policy considerations in this case center
around the basic notions of fairness and justice. At its most basic level, the issue is
whether it is fair to allocate the entire risk of loss to an innocent homeowner for the good
of the public." Both federal and state law is simple and explicit on this point: once it has
been determined that a "taking" has occurred, compensation is required by operation of
law.
52
Vincent v. Lake Erie Transportation Co.
Vincent v. Lake Erie Transportation Co.
Citation. 109 Minn. 456; 124 N.W. 221; 1910 Minn.
Brief Fact Summary. Plaintiffs sued for damage to their wharf that caused by
defendant's vessel, docked there during a storm. A jury awarded damages and Defendant
sought review.
Synopsis of Rule of Law. Where one reasonably believes his interests outweigh the loss
or harm another may incur, his conduct is privileged. That person will be held liable,
however, to the extent he or she causes damage to another's property or land.
Facts. Plaintiffs owned a wharf where ships docked to unload cargo. Defendant owned a
ship that docked at plaintiffs' wharf in foul weather. Defendant's ship damaged plaintiffs'
wharf during a storm. 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. Are plaintiff's entitled to compensation for damages even where Defendant acted
prudently and by necessity?
Held. Yes. Where those in charge of a sea vessel deliberately and by their direct efforts
hold that vessel in such a position that the damage to another's dock results, and, having
thus preserved the ship at the expense of the dock, her owners are responsible to the dock
owners to the extent of the injury inflicted.
Dissent. The dissent takes the view that the case is one of contract and not tort. In
entering into an agreement with the ship owner, plaintiff assumed the risks inherent in
such a venture. Further, the dissent asserts that the vessel's owner exercised due care thus
ameliorating further his liability.
Discussion. Vincent illustrates an instance where the defense of private necessity is
introduced and examined. Essentially, the defense holds that private necessity exists
when the individual appropriates or injures a private property interest to protect a private
interest valued greater than the appropriated or injured property. Nevertheless, courts
attempt to balance such necessity with the dictates of equitable relief. In other words,
private necessity is not a complete defense. A defendant is privileged to interfere with
another's property, but will be held liable for the damage. As the court in Vincent
analogized, "A starving man may, without moral guilt, take what is necessary to sustain
life; but it could hardly be said that the obligation would not be upon such person to pay
the value of the property so taken when he became able to do so. And so public necessity,
in times of war or peace, may require the taking of private property for public purposes;
but under our system of jurisprudence compensation must be made." Thus, the order of
the lower court awarding damages was upheld.
53
CHAPTER V.
The Prima Facie Case For Negligence
54
Stewart v. Motts
Stewart v. Motts
Citation. 539 Pa. 596; 654 A.2d 535; 1995 Pa.
Brief Fact Summary. John Stewart (Appellant) suffered burns after an accident in
Motts' (Appellee) auto body shop after the automobile on which they were jointly
working ignited. The Superior Court of Pennsylvania affirmed a judgment in favor of
Appellee in Appellant's negligence action seeking damages for personal injuries.
Appellant sought review.
Synopsis of Rule of Law. The standard of reasonable care applies to all negligence
actions, i.e., the reasonable person must exercise care in proportion to the danger
involved in his act, and that he or she must exercise such care not only for his own safety
and the protection of his property but also to avoid serious injury to others.
Facts. Plaintiff stopped at Defendant's auto repair shop to assist in repairing a car's fuel
tank. The tank was unattached, and Plaintiff suggested pouring gasoline into the
carburetor in an attempt to start the vehicle. The car backfired, and in the ensuing
explosion Plaintiff suffered severe burns. At trial, Plaintiff requested a jury instruction
directing the application of a standard of a "high degree" of care in instances of elevated
danger. The judge declined, the jury found for Defendant and Plaintiff appealed.
Issue. Does there exist a higher standard of "extraordinary care" for the use of dangerous
instrumentalities over and above the usual standard of "reasonable care" to be applied in
negligence actions?
Held. No. The court reaffirmed the principle that that there is only one standard, that of
"reasonable care" to be applied uniformly in negligence actions.
Discussion. In any action for negligence, a plaintiff must establish that four elements are
met: duty, breach, causation, and harm. The Defendant must owe a duty to plaintiff,
breach that duty and, as a result, the plaintiff must suffer harm. The defendant's actions
must be the proximate, or legal, cause of the injury suffered.
The standard of care is the level of conduct demanded of a person so as to avoid liability
for negligence. Failure to meet this standard is characterized as breach of duty.
As a general rule, adults must ordinarily act with reasonable care, i.e., as a reasonable
person would under like or similar circumstances. Children are expected to act with the
degree of reasonable care as would a child of similar age, intelligence and experience.
However, when a child is engaged in an adult activity, it is certain that the child is
expected to act as a reasonable adult engaged in the same activity.
Professionals (i.e., physicians, attorneys, etc.) are expected to exercise the degree of care
appropriate to the standards of other professionals in that, or similar, community.
55
Stewart v. Motts
The court in Stewart stated concisely: "[The law] recognizes only one standard of care in
negligence actions involving dangerous instrumentalities-the standard of reasonable care
under the circumstances. It is well established by its case law that the reasonable man
must exercise care in proportion to the danger involved in his act." Thus, the trial judge's
declining to instruct the jury to apply a separate standard was proper and the appellate
court accordingly affirmed the trial court's ruling.
56
Wilson v. Sibert
Wilson v. Sibert
Citation. 535 P.2d 1034 (Alas. 1975)
Brief Fact Summary. Defendant, E.H. Sibert, backed into the car of Plaintiff, Mary
Wilson, in order to avoid a car in front of him.
Synopsis of Rule of Law. An emergency situation can lower the standard of care that
would normally be applicable to a situation under normal circumstances.
Facts. Plaintiff was injured when Defendant backed his car into her car in a bank drivethru. Defendant did not look backward or sound his horn because he was reacting on
reflex in order to avoid a third car in front of him. Plaintiff moved for a directed verdict,
arguing that the conduct of Defendant demonstrated such a total lack of care that it
should be considered negligence per se. The trial court denied the motion and the jury
found for Defendant.
Issue. The issue is whether Defendant’s conduct constituted negligence per se.
Held. The Supreme Court of Alaska held that a Defendant’s conduct was a question of
fact because the factual circumstances could be reasonably interpreted to be justifiable.
The standard of care is determined by what a reasonable person would do under the same
circumstances. If the circumstances occur in an emergency situation, the emergency
aspect will not be divorced from the determination.
Dissent. The dissent agrees that the emergency doctrine should be applied, but the facts
of this case do not demonstrate reasonable care on behalf of Defendant.
Discussion. The emergency doctrine does not give immunity for negligent conduct, but
rather is an acknowledgement that conduct between a defendant to a plaintiff will not be
considered in a vacuum from outside factors that dramatically alter the normal set of
expectations.
57
Robinson v. Lindsay
Robinson v. Lindsay
Citation. 92 Wn.2d 410, 598 P.2d 392.
Brief Fact Summary. This was a personal injury action brought on behalf of Kelly
Robinson, a minor, involved in a snowmobile accident. The jury found in favor of Billy
Anderson (Defendant), also a minor, who was operating the vehicle at the time of the
accident. The trial court ordered a new trial, because there had been an improper
instruction. The court of appeals affirmed the trial court's judgment. Defendants
appealed.
Synopsis of Rule of Law. When the activity a child engages in is inherently dangerous,
as is the operation of powerful mechanized vehicles, the child should be held to an adult
standard of care.
Facts. Defendant was operating a snowmobile and was involved in an accident. Plaintiff
was injured as a result, and lost full use of her thumb.
Issue. Should a minor operating a snowmobile be held to an adult standard of care?
Held. Yes. The Supreme Court of Washington affirmed the lower courts' holdings,
stating that because Defendant had engaged in the inherently dangerous activity, the
operation of a snowmobile, he should have been held to an adult standard of care.
Discussion. With regard to minors and the duty of care, in most jurisdictions, children
are held to a standard that compares their conduct to other reasonable children of the
same age, experience, and intelligence under like circumstances. Such a standard allows
the jury to consider the child's particular qualities such as experience and intelligence.
When, as here, children are engaged in adult or inherently dangerous activities they are
held to the same standard as adults. As the court explained in Robinson, "[t]he care or
caution required is according to the capacity of the child, and this is to be determined
ordinarily by the age of the child. A child is held only to the exercise of such degree of
care and discretion as is reasonably to be expected from children of his age." As the court
concluded, "The operation of a snowmobile requires adult care and competence because
it is a powerful motorized vehicle."
58
Creasy v. Rusk
Creasy v. Rusk
Citation. 730 N.E.2d 659; 2000 Ind.
Brief Fact Summary. Carol Creasy (Plaintiff), a certified nursing assistant, sued Rusk
(Defendant), an Alzheimer's patient, for injuries she suffered when Defendant kicked her
while she was trying to put him to bed.
Synopsis of Rule of Law. A person with mental disabilities is generally held to the same
standard of care as that of a reasonable person under the same circumstances without
regard to the alleged tortfeasor's capacity to control or understand the consequences of his
or her actions. However, exceptions to this general rule that a person with mental
disabilities is generally held to the same standard of care as that of a reasonable person
under the same circumstances will arise when the factual circumstances negate the factors
supporting imposition of a duty, particularly with respect to the nature of the parties'
relationship and public policy considerations.
Facts. Plaintiff, a certified nursing assistant, sued Defendant, an Alzheimer's patient, for
injuries she suffered when he kicked her while she was trying to put him to bed. Plaintiff
filed a civil negligence suit against Defendant seeking monetary damages for the injuries
she suffered as a result of Defendant's conduct. Defendant moved for summary judgment,
which was granted by the trial court. Creasy appealed. The court of appeals reversed,
holding "that a person's mental capacity, whether that person is a child or an adult, must
be factored [into] the determination of whether a legal duty exists."
Issue. Is the general duty of care imposed upon adults with mental disabilities the same
as that for adults without mental disabilities?
!
Whether the circumstances of Defendant's case are such that the general
duty of care imposed upon adults with mental disabilities should be
imposed upon him?
Held. Judgment of the trial court was affirmed and summary judgment was granted in
favor of Defendant because the relationship between the parties and public policy
considerations were such that Defendant owed no duty of care to Plaintiff.
Dissent. Associate Justice Dickson of the Indiana high court filed both a dissent and a
concurrence. In the former, rejecting the majority's reasoning, the Associate Justice,
citing an Indiana precedent, rejected the notion that the Plaintiff had "impliedly assumed
the risk of injury in the primary sense, based upon (her) choice of occupation." Instead,
the dissent argued, such a standard would place at risk any number of individuals who by
dint of their professional status are placed in potentially volatile situations. He notes: "It
is not only unfair but also extremely unwise social policy to deprive, as a matter of law,
such professionals of the tort remedy to which other victims of negligence are entitled."
59
Creasy v. Rusk
Concurrence. Conversely, Associate Justice Dickson asserts that the majority opinion
smacks of inconsistency-and concurs in the majority's assertion that "a person with a
mental disability owes a duty of reasonable care."
Discussion. To establish a prima facie case for negligence, a plaintiff must, by a
preponderance of the evidence establish each of the following elements (that is, by more
than 50%): duty, standard of care, breach of duty, cause-in-fact, proximate cause (scope
of liability) and damages.
!
With regard to the threshold issue, the court in Rusk the court addresses
the duty of care owed by one with mental disabilities: "Mental disability
does not excuse a person from liability for conduct which does not
conform to the standard of a reasonable man under like circumstances."
Further, the court notes, historically," People with mental disabilities are
commonly held liable for their intentional and negligent torts. No
allowance is made for lack of intelligence, ignorance, excitability, or
proneness to accident." There are, however, exceptions "[A] person with
mental disabilities is generally held to the same standard of care as that of
a reasonable person under the same circumstances will arise where the
factual circumstances negate the factors supporting imposition of a duty,
particularly with respect to the nature of the parties' relationship and
public policy considerations. The court then provides a matrix for the
balancing of three factors to determine whether an individual owes a duty
to another: (1) the relationship between the parties; (2) the reasonable
foreseeability of harm to the person injured; and (3) public policy
concerns.
!
As pertaining to this plaintiff, and others similarly situated, the court
concluded, "Public safety officials and caregivers are specifically hired to
encounter and combat particular dangers, and by accepting such
employment assume the risks associated with their respective
occupations."
60
Roman v. Estate of Gobbo
Roman v. Estate of Gobbo
Citation. 99 Ohio St. 3d 260 (Ohio 2003)
Brief Fact Summary. Nino Gobbo had a heart attack while driving and struck into other
vehicles, causing various injuries to Plaintiffs, Walter Roman et al.
Synopsis of Rule of Law. A person who loses control through a sudden medical
emergency and injures another will not be held liable through the sudden medical
emergency doctrine.
Facts. Nino Gobbo struck several vehicles when he suffered a heart attack while driving.
Gobbo, his wife and two others were killed, and two others were injured. Gobbo had
prior heart problems, and prior to the accident he complained of circulation problems in
his legs. The injured plaintiffs and the estate of the two others that were killed brought a
suit against the estate of Nino Gobbo for the injuries they sustained. A jury found for
Defendant, and the Court of Appeals for Cuyahoga County affirmed.
Issue. The issue is whether Defendant can be held liable for damages resulting from
Nino Gobbo’s heart attack while driving.
Held. The Supreme Court of Ohio affirmed Lehman v. Haynam, (164 Ohio St. 595
(1956)) that followed the sudden medical emergency defense to negligence. Gobbo was
not held liable for injuries that he caused because his heart attack was unforeseeable.
Dissent. The dissent would modify the doctrine to allow plaintiffs to collect damages
when a defendant’s statutory violation was the proximate cause of the injuries.
Concurrence. The concurring opinion emphasizes the unfairness of the sudden medical
emergency doctrine, but believes that the solution should be found through legislation.
Discussion. Jurisdictions are not unanimous in applying the sudden medical emergency
doctrine since there is an element of unfairness on allocating the damages to either side.
61
Chaffin v. Brame
Chaffin v. Brame
Citation. 233 N.C. 377; 64 S.E.2d 276; 1951 N.C.
Brief Fact Summary. Brame (Defendant) parked his vehicle on a highway at night
without warning lights or signals. Chaffin (Plaintiff) collided with the truck, and the
driver filed an action for property damage. The trial court in Lincoln County (North
Carolina) entered the jury's verdict that the Plaintiff was damaged by the truck driver's
negligence and that the Plaintiff driver was not contributorily negligent. Defendant
appealed.
Synopsis of Rule of Law. A person is not bound to anticipate negligent acts or
omissions on the part of others; but in the absence of anything which gives or should give
notice to the contrary, he is entitled to assume and to act upon the assumption that every
other person will perform his duty and obey the law and that he will not be exposed to
danger which can come to him only from the violation of duty or law by such other
person.
Facts. Defendant conceded negligence in parking his truck on the traveled portion of the
highway at night without displaying lights or warning signals. He asserted, however, that
the driver of the other vehicle was guilty of contributory negligence as a matter of law
because he did not control his car sufficiently in order to stop within the range of the
Plaintiff's driver's lights.
Issue. Was Plaintiff guilty of contributory negligence in his failure to avert collision with
the parked vehicle?
Held. The court ruled that Plaintiff had no reason to anticipate that the Defendant's truck
had been left standing on the traveled portion of the highway ahead of him without lights
or warning signals. He did everything possible to avert the collision as soon as the truck
became visible, and thus Plaintiff was not guilty of contributory negligence as a matter of
law.
Discussion. According to the Restatement Section 463, contributory negligence is
"conduct on the part of the plaintiff which falls below the standard of conduct to which
he should conform for his own protection, and which is a legally contributing cause . . . in
bringing about the plaintiff's harm." Thus, in some instances, assignment of liability is
possible when it has been determined as a matter of law that the Plaintiff was
contributorily negligent in the damages resulting from the incidents at issue. Contributory
negligence is a complete defense to negligence except in those jurisdictions that adhere to
comparative negligence jurisprudence.
62
Rains v. Bend of the River
Rains v. Bend of the River
Citation. 124 S.W. 3d 580 (Tenn.Ct.App.2003)
Brief Fact Summary. Aaron Rains, the son of Plaintiffs, Bobby and Sandra Rains,
purchased ammunition from Defendant, Bend of the River. Aaron Rains used the
ammunition in his father’s gun to commit suicide.
Synopsis of Rule of Law. Establishing negligence per se will not establish that the injury
resulting from the negligence was foreseeable, and an intervening cause could still cut off
the negligence per se from the injury.
Facts. Plaintiffs owned several guns that were kept locked in their house. Plaintiffs’
eighteen-year old son was able to get a key to unlock a handgun, and he proceeded to
local stores to purchase ammunition. Federal law 18 U.S.C. § 922(b)(1) prohibits the sale
of ammunition to anyone under 21 years of age. After Plaintiffs’ son was unsuccessful at
the first store, he was able to purchase ammunition from Defendant store. The son
showed no signs that would indicate he was suicidal, to either the store clerk or to family
and friends. Shortly after the ammunition purchase, Plaintiffs’ son shot himself.
Plaintiffs brought a wrongful death suit against Defendant claiming that the violation of
federal law in the sale of ammunition to their son was negligence per se that led to his
death. The District Court denied Defendant’s summary judgment which argued that his
suicide was a superseding cause of his death, and there was no evidence that the suicide
should have been foreseeable.
Issue. The issue is whether Defendant’s violation of federal law was negligence per se
that led to the wrongful death of Plaintiffs’ son.
Held. The Court of Appeals of Tennessee, at Nashville, reversed the District Court and
held that the son’s suicide was an intervening cause of death that cut any liability by
Defendant for their sale of ammunition. The conduct of Plaintiffs’ son did not indicate
that he was suicidal, and therefore it was not foreseeable that his death would result from
Defendant’s negligence.
Discussion. Not only does a plaintiff have to prove there was an act of negligence on the
part of a defendant, they have to prove that the injuries sustained were directly the result
of the negligence.
63
Wright v. Brown
Wright v. Brown
Citation. 167 Conn. 464; 356 A.2d 176; 1975 Conn.
Brief Fact Summary. Wright (Plaintiff) commenced an action to recover damages for
personal injuries sustained when principal Defendant's dog bit him. Principal defendant
and co-defendants, a town and its dog warden, filed a demurrer to Plaintiff's counts for
negligence and nuisance, contending that the Superior Court in Hartford County
(Connecticut) sustained. Plaintiff sought review.
Synopsis of Rule of Law. When a statute is designed to protect persons against injury,
one who has, as a result of its violation, suffered such an injury as the statute was
intended to guard against, has a good ground of recovery.
Facts. Fourteen days prior to the incident at issue, the owner's dog attacked another
person, which resulted in its quarantine. However, prior to the expiration of the statutory
fourteen-day quarantine period, the dog warden released the animal. Plaintiff alleged that
the Defendants allowed the dog to roam freely, creating unreasonable danger in
contravention of the statute. The complaint also stated a cause of action for negligence,
alleging that the Defendants failed to comply with the standard of conduct required by the
local statute.
Issue. Was the statute sufficiently broad to encompass the general public welfare and
thus render Defendants liable for a negligence action?
Held. The court set aside the judgment and determined that the demurrer should have
been overruled as to the counts for nuisance. It concluded that the town was not immune,
because the duty to quarantine the dog was mandatory.
Discussion. With regard to the above cited scope of statutory protection, the court in
Wright provides a general guideline: "That principle of the law sets forth two conditions
which must coexist before statutory negligence can be actionable. First, the plaintiff must
be within the class of persons protected by the statute. Second, the injury must be of the
type which the statute was intended to prevent." The court took an expanded view toward
the statute in question, that it existed to protect the general public, and that the Plaintiff
fell under that wide umbrella of protection. Thus, the court set aside the judgment and
remanded with direction to overrule the demurrer to the last nuisance counts of plaintiff's
complaint.
64
Impson v. Structural Metals, Inc.
Impson v. Structural Metals, Inc.
Citation. 487 S.W.2d 694; 1972 Tex.
Brief Fact Summary. The original action in this case arose out of a highway accident
between a truck owned and operated by Structural Metals and Joe Polanco (Defendants)
respectively, and an automobile in which three people were killed, including Mrs.
Impson, and two others were injured (Plaintiffs). The trial judge ruled that Polanco was
negligent as a matter of law and entered judgment for the Plaintiffs. The appeals court
held that Defendant had submitted excuses sufficient excuses that the issue of negligence
should be brought before a jury. Plaintiffs appealed.
Synopsis of Rule of Law. Where a party violates a statute, he must present some legally
substantial excuse or justification.
Facts. Polanco's truck attempted to pass the car within a prohibited distance of a
highway intersection. The car turned left into the intersection and was struck by the
Polanco, who was attempting to pass the car in the left hand lane.
Issue. What excuses and/or justifications are legally acceptable in a negligence action?
Held. The court affirmed the trial court's ruling that there was no evidence offered of any
legally acceptable excuse or justification. The violation was, as a matter of law,
unexcused. Plaintiffs were thus entitled to a judgment.
Discussion. An excused violation of a legislative enactment is not negligence. Excusable
violations (not exclusive), fall into five categories, including, but not limited to: a) the
violation is reasonable because of the actor's incapacity; b) he neither knows nor should
know of the occasion for compliance; c) he is unable after reasonable diligence or care to
comply; d) he is confronted by an emergency not due to his own misconduct; and e)
compliance would involve a greater risk of harm to the actor or to others. Restatement of
Torts (Second) (1965).
65
CHAPTER VI.
Negligence: The Breach Or Negligence Element
Of The Negligence Case
66
Indiana Consol. Ins. Co. v. Mathew
Indiana Consol. Ins. Co. v. Mathew
Citation. 402 N.E.2d 1000; 1980 Ind. App.
Brief Fact Summary. This is an appeal from Indiana Consolidated Insurance
(Appellant) that claimed that Robert D. Mathew (Appellee) acted negligently and
contributed to the destruction, by fire, of his brother's garage when a riding lawnmower
ignited.
Synopsis of Rule of Law. The central concept illustrated by this case is the sudden
emergency doctrine which holds that when a person is confronted with an emergency not
of his or her own making, he is expected to act in the same manner as that of the
ordinary, prudent person and cannot be charged as negligent when acting in accordance
with his or her best judgment.
Facts. Appellee was attempting to start a riding lawnmower in his brother's garage when
the lawnmower caught fire. Appellee tried, unsuccessfully, to extinguish the flames. He
then ran to his home to call the fire department. He returned to discover the garage
completely engulfed. Indiana Consolidated Insurance sued Appellee, alleging that he
negligently breached the duty to exercise due care in starting the lawnmower and thus
was liable for the resulting damages.
Issue. Is a person considered to be negligent if he acts in his best judgment, and that
judgment is consistent with that of an ordinary prudent person?
Held. Appellee was not negligent as he exercised the judgment of an ordinary, prudent
person.
Discussion. A person is deemed negligent when his/her conduct results in an
unreasonable risk of harm. In assessing reasonableness, a court will consider a number of
factors, primarily how another, in the same circumstances, would likely act. This is
known as the reasonable person standard, i.e., the ordinary and prudent judgment a
reasonable person would exercise. Here, the question is how a reasonable person would
react when an emergency suddenly arises. A court will, as here, examine the person's
conduct leading up to the emergency. Here, the court found that Appellee exercised the
due care that an ordinary, prudent person would "under the same or similar
circumstances." The court held that he did, and upheld the lower court's ruling.
67
Stinnett v. Buchele
Stinnett v. Buchele
Citation. 598 S.W.2d 469; 1980 Ky. App.
Brief Fact Summary. This is an appeal from a farm employee, Stinnett (Appellant)
challenging a grant of summary judgment to his employer, Buchele (Appellee) in an
action by Appellant for injuries suffered when he fell off a barn, which was painting.
Appellant maintained that the injuries were sustained during the course and scope of
employment, the employer, Appellee, had a duty to provide a safe work environment, and
as a result, he was entitled to the recovery of damages.
Synopsis of Rule of Law. An employer cannot be required to guarantee an absolutely
safe place of employment. An employer is required to take reasonable and prudent steps
to ensure safety, and there is no responsibility for additional steps "where the employees'
means of knowledge of the dangers to be incurred is equal to that of the employer."
Facts. The farm employee, Appellant, was injured when he fell off a barn roof and
brought an action against the employer, Appellee, claiming negligence in the failure to
comply with safety regulations requiring the installation of safety nets for work in
elevated areas and failure to provide a safe place to work. The trial court granted
summary judgment to the Appellee, because it determined that the safety regulations did
not create an independent cause of action against an employer. Further, there was no
evidence that the Appellee had sufficient familiarity with the circumstances at the farm
location that he had a duty to the farm employee, Appellant, to discharge. Appellant
asserted that Appellee was required to provide a safe work place. The court affirmed the
grant of summary judgment, holding that under such circumstances, Appellee could not
be required to guarantee absolute safety. Finally, the court concluded, when the
employee's knowledge is greater than the employer's knowledge, the employer does not
have a duty to the employee.
Issue. To what degree is an employer required to provide a safe working environment?
Held. There was no showing of any negligence on the part of Appellee arising solely out
of the fact that he had asked Appellant to paint the barn roof.
Discussion. As the Stinnett court observes: "[t]he liability of the employer rests upon the
assumption that the employer has a better and more comprehensive knowledge than the
employees, and ceases to be applicable where the employees' means of knowledge of the
dangers to be incurred is equal to that of the employer." Further, while several federal
statutes provide for various forms of workers compensation, in certain instances
employees are excluded from such protection, and must seek remedies through tort
actions.
68
Bernier v. Boston Edison Co.
Bernier v. Boston Edison Co.
Citation. 380 Mass. 372; 403 N.E.2d 391; 1980 Mass.
Brief Fact Summary. This is an appeal of a United States District Court
(Massachusetts) judgment in favor of Bernier (Plaintiff) in consolidated actions for
injuries suffered when an automobile knocked over an electric pole and struck teenagers
as they walked down a sidewalk.
Synopsis of Rule of Law. A manufacturer is required to "anticipate the environment on
which its product will be used, and it must design against the reasonably foreseeable risk
attending the use in that setting."
Facts. After a collision in a suburban Massachusetts intersection, one Defendant,
motorist Alice Ramsdell (Defendant), became dazed and inadvertently allowed her foot
to slip from the brake to the gas pedal. She collided with another driver, John Boireau,
and then accelerated across the street and down a sidewalk, where she knocked down an
electric light pole owned by Boston Edison Company. (Defendant) The pole struck the
teenagers as they walked along the sidewalk. Both were injured and instituted actions
against both drivers, and Boston Edison Company (Defendants). The jury returned
verdicts against one driver and Boston Edison Company.
Issue. Is a manufacturer negligent if, in its product design, it fails to sufficiently
anticipate the various circumstances in which its product may not properly perform and
create unreasonable risk of injury?
Held. The court held that "[a]s designer or co-designer of the pole and in control of its
maintenance, Boston Edison Company must anticipate the environment in which its
product will be used, and it must design against the reasonably foreseeable risks attending
the product's use in that setting," and thus bore liability in connection with the design and
maintenance of the electric light pole.
Discussion. Foreseeability of risk lies at the heart of any negligence action focusing on
product liability. A manufacturer is assumed to possess expertise with respect to the
manner and circumstances in which its product will perform. Here, at issue is whether an
electric light pole can be designed in such a manner as to anticipate vehicular collision
and the likelihood of resulting injury. Courts expect a manufacturer to take into
consideration the totality of circumstances, i.e., that vehicular collisions are likely and
prudent precautions are expected to be taken, so as to minimize the risk of injury to
pedestrians. In essence, a manufacturer is expected to employ a design optimally suited to
avert such risk, and that such risk should be the primary consideration during the design
process.
69
United States v. Carroll Towing Co.
United States v. Carroll Towing Co.
Citation. 159 F.2d 169; 1947 U.S. App.
Brief Fact Summary. A district court held Appellant (Conners Co.) partly liable for
damage to a barge and for lost cargo by not having an attendant aboard the barge when it
broke free from a pier. Appellant sought review.
Synopsis of Rule of Law. There is no general rule to determine when the absence of an
attendant will make the owner of the barge liable for injuries to other vessels if she breaks
away from her moorings. If he is found to be liable for injuries to others, then he must
reduce his damages proportionately, if the injury is to his own barge. Vessels invariably
suffer accidents. The owner's duty, as in other similar situations, to prevent against
resulting injuries is a function of three variables: (1) The probability of the kind of
incident in question; (2) the gravity of the resulting injury; and (3) the burden of adequate
precautions.
Facts. Appellant owned a barge, which was chartered by a railroad company. The barge,
with a cargo of flour owned by the United States, was moored to the end of the pier.
Appellant chartered a tug company, Carroll Towing Co. (Appellee) to drill out one of the
barges. Appellee went aboard the barge and readjusted its mooring lines. The barge broke
free of the mooring lines due to this readjustment. The Barge hit a tanker, and the tanker's
propeller broke a hole in the barge. The barge careened, dumped her cargo, and sank. No
one was aboard at the time. Appellee argued that is someone was aboard the barge to
observe it leaking after it broke free, the cargo and the barge could have been saved.
Issue. At issue is whether the Appellants should be held partly liable for damage to the
barge and for the lost cargo by not having an attendant aboard the barge when it broke
free from the pier.
Held. Appellants held partly liable. The court applied the "burden was less than the
injury multiplied by the probability" formula and found that the burden of having an
attendant aboard the barge was less than the gravity of injury of a runaway barge
multiplied by the probability that the barge would break free if unattended.
Discussion. The Carroll case is noteworthy in that it utilizes a balancing test to
determine whether a breach of the duty of ordinary care occurred. Most courts employ
Judge Hand's formulation: a comparable risk-benefit model. The Hand formulation
provides that an actor is in breach if the burden of taking measures to avoid the harm
would be less than the multiple of the probability of the kind of incident in question times
the gravity of the harm should it occur, or B<PxL.
70
Santiago ex. rel. Martinez v. First Student, Inc.
Santiago ex. rel. Martinez v. First Student, Inc.
Citation. 839 A.2d 550 (R.I. 2004)
Brief Fact Summary. Plaintiff, eight-grader Alma Santiago, claimed that she was
injured when a bus owned by the Defendant, First Student, hit another car. Plaintiff
could produce no evidence toward the claim.
Synopsis of Rule of Law. A plaintiff will not be able to pursue a claim of negligence if
they can provide no other evidence other than an alleged injury while in the care of a
defendant.
Facts. Plaintiff alleged that she suffered an injury when her face hit against the seat in
front of her on Defendant’s bus when it hit a car. Plaintiff could not offer any details or
evidence to prove the bus was in an accident, much less prove that there was an accident.
Defendant was able to provide evidence that there was no reported accident by any party
or witnesses.
Issue. The issue is whether Plaintiff provided enough evidence to satisfy all elements of
a claim of negligence on behalf of Defendant.
Held. The Supreme Court of Rhode Island affirmed the summary judgment in favor of
Defendant. Plaintiff provided no evidence that a duty of care was breached by
Defendant.
Discussion. A plaintiff can not bring a claim based solely on an injury that happened
while in the care of a defendant. There needs to be some proof that a duty of care was
violated.
71
Upchurch v. Rotenberry
Upchurch v. Rotenberry
Citation. 761 So. 2d 199; 2000 Miss.
Brief Fact Summary. The Oktibbeha County Circuit Court (Mississippi) entered
judgment in favor of appellee Rotenberry in connection with a car accident in which
appellant's son died. Appellant, the decedent's mother challenged the judgment denying
her motion for judgment notwithstanding the verdict or for a new trial in her personal
injury action.
Synopsis of Rule of Law. The jury is the judge of the weight of the evidence and the
credibility of the witnesses. An appellate court will not intrude into the realm of the jury
by determining the credibility of a witness and making findings of fact. The jury is the
judge of the weight of the evidence and the credibility of the witnesses.
Facts. In October 1992 Teresa Rotenberry was driving a car in which Timothy Upchurch
was the sole passenger. Rotenberry lost control of the vehicle, veered off the road, and
struck a tree. Upchurch dies from resulting injuries. Rotenberry was the only witness. She
claimed that a large animal had darted in front of her car, causing her to lose control. A
jury concluded that Rotenberry's explanation was factual and thus found in defendant's
favor.
Issue. May an appellate court grant motion for judgment notwithstanding the verdict
when the issue is the determination of fact?
Held. The court held that a reasonable and fair-minded jury could reach different
conclusions of fact, and that it is the jury, not the court, which properly makes such
determinations.
Dissent. The dissent questioned the manner in which the majority framed the issue, i.e.,
if the matter of factual determination properly rests with a jury. Rather, the dissent
focused on the matter of culpability: "The question is, was there any negligence on her
part in the one-car crash? Since there was absolutely no negligence on the part of the
passenger, a finding of 1% negligence or more by Rotenberry would warrant recovery."
Thus, the dissent took the view that "[a] directed verdict should have been granted as to
liability and the jury should have only determined damages."
Discussion. In its opinion the Upchurch court provides a textbook explication of the
respective roles of the court and jury with respect to determination of fact: "The
resolution of disputed facts is a duty that devolves upon the jury sitting as finders of fact.
They are charged with listening to the witnesses, observing their demeanor, and coming
to their own conclusions of which evidence they find more credible. The system of
jurisprudence has determined that citizen jurors, employing their native intelligence and
collective life experiences, are best qualified to make those judgments. Absent some clear
indication that the jurors in a particular case somehow ignored that duty, neither the trial
72
Upchurch v. Rotenberry
court, nor an appellate court reviewing the record on appeal, are permitted to interfere in
the conclusions reached by these jurors."
73
Thoma v. Cracker Barrel Old Country Store
Thoma v. Cracker Barrel Old Country Store
Citation. 649 So. 2d 277.
Brief Fact Summary. In a slip and fall case, the Circuit Court for Leon County (Florida)
granted Cracker Barrell Restaurant (Appellee's) motion for summary judgment,
dismissing Deborah Thoma's (Appellant's) complaint. Appellant challenged the order.
Synopsis of Rule of Law. To recover for injuries incurred in a slip and fall accident,
plaintiff must show that the premises owner either created a dangerous condition or had
actual or constructive knowledge of a dangerous condition. Notice of a dangerous
condition may be established by circumstantial evidence, such as evidence leading to an
inference that a substance has been on the floor for a sufficient length of time such that in
the exercise of reasonable care the premises owner should have known the condition.
Facts. Appellant claimed to have suffered a back injury when she fell in a Cracker
Barrel Restaurant in September, 1990. After eating breakfast, Thoma was walking away
from her table when her left foot slid out from under her. She fell in the middle of a
common aisle, near the passage from the kitchen to the restaurant. When Thoma got up,
she noticed that area in which she fell was wet, covered in a small puddle of clear liquid.
She contends the liquid was what caused her fall. Thoma was in the restaurant about
thirty minutes prior to her accident, and during that time, she did not see anyone spill any
liquid on the floor where she fell. She alleged that Cracker Barrel was negligent in failing
to maintain the floor in that particular area of the restaurant.
Issue. Was summary judgment proper where, in viewing the evidence in a light most
favorable to the plaintiff, there existed a question as to whether employees exercised due
diligence in maintaining the safety of the area in question?
Held. No. Reversed and remanded. The court reversed the grant of summary judgment,
holding that it was for a jury to decide whether appellant could establish by a
preponderance of the evidence that Appellee created a dangerous condition in its
restaurant.
Discussion. To recover for negligence, a plaintiff must establish each of the following
elements by a preponderance of the evidence: duty, standard of care, breach of duty,
proximate cause, and damages. The standard of care in negligence law requires a
defendant to act as a reasonably prudent person would in the same or a similar situation.
If a defendant meets this standard, he is shielded from liability. Failure to act in such a
fashion constitutes unreasonable conduct and, thus, is a breach of duty. The reasonable
person standard is an objective one, comparing a defendant's conduct to that of a
reasonable person.
In Thoma, the court concluded that there existed enough evidence that a jury might infer
negligence, thus there existed an issue of material fact sufficient to preclude a grant of
summary judgment.
74
Wal-Mart Stores, Inc. v. Wright
Wal-Mart Stores, Inc. v. Wright
Citation. 774 N.E.2d 891 (Ind. 2002)
Brief Fact Summary. Plaintiff, Ruth Ann Wright, slipped on the outdoor floor of
Defendant, Wal-Mart Stores. Jury was instructed to review Defendant’s employee
manual to help determine the level of care Defendant owed to Plaintiff.
Synopsis of Rule of Law. The standard of ordinary care is an objective standard of what
a reasonably careful person would do under the same circumstances. The standard will
not change to a subjective standard if a defendant employer attempts to establish a higher
standard for its employees.
Facts. Plaintiff slipped and fell in the outdoor lawn and garden section of Defendant’s
store. The store manual instructed employees how to handle spills or wet spots on the
floor, and Plaintiff admitted the manual to question whether employees met the manual’s
standard of care. At the closing of arguments, the jury was given instructions to consider
the manual as evidence towards determining the level of care Defendant owed to
Plaintiff. The Indiana Court of Appeals affirmed that the instruction was acceptable
because the jury was not told they had to accept the manual’s standard but just to
consider it.
Issue. The issue is whether it was an abuse of discretion to instruct the jury to use
Defendant’s store manual to help determine the standard of care Defendant owed to
Plaintiff.
Held. The Supreme Court of Indiana held that the trial court’s instructions were
incorrect and were not harmless error. The jury should have considered an objective,
reasonable person standard that is independent from the standard set forth in Defendant
employer’s work rules.
Discussion. A defendant will not be held to a higher (or lower) legal standard of care
based on a standard of care they set for themselves.
75
The T. J. Hooper
The T. J. Hooper
Citation. 60 F.2d 737.
Brief Fact Summary. Defendant, owner of two barges and third-party defendant owner
of two tugs appealed an interlocutory decree from the District Court of the United States
for the Southern District of New York, which declared the tugs and the barges jointly and
severally liable to plaintiff cargo owners, because all of the vessels were unseaworthy.
Synopsis of Rule of Law. There are precautions so imperative that even their universal
disregard will not excuse their omission.
Facts. Plaintiffs sued Defendant, who is the owner of barges, which sank in a storm. The
latter then sued third-party defendant, who is the owner of tugs, which towed the barges.
The trial court found all of the vessels to be unseaworthy, and held each tug and barge
jointly and severally liable to Plaintiffs. Both Defendants appealed. The court affirmed,
holding that the barges were unseaworthy in fact, and that their owners did not take
reasonable precautions to make them seaworthy as required by its charter. The barges
could not withstand coastal storms, leaked badly under weather-related stress, and their
pumps were not properly inspected. The court also upheld the principal finding that the
tugs were unseaworthy, because they did not have radio sets with which they could
receive weather reports, even though such sets were not standard in the industry.
Issue. Did the fact that there was an industry custom that tugs did not carry radios relieve
Defendants of their responsibility to maintain radios?
Held. No. While certain courts had held that the industry standard constituted proper
diligence, courts have an obligation to set a standard consistent with prudence and proper
caution.
Discussion. Though the context is maritime law, and Judge Hand's standard of prudence
is set against the possible exculpatory weight of the standards of industry, at its core the
standard applied in The T. J. Hooper is really the most common standard of care in
negligence law: one that requires the Defendant to act as would a reasonably prudent
person in the same or similar circumstances. If the Defendant does so, she is protected
from negligence liability. Failure to do so constitutes unreasonable conduct and, hence,
breach of duty. This is an objective standard that compares the Defendant's conduct to the
external standard of a reasonable person. This decision expands on that standard by
applying it in the context of accepted practice.
76
Byrne v. Boadle
Byrne v. Boadle
Citation. 2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863).
Brief Fact Summary. Byrne (Plaintiff) testified that he was walking along Scotland
Road when he evidently lost consciousness. Witnesses testified that a barrel of flour fell
on him. Neither Plaintiff nor any of the witnesses testified as to anything done by Boadle
(Defendant) that could have led to the barrel falling.
Synopsis of Rule of Law. A plaintiff must persuade a jury that more likely than not the
harm-causing event does not occur in the absence of negligence. The plaintiff does not
have to eliminate all other possible causes for the harm, nor does the fact that the
defendant raises possible non-negligent causes for the harm defeat plaintiff's effort to
invoke res ipsa loquitur (Latin for "the thing speaks for itself). The key is that a
reasonable jury must be able to find that the likely cause was negligence.
Facts. Defendant's shop was adjacent to the road on which Plaintiff was walking, and the
barrel appeared to have fallen, or was dropped from the shop.
Issue. Was the mere fact of the incident occurring, i.e., the barrel having fallen from the
shop, sufficient to presume negligence?
Held. The court allowed the case to proceed because of the nature of the harm-causing
event and Defendant's relationship to it, i.e., as it was Defendant's responsibility to
control the contents of his warehouse, the accident itself is evidence of negligence.
Discussion. A plaintiff seeking to rely on res ipsa loquitur must connect the defendant to
the harm. Initially, courts interpreted the control element narrowly, requiring the plaintiff
to show that the defendant likely had "exclusive control" over the harm-causing
instrumentality. This element has been liberalized and it is now enough for a plaintiff to
get the issue to a jury on res ipsa loquitur if he can provide evidence showing that the
defendant probably was the responsible party even if the defendant did not have
exclusive control. Further, most jurisdictions no longer require the plaintiff to prove that
he did not contribute to his harm.
77
Giles v. City of New Haven
Giles v. City of New Haven
Citation. 228 Conn. 441; 636 A.2d 1335.
Brief Fact Summary. Plaintiff, the elevator operator filed a negligence action against
the elevator installer to recover injuries he sustained when the elevator fell. The trial
court granted a Motion for Summary Judgment and directed a verdict in favor of the
elevator installer. The appellate court (Connecticut) reversed and remanded the case for a
new trial. The elevator operator sought review.
Synopsis of Rule of Law. To avail herself of the inference afforded by the res ipsa
loquitur doctrine, a plaintiff must demonstrate that a defendant was responsible for the
specific instrumentality that caused the event.
Facts. The Plaintiff was injured when an elevator he was operating fell. The facts
indicated that the elevator installer installed the elevator sixty-one years prior to the
accident. The trial court directed a verdict in favor of the elevator installer. The appellate
court concluded that the Plaintiff had presented sufficient evidence to warrant
presentation of the question of negligence under the doctrine of res ipsa loquitur to the
jury.
Issue. Did the Appellate Court properly apply the doctrine of res ipsa loquitur?
Held. The court affirmed the order that reversed a directed verdict in favor of the
elevator installer and remanded the case for a new trial on the issue of whether the
elevator installer was liable under the theory of negligence for the injuries the Plaintiff
sustained when an elevator he was operating fell. With respect to the doctrine of res ipsa
loquitur (as clarified in the court's opinion), the Plaintiff was entitled to have a jury
consider her claim that the Defendant's negligence was the cause of her personal injuries.
Discussion. The Giles case further clarifies the doctrine of res ipsa loquitur, which, as
the court enunciated, "applies when three conditions are satisfied: the situation, condition,
or apparatus causing the injury must be such that in the ordinary course of events no
injury would result unless from a careless construction, inspection or user; both
inspection and user must have been at the time of the injury in the control of the party
charged with neglect; the injurious occurrence or condition must have happened
irrespective of any voluntary action at the time by the party injured. Whether the doctrine
applies in a given case is a question of law for the court." In essence, upon the showing
that the product or apparatus was one over which the defendant had complete control, and
that the accident resulting in injury was of such a nature that it ordinarily would not occur
in the absence of negligence, the doctrine of res ipsa loquitur permits the plaintiff to shift
to the defendant the burden of proof on the issue of negligence.
78
Warren v. Jeffries
Warren v. Jeffries
Citation. 263 N.C. 531; 139 S.E.2d 718.
Brief Fact Summary. Terry Lee Enoch (Enoch), a 6-year old child, was injured when a
wheel of Jeffries' (Defendant) automobile ran over his body. The child died from his
injuries. Warren (Plaintiff) brought an action to recover for the child's alleged wrongful
death. Plaintiff appealed a judgment of involuntary nonsuit entered at the close of
Plaintiff's evidence.
Synopsis of Rule of Law. The conditions traditionally required for the application of res
ipsa loquitur are: "an accident that normally does not happen without negligence;
exclusive control of the instrumentality by the defendant; and absence of voluntary action
or contribution by the plaintiff." In order for the Plaintiff to have the benefit of res ipsa
loquitur, she must convince the jury that each of these factors more likely than not exists.
Facts. Defendant's car was parked on an incline at Plaintiff's home. Defendant gave Ms.
Enoch, the child's mother, the keys to his car so that she could drive it to the store. The
mother was in the house, while five children, including Enoch, climbed into the rear of
the vehicle. No one touched any of the control mechanisms of the car. Enoch was the last
to enter and when he closed the door something clicked in the front and the car started
rolling backward in the direction of a large ditch. One of the older children opened the
door and told the others to jump out. When the decedent jumped out he fell, and the front
wheel ran over his chest.
Issue. Does the doctrine of res ipsa loquitur apply?
Held. No. No sufficient proof of negligence was offered. All indications were that this
was an accident.
Discussion. As noted in Gift v. Palmer, an analogous case, "A verdict cannot be
supported on the basis of mere speculation or conjecture. Proof of negligence may be
furnished by the circumstances themselves and it is not essential to have eyewitness
testimony, but when the circumstantial evidence is offered because direct proof is not
available it must provide as the only reasonable inference the conclusion that the accident
was caused by the negligence of the defendant."
79
Widmyer v. Southeast Skyways
Widmyer v. Southeast Skyways
Citation. 584 P.2d 1; 1978 Alas.
Brief Fact Summary. This case involved a wrongful death suit brought by the
representatives of passengers (Appellants) killed in a plane cash. The trial court (Alaska)
returned a verdict by jury in favor of Appellees, airline and pilot. Appellants sought
review.
Synopsis of Rule of Law. The doctrine of res ipsa loquitur, meaning "the thing or
transaction speaks for itself," permits a finding of negligence from the circumstances
surrounding the injury. It does not allow negligence to be established from the mere fact
of injury itself.
Facts. A Southeast aircraft crashed in the midst of a snow squall and no passengers
survived. An accident reconstruction expert testified that the crash was due to pilot error,
and that the pilot had been in violation of Federal Aviation Administration (FAA) rules.
The airline contended that the crash was due to foul weather. The jury returned a verdict
for the Appellees. At trial, the Appellants requested a jury instruction informing the jury
that they could draw an inference from the evidence that negligence was more likely than
not the cause of the accident. Instead, the judge instructed the jury that the mere
happening of an accident did not necessary warrant a finding of negligence.
Issue. Did the trial court err in its instruction regarding the particular duty of care of a
common carrier and the doctrine of res ipsa loquitur?
Held. Yes. The court did not find "that a complete factual explanation was offered" and
thus Appellants should be precluded from employing the res ipsa loquitur doctrine. The
court concluded that the trial court erred in failing to give the instruction on the duty of a
common carrier and on res ipsa loquitur.
Discussion. The doctrine of res ipsa loquitur concerns an important form of
circumstantial evidence. This may be used to establish a defendant's unreasonable
conduct. In most negligence cases, the plaintiff specifies what the defendant allegedly did
unreasonably. The doctrine is most critical in cases where the plaintiff is unable to make
specific allegations about what the defendant did wrong.
!
The court in Widmyer identifies the three conditional prerequisites to the
applicability of res ipsa loquitur: "Traditionally, the doctrine has been
applied when the following requirements are met: 1) the accident is one
which ordinarily does not occur in the absence of someone's negligence;
2) the agency or instrumentality is within the exclusive control of the
defendant; 3) the injurious condition or occurrence was not due to any
voluntary action or contribution on the part of the plaintiff." In sum, the
court states, "an accident that normally does not happen without
80
Widmyer v. Southeast Skyways
negligence; exclusive control of the instrumentality by the defendant; and
absence of voluntary action or contribution by the plaintiff."
!
The doctrine, the court noted, is fact based. So, with regard to the
possibility of Appellant's contributory negligence in instances where there
is a dearth of evidence, the court explained, "If the requirement of no
plaintiff contribution is strictly applied, no res ipsa loquitur instruction
could be given where the plaintiff lacks sufficient evidence." Thus, the
court concludes, "To require the plaintiff to show that a crash was not
caused by weather, as a prerequisite of the application of res ipsa loquitur,
presents the problems inherent in proving a negative." That being a logical
impossibility, the court concluded that the lower court was in error in its
failure to properly instruct the jury.
81
CHAPTER VII.
Harm And Causation In Fact
82
Preston v. Cestaro
Preston v. Cestaro
Citation. 2001 WL 254343 (Conn.Super. 2001)
Brief Fact Summary. Plaintiff, John Preston, was in a bus that was hit by the car of
Defendant, Thomas Cestaro. Defendant admits that he was negligently driving, but
Plaintiff did not suffer any damages due to Defendant’s conduct.
Synopsis of Rule of Law. An essential element for a negligence claim is that there is an
injury sustained by the plaintiff.
Facts. Defendant negligently backed into a bus carrying Plaintiff. Plaintiff brought a
suit of negligence, claiming an injury to a back. Defendant admitted to negligent driving
but would not admit that his car hitting a larger bus would inflict the supposed injury.
The trial court found no injury, reasoning that evidence pointed to a prior incident
causing the back injury.
Issue. The issue is whether, when there is no injury, Defendant is still liable for nominal
damages or whether there is no actionable claim.
Held. There is no actionable claim when there is no injury. There is little use in
overturning a decision to award nominal damages when there is no legitimate injury.
Discussion. The Court is re-establishing an essential element of negligence. Without
injury, there is not a substantial interference to the public at large that requires a courtordered remedy.
83
Salinetro v. Nystrom
Salinetro v. Nystrom
Citation. 341 So. 2d 1059 (1977).
Brief Fact Summary. The trial court (Florida) entered an adverse final judgment
pursuant to a directed verdict for Appellees in Anna Salinetro's (Appellant) action for
alleged medical malpractice. Appellants, patient and her husband, sought review.
Synopsis of Rule of Law. An element of a negligence prima facie case is cause in fact
or actual cause. The plaintiff must prove, not only that she suffered legally recognized
harm, but that the harm was in fact caused by the defendant. This is expressed as the
"but-for" rule: but-for defendant's conduct, the pedestrian would have avoided injury.
When this statement can be shown to be true, cause in fact or actual cause has been
proven.
Facts. Anna Salinetro sustained back injuries in an automobile accident and applied for
personal injury benefits from her insurer, State Farm Mutual Automobile Insurance
Company (State Farm). State Farm required Salinetro to submit to a medical examination
and on December 10 Dr. Nystrom of her lower back and abdominal area took x-rays. He
did not inquire as to whether she was pregnant. Salinetro did not know that she was
pregnant at the time of the x-ray; her doctor confirmed the pregnancy after multiple tests,
and she was advised to terminate pregnancy because the fetus had been exposed. She
underwent a therapeutic abortion and the pathology report stated the fetus was dead at the
time of the procedure. She filed suit for medical malpractice.
Issue. Did the trial court err in entering judgment for Appellee?
!
Was Appellee the cause in fact/actual cause of Appellant's injury?
Held. No. The appellate court affirmed the trial court's judgment. The appellate court
found that the trial court did not err in granting Appellee's Motion for Directed Verdict
since Appellants did not make a prima facie case for medical malpractice since, even if
Nystrom's failure to inquire as to whether Salinetro was pregnant at the time of her
examination, this failure was not the cause of her injury.
Discussion. Any claim for negligence requires plaintiff to establish the following
elements: duty, standard of care, breach of duty, cause-in-fact, proximate cause (scope of
liability) and damages. The Salinetro court focused, initially, on the issue of causation:
"Liability for negligence depends on a showing that the injury suffered by plaintiff was
caused by the alleged wrongful act or omission to act by the defendant. Merely to show a
connection between the negligence and the injury is sufficient to establish liability."
!
The court then shifted to the standard of care required of physicians. It
should be noted that, because of the specialized skill and training required
in fields such as medicine, law, science or economics, courts defer to the
expertise of the profession to determine the appropriate standard of care.
84
Salinetro v. Nystrom
With regard to doctors, the court explained: "A physician, whether he be a
general practitioner or specialist, is under a duty to use ordinary skills,
means and methods recognized as necessary and customarily followed in a
particular type of case according to the standard of those who are qualified
by training and experience to perform similar services in the community."
Continuing along similar lines, the court stated, "To determine what skills,
etc. are necessary and customarily followed in the community normally
requires expert testimony by those physicians who perform similar
services in the community." Thus, in determining that plaintiff had failed
to establish two necessary elements, the court concluded that the lower
court properly entered judgment on behalf of Nystrom.
85
Landers v. East Texas Salt Water Disposal Co.
Landers v. East Texas Salt Water Disposal Co.
Citation. 151 Tex. 251; 248 S.W.2d 731 (1952).
Brief Fact Summary. : Landers (Plaintiff), owner of a small lake, appealed the
dismissal of action as to damages. After East Texas Salt Water Disposal Company's
(Defendant) plea in abatement asserting a misjoinder of parties and of causes of action
had been sustained, the lake owner declined to replead so as to assert several liability
only against each defendant in separate suits. The Court of Civil Appeals for the Sixth
District (Texas) affirmed.
Synopsis of Rule of Law. This case overrules the holding in Sun Oil Co. v. Robicheaux
when it was held that a plaintiff could not proceed to judgment and satisfaction against
the wrongdoers separately because in such a suit he cannot discharge the burden of
proving with sufficient certainty the portion of the injury attributable to each defendant.
In this case, the court adopts a new rule which states that when (1) the tortious acts of two
or more wrongdoers join to produce an indivisible injury, that is, an injury which from its
nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all
of the wrongdoers will be held jointly and severally liable for the entire damages and (2)
the injured party may proceed to judgment against any one separately or against all in one
suit.
Facts. Plaintiff owned a small lake, which he had cleaned and stocked with fish at
considerable expense. He alleged that East Texas Salt Water Disposal Co. and Sun Oil
Co. (Defendants) both caused large quantities of salt water and also oil to flow into his
lake killing the fish. He alleged that both Defendants acted negligently.
Issue. Did the Plaintiff in his pleading allege facts, which, if established by evidence,
made the Defendants jointly and severally liable for Plaintiff's damages?
Held. Yes.
!
The judgments of both lower courts were reversed and the case was
remanded to the trial court for further proceedings not inconsistent with
the instant opinion.
!
Adopting a new rule, that when (1) the tortious acts of two or more
wrongdoers join to produce an indivisible injury, that is, an injury which
from its nature cannot be apportioned with reasonable certainty to the
individual wrongdoers, all of the wrongdoers will be held jointly and
severally liable for the entire damages and (2) the injured party may
proceed to judgment against any one separately or against all in one suit.
!
The court held that because there was no misjoinder as alleged, the
property owner was within his rights in declining to replead and in
86
Landers v. East Texas Salt Water Disposal Co.
declining to proceed through a futile and fruitless trial in order to test the
correctness of a court's ruling of misjoinder.
Discussion. The Plaintiffs' action seeking a joint and several judgment of damages and
injunctive relief was dismissed as to the damages feature by the trial court, when, after
Defendants' plea in abatement asserting a misjoinder of parties and of causes of action
had been sustained, he declined to replead so as to assert several liability only against
each of the Defendants in separate suits.
!
The lower court affirmed the trial court decision.
!
Overruling the holding in Sun Oil Co. v. Robicheaux, this court held that
the property owner was not required under the circumstances of this case
to replead and try a case wholly different from that asserted by him in
order to obtain appellate review of his right to pursue to trial the case
made by his pleadings. The allegations of the petition were sufficient to
assert a case of joint and several liability against the corporations and there
was no misjoinder of either parties or causes of action.
87
Anderson v. Minneapolis, S. P. & S. S. M. R. Co.
Anderson v. Minneapolis, S. P. & S. S. M. R. Co.
Citation. 146 Minn. 430; 179 N.W. 45 (1920).
Brief Fact Summary. Anderson (Plaintiff) property near Minneapolis, S.P. & S.S.M.R.
Company's (Defendant) railroad tracks. Plaintiff sued the railroad company and the
Director General of Railroads (Defendants) for damages resulting from a fire that was
allegedly caused by sparks from one of Defendant's locomotive engines that spread until
it reached Plaintiff's land, where it destroyed some of his property.
Synopsis of Rule of Law. In Anderson, the court approved a jury instruction that
allowed the jury to find actual causation if the Defendant's fire was a "material or
substantial element" in the harm done. When the "but-for" test seems to produce clearly
wrong results, as in the duplicative cause cases, the "substantial factor" test has been
widely accepted. If two or more causes concur to bring about an event, then the cause-infact is established by the "substantial factor" test. When either the "but-for" or
"substantial factor" test is satisfied, a party has established that the other party's conduct
was the cause in fact of an injury.
Facts. Plaintiff owned property near railroad company's tracks. Plaintiff sued Defendants
for damages resulting from a fire that was allegedly caused by sparks from one of
Defendant's locomotives that spread until it reached Plaintiff's land, where it destroyed
some of his property.
The fire started in a bog near Plaintiff's land and smoldered there for several months,
when it flared up and burned his property shortly before it was reached by one of the
great fires sweeping through the area that day.
The jury returned a verdict for Plaintiff.
The Supreme Court of Minnesota affirmed the judgment because the trial court did not
abuse its discretion in allowing Plaintiff to amend the complaint to conform to proof at
trial. Moreover, the trial judge's instructions to the jury in the absence of counsel were
correct statements of law, and the trial court was not obliged to notify counsel before
responding to the jury's question.
Issue. Did the trial court err when it instructed the jury to apply the rule in the Cook v.
M., St. P. & S.S.M. Ry. Co. case?
Held. No.
Discussion. If two or more causes concur to bring about an event, then the cause-in-fact
of an injury is established by the "substantial factor" test. The court applied the
"substantial factor" test imported from the rule in the Cook case, 98 Wis. 624, 74 N.W.
561, 40 L.R.A. 457, 68 Am. St. Rep. 830, which exempted Defendant from liability since
there were other fires sweeping east towards Plaintiff's property, and any one of those
fires could have been the actual cause of Plaintiff's loss. The narrow rule in this case
88
Anderson v. Minneapolis, S. P. & S. S. M. R. Co.
states that if a fire combines with another of no responsible origin, and after the union of
the two fires, they destroy the property, and either fire independently of the other would
have destroyed it, then, irrespective of whether the first fire was or was not a material
factor in the destruction of the property, there is no liability.
89
Dillon v. Twin State Gas & Elec. Co.
Dillon v. Twin State Gas & Elec. Co.
Citation. 85 N.H. 449; 163 A. 111 (1932).
Brief Fact Summary. In a negligence action arising from a minor's death by
electrocution after falling from a bridge and grabbing Twin State Gas & Electric
Company's (Defendant) live wires, Defendant appealed New Hampshire trial court's entry
of judgment for Henry Dillon (Plaintiff), administrator of decedent's estate.
Synopsis of Rule of Law. In any action for negligence, the plaintiff must establish that
(1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty;
and (3) the defendant's breach was the proximate cause of the plaintiff's injury. Liability
is the conclusion when there is a duty, breach, and causal connection between the conduct
of the defendant and the resulting injury to the plaintiff. The third element is frequently
referred to as "actual damages". The plaintiff, who proves that the defendant's conduct
was negligent but fails to show what actual damage resulted from it, will lose the case.
Facts. In reference to Defendant's wires, its foreman complained to the city about the
public bridge's use as a playground by trespassing boys. After falling from the bridge,
decedent minor was electrocuted upon grabbing Defendant's live wires.
Issue. Did the trial court err when it found Defendant liable for decedent's death, which
resulted from his contact with live wires?
Held. The Supreme Court of New Hampshire overruled Defendant's exception to trial
court's entry of judgment for Plaintiff, finding evidence sufficient to hold Defendant
liable for exposing decedent to dangerously charged wires because Defendant had a duty
to insulate wires where it was reasonable to anticipate known trespassers might come in
contact therewith.
Discussion. In a negligence action, Defendant appealed the trial court's entry of
judgment for Plaintiff.
The Supreme Court of New Hampshire overruled Defendant's exception, finding
evidence sufficient to hold Defendant liable for exposing decedent to danger of charged
wires because denying liability to known trespassers was reasonably regarded as a greater
injustice than imposing duty of reasonable care on a negligent defendant.
Defendant had a duty to provide insulation at points when there was reason to anticipate
that known trespassers might come in contact with the wires. To prevent falling,
decedent's use of Defendant's wires was non-possessory and reasonable. Defendant
should not be allowed to defend an indefensible act by showing Plaintiff did something
unlawful as to a third person.
90
Summers v. Tice
Summers v. Tice
Citation. 33 Cal. 2d 80; 199 P.2d 1 (1948).
Brief Fact Summary. Consolidated appeals from a judgment of the Superior Court of
Los Angeles County (California), which awarded Charles A. Summers, Plaintiff damages
for personal injuries arising out of a hunting accident, in Plaintiff's negligence action
against two hunters, Harold W. Tice and Ernest Simonson (Defendants). Both hunters
negligently fired, at the same time, in Defendant's direction.
Synopsis of Rule of Law. If Defendants are independent tortfeasors, and thus each liable
for the damage caused by him alone, but it is impossible to prove whose conduct actually
caused the harm, many jurisdictions presume that each Defendant was the actual cause of
the Plaintiff's injury. The wronged party should not be deprived of his right to redress.
Facts. Plaintiff and Defendants went on a hunting trip. Plaintiff provided each Defendant
with directions on how to safely fire their weapons. While attempting to shoot their
target, both Defendants fired in Plaintiff's direction. Plaintiff suffered injuries to his right
eye and face.
Plaintiff sued both Defendants in a negligence action. The trial court entered a judgment
in Plaintiff's favor.
On appeal, the court affirmed, because it determined that Defendants failed to meet their
burden of proving who was responsible for Plaintiff's injury, therefore, because each
acted negligently, each was responsible to Plaintiff for damages from the injuries he
sustained. The court reasoned further that it was Defendants' burden to offer proof as to
the apportionment of damages. Because they failed to meet that burden, it was in the
discretion of the trier of fact to apportion the damages.
Issue. Did the trial court err in entering judgment in Plaintiff's favor?
Held. No. The judgment of the lower court was affirmed because Defendants failed to
meet their burden of proving who was responsible for Plaintiff's injury; therefore,
because each acted negligently, each was responsible to Plaintiff for damages from the
injuries Plaintiff sustained.
Discussion. When we consider the relative position of the parties and the results that
would flow if plaintiff was required to pin the injury on one of the defendants only, a
requirement that the burden of proof on that subject be shifted to defendants becomes
manifest. They are both wrongdoers negligent toward the plaintiff. They brought about a
situation where the negligence of one of them injured the plaintiff; hence it should rest
with them each one to absolve oneself, if he can. Defendants have placed the injured
party in the unfair position of pointing to which defendant caused the harm. If one can
escape the other may also and plaintiff is remediless. Ordinarily defendants are in a far
better position to offer evidence to determine which one caused the injury. Here, the
defendants failed to meet their burden of proving which party was responsible for
91
Summers v. Tice
plaintiff's eye injury. Thus, the court reasoned that since they failed to meet that burden,
the case should be left to the trier of fact to apportion damages. Since each Defendant
acted negligently, each was responsible to Plaintiff for damages from the injuries Plaintiff
sustained. The appellate court correctly affirmed the lower court's ruling.
92
Lord v. Lovett
Lord v. Lovett
Citation. 146 N.H. 232 (N.H. 2001)
Brief Fact Summary. Plaintiff, Belinda Joyce Lord, injured her neck and spine in a car
accident and sought treatment from Defendant, James Lovett. Plaintiff alleges that
Defendant’s negligent care denied her the benefit of a fuller recovery.
Synopsis of Rule of Law. Under the “loss of opportunity” doctrine, a plaintiff can
recover against a health care defendant who has aggravated or worsened a pre-existing
condition to where the plaintiff was denied an opportunity for a better recovery.
Facts. Plaintiff injured her neck and spine in a car accident. Plaintiff sought treatment
fro Defendant, but Defendant misdiagnosed her injury. As a result, Plaintiff alleges that
she was denied a fuller recovery. The trial court dismissed the claim because the
jurisdiction did not accept the “loss of opportunity” doctrine.
Issue. The issue is whether Defendant is liable for damages from negligent care of
Plaintiff’s pre-existing condition.
Held. Defendant can be liable under the “loss of opportunity” doctrine. The Supreme
Court of New Hampshire adopted the approach followed by a majority of jurisdictions,
which is to award damages for the lost substantial opportunity of a better recovery. The
Court supports the ruling with a state statute that authorizes the holding.
Concurrence. The concurring opinion agrees with applying the lost chance principles,
but voices concern over reading the state statute too broadly because the statute was
intended to limit torts claims. The statute was nonetheless unclear regarding this
doctrine.
Discussion. The Court follows the majority of other jurisdictions. The trial court was
applying the minority approach, specifically that Plaintiff would have to prove that her
chance of recovery was at least 51 percent. Another minority approach is to award
damages for only the percent that the defendants were liable.
93
CHAPTER VIII.
Negligence: The Scope Of Risk Or "Proximate
Cause" Requirement
94
Medcalf v. Washington Heights Condo. Ass'n
Medcalf v. Washington Heights Condo. Ass'n
Citation. 57 Conn. App. 12; 747 A.2d 532 (2000).
Brief Fact Summary. Washington Height Condominium Association and a
management company (Defendants) appealed a judgment for plaintiff, by the Superior
Court in the Judicial District of Stamford-Norwalk (Connecticut), on grounds that the
court should have entered judgment for Defendants on Plaintiff's negligence claim as a
matter of law.
Synopsis of Rule of Law. The term proximate cause, includes both cause in fact and
foreseeability components. The harm that occurred to plaintiff must be of the "same
general nature as the foreseeable risk created by the defendant's negligence." This means
that:
Liability must be rejected unless a reasonable person would have reasonably foreseen and
avoided harm of the same general kind actually suffered by the plaintiff; or
The defendant who negligently creates a risk to the plaintiff is subject to liability when
that risk or a similar one results in harm, but not when some entirely different risk
eventuates in entirely different harm.
Facts. Plaintiff became the victim of a violent assault as she waited in the lobby of
Defendants' apartment building. Her hosts struggled to admit her by using an electronic
buzzer that did not work, while Plaintiff was assaulted. The jury indicated in
interrogatories that the verdict for Plaintiff was based entirely on a finding that
Defendants were negligent in failing to maintain the building telephone security intercom
communication system to protect Plaintiff and others. The court held that the trial court
should have entered judgment for Defendants as a matter of law, because Plaintiff failed
to establish an essential element of negligence, proximate cause. The intervening criminal
act of the assailant was not within the scope of risk created by Defendants' lack of
maintenance, because the primary reason buildings have buzzer systems is to protect
residents, not guests.
Issue. Did the trial court err in ruling in favor of the Plaintiff?
Held. Yes. In fact, the Appellate Court of Connecticut reversed and remanded because
as a matter of law a jury could not reasonably have found that failure to fix an intercom
was the proximate cause of an assault on Plaintiff and resultant injury, so there could be
no finding of negligence.
Discussion. The second component of a negligence action is proximate cause. Proximate
cause establishes a reasonable connection between an act or omission of a defendant and
the harm suffered by a plaintiff.
!
The Supreme Court of Connecticut has defined proximate cause as an
actual cause that is a substantial factor in the resulting harm. The
95
Medcalf v. Washington Heights Condo. Ass'n
substantial factor test reflects the inquiry fundamental to all proximate
cause questions, that, whether the harm which occurred was of the same
general nature as the foreseeable risk created by the Defendant's
negligence.
!
Proximate cause is a question of fact to be decided by the trier of fact, but
it becomes a question of law when the mind of a fair and reasonable
person could reach only one conclusion.
!
The Defendants could not have reasonably foreseen that a malfunctioning
intercom system might provide a substantial incentive or inducement for
the commission of a violent criminal assault on their property by one
stranger upon another.
!
The court found here that, as a matter of law, the jury could not reasonably
have found that the assault on the Plaintiff and the resultant injury were
within the foreseeable scope of risk created by Defendants' failure to
maintain the intercom system, a critical element for Plaintiff to prevail.
Thus, Plaintiff failed to establish the necessary causal relationship.
96
Palsgraf v. Long Island R. Co.
Palsgraf v. Long Island R. Co.
Citation. 248 N.Y. 339; 162 N.E. 99.
Brief Fact Summary. The Appellate Division of the Supreme Court in the Second
Judicial Department (New York) affirmed the trial court's holding that the Long Island R.
Co. (Defendant) was responsible for injuries to Plaintiff resulting from an explosion. The
Defendant appealed.
Synopsis of Rule of Law. To recover for negligence, the plaintiff must establish each of
the following elements: duty, standard of care, breach of duty, cause-in-fact, proximate
cause (scope of liability) and damages.
Facts. The Plaintiff was standing on a railroad platform purchasing a ticket, when a train
stopped and two men ran forward to catch it. One of the men nearly fell, and two railroad
employees attempted to help him. In the process, a package containing fireworks fell and
the contents exploded. As a result of the explosion some scales at the other end of the
platform fell and struck the Plaintiff. Plaintiff sued and a jury found in her favor. The
Appellate Division affirmed this decision, but the Court of Appeals of New York
reversed.
Issue. What constitutes negligence?
Held. The court reversed the appellate court judgment and dismissed the complaint.
Dissent. The dissent takes the view that, as a matter of law, it could not be determined
that the Defendant's actions were not the proximate cause of the Plaintiff's injuries.
Justice Andrews concluded that the judgment should have been affirmed.
!
In perhaps one of the most significant dissents in modern tort law, Justice
Andrews in Palsgraf expresses what has become the matrix for measuring
the scope of one's duty and its relationship to causation in connection with
negligence claims. Essentially, Justice Andrews' formulation is a
consideration of the appropriate tests for proximate (or legal) cause - the
third element in the formula for tort law (duty, breach, causation and
harm).
!
Concerning negligence, Andrews first asks "[i]s it a relative concept - the
breach of some duty owing to a particular person or to particular persons?
Or where there is an act which unreasonably threatens the safety of others,
is the doer liable for all its proximate consequences, even where they
result in injury to one who would generally be thought to be outside the
radius of danger?" The latter is often characterized as the "zone of danger"
or "zone of impact" i.e., the area in which the plaintiff is at risk of physical
impact resulting from the alleged wrongdoer's negligent behavior. As
Justice Andrews notes, "[n]egligence may be defined roughly as an act or
97
Palsgraf v. Long Island R. Co.
omission which unreasonably does or may affect the rights of others, or
which unreasonably fails to protect oneself from the dangers resulting
from such acts."
!
He offers the concise maxim, "[e]very one owes to the world at large the
duty of refraining from those acts that may unreasonably threaten the
safety of others," and further notes, "[w]hen injuries do result from our
unlawful act we are liable for the consequences. It does not matter that
they are unusual, unexpected, unforeseen and unforseeable. But there is
one limitation. The damages must be so connected with the negligence
that the latter may be said to be the proximate cause of the former."
Discussion. Plaintiff must show that some wrong was done to herself, i.e., that there was
a violation of her own rights, not merely a wrong done to someone else. In this case, there
was nothing to indicate that the package contained fireworks, and if dropped, would
cause an explosion. The guards, who were assisting the passenger on the train, were
negligent in doing so, and caused the package to be dislodged, which fell causing an
explosion. The explosion caused some scales at the other end of the platform to fall,
striking Plaintiff. The guards were not negligent in relation to the Plaintiff, who was
standing far away when the package was dropped. If the court had decided that
Defendant was negligent in respect to the Plaintiff, then the majority concludes that a
defendant would be liable for any and all consequences of its negligence, "however novel
or extraordinary."
98
Derdiarian v. Felix Contracting Corp.
Derdiarian v. Felix Contracting Corp.
Citation. 51 N.Y.2d 308; 414 N.E.2d 666; 434 N.Y.S.2d 166.
Brief Fact Summary. Plaintiff was hit by a car when he was working on an excavation
job. The driver of the automobile, James Dickens (Dickens) was suffering from an
epileptic seizure when the accident occurred.
Synopsis of Rule of Law. Foreseeability is the reasonable anticipation of the possible
results of an action. Proximate cause is determined by whether an intervening act is a
foreseeable consequence of the defendant's negligence. If it is not foreseeable, then it is a
superseding act which would sever the causal connection.
Facts. Dickens was driving eastbound on the thoroughfare where Plaintiff was working
on an excavation. The driver suffered an epileptic seizure and lost consciousness, striking
Plaintiff. The driver was undergoing treatment at the time, but had failed to take his
medication that particular day. The automobile crashed through a single wooden horsetype barricade, and struck an employee of a subcontractor, who was propelled into the
air. Upon landing, the employee was splattered by boiling liquid enamel from a kettle.
Plaintiff and his wife sued the employer, Felix Contracting Corporation (Felix), Dickens,
and the contractor for negligence, (Defendants) claiming that the employer failed to
maintain a safe work site. Plaintiffs maintained that the barrier should have covered the
entire width of the excavation site, and there should have been two flagmen present, as
opposed to one. Felix contended that Plaintiff was injured solely as a result of Dickens'
negligence, because there was no causal link between Felix's breach of duty and Dickens'
negligence.
Issue. Were Plaintiff's injuries a foreseeable result of the employer's failure to maintain a
safe work site?
Held. Yes. On appeal, defendant employer argued that there was no causal link between
the employers breach of duty and plaintiffs injuries. The Court of Appeals of New York
held that Plaintiff's injuries were a foreseeable result of the risk created by the employer.
When the acts of a third person intervene between the defendant's conduct and the
plaintiff's injury, the causal connection is not automatically interrupted. Instead, it
depends upon whether the intervening act was a foreseeable consequence of defendant's
negligence. If the intervening event is unforeseeable, then it may be a superseding cause,
which would interrupt the causal connection between defendant's negligence and
plaintiff's injuries. Whether an intervening act is foreseeable or not is a question for the
trier of fact.
Discussion. For a plaintiff to carry the burden of proving a prima facie case of
negligence, he must generally show that the defendant's negligence was a substantial
cause of the events that produced the injury. Plaintiff need not demonstrate that the
precise manner in which the accident happened or that the extent of injuries was
foreseeable. Essentially, the foreseeable harm test requires (1) a reasonably foreseeable
99
Derdiarian v. Felix Contracting Corp.
result or type of harm, and (2) no superseding intervening force. Further, an intervening
act may not serve as a superseding cause, and relieve an actor of responsibility, when the
risk of the intervening act occurring is the very same risk that renders the actor negligent.
100
Sheehan v. New York
Sheehan v. New York
Citation. 40 N.Y.2d 496; 354 N.E.2d 832; 387 N.Y.S.2d 92.
Brief Fact Summary. The Appellate Division of the Supreme Court in the First Judicial
Department (New York) held the Manhattan and Bronx Surface Transit Authority
(Transit Authority), the bus driver, Sheehan, the truck driver, and the owner (Defendants)
for damages in connection with a New York City traffic accident. Defendants appealed.
Synopsis of Rule of Law. Evidence of negligence is not enough by itself to establish
liability. The plaintiff must also prove that the negligence was the cause of the event that
produced the harm.
Facts. Sheehan stopped his bus at an intersection for passengers and to allow others to
disembark. He did not pull over completely to the right, but stopped in the right traffic
lane. A New York City sanitation truck careened into the bus, due to the failure of the
truck's brakes. An injured passenger brought suit. A jury found for Plaintiff, assigning
liability to both the Transit Authority and New York City. The judge set aside the verdict
against the Transit Authority, assigning sole liability to New York City and to the truck
driver. The Appellate Division reinstated the verdicts. The bus driver and the Transit
Authority appealed.
Issue. The issue for the appellate court was whether the truck driver and owner were
solely liable because, as a matter of law, there was no proof that the conduct of the bus
driver was causally connected with the collision.
Held. The court concluded that negligence on the part of the truck driver was the sole
proximate or legal cause of the accident and thus Appellants, bus driver and owner, were
not liable.
Discussion. The court in Sheehan examines two fundamental factors with regard to
causation: foreseebility and the absence of an intervening cause. In short, the defendant's
culpable conduct must be the actual cause of the plaintiff's injury. Thus, the primary test
for proximate cause focuses on whether the defendant should have reasonably foreseen,
as a risk of her conduct: 1) the type of harm suffered by the plaintiff; or 2) the manner in
which the harm occurred. The second prong of the test requires that no superseding
intervening force existed. As the Sheehan court articulated, this recovery is precluded
when such force "interrupts the natural sequence of events, turns aside their course,
prevents the natural and probable result of the original act or omission, and produces a
different result that could not have been reasonably anticipated."
101
Ventricelli v. Kinney System Rent A Car, Inc.
Ventricelli v. Kinney System Rent A Car, Inc.
Citation. 45 N.Y.2d 950; 411 N.Y.S.2d 555; 383 N.E.2d 1149.
Brief Fact Summary. Plaintiff brought a personal injury action against Kinney System
Rent A Car, Inc. (Kinney) and the automobile owner (Defendants), in connection with a
car accident. Plaintiff brought a defective product complaint against the third-party
defendant, the car manufacturer. The Supreme Court of New York, Appellate Division,
modified the trial court's order to dismiss the action against Kinney limiting recovery
from the automobile owner. Kinney appealed.
Synopsis of Rule of Law. A plaintiff must demonstrate that the defendant is culpable,
i.e., her actions are the legal cause of the plaintiff's injuries. The corollary is that the
defendant should have reasonably foreseen, as a risk of her conduct, the general
consequences or type of harm suffered by the plaintiff. The foreseeable harm test has two
requirements: (1) a reasonably foreseeable result or type of harm; and (2) the absence of
any superseding intervening force.
Facts. Kinney leased Plaintiff a car with a defective trunk lid. Plaintiff was parked on a
New York City street, while Plaintiff and his passenger attempted to shut the defective
trunk lid. Another motorist was parked some distance behind Plaintiff when his car
suddenly lurched forward striking Plaintiff. Plaintiff brought an action and the jury found
in his favor awarding him $550,000.00 in damages. The Appellate Division reversed and
dismissed the action against Defendant. Plaintiff sought review.
Issue. Was Kinney's negligence in leasing a defective auto to Plaintiff, the proximate
cause of the resulting harm?
Held. No. The court affirmed the judgment of the appellate court in modifying the lower
court's order to dismiss the lessee's personal injury action against the rental company.
Dissent. Judge Fuchsberg stated that the issue of proximate cause was better left to the
jury. Fuchsberg applies the "but for" test, i.e., were it not for the rental car's defective
trunk lid, the accident could have been avoided. Thus, he maintains, culpability was a
matter of fact, and "disputes as to whether conduct is negligent, contributorily negligent
or the proximate cause of an injury are usually best left to the fact finder."
Discussion. The threshold question with respect to proximate cause focuses on
foreseeability, i.e., whether the defendant should have reasonably foreseen, as a risk of
her conduct, the general consequences or type of harm suffered by the plaintiff. As tort
law is primarily fact-based, the determination of whether there is sufficient evidence to
warrant placing the matter before a jury is wholly dependant on a court's subjective call.
The Ventricelli court concedes as much: "[p]roximate cause and foreseeability are
relative terms, nothing more than a convenient formula for disposing of the case. The
range of reasonable apprehension is at times a question for the court, and at times, if
varying inferences are possible, a question for the jury. So it is with proximate cause and
102
Ventricelli v. Kinney System Rent A Car, Inc.
foreseeability." Foreseeability is, by its nature, measured on a continuum. In this instance,
the court of appeals was not willing to extend the accident's foreseeability to the extent
that the lower court did. As the court explains (and with which the dissent takes issue):
"[t]he word "proximate" means that because of convenience, of public policy, of a rough
sense of justice, the law arbitrarily declines to trace a series of events beyond a certain
point."
103
Marshall v. Nugent
Marshall v. Nugent
Citation. 222 F.2d 604; 1955 U.S. App.
Brief Fact Summary. An oil company and the driver of its truck, (Defendants) and the
Plaintiff appealed the district court judgments in a negligence action.
Synopsis of Rule of Law. One is liable for the harmful consequences that result from
the creation of unreasonable risk, i.e., risk that is foreseeable and is the immediate cause
of the plaintiff's injury. The assigning of such liability is a question for the trier of fact.
Facts. Plaintiff was a passenger of a car that went off the road under icy conditions when
an approaching truck crossed into his lane. The truck driver pulled over to offer
assistance, leaving his truck partially blocking the road. Plaintiff was attempting to warn
oncoming traffic of the unsafe situation when a motorist who was attempting to avoid
colliding with the truck struck him. The jury found the truck driver liable.
Issue. Was the truck driver negligent and his conduct the proximate cause of the
Defendant's injuries?
Held. The court of appeals affirmed the judgment against Defendants. The Plaintiff's
attempt to warn oncoming motorists of the dangerous situation was reasonable and did
not constitute contributory negligence; the Defendant's negligence "constituted an
irretrievable breach of duty."
Discussion. The court in Marshall addresses a number of peripheral questions in
determining the scope of liability in connection with auto accidents, what the court refers
to as "a variety of risks." In so doing the court provides the framework for delineating
reasonable and unreasonable risks (the latter being those that are foreseeable and thus
avoidable). Again, the primary test for proximate cause focuses on whether the Defendant
should have reasonably foreseen the general consequences or type of harm that could
result from her conduct. Noting the often complicated circumstances surrounding a car
accident, the court states, "[i]t would be impossible for a person in the defendant's
position to predict in advance just how his negligent act would work out to another's
injury." Thus, the court concludes, "[t]he question of proximate causation is one of fact
for the jury."
104
CHAPTER IX.
Contributory/Comparitive Fault
105
Butterfield v. Forrester
Butterfield v. Forrester
Citation. 11 East. 59, 103 Eng. Rep. 926 (1809).
Brief Fact Summary. This case arose from Defendant's alleged obstruction of a
highway upon which Plaintiff was riding his horse. The latter was thrown, sustaining
injuries, and brought suit. The jury found for Defendant. Plaintiff appealed, seeking a
clarifying rule and a new trial.
Synopsis of Rule of Law. A plaintiff may not recover if he or she fails to use ordinary
caution. One person's negligence does not dispense with another's obligation to exercise
ordinary care in his or her own conduct.
Facts. Defendant was engaged in making repairs to his house, which was situated close
to the roadside. He had erected a pole that partially obstructed the road. However, a
substantial portion of the roadway remained unobstructed. Plaintiff, having left a nearby
tavern, was riding his horse very hard. As it was twilight, he failed to see the obstruction,
collided with the pole, and was thrown from his horse, sustaining significant injuries.
Issue. Does a defendant's potentially harmful conduct excuse a plaintiff from exercising
ordinary caution?
Held. No. An individual is required at all times to exercise ordinary care and caution.
When that person contributes to the circumstances resulting in his own injuries, he is at
least partially culpable, or contributorily negligent.
Discussion. The Butterfield case raises the issue of contributory negligence.
Subsequently, courts developed rules governing contributory negligence. Traditionally it
was viewed as a complete defense, barring any recovery. In recent years, however, most
jurisdictions have converted the concept of contributory negligence to one of comparative
negligence, which acts only as a partial bar to recovery.
106
Sollin v. Wangler
Sollin v. Wangler
Citation. 627 N.W.2d 159 (N.D. 2001)
Brief Fact Summary. Plaintiff, Richard Sollin, was injured while operating a hay
grinder. Defendant, Dale Wangler, loaded a bale of hay onto Plaintiff while Plaintiff was
greasing the running machine.
Synopsis of Rule of Law. Plaintiff has the burden of requesting and preserving the right
to appeal jury instructions regarding comparative fault.
Facts. Plaintiff operated a hay grinder. Defendant was loading bales of hay into the
grinder when Plaintiff was greasing the hay grinder, and a bale fell onto Plaintiff.
Plaintiff suffered serious injuries as a result of the bale hitting him, but the bale would not
have hit him if he was not greasing the machine while it was running. The jury was
instructed to allocate fault between the parties, but they were never told of the effect of
how they allocated the fault. Instead, they were told to simply follow the instructions
after closing arguments. As a result, Plaintiffs did not collect any award of damages.
Issue. The issue is whether the trial court judge committed a fundamental error in not
instructing the jury about the effects of their division of fault.
Held. The Supreme Court of North Dakota held that there was no fundamental error in
not instructing the jury as to the effects of their equal division of fault. The Court held
that North Dakota is now following the trend of other jurisdictions to allow the
instructions, but Plaintiff could not cite any case law that accepted their argument that it
is a fundamental error requiring a new trial. Plaintiff never objected or insisted on the
instructions during trial, and therefore have not reserved the right to object now.
Discussion. A growing number of jurisdictions are allowing the jury to be instructed on
the effects of how fault is allocated. The concern is that the defense can otherwise
convince a jury that a finding of equal fault will result in an equal share of the damages,
which is not always the case.
107
Wassell v. Adams
Wassell v. Adams
Citation. 865 F.2d 849; 1989 U.S. App.
Brief Fact Summary. The United States District Court for the Northern District of
Illinois found that the Adamses (Defendants) were negligent and that their negligence
was the proximate cause of the assault on Susan Wassell (Plaintiff). The court of appeals
affirmed.
Synopsis of Rule of Law. A new trial can be granted only when the jury's verdict is
against the clear weight of the evidence, and the court of appeals can reverse only when
persuaded that in applying this standard, the district judge abused his discretion
Facts. Plaintiff traveled to an area just north of Chicago, Illinois to attend a graduation at
the Great Lakes Naval Training Station. She was staying at a motel, owned by
Defendants, when she was awakened late at night by a knock on the door. Outside was a
man she didn't know, who, after some confusion, asked for a glass of water. Plaintiff
allowed the man inside the room, and he sexually assaulted her. Plaintiff managed to
escape, but the rapist was never prosecuted. A suspect was apprehended, but Plaintiff was
too upset to provide proper identification. Diagnosed with post-traumatic stress disorder,
Plaintiff brought suit against the Defendants alleging negligence in their failure to warn
her of the dangerous conditions of the neighborhood in which the motel was located. A
jury found the Defendants to be negligent, and their negligence was the proximate cause
of Plaintiff's assault. However the jury also found that Plaintiff had been negligent as
well, apportioning blame 97% to Plaintiff, and 3% to Defendants. The court of appeals, in
dicta, disagreed with the jury's apportionment, but declined to reverse. It held that the
issue of apportionment was one of fact and thus properly within the purview of the jury.
Issue. Did the court err in allowing the jury's determination to stand, that Plaintiff's
negligence was a relevant, contributory factor to the circumstances that resulted in her
injuries and denying her Motion for a New Trial?
!
Did the trial court abuse its discretion in determining that the jury's verdict
was not against the clear weight of the evidence?
Held. The question of apportionment of blame was properly one for the jury, as the latter
was the trier of fact. The court of appeals would only be justified in negating such
apportionment if there was an abuse of discretion on the part of the trial judge.
!
The trial judge did not abuse his discretion in refusing to set aside the
verdict.
Discussion. According to the Restatement of Torts § 463, contributory negligence is
"conduct on the part of the plaintiff which falls below the standard of conduct to which
he should conform for his own protection, and which is a legally contributing cause . . . in
bringing about the plaintiff's harm."
108
Wassell v. Adams
!
The court also clearly enunciated the rule by which it is proper to set aside
a jury verdict: "[t]he federal standard is that a new trial can be granted
only when the jury's verdict is against the clear weight of the evidence,
and the court of appeals can reverse only when persuaded that in applying
this standard the district judge abused his discretion."
109
Mercer v. Vanderbilt University, Inc.
Mercer v. Vanderbilt University, Inc.
Citation. 134 S.W.3d 121 (Tenn. 2004)
Brief Fact Summary. Plaintiff, Sally Qualls Mercer, brought suit against Defendant,
Vanderbilt University, on behalf of her brother, Larry Qualls, who was a patient at
Defendant’s hospital. Larry Qualls, with a high blood alcohol level, came to Defendant’s
hospital with facial injuries, and Defendant’s negligence caused Qualls to fall into a
vegetative state.
Synopsis of Rule of Law. Comparative fault principles will not apply to compare the
negligence of a plaintiff for injuries sustained prior to receiving care and the negligence
of a defendant in delivering the care.
Facts. Larry Qualls was in a single-car accident, sustaining multiple facial fractures and
a concussion. His alcohol level was estimated at .20% at the time of the accident. Qualls
went to Defendant hospital where he was treated with high doses of sedatives for alcohol
agitation. During his stay, Qualls was required to be on a ventilator at all times. Prior to
undergoing CT scans in preparation for surgery, Qualls was given drugs that temporarily
paralyzed him, rendering him unable to move or speak. There was evidence that during
this time, Qualls’s oxygen tanks may not have been full. After the CT scans, Qualls
needed to be resuscitated, but he sustained permanent, severe brain damage. The trial
court jury found Defendant 70% liable for Qualls’s injuries and awarded Plaintiff 70% of
the damages. On a directed verdict motion from Plaintiff, the trial court judge awarded
Plaintiff 100% damages. The Court of Appeals of Tennessee reversed and remanded for
a new trial.
Issue. The issue is whether Plaintiff’s brother’s negligence causing the initial injuries
should be considered in allocating damages between Defendant and Plaintiff.
Held. The Supreme Court of Tennessee, at Nashville, affirmed the trial court’s decision
to award Plaintiff 100% of damages. The Court decided to overturn state stare decisis
and is now following the approach followed by a majority of states, which is to consider
any negligence on the part of the patient that initiated the hospital visit to be separate
from any negligence on the part of a defendant health care provider. Therefore, no
comparative fault principles will apply, and any evidence regarding the alcohol-related
conduct of the patient was rightfully not considered.
Dissent. The dissent would have affirmed the Court of Appeals, following stare decisis
and using comparative fault principles to allocate damages. The dissent would have
therefore included evidence of the patient’s alcohol-induced condition.
Discussion. The Court’s decision reaffirms the majority, modern-law position regarding
the hesitancy to compare the negligence of a patient during the initial injury with the
negligence of the health care provider. The prior reasoning allowed to tiers of
responsibility for health care providers – one tier for patients who happened to be
110
Mercer v. Vanderbilt University, Inc.
negligent and another for those who were non-negligent – even though the initial injury is
independent from the subsequent treatment.
111
Bexiga v. Havir Mfg. Corp.
Bexiga v. Havir Mfg. Corp.
Citation. 60 N.J. 402; 290 A.2d 281.
Brief Fact Summary. In a products liability action, John Bexiga, Sr., (Plaintiff) brought
an action on behalf of his son, who was injured on the job. The lower court dismissed the
action and the appellate court affirmed. The Supreme Court of New Jersey overturned the
appellate court ruling and remanded for a new trial.
Synopsis of Rule of Law. Strict liability applies to anyone "who sells a product in a
defective condition unreasonably dangerous to the user or consumer or his property."
Restatement (Third) of Torts.
Facts. John Bexiga, Jr., a minor, was injured while operating a power punch for his
employer, Havir Manufacturing Corporation (Defendant). His right hand was crushed
during the operation of the machine, resulting in loss of fingers and deformity of the
hand. At trial, an expert for the Plaintiff testified as to the fundamentally flawed design of
the machine in question. The defense raised the issue of contributory negligence, which
the Supreme Court of New Jersey rejected, citing considerations of justice and public
policy.
Issue. Was Defendant strictly liable for the damages resulting from the allegedly
defective design of the apparatus that injured Plaintiff?
Held. Yes. The court held that Defendant was strictly liable. It reversed the superior
court's dismissal of Plaintiff's negligence action. The court concluded that the evidence
presented was sufficient to withstand a motion for dismissal on the theory of either
negligence or strict liability.
Discussion. The doctrine of strict liability encompasses that area of tort law when a
defendant will be responsible for damages without consideration of due care or fault.
There are a number of discrete areas in which the doctrine applies, and in Bexiga the
Supreme Court of New Jersey addresses product liability. With regard to the latter, the
Restatement (Third) of Torts: Products Liability (1997) takes a functional approach to
classification of such cases. Specifically, the Restatement outlines three types of claims
1) manufacturing defects; 2) design defects; or 3) defects by reason of inadequate
warnings or instructions. In considering, the first type, the Bexiga court explains: "Where
there is an unreasonable risk of harm to the user of a machine which has no protective
safety device, the jury may infer that the machine was defective in design unless it finds
that the incorporation by the manufacturer of a safety device would render the machine
unusable for its intended purposes." Further, as noted, the Bexiga court addressed and
amplified what it considered the primary public policy concerns: "The public interest in
assuring that safety devices are installed demands more from the manufacturer than to
permit him to leave such a critical phase of his manufacturing process to the haphazard
conduct of the ultimate purchaser. The only way to be certain that such devices will be
112
Bexiga v. Havir Mfg. Corp.
installed on all machines, which clearly the public interest requires, is to place the duty
on the manufacturer where it is feasible for him to do so."
113
Leroy Fibre Company v. Chicago, Milwaukee & St. Paul Railway
Leroy Fibre Company v. Chicago, Milwaukee & St. Paul Railway
Citation. 232 U.S. 340.
Brief Fact Summary. In a negligence action, Leroy Fibre Company (Plaintiff) claimed
that Chicago, Milwaukee & St. Paul Railway (Defendant) had destroyed his property and
sought damages. A jury found for the Defendant. Plaintiff sought review.
Synopsis of Rule of Law. An owner of property who acts in a reasonable and prudent
manner has a right to manage his property as he sees fit without being required to
anticipate another's negligence.
Facts. Plaintiff owned land adjacent to Defendant's railroad. In connection with
Plaintiff's business, he stacked flax on the property. He brought an action against the
railroad, alleging that Defendant's negligence caused sparks and colas emitted from the
railway to ignite the flax and it was destroyed. The closest of the stacks was seventy-five
feet from the railway. Defendant argued contributory negligence, claiming Plaintiff had
stacked the flax too close to the railway.
Issue. Did the Plaintiff's action of stacking flax adjacent to the railway constitute
evidence of negligence and should thus be submitted to a jury?
Held. No. The court held that an owner of property who acts in a reasonable and prudent
manner has a right to manage his property as he sees fit without being required to
anticipate another's negligence.
Concurrence. Justice Holmes' concurrence echoes the principle that it is unreasonable to
expect one to act on the assumption that others will break the law. He stated that " [a]s a
general proposition people are entitled to assume that their neighbors will conform to the
law; that a negligent tort is unlawful in as full a sense as a malicious one, and therefore
that they are entitled to assume that their neighbors will not be negligent."
Discussion. The question presented in Leroy Fibre illustrates a common tension that
arises with regard to liability that property law, with its emphasis on ownership rights,
may conflict with negligence law, with its emphasis on safety.
!
The Leroy court begins with the premise that property rights have primacy
when it states "[t]he owner has the same right to use his property adjacent
to a railroad right of way for any lawful purpose for which it is adapted as
he would have if there was no railroad there. The only limitation upon the
use and enjoyment of his property is that he use it in such a manner as not
to injure that of another."
!
From there the court reasons that it would make little sense to conduct
one's affairs on the assumption that others will not act responsibly when it
stated "[t]hat one's uses of his property may be subject to the servitude of
the wrongful use by another of his property seems an anomaly. It upsets
114
Leroy Fibre Company v. Chicago, Milwaukee & St. Paul Railway
the presumptions of law and takes from him the assumption and the
freedom which comes from the assumption, that the other will obey the
law, not violate it." In applying this reasoning to the case before it, the
court states, "[i]n locating it on his own premises even near the right of
way he owes the railroad company no duty to anticipate or guard against
injury to it from the negligence of the railroad company. Without the
breach of some duty by the owner there can be no negligence on his part."
!
Lastly, in the modern view, the Restatement defines contributory
negligence as "conduct on the part of the plaintiff which falls below the
standard of conduct to which he should conform for his own protection,
and which is a legally contributing cause . . . in bringing about the
plaintiff's harm." Restatement of Torts § 463. This concise definition
would appear to be in harmony with the court's reasoning in Leroy. It
should be noted, however, that since tort law is primarily fact-based and
negligence law provides for safety, judges conduct rulings on a case-bycase basis.
115
CHAPTER X.
Assumption of the Risk
116
Moore v. Hartley Motors, Inc.
Moore v. Hartley Motors, Inc.
Citation. 36 P.3d 628 (Alas. 2001)
Brief Fact Summary. Plaintiff, Gayle Moore, sustained injuries when her all-terrain
vehicle (ATV) flipped over while she was taking riding lessons. Plaintiff signed a form
releasing Defendants, Hartley Motors et al., from liability.
Synopsis of Rule of Law. A release form limiting liability will not be read to limit
liability not contemplated specifically in the agreement.
Facts. Plaintiff purchased an ATV and, after receiving a rebate through the dealership,
signed up for safety classes. During the instruction, Plaintiff veered the ATV off course,
hit a rock and rolled over. The rollover caused injuries to Plaintiff. Although Plaintiff
signed a form releasing Defendants from liability, she brought suit alleging that the safety
course was negligently unsuitable and the condition of the track was negligently
concealed from her. Plaintiff had a phone transcript with an ATV instructor, now
deceased, who attested that they did not teach Defendants’ class because the course is
unsafe. Once the instructor dies, Defendants moved for, and were granted, summary
judgment.
Issue. The issue is whether the release signed by Plaintiff limited liability on behalf of
Defendants.
Held. The release was held valid. Despite Plaintiff’s arguments to the contrary, there
was consideration (participation in the class) and was not against public policy.
However, the scope of the release does not limit Defendants’ liability for general
negligence. The form also operates under the assumption that the course is not
unreasonably dangerous. Therefore Plaintiff can still bring a suit based on evidence that
the course was unreasonably dangerous.
Discussion. A general waiver or release form limiting liability does not per se violate
public policy, but the waiver does not give absolute immunity.
117
Crews v. Hollenbach
Crews v. Hollenbach
Citation. 358 Md. 627; 751 A.2d 481.
Brief Fact Summary. Plaintiff and his wife filed an action alleging negligence and strict
liability for injuries stemming from an accident involving a gas line explosion. Plaintiff
was working on repairing a gas leak, when the gas ignited causing him severe injury.
Synopsis of Rule of Law. In order to successfully maintain an assumption of risk
defense, a defendant must demonstrate that plaintiff 1) knew of the risk in question; and
(2) voluntarily; (3) assumed that risk.
Facts. In the process of excavating a parcel of land, workers struck a gas line. Natural
gas leaked into the surrounding atmosphere. The owner of the line, Washington Gas,
dispatched a repair crew, of which Plaintiff was a member. As the crew worked at
repairing the leak, the gas ignited severely injuring Plaintiff. Plaintiff and his wife
brought suit. The trial judge granted summary judgment on behalf of Defendants due to
the defense of assumption of risk. The Court of Special Appeals of Maryland affirmed
granting of summary judgment.
Issue. Did Plaintiff have the knowledge of the risk, did he appreciate the risk, and did he
voluntarily assume the risk of danger attendant to the activity in which he was engaged?
Held. The court affirmed the lower court's summary judgment ruling, concluding that
Plaintiff voluntarily assumed those risks as part of the job duties in which he had been
engaged for more than twenty years.
Discussion. Assumption of risk has fundamentally existed as a complete defense to
negligence. There are three basic elements: A plaintiff must 1) have knowledge of a
particular risk; and 2) voluntarily; 3) assume that risk. Here, the court notes: "[w]hen a
plaintiff in a personal injury action becomes aware of a previously created risk and
voluntarily chooses to put up with the situation, then his willingness to take a chance is
implied and he is barred from recovering for a risk he chose to assume."
!
With regard to the voluntary nature of that assumption, the court clarifies,
"[i]n determining the element of voluntariness for purposes of applying
the assumption of risk defense, the court seeks to ascertain whether the
plaintiff freely exposed herself or himself to a known danger."
!
The Restatement further delineates assumption of risk into two categories:
express and implied assumption. In the first instance, assumption is clearly
stated, as in a contract. In the second, assumption may be inferred from the
individual's behavior. Here, the court employed a common law analysis of
assumption of risk, concluding that the Plaintiff was clearly aware of the
inherent risks in working on gas leaks.
118
Crews v. Hollenbach
Finally, the distinction between determination of fact versus law, the court explained as
follows "[t]he question of whether a plaintiff knew and understood the risk in a case is
generally one for the trier of fact, but if a person of normal intelligence, in the same
position as the plaintiff, would clearly have comprehended the danger, the question is one
for the court."
119
Turcotte v. Fell
Turcotte v. Fell
Citation. 68 N.Y.2d 432; 502 N.E.2d 964; 510 N.Y.S.2d 49; 1986 N.Y.
Brief Fact Summary. Turcotte (Plaintiff), a highly successful jockey, brought suit to
recover damages for injuries sustained when he was thrown from his horse. The trial
court granted Defendant's Motion for Summary Judgment and the Appellate Division
affirmed. Plaintiff appealed.
Synopsis of Rule of Law. If a participant in a sporting event makes an informed
estimate of the risks involved with the activity in question, and willingly undertakes
them, a defendant will not likely be held liable for any resulting injuries.
Facts. Plaintiff was severely injured in a race, when his horse clipped the heels of
another horse and he was thrown. He suffered paralysis as a result of the accident, and
maintained in his action, that another jockey, Fell (Defendant), was negligent, because he
committed a foul in violation of the New York Racing and Wagering Board rules.
Issue. Did the trial court properly grant summary judgment because Plaintiff assumed
the risk involved in horseracing?
Held. The Court of Appeals of New York affirmed the lower court's granting of
summary judgment, holding that Plaintiff had indeed assumed the risks attendant with the
activity in question.
Discussion. In its decision, the court of appeals examined the parameters of the
assumption of risk defense within the scope of New York's comparative negligence
statute. The court stated that the duty owed to plaintiff in a professional sporting event by
a co-participant is evaluated by considering the risks that plaintiff assumed when he
elected to participate in the event. The court noted that sporting events carry particular
risks, which a plaintiff most likely would be aware. Therefore, his or her participation in
the activity thus carries an implied assumption of risk. More pointedly, the court asserted,
"[t]he risk assumed means that the plaintiff, in advance, has given his consent to relieve
the defendant of an obligation of conduct toward him, and to take his chances of injury
from a known risk arising from what the defendant is to do or leave undone." Generally,
when a plaintiff's participation is clearly voluntary, such as in the decision to engage in
risky recreational activities, courts are more likely to support a defendant's contention of
the assumption of risk on the part of a plaintiff.
120
CHAPTER XI.
Defenses Not on the Merits
121
Crumpton v. Humana, Inc.
Crumpton v. Humana, Inc.
Citation. 99 N.M. 562; 661 P.2d 54; 1983 N.M.
Brief Fact Summary. Crumpton (Plaintiff) filed suit against a nurse and the hospital for
injuries sustained when the nurse improperly lowered Plaintiff's hospital bed. The District
Court of Lea County (New Mexico) granted summary judgment for Defendants, citing
that the statute of limitations had run. Plaintiff appealed.
Synopsis of Rule of Law. The statute of limitations commences running from the date
of the injury or the date of the alleged malpractice.
Facts. Plaintiff was in the care of Llano Estado Medical Center. She alleged that in
February, 1979, she sustained injuries when the nurse lowered her hospital bed. She
brought suit more than three years later, arguing that the delay was due ongoing
settlement negotiations with the hospital.
Issue. Does the statute of limitations toll while parties are engaged in settlement
negotiations?
Held. No. In most jurisdictions, a three-year statute of limitations commences from the
date of injury. The Supreme Court of New Mexico upheld the trial court's grant of
summary judgment, finding Plaintiff's appeal "to be frivolous and entirely without merit."
Discussion. An attorney who fails to file a meritorious suit within the statute of
limitations may be liable for malpractice. As the court noted, "[t]he limitation period
begins to run from the time the injury manifests itself in a physically objective manner
and is ascertainable."
122
Schiele v. Hobart Corp.
Schiele v. Hobart Corp.
Citation. 284 Ore. 483; 587 P.2d 1010.
Brief Fact Summary. The Plaintiff, a meat wrapper, alleged that she developed grave
lung ailments resulting from using Hobart Corporation's (Defendant) machine. The trial
court granted Defendant's Motion for Summary Judgment because the two-year statute of
limitations had expired. The Supreme Court of Oregon reversed.
Synopsis of Rule of Law. The statute of limitations begins to run when a reasonably
prudent person realizes her injury or condition, and discovers the role the defendant
played in causing his or her condition.
Facts. Plaintiff worked as a meat wrapper for a Portland, Oregon company for
approximately twenty-six years. In 1972, the company purchased a meat-wrapping
machine that utilized a ventilator. The machine cut a type of meat-wrapping film that
contained polyvinyl chloride (manufactured by the co-defendant chemical company).
Plaintiff had been in good health prior to the time of the purchase. Shortly after she began
using the device, she developed an array of health problems. Her condition worsened
during her final year of employment. Almost immediately upon her leaving the job she
was hospitalized with pneumonia. Her doctors informed her, in April, 1974, that tests
indicated polyvinyl chloride fumes were the possible cause of her condition. She filed her
action in March, 1976. Given these dates, Plaintiff contended that her filing fell within
the statute of limitations. Defendants claim that the statute of limitations began to run
when she first became aware of the possible connection between her symptoms and the
cause of her illness, in early March, 1974 - thus missing the filing window permitted by
the statute of limitations.
Issue. Did the statute of limitations expire, thus barring Plaintiff's action for recovery?
Held. No. The court reversed the trial court's grant of summary judgment and remanded
the case for trial.
Discussion. The question of when a statute of limitations begins to runs is one of
precision and is a matter of law. A party moving for summary judgment must establish
that no genuine issue of material fact exists and that he or she is entitled to judgment as a
matter of law. Thus, the precise dates of the onset of illness, informing a patient of the
cause of that illness, and the filing of an action are of great import. As the Schiele court
noted, "[t]he traditional purposes of statutes of limitations require the assertion of claims
within a specified period of time after notice of the invasion of legal rights"(emphasis
added). The court noted that mere knowledge of symptoms was insufficient as to
fulfilling the notice requirement, thus allowing the statute of limitations to toll. As the
court stated, "[w]e do not believe the legislature intended the statute be applied in a
manner which would require one to file an action for temporary sickness or discomfort or
risk the loss of a right of action for permanent injury." The court does, however, assign to
a potential plaintiff the responsibility of reasonably assessing their condition. "Of course,
123
Schiele v. Hobart Corp.
one's condition may deteriorate to the point where a delay in seeking medical attention is
no longer reasonable and to further such delay would be to charge the individual with any
knowledge which a medical examination would otherwise have disclosed." The standard
employed is an objective one: "[i]f knowledge of the occupational disease, its symptoms,
and its causes is widespread among persons similarly situated to plaintiff, then . .
.plaintiff, as a reasonable person, should have recognized her condition for what it was
and brought the action within the application period of limitation following the onset of
symptoms."
124
Doe v. Maskell
Doe v. Maskell
Citation. 342 Md. 684; 679 A.2d 1087.
Brief Fact Summary. The Circuit Court for Baltimore City (Maryland) granted
summary judgment to school officials on the Plaintiffs' claims of sexual, physical and
psychological abuse. Plaintiffs sought review.
Synopsis of Rule of Law. The discovery rule holds that a cause of action accrues when
plaintiff knew or should have known that actionable harm has been done to him.
Facts. Two young women, Doe and Roe, (Plaintiffs) attended a Baltimore City parochial
school between 1967 and 1971. During this period, they allege, they were repeatedly
subjected to a variety of abuse, sexual, physical and psychological. Plaintiffs, citing
"repression", claimed they did not begin to become consciously aware of the abuse until
1982. The statute of limitations barred any action for recovery after a period of three
years beyond the Plaintiffs' eighteenth birthdays. Defendants contended they were thus
barred from bringing the action. The trial court agreed, and granted summary judgment.
Issue. Does the discovery rule in conjunction with the time-bar of the statute of
limitations on civil actions apply to cases of allegedly repressed and recovered
memories?
Held. Yes. The court affirmed the judgment of the lower court with costs. The court
framed the issue in terms of ascertaining whether repression existed as a phenomenon
separate and apart from the normal process of forgetting. The court concluded there was
no way to distinguish the two processes scientifically, and thus they should be treated the
same legally.
Discussion. The broader, if tangential, issue presented in Doe v. Maskell was that of
"repressed memory" syndrome, about which experts did not agree. Two schools of
thought emerged: the scientific and the therapeutic. The latter gave greater credence to
the alleged phenomenon. The former, not surprisingly, took the empirical approach and
tended to deny its existence due to the absence of objective data.
Freud described repression as a mechanism that operates unconsciously to make the
memory of painful or threatening events inaccessible to the conscious mind. The court
adopted the definition of a contemporary expert, David S. Holmes, who characterized the
repression as having three essential elements: 1) there is a selective forgetting of painful
recollections; 2) this process is not voluntary; 3) and that such memories are not lost but
stored in the subconscious and may be retrieved if the attendant anxiety is absent.
The discussion is largely academic for purposes of this discussion, except the issue raises
the question, addressed by the court, of how the alleged phenomenon applies with respect
to statutes of limitation. As noted, the court took the more empirical view, stating, "[t]he
studies purporting to validate repression theory are justly criticized as unscientific,
unrepresentative, and biased."
125
Hoery v. United States
Hoery v. United States
Citation. 64 P.3d 214 (Colo. 2003)
Brief Fact Summary. Plaintiff’s well water has been contaminated with chemicals
running off from an Air Force base seven blocks south of Plaintiff’s home. Although the
base closed in 1994, the chemicals continue to seep into the water.
Synopsis of Rule of Law. The statute of limitations will not begin to run for continuing
trespass and nuisance claims until the trespass and nuisance cease.
Facts. In 1993, Plaintiff bought a house seven blocks north of Lowry Air Force Base.
Lowry operated since the 1940’s and finally closed in 1994. In 1997 Defendant, the
United States, tested the well water and found high levels of noxious chemicals.
Although Lowry closed in 1994, chemicals continue to flow into Plaintiff’s well water
and the chemicals that have been flowing inot the water are still on Plaintiff’s property.
Plaintiff filed suit under the Federal Tort Claims Act (FTCA) in 1998, claiming trespass
and nuisance stemming from the presence of the chemicals. The United States District
Court for the District of Colorado dismissed because the claims were barred by a twoyear statute of limitations. The United States Court of Appeals, Tenth Circuit asked the
current Supreme Court of Colorado to review two questions pertaining to state laws of
trespass and nuisance.
Issue. The issue is whether Plaintiff’s claims are time-barred or whether the time never
begins to run for statute of limitations purposes when the nuisance or trespass is
continuing,
Held. When a trespass or nuisance is continuing, the statute of limitations will not begin
to run until the trespass or nuisance cease. The continuing nature of the trespass and
nuisance in this case (the chemicals continue to flow into the well water, and the
chemicals currently there have never been removed) does not bar the Plaintiff who filed
in 1998, even though Defendant’s Air Force base closed in 1994. There is a two-year
statute of limitations, but the clock will not continue until the chemicals stop flowing into
the water.
Dissent. The dissent characterizes the trespass as a permanent trespass and therefore
would consider the time of discover as the point where the time begins to run for the
statute.
Discussion. The distinction between a permanent and a continuing trespass or nuisance is
fact-specific, and this majority and dissenting opinions illustrates how some facts could
be convincingly interpreted either way.
126
Hoery v. United States
CHAPTER XII.
Carriers, Host-Drivers and Landowners
127
Gladon v. Greater Cleveland Regional Transit Auth.
Gladon v. Greater Cleveland Regional Transit Auth.
Citation. 75 Ohio St. 3d 312; 662 N.E.2d 287.
Brief Fact Summary. A jury awarded Gladon (Plaintiff) damages in connection with
being struck by a train operated by Greater Cleveland Regional Transit Authority
(Defendant). Defendant appealed.
Synopsis of Rule of Law. A landowner owes a duty to an invitee to exercise ordinary
care for the invitee's safety and protection. Conversely, a landowner owes no duty to a
licensee or trespasser except to refrain from willful, wanton, or reckless conduct that is
likely to injure him.
Facts. Plaintiff boarded Defendant's train after attending a Cleveland Indians baseball
game. He was assaulted after mistakenly alighting from the train. At some point, Plaintiff
ended up on the tracks with a train approaching. The train's operator was unable to brake
in time and the train struck Plaintiff causing him serious and permanent injuries. Plaintiff
filed suit against the Defendant, alleging negligent security and negligent operation. The
trial court dismissed the security claim, but permitted the negligent operation claim to
proceed to trial. A jury found for Plaintiff and awarded damages. The trial court
instructed the jury to consider the question of whether the evidence showed Plaintiff was
an invitee, and thus entitled to the heightened duty owed by one of that status.
Issue. What was the Plaintiff's status at the time of his injury?
!
What duty of care was Plaintiff owed by the Defendant?
Held. The court ruled that the "RTA's invitation to [Plaintiff] to use their premises did
not extend to the area on or near the tracks," therefore his status was that of trespasser or
licensee and thus subject to an ordinary standard of care requiring the Defendant only "to
discover and avoid danger." The judgment of the lower court was reversed and the action
remanded.
Dissent. The dissent maintained that the majority avoided the fundamental issue at hand,
which was characterized as a constitutional one: "[t]he real issue in this case is whether
any application of [the applicable statute] to reduce or "cap" a jury award in a negligence
action against a political subdivision of the state violates the right to trial by jury." The
dissent took further issue with the majority's characterization of the status of the Plaintiff,
which the dissent maintains is that of "business invitee". The distinction was critical as it
goes directly to the duty of cared owed by Defendant.
Discussion. The common law approach measure the duty owed by the status of the
person entering the land. There are three basic categories: "trespassers," "licensees," and
"invitees." That classification determines the standard of care owed by the land occupier.
In some jurisdictions this approach to liability has been abandoned in favor of a
generalized duty of ordinary care.
128
Gladon v. Greater Cleveland Regional Transit Auth.
!
A "trespasser" is defined as a person who enters or remains on another's
property without the permission (express or implied) of the owner. The
duty owed in this case is very limited. As noted above, the only duty owed
is to refrain from willful harm. A "licensee", in contrast is one who enters
the land with the express or implied consent of the landowner. Social
guests fall under this category. Finally, an "invitee" is a person who enters
the property at the behest of the owner, and this type of person generally
falls into two categories: business invitees and public invitees. The duty
owed an invitee is that the landowner uses reasonable care in maintaining
the premises and in their activities.
129
Bennett v. Stanley
Bennett v. Stanley
Citation. 92 Ohio St.3d 35; 748 N.E.2d 41 (Ohio 2001)
Brief Fact Summary. Plaintiff, Rickey Bennett, as administrator of the estates of his son
and wife, filed a wrongful death and personal injury suit against Defendants, Jeffrey and
Stacey Stanley, for negligently maintaining a swimming pool on their property.
Plaintiff’s son fell in and his wife died apparently while trying to save his son.
Synopsis of Rule of Law. The attractive nuisance doctrine imposes a liability upon a
property owner wherein the property contains an artificial condition that the property
owner should reasonably know will attract passing children, the condition is
unreasonably dangerous to children, the children would not appreciate the danger, the
burden is slight to the owner compared to the danger, and the owner fails to eliminate the
danger.
Facts. Plaintiff came home to find his daughter crying over Plaintiff’s son and wife
falling into Defendants’ pool. Apparently, the son fell in and the wife died while trying
to save him. When Defendants bought their home, they removed the cover and drained
the pool. Since then, Defendants allowed the pool to fill up with rain water, and their
fencing that separated their property from Plaintiff’s deteriorated, leaving an eight-foot
gap. Defendants believed that they owed no more duty to Plaintiff and his family than
they would owe a trespasser.
Issue. The issue is whether Defendants owed a higher duty to children they should have
foreseen would be susceptible to the pool on their property.
Held. The Supreme Court of Ohio adopted the attractive nuisance doctrine, as stated in
the Restatement of the Law 2d, Torts (1965), for their state, thereby imposing a
heightened duty for Defendants in maintaining their pool because it was foreseeable that
Plaintiff’s children may be attracted to the danger. And because Plaintiff’s wife
attempted to rescue a child from the danger, the adult assumes the status of the child.
Dissent. The dissent argues that Plaintiff waived their rights to an attractive nuisance
claim and therefore the doctrine should never have been presented by this court.
Concurrence. Justice C.J. Moyer concurs with the adoption of the attractive nuisance
doctrine but does not want to extend the doctrine to adults
Discussion. Ohio was one of only three states that did not offer some form of heightened
protection for children, but this decision brings them to the majority of states.
130
O'Sullivan v. Shaw
O'Sullivan v. Shaw
Citation. 431 Mass. 201; 726 N.E.2d 951.
Brief Fact Summary. In an action for negligence, the Superior Court, Essex
(Massachusetts) granted Defendants' Motion for Summary Judgment. The court reasoned
that diving into the shallow end of Defendants' pool presented an open and obvious
danger that was known to the Plaintiff, therefore Defendants did not owe a duty of care to
Plaintiff. Plaintiff appealed.
Synopsis of Rule of Law. A landowner's duty to protect lawful visitors against
dangerous conditions on his property ordinarily does not extend to dangers that would be
obvious to persons of average intelligence.
Facts. Plaintiff brought an action to recover damages for injuries incurred after he dove
headfirst into the shallow end of the Defendant's swimming pool. He contended that
Defendants had a duty to warn visitors of the danger of diving into the pool. The Plaintiff
suffered injuries to his neck and back after diving into the shallow end of the pool. He
struck the bottom of the pool at an odd angle and sustained a fracture to the cervical
vertebrae resulting in temporary paralysis. The Superior Court granted Defendants'
Motion for Summary Judgment. Plaintiff appealed, arguing that the Massachusetts
statute, which expressly abolished the defense of assumption of risk, implicitly abolished
the open and obvious danger defense.
Issue. Did Defendants owe a duty to Plaintiff to warn him of the danger of diving into
the shallow end of Defendants' swimming pool?
!
Did Plaintiff, by exposing himself to an obvious danger, assume the risk of
harm associated with the activity in question?
Held. The appellate court affirmed the lower court's judgment, concluding that the
statute in question did not relieve Plaintiff of the burden of proving Defendant owed him
a duty of care that superceded the "open and obvious danger" rule. The standard of care
owed by a defendant presumes that a plaintiff is required to exercise reasonable care for
his own safety.
Discussion. Along with contributory negligence, the court explains, assumption of risk is
traditionally the second complete defense to a negligence claim. The assumption of risk
defense contains three basic elements. A plaintiff must 1) know a particular risk; and 2)
voluntarily; 3) assume the risk. In seeking to avoid the confusion and potential for
arbitrariness for juries, many jurisdictions have opted for a more generalized reasonable
person standard with respect to the degree of reasonable care a land possessor must
exercise with regard to safety of those entering upon his or her property. This approach
presumes a duty of reasonable care is owed to any land entrant regardless of his or her
status.
131
Minnich v. Med-Waste, Inc.
Minnich v. Med-Waste, Inc.
Citation. 349 S.C. 567 (S.C. 2002)
Brief Fact Summary. Plaintiff, Jeffrey Minnich, was employed as a safety officer.
During the loading of hazardous material to the truck of Defendant, Med-Waste, Inc.,
Plaintiff suffered injuries while trying to stop Defendant’s runaway truck.
Synopsis of Rule of Law. The “Firefighter’s Rule” precludes public safety personnel
from recovering for injuries sustained on the job regardless of a defendant’s negligence.
Facts. Plaintiff, acting as a public safety officer, was loading medical waste material
onto Defendant’s truck. The unoccupied truck began rolling forward and Plaintiff
jumped inside to stop the runaway vehicle. Plaintiff sustained serious injuries while
stopping the truck. The United States District Court presented a certified question to the
Supreme Court of South Carolina to determine if the “Firefighter’s rule” applied.
Issue. The issue is whether South Carolina follows the “Firefighter’s Rule” regarding
injuries suffered by safety officer personnel in the line of duty that stem from the
negligence of another.
Held. South Carolina does not impose the Firefighter’s Rule because safety personnel
would be inherently discriminatory to safety officers as opposed to other professions.
Other jurisdictions have been inconsistent, have too many exceptions or have abolished
the rule.
Discussion. The Firefighter’s Rule was adopted by some jurisdictions for public policy
concerns (the injuries are typically covered by worker’s compensation, safety personnel
understand the danger when choosing this profession), but the Court reasons that the
public policy concerns are outweighed by the unfairness of two sets of standards.
132
Rowland v. Christian
Rowland v. Christian
Citation. 69 Cal. 2d 108; 443 P.2d 561.
Brief Fact Summary. The Superior Court of the City and County of San Francisco
(California) granted summary judgment in favor of Nancy Christian (Defendant). Roland
(Plaintiff), a social guest, had brought an action to recover damages for personal injuries
caused by a defective bathroom fixture in an apartment occupied by Defendant. Plaintiff
appealed.
Synopsis of Rule of Law. The proper test to be applied to the liability of a landowner is
whether in the management of his property, he has acted as a reasonable man in view of
the probability of injury to others. A guest is reasonably entitled to be warned of any
dangerous condition, so that he may take necessary precautions.
Facts. Plaintiff was a guest in Defendant's apartment. The porcelain handle of the
bathroom faucet broke while Plaintiff was using it. He suffered severed tendons and
nerves. Defendant had known about the damaged fixture and had reported it to her
lessors, yet did not warn Plaintiff. Plaintiff brought suit for recovery and the trial court
granted Defendant summary judgment.
Issue. Had the trial court, in granting summary judgment in favor of Defendant, applied
the proper standard for duty of care?
Held. No. The Supreme Court of California held that a social guest such as Plaintiff was
entitled to a warning of a dangerous condition so that he, like the host, could take proper
precautions.
Dissent. The dissent took issue with what he viewed as a departure from an established
and workable framework. He noted, "[i]n determining the liability of the occupier or
owner of land for injuries, the distinctions between trespassers, licensees and invitees
have been developed and applied by the courts over a period of many years." It was not a
proper function of the court to overturn this system, which had predominated tort law for
years. Instead, it is the job of the legislature to enact statutes to provide guidelines for the
modern society.
Discussion. In common law, the degree of liability assigned an owner or occupier of
land was assessed according to the status of persons entering the property. The law
evolved in such a manner as to place primary importance on land ownership, and thus the
standards of liability were, literally, "status" conscious. Thus, whether the entrant of a
property was a "trespasser", a "licensee" or an "invitee" determined the degree of care
owed.
!
In Rowland, California is one of the first states to depart from the common
law approach, stating that "[i]t is apparent that the classifications of
trespasser, licensee, and invitee, the immunities from liability predicated
upon those classifications, and the exceptions to those immunities, often
133
Rowland v. Christian
do not reflect the major factors that should determine whether immunity
should be conferred upon the possessor of land." It is unreasonable to
apply the historical or traditional terminology to modern society. The
classifications do not take into account certain factors that need to be
considered, which include: "the defendant's conduct, the moral blame
attached to the defendant's conduct, the policy of preventing future harm,
and the prevalence and availability of insurance." It no longer makes sense
to hold someone to a certain duty of care, based on these classifications.
To find that one person is owed a lesser duty of care than another based on
these archaic classifications, offends society's moral and humanitarian
values.
!
Therefore, the court outlined a different test, which provides that "whether
in the management of his [Defendant's] property he has acted as a
reasonable man in view of the probability of injury to others, and,
although the plaintiff's status as a trespasser, licensee, or invitee may in
the light of the facts giving rise to such status have some bearing on the
question of liability, the status is not determinative." Thus, the court
adopts a more generalized "reasonable person" standard.
134
Pagelsdorf v. Safeco Ins. Co.
Pagelsdorf v. Safeco Ins. Co.
Citation. 91 Wis. 2d 734; 284 N.W.2d 55.
Brief Fact Summary. In Pagelsdorf's (Plaintiff) claims of negligence in the Circuit
Court for Milwaukee County (Wisconsin) the jury verdict in favor of Plaintiff. Plaintiff
appealed.
Synopsis of Rule of Law. A landlord is under a duty to exercise ordinary care in the
maintenance of the premises.
Facts. Richard J. Mahnke (Defendant) owned a duplex, which had four balcony porches,
two on each unit. He rented the upper unit to John and Mary Katherine Blattner
(Blattners). Plaintiff was assisting the Blattners in moving from an apartment, when a
section of balcony railing gave way. He suffered various injuries when he fell. A
subsequent inspection revealed that the railing assembly had dry rot. There was evidence
that Defendant had contracted for general repairs of the premises, but that the provision
was limited to defects known to him.
Issue. Did the general common law principle of nonliability of landlords still apply?
Held. The Supreme Court of Wisconsin concluded that there was no remaining
justification for the landlord's general cloak of common law immunity and abolished the
general common law principle of nonliability of landlords toward persons injured as a
result of their defective premises. The jury verdict in favor of Defendant on Plaintiff's
claim of negligence was reversed and the case remanded.
Discussion. Pagelsdorf is representative of the departure from the traditional view,
which granted landlords broad preclusion from liability for injuries occurring on their
property.
The traditional view was that a lease was a conveyance of the land, which governed the
landlord-tenant relationship. This invested full control in the tenant during the duration of
the lease. Thus, the landlord owed no tort duty to the lessee. In the modern view, and as
the court in Pagelsdorf articulated, there exist a number of exceptions: common areas,
negligent repairs, undisclosed dangerous conditions known to the lessor, lessor's
covenant to repair, premises leased for admission to the public, and dangerous condition
to persons outside the leased premises. All jurisdictions have come to recognize these in
one form or another. Most jurisdictions now require a plaintiff's claim to fall within one
of these in order to establish that a landlord owes a particular duty. Certain jurisdictions
have expanded such liability so that a landlord owes a general duty of reasonable care to
all on the land regarding conditions on the leased premises.
In adopting a more general approach to liability, the court in Pagelsdorf concluded, "[i]f a
person lawfully on the premises is injured as a result of the landlord's negligence in
maintaining the premises, he is entitled to recover from the landlord under general
135
Pagelsdorf v. Safeco Ins. Co.
negligence principles." Further, the court added, "[m]odern social conditions called for
judicial recognition of a warranty of habitability implied in an apartment lease."
136
Pagelsdorf v. Safeco Ins. Co.
CHAPTER XIII.
Duties of Medical and Other Professionals
137
Walski v. Tiesenga
Walski v. Tiesenga
Citation. 72 Ill. 2d 249; 381 N.E.2d 279.
Brief Fact Summary. In a medical malpractice action, the Appellate Court for the First
District (Illinois) affirmed a directed verdict entered in favor of Appellees. Appellants
sought review.
Synopsis of Rule of Law. One element of a cause of action for medical malpractice is
proof of the standard of care by which the physician's conduct is to be measured. A
physician must exercise that degree of care, skill, and proficiency exercised by
reasonably careful, skillful, and prudent practitioners in the same class to which he
belongs, acting under the same or similar circumstances.
Facts. Appellants operated to remove Appellee's thyroid. A common risk in such a
procedure is damage to the patient's recurrent laryngeal nerves, resulting in a loss of his
or her voice. In attempting to segregate the laryngeal nerves in order to avoid damage, the
Appellants mistakenly cut them, causing paralysis of the vocal chords. The trial court
directed a verdict in favor of the Appellants and the intermediate appellate court affirmed.
Issue. Did Appellee meet the burden of establishing Appellants' medical malpractice?
Held. The Supreme Court of Illinois affirmed the directed verdict entered in favor of the
Appellants. The court held that the patient failed to establish a standard that the doctors
were bound to follow. The plaintiff in a medical malpractice action must establish the
standard of care through expert testimony.
Discussion. The court recognized the difficulty inherent in requiring a jury to evaluate
certain standards of professional conduct. Expert testimony is necessary to establish that
a defendant fell below the standard of care. A court could only dispense with such a
requirement "where the physician's conduct is so grossly negligent or the treatment so
common that a layman could readily appraise it, no expert testimony is necessary."
!
A plaintiff's introduction of conflicting expert testimony, the common
scenario of "dueling experts", alone may not be sufficient to meet the
burden of establishing professional error. As the court clarified, "[i]t is
insufficient in a medical malpractice action for plaintiff to establish a
prima facie case merely to present testimony of another physician that he
would have acted differently from the defendant, because medicine is not
an exact science. It is rather a profession, which involves the exercise of
individual judgment within the framework of established procedures.
Differences in opinion are consistent with the exercise of due care."
Finally, the court concludes, "[i]t has always been the rule that the
testimony of other physicians that they would have followed a different
course of treatment than that followed by the defendant, or a disagreement
138
Walski v. Tiesenga
of doctors of equal skill and learning as to what the treatment should have
been, does not establish negligence."
139
Vergara v. Doan
Vergara v. Doan
Citation. 593 N.E.2d 185.
Brief Fact Summary. The Court of Appeals of Indiana affirmed the trial court's
judgment, which was a jury verdict in favor of Defendant. Plaintiffs brought an action
against the Defendant for injuries sustained by their infant son. Plaintiffs alleged that
their infant suffered severe and permanent injuries during delivery as a result of the
Defendant's negligence. Plaintiffs appealed.
Synopsis of Rule of Law. A physician must exercise that degree of care, skill, and
proficiency exercised by reasonably careful, skillful, and prudent practitioners in the
same class to which he belongs, acting under the same or similar circumstances.
Facts. This was a case alleging medical malpractice, in which Plaintiffs contend that
Defendant failed in his professional responsibility in performing a cesarean section
Plaintiff's infant son, Javier Vergara, suffered severe and permanent injuries as a result of
the cesarean. Plaintiffs alleged that these injuries were the result of the Defendant's
negligence.
Issue. Did the lower court properly instruct the jury regarding the standard to apply in
evaluating Defendant's professional conduct?
Held. No. The Supreme Court of Indiana opted to adopt a more objective standard,
which is articulated above.
Dissent. The dissent objected to the standard outlined by the majority, because the
ability of a physician in a rural community hospital may be vastly different than his or her
ability in a large metropolitan hospital. The dissent contends that the majority position
served to confuse, rather than clarify, the standard of care to which physicians were
expected to adhere.
Discussion. Prior to Vergara, Indiana employed a professional standard of care, "the
modified locality rule," which differentiated between the manners of treatment acceptable
in different locales. In adopting the new standard, the Vergara court simply brought
Indiana law in line with the more universal, objective standard employed by the majority
of jurisdictions.
140
Velazquez ex rel. Velazquez v. Jiminez
Velazquez ex rel. Velazquez v. Jiminez
Citation. 172 N.J. 240 (N.J. 2002)
Brief Fact Summary. Plaintiff mother was a patient giving birth to Plaintiff son. A
second doctor with no prior relationship to Plaintiffs assisted with the delivery after there
were severe complications. Plaintiff son was born with serious defects.
Synopsis of Rule of Law. Physicians that assist with medical emergencies within a
hospital are not eligible for immunity under Good Samaritan statutes.
Facts. Plaintiff mother, Charmaine Velazquez, was a patient at a hospital where
Defendant, Dr. Angela Ranzini, assisted another doctor to deliver Plaintiff mother’s baby
(the hospital and other medical staff are not part of this appellate decision). Defendant
had no prior association with Plaintiff mother but offered assistance after there were
complications with the pregnancy. Defendant moved for summary judgment,
maintaining that she should be immunized from any judgment under New Jersey’s Good
Samaritan statute. The trial court ruled that a physician helping within a hospital would
not fall under the statute and a jury found Defendant liable for three percent of the
damages. The Superior Court, Appellate Division of New Jersey affirmed that the Good
Samaritan statute did not apply.
Issue. The issue is whether Defendant physician is subject to immunity under New
Jersey’s Good Samaritan Act , N.J. Stat. § 2A:62A-1 when he assisted in the delivery of
Plaintiff child.
Held. A physician assisting with medical emergencies inside a hospital does not qualify
for immunity under the Good Samaritan Act. The court will not broaden the language to
encompass a group that the legislature did not intent to protect under the Act. Other
jurisdictions have statutes that specifically address issues similar to the case at bar and
New Jersey could have done the same. There is no unjust result by not granting
immunity because Defendant is responsible for only a nominal portion of the damages.
Dissent. The dissent is not convinced that the legislature did not intent to immunize
physicians in a hospital who had no pre-existing duty to act. The concern is that
physicians will avoid helping when they do not have to in order to avoid liability.
Discussion. As the Court explains, a majority of Good Samaritan statutes are written in a
similar manner as New Jersey’s Act. Some jurisdictions do provide immunity for
physicians, including some that originally had statutes similar to New Jersey.
141
Smith v. Knowles
Smith v. Knowles
Citation. 281 N.W.2d 653.
Brief Fact Summary. Trustee, Clinton E. Smith (Appellant) commenced a wrongful
death action on behalf of his wife and his baby girl. The District Court, Blue Earth
County (Minnesota) dismissed his action against Dr. Knowles (Appellee). Appellant
sought review of the decision.
Synopsis of Rule of Law. In order for a plaintiff to maintain a medical malpractice
action, he or she must introduce testimony as to both the standard of care and the
defendant doctor's departure from that standard. The standard that a physician must
exercise is that degree of care, skill, and proficiency exercised by reasonably careful,
skillful, and prudent practitioners in the same class to which he belongs, acting under the
same or similar circumstances. In order to establish that defendant failed to adhere to this
standard, expert testimony is necessary.
Facts. This action was as a result of the deaths of Diane Smith (Smith) and her unborn
child. Both died as a result of eclampsia, the full development of eclamptic toxemia, a
serious complication of pregnancy when convulsions result from increased blood
pressure, albumin in the urine, and the retention of fluid in the patient's tissues. Appellant
testified that his wife had suffered a number of symptoms and had notified Dr. Knowles.
Appellant contended that Appellee was negligent in failing to make a timely diagnosis of
Smith's pre-eclampsia, and in treating that condition once it was diagnosed. The parties
presented contradicting evidence as to whether Smith had showed symptoms of preeclampsia prior to her admission to the hospital in February, 1974. Appellant failed to
call independent medial witnesses. He relied on the introduction of excerpts from medical
treatises, and the cross-examination of Appellee. The trial court concluded that such
evidence was insufficient to meet the burden of proof. The Supreme Court of Minnesota
affirmed.
Issue. Was the granting of the Motion for Directed Verdict proper?
Held. Yes. The court affirmed the granting of the Motion for Directed Verdict.
Discussion. As the court explained, "[t]o establish a prima facie case in (a medical
malpractice action) the plaintiff here must introduce testimony as to both the standard of
care and the defendant doctor's departure from that standard." Specifically, a physician
must exercise that degree of care, skill, and proficiency exercised by reasonably careful,
skillful, and prudent practitioners in the same class to which he belongs, acting under the
same or similar circumstances. Expert testimony was required in order to establish also
that a defendant's failure to adhere to such a standard was the direct cause of the
decedent's death. Since jurors are not skilled in the practice of medicine, it would be
exceedingly difficult for them to evaluate a physician's degree of skill and his or her
adherence to the highest standards of professional care. Absent the introduction of expert
medical testimony, the court noted, a jury would be compelled to "speculate as to
142
Smith v. Knowles
whether earlier diagnosis or different treatment would have resulted in a cure." This the
trial court found unacceptable and the appellate court agreed.
143
States v. Lourdes Hospital
States v. Lourdes Hospital
Citation. 762 N.Y.S.2d 1 (N.Y. 2003)
Brief Fact Summary. Plaintiff, Kathleen States, underwent surgery to remove an ovarian
cyst. Defendant anesthesiologist administered anesthesia through Plaintiff’s arm, and
when she awoke her arm remained in pain.
Synopsis of Rule of Law. Expert testimony can be used to educate a jury on the
probability that a given injury would have occurred without the claimed negligence.
Facts. Plaintiff underwent surgery to remove an ovarian cyst. Prior to removal,
Defendant placed her arm on a board to administer an IV tube. Plaintiff felt a burning
sensation as soon as the tube was inserted, but there was no direct evidence of what
happened during surgery. Plaintiff presented an expert that would testify that the injury
resulting from the surgery was due to her arm being in an awkward position during
surgery.
Issue. The issue is whether Plaintiff can enlist the testimony of an expert to support a res
ipsa loquitur theory.
Held. The Court of Appeals of New York held that expert testimony may be used to
help a lay jury understand whether a particular injury could have been the result of
anything other than Defendant negligence. One element of a res ipsa loquitur theory of
negligence is that an injury must be due to the negligence of the defendant, but in the case
of medical malpractice the facts may be too complicated for a jury to understand without
expert guidance.
Discussion. The negligence doctrine of res ipsa loquitur has three elements: the injury
must be a type that would not happen but for negligence; the defendant was the only
party capable of the negligence; and the plaintiff did not contribute to the injury. An
expert can be used to explain the first element.
144
Ybarra v. Spangard
Ybarra v. Spangard
Citation. 25 Cal. 2d 486; 154 P.2d 687.
Brief Fact Summary. In a personal injury action, the Superior Court of Los Angeles
County (California) entered judgments of nonsuit as to all Defendants in an action for
damages for personal injuries. Plaintiff appealed.
Synopsis of Rule of Law. The doctrine of res ipsa loquitur applies with equal force in
cases wherein medical and nursing staffs take the place of machinery and may, through
carelessness or lack of skill, inflict, or permit the infliction of, injury upon a patient who
is thereafter in no position to say how he received his injuries.
Facts. Plaintiff was diagnosed with appendicitis and was scheduled for surgery. After
being given an injection, and in the course of preparation for surgery members of the
surgical team adjusted Plaintiff, so that his back rested against two hard objects. After
surgery, Plaintiff complained of neck and back pain. He testified that prior to the
operation he had never had any such pain, nor had he suffered any injury that might have
been the cause. His condition worsened, eventually resulting in paralysis. The evidence
established that his condition was the result of trauma. He brought suit.
Issue. Would the application of the doctrine of res ipsa loquitur have been appropriate in
this case, thus rendering the trial court's judgment of nonsuit improper?
Held. Yes. The Supreme Court of California reversed the lower court's ruling because
the res ipsa loquitur doctrine applied to Defendants, because they had control over
Plaintiff's body and instrumentalities that might have caused the injuries which Plaintiff
sustained.
Discussion. In explaining the applicability of res ipsa loquitur, the Supreme Court of
California provided a very broad interpretation of res ipsa loquitur, stating: "[t]he
doctrine of res ipsa loquitur has three conditions: (1) the accident must be of a kind which
ordinarily does not occur in the absence of someone's negligence; (2) it must be caused
by an agency or instrumentality within the exclusive control of the defendant; (3) it must
not have been due to any voluntary action or contribution on the part of the plaintiff. It is
applied in a wide variety of situations, including cases of medical or dental treatment and
hospital care." The court's application of the doctrine carries particular significance
within the parameters of medical malpractice claims: "[w]here a 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 which might have
caused the injuries may properly be called upon to meet the inference of negligence by
giving an explanation of their conduct."
145
Harnish v. Children's Hospital Medical Center
Harnish v. Children's Hospital Medical Center
Citation. 387 Mass. 152; 439 N.E.2d 240.
Brief Fact Summary. The Superior Court (Massachusetts) dismissed Harnish's
(Plaintiff) negligence claim after a medical malpractice tribunal concluded that Plaintiff's
evidence was inadequate. Plaintiff sought review.
Synopsis of Rule of Law. A physician owes his patient the duty to disclose in a
reasonable manner all significant medical information that the physician possesses or
reasonably should possess, which is material to in order for the patient to make an
intelligent decision whether or not to undergo a proposed procedure. Failure to do so
constitutes professional misconduct.
Facts. Plaintiff underwent surgery to remove a tumor in her neck. In the course of the
procedure her hypoglossal nerve was severed, allegedly resulting in the critical loss of
certain functions of her tongue. She brought suit, contending that the purpose of the
procedure was cosmetic, and the resulting injury foreseeable. She maintained that if she
had been apprised of the risk, she would not have consented to the procedure. Thus, she
asserted, the physicians treating her did not properly inform her of the possible
consequences and should have been held liable.
Issue. To what degree is a physician required to disclose medical information so as to
enable a patient to give informed consent to a course of treatment?
!
What information is material, and thus necessary for a patient to be
sufficiently informed?
Held. The court reversed the dismissal of the Plaintiff's action against the Defendants. It
held that the surgeon's failure to divulge to a competent adult patient, sufficient
information to enable the patient to make an informed judgment whether to give or
withhold consent to a medical or surgical procedure, constituted professional misconduct.
Discussion. Harnish illustrates another basis for medical malpractice liability: a
physician's failure to provide information to the patient. In these circumstances, liability
flows from the defendant's failure to obtain the plaintiff's informed consent. Regarding
such consent, the Harnish court explained: "[i]n the context of informed consent,
materiality may be said to be the significance a reasonable person, in what the physician
knows or should know is his patient's position, would attach to the disclosed risk or risks
in deciding whether to submit or not to submit to surgery or treatment." The court further
addresses the question of what facts are material and would factor into the consideration
of what constitutes informed consent: "[a]ppropriate information may include the nature
of the patient's condition, the nature and probability of risks involved, the benefits to be
reasonably expected, the inability of the physician to predict results, if that is the
situation, the irreversibility of the procedure, if that be the case, the likely result of no
treatment, and the available alternatives, including their risks and benefits."
146
Arrington v. Wong
Arrington v. Wong
Citation. 237 F.3d 1066 (9th Cir. 2001)
Brief Fact Summary. Decedent, Harold Arrington, suffered a heart attack and was taken
by ambulance to the nearest hospital, Defendant Queens Medical Center, but the
ambulance was redirected to a further hospital by Defendant physician, Norbert Wong.
Decedent died shortly after arriving to the next hospital
Synopsis of Rule of Law. Under the Emergency Medical Treatment and Active Labor
Act of 1986 (EMTALA), a patient who is en route to the hospital emergency room by
ambulance is considered an individual protected under the act from being redirected.
Facts. Decedent felt pains at work, and a co-worker phoned for an ambulance. The
ambulance began driving towards the nearest hospital, Defendant hospital, and radioed
Wong of their imminent arrival and the condition of Decedent. Wong, upon hearing that
Decedent’s physician was at a hospital five miles further, redirected the ambulance to the
other hospital. Decedent’s condition worsened and he died soon after his arrival.
Decedent’s case was dismissed by the United States District Court for the District of
Hawaii because Decedent did not actually come to the emergency room, and thereby did
not qualify as an individual protected under EMTALA.
Issue. The issue is whether, under the EMTALA statute, Decedent is considered an
“individual that comes to” the Defendant’s emergency room.
Held. The EMTALA statute does encompass individuals who are redirected en route to
the emergency room. To define “come” in the statute, the Untied States Court of Appeals
for the Ninth Circuit looked to agency guidelines to define the ambiguous term. The
Department of Health and Human Services clearly warned hospitals not to avoid the
statute by redirecting patients before they make it to the hospital. The only reason for
redirecting a patient is if the hospital is in diversionary status, meaning if they were not
staffed or equipped to handle the patient’s condition. Defendant did not offer proof that
this was the case.
Dissent. The dissent reasons that the plain meaning of the statute does not encompass
people who are not physically on the hospital premises. If Congress intended the reach
contemplated by the majority, they could have chosen alternative language to make that
clear. Furthermore, the agency regulation is ambiguous and invalid and is not allowed to
extend the scope of the statute.
Discussion. The majority did not believe there was a plain meaning to “come” in this
statute and decided to define it, referencing agency rules, broadly enough to cover a
patient en route to a hospital.
147
Horizon/CMS Healthcare Corp. v. Auld
Horizon/CMS Healthcare Corp. v. Auld
Citation. 985 S.W.2d 216.
Brief Fact Summary. In a personal injury action, a jury awarded the estate $2.37
million in actual damages and $90 million in exemplary damages for injuries the patient,
Martha Hary (Hary) had suffered due to the nursing home's negligent medical care. The
District Court for Tarrant County (Texas) reduced the judgment. Both Plaintiff and
Defendant appealed the judgment.
Synopsis of Rule of Law. Evidence of a defendant's subjective knowledge of the peril
his conduct creates is admissible to prove gross negligence. The damages caps (imposed
by the Texas statute) are constitutional when applied to a statutory suit for wrongful
death, but unconstitutional when applied to a common law suit for personal injury. When
an appellant seeks reversal of a judgment based upon the admission or exclusion of
evidence, the standard of review requires the court to examine the entire record to
determine whether the whole case turned on the evidence that is complained about.
Facts. In August, 1994, 76 year-old Hary became a resident of Defendant's nursing
home. Over the period of one year, Auld, the administratrix of Hary's estate, (Plaintiff)
established that Hary had suffered a series of medical conditions exacerbated by the
nursing home's failure to properly administer care. These included Stage IV pressure
sores and contractures in all extremities, requiring painful medical treatment. In August,
1995, Hary was taken from the nursing home and transferred to a hospital where she
required ten days of treatment.
Issue. Was the nursing home liable for negligence?
!
Were the jury awards for damages proper?
!
Did the trial court err in permitting into evidence investigative reports
from the Texas Department of Human Services?
Held. The court of appeals affirmed the lower court's judgment against Defendant for
negligence. It held that there was sufficient evidence to support the jury's findings for
damages, and that there was no abuse of discretion in the admission of the report.
Discussion. The overriding issue in Horizon was the awarding of damages more so than
the factual determination of negligence. The Court of Appeals of Texas outlined the issue
of damages generally: "[t]hose who suffer personal injury as a consequence of the
negligence of another can recover two kinds of damages: first, damages for noneconomic losses that go by the name of physical pain and mental suffering; second,
economic losses, such as expenses and loss of earnings. Damages are lumped into three
categories: (1) pain and suffering, (2) expenses, and (3) loss of earnings. They are of just
as much importance with respect to settlements as they are with respect to claims that are
pursued to a court judgment." Additionally, with respect to separate (as opposed to
148
Horizon/CMS Healthcare Corp. v. Auld
actual) damages, the court explained, "[t]he purpose of exemplary or punitive damages is
to protect society by punishing an offender, not to compensate the injured party. The
distinction is illustrated by another dictionary's definition of the term 'compensatory
damages' as damages awarded to make good or compensate for an injury sustained,
distinguished from punitive damages."
149
CHAPTER XV.
Governmental Entities And Officers
150
Loge v. United States
Loge v. United States
Citation. 662 F.2d 1268.
Brief Fact Summary. The United States District Court for the Western District of
Arkansas dismissed the complaint of Mr. and Mrs. Loge (Plaintiffs), in which they
alleged liability of the United States and unknown employees of the Department of
Health, Education, and Welfare (HEW) (Defendants) under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. The court based its decision on the ground
that it failed to state a cause of action. Plaintiffs appealed.
Synopsis of Rule of Law. The victims of a constitutional violation by a federal agent
have a right to recover damages against the official in federal court despite the absence of
any statute conferring such a right. An action is available even though Plaintiffs'
allegations could also support a suit filed under the FTCA.
Facts. In 1963, the Secretary of HEW licensed a lab to manufacture Orimune, a polio
vaccine. There was a risk to those inoculated of contracting the disease. Ms. Loge was
exposed to the poliovirus in 1976, when her infant son was inoculated. She developed
polio, and became paraplegic. She and her husband brought suit.
Issue. Did the Department of HEW assume the duty of cared owed by the drug
manufacturer therefore making it liable under FTCA?
Held. Yes. The United States Court of Appeals for the Eighth Circuit concluded that the
district court erred in its ruling that the Plaintiffs had failed to state a claim under
Arkansas law.
Discussion. Discretionary immunity is that immunity afforded to public officials when
they make decisions founded on planning or policy considerations. The decision in Loge
indicates that when federal regulations incorporate a standard of safety, the government's
violation of that standard is not discretionary but subject to liability. As the court stated,
"[t]he Federal Tort Claims Act is not a federal remedial scheme at all, but a waiver of
sovereign immunity that permits an injured claimant to recover damages against the
United States where a private person would be liable to the claimant in accordance with
the law of the place where the act or omission occurred." The court described government
liability in culpable terms, i.e., that in violating its own standard it was constructively
negligent when it stated that "[i]t can be said that the government increased the risk of
harm to the Loges by licensing an allegedly untested or negligently tested lot of that
vaccine: if either the product itself or a particular lot of that product failed to conform to
standards established by the regulations, then proper testing or proof of testing would
have revealed the nonconformity and the vaccine would never have been disseminated."
Its action then was not the function of careful adherence to policy, but failure to do so,
which removed the cloak of discretionary immunity.
151
Maas v. United States
Maas v. United States
Citation. 94 F.3d 291.
Brief Fact Summary. The United States District Court for the Northern District of
Illinois, Eastern Division, dismissed negligence claims against the United States
(Defendant) on the grounds that the Federal Tort Claims Act (FTCA) barred such claims.
Plaintiffs appealed.
Synopsis of Rule of Law. Claims for injuries, which arise out of, or in the course of
military service are outside the FTCA's waiver of sovereign immunity. Sovereign
immunity is restored when injuries to servicemen arise out of or are in the course of
activity, which is incident to service.
Facts. In January, 1968, a United States Air Force B-52 armed with four thermonuclear
weapons crashed in Greenland. The plane was destroyed, and highly radioactive
plutonium and tritium fragments were strewn over the area as a result of the hundreds of
tons of jet fuel and high explosives having ignited on impact. Plaintiffs were among 300
servicemen assigned to clean up the wreckage. They alleged that they suffered from
cancer as a result of exposure related to the cleanup operation.
Issue. Did discretionary governmental immunity preclude liability and thus bar
Plaintiffs' claims?
Held. Yes. The court affirmed the dismissal of Plaintiffs' claims because 28 U.S.C. 2675
(b), the Feres doctrine, barred claims against the government by servicemen that arose
out of activity incident to service, and the discretionary function exception to the FTCA
barred claims based on Defendant's failure to inform Plaintiffs of their increased cancer
risk.
Discussion. The type of immunity at issue in Maas falls under the umbrella of
discretionary immunity, i.e., that immunity afforded public officials when they make
decisions founded on planning or policy considerations. Citing prior authority, the court
framed its analysis in the following manner: "[t]he United States Court of Appeals for the
Seventh Circuit has recognized two factors in determining whether the discretionary
function exception bars suit against the United States: (1) it covers only discretionary
acts, that is, which involve an element of judgment or choice; and (2) even assuming the
challenged conduct involves an element of judgment, it remains to be decided whether
that judgment is of the kind that the exception was designed to shield."
!
As the court further noted, "[t]o survive a motion to dismiss a claim
against the government because it falls within the discretionary function
exception of the Federal Tort Claims Act, plaintiffs need to plead facts
that support a finding that the challenged actions are not conduct grounded
in the policy of a regulatory regime." Finally, the court concludes,
"[b]ecause the purpose of the exception is to prevent judicial second-
152
Maas v. United States
guessing of legislative and administrative decisions grounded in social,
economic, and political policy, it protects only governmental actions and
decisions based on considerations of public policy."
153
Riss v. New York
Riss v. New York
Citation. 22 N.Y.2d 579; 240 N.E.2d 860; 293 N.Y.S.2d 897.
Brief Fact Summary. The Appellate Division of the Supreme Court in the First Judicial
Department (New York) affirmed a lower court's dismissal of Linda Riss' (Appellant)
complaint alleging that New York (Respondent) was liable for its failure to protect
Appellant. Appellant contested the order.
Synopsis of Rule of Law. The court refused to hold the government liable, in the
absence of legislation, or to carve out an area of tort liability for police protection to
members of the public.
Facts. Appellant had been terrorized for months by a rejected suitor, a man named
Pugach. This involved threats of serious injury and death. Appellant consistently sought
the protection of police. She eventually became engaged to another man, and during a
party celebrating her engagement, the rejected suitor called her threatening that it was her
"last chance." She contacted police again, but they did not act. Pugach hired an assailant
to throw lye into Appellant's face. She was blinded in one eye, lost most of her sight in
the other, and her face was permanently disfigured. She brought an action against the
police department for failing to protect her. The trial court dismissed her action, and the
Appellate division affirmed.
Issue. Was the city liable for its failure to provide special protection for a member of the
public, who had been subject to constant threats, repeatedly requested such protection,
and eventually suffered egregious harm when those threats were carried out?
Held. No. The court cited policy considerations when it held that the protection afforded
citizens is a general one, and it was not within the purview of the court to require police
protection of the public.
Discussion. Governmental immunity protects the government from tort liability.
Traditionally such immunities were complete and prevented any tort suits against the
government. The general immunity provision at issue here is founded on policy
considerations, or as the court put it, such immunity involved "the provision of a
government service to protect the public generally from external hazards and particularly
to control the activities of criminal wrongdoers (emphasis added)."
!
A tertiary issue the court raised concerned the proper means by which the
scope of public responsibility might be broadened in the context of rising
crime and other societal problems. The court defers to the legislative
process, specifically stating: "[t]o foist a presumed cure for these problems
by judicial innovation of a new kind of liability in tort would be foolhardy
indeed and an assumption of judicial wisdom and power not possessed by
the courts." Based on this rationale, the court concluded, "[t]here is no
warrant in judicial tradition or in the proper allocation of the powers of
154
Riss v. New York
government for the courts, in the absence of legislation, to carve out an
area of tort liability for police protection to members of the public."
155
Harry Stoller & Co. v. Lowell
Harry Stoller & Co. v. Lowell
Citation. 412 Mass. 139; 587 N.E.2d 780.
Brief Fact Summary. The Superior Court (Massachusetts) entered a judgment
notwithstanding the verdict in Appellant's action against Appellee based upon the alleged
negligence of city firefighters in fighting fires in the owner's buildings. The court
concluded that the city was exempt from liability under the discretionary function
exception of Section 10 (b) of the Massachusetts Tort Claims Act. The Appellant
appealed.
Synopsis of Rule of Law. Discretionary immunity protects government officials from
tort liability when, in their official capacity, they make decisions founded on planning or
policy considerations.
Facts. Appellee's property, which consisted of five brick buildings, was destroyed in a
fire that began on the sixth floor of one of the buildings. A sprinkler system, that had
been tested just days before, was available, but firefighters, departing from accepted
practice, opted not to use it. They unsuccessfully fought the fire with hoses, and the
buildings were destroyed. A jury awarded Appellee damages in the amount of
$785,000.00, but the trial judge granted a judgment not withstanding the verdict for the
Appellant pursuant to the state discretionary immunity statute.
Issue. Was the means employed by the firefighters the subject of discretionary choice
therefore granting them immunity from liability?
Held. No. The conduct that caused the fire to engulf all the owner's buildings was not
founded on planning or policy considerations, and was negligent. The firefighters
therefore had no discretionary immunity. The court reversed the trial court's entry of a
judgment notwithstanding the jury.
Discussion. Governmental immunity protects the government from tort liability.
Such immunities were granted based on different rationales, and in the past were
complete and prevented any tort suits against the government.
!
More recently, many states and the federal government have passed
detailed statutes modifying the immunities in specific instances. The
general immunity provision at issue in Stoller, the type founded on
planning or policy considerations, allows immunity for discretionary
functions. Specifically, as the court noted, "[i]f the governmental actor had
no discretion because a course of action was prescribed by a statute,
regulation, or established agency practice, a discretionary function
exception to governmental liability has no role to play in deciding the
case." More complicated, however, is when the court must make a call as
to whether the officials in question, in this case firefighters, had a
particular statutorily granted liability. The court explained its reasoning in
156
Harry Stoller & Co. v. Lowell
the following manner, concluding that: "[i]f the injury-producing conduct
was an integral part of governmental policymaking or planning, if the
imposition of liability might jeopardize the quality of the governmental
process, or if the case could not be decided without usurping the power
and responsibility of either the legislative or executive branch of
government, governmental immunity would probably attach."
157
Thompson v. County of Alameda
Thompson v. County of Alameda
Citation. 27 Cal. 3d 741, 167 Cal. Rptr. 70, 614 P.2d 728.
Brief Fact Summary. The Superior Court of Alameda County (California) granted the
County of Alameda's (Appellees) general demurrer in Appellants' claims for damages in
connection with the murder of their son. Appellants sought review.
Synopsis of Rule of Law. The determination of whether or not to release an offender
was a discretionary decision, which is entitled to immunity under Cal. Gov't Code §
820.2, when made by the appropriate authorities. The decision to parole someone,
comprises the resolution of policy considerations, entrusted by statute to a coordinate
branch of government, that compels immunity from judicial reexamination.
Facts. A juvenile offender, James F., was in the custody of Appellee. The complaint in
the instant case alleged that James F. knew he had "latent, extremely dangerous and
violent propensities regarding young children and that sexual assaults upon young
children and violence connected therewith were a likely result of releasing [him] into the
community." It was further alleged that James F. had stated that if released he would kill
a neighborhood child. The county nevertheless released him, temporarily, into his
mother's custody, without warning local police or nearby families. Almost immediately,
James F. sexually assaulted and murdered a five year-old boy, Appellants' son.
Appellants brought a wrongful death action against Appellees. The trial court sustained
Appellee's demurrer.
Issue. Whether any action or inaction by Appellee in releasing a known dangerous
juvenile offender on temporary release had led to the death of Appellants' son; and
!
Whether Appellee was protected by immunity.
Held. The Supreme Court of California held that the county "had no affirmative duty to
warn Plaintiffs, the police, the mother of the juvenile offender, or other local parents."
With regard to the question of immunity, the county was protected under Cal. Gov't Code
§ 820.2, because the decision not to warn was a matter of discretion. Further, pursuant to
Cal. Gov't Code § 845.8(a), immunity was granted specifically to decisions regarding the
release of a prisoner.
Dissent. Justice Tobriner in his dissent launches his argument in two prongs: 1) the
propriety of the granting of demurrer; and 2) a challenge to the Appellee's immunity.
!
First, he deems the granting of demurrer improper, because there was no
statute, which granted immunity to Appellee.
!
An immunity, unlike a defense, is not dependent on the plaintiff's conduct,
but on the defendant's status or relationship to the plaintiff. Such a
relationship determines the duty owed the plaintiff, and in many
jurisdictions that duty is heightened when it has been determined that a
158
Thompson v. County of Alameda
"special relationship" exists between plaintiff and defendant. This
distinction lies at the heart of the dissent's second argument. Relying on an
earlier case, Tarasoff v. Regents of the University of California, 551 P.2d
334 (Cal. 1976), Justice Tobriner explains, "[t]he county, having custody
of James, stood in a 'special relationship' to James that imports a duty to
control his conduct and to warn of danger." The dissent concludes that a
defendant owes a duty of care to all persons who are foreseeably
endangered by his conduct.
Discussion. Many jurisdictions confer immunity on local officials, and the California
statutes upon which the court in Thompson relied, are fairly representative of those in
many jurisdictions. The determination of whether or not to release someone from custody
is discretionary under Cal. Gov't Code § 820.2 when made by the appropriate authorities.
Further, this decision necessarily relies on policy considerations, which has been
entrusted by statute, to a coordinate branch of government. Therefore, Appellee is
granted immunity in this action. The court further amplified its reasoning with respect to
the practical and policy considerations behind its decision, noting, "The legislature has
concluded that the benefits to society from rehabilitative release programs mandate their
continuance. Within this context and for policy reasons the duty to warn depends upon
and arises from the existence of a prior threat to a specific identifiable victim."
159
Vaughn v. Ruoff
Vaughn v. Ruoff
Citation. 253 F.3d 1124 (8th Cir. 2001)
Brief Fact Summary. Plaintiff wife, Margaret Vaughn, brought due process claims
against Defendant social workers, claiming that she was coerced by Defendants to
undergo sterilization. Defendants argue that they have qualified immunity.
Synopsis of Rule of Law. A defendant will not have qualified immunity when they were
aware or should have been aware that their conduct violated a plaintiff’s constitutional
right.
Facts. Plaintiff wife was mildly retarded. Plaintiffs had two children that were both
taken away because their home was unsanitary. Plaintiff was on birth control when she
had the second child, so Defendants suggested sterilization. Defendants further
commented to Plaintiffs that their chances to regain custody of their children may
improve if she was sterilized. After the sterilization was performed, Plaintiffs’ parental
rights to their two children were terminated.
Issue. The issue is whether Defendants are entitled to qualified immunity against the due
process claims.
Held. The United States Court of Appeals for the Eight Circuit held that Defendants
violated Plaintiffs Due process rights when they deprived Plaintiffs of their reproductive
rights through coercion. Further, a reasonable jury could have concluded that Defendants
should have known their conduct was unconstitutional as it occurred and therefore are not
protected through qualified immunity.
Discussion. The Court first determined whether a constitutional violation occurred, and
then they determined whether the Defendants should have known or did know that they
violated Plaintiffs’ constitutional rights. Still, a defendant could receive qualified
immunity if their actions were considered reasonable under the circumstances.
160
Navarro v. Block
Navarro v. Block
Citation. 72 F.3d 712.
Brief Fact Summary. Maria Navarro (Navarro) was shot and killed by her estranged
husband on her birthday after she called 911 to request emergency assistance. She had a
restraining order against him. The dispatcher at the Sheriff's office, relying on the
county's policy and practice of not treating 911 requests for assistance relating to
domestic violence as "emergency" calls, did not send a police unit to Navarro's residence.
The Navarro family (Plaintiffs) filed suit against Los Angeles County and the Sheriff
(Defendants), who handled 911 calls. The trial court granted summary judgment for the
Defendants on all claims. The appellate court affirmed in part, and reversed and
remanded in part.
Synopsis of Rule of Law. Municipalities may not be held liable under 42 U.S.C.S. §
1983 unless action pursuant to official municipal policy of some nature causes a
constitutional tort. In addition to an official policy, a municipality may be sued for
constitutional deprivations caused by governmental custom even though such custom
does not receive formal approval through the governmental body's official decisionmaking channels.
Proof of random acts or isolated events are insufficient to establish custom. But a plaintiff
may prove the existence of a custom or informal policy with evidence of repeated
constitutional violations for which the errant municipal officials are not discharged or
reprimanded. Once such a showing is made, a municipality may be liable for its custom
irrespective of whether official policy-makers have actual knowledge of the practice at
issue.
Facts. Navarro was celebrating her birthday when she received a call from her brotherin-law warning her that her estranged husband, Raymond, was on his way to her house to
kill her. Navarro called 911 to request help. She told the dispatcher that she had a
restraining order against her husband, but the dispatcher stated that nothing could be done
until he showed up. Fifteen minutes later, he showed up and shot and killed Navarro and
four other people.
The Plaintiffs filed suit against Los Angeles County and the Sheriff (Defendants), under
42 U.S.C.S. § 1983, alleging that the municipality had a discriminatory policy and
custom of according lower priority to 911 calls related to domestic violence than to nondomestic violence calls. Thus, impermissibly discriminating against abused women.
Issue. Did the district court err in granting summary judgment in favor of the municipal
agents?
!
Did the Plaintiffs provide sufficient evidence that the Defendants showed
deliberate indifference in the training of the dispatchers?
161
Navarro v. Block
Held. Yes. The appellate court affirmed a portion of the judgment, but held that there
were genuine issues of material fact as to whether there was a custom of not classifying
the domestic violence calls as emergencies. The court held that the testimony of a
dispatcher, if proven, could have established that the municipal agents had a policy in
treating domestic violence calls differently and therefore the district court erred in
granting summary judgment to them.
!
No. The appellate court held that the Plaintiffs failed to provide sufficient
evidence on their claim of deliberate indifference in the training of the
dispatchers and that portion of the judgment was affirmed.
Discussion. The Equal Protection Clause of the Fourteenth Amendment states: "[n]o
state shall …deny to any person within its jurisdiction the equal protection of the laws."
Gender based classifications must pass the "intermediate scrutiny" test, i.e., the
classification "must serve important governmental objectives and must be substantially
related to achievement of those objectives."
!
The Plaintiffs contend that the Defendants' custom of treating domestic
violence 911 calls differently from non-domestic violence calls
impermissibly discriminates against abused women. The custom of
according different treatment to victims of domestic violence is genderneutral on its face. However, it is well established that discriminatory
application of a facially neutral law also offends the United States
Constitution.
!
Nevertheless, a long line of Supreme Court cases make clear that the
Equal Protection Clause requires proof of discriminatory intent or motive.
!
Judge Harry Pregerson, writing for the United States Court of Appeals for
the Ninth Circuit, stated, "[i]n the present case…aside from the conclusory
allegation that the county's custom of not classifying domestic violence
calls as an emergency discriminates against abused women, the Navarros
have failed to offer any evidence of such invidious intent or motive."
!
"Nevertheless, even absent evidence of gender discrimination, the
Navarro's equal protection claim still survives because they could prove
that the domestic violence/non-domestic violence classification fails even
the rationality test." Therefore, the court concluded that "[b]ecause the
district court did not review the rationality of the County's domestic
violence/non-domestic violence classification, the appellate court
remanded for a proper determination."
162
CHAPTER XVI.
Nonfeasance
163
Yania v. Bigan
Yania v. Bigan
Citation. 397 Pa. 316, 155 A.2d 343 (1959).
Brief Fact Summary. Plaintiff appealed a judgment from the Somerset County Court of
Common Pleas (Pennsylvania) that sustained John Bigan's (Defendant) demurrer. It
dismissed her wrongful death and survival actions against Defendant, which arose from
the death of the Plaintiff's husband, Joseph Yania (Yania).
Synopsis of Rule of Law. A possessor of land becomes subject to liability to a business
invitee for any physical harm caused by any artificial or natural condition upon the land:
(1) if, but only if, the owner knew or could have discovered the condition which, if
known to him he should have realized involved an unreasonable risk of harm to the
business invitee; (2) if the owner had no reason to believe the business invitee would
discover the condition or realize the risk of harm; and (3) if he invited or permitted the
business invitee to enter upon the land without exercising reasonable care to make the
condition reasonably safe or give adequate warning to enable him to avoid the harm.
Facts. Defendant was engaged in a coal strip-mining operation, whereby trenches were
dug in order to remove coal deposits. One trench contained several feet of water, and
Defendant had placed a pump in the trench to remove the water. Defendant asked Yania,
the operator of another coal strip-mining operation, to assist him in starting the pump.
According to Plaintiff, Defendant taunted and urged Yania to jump into the water. Yania
jumped into the water and drowned.
The Plaintiff initiated wrongful death and survival actions against Defendant, alleging
that Defendant taunted her husband, failed to warn him of the danger, and failed to rescue
him.
The trial court sustained Defendant's demurrer and dismissed Plaintiff's actions. On
appeal, the court affirmed, holding that Yania was a reasonable and prudent adult and
performed an act, which he knew or should have known, was perilous. Justice Benjamin
R. Jones held that it was the performance of that act and not defendant's conduct which
caused Yania's death.
Issue. Did the trial court err in ruling in favor of Defendant?
Held. No. The trial court properly ruled for Defendant. Although Defendant enticed
Yania to perform a dangerous act, it was the performance of that act that caused Yania's
death, not the enticement.
Discussion. On appeal, the court stated that the "only inference deductible from the facts
alleged in the compliant is that Bigan, by the employment of cajolery and inveiglement,
caused such a mental impact on Yania that the latter was deprived of his volition and
freedom of choice and placed under a compulsion to jump into the water."
164
Yania v. Bigan
The appellate court reasoned that had Yania been a child of tender years or a person
mentally deficient then it is conceivable that taunting and enticement could constitute
actionable negligence if it resulted in harm. However, to contend that such conduct
directed to an adult in full possession of all his mental faculties constitutes negligence is
without merit.
!
The fact that Defendant saw Yania in a position of peril in the water,
imposed upon him a moral duty, not a legal duty. The court held that
absent a legal responsibility to rescue Yania for placing him in the perilous
position, there was no duty of rescue.
165
Wakulich v. Mraz
Wakulich v. Mraz
Citation. 322 Ill.App.3d 768 (Ill.App 1 Dist. 2001)
Brief Fact Summary. Plaintiffs, mother Mary Louise Wakulich and the estate of sixteenyear old decedent Elizabeth Wakulich, brought a wrongful death suit against Defendants,
Dennis Mraz et al, after Elizabeth died after drinking at Defendants home.
Synopsis of Rule of Law. Dram shop statutes may preempt social host liability, although
the defendants may still be negligent in their duty to care for an unconscious guest.
Facts. Elizabeth was at Defendants’ home when two of the defendants offered her
money and dared her to drink a quart of hard liquor without vomiting or losing
consciousness. After drinking it, Elizabeth lost consciousness and began vomiting.
Defendant father ordered his Defendant sons to move her from the home. She later died
at a friend’s home.
Issue. The issue is whether Defendants owed any duty to Plaintiff as a social host that
would render them liable for her death.
Held. The Appellate Court of Illinois, First District, Second Division, followed
precedent that held that Illinois Dram Shop Act (235 Ill. Comp. Stat. 5/6-21 (1996))
preempted any common law liability for social hosts. As a result, there is no law in
which to state a claim for a duty of care in this case. However, the facts do suggest that
Defendants had a duty to care for Elizabeth after she lost consciousness when they laid
her down and attempted to prop her up as she vomited. Therefore there is a cause of
action in their negligence in caring for her.
Discussion. The legislature never acted to impose liability for social hosts, and the court
had a history of not extending liability to social hosts.
166
Farwell v. Keaton
Farwell v. Keaton
Citation. 396 Mich. 281; 240 N.W.2d 217.
Brief Fact Summary. Plaintiff appealed a ruling from the Court of Appeals of
Michigan, which held that Defendant did not assume a duty to aid his companion, and
neither knew nor should have known of the need for medical treatment, in a wrongful
death action for negligence.
Synopsis of Rule of Law. Courts have been slow to recognize a duty to render aid to a
person in peril. When such a duty has been found, it has been predicated upon the
existence of a special relationship between the parties; in such a case, if defendant knew
or should have known of the other person's peril, he is required to render reasonable care
under all circumstances. Such a defendant will then be liable for a failure to use
reasonable care for the protection of the plaintiff's interests.
Facts. Richard Farwell, 18, and his friend David Siegrist, 16, had a few beers while
waiting for a friend to finish work. When teenage girls walked by they attempted
conversation without success. The girls complained to friends that they were being
followed, and six boys chased Farwell and Siegrist back to a trailer lot. Siegrist escaped,
but Farwell was severely beaten. Siegrist found him under a car, put ice on his head and
then drove around for two hours, stopping at drive-in restaurants. Farwell "went to sleep"
in the back of the car and around midnight Siegrist drove him to his grandparents' home,
where he left him in the back of the car after an attempt to arouse him. Farwell died three
days later from the beating and there was evidence that prompt medical attention could
have prevented this.
The jury found for the Plaintiff in an action for Farwell's death, but the court of appeals
reversed on the ground that Siegrist had not assumed any duty to aid Farwell.
Issue. Did the appellate court err in reversing the trial court's ruling in favor of Plaintiff?
Held. Yes. The Supreme Court of Michigan reversed and reinstated the jury verdict,
finding that Defendant had an affirmative duty to aid, because he had a special
relationship with the deceased, he knew or should have known of the peril the deceased
was in, and he could have rendered assistance without endangering himself.
Discussion. Farwell and Siegrist were companions on a social venture. As such, a
special relationship existed between the parties. Implicit in such a common undertaking is
the understanding that one will render assistance to the together when he is in peril if he
can do so without endangering himself. Siegrist knew or should have known when he left
Farwell, who was badly beaten and unconscious, in the back seat of his car that no one
would find him before morning. Under these circumstances, to say that Siegrist had no
duty to obtain medial assistance or at least to notify someone of Farwell's condition and
whereabouts would be "shocking to humanitarian considerations" and fly in thecae of
"the commonly accepted code of social conduct."
167
Farwell v. Keaton
Therefore, on appeal, the court reversed and reinstated the jury verdict, finding that
Defendant had the affirmative duty to aid, because he had a special relationship with the
deceased, he knew or should have known of the peril the deceased was in, and he could
have rendered assistance without endangering himself.
168
DeShaney v. Winnebago County
DeShaney v. Winnebago County
Citation. 489 U.S. 189.
Brief Fact Summary. The mother of an abused child, Ms. DeShaney (Petitioner)
brought an action pursuant to 42 U.S.C.S. § 1983 against Winnebago County Department
of Social Services (Department) and its various employees, (Respondents) for failing to
intervene to protect the child from beatings by his father. The United States Court of
Appeals for the Seventh Circuit affirmed the trial court's order granting summary
judgment in favor of Respondents. Petitioner sought review.
Synopsis of Rule of Law. Nothing in the language of the Due Process Clause of the
Fourteenth Amendment requires a state to protect the life, liberty, and property of its
citizens against invasion by private actors.
Facts. In 1984, four-year-old Joshua DeShaney went into a coma resulting in profound
retardation due to traumatic head injuries inflicted by his father who physically beat him
over a long period of time. The Department received numerous complaints of the abuse
and took various steps to protect the child. The Department did not, however, remove
Joshua from his father's custody. Ms. DeShaney subsequently sued the Department. She
contended that the Department had deprived the child of his "liberty interest in bodily
integrity, in violation of his rights under the substantive component of the Fourteenth
Amendment's Due Process Clause, by failing to intervene to protect him against his
father's violence."
Issue. Does a state, in failing to protect an individual against private violence, violate the
Due Process Clause of the Fourteenth Amendment?
Held. No. The Due Process Clause does not impose a special duty on the state to provide
services to the public for protection against private actors if the state did not create those
harms. "The Clause is phrased as a limitation on the State's power to act, not as a
guarantee of certain minimal levels of safety and security; while it forbids the State itself
to deprive individuals of life, liberty, and property without due process of law, its
language cannot fairly be read to impose an affirmative obligation on the State to ensure
that those interests do not come to harm through other means."
Dissent. Justice Brennan, joined by Justices Marshall and Blackmun, dissented. Brennan
focused on "the State's knowledge of [the] individual's predicament [and] its expressions
of intent to help him" i.e., the Department of Human Services' involvement in the case
and its having learned of the violence inflicted on the child. Brennan essentially equated
this to a "limitation of his freedom to act on his own behalf." In other words, the
involvement of the Department effectively precluded non-government entities from
intervening, and when the Department failed to act on suspicions of child abuse it became
morally culpable for the harm that ensued.
169
DeShaney v. Winnebago County
Discussion. In its analysis the Supreme Court of the United States determined that the
Fourteenth Amendment did not require a state or local governmental agency to protect its
citizens from private violence or other mishaps not attributable to the conduct of its
employees. The Court draws the distinction between the limits of government action and
government responsibility: "[a]lthough the liberty protected by the Due Process Clause
affords protection against unwarranted government interference, it does not confer an
entitlement to such governmental aid as may be necessary to realize all the advantages of
that freedom." The state's responsibility to protect citizen is one of general scope: "[i]f the
Due Process Clause does not require a state to provide its citizens with particular
protective services, it follows that a state cannot be held liable under the Due Process
Clause for injuries that could have been averted had it chosen to provide them." Thus, the
Court concluded, "[t]he Due Process Clauses generally confer no affirmative right to
governmental aid, even where such aid may be necessary to secure life, liberty, or
property interests of which the government itself may not deprive the individual."
170
CHAPTER XVII.
Contract And Duty
171
Thorne v. Deas
Thorne v. Deas
Citation. 4 Johns. 84.
Brief Fact Summary. Plaintiffs filed an action for nonfeasance. Judgment was granted
to the Plaintiffs. Defendant appealed.
Synopsis of Rule of Law. One who takes on a responsibility gratuitously is not
responsible for consequences if he fails to act; he is only responsible when he attempts to
act and performs incorrectly.
Facts. Plaintiffs brought an action against Defendant for failure in his promise to insure
a boat that they jointly and equally owned. Prior to a planned sailing from New York to
North Carolina, Defendant promised Plaintiffs that he would insure the vessel. He failed
to do so, and the vessel was wrecked near the Carolina coast. Plaintiffs brought suit for
"nonfeasance" alleging that Defendant was liable for having failed to insure the vessel.
Issue. In tort law, can a defendant be held liable for failing to act when he has promised
to do so gratuitously?
Held. No. The court held that only when a party engages in a course of action on behalf
of another, and does so incorrectly is he held liable.
Discussion. The primary distinction is between the laws of torts and contracts. At issue
was whether there existed grounds for an action in tort. The court asserts that only when
one begins a job and he does so incorrectly can damages be assessed. He would be
responsible for a misfeasance, but not for a nonfeasance. The court further stated that one
cannot sue in tort for broken promises. As the court notes, "[t]here are many rights of
moral obligation which civil laws do not enforce, and are, therefore, left to the conscience
of the individual, as rights of imperfect obligation."
172
Mobil Oil Corp. v. Thorn
Mobil Oil Corp. v. Thorn
Citation. 401 Mich. 306; 258 N.W.2d 30.
Brief Fact Summary. The Court of Appeals of Michigan awarded Mobil Oil Corp.'s
(Plaintiff) Motion for Summary Judgment in Thorn's (Defendant) breach of contract
action. The court denied Defendant's personal injury counterclaim on the basis that "an
action in tort could not properly be predicated by a lessee upon a breach by a lessor of an
agreement to make repairs." Defendant sought review.
Synopsis of Rule of Law. A lessor of land is subject to liability for physical harm
caused to his lessee and others upon the land with the consent of the lessee or his
sublessee by a condition of disrepair existing before or arising after the lessee has taken
possession if (a) the lessor, as such, has contracted by a covenant in the lease or otherwise
to keep the land in repair; (b) the disrepair creates an unreasonable risk to persons upon
the land which the performance of the lessor's agreement would have prevented; and (c)
the lessor fails to exercise reasonable care to perform his contract. Restatement (Second)
of Torts § 357.
Facts. Plaintiff sued its lessee service station operator for monies due from the sales.
Defendant counterclaimed in connection with an injury that occurred on the premises of
the station alleging that the slippery floors were caused by a roof leak that Plaintiff had
failed to repair. The service station operator contended that Plaintiff was obligated to do
so by contractual provision. The trial court held this was no basis for liability and the
court of appeals confirmed.
Issue. Did the longstanding rule still apply, as the lower courts had confirmed, that an
action in tort could not have been predicated, by a lessee, upon a breach by the lessor of
an agreement to make repairs?
Held. No. The court determined that the old principle no longer applied. It held that the
lessor could have been properly held liable for personal injuries that resulted from his
failure to make repairs pursuant to the lease provision.
Discussion. The law of property formerly governed most negligence claims within the
realm of lease agreements. The traditional view was that a lease invested full control in
the tenant during its duration. Thus, the landlord owed no tort duty to the lessee. In the
modern view, there exist a number of exceptions: common areas, negligent repairs,
undisclosed dangerous conditions known to the lessor, lessor's covenant to repair,
premises leased for admission to the public, and dangerous condition to persons outside
the leased premises. All jurisdictions have come to recognize these in one form or
another. Most jurisdictions now require a plaintiff's claim to fall within one of these in
order to establish that a landlord owes a particular duty. "If a person lawfully on the
premises is injured as a result of the landlord's negligence in maintaining the premises, he
is entitled to recover from the landlord under general negligence principles." See
Pagelsdorf v. Safeco Ins. Co., 91 Wis. 2d 734; 284 N.W.2d 55.
173
H. R. Moch Co. v. Rensselaer Water Co.
H. R. Moch Co. v. Rensselaer Water Co.
Citation. 247 N.Y. 160, 159 N.E. 896.
Brief Fact Summary. The Appellate Division of the Supreme Court in the Third
Judicial Department (New York) ruled in favor of Rensselaer Water Co., (Defendant)
when H.R. Moch Co., (Plaintiff) in a negligence action, contended that defendant failed
to provide enough water during a city fire. Plaintiff appealed.
Synopsis of Rule of Law. A member of the public may not maintain an action against
one contracting with the city to furnish water at the hydrants, unless there is an intention
that the defendant is to be answerable to individual members of the public as well as to
the city for any loss ensuing from the failure to fulfill the promise.
Facts. Defendant had entered into a long-term contract with the city to supply water for
various purposes, including for fire hydrants. During the course of the contract, a building
caught fire. The flames spread to a nearby warehouse, owned by Plaintiff, destroying the
warehouse and all it contained. Plaintiff brought suit, seeking negligence damages,
contending that Defendant breached its duty of care within the city. The trial court denied
Defendant's Motion to Dismiss. The appellate court reversed, stating that while a duty
existed between Defendant and the city, Plaintiff had no legally recognized interest.
Issue. Did Defendant's duty to the city extend to Plaintiff as an individual member of the
public?
Held. No. The Court of Appeals of New York affirmed the lower court's ruling, stating
that pursuant to the local statute, Defendant was never intended to be held liable for
incidental damages from performing its services.
Discussion. The issue addressed in H.R. Moch hinges on the degree of duty owed to a
third party pursuant to a public contract. This is often referred to as privity, or a party's
legally recognized interest. As the court explained with respect to the rights of individual
citizens affected by public contracts, "[f]or a member of the public to maintain a suit
against one contracting with the city, the contract must be shown to give a right of action
to a member of the public not formally a party. The benefit must be one that is not merely
incidental and secondary. It must be primary and immediate in such a sense and to such a
degree as to bespeak the assumption of a duty to make reparation directly to the
individual members of the public if the benefit is lost."
174
Paz v. State Of California
Paz v. State Of California
Citation. 22 Cal. 4th 550, 93 Cal. Rptr. 2d 703, 994 P.2d 975.
Brief Fact Summary. The Court of Appeal of California, Second Appellate District,
Division Three reversed the Superior Court, Los Angeles County, grant of summary
judgment to defendants and imposed tort liability. Appellant sought review.
Synopsis of Rule of Law. A negligent undertaking claim of liability to third parties
requires evidence that: (1) the actor undertook, gratuitously or for consideration, to render
services to another; (2) the services rendered were of a kind the actor should have
recognized as necessary for the protection of third persons; (3) the actor failed to exercise
reasonable care in the performance of the undertaking; (4) the actor's failure to exercise
reasonable care resulted in physical harm to the third persons; and (5) either (a) the
actor's carelessness increased the risk of such harm, or (b) the actor undertook to perform
a duty that the other owed to the third persons, or (c) the harm was suffered because
either the other or the third persons relied on the actor's undertaking. Restatement Torts,
2d §324.
Facts. The city, as a condition of granting a permit, required a development company to
install traffic signals and road markings. The developer subcontracted an engineering
firm that, in turn, subcontracted another firm to design and install the signals. Nearly two
years went by, and the signals had not been installed (partially due to delay in the
subcontractor's obtaining permits from the state). Plaintiff was riding his motorcycle and
crashed into a car at an intersection in the residential neighborhood under development.
Plaintiff sued several defendants, including the state and its transportation department,
claiming negligence in their failure to install traffic signals. The Superior Court granted
defendants' motion for summary judgment. The Court of Appeal reversed.
Issue. Was Plaintiff owed a duty pursuant to the "negligent undertaking" statute?
Held. No. The court held that under the negligent undertaking theory, three conditions
were required none of which was present in the case at bar.
Dissent. The dissent takes the view that a relationship of reliance existed between
Plaintiff and the State as a result of the contract with the developer, thus the State owed a
duty and the third condition of the statute was met. "Once a developer has made a
commitment to install a needed safety measure as a condition of obtaining a development
permit and goes ahead with work under the permit . . . the local entity and the public
reasonably anticipate that the safety measure in question will be provided within a
reasonable period of time."
Concurrence. The concurrence, in contrast, maintains hat there was no breach of
obligation on the part of the developer, and thus no reliance which would have fulfilled
the condition in question.
175
Paz v. State Of California
Discussion. The primary consideration with regard to negligence actions and tort law
generally is whether Defendant owed a duty of care to Plaintiff. As the court explained,
"The general rule is that a person who has not created a peril is not liable in tort for
failing to take affirmative action to protect another unless they have some relationship
that gives rise to a duty to act. However, one who undertakes to aid another is under a
duty to exercise due care in acting and is liable if the failure to do so increases the risk of
harm or if the harm is suffered because the other relied on the undertaking." The
California statute upon which the court relied (see above) generally reflects the principle
employed in most jurisdictions, i.e., a person (or in this case, an entity) typically has no
legal obligation to control the conduct of another or to take steps to protect another from
harm absent a special relationship.
!
With regard to gratuitous consideration, as noted, the court enunciated
three conditions under which it is necessary for an individual to be liable
for the protection of a third person: One who undertakes, gratuitously or
for consideration, to render services to another which he should recognize
as necessary for the protection of a third person or his things, is subject to
liability to the third person for physical harm resulting from his failure to
exercise reasonable care to perform his undertaking, if (a) his failure to
exercise reasonable care increases the risk of such harm, or (b) he has
undertaken to perform a duty owed by the other to the third person, or (c)
the harm is suffered because of reliance of the other or the third person
upon the undertaking.
!
Thus absent a special relationship, a voluntary undertaking, or the
establishment of detrimental reliance, the court concluded that Plaintiff
had not met the necessary burden to sustain his cause of action.
176
Florence v. Goldberg
Florence v. Goldberg
Citation. 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 N.E.2d 763.
Brief Fact Summary. Carol Florence (Plaintiff) brought an action to recover damages
for personal injuries suffered by her infant son, who was struck by a taxicab operated by
Goldberg (Defendant). Plaintiff recovered against Goldberg and the city. The latter
appealed. The Appellate Division of the Supreme Court in the Second Judicial
Department reversed the judgment of the Supreme Court. Plaintiff challenged the
decision.
Synopsis of Rule of Law. To sustain liability against a municipality, the duty breached
must be more than the duty owed to the general public. There must exist a special
relationship between the municipality and the plaintiff, resulting in the creation of a duty
to use due care for the benefit of particular persons or classes of persons.
Facts. Plaintiff regularly walked her six year-old to school, and noted that the city police
had stationed a crossing guard at a busy intersection. Noting the presence of the guard,
Plaintiff ceased accompanying the child to school. One day, the crossing guard called in
sick and, although Department regulations required the posting of a substitute when the
usual guard was indisposed, no substitute was dispatched. The school principal was not
informed f the situation. The child was struck while crossing the street and suffered
severe brain damage.
Issue. In failing to provide a crossing guard, was the city negligent and thus liable for
Plaintiff's damages?
Held. No. Holding that in this instance there existed no duty flowing from the
municipality to the Plaintiff, the court of appeals affirmed the ruling of the Appellate
Division.
Discussion. With regard to the responsibility owed by municipalities to members of the
general public, a special relationship must exist to create a heightened duty on the part of
the municipality. As the court states: "[a] municipality cannot be held liable for failure to
furnish adequate police protection. This duty, like the duty to provide protection against
fire, flows only to the general public. Where, however, a special relationship exists
between a municipality and a plaintiff creating a duty, albeit one normally inuring only to
the benefit of the public at large, a municipality may be held liable for damages suffered
as a consequence of its negligence." The law views the latter framework of determination
of duty owed as a matter of public policy, best guided by the Legislature and not by the
courts. The court in Florence explained, "[t]he extent of public services afforded by a
municipality is, as a practical matter, limited by the resources of the community.
Deployment of these resources remains, as it must, a legislative-executive decision which
must be made without the benefit of hindsight."
177
CHAPTER XVIII.
The Duty To Protect From Third Persons
178
Posecai v. Wal-Mart Stores
Posecai v. Wal-Mart Stores
Citation. 752 So. 2d 762.
Brief Fact Summary. The Supreme Court of Louisiana granted Defendant's application
for a writ of certiorari, to review Fifth Circuit, Jefferson Parish, Court of Appeals'
decision, which found Defendant liable for Plaintiff's injuries.
Synopsis of Rule of Law. Under the duty-risk analysis, the plaintiff must prove that the
conduct in question was the cause-in-fact of the resulting harm, i.e., that the defendant
owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and
the risk of harm was within the scope of protection afforded by the duty breached. Under
the duty-risk analysis, all inquiries must be answered in the affirmative for plaintiff to
recover.
Facts. Plaintiff was robbed in the parking lot of a Sam's Club, owned by Wal-Mart
Stores (Defendant). Plaintiff sued, contending that Defendant was negligent in failing to
provide adequate security in the parking lot considering the high level of crime in the
surrounding area. The trial judge ruled for Plaintiff. Defendant appealed.
Issue. Was the risk of harm suffered by Plaintiff foreseeable to Defendant thus imposing
sole liability for damages?
!
Should Louisiana adopt a different test for foreseeability?
Held. No. The court reversed the judgment of the court of appeals, entered judgment in
favor of the Defendant. The court concluded that Defendant owed no duty to protect
Plaintiff from being robbed in Defendant's parking lot, because it was not foreseeable.
!
Yes. The court adopted a new standard, a balancing test formulated in
California and adopted by Tennessee, in which courts balance the
foreseeability of harm to a potential plaintiff and the burden of imposing a
duty on a business to protect against the criminal acts of third persons.
Discussion. Posecai illustrates the standard framework in analysis of tort law - that is the
four elements of duty, breach, causation and harm. With regard to duty, the court offers a
broad explanation: "[a] threshold issue in any negligence action is whether the defendant
owed the plaintiff a duty. Whether a duty is owed is a question of law. In deciding
whether to impose a duty in a particular case, the court must make a policy decision in
light of the unique facts and circumstances presented. The court may consider various
moral, social, and economic factors, including the fairness of imposing liability; the
economic impact on the defendant and on similarly situated parties; the need for an
incentive to prevent future harm; the nature of defendant's activity; the potential for an
unmanageable flow of litigation; the historical development of precedent; and the
direction in which society and its institutions are evolving."
179
Posecai v. Wal-Mart Stores
!
Once a duty is established, a second issue arises with respect to proximate
cause: foreseeability, i.e., whether the defendant should have reasonably
foreseen, as a risk of her conduct, the general consequences or type of
harm suffered by the plaintiff. As the Posecai notes, "[t]he foreseeability
of the crime risk on the defendant's property and the gravity of the risk
determine the existence and the extent of the defendant's duty. The greater
the foreseeability and gravity of the harm, the greater the duty of care that
will be imposed."
!
Finally, with respect to the new standard the court adopted, the court
explained that "[t]he balancing test addresses the interests of both business
proprietors and their customers by balancing the foreseeability of harm
against the burden of imposing a duty to protect against the criminal acts
of third persons. In determining the duty that exists, the foreseeability of
harm and the gravity of harm must be balanced against the commensurate
burden imposed on the business to protect against that harm. In cases in
which there is a high degree of foreseeability of harm and the probable
harm is great, the burden imposed upon defendant may be substantial.
Alternatively, in cases in which a lesser degree of foreseeability is present
or potential harm is slight, less onerous burdens may be imposed. Under
this test, the high degree of foreseeability necessary to impose a duty to
provide security, will rarely, if ever, be proven in the absence of prior
similar incidents of crime on the property."
180
Marquay v. Eno
Marquay v. Eno
Citation. 139 N.H. 708, 662 A.2d 272.
Brief Fact Summary. In connection with a suit by female students (Plaintiffs), against
school district, officials, teachers, coaches, and employees (Defendants), arising out of
allegations of exploitation, harassment, assault, and sexual abuse, the United States
District Court for the District of New Hampshire certified state law questions.
Synopsis of Rule of Law. The relation of the parties determines whether any duty to use
due care is imposed by law upon one party for the benefit of another. If there is no
relationship, there is no duty.
Facts. Plaintiffs, former students in a public school district, brought separate complaints
alleging abuse, sexual and otherwise, by one or more of the employees of the school
district. Also alleged was that several other school district employees knew, or should
have known, of the abuse. The federal district court in which the suits were brought
certified questions for the Supreme Court of New Hampshire.
Issue. Did the state statute create a private right of action in favor of abused children
against those who have violated the statute's reporting requirements?
!
Was violation of the reporting statute negligence per se?
Held. The court answered the certified questions (as follows) and remanded the case to
the federal district court.
!
The reporting statute does not support a right of private action for its
violation because there was no express or implied legislative intent to
create such civil liability.
!
Because the duty to which the statute speaks - reporting abuse - is
different from the duty on which the cause of action is based, a violation
of the reporting statute does not constitute negligence per se in an action
based on inadequate supervision of a student.
Discussion. Concerning the responsibility owed by municipalities to members of the
general public, a special relationship must exist to create a heightened duty on the part of
the municipality. Thus, the Supreme Court of New Hampshire conducts its analysis in
terms of the duty owed by school district employees and whether such relationships were
present in the instant case.
!
The court first addressed the question of whether all school district
employees had a common law duty to protect students in circumstances
such as those brought before the bar. The court answered, briefly, yes and
no. The threshold question is one of the relationship between the employee
in question and the student putatively at risk. "[t]he duty falls upon those
181
Marquay v. Eno
school employees who have supervisory responsibility over students and
who thus have stepped into the role of parental proxy. Those employees
who share such a relationship with a student and who acquire actual
knowledge of abuse or who learn of facts which would lead a reasonable
person to conclude a student is being abused are subject to liability if their
level of supervision is unreasonable and is a proximate cause of a student's
injury." Thus, the court clarified that "[t]he principal or superintendent
rarely has primary supervisory authority over a student. Because, however,
it is the school to which parents turn over custody of their children and
from which they expect safety and because the superintendent and
principal are charged with overseeing all aspects of the school's operation,
a duty of supervision is owed to each student. Where the principal or
superintendent knows or should know that a particular school employee
poses a threat to a student, entrustment of the student to the care of that
employee will not satisfy the duty of reasonable supervision."
!
Finally, with regard to the issue of foreseeability, the court notes, "Where
the plaintiff can establish that the school knew or reasonably should have
known of such a propensity, the school will generally be liable for the
foreseeable sexual abuse of students by that employee."
182
Tarasoff v. Regents of University of California
Tarasoff v. Regents of University of California
Citation. 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334.
Brief Fact Summary. Tatiana Tarasoff's parents (Plaintiffs) asserted that the four
psychiatrists at Cowell Memorial Hospital of the University of California had a duty to
warn them or their daughter of threats made by their patient, Prosenjit Poddar. The
Superior Court of Alameda County (California) dismissed Plaintiffs' action (sustaining a
demurrer to Defendant's second amended complaint) for failure to state a valid claim
against the therapists, police, and the Regents of University of California (Defendants).
Plaintiffs sought review.
Synopsis of Rule of Law. A defendant owes a duty of care to all persons who are
foreseeably endangered by his conduct, with respect to all risks that make the conduct
unreasonably dangerous. When the avoidance of foreseeable harm requires a defendant to
control the conduct of another person, or to warn of such conduct, liability is imposed
only if the defendant bears some special relationship to the dangerous person or to the
potential victim.
Facts. In October 1969, Prosenjit Poddar (Poddar) murdered Tatiana Tarasoff (Tarasoff).
Plaintiffs, Tatiana's parents, contended that only a short time prior, Poddar had expressed
his intention to do so. This, they alleged, he had confided to his therapist, Dr. Lawrence
Moore, a psychologist employed by University of California. They further alleged that
Dr. Moore had warned campus police of Poddar's intentions, and that the police had
briefly detained him, but then released him. Plaintiffs asserted two grounds for their
action: the failure to confine Poddar, in spite of his expressed intentions to kill Tarasoff,
and failure to warn Tarasoff or her parents. Defendants maintained that they owed no
duty of care to the victim, and were immune from suit.
Issue. Did Defendants owe a duty to the victim thus making them liable for the harm that
ensued?
Held. The court held that Plaintiffs could amend their complaint so as to bring a valid
cause of action against therapists and Regents of University of California for breach of
duty to exercise reasonable care.
!
The court concluded that the police did not have the requisite special
relationship with Tarasoff, sufficient to impose a duty to warn her of her
Poddar's intention.
Discussion. In Tarasoff, the Supreme Court of California addressed a complicated area
of tort law concerning duty owed. Their analysis required a balancing test between the
need to protect privileged communication between a therapist and his patient and the
protection of the greater society against potential threats. The court began its analysis by
addressing the "special relationship" required that imposes a duty on an individual to
control another. "A duty of care may arise from either (a) a special relation between the
183
Tarasoff v. Regents of University of California
actor and the third person which imposes a duty upon the actor to control the third
person's conduct, or (b) a special relation between the actor and the other which gives to
the other a right of protection." This consideration was critical to the circumstances in
Tarasoff. As a general proposition, "[w]hen a hospital has notice or knowledge of facts
from which it might reasonably be concluded that a patient would be likely to harm
himself or others unless preclusive measures were taken, then the hospital must use
reasonable care in the circumstances to prevent such harm." More specifically, the court
explained, "[i]n attempting to forecast whether a patient presents a serious danger of
violence, a court does not require that a therapist, in making that determination, render a
perfect performance; the therapist need only exercise that reasonable degree of skill,
knowledge, and care ordinarily possessed and exercised by members of that professional
specialty under similar circumstances."
!
The court had to address the contending policy consideration, first noting
"[o]nce a therapist determines, or under applicable professional standards
reasonably should have determined, that a patient poses a serious danger
of violence to others, he bears a duty to exercise reasonable care to protect
the foreseeable victim of that danger. While the discharge of this duty of
due care will necessarily vary with the facts of each case, in each instance
the adequacy of the therapist's conduct must be measured against the
traditional negligence standard of the rendition of reasonable care under
the circumstances." Thus, the court concluded, "[a] physician may not
reveal the confidence entrusted to him in the course of medical attendance
unless he is required to do so by law or unless it becomes necessary in
order to protect the welfare of the individual or of the community."
!
Finally, with respect to the potential liability of the police, the court
explained that, pursuant to state statute, "a public employee is not liable
for an injury resulting from his act or omission where the act or omission
was the result of the exercise of the discretion vested in him, whether or
not such discretion was abused. There is a line between discretionary
policy decisions which enjoy statutory immunity and ministerial
administrative acts which do not. Section 820.2 affords immunity only for
'basic policy decisions.'" Thus, immunity was afforded to the police.
184
Brigance v. Velvet Dove Restaurant, Inc.
Brigance v. Velvet Dove Restaurant, Inc.
Citation. 725 P.2d 300.
Brief Fact Summary. In a negligence action, Plaintiffs seek damages against Velvet
Dove Restaurant, Inc. (Defendant) alleging that Defendant served alcohol to clearly
intoxicated persons. The District Court of Oklahoma County (Oklahoma) dismissed the
complaint for failure to state a claim upon which relief could be granted Plaintiffs.
Plaintiffs appealed.
Synopsis of Rule of Law. One who sells intoxicating beverages for on the premises
consumption has a duty to exercise reasonable care not to sell liquor to a noticeably
intoxicated person.
Facts. Defendant served alcohol to a group of minors that included Jeff Johnson
(Johnson), who the Defendant knew had driven the group to the restaurant. Plaintiffs
alleged that the alcohol Defendant served to Johnson either caused his intoxication, or
contributed to his incumbent state of intoxication that caused a one-car accident in which
Plaintiff was injured. Plaintiff brought suit. The trial court dismissed the claim.
Issue. Did the former common law rule shielding bars and restaurants that serve alcohol
from civil liability apply?
Held. No. Noting that the former common law rule was an anachronism and unrealistic
within the framework of modern tort law, the Supreme Court of Oklahoma, discarded it,
overturning the lower courts' decisions.
Discussion. The court in Brigance, noting the change in the trend of tort law with respect
to alcohol consumption and driving, and those who provide alcohol, observed "duty and
liability are matters of public policy . . . subject to the changing attitudes and needs of
society." Thus, the court, while noting that the Legislature had not spoken directly to the
subject of liability under the kinds of circumstances in question, nevertheless saw fit to
"establish a civil cause of action by an injured third person against a commercial vendor
of liquor for on the premises consumption."
Having established the possibility of liability, the court included an analysis, under the
standard framework, of duty, breach, causation and harm applicable to all negligence
actions.
With respect to causation, the court would not rule out, as a matter of law, that the
restaurant's sale of the alcoholic beverage to the noticeably intoxicated patron could have
been the proximate cause of the alleged injuries. This would be an issue of fact for the
jury. A jury could have found that the restaurant could have reasonably foreseen and
anticipated the possible consequences in selling alcohol to a clearly intoxicated customer
who intended to drive and that the sale may have been a proximate cause of the alleged
injuries. Thus, "a plaintiff must still show the illegal sale of alcohol led to the impairment
185
Brigance v. Velvet Dove Restaurant, Inc.
of the ability of the driver which was the proximate cause of the injury and there was a
causal connection between the sale and the foreseeable ensuing injury."
186
CHAPTER XIX.
Emotional Harm
187
GTE Southwest, Inc. v. Bruce
GTE Southwest, Inc. v. Bruce
Citation. 998 S.W.2d 605.
Brief Fact Summary. The Court of Appeals for the Sixth District of Texas affirmed a
trial court's judgment on a jury verdict for Plaintiffs in an action for intentional infliction
of emotional distress. Defendant appealed.
Synopsis of Rule of Law. To recover damages for intentional infliction of emotional
distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2)
the conduct was extreme and outrageous; (3) the actions of the defendant caused the
plaintiff emotional distress; and (4) the resulting emotional distress was severe.
Facts. Plaintiffs, employees for GTE Southwest, alleged that over the course of several
years, they endured severe abuse from their supervisor. Employees testified of a pattern
of abusive behavior, including extensive profanity and physical intimidation. At trial, the
jury found for Plaintiffs. The appellate court affirmed.
Issue. Did Defendant's behavior go beyond the bounds of a tolerable work environment,
thus constituting the intentional infliction of emotional distress?
Held. Yes. The court, in an opinion providing a detailed exegesis of the statutory scope
of an action for intentional infliction of emotional distress, held that the GTE supervisor's
conduct went well beyond the limits of an ordinary work dispute.
Discussion. The GTE court used the circumstances of this case as an opportunity to
explore the parameters of the tort of intentional infliction of emotional distress. It should
be noted that with this offense, as with other tort claims for personal injury, a plaintiff
may recover for pain and suffering, in addition to pecuniary damages. Additionally, in
most jurisdictions it is no longer required that the victim suffer physical manifestations of
the mental distress.
Addressing first the element of intentionality, the GTE court notes, "[a] claim for
intentional infliction of emotional distress cannot be maintained when the risk that
emotional distress will result is merely incidental to the commission of some other tort.
Accordingly, a claim for intentional infliction of emotional distress will not lie if
emotional distress is not the intended or primary consequence of the defendant's
conduct." Next, with the regard to the second element, the court (employing the language
of the Restatement) explained, "[t]o be extreme and outrageous for purposes of showing
intentional infliction of emotional distress, conduct must be so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community." The court drew a
further distinction: "[g]enerally, insensitive or even rude behavior does not constitute
extreme and outrageous conduct. Similarly, mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities do not rise to the level of extreme and outrageous
conduct."
188
GTE Southwest, Inc. v. Bruce
The court also examined the important factor of the relationship between the parties in
contention. Specifically, within the context of the employment environment "the extreme
and outrageous character of the conduct may arise from an abuse by the actor of a
position, or a relation with the other, which gives him actual or apparent authority over
the other, or power to affect his interests," and, since the range of disputatious behavior
varies so broadly within the employment arena, "an employee must prove the existence
of some conduct that brings the dispute outside the scope of an ordinary employment
dispute and into the realm of extreme and outrageous conduct."
Finally, with regard to a pattern of such conduct, the court explains: "[r]epeated
harassment may compound the outrageousness of incidents which, taken individually,
might not be sufficiently extreme to warrant liability."
189
Homer v. Long
Homer v. Long
Citation. 90 Md. App. 1, 599 A.2d 1193.
Brief Fact Summary. The Circuit Court for Howard County (Maryland) dismissed the
tort claims brought by Plaintiff alleging breach of contract and tort claims, including
negligence and intentional infliction of emotional distress, resulting from a sexual
relationship.
Synopsis of Rule of Law. One cannot sue to recover for injuries arising from
"defilement of the marriage bed" or from an interference with the marriage by simply
casting the defendant's conduct as a breach of contract, or negligence, or some other
intentional tort. To recover in an action for intentional infliction of emotional distress, a
plaintiff must show: (1) conduct that is intentional or reckless; (2) conduct that is also
extreme and outrageous; (3) a causal connection between the wrongful conduct and the
emotional distress; and (4) that the emotional distress is severe. When extreme and
outrageous conduct is directed at a third person, the actor is subject to liability if he
intentionally or recklessly causes severe emotional distress (1) to a member of such
person's immediate family who is present at the time, whether or not such distress results
in bodily harm; or (2) to any other person who is present at the time, if such distress
results in bodily harm.
Facts. According to Plaintiff's contentions, after several years of marriage his wife was
hospitalized for severe depression. During this period, she began seeing a therapist who,
Plaintiff alleges, used confidential information and took advantage of her condition to
seduce her. Plaintiff maintains that, as a result, his wife's personality changed leading to
their divorce. He brought suit alleging, among other things, intentional or reckless
infliction of emotional distress.
Issue.
!
Can a Plaintiff successfully sue a therapist for adulterous actions under the
banner of breach of contract?
!
Does a psychiatrist owe a duty of care to a patient's spouse?
!
May a former husband recover in a third-party action for intentional
infliction of emotional distress when he was not present during the
conduct in question?
Held. The court held that the circuit court properly dismissed Plaintiff's claims: 1) a
psychiatrist's professional duty is owed to the patient and not to the patient's spouse, thus
Plaintiff had no standing to sue; and 2) the of intentional infliction of emotional distress
claim was unfounded because the former husband was not present when the psychiatrist
allegedly seduced his wife.
190
Homer v. Long
Discussion. Intentional infliction of mental distress exists when the defendant, by
extreme and outrageous conduct, intentionally or recklessly causes the victim severe
mental distress. It should be noted that this is the only area of tort where "reckless" infers
intent. Homer addresses an extended issue with regard to the intentional infliction
contention: the situation where a third person is alleging the wrongful action. In other
words, this is an area where transferred intent applies. As the court explained, "[w]here
extreme and outrageous conduct is directed at a third person, the actor is subject to
liability if he intentionally or recklessly causes severe emotional distress (1) to a member
of such person's immediate family who is present at the time, whether or not such distress
results in bodily harm, or (2) to any other person who is present at the time, if such
distress results in bodily harm." Generally, courts have award a third-party victim
recovery only if, in addition to proving the prima facie elements, the third party is (1) a
close relative of the primary victim; (2) present at the scene of the outrageous conduct
against the primary victim; and (3) the defendant is aware of the close relative's
proximity.
With regard to the negligence claim, the court addressed first the prima facie elements of
a negligence action: "[t]o recover in an action for negligence, the plaintiff must show that
the defendant owed a duty to him which was breached. That duty, moreover, must be one
that the law is prepared to recognize." The court dismissed the claim because the duty
owed was to the patient, and not to her spouse, explaining, "[a] therapist's professional
duty must run to his or her patient and not to the patient's spouse, even if the spouse is the
one who initially employed the therapist and is paying the therapist's fees."
Addressing the action for breach of contract, the court recognized that the plaintiff in this
case was in essence attempting to sue for "alienation of affections. While noting that such
actions are not necessarily barred under tort law, the court states, "[t]hat is precluded,
however, is the refitting of the abolished actions into other forms."
191
Grube v. Pacific Union R.R.
Grube v. Pacific Union R.R.
Citation. 256 Kan. 519, 886 P.2d 845.
Brief Fact Summary. The Wyandotte District Court (Kansas) held in favor of Appellee
in an action to recover damages for negligent infliction of emotional distress under the
Federal Employer's Liability Act (FELA) 45 U.S.C.S. § 51 et seq. Pacific Union R.R.
(Appellant) company challenged the decision.
Synopsis of Rule of Law. FELA provides that every common carrier by railroad shall be
liable in damages to any person suffering injury or death while he is employed by such
carrier for such injury or death resulting in whole or in part from the negligence of any of
the officers, agents, or employees of such carrier, or by reason of any defect or
insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track,
roadbed, works, boats, wharves, or other equipment.
Facts. Grube (Appellee) was employed by Appellant. A train Appellee was operating
collided with a car that had gotten trapped in a Kansas railroad crossing. In the accident,
one person died and two were severely injured. Appellee brought a claim against his
employeer, seeking recovery for negligent infliction of emotional distress. Appellee
sustained no physical injuries in the collision, and attempted to render aid to the victims.
He later testified that he became physically ill, and subsequently suffered emotional
injury. A jury found for Appellee, and he was was awarded $121,500.00 damages.
Appellant sought review.
Issue. Did the Appellee meet the "zone of danger test" outlined in Conrail v. Gottshall,
512 U.S. 532, and thus, may he successfully bring a cause of action under FELA for
emotional injury when such injury was not related to any physical trauma?
Held. The court concluded that the employee failed to establish an essential element of
the zone of danger test, and reversed the judgment.
Discussion. The court in Grube cites Conrail v. Gottshall, 512 U.S. 532, the primary
authority with regard to FELA interpretation. As that court stated, "[t]he injury from
negligent infliction of emotional distress is mental or emotional harm (such as fright or
anxiety) that is caused by the negligence of another and that is not directly brought about
by a physical injury, but that may manifest itself in physical symptoms." The Conrail
court prescribed three tests, to determine the viability of a claim. The court in Conrail
explained, "[u]nder the physical impact test, a plaintiff seeking damages for emotional
injury stemming from a negligent act must have contemporaneously sustained a physical
impact (no matter how slight) or injury due to the defendant's conduct." With regard to
the second, the zone of danger test, at issue here, the Grube court again quoted Conrail,
"[u]nder this test, a worker within the zone of danger of physical impact will be able to
recover for emotional injury caused by fear of physical injury to himself whereas a
worker outside the zone will not." Interpreting the Conrail decision narrowly, the court
drew a fine distinction: "The zone of danger test . . . does not necessarily require that
192
Grube v. Pacific Union R.R.
there be fear for one's personal safety expressed contemporaneously with a collision.
However, fear for one's safety is an essential element of the zone of danger test and must
be expressed at or near the time of the danger in order for plaintiff to prevail in an action
brought under the Federal Employer's Liability Act."
193
Boucher v. Dixie Medical Center
Boucher v. Dixie Medical Center
Citation. 850 P.2d 1179.
Brief Fact Summary. The Fifth District Court, Washington County (Utah) dismissed
claims against Defendant doctors for negligent infliction of emotional distress and loss of
filial consortium in relation to injuries sustained by Mr. and Ms. Bouchers' son
(Plaintiffs), Daniel Boucher, following surgery. Plaintiffs appealed.
Synopsis of Rule of Law.
Plaintiffs, who suffered emotional distress because of another's negligence, though they
do not suffer any physical impact, may recover damages only if they are placed in actual
physical peril and fear for their own safety.
Loss of consortium claims are based on the recognition of a legally protected interest in
personal relationships. Accordingly, if one member of the relationship is tortiously
injured, the non-injured party has a cause of action to recover for damage to their
relational interest, the loss of the injured party's company, society, cooperation, and
affection.
Facts. Daniel Boucher was admitted to the hospital with a severely damaged hand. After
surgery, he lapsed into a coma from which he emerged with severe brain damage and
quadriplegia that required extensive medical care for the rest of his life. Plaintiffs brought
actions against the hospital for negligent infliction of mental distress and loss of
consortium.
Issue.
!
Was the harm suffered by the parents of a severely injured child the type
recognized so as to fulfill the elements of a claim for negligent infliction
of emotional distress?
!
May parents bring a cause of action for loss of consortium in connection
with the tortious injury of their child?
Held. The decision of the lower court was affirmed. The court concluded that the parents
did not allege sufficient facts to state a claim of negligent infliction of emotional distress
as the claim was defined in Utah. The court declined to extend loss of consortium rights
to parents of a tortiously injured child.
Dissent. The dissent takes issue with the majority's rationale for precluding parent's
recovery on the theory of loss of consortium for tortious injury to their children. To adopt
such a cause of action would open the floodgates of litigation. The dissent asserts,
"[t]he law protects all kinds of human values that cannot be measured by a slide rule,
such as marital and filial consortium in wrongful death actions, reputation, privacy, and
194
Boucher v. Dixie Medical Center
emotional security from outrageous conduct." The dissent also describes the nexus
between physical and emotional well-being: "[m]oreover, medical science and
psychology have clearly established that a person's physical health and emotional health
are often closely related and that emotional and psychological trauma may have a cause
and effect relationship on physical health. The loss of a child's consortium may well
affect the physical well-being of parents." The dissent acknowledges the need for
circumspection concerning the adoption of litigious redress for harm such as the type
suffered in this case, concluding, "[c]ertainly, the law need not recognize causes of action
for ephemeral injuries or for every form of personal distress that arises from living in a
necessarily rough and tumble world. But that is not what this case is about. There is every
reason to believe that the loss in this case is both permanent and profound."
Discussion.
Courts almost universally permit a spouse to recover against a person who seriously
injures the other spouse, usually known as a "loss of consortium" claim. Such claims
were eventually extended to include recovery for more than the economic loss of the of
the injured spouse's household services. Loss of consortium claims presently allows a
plaintiff to recover damages for such things as loss of companionship and other forms of
emotional support. As the court in Boucher observed, "[a]t common law, the father of a
tortiously injured child did have a cause of action to recover the value of the child's loss
of services and the medical expenses incurred on the child's behalf." The court drew a
distinction as to basis for such recovery. "However, this action was based on a father's
right to his minor children's services and a father's obligation to pay his minor children's
medical expenses. This right of recovery, therefore, did not extend beyond these two
elements of damages, nor did it extend to injuries involving adult or emancipated
children," and, the court concluded, "no widely accepted development has occurred that
allows recovery in cases involving adult children, nor has any widely accepted
development occurred that allows recovery for the loss of a child's society and affection."
The issue surrounding the negligent infliction of emotional distress claim was more
straightforward. The court applied the zone of danger test, i.e., allowing a claim only if
the plaintiffs are placed in actual physical peril and fear for their own safety.
195
Sacco v. High Country Independent Press
Sacco v. High Country Independent Press
Citation. 271 Mont. 209.
Brief Fact Summary. The District Court of the Eighteenth Judicial District, in and for
the County of Gallatin (Montana) granted summary judgment to Defendants, the
employer and officers, on claims pursuant to 42 U.S.C.S. § 1983 and negligent emotional
distress against the officers, and on a defamation claim against the employer.
Synopsis of Rule of Law. Government officials performing discretionary functions are
shielded from liability for civil damages only where their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
knowledge.
Facts. Plaintiff alleged in her complaint that when she left employment with High
Country Independent Press (Defendant), company officers and stockholders falsely
claimed that she had committed theft of private documents. Plaintiff instituted, among
other causes of action, a claim for intentional infliction of emotional distress.
Issue. Did the particulars alleged in the complaint justify the adoption of negligent
infliction of emotional distress as an independent cause of action?
Held. The court reversed and remanded the lower court's grant of summary judgment.
The court, joining other jurisdictions, recognized negligent infliction of emotional
distress as an independent cause of action.
Discussion. The Supreme Court of Montana constructed a fresh legal framework in
adopting negligent infliction of emotional distress as an independent cause of action,
recognizing a need to enunciate a clear standard. Negligent infliction of emotional
distress occurs when serious or severe emotional distress to the plaintiff was the
reasonably foreseeable consequence of the defendant's negligent act.
The court addressed the policy concerns, i.e., the risk of "a floodgate of claims", possibly
fraudulent in connection with emotional distress claims-a type of harm subjective and
nebulous in its definition. This the court addressed by articulating two safeguards: the
requirements of both foreseeability and a high factual standard of proof with regard to
severity and seriousness of harm.
With regard to ascertaining what facts constitute the elements for a cause of action, the
court stated that the issue of the extent of the emotional distress experienced and the
extent that defendant's conduct actually caused emotional distress are questions for the
jury. The jury can refer to their own experiences in making these conclusions. In this
case, summary judgment was inappropriate, as the issues in the instant case should
properly have been submitted before a jury.
Additionally, the court provided guidelines as to what type of harm meets the threshold
requirements for a Plaintiff to prove a claim: "'[s]erious emotional distress is defined as
196
Sacco v. High Country Independent Press
follows: emotional distress passes under various names, such as mental suffering, mental
anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental
reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger,
chagrin, disappointment, worry, and nausea. It is only where it is extreme that the liability
arises." The court will intervene only where the distress inflicted is so severe that no
reasonable person could be expected to endure it. In analyzing the intensity and duration
of the distress are factors to be considered.
Finally, the court drew a distinction between negligent and intentional infliction of
emotional distress, that the difference between the two "lies not in the elements of the
tort, but in the nature and culpability of the defendant's conduct."
197
Potter v. Firestone Tire & Rubber Co.
Potter v. Firestone Tire & Rubber Co.
Citation. 6 Cal. 4th 965.
Brief Fact Summary. The Court of Appeals of California affirmed the trial court's
award in favor of respondent residents on their claims for negligent and intentional
infliction of emotional distress. Plaintiffs brought actions for negligent and intentional
infliction of emotional distress, and were awarded damages. The Firestone Tire & Rubber
Co. (Defendant) appealed.
Synopsis of Rule of Law. In ordinary negligence actions for physical injury, recovery
for emotional distress caused by that injury is available as an item of parasitic damages.
When a plaintiff can demonstrate a physical injury caused by the defendant's negligence,
anxiety specifically due to a reasonable fear of a future harm attributable to the injury
may also constitute a proper element of damages.
Facts. Plaintiffs brought actions for negligent and intentional infliction of emotional
distress, based on their fear of developing cancer as a result of their exposure to toxic
waste the company had allegedly permitted to seep into groundwater. The company
operated a tire manufacturing plant in Northern California and subcontracted with
another company to dispose of industrial waste. The waste was deposited in a local
landfill. The trial court awarded both compensatory and punitive damages. The appellate
court modified the awards, but affirmed the main elements. The company sought review.
Issue. At issue was whether the absence of a present physical injury precluded recovery
for emotional distress engendered by fear of cancer.
Held. The Supreme Court of California held that because the toxic exposure resulted
from oppression, fraud, or malice, pursuant to state statute the residents could recover
without having to show that it was more likely than not that they would develop cancer
from the exposure.
Discussion. As a general rule, compensation for emotional distress is available to
plaintiffs only following physical injury. Such emotional harm, defined as parasitic to the
plaintiff's claim for physical harm, is usually referred to as "pain and suffering." The
court explained that, "[u]nless the defendant has assumed a duty to plaintiff in which the
emotional condition of the plaintiff is an object, recovery is available only if the
emotional distress arises out of the defendant's breach of some other legal duty and the
emotional distress is proximately caused by that breach of duty. Even then, with rare
exceptions, a breach of the duty must threaten physical injury, not simply damage to
property or financial interests."
Mental distress, which results from fear that an already existent injury will lead to the
future onset of an as yet unrealized disease, constitutes an element of recovery only
where such distress is either foreseeable or is a natural consequence of, or reasonably
expected to flow from, the present injury.
198
Potter v. Firestone Tire & Rubber Co.
In sum, the court articulated a two-point standard for establishing a claim of negligent
and intentional infliction of emotional distress with regard to toxic tort liability: (1) as a
result of the defendant's negligent breach of a duty owed to the plaintiff, the plaintiff is
exposed to a toxic substance which threatens cancer; and (2) the plaintiff's fear stems
from a knowledge, corroborated by reliable medical or scientific opinion, that it is more
likely than not that the plaintiff will develop the cancer in the future due to the toxic
exposure.
199
CHAPTER XX.
Prenatal Harms
200
Remy v. MacDonald
Remy v. MacDonald
Citation. 801 N.E.2d 260 (Mass. 2004)
Brief Fact Summary. Plaintiff, Andre Remy, is the son of Defendant, Christine
MacDonald. Plaintiff contends that Defendant’s negligence while still pregnant with
Plaintiff, led to injuries suffered by Plaintiff.
Synopsis of Rule of Law. A mother does not owe a legal duty in negligence to an unborn
child.
Facts. Defendant, 32 weeks pregnant with Plaintiff, was in a car accident. Plaintiff was
in the hospital for an extended period of time with respiratory problems, and still has
problems including asthma. Plaintiff asserts that Defendant’s negligent driving caused
the injuries. The trial court ruled that as a matter of law a mother can not be held liable
for injuries to her unborn child that arose from her negligence.
Issue. The issue is whether a mother owes a legal duty in negligence to her unborn child.
Held. The Supreme Judicial Court of Massachusetts held that the state does not
recognize a legal duty in negligence for a mother to her child. To do so, they contend,
would put an undue burden on the mother for an unlimited amount of litigation.
Discussion. The Court still recognizes any possible actions between a third party and an
unborn child, and it recognizes an action between a child that is already born and the
mother.
201
Chaffee v. Seslar
Chaffee v. Seslar
Citation. 751 N.E.2d 773 (Ind. App. 2001)
Brief Fact Summary. Plaintiff, Heather Seslar, went to Defendant doctor, Kenneth
Chaffee, for a sterilization procedure. The sterilization did not work and Plaintiff gave
birth to a normal, healthy baby.
Synopsis of Rule of Law. The cost of raising a normal child is recoverable when there is
a negligent sterilization procedure, but the damages may be mitigated by deducting any
benefit for Plaintiff.
Facts. Plaintiff wanted to become sterile to avoid the cost of having and raising another
baby. The sterilization did not work, and Plaintiff had another normal, healthy child.
Plaintiff did not want to have an abortion, nor did she wish to put the baby up for
adoption.
Issue.
!
The first issue is whether a parent can recover the costs of raising a healthy,
normal child due to a negligent sterilization procedure.
!
The second issue is whether Defendant can mitigate damages by reducing any
benefits that Plaintiff received by having the child.
!
The Court of Appeals of Indiana, Third District, held that Indiana adopted the
“wrongful pregnancy” doctrine which allowed for the recovery of costs to
raise a child, even if the child is normal and healthy. The court was not
persuaded that Plaintiff could not recover because the amount was
speculative, nor did they follow the “blessings doctrine” wherein an
unanticipated baby is still a blessing and could never be considered a harm.
!
The Defendant has the burden to argue the mitigation of damages, but
Plaintiff’s decision to keep the child rather then abort it or place it for
adoption is not a mitigating factor for public policy reasons.
Held.
Discussion. Some jurisdictions still follow the blessings doctrine, or allow the recovery
for damages for less speculative costs, particularly if the baby is not born normal and
healthy.
202
CHAPTER XXI.
Death
203
Smith v. Whitaker
Smith v. Whitaker
Citation. 160 N.J. 221.
Brief Fact Summary. In connection with a wrongful death action, Appellant sought
review of a punitive damages award, on the issue of availability of such damages under
the Survivor's Act (Act), seeking certification on the question of whether evidence of
Plaintiff's conscious pain and suffering is necessary to sustain cause of action under Act.
Synopsis of Rule of Law. Damages under a wrongful death claim are expressly limited
to the pecuniary injuries resulting from such death, together with the hospital, medical
and funeral expenses incurred for the deceased. The wrongful death statute in question
permits recovery only of a survivor's calculable economic loss and that the Act does not
support an award of punitive damages.
Facts. Defendant, driving an oil truck, was unable to stop at an intersection because of
improperly adjusted brakes. He collided with sixty year-old widow, Helen Robbins
(Robbins), landing atop her vehicle. Robbins was killed in the accident. Smith (Plaintiff),
the executor of Robbins' estate, brought two causes of action pursuant to statutes
governing 1) wrongful death; and 2) the rights of representatives of a decedent's estate to
pursue recovery. The trial court dismissed the claim for pain and suffering in the second
claim pursuant to New Jersey's Survival Act, N.J.S.A. 2A:15-3, because Robbins was
unconscious following the collision. The jury awarded Plaintiff damages in the wrongful
death action, and the trial court permitted evidence for a determination of punitive
damages, which were subsequently awarded for $1.25 million. The Appellate Division
affirmed.
Issue.
!
Does Plaintiff's inability to establish conscious pain and suffering in a
survival action involving instantaneous death bar a claim for punitive
damages?
!
Did Plaintiff establish a valid claim for punitive damages in the absence of
an underlying award of compensatory damages for pain and suffering?
Held. In an action pursuant to the wrongful death statute, a claim for punitive damages
could be sustained even absent compensatory damages for pain and suffering. The court
found also that the absence of even nominal damages was not significant when the
elements of causation were established in the related wrongful death action.
Discussion. The court held that punitive damages could be sustained even absent
compensatory damages for pain and suffering. The court then engaged in extensive
analysis regarding types of damages and the applicable standards in determining each.
Generally, the court noted, "[a]n award of damages in a wrongful death action is not a
matter of punishment for an errant defendant or of providing for decedent's next of kin to
204
Smith v. Whitaker
a greater extent than decedent himself would have been able, but is rather a replacement
for that which decedent would likely have provided and no more." In clarifying the
calculus by which damages should be awarded, the court noted, "[t]he amount of
recovery is based upon the contributions, reduced to monetary terms, which the decedent
might reasonably have been expected to make to his or her survivors." The also saw fit to
clarify the distinction between the statutes addressing wrongful death and rights of
survivors: "[u]nlike a wrongful death action, which is a derivative action arising in favor
of beneficiaries named under that act, the [survivor's statute], preserves to the decedent's
estate any personal cause of action that decedent would have had if he or she had
survived."
The court then articulates the applicable standard with regard to culpability: "[i]n a
negligence action, the maintenance of a valid punitive damages claim requires the
plaintiff to show a breach of duty and resulting damage." Once negligence has been
established and actual damages calculated, the court continued, it is necessary to select
and apply a standard in determining whether punitive damages are appropriate: "[b]eyond
proof of a negligently-caused death, the assertion of a claim for punitive damages
requires a plaintiff to prove by clear and convincing evidence that defendant's conduct
amounted to a deliberate act or omission with knowledge of a high degree of probability
of harm and reckless indifference to the consequences."
Finally, rejecting as irrelevant the fact that Robbins was not conscious before she died,
the court concluded, "[i]n every wrongful death action in which the decedent survived her
injuries, however briefly, punitive damages may lie provided defendant's conduct met
that standard; there is no legitimate reason why the remedy should be different for a
decedent who was killed instantly."
205
CHAPTER XXII.
Vicarious Liability
206
Hinman v. Westinghouse Electric Co.
Hinman v. Westinghouse Electric Co.
Citation. 2 Cal. 3d 956.
Brief Fact Summary. Superior Court of Los Angeles County (California) entered a
judgment in favor of Westinghouse Electric Co. (Defendant) after a jury verdict and from
an order denying Motions for Judgments Notwithstanding the Verdict in negligence
action. Hinman (Plaintiff), who was a victim of an auto injury, and intervenor, the City of
Los Angeles, appealed the judgment
Synopsis of Rule of Law. The losses caused by the torts of employees, occurring in the
conduct of the employer's enterprise, are placed upon that enterprise itself, as a required
cost of doing business.
Facts. While standing on the center divider of a freeway inspecting a possible road
hazard, Plaintiff, a Los Angeles policeman, was struck by a car driven by an employee of
the Defendant. He sustained permanent injuries, and the city paid his medical expenses
and disability claims. The driver was returning from work at the time of the incident.
Under a union contract, the driver was paid for travel time to and from job sites. The trial
judge instructed the jury to consider several factors to determine whether the driver
acting within the scope of his employment for Defendant. Per that instruction, the jury
found for Defendant. Plaintiff and City appealed.
Issue. Should the employer, Defendant be held vicariously liable for the Plaintiff's
injuries?
Held. Yes. The court found that the doctrine of respondeat superior should have applied,
and that the trial court erred in its instructions to the jury.
Discussion. The doctrine of respondeat superior holds that an employer may be held
vicariously liable for the tortious acts of an employee if it is determined that such acts are
committed within the scope of employment. Vicarious liability automatically imposes
tort responsibility on a defendant because of his relationship with the tortfeasor. As the
court in Hinman explained, "[t]he modern and proper basis of vicarious liability of the
master is not his control or fault but the risks incident to his enterprise. The court is not
looking for the master's fault but rather for risks that may fairly be regarded as typical of
or broadly incidental to the enterprise he has undertaken." This axiom may extend, as in
this case, to an employee's travel, the so-called "going and coming" rule. As the court
stated, "[u]nder the 'going and coming' rule, an employee going to and from work is
ordinarily considered outside the scope of employment so that the employer is not liable
for his torts. The 'going and coming' rule is sometimes ascribed to the theory that the
employment relationship is 'suspended' from the time the employee leaves until he
returns, or that in commuting he is not rendering service to his employer." However,
there are exceptions. "Where the employer and employee have made the travel time part
of the working day by their contract, the employer should be treated as such during the
travel time, and it follows that so long as the employee is using the time for the
207
Hinman v. Westinghouse Electric Co.
designated purpose, to return home, the doctrine of respondeat superior is applicable."
Thus, Defendant was vicariously liable and the trial court erred in its instruction.
208
Edgewater Motels, Inc. v. Gatzke
Edgewater Motels, Inc. v. Gatzke
Citation. 277 N.W.2d 11.
Brief Fact Summary. The District Court, St. Louis County (Minnesota) found for
Defendants, notwithstanding a jury verdict that its employee negligently caused a fire in
the motel while he was in the scope of his employment.
Synopsis of Rule of Law. The smoking of a cigarette, if done while engaged in the
business of the employer, is within an employee's scope of employment because it is a
minor deviation from the employee's work-related activities, and, thus, merely an act
done incidental to general employment.
Facts. Edgewater Motels, Inc. (Plaintiff) brought an action against Gatzke and his
employer, Walgreen's (Defendants), in connection with fire damage to one of its
properties caused by Gatzke's negligently smoking a cigarette while in his motel room.
The jury found Gatzke to be 60% liable, and his employer liable for the remainder. The
trial judge concluded that Gatzke's conduct did not fall within the scope of his
employment, rendering a judgment notwithstanding the verdict in favor of Walgreen's.
Issue. Was an employee's negligence while smoking within that employee's scope of
employment thus making his employer partially liable for his negligence?
Held. Yes. On appeal, the court reversed and reinstated the jury verdict, holding that an
employer could be vicariously liable for its employee's negligent conduct if he is
otherwise acting within the scope of his employment.
Discussion. As a general rule, under the doctrine of respondeat superior an employer is
held vicariously liable for the tortious acts of an employee that are committed within the
scope of employment. Courts have generally included those actions that are carried out in
the furtherance of the employer's business as being within the scope of employment. In
this instance, as the court noted, the employee was in his motel room completing
paperwork, his expense account, which was work-related. As Edgewater illustrates, what
constitutes the scope of employment is a fact-based inquiry. As the court pointed out,
"No hard and fast rule can be applied to resolve the 'scope of employment' inquiry.
Rather, each case must be decided on its own individual facts."
209
Lisa M. v. Henry Mayo Newhall Memorial Hospital
Lisa M. v. Henry Mayo Newhall Memorial Hospital
Citation. 12 Cal.4th 291, 48 Cal. Rptr.2d 510, 907 P.2d 358.
Brief Fact Summary. The trial court granted summary judgment in favor of Defendant
in an action brought by Plaintiff after an ultrasound technician employed by Henry Mayo
Newhall Memorial Hospital (Defendant) sexually molested her. The Court of Appeals of
California reversed, and Defendant appealed.
Synopsis of Rule of Law. The rule of respondeat superior is applied when an employer
is vicariously liable for the torts of its employees committed within the scope of the
employment. An employee's willful, malicious and even criminal torts may fall within
the scope of his or her employment for purposes of respondeat superior, even though the
employer has not authorized the employee to commit crimes or intentional torts.
Facts. Plaintiff, a 19 year-old pregnant woman, was injured in a fall and went to an
emergency room for treatment. The examining physicians directed a technician to
perform obstetrical and upper-right quadrant ultrasound exams. The technician sexually
molested the young woman under the guise of examination. The patient sued both the
technician and the hospital. The trial court granted summary judgment in favor of the
hospital and the court of appeals reversed.
Issue. Did the ultrasound technician's tortious actions fall within the scope his of
employment thus making the hospital liable?
Held. No. The court overturned the appellate court's reversal of the trial court's grant of
summary judgment in favor of Defendant, and remanded for further proceedings. The
court concluded that the trial court did not err in granting summary judgment; the
Defendant could not have been held vicariously liable under the doctrine of respondeat
superior for the ultrasound technician's actions in sexually assaulting Plaintiff during an
exam.
Dissent.
!
The first of two dissents in the Lisa M. case centered on whether summary
judgment, a question of law, was proper. Asserting that it was not, the
dissent stated that it was a question for the trier of fact. The dissent
concluded that the opportunity for sexual assault may well have arisen due
to the circumstances of the technician's employment.
!
The second dissent echoes the questioning of the majority's reasoning in
reversing the court of appeals decision to overturn the lower court's
summary judgment. This dissent concluded that respondeat superior is a
broad rule, which may encompass those acts, which do not benefit the
employer. "Scope of employment in this case, as in most cases, is a
question of fact to be resolved by the trier of fact."
210
Lisa M. v. Henry Mayo Newhall Memorial Hospital
Discussion. The Lisa M. case illustrates the complexity inherent in fulfilling the
causation requirement for a negligence claim within the framework of the respondeat
superior doctrine. Generally, an employer will not be held liable for an assault or other
intentional tort that did not have a causal nexus to the employee's work. In this case, the
court was reluctant to find that a sexual tort was within the scope of someone's
employment. It further found that the connection between the hospital's interests and the
technician's tortious acts is too tenuous.
211
Kastner v. Toombs
Kastner v. Toombs
Citation. 611 P.2d 62.
Brief Fact Summary. Plaintiff, an injured pipe layer, sued Defendant, a backhoe
company, in the Superior Court of Alaska, alleging vicarious liability for its operator's
negligence. The trial court granted the company's summary judgment motion on the
ground that its operator was a borrowed servant working for the Plaintiff's employer at
the time of the accident. Plaintiff challenged this decision.
Synopsis of Rule of Law. The borrowed servant rule carves out an exception to the
doctrine of respondeat superior. Under the borrowed servant rule a servant who is loaned
by one master to another is regarded as acting for the borrowing master, and the loaning
master is not held responsible for the servant's negligent acts.
Facts. Plaintiff, an employee of a Clearwater Drilling, was laying pipe for a water line
project. This entailed use of a backhoe (and its operator) leased to Clearwater by Toombs.
The digging of a large ditch was required, and the operator warned of the possibility of a
cave-in; Clearwater insisted the work go forward, there was in fact a cave-in, and Kastner
was injured. He sued Toombs, the trial court granted Toombs' summary judgment
motion, and Kastner appealed.
Issue. Does the doctrine of respondeat superior strictly apply in instances when an
employee is on "borrow" to another?
Held. The court reversed the superior court's summary judgment order, basing its
decision on the borrowed servant rule. It remanded the case for further proceedings.
Discussion. As noted, the borrowed servant rule is an exception to the respondeat
superior doctrine. As the court explained, "[a] servant may act for two masters
simultaneously. Nevertheless, if the borrowed servant rule applies, only one of them is
held vicariously liable for the servant's tort." Rejecting the idea of exclusive liability, the
court reasoned, "[t]he question of how the loss so caused should be distributed should be
determined in accordance with principles of contribution and indemnity. These principles
have been devised to answer questions concerning the allocation of losses among
potentially responsible parties." Thus, apportionment of blame, in essence, dual liability,
could be quantified for equitable resolution.
212
District of Columbia v. Hampton
District of Columbia v. Hampton
Citation. 666 A.2d 30.
Brief Fact Summary. The District of Columbia Department of Human Services (DHS)
removed a child from her mother, because she was not providing proper care. When
placed in a foster home, the child was beat to death.
Synopsis of Rule of Law. To prevail on a respondeat superior theory of liability, the
plaintiff must show that a principal-agent relationship existed and that the agent's
negligent act occurred within the scope of the relationship. Under the most recent case
law, foster parents are not deemed to be agents or employees of state family service
agencies.
Facts. DHS removed two year-old Mykeeda Hampton from her mother's care claiming
her mother was not properly caring for the child. The child was then placed in a foster
home. The foster mother, Geraldine Stevenson (Stevenson) left the child alone with her
two sons, one of whom beat the child to death. Ms. Hampton, the child's mother
(Appellee), brought a survival action alleging (1) negligence on the part of DHS for
selecting Stevenson for foster care; and (2) that since Stevenson was an agent for DHS,
vicarious liability applied. The Superior Court of the District of Columbia denied
Appellant's Motion for Judgment Notwithstanding the Verdict in the negligence suit. The
trial court entered judgment for Appellee. In its challenge, the District of Columbia
(Appellant), alleged that it could not be held liable under a respondeat superior theory
since Stevenson was an independent contractor.
Issue. Was Stevenson an independent contractor, and not an agent, of DHS, thus
exempting the latter from liability under a respondeat superior theory?
Held. The court of appeals reversed the trial court's judgment. The District of Columbia
was not liable under a respondeat superior, therefore, the Appellant's Motion for
Judgment Notwithstanding the Verdict should have been granted. Appellee failed to
prove the standard of care by expert testimony.
Discussion. Noting that the case before it was one of first impression, the court of
appeals relied on recent case law trends - electing to employ a tone of caution and
tentativeness to its decision. The court proceeds then to a standard analysis of respondeat
superior theory of liability, with an emphasis on the issue of agency, or the principalagent relationship. With regard to the latter, the court stated that a plaintiff must
demonstrate, "that a principal-agent relationship existed and that the agent's negligent act
occurred within the scope of the relationship." Further, the court explained, "[w]hether a
master-servant, or principal-agent, relationship exists in a given situation depends on the
particular facts of each case." The party asserting such a relationship has the burden of
proof, and in determining whether such a relationship exists, a court must consider a
number of factors: "(1) the selection and engagement of the servant; (2) the payment of
wages; (3) the power to discharge; (4) the power to control the servant's conduct; (5) and
213
District of Columbia v. Hampton
whether the work is part of the regular business of the employer." The fourth factor is the
determinative factor. In this case, the right to inspect and the right to set standards by
which a foster parent performs her duties were not within the definition of control. Thus,
the DHS was not vicariously liable.
214
O'Banner v. McDonald's Corp.
O'Banner v. McDonald's Corp.
Citation. 173 Ill. 2d 208; 670 N.E.2d 632.
Brief Fact Summary. The appellate court (Illinois) reversed a grant of summary
judgment in favor of the McDonald's Corp. (Defendant) in O'Banner's (Plaintiff's)
personal injury action to recover damages when he allegedly suffered during a slip and
fall in the bathroom of a McDonald's restaurant. Defendant challenged the decision
Synopsis of Rule of Law. Apparent agency, also known as apparent authority, is a longrecognized doctrine (based on principles of estoppel) that holds that if a principal creates
the appearance that someone is his agent, he should not then be permitted to deny the
agency if an innocent third party reasonably relies on the apparent agency and is harmed
as a result.
Facts. Plaintiff slipped and fell at a McDonald's restaurant and brought a personal injury
action against the company, and unknown others", seeking damages. Defendant moved
for summary judgment, maintaining that the restaurant was actually owned by a
franchisee, thus, it neither owned, operated, maintained, or controlled the restaurant.
Accepting that argument, the Circuit Court for Cook County, Illinois entered summary
judgment on behalf of Defendant. Plaintiff appealed, arguing 1) that McDonald's should
be liable as the franchisee served as McDonald's actual agent; or 2) the corporation's
vicarious liability under the doctrine of apparent agency. The appellate court rejected the
first argument, but concluded that there were issues of material fact with respect to the
second. The appellate court reversed and remanded. The issue came before the Supreme
Court of Illinois.
Issue. Did the appellate court err in its reversal of summary judgment based on apparent
agency theory?
Held. Yes. The court held that in order to recover on an apparent agency theory, patron
had to show that he actually did rely on the apparent agency in going to the restaurant
where he was allegedly injured. As no evidence of such reliance was present in the
record, the appellate court erred in reversing the circuit court's entry of summary
judgment in Defendant's favor based on the apparent agency doctrine.
Dissent. The dissent found that a court should only grant summary judgment when the
resolution of a case hinges on a question of law and the moving party's right to judgment
is clear and free from doubt. If further stated that the majority's ruling was "drastic" and
asserted that "the court has a duty to construe the record strictly against the movant and
liberally in favor of the nonmoving party." As the court did not do so, but instead issued
its ruling as a matter of law, the dissent believes the majority erred.
With respect to apparent agency theory, the dissent takes a broader view of what
constitutes reliance: "[I]f the principal creates the appearance that someone is his agent,
the principal will not then be permitted to deny the agency where an innocent third party
215
O'Banner v. McDonald's Corp.
has relied on it and has been harmed as a result." Hence, the issue is a matter of fact and
summary judgment improper.
Discussion. The core issue in O'Banner, and a necessary element of "apparent agency"
theory, is the degree of reliance the Plaintiff invested in the corporation when he entered
its premises. Adhering rigidly to the record, the court notes that in his pleadings, Plaintiff
does not expressly state his reliance. Thus, the court reasoned, no such reliance was
present and therefore the appellate court erred in its finding that there was a material
issue of fact that precluded a summary judgment ruling.
The dissent, interestingly, more directly expands on the question of apparent agency
theory in connection with franchise arrangements, citing previous Supreme Court of
Illinois' rulings: "[f]or a franchisor to be vicariously liable for the acts of its franchisee
under the apparent agency doctrine, a plaintiff must show that: (1) the franchisor has
represented or permitted it to be represented that the party dealing directly with the
plaintiff is its agent; and (2) the plaintiff, acting in justifiable reliance on such
representations of the franchisor, has dealt with the agent to the detriment of the
plaintiff." The majority nevertheless suggested that in order to prevail plaintiff would had
to have shown that he would not have used the bathroom if he had known that the local
operators were not agents of McDonald's.
216
Pusey v. Bator
Pusey v. Bator
Citation. 94 Ohio St. 3d 275 (Ohio 2002)
Brief Fact Summary. Defendant, Greif Brothers Corp., hired an independent contractor,
Eric Bator, to provide security for their facility. While working for Defendant, Bator shot
and killed the son of Plaintiff, Ethel Pusey.
Synopsis of Rule of Law. When work performed by an independent contractor is
inherently dangerous, the employer is still vicariously liable.
Facts. Defendant company had problems with people stealing property from their
parking lot. Defendant hired a security firm to post a security guard on their property.
One of the guards, Eric Bator, spotted two men walking in the parking lot at night. After
questioning the men about their trespassing, they reacted in a hostile manner. The
hostility frightened Bator, and he retrieved a gun that he was not licensed to use at the
job. Bator panicked while apprehending the men and shot one of them, Derrell Pusey,
who later died. Plaintiff brought suit against the security firm, Bator and Defendant.
Plaintiff settled with everyone but Defendant. Defendant moved for a directed verdict,
arguing that they can not be held responsible for negligent acts of an independent
contractor. The trial court and the Seventh District Court of Appeals, Mahoning County,
agreed.
Issue. The issue is whether Defendant is vicariously liable for an independent contractor
when the contractor performs an inherently dangerous job.
Held. The Supreme Court of Ohio agrees that Bator was an independent contractor, and
generally an employer will not be held liable for the negligent acts of an independent
contractor, but the job duties entailed here are an exception to the rule. An employer will
still remain liable for jobs that are inherently dangerous.
Concurrence. The concurring opinion does not agree that the duties of the security guard
are inherently dangerous as a matter of law, but rather should be an issue of fact decinded
upon remand.
Discussion. The majority opinion cautions that the inherently dangerous exception
should not be so broadly read as to encompass any activity that may provide some
element of danger, such as an independent driver who is speeding. Rather, they restrict it
to behavior that is a “special danger to those in the vicinity” calling for “special
precautions”.
217
Otero v. Jordon Restaurant Enterprises
Otero v. Jordon Restaurant Enterprises
Citation. 119 N.M. 721.
Brief Fact Summary. The District Court of Bernalillo County (New Mexico) granted
pre-trial partial summary judgment to Plaintiff in his action for injuries sustained on the
premises of a restaurant and refused to give certain comparative negligence instructions
to the jury. Jordan Restaurant Enterprises (Defendant) appealed the rulings.
Synopsis of Rule of Law. A premises owner who entrusts to an independent contractor
construction, repair, or other work on the land, or on a building or other structure upon it,
is subject to the same liability as though he had retained the work in his own hands to
others on or outside of the land for physical harm caused to them by the unsafe condition
of the structure after he has resumed possession of the land upon its completion.
Facts. Defendant subcontracted to expand the premises of its restaurant. The expansion
included the installation of metal bleacher-type seating so that patrons could view events
on the restaurant's wide-screen television. After installation, the bleachers collapsed, and
Plaintiff was injured. Defendant conceded that Plaintiff's injuries were the result of the
negligent bleacher construction by his subcontractor. Before trial, Plaintiff filed a Motion
for Partial Summary Judgment asserting that Defendant was vicariously, or jointly and
severally, liable for his injuries. The trial court granted the motion, holding Defendant
liable, as a matter of law, for the negligent acts committed by the independent contractor
resulting in harm after completion of the work.
Issue. Did the lower court err in granting summary judgment and not applying the
collateral negligence rule?
Held. The judgment entered against the restaurant owner in the patron's premises
liability action was affirmed, the court held that the restaurant owner was liable for the
negligent acts committed by the independent contractor resulting in harm after
completion of the work
Discussion. With regard to vicarious liability within the context of employers and
subcontractors, the Otero court explained, "[g]enerally, an employer is not vicariously
liable for the negligence of an independent contractor, but this general rule of nonliability
has numerous exceptions." Exceptions, however, have exceptions, and the concept of
collateral negligence is one. Under the concept of 'collateral negligence,' an employer of
an independent contractor, unless he is himself negligent, is not liable for physical harm
caused by any negligence of the contractor if (1) the contractor's negligence consists
solely in the improper manner in which he does the work; and (2) it creates a risk of such
harm which is not inherent in or normal to the work; and (3) the employer had no reason
to contemplate the contractor's negligence when the contract was made. In this instance,
Defendant was not shielded by the doctrine. The concept of collateral negligence is
limited to negligence that produces a temporarily unsafe condition while the work is in
progress. It is not negligence, which produces a poor result or a defect in the final
218
Otero v. Jordon Restaurant Enterprises
structure. Thus, drawing the distinction between ongoing work performed by a contractor
and the resulting conditions, the court concluded that the defendant had a nondelegable
duty to exercise reasonable care and ensure that the bleachers were safe before allowing
patrons to use them.
219
CHAPTER XXIII.
The Development Of Common Law Strict
Liability
220
Weaver v. Ward
Weaver v. Ward
Citation. 80 Eng.Rep. 284.
Brief Fact Summary. In an action for trespass, Weaver sued Ward for assault and
battery, the result of injuries sustained during a military exercise. The court found for the
plaintiff.
Synopsis of Rule of Law. Tortfeasors cannot invoke mental capacity as a defense.
Facts. Weaver and Ward were "skirmishing for muskets" in a military exercise and
Ward accidentally hurt Weaver during the struggle. Weaver, while conceding no express
intention on the Defendant's part, nevertheless sues for damages.
Issue. Can a Defendant be held strictly liable for certain tortious acts?
Held. Yes. In certain civil actions the only issue is the factual matter of actual harm.
Discussion. The standard between criminal and civil actions differs; in the latter, at issue
is the action and harm involved (more than the mental state), i.e., the issue of damages is
measured strictly in terms of hurt or loss. The analysis is a factual one, involving the
questions: 1) whether Defendant acted; and 2) whether Plaintiff was injured in some way
as a result of that action. Ward is the initial case, which outlined the theory of strict
liability.
221
Brown v. Kendall
Brown v. Kendall
Citation. 60 Mass. 292.
Brief Fact Summary. The Court of Common Pleas (Massachusetts) granted judgment
to the Plaintiff, a personal injury claimant, in his action of trespass for assault and battery.
Synopsis of Rule of Law. A plaintiff must show either that the intention was unlawful,
or that the defendant was in fault; for if the injury was unavoidable, and the conduct of
the defendant was free from blame, he will not be liable.
Facts. Kendall (Defendant) was attempting to separate two fighting dogs, using a fourfoot stick to beat them. He was raising the stick over his shoulder when he accidentally
hit Plaintiff in the eye. At trial, Defendant requested that the judge give the jury an
instruction stating that if Defendant was exercising ordinary care and Plaintiff was not,
the latter could not recover. The judge declined, instead charging the jury that if
Defendant's actions were necessary or duty bound and he was exercising reasonable care,
then he was not liable. The jury found for plaintiff.
Issue. Did the trial court err in its jury instruction?
Held. The court reversed the judgment in favor of the claimant and ordered a new trial.
The court referred to the circumstances in this case as an inevitable accident. An
inevitable accident cannot be avoided even when exercising the care of a prudent person.
The jury should have been charged that if the dog owner accidentally hit the claimant in
his eye while he was using due care and all proper precautions necessary, then the
incident was an unavoidable accident, and Plaintiff could not recover. Generally, the
standard of care is that kind and degree of care, which prudent and cautious men would
use, such as may be required by the exigency of the case.
Discussion. Brown marks the shift from strict liability to fault-based liability.
222
Bamford v. Turnley
Bamford v. Turnley
Citation. 3 BN. & s. 67, 122 Eng. Rep. 27 (Exch. Ch.1862).
Brief Fact Summary. Plaintiff brought an action for nuisance, alleging that brick kilns
operated by his neighbor caused him injury in the form of fetid odor and an unhealthy
environment. The trial court entered judgment for Defendant. Plaintiff appealed.
Synopsis of Rule of Law. Even if activity performed on one's land is necessary or for
the public benefit, one cannot infringe on the rights of another individual. If one does,
they must compensate the other for damages.
Facts. Plaintiff complained of the smoke and smell arising from the burning of bricks by
the Defendant on his land not far from the Plaintiff's house. Evidence submitted at trial
indicated that the kiln operation was a temporary one, engaged in for private purposes
and that Defendant operated the kilns as far as possible from his neighbor's property. At
trial, the judge concluded that, as the location of the kilns was sufficiently removed from
Plaintiff's property and that the operation was a reasonable use upon private land. He
found for Defendant, and Plaintiff sought review.
Issue. Is it a defense to say that Plaintiff was using land in a reasonable manner?
Held. The court reversed the lower court's ruling, stating that a Defendant's use of land,
even if private and for beneficial use, is not justification for the infringement on his
neighbor's rights.
Discussion. Bamford is an early case raising some of the issues typically surrounding
private nuisance claims. Nuisance arises from an allegation of injury to person or
property. The injury need not be physical; it can include injury to rights, property
enjoyment, or "quality of life" issues. The law of nuisance recognizes two distinct
categories of claims: private nuisance and public nuisance. Bamford, as noted, is a case
of the former, when a nuisance interferes with another's current possessory or beneficial
interest in the use or quiet enjoyment of land. As the court stated, "[t]hose acts necessary
for the common and ordinary use and occupation of land and houses may be done, if
conveniently done, without subjecting those who do them to an action." The court
reasons, however, that part of the expense of private land use is the compensation to
others who may be damaged in the process, and the actor would then be liable for
compensation.
223
Rylands v. Fletcher
Rylands v. Fletcher
Citation. 3 Hurl & C. 774 (1865); L.R. 1 Exch. 265 (1866); L.R. 3 H.L. 330 (1868).
Brief Fact Summary. Plaintiff sued in connection with the flooding of his mine. The
trial court found in his favor. Defendant sought review.
Synopsis of Rule of Law. A person who for his own purposes brings on his lands and
collects and keeps there anything likely to do mischief if it escapes, must keep it in at his
peril, and, if he does not do so, is prima facie answerable for all the damage which is the
natural consequence of its escape.
Facts. Plaintiff owned and operated a mine adjacent to which Defendant constructed an
artificial pond. The latter caused a mineshaft collapse, which resulted in a flood, and
damaged Plaintiff's operation. The plaintiff sued, the matter was brought before an
arbitrator to independently establish facts. The trial court found for Plaintiff; the appellate
court affirmed; Defendant appealed to the House of Lords, which also affirmed.
Issue. Was the use of Defendant's land unreasonable and thus was he to be held liable
for damages incurred by Plaintiff?
Held. The lower court judgment was affirmed, stating in essence that the Defendant's
use of the land was unreasonable, engaged in without proper caution, and resulted in
harm to the Plaintiff.
Concurrence. The concurrence states more clearly the rule to be applied (see above),
noting also that more than the due care which was owed to plaintiff, at issue was the
factual determination of damage: "[w]hen one person in managing his own affairs causes,
however innocently, damage to another, it is obviously only just that he should be the
party to suffer."
Discussion. The Rylands court considers the manner in which the Defendant used the
land and concluded such use was "non-natural" what modern courts have described as
inconsistent land use, i.e., when a party inflicts non-reciprocal risks on another.
Nineteenth century English law was stricter than current law, in which trespass liability
ordinarily requires the physical intrusion onto property, and nuisance law requires
"continuing" and "permanent" activity (such as industrial activity that causes airborne
pollution).
224
CHAPTER XXIV.
Tort Liability For Defective Products
225
Moorman Manufacturing Co. v. National Tank Co.
Moorman Manufacturing Co. v. National Tank Co.
Citation. 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443.
Brief Fact Summary. The Appellate Court for the Fourth District (Illinois) reversed the
dismissal of Moorman Manufacturing Co.'s (Plaintiff's) claims of strict liability,
misrepresentation, and negligence in an action to recover for a defective feed-storage
tank. The appellate court held that the purchaser could recover for economic loss, and
National Tank Co. (Defendant) appealed.
Synopsis of Rule of Law. When a product is sold in a defective condition that is
unreasonably dangerous to the user or consumer or to his property, strict liability in tort is
applicable to physical injury to plaintiff's property, as well as to personal injury. When an
unreasonably dangerous defect is present, and physical injury does, in fact, result, then
physical injury to property is so akin to personal injury that there is no reason to
distinguish them.
Facts. Plaintiff purchased a steel grain storage tank from Defendant to use in Plaintiff's
feed processing plant. After about ten years, the tank developed a crack on one of its steel
plates. Plaintiff sued, claiming strict liability, misrepresentation, defective design, and
express warranty. The trial court dismissed the first three claims, holding that the
purchaser could not recover under the tort theories, but found that the breach of warranty
claim was not barred. The appellate court reversed the dismissal and held that Plaintiff
could recover for economic loss under his theories.
Issue. Can a consumer recover, in tort, under strict liability theory solely for economic
loss?
Held. The Supreme Court of Illinois reversed the judgment on the strict liability,
misrepresentation, and negligence claims of the purchaser's complaint and affirmed the
trial court's dismissal because the purchaser could not recover for economic loss under
his theories. Regarding the breach of warranty claim, the court reversed the trial court's
denial of the manufacturer's motion to dismiss.
Discussion. The concept of "strict liability" (or "liability without fault") refers to distinct
types of conduct for which a defendant will be responsible for damages, regardless of due
care or fault. In Moorman, the Supreme Court of Illinois addresses the various
considerations that determine when tort law, as opposed to contract law, will govern an
action in connection with product liability. When a product is sold in a defective
condition that is unreasonably dangerous to the user or consumer or to his property, strict
liability in tort is applicable to physical injury to plaintiff's property, as well as to
personal injury.
226
Lee v. Crookston Coca-Cola Bottling Co.
Lee v. Crookston Coca-Cola Bottling Co.
Citation. 290 Minn. 321.
Brief Fact Summary. The Polk County District Court (Minnesota) returned a general
verdict in favor of Crookston Coca-Cola Bottling Co. (Defendant) in suit brought by
Plaintiff to recover damages for injuries she sustained from the alleged explosion of a
soda bottle that had been bottled by defendant bottling company. Plaintiff appealed.
Synopsis of Rule of Law. When it could be inferred from circumstantial evidence that it
is more probable than not that a product was defective when it left the manufacturer's
hands the issue of liability should be submitted to the jury on strict liability theory.
Facts. Plaintiff, a waitress in a Minnesota restaurant, was injured when a Coca-Cola
bottle exploded in her hand. The evidence submitted showed that the bottle had in fact
exploded, that it had not been exposed to extremes of temperature, and that it had not
struck anything. The judge refused to permit a claim under strict tort liability; instead he
submitted the case to a jury on the theories of breach of implied warranty and negligence
under the doctrine of res ipsa loquitur. The jury found no negligence or breach of
warranty and found for the Defendant. The Plaintiff appealed, asserting that the judge
improperly precluded the strict liability claim in his instruction to the jury.
Issue. Is circumstantial evidence sufficient to submit a case to a jury on the theory of
strict liability as well as on a negligence theory?
Held. The Supreme Court of Minnesota reversed and remanded for a new trial because
the trial court committed reversible error by submitting the contributory negligence issue
to the jury when the record was devoid of any evidence upon which a finding of
contributory negligence could be sustained. A new trial was also necessary because the
trial court erroneously refused to submit Plaintiff's requested strict liability theory to jury.
Dissent. The dissent takes the view that in its decision, the majority virtually precludes a
defense on the part of the manufacturer: "[t]he practical result is to impose absolute
liability upon the manufacturer, as an insurer, in bottle explosion cases. It now is only
theoretically necessary for the injured consumer to establish the existence of a dangerous
defect in the exploded bottle for, by resort to the doctrine of res ipsa loquitur, the mere
happening of the event is held sufficient to prove the defect. Res ipsa, moreover, no
longer gives rise merely to a permissible inference but will compel a favorable finding for
the injured consumer."
Discussion. The court begins with a general examination of the Restatement § 402A,
which provides for strict liability in tort for anyone "who sells a product in a defective
condition unreasonably dangerous to the user or consumer or his property." "To recover
under the rule of strict liability, an injured party must present evidence, direct or
circumstantial, from which a jury can justifiably find that (1) the product was in fact in a
defective condition, unreasonably dangerous for its intended use; (2) such defect existed
227
Lee v. Crookston Coca-Cola Bottling Co.
when the product left defendant's control; and (3) the defect was the proximate cause of
the injury sustained." The court stated that the critical element is the second, noting "[t]he
mere fact of injury during use of a product usually is insufficient proof to show existence
of a defect at the time a defendant relinquished control." The manner of proving was the
central issue in this case, and as the court pointed out, "[w]hen a plaintiff has proved that
he was injured by a product claimed to have been defective, and where the claimed defect
is such that there is circumstantial evidence from which it can be inferred that it is more
probable than not that the product was defective when it left defendant's hands, absent
plaintiff's own want of care or misuse of the product, there is an evidentiary basis for
submitting the issue of liability to the jury on both the theory of negligence and strict
liability in tort." Thus the lower erred in submitting the case to the jury
Under the theory of strict liability, a plaintiff should not be required to prove specifically
what defect caused the incident, but may rely upon circumstantial evidence from which it
can reasonably be inferred that it is more probable than not that the product was defective
when it left defendant's control.
228
Knitz v. Minster Machine Co.
Knitz v. Minster Machine Co.
Citation. 69 Ohio St. 2d 460.
Brief Fact Summary. The Court of Appeals for Lucas County (Ohio) affirmed the trial
court's grant of summary judgment to the manufacturer of a punch press. Appellant, a
machine operator, had filed a products liability action against Minster Machine Co.
(Appellee) after her fingers were amputated. Appellant sought review.
Synopsis of Rule of Law. A product design is in a defective condition to the user or
consumer if (1) it is more dangerous than an ordinary consumer would expect when used
in an intended or reasonably foreseeable manner; or (2) if the benefits of the challenged
design do not outweigh the risk inherent in such design.
Facts. Appellant, using the punch press, leaned on the bolster plate in order to move the
foot pedal back in place with her foot. In so doing, she activated the foot pedal, and the
machine came down on her hand, and amputated two fingers. A button-tripping device,
which required two hands, had been disconnected, and the operator did not have a
pullback guard attached to her wrists. Plaintiff claimed that the press was inherently
defective, and thus dangerous to any user.
Issue. Did the lower court err in granting summary judgment?
Held. Yes. The court reversed the summary judgment that was granted in favor of the
Appellee and remanded the case. The court applied the risk-benefit test and held that
Appellee presented genuine issues of fact, based on expert opinions, as to whether the
press design was defective by allowing accidental tripping of the foot pedal control and in
failing to provide a point of operation guard when the foot pedal was operative.
Dissent. The dissent succinctly states: "[t]he majority opinion would render the
manufacturer of any machinery absolutely liable for any and all injuries received by the
user however careful the company may be in the design of the product and however
careless the individual might be in the use thereof. This should not be the law." The
dissent takes the view that personal responsibility should complement corporate
responsibility, placing the onus on the individual: "[h]ad appellant followed the
instructions and warnings, this unfortunate accident would not have occurred."
Discussion. An action for product liability will invariably rest upon one of four theories
of tort law: (1) negligence; (2) breach of one or more warranties; (3) strict products
liability; or (4) misrepresentation. With regard to the third, examined here, the court
explained: "[t]he policy underlying strict liability in tort requires that a product may be
found defective in design, even if it satisfies ordinary consumer expectations, if through
hindsight the jury determines that the product's design embodies excessive preventable
danger, or, in other words, if the jury finds that the risk of danger inherent in the
challenged design outweighs the benefits of such design."
229
Knitz v. Minster Machine Co.
The court then outlined the specific considerations in determining defectiveness: "Factors
relevant to the evaluation of the defectiveness of the product design are the likelihood
that the product design will cause injury, the gravity of the danger posed, and the
mechanical and economic feasibility of an improved design."
Here, the issue was simpler: was summary judgment proper if what was required was a
factual determination based on the considerations noted above? The Knitz court outlined
the standard summary judgment analysis: "[s]ummary judgment shall be rendered if there
is no genuine issue as to any material fact; if the moving party is entitled to judgment as a
matter of law; and if it appears from the evidence that reasonable minds can come to but
one conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made, such party being entitled to have the evidence construed
most strongly in his favor." Thus, summary judgment was improper.
230
Honda of America Mfg., Inc. v. Norman
Honda of America Mfg., Inc. v. Norman
Citation. 104 S.W.3d 600 (Tex.App.-Hous. (1 Dist.) 2003)
Brief Fact Summary. Plaintiffs’ daughter drowned when she could not disengage her
seatbelt as her car submerged in water. Plaintiffs claimed the seatbelt was defective.
Synopsis of Rule of Law. In order to prove a design defect, there must be a safer
alternative design that is economically and technologically feasible, and it should have
prevented or reduced the risk of injury without substantially impairing the product’s
utility.
Facts. Plaintiffs, Brian and Mary Norman, brought suit for the death of their daughter,
Karen Norman against Defendant, Honda of America. Karen, with an alcohol level of
.17, accidentally backed her car into a body of water. The passenger safely escaped, but
Plaintiff could not release her belt. The seat belt was a two-point passive restraint that
came over the shoulder automatically when the door was open and closed. Plaintiffs
claimed that the design of the belt was defective because the emergency release belt was
improperly located and the track system was defective. The jury found for Plaintiffs.
Issue. The issue is whether there was a safer design for the allegedly defective product.
Held. Plaintiffs were not able to prove that there was a safer alternative available. The
alternatives that Plaintiffs presented were either not proven to be safer or were only
conceptions and not actually available.
Discussion. A product is only defective if there is a proven safer alternative.
231
McCarthy v. Olin Corp.
McCarthy v. Olin Corp.
Citation. 119 F.3d 148.
Brief Fact Summary. The United States District Court for the Southern District of New
York dismissed Plaintiffs' negligence suit against Olin Corp. (Defendant), a bullet
manufacturer, for failure to state a claim upon which relief could be granted under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs argued that the issue of
whether they would ultimately prevail was a question for the trier of fact and should not
have been decided merely on the pleadings, challenged the decision.
Synopsis of Rule of Law. As a matter of law, a product's defect is related to its
condition, not its intrinsic function.
Facts. In December 1993, Colin Ferguson boarded a Long Island Railroad commuter
train during evening rush hour and opened fire on several passengers, killing six and
wounding nineteen. The bullets used in the shooting, 9mm "Black Talons", were
designed by their manufacturer, Olin Corporation, to enhance the injuries of their victims.
The bullets performed as designed, that is, they bent upon impact into "six ninety-degree
angle razor-sharp petals" that tear through tissue and bone thus increasing the severity of
the victims' injuries. Plaintiffs brought an action against Defendant, alleging strict
liability and negligence. The lower court ultimately dismissed appellants' complaint for
failure to state a claim upon which relief could be granted. With specific regard to
Plaintiff's action for negligent marketing and manufacture, the appeals court affirmed the
lower court's dismissal because Defendant did not have a legal duty to control the
distribution of the ammunition nor did it owe a legal duty to appellants to protect against
an assailant's horrible action. Plaintiffs appealed.
Issue. Did the lower court err in dismissing Plaintiff's case based solely on the
pleadings?
Held. No. Defendant could not be held strictly liable on the grounds that the ammunition
was defectively designed and the design and manufacture of the bullets were inherently
dangerous. The bullets were not in defective condition nor were they unreasonably
dangerous for their intended use; they were purposely designed to expand on impact and
cause severe wounding.
Dissent. The dissent took issue with the dismissal of plaintiffs' negligence claim in that
he viewed the issues surrounding the manufacturer's marketing of the bullets as possibly
an issue for a jury.
Discussion. In New York, there are three distinct claims for strict products liability: (1) a
manufacturing defect, which results when a mistake in manufacturing renders a product
that is ordinarily safe dangerous so that it causes harm; (2) a warning defect, which
occurs when the inadequacy or failure to warn of a reasonably foreseeable risk
accompanying a product causes harm; and (3) a design defect, which results when the
232
McCarthy v. Olin Corp.
product as designed is unreasonably dangerous for its intended use. In the instant case,
the latter point is critical. The ironic problem here is that the product in question
performed exactly as designed; by definition, then, the product at issue was not defective.
As the court explained, "[a] defectively designed product is one which, at the time it
leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate
consumer. This rule, however, is tempered by the realization that some products, for
example knives, must by their very nature be dangerous in order to be functional."
233
Liriano v. Hobart Corp.
Liriano v. Hobart Corp.
Citation. 170 F.3d 264.
Brief Fact Summary. The Court of Appeals of New York granted a judgment and
damages for plaintiff in a suit for failure of the duty to warn. Defendant and Third-party
Defendant appealed.
Synopsis of Rule of Law. The duty to warn is not necessarily obviated merely because a
danger is clear.
Facts. Plaintiff's hand was caught in a meat grinder while he was working. He was
severely injured. He sued the manufacturer then brought a third-party action against
plaintiff's employer. At the time of sale, the machine came equipped with a safety guard,
but the guard was removed while in possession of Plaintiff's employer. The apparatus
carried no safety warning indicating that it should be operated only with the safety guard
attached. The issue that went before the jury was the failure to warn claim. The jury
found for Plaintiff, and liability was apportioned among all three parties.
Issue. Does a reasonable manufacturer have a duty to warn even when the danger at
issue is an obvious one?
Held. The court affirmed the judgment, concluding that failure-to-warn liability was
valid and applied as a matter of law to the facts of the present case.
Discussion. The Restatement (Third) of Torts deals directly with product liability, listing
three types of claim available to a putative plaintiff: (1) manufacturing defect; (2) design
defect; or a (3) defect by reason of inadequate warnings or instructions. Liriano concerns
the third, with the majority opinion addressing the issue of "obviousness as a matter of
law" providing a shield to potential defendants whose products could cause injury.
The majority opinion in Liriano addresses both issues of responsibility and causation,
and, very importantly, which areas are reserved for the court and which are better suited
to a jury. The court notes that the evolution of the law's position with regard to standards
of conduct has been shifting from court-imposed standards towards "enlarging the sphere
of the jury." As the majority opinion states: "[j]udges should be very wary of taking the
issue of liability away from juries, even in situations where the relevant dangers might
seem obvious, and especially when the cases in question turn on particularized facts."
In line with a clearly fact-based approach to determining the standard of care due, and
thus what would constitute negligence, the Liriano court also applied a totality of
circumstances analysis, observing "[t]he Plaintiff was only seventeen years old at the
time of his injury and had only recently immigrated to the United States. He had been on
the job for only one week. He had never been given instructions about how to use the
meat grinder." The court reasoned that it would not have been such a stretch for the
defendant to have anticipated such or similar circumstances and guarded against injury
through the nominal precaution of providing a warning label.
234
Liriano v. Hobart Corp.
Finally, with regard to causation, the court explained: "[w]hen a defendant's negligent act
is deemed wrongful precisely because it has a strong propensity to cause the type of
injury that ensued, that very causal tendency is evidence enough to establish a prima facie
case of cause-in-fact." Thus, the court reasoned, "[e]ven if [the state court] would
consider the danger of meat grinders to be obvious as a matter of law, that obviousness
did not substitute for the warning."
235
Lewis v. Lead Industries Ass’n, Inc.
Lewis v. Lead Industries Ass’n, Inc.
Citation. 342 Ill.App.3d 95 (Il.App. 1 Dist. 2003)
Brief Fact Summary. Plaintiffs were parents of children that were potentially exposed to
lead-based paint. Plaintiffs brought suit against Defendants, manufacturers of lead-based
paints, to recover for expenses related to the testing of children for lead exposure.
Synopsis of Rule of Law. Members of an industry can not be held liable, under the
doctrines of strict liability, fraud, unjust enrichment, and public nuisance, if there is no
evidence of specific causation-in-fact between the defendant and the damages.
Facts. Defendants are manufacturers of lead-based paints. Plaintiffs are parents of
children that were tested to have high levels of lead. Plaintiffs brought suit against
Defendants under negligence, strict liability, fraud, unjust enrichment, public nuisance
and civil conspiracy. Plaintiffs are seeking repayment for damages stemming from
required lead-testing for children. Plaintiffs are unable to assert which company made
the paint, so they brought suit against most lead-paint manufacturers in an attempt to hold
the whole industry responsible. The trial court dismissed all six claims.
Issue. The issue is whether Defendants are liable for damages that Plaintiffs are only
able to attribute to Defendant’s industry as a whole.
Held. The Appellate Court of Illinois, First District, Third Division, affirmed the trial
court’s dismissal on every claim except for civil conspiracy on the grounds that Plaintiffs
offered no evidence of causation-in-fact between the paint at issue and any particular
Defendant. Because Plaintiffs named all of the lead-based paint manufacturers, the Court
allowed the civil conspiracy count because there is no requirement to name one particular
company to satisfy the elements of civil conspiracy.
Concurrence. The concurring opinion agreed on all counts but believed that no opinion
should be delivered as to whether an increased risk of harm is sufficient to award
damages.
Discussion. An essential element for the torts of strict liability, fraud, unjust enrichment
and public nuisance is to prove a specific causation-in-fact between the defendant and the
damage inflicted upon the plaintiff. One company or a group of companies will not be
held liable for an entire industry.
236
Turpin v. Merrell Dow Pharmaceuticals, Inc.
Turpin v. Merrell Dow Pharmaceuticals, Inc.
Citation. 959 F.2d 1349.
Brief Fact Summary. In a personal injury action, Plaintiffs allege that harm resulted
from use of a drug manufactured by Merrell Dow Pharmaceuticals, Inc. (Defendant). The
United States District Court for the Eastern District of Kentucky granted Defendant's
Motion for Summary Judgment. Plaintiffs challenged the decision.
Synopsis of Rule of Law. In determining and applying the correct standards of proof on
summary judgment in scientific cases, the court looks to the rules of sufficiency of the
evidence to decide whether juries should be allowed to hear the evidence as well as the
rules of admissibility of expert testimony that shape the facts and opinions to be
considered.
Facts. About seven weeks into her pregnancy, Betty Turpin began using Bendectin, a
drug manufactured by Defendant, to combat morning sickness. Seven months later, her
daughter was born with "limb reduction defects", severely deformed hands and feet,
fused joints, and missing fingers and toes. Turpin had taken no other drugs during her
pregnancy and there was no evidence of a genetic cause for the child's condition.
Plaintiffs, parents and daughter, brought an action alleging defendant's drug caused
plaintiff daughter's birth defects. The trial court determined that expert testimony offered
by Plaintiffs was insufficient, and granted summary judgment for Defendant. Plaintiffs
sought review.
Issue.
!
How hard should judges look at the reasonableness of scientific theories
and inferences before they decide whether there is enough to the case for it
to go before a jury?
!
What exactly are the general scientific experiments and studies capable of
showing about whether Bendectin causes birth defects in a particular case?
Held. The court of appeals affirmed the lower court's judgment, stating that Plaintiffs'
evidence was insufficient, as their experts testified only that defendant's drug Bendectin
was capable of causing or could have caused Plaintiffs' daughter's birth defects, not that it
probably caused them. The court also distinguished between an individual expert's
opinion and the collective view of his particular scientific discipline. Plaintiffs' expert
offered only the former, which the court concluded was only a personal belief as it was
based on the same animal studies as Plaintiffs' other experts yet only he reached such a
conclusion.
Discussion. The central issue the court addresses in Turpin is the degree to which judges
should defer to technical experts and the manner in which judges should evaluate the
reasonableness of such experts' theories. The court advises a course of prudent caution:
237
Turpin v. Merrell Dow Pharmaceuticals, Inc.
"[a]lthough judges should respect scientific opinion and recognize their own limited
scientific knowledge, nevertheless courts have a duty to inspect the reasoning of qualified
scientific experts to determine whether a case should go to the jury." Nevertheless, this
on occasion requires an assertive approach on the part of the court: "[i]n some
circumstances there exists a combination of danger signals requiring enhanced judicial
vigilance to enforce the Rule of Law. In such situations, a court does not depart from its
proper function when it undertakes a study of the record, hopefully perceptive, even as to
evidence on technical and specialized matters." The court then states the primary
requirement that would lend credence to expert opinion, "[a] physician's unsupported
personal opinion of causation is inadmissible."
As a general rule, because of the technical nature of many cases involving drug
manufacture, medical malpractice, science and engineering, a plaintiff typically will need
qualified expert witnesses to help establish the appropriate standard of care and a
defendant's breach of duty. In cases like Turpin, the expert must articulate the prevailing
collective view of other competent doctors in the relevant medical community. A
plaintiff's expert must be familiar with the protocols, practices and standards applicable to
the type of research and data at issue. This was the insufficiency of the plaintiffs' expert
testimony offered in Turpin, as the court stated: "[p]ersonal opinion, not science, is
testifying here . . .[and] we hold that it cannot legitimately form the basis for a jury
verdict." Accordingly, the court of appeals upheld the lower court's decision.
238
Bowling v. Heil Co.
Bowling v. Heil Co.
Citation. 31 Ohio St. 3d 277.
Brief Fact Summary. The Court of Appeals for Butler County (Ohio) affirmed jury
verdict finding appellee manufacturer negligent and strictly liable for Mr. Bowling's
death, but remanded the case for reduction of money judgment to that percentage of fault
assigned to appellee by jury. Ms. Bowling (Appellant), administratrix of husband's estate,
sought review.
Synopsis of Rule of Law. Contributory negligence of a plaintiff is not a defense when
such negligence consists merely in a failure to discover the defect in the product, or to
guard against the possibility of its existence.
Facts. Appellee manufactured a dump hoist used on dump trucks, and one such hoist
was installed on a vehicle used by Mr. Bowling and a friend. When the hoist appeared to
malfunction, Mr. Bowling investigated, leaning under the truck chassis. He manipulated
the control lever of the truck's pump assembly and the truck bed suddenly fell on him,
killing him instantly. In a subsequent action, a jury found that Mr. Bowling was
contributorily negligent but had not assumed the risk. As the trial court and subsequently
the appeals court interpreted the effect of contributory negligence differently, the
Supreme Court of Ohio had to address the question on appeal.
Issue. What is the effect of contributory fault in a products liability case?
Held. Reversing the judgment of the court of appeals, the Supreme Court of Ohio
reinstated the judgment of the trial court, which had assessed the entire money judgment
against appellee, having found comparative negligence and comparative fault were did
not apply a strict products liability action and upholding the doctrine of joint and several
liability.
Dissent. The dissent takes the view that the framework for application of contributory
negligence employed by the majority creates both equitable and policy problems. Further,
the dissent contends that an unfair onus is placed on a manufacturer without proper
apportionment of responsibility. He notes, "Even supposing a defect in the hydraulic
system, the manufacturer's warning was sufficient to protect the reasonably prudent
person even in the extreme case of a complete failure of the hoist." He takes issue also,
on policy grounds, of the impracticability such application creates for manufacturers,
stating, "[i]t is not possible for the manufacturer to be physically present to enforce what
should be obvious safety concerns. It becomes clear, then, that the proximate cause of
decedent's demise was his own deliberate assumption of a risk, which he had been
warned of, expressly and circumstantially, and which peril he voluntarily entered into,
notwithstanding the danger, when he easily could have opted to stand by and remain
unharmed. This being the very danger which the manufacturer sought to warn decedent
of, his representatives may not reasonably complain that the deceased was unaware of
some specific danger." As applied, strict liability creates a serious inequity. The law
239
Bowling v. Heil Co.
should compare the plaintiff's misconduct with the defendant's defective product. The
dissent stated that fairness requires such a comparison.
Discussion. The Restatement defines contributory negligence as conduct on the part of
the plaintiff, which falls below the standard of conduct to which he should conform for
his own protection, and which is a legally contributing cause in bringing about the
plaintiff's harm. In most jurisdictions, however, some form of comparative negligence,
often called comparative fault, has replaced contributory negligence.
The question before the Bowling court was what, if any, effect a theory of contributory
negligence should have within the framework of strict liability. The court concluded that
comparative negligence and comparative fault do not apply to products liability cases
based on strict liability claims. The court places the responsibility on the manufacturer,
because they place the product on the market. Declining to apply a theory of contributory
negligence, the majority takes the position that a strict adherence to the Restatement's
formulation with respect to product liability is the proper approach. Quoting the Court of
Appeals of Ohio, the court notes: "[p]roducts liability under § 420A does not rest upon
negligence principles, but rather is premised on the concept of enterprise liability for
casting a defective product into the steam of commerce." The proper focus should be on
the nature of the product rather than on individual conduct."
240
Hughes v. Magic Chef, Inc.
Hughes v. Magic Chef, Inc.
Citation. 288 N.W.2d 542.
Brief Fact Summary. The Polk District Court (Iowa) entered judgment for Magic Chef,
Inc. (Defendant) in a strict products liability action and overruled Plaintiffs' Motion for a
New Trial. Plaintiffs, husband and his wife, challenged the decision.
Synopsis of Rule of Law. Misuse is not an affirmative defense in a products liability
action but is an element of the plaintiff's own case in which he must establish, by a
preponderance of the evidence that the manner in which the product was used was
foreseeable to the manufacturer.
Facts. Plaintiff was seriously burned when a stove made by the manufacturer exploded
after the propane tank was refilled. The pilot lights on the stovetop were re-lit, but a pilot
light in the oven's cavity was not. Propane built up within the stove, resulting in the
ensuing explosion. The injured husband and his wife brought an action against the
manufacturer based on strict product liability. The jury found for the manufacturer, and
the trial court overruled the injured party's Motion for a New Trial.
Issue. Did the trial court in its instruction to the jury that misuse was an affirmative
defense?
Held. Yes. The court reversed the lower trial court's decision, holding that misuse of a
product was no longer a defense in products liability actions, and on retrial, the burden
was on the injured husband to establish that the use made of the stove was reasonably
foreseeable by the manufacturer. Thus, the injured husband and his wife's Motion for a
New Trial should have been sustained.
Discussion. As a general rule, the manufacturer of any product capable of serious harm
if negligently made owes a duty of care in the design, inspection, and fabrication of the
product. Such duty is owed not only to the immediate purchaser but to all persons who
might foreseeably come into contact with the product. See MacPherson v. Buick Motor
Co., 111 N.E. 1050 (N.Y. 1916). Presently, such claims may be brought under the
guidelines of the Restatement (Third) of Torts, and fall under the section specifically
dealing with products liability. The Restatement categorizes such claims as due to (1)
manufacturing defect; (2) design defect; or a (3) defect by reason of inadequate warnings
or instructions. Restatement § 402A provides for strict liability in tort for anyone "who
sells a product in a defective condition unreasonably dangerous to the user or consumer
or his property."
There are a number of defenses. The Hughes court addressed the issues surrounding a
plaintiff's possible misuse of the product in question. "Contributory negligence of a
plaintiff is not a defense to strict liability when such negligence consists merely in a
failure to discover the defect in the product, or to guard against the possibility of its
existence." There are exceptions. "If the user or consumer discovers the defect and is
241
Hughes v. Magic Chef, Inc.
aware of the danger, and nevertheless proceeds unreasonably to make use of the product
and is injured by it, he is barred from recovery."
Such conduct falls under the rubric of assumption of risk. The court explained, "[m]isuse
precludes recovery when a plaintiff uses a product in a manner which defendant could not
reasonably foresee. Assumption of risk is a defense to a strict liability action when a
plaintiff voluntarily and unreasonably proceeds to encounter a known danger." However,
a number of logical complications arise with regard to issues of proof. The court thus
stated, "[m]isuse of product is no longer considered an affirmative defense in products
liability actions but is rather to be treated in connection with a plaintiff's burden of
proving an unreasonably dangerous condition and legal cause." In this manner, the
burden is shifted to the plaintiff, as here, to establish foreseeability as an element of his
case: "[r]egardless of whether a defendant does or does not plead misuse of the product
the burden is on the plaintiff to prove that the legal cause of the injury is a product defect
which renders the product unreasonably dangerous in a reasonably foreseeable use."
This approach apportions responsibility in that a manufacturer must consider the various
ways in which the product will be used, properly or improperly. "In some situations,
negligent use of a product by a consumer is reasonably foreseeable by the producer and,
therefore, is not 'misuse' for liability purposes." As the court further explained, "[i]f the
ordinary user would be reasonably aware that use of a product in a certain way is
dangerous, use of the product in that manner is less foreseeable by the producer than a
use to which danger is not normally ascribed. But the ordinary user's awareness that use
of the product in a certain manner is dangerous does not conclusively establish that such
use is not reasonably foreseeable, for the defendant may in a given case reasonably
foresee that a given product will be used by persons such as children who do not possess
the knowledge of the ordinary user. Hence knowledge which can be reasonably attributed
to the ordinary user is to be considered as a factor in determining whether the manner in
which the plaintiff used the product is reasonably foreseeable."
242
Reid v. Spadone Machine Co.
Reid v. Spadone Machine Co.
Citation. 119 N.H. 457.
Brief Fact Summary. Plaintiff brought a product liability action to recover damages for
an injury he sustained while using a plastic cutting machine made by Spadone Machine
Co. (Defendant). The Superior Court of New Hampshire entered the jury verdict in favor
of the employee. The company appealed, claiming that the evidence did not support the
verdict as conduct by Plaintiff and other company employees was a superseding cause.
Synopsis of Rule of Law. A jury could properly find that a defect is a proximate cause
of an injury. The existence of concurrent causes will not in and of itself vitiate a finding
that one cause was a proximate cause of the injury.
Facts. An employee at Davidson Rubber Company was injured while using a plastic
cutting machine. The machine, a "guillotine-type" cutting device, had several safety
mechanisms, and the manufacturer had modified the machine so that its operation would
preclude workers' hands from entering the cutting area. Trial testimony indicated that,
although the machine was intended to be used by only one person, employees would at
times work together to operate it. The employee lost three fingers when he and another
worker were operating the machine manufactured by the company. The trial court ruled,
over objection, that Defendant could not use as a defense, company conduct as a
superseding, and thus proximate, cause of the injury. The jury found for Plaintiff and
Defendant appealed.
Issue. Did the trial court err in disallowing Defendant's superseding cause argument for
submission to the jury?
Held. No. The Supreme Court of New Hampshire held that the jury's general verdict in
favor of the employee constituted a finding that the machine was defective in design,
unreasonably dangerous, and the proximate cause of the employee's injuries.
Discussion. Defendant claimed that the employer, Davidson Rubber, was aware of the
manner in which its employees used the device in question, and it contended that this
knowledge and practice was a superseding cause of the injury suffered by Plaintiff. In
considering the manufacturer's claims, the court rejected this argument. Generally, a
manufacturer is under a general duty to design a product, which is reasonably safe its
foreseeable uses. In this case, Defendant cannot successfully argue that a third person's
negligence or misuse was a superseding cause, he must prove that the negligence or
misuse was not reasonably foreseeable. This Defendant failed to do provide evidence to
this effect.
243
Boyle v. United Technologies Corporation
Boyle v. United Technologies Corporation
Citation. 487 U.S. 500.
Brief Fact Summary. The Supreme Court of the United States granted certiorari to
review a judgment of the United States Court of Appeals for the Fourth Circuit, which
reversed the district court's judgment against respondent helicopter manufacturer in the
negligence and breach of warranty action.
Synopsis of Rule of Law. To the extent that it holds military contractors liable for
design flaws, state law may significantly conflict with federal interests thereby requiring
its displacement.
Facts. United States Marine helicopter pilot David A. Boyle died when the CH-53D
helicopter in which he was flying crashed off the Virginia coast. His father, Delbert
Boyle (Respondent) sued the helicopter's manufacturer for defectively designing its
copilot emergency escape hatch. On appeal from a state-law based jury verdict favoring
Plaintiff, the court of appeals found that the manufacturer could not be held liable under
Virginia tort law for any design flaws since it met the requirements of the "military
contractor defense." Respondent appealed; the Supreme Court granted certiorari.
Issue. May independent military contractors be held liable for injuries caused by their
design flaws pursuant to state tort laws?
Held. No. The Supreme Court held that despite the absence of specific legislation
immunizing government contractors from liability for design flaws, questions of their
liability are of unique federal concern.
Dissent. The Supreme Court ruled 5-4 in favor of respondent. In a strongly worded
dissent, Justice Brennen, joined by Justices Marshall and Stevens, takes issue with what
he sees as the Court overstepping its bounds-and thus violating separation of powers and
denying equitable relief as well. He states: "[t]he Court -- unelected and unaccountable to
the people -- has unabashedly stepped into the breach to legislate a rule denying Lt.
Boyle's family the compensation that state law assures them. This time the injustice is of
this Court's own making." J. Brennen also takes issue with the manner of the majority's
central rationale, the displacement of state law in favor of federal interests.
Discussion. Generally, the Supreme Court refuses to find federal pre-emption of state
law in the absence of either a clear statutory prescription or a direct conflict between
federal and state law. In his opinion in Boyle, Justice Scalia states that the Court will
deviate from the general rule in cases involving "uniquely federal interests." Here, the
Court found that the state law conflicted with the federal law, therefore, the federal law
should pre-empt the state law.
244
Newmark v. Gimbel's, Inc.
Newmark v. Gimbel's, Inc.
Citation. 54 N.J. 585, 258 A2d 697.
Brief Fact Summary. The Superior Court, Appellate Division, (New Jersey) reversed
the judgment of the trial court, holding that Gimbel's, Inc. (Defendant) was not liable for
damage to Plaintiff's hair and scalp allegedly caused by a product used in giving a
permanent wave. Defendant appealed.
Synopsis of Rule of Law. One, who in the regular course of a business sells or applies a
product (in the sense of the sales-service hybrid transaction) that is in such a dangerously
defective condition as to cause physical harm to the consumer-patron, is liable for the
harm.
Facts. Plaintiff went to a beauty shop owned by Defendant where she had an
appointment and, on the recommendation of her usual stylist underwent a permanent.
One more than one occasion, she had felt a burning sensation on her scalp. Subsequently,
she developed blistering on her forehead and her hair fell out. It was later determined by
a dermatologist that she had contacted dermatitis caused by the permanent solution.
Plaintiff, along with her husband, brought an action alleging negligence and breach of
express and implied warranties. The trial court dismissed the warranty theories of liability
stating that Defendant was providing a service. A jury returned a verdict for Defendant
on the negligence claim. The appellate court reversed, holding that an existing factual
issue required a jury to decide whether there was an implied warranty of fitness for the
lotion applied to Plaintiff's hair and scalp.
Issue. May retailers be held liability in strict liability for services rendered?
Held. Yes. In affirming the appellate court order, the Supreme Court of New Jersey
remanded the case for a new trial stating that strict liability may be imposed on retailers
such as Defendant if a jury found that the product in question was defective and was the
proximate cause of Plaintiff's injury.
Discussion. Generally, courts have not extended strict liability to those providing
services. The reasoning being the limited reach of personal service, in contrast to the
broad reach of mass-produced goods that flow into the stream of commerce. When the
reach of strict liability has been extended, it is usually in circumstances, like here, where
there was a defective product involved.
245
United Blood Services, Division of Blood Systems, Inc. v. Quintana
United Blood Services, Division of Blood Systems, Inc. v. Quintana
Citation. 827 P.2d 509.
Brief Fact Summary. Alleging that she was infected with AIDS after being given
contaminated plasma supplied to a hospital by United Blood Services (a division of
Blood Systems, Inc.), Plaintiff patient and her husband filed a negligence action against
Defendant blood bank.
Synopsis of Rule of Law. The law imposes on a blood bank the duty to exercise due
care under the attending circumstances to the end that those receiving health care will
benefit and adverse results therefrom will be minimized by the use of available and
proven scientific safeguards. A blood bank is liable in negligence, therefore, when it fails
to make use of, or makes unreasonable use of, available and proven scientific safeguards
in the course of acquiring, preparing, or transferring human blood or its components for
use in medical treatment.
Facts. In May 1983, Plaintiff, Mrs. Quintana suffered a gunshot wound and underwent
emergency surgery in a Colorado hospital. During surgery she received several units of
blood and other blood products. She subsequently showed symptoms consistent with the
AIDS virus. She was, in fact, later diagnosed. It was later determined that the donor of a
unit of blood, processed and supplied to the hospital by defendant, UBS, was a member
of a high-risk group for AIDS. Plaintiff patient and her husband filed a negligence action
against UBS. In a pretrial motion, Plaintiffs attempted to introduce expert testimony from
a physician who would have testified as to the applicable standard of care in the
acquisition, preparation, and transfer of human blood. Defendant's moved to preclude his
testimony and the trial court granted the motion. At trial, the court ruled that the local
statute imposed a professional standard of care, as opposed to the general standard of
reasonable care, on the blood banking community as it was engaged in medical services.
Based on the pretrial motion noted above, Plaintiff's expert was not permitted to testify in
connection with the proper testing and screening procedures involved in blood
acquisition, preparation, and transfer. The jury, instructed by the judge that the industry
standard was the proper one to be applied, found for the Defendant.
Issue.
!
Did the court of appeals err in overruling the trial with regard to the
standard of care to be applied in cases involving the acquisition,
preparation, and transfer of human blood?
!
Was the court of appeals correct in ordering a new trial because the trial
court erroneously applied the standard of care in such cases?
Held.
246
United Blood Services, Division of Blood Systems, Inc. v. Quintana
!
Yes. The Colorado Supreme Court held that the blood bank was a member
of a national community and, as such, was subject to a national
professional standard applicable to the blood banking community.
!
Yes. While the trial court properly concluded that the blood bank was
subject to a national professional standard of care, it erroneously applied
that standard in a manner that effectively precluded the patient and her
husband from establishing that the national blood banking community's
standard of care was itself unreasonably deficient in not incorporating
available safeguards designed to provide substantially more protection
against the risk of infecting a transfusion recipient with AIDS. The case
was remanded for a new trial.
Discussion. Nearly all jurisdictions have enacted statutes, like the one at issue in United
Blood Services, that render a hospital, blood bank or medical personnel liable for
damages sustained due to contaminated blood in connection, like here, with negligence
claims. The court in United Blood Services addressed two primary issues: the proper
standard of care to be applied, and the evidentiary issue of plaintiffs' right to submit
expert testimony.
With regard to the first issue, the court first stated, "Legal duty is defined in terms of a
standard of care. The source of the duty and the corresponding standard essential to the
proper discharge of the duty may originate from a judicial decision or a legislative
enactment. A legal duty to use reasonable care arises in response to a foreseeable and
unreasonable risk of harm to others." However, in cases alleging professional negligence
there are other considerations, and the court articulated the proper analytical framework:
"For those practicing a profession, involving specialized knowledge or skill, reasonable
care requires the actor to possess a standard minimum of special knowledge and ability,
and to exercise reasonable care in a manner consistent with the knowledge and ability
that is possessed by members of the profession in good standing."
The court then identifies the manner in which such standards are to be established as a
matter of proof. "A practicing professional is generally entitled to be judged according to
the tenets of the school of practice which the practitioner professes to follow. Because in
most cases of professional negligence the applicable standard is not within the common
knowledge and experience of ordinary persons, the applicable standard must be
established by expert testimony." However, the court cautions adherence to an industry
standard is not de facto evidence exculpatory of negligence: "Compliance with
administrative safety regulations is a circumstance to be considered on the issue of due
care but is not conclusive proof of that issue." The court expanded on this last point, "If
the standard that is adopted by a practicing profession is deemed conclusive proof of due
care, the profession itself would be permitted to set the measure of its own legal liability,
even though that measure might be far below a level of care readily attainable through the
adoption of practices and procedures substantially more effective in protecting others
against harm than the self-decreed standard of the profession." In other words, a
profession may not have adopted the most effective methods, and a plaintiff should be
permitted to explore that possibility: "In a professional negligence case, a plaintiff shall
247
United Blood Services, Division of Blood Systems, Inc. v. Quintana
be permitted to present expert opinion testimony that the standard of care that is adopted
by the school of practice to which the defendant adheres is unreasonably deficient by not
incorporating readily available practices and procedures substantially more protective
against the harm that is caused to the plaintiff than the standard of care that is adopted by
the defendant's school of practice."
It was in this matter that the lower court erred. Even though the court had correctly
addressed the standard of care due, it nevertheless erred in precluding testimony that may
have called into question the prevailing methods extant at the time of the harm alleged.
This would be a question of fact, and thus properly before a jury. "If the jury finds by a
preponderance of the evidence that the standard of care is unreasonably deficient, it must
resolve the issue of the defendant's negligence on the basis of all the evidence concerning
the practices available to the defendant's profession under circumstances existing at the
time of the events." Thus, both lower court's erred: the trial court in excluding expert
testimony, and the appellate court in wrongly holding that the trial court erred in
construing the relevant statute as imposing a professional standard of care on the blood
bank.
248
CHAPTER XXV.
Settlement and Apportionment
249
Gleason v. Guzman
Gleason v. Guzman
Citation. 623 P.2d 378, Supreme Court of Colorado (1981).
Brief Fact Summary. The Court of Appeals (Colorado), in a personal injuries action,
reversed a grant of summary judgment in favor of Defendants based on a release
executed by the guardian of Plaintiff, who was struck on the head by a vending machine
that fell from a truck when she was a minor. Defendants, truck driver and his employer,
appealed.
Synopsis of Rule of Law. Rescission of a settlement of a personal injury claim is
available for mistakes relating to the nature of known injuries but not for mistakes as to
the future course and effects of those injuries.
Facts. Plaintiff was struck on the head by a vending machine that fell from a truck when
she was a minor. She sued Defendants, a truck driver and his employer, seeking to
recover for personal injuries. Defendants offered as an affirmative defense a release,
executed by Plaintiff's guardian, and moved for summary judgment. It was later
determined, approximately four years after the accident when the minor had been
emancipated, that the severity of her injuries was greater than was known at the time of
settlement. She began having epileptic seizures, and retained counsel and filed for
rescission of the original judgment. The trial court found for Defendants. Plaintiff
appealed, contending that summary judgment was improper because the minor's guardian
was mistaken concerning the true nature of the minor's injuries; there thus remained a
genuine material issue of fact.
Issue. May a mistake on the part of a minor plaintiff's guardian in connection with a
settlement and an attendant release negate such settlement agreements and permit a
successful on to set aside a judgment?
Held. Yes. The court affirmed the judgment of the appellate court, holding that summary
judgment was precluded because there was a genuine factual issue as to whether
plaintiff's guardian was mistaken about the nature of her injuries when he executed a
release.
Dissent. While the majority, in weighing policy considerations favoring finality of
settlements agreements against the effects errors may have on the outcome of such
settlements, chose to mitigate the effects of the latter scenario, the dissent sees a greater
danger in permitting a plaintiff to relitigate what it views as settled issues: "If an injured
party can set aside a release contract simply because he was not specifically aware of a
consequence of his injury which subsequently developed, any incentive for a defendant to
enter into such a release transaction would be nullified. The only safe release from a
defendant's viewpoint would be one listing every possible consequence of the known
injury. As a practical matter, such an all-inclusive list is an impossibility." The dissent
points out, "Having chosen to settle the case for an agreed amount which in this case
included a substantial percentage for possible future damages, the plaintiff must be held
250
Gleason v. Guzman
to that election." Thus, in the interests of closure and judicial efficiency, the dissent
would have affirmed the lower court's decision.
Discussion. The court in Gleason begins by addressing the preliminary issue of when
summary judgment is proper, i.e, where there exists a material issue of fact that would be
correctly submitted to a jury, cautioning, "Summary judgment is a drastic remedy and
should be granted only where the evidential and legal prerequisites are clearly
established." More central, however, is the question of what effect, if any, a factual
mistake on the part of a party should have on a settlement reached in a civil action. The
court points out, "Rescission of a settlement of a personal injury claim is available for
mistakes relating to the nature of known injuries but not for mistakes as to the future
course and effects of those injuries." Thus, it is necessary for the court to define mistake
generally, stating: "Mistake involves an erroneous state of mind about an external fact. It
may stem from a tacit presupposition of an untrue fact or from ignorance of an existing
fact. An inquiry into its existence is essentially factual in character." With specific regard
to cases like the one at bar, the court notes, "Mistake involves an erroneous state of mind
about an external fact. It may stem from a tacit presupposition of an untrue fact or from
ignorance of an existing fact. An inquiry into its existence is essentially factual in
character." The court then drew a distinction between diagnosis and prognosis with
respect to an injured plaintiff's medical condition, the central inquiry being whether the
plaintiff could possibly know the extent of the injury sustained: "If unknown injuries
were not within the contemplation of the parties, the release will be set aside."
Concluding that the nature of the injury sustained by the plaintiff was unknown to her
guardian at the time of settlement, there existed a triable issue of fact and thus summary
judgment was inappropriate.
251
Ascheman v. Hancock
Ascheman v. Hancock
Citation. 254 N.W.2d 382.
Brief Fact Summary. The Village of Hancock, Minnesota appealed after dismissal of
its third-party complaint against Floyd Ascheman for contribution in connection with an
action brought by Ascheman's wife for damages in which she alleged that the Village
served liquor to her husband while he was intoxicated.
Synopsis of Rule of Law. Common liability is a necessary prerequisite to contribution
among joint tortfeasors.
Facts. Floyd Ascheman was injured after being served liquor at a bar, which was owned
by the village, when he was already intoxicated. He then sustained injuries in a one-car
accident. The wife and daughter brought an action against the Village under state statute
the Civil Damage Act, seeking to recover damages for loss of means of support. The
Village then brought a third-party action seeking contribution from Mr. Ascheman on the
grounds that he was jointly responsible for damages incurred by his wife and daughter.
Floyd Ascheman made a pre-trial motion for summary judgment, which the trial court
sustained. The Village appealed.
Issue. Should the requirement of common liability between joint tortfeasors as a
prerequisite to maintaining an action for contribution be relaxed to allow contribution
between a liquor vendor and vendee, even though the vendee's family could not bring a
direct action in negligence against him for the loss of their means of support?
Held. No. Summary judgment affirmed. The court affirmed dismissal of the village's
third party claim on the reasoning that to allow contribution from the husband would
diminish his ability to support his wife and family and thereby frustrate the remedial
purpose of the statute.
Discussion. The Court focuses on the determination of whether common liability existed
at the time a tort is committed. The Court concluded that common liability did not exist
as his wife and daughter could not bring a negligence action against Floyd Ascheman as
it would place them in the untenable position of suing the source of their support for the
very means of that support. Quoting Minnesota statutes, the court noted, "A husband is
legally responsible for the support of his wife while they are married. In the context of
divorce proceedings, a father has the primary responsibility for the support of his minor
children." In short, "[A] parent . . .remains immune from suit by his child when the
alleged negligent act involves an exercise of ordinary parental discretion."
252
Safeway Stores, Inc. v. Nest-Kart
Safeway Stores, Inc. v. Nest-Kart
Citation. 21 Cal. 3d 322.
Brief Fact Summary. The Superior Court of Santa Clara County (California)
apportioned liability in a judgment, pursuant to the relevant statute, between Appellant
and Respondent corporation on a pro rata basis, contravening a jury finding of
comparative fault. Appellant manufacturer challenged.
Synopsis of Rule of Law. Consistent with the equitable indemnity doctrine, liability
among joint tortfeasors may be apportioned on a comparative fault basis. Such
apportionment may properly be distributed between a strictly liable defendant and a
negligent defendant, as well as between multiple negligent defendants.
Facts. In January 1972, Plaintiff was injured when a shopping cart, owned by Defendant,
fell on her foot causing server injuries requiring surgery. In addition to Safeway stores,
Nest-Kart, the manufacturer of the carts, and Technibilt Corporation, the company that
did repairs on the carts, were named in her personal injury action. She alleged that the
various Defendants were responsible for her injures, citing both product liability and
negligence principles. In response, Defendants claimed that Plaintiff's own negligence
was the proximate cause of her injuries. At trial, a jury returned a judgment for $25,000
against Safeway and Nest-Kart, absolving Plaintiff and Defendant Technibilt of
responsibility. Specifically, the jury found Safeway responsible on both negligence and
strict liability grounds; Nest-Kart the jury found liable solely on strict liability.
Comparative fault was assessed at 89% against Safeway, and 20% against Nest-Kart.
Safeway then moved for a contribution judgment against Nest-Kart, seeking 30% of the
judgment against Safeway - which would have apportioned liability at 50%-50%. The
trial court granted the motion and Nest-Kart appealed.
Issue. Was the trial court's order, which apportioned liability on a pro rata basis in
contravention of the jury's special finding on the comparative fault issue, proper?
Held. No. Reversed. The California Supreme Court reversed the trial court's order
apportioning liability on a pro rata basis in contravention of the jury's special finding on
the comparative fault issue.
Dissent. Judge Stanley Mosk, the venerable lion of the California Supreme Court, took
issue with the majority holding. Taking issue with the majority, he stated, "The majority
take one more step toward the total infusion of negligence theories into the previously
independent doctrine of products liability." He noted, ironically, that the 'pure concept of
products liability so pridefully fashioned and nurtured by this court for the past decade
and a half is reduced to a shambles.'" He then cautioned, "This trend can have no result
other than to emasculate the doctrine of strict products liability," and striking a populist
note added, "Indeed, in practice negligence and strict products liability are becoming
virtually indistinguishable, a result long resisted by courts concerned with protection of
consumers, and a result long sought by manufacturers and insurance carriers."
253
Safeway Stores, Inc. v. Nest-Kart
Discussion. In explaining the general principles underlying comparative fault analysis,
the California Supreme Court stated, "Principles of comparative negligence should be
utilized as the basis for apportioning liability among multiple negligent tortfeasors
pursuant to a comparative indemnity doctrine. Comparative fault principles are also to be
applied to apportion responsibility between a strictly liable defendant and a negligent
plaintiff in a product liability action." Further, with regard to equitable apportionment, the
court stated, "Liability on a comparative fault basis can and should appropriately be
apportioned between two tortfeasors in conformity with the comparative fault findings
rendered by the jury at trial." The court also noted that, as it deemed apt in the instant
case, "[the relevant statute] provides that such a right of contribution may be enforced
only after one tortfeasor, by payment, discharges the joint judgment or pays more than his
pro rata share thereof." Finally, with respect to the final arbiter of such apportionment,
the court concluded, "Juries are fully competent to apply comparative fault principles
between negligent and strictly liable defendants."
254
Hymowitz v. Eli Lilly & Co.
Hymowitz v. Eli Lilly & Co.
Citation. 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069.
Brief Fact Summary. The Appellate Division of the Supreme Court in the First Judicial
Department (New York) denied summary judgment to Defendants, drug manufacturers in
products liability action arising from injuries plaintiffs suffered as result of plaintiffs'
mothers' use of diethylstilbestrol (DES) during pregnancy. The manufacturer appealed.
Synopsis of Rule of Law. Where identification of the manufacturer of a drug that injures
a plaintiff is impossible, New York courts will apply a market share theory, using a
national market, to determine liability and apportionment of damages.
Facts. The Food and Drug Administration approved the manufacture and marketing of
the drug diethylstilbestrol (DES) in 1941 for use as a generic drug in the prevention of
miscarriages. Approximately 300 companies manufactured the drug, and as it was
generic no single company held patent. It was found later that DES created a high risk of
vaginal cancer in some female children of women who had used the drug. Because so
many companies manufactured and marketed the drug, over several years and for varying
lengths of time, it was often impossible for potential plaintiffs to identify exactly which
company had manufactured the particular batch that the plaintiff had ingested.
The cases at bar were brought by multiple plaintiffs, the daughters of women who had
used DES. At trial, the manufacturers moved for summary judgment on the grounds that
it could not be determined with specificity they any one of them was responsible for the
injuries sustained by a particular plaintiff. The motions were denied and the Appellate
Division affirmed. New York's highest court reviewed.
Issue. What is the method to be employed to apportion liability in a products liability
case involving a generic drug when it is impossible to determine which manufacturer
produced the drug that caused the harm suffered by plaintiffs?
Held. The court affirmed the lower courts' denial of summary judgment and adopted a
national market-share theory for apportioning liability.
Dissent. In dissent, New York Court of Appeals Judge Mollen writes, "I respectfully
disagree with the majority's conclusion that there should be no exculpation of those
defendants who produced and marketed DES for pregnancy purposes, but who can prove,
by a preponderance of the evidence, that they did not produce or market the particular pill
ingested by the plaintiff's mother," but instead "would retain the principle of imposing
joint and several liability upon those defendants which cannot exculpate themselves."
Mollen believes that the majority's approach "I would retain the principle of imposing
joint and several liability upon those defendants which cannot exculpate themselves."
Thus, he dissents.
Discussion. The modern template for the adjudication of products liability claims was
provided in MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916), where the New
255
Hymowitz v. Eli Lilly & Co.
York Court of Appeals held that the manufacturer of any negligently manufactured
product capable of serious harm owed a duty of care in the design, inspection, and
fabrication of the product, a duty owed not only to the immediate purchaser but to all
persons who might foreseeably come into contact with the product. The DES case,
however, presented a unique problem: the identification, for purposes of determining
liability, of the exact manufacturer responsible for the plaintiffs' harm.
Generally, as the court in Hymowitz observed, "In a products liability action,
identification of the exact defendant whose product injured the plaintiff is generally
required." However, as here, such identification is sometimes difficult. The court thus
concluded, "Where two defendants breach a duty to the plaintiff, but there is uncertainty
regarding which one caused the injury, the burden is upon each such actor to prove that
he has not caused the harm." As a result, there may be broad apportionment of blame. As
the court states, "Successive tort-feasors may be held jointly and severally liable for an
indivisible injury to a plaintiff."
The court must then evaluate different approaches to in assigning responsibility,
beginning first with alternative liability: "Use of the alternative liability doctrine
generally requires that the defendants have better access to information than does the
plaintiff, and that all possible tort-feasors be before the court. It is also recognized that
alternative liability rests on the notion that where there is a small number of possible
wrongdoers, all of whom breached a duty to the plaintiff, the likelihood that one of them
injured the plaintiff is relatively high, so that forcing them to exonerate themselves, or be
held liable, is not unfair." The high number of possible tort-feasors in Hymowitz makes
this approach impractical, however. Similarly, the theory of concerted action falls short:
"The theory of concerted action, in its pure form provides for joint and several liability on
the part of all defendants having an understanding, express or tacit, to participate in a
common plan or design to commit a tortious act." However, the fact that the
manufacturers were simultaneously engaged in the manufacture of the drug is not
indicative of communal interest or action, as the court states, "Parallel activity, without
more, is insufficient to establish the agreement element necessary to maintain a concerted
action claim."
Recognizing the circumstances of the case at bar, the court thus crafts a new approach for
apportionment of responsibility: "Given this unusual scenario, it is more appropriate that
the loss be borne by those that produced the drug for use during pregnancy, rather than by
those who were injured by the use, even where the precise manufacturer of the drug
cannot be identified in a particular action." Thus, the court adopted a market share theory,
using a national market, for determining liability and apportioning damages in the
diethylstilbestrol (DES) cases.
256
Cartel Capital Corporation v. Fireco of New Jersey
Cartel Capital Corporation v. Fireco of New Jersey
Citation. 81 N.J. 548.
Brief Fact Summary. The Superior Court (New Jersey) upheld a jury verdict that found
Defendants, including manufacturer, negligent and entered a judgment in favor of
Plaintiff restaurant in a products liability action. Defendant distributor challenged the
decision.
Synopsis of Rule of Law. The effect on the Plaintiff of a joint tortfeasor's settlement
will depend upon the percentage of fault found against him. When one Defendant settles,
the remaining co-defendant or co-defendants are chargeable with the total verdict less
that attributable to the settling Defendant's percentage share.
Facts. Plaintiff restaurant purchased a fire extinguishing system from Defendant
distributor that was produced by Defendant manufacturer. A fire developed at Plaintiff's
restaurant. The fire extinguishing system failed to operate automatically or manually.
Plaintiff filed suit against Defendants alleging strict liability and/or negligence. A jury
found the servicer of the system negligent, and the product itself defective, allocating
fault to all three parties. One co-defendant, however, had settled with the Plaintiff,
requiring the Court to address the question of remaining damages, for contribution, to be
assessed against the nonsettling Defendants.
Issue. What is the effect of a joint tortfeasor's settlement on co-defendants'
apportionment of liability?
Held. The Court remanded, ordering judgment for the restaurant against the distributor.
The court held that Defendants' fault, including Defendant manufacturer, of 59 percent
amounted to total fault, thus Defendants' were liable for the entire judgment and that, as a
matter of law, there was no contributory negligence.
Discussion. This case involves contribution among joint tortfeasors. Joint tortfeasors are
two or more individuals who either (1) act in concert to commit a tort, (2) act
independently but cause a single indivisible tortious injury, or (3) share responsibility for
a tort because of vicarious liability.
The Court engages in a lengthy analysis of the issue surrounding the apportionment of
fault among joint tortfeasors in negligence actions. Such apportionment becomes more
complicated when parties settle; where there are multiple parties the precise division of
compensation can become tricky. As the court stated, "A plaintiff may be entitled to and
obtain several judgments against different persons for the same obligation or liability so
long as there is only one satisfaction or recovery." Even so, the court noted, "An
unsatisfied judgment against one or more joint and several tortfeasors does not constitute
a bar to actions against the remaining tortfeasors."
Settlement, as noted, can complicate the process, however, as the court explained, "Even
when liability of one defendant is wholly vicarious, settlement with the primarily liable
257
Cartel Capital Corporation v. Fireco of New Jersey
defendant may not necessarily release the other. For example, when an employer is liable
for an employee's negligence, both the employer and employee are jointly and severally
liable to the injured party until full satisfaction is received."
The latter consideration raises the issue of release of obligation, legal effect of which, the
court noted, "should be determined by the intent of the parties to the release, with due
consideration being given to whether the compensation paid was fully adequate." And
further, the court stated, "A release of one tortfeasor will not release others who may also
be liable to plaintiff for his harm unless the release is so intended or the plaintiff receives
as a result thereof either full satisfaction or satisfaction intended as such." Settlement, as
occurred here, may raise further issues with regard to contribution. The court explained,
"In some situations the person vicariously responsible may be held liable even though an
action cannot be maintained against the active wrongdoer. This is the case when the
active wrongdoer has been given a release by the injured person that preserves the latter's
rights against the person vicariously liable." Settlement, the court observed, can then
offer different scenarios for compensation: "When a jury verdict sustains several
alternative theories of recovery advanced by a plaintiff, the trial court must (unless
plaintiff chooses otherwise) render judgment on the theory which affords the greatest
recovery." Hence, the court further explained, "Under the joint tortfeasors law, a
settlement with a joint tortfeasor, even though for less than a pro rata share of the total
claim, reduces the plaintiff's total claim against the nonsettling codefendant or
codefendants by the pro rata share and thus bars contribution from the settling tortfeasor."
The court then concluded, "The effect on the plaintiff of a joint tortfeasor's settlement
will depend upon the percentage of fault found against him. When one defendant settles,
the remaining codefendant or codefendants are chargeable with the total verdict less that
attributable to the settling defendant's percentage share." Thus, the nonsettling party, the
distributor Fireco, maintained liability for contribution.
258
D’Amario v. Ford Motor Co.
D’Amario v. Ford Motor Co.
Citation. 806 So.2d 424 (Fla. 2001)
Brief Fact Summary. Plaintiffs were in car accidents where the initial injury was
allegedly made worse through a secondary injury due to defective car parts.
Synopsis of Rule of Law. General principles of comparative fault do not apply in
crashworthiness cases, but instead there is a distinction drawn between damages caused
by the accident and the damages that were enhanced from the defect.
Facts. Two cases were consolidated for this decision.
!
One of the D’Amario plaintiffs, Clifford Harris, was a passenger in a vehicle
that hit a tree and started on fire. The driver was intoxicated. The D’Amario
Plaintiffs alleged that a defective relay switch caused the car to start on fire.
They are seeking damages from the Defendant automaker, Ford Motor
Company, for the injuries suffered after the initial injuries that were due to the
actual vehicle crash. Ford asserted that the injuries were proximately caused
by the intoxicated driver. The trial judge admitted evidence of the driver’s
intoxication, and the jury found for Ford.
!
In the second case, Maria Nash was killed when a car traveling in the opposite
lane moved into her lane, crashing into Nash’s car. The driver of the other
vehicle was intoxicated. Her estate alleged that the car had a defective
seatbelt, and the defect caused a secondary injury to Nash. As in the
D’Amario case, the jury was awar of the intoxication and found for the
defendants, in this case General Motors. The Third District Court of Appeal
held that it was error to ask a jury to apportion liability between intentional
and negligent tortfeasers.
Issue. The issue is whether traditional comparative law principles would apply to
apportion the damages between the initial tortfeasor alleged to cause the accident and the
second tortfeasor that allegedly enhanced the damages.
Held. General principles of comparative negligence do not apply, and therefore the test
should be to discern the damages caused from the initial accident and the damages caused
from the secondary negligence. The initial accident is assumed and the secondary
tortfeasor will not be liable for the primary damages. Therefore, any evidence regarding
the condition of the initial tortfeasor (the party responsible for the accident) should not be
admitted as it would only confuse juries and is irrelevant for apportioning the damages.
Dissent. The dissent would continue to follow traditional rules of comparative
negligence.
Discussion. The majority makes an analogy between crashworthiness cases and medical
malpractice cases. In medical malpractice, the doctor is typically never responsible for
259
D’Amario v. Ford Motor Co.
the initial damage. The patient comes in with an injury already, but the doctor will be
held liable for damages caused while treating the patient. Likewise a negligent tortfeasor
whose negligence enhanced the damages will not be held responsible for the initial
damages.
260
Board of County Commissioners of Teton County v. Bassett. Supreme Court of Wyoming (2000)
Board of County Commissioners of Teton County v. Bassett. Supreme
Court of Wyoming (2000)
Citation. 8 P.3d 1079.
Brief Fact Summary. The District Court of Teton County (Wyoming) entered a
judgment based upon a jury verdict finding that Appellants, law enforcement officers,
were negligent when, in pursuing a crime suspect at high speeds, they failed to warn
Appellees of the danger, and in operating a roadblock along a highway. Appellants
sought review.
Synopsis of Rule of Law. To exclude a criminal suspect from the apportionment of fault
calculation may unfairly expose other actors to the possibility that they would be held to
answer for his misconduct and thus runs counter to the public policy, fairness and
statutory purpose.
Facts. An armed and dangerous suspect was fleeing at high speed form the Wyoming
Highway Patrol. After swerving and attempting to cause the officers to crash, sheriff's
deputies set up a roadblock employing improvised road spikes. Appellees, Coziah and
Bassett, were returning from a fishing trip when they passed several law enforcement
officers, none of whom attempted to warn them of the impending danger. The fleeing
suspect, traveling at more than 100 m.p.h, collided with Appellees' vehicle. Both were
injured and the suspect was arrested. Coziah and Bassett brought suit against the officers,
the National Park Service, alleging negligence in the officers' failure to warn them of the
danger. A jury allocated fault to Defendants Highway Patrol, the Sheriff's Department,
and the National Park Service. The three agencies appealed.
Issue. Should the willfully tortious conduct of the criminal suspect fleeing from police
have been compared with the negligence of appellants officers in calculating the
apportionment of liability for Appellees' injuries?
Held. Yes. Reversed and remanded. The Wyoming Supreme Court reversed the trial
court's judgment, holding that it improperly left the criminal suspect out of the
apportionment of fault calculation. To find otherwise would have unfairly exposed
Appellants to the possibility that they would be held to answer for his misconduct.
Discussion. The Court engages in statutory interpretation so as to achieve equitable
apportionment of liability. Specifically, the purpose of the statute in this case, as the
Court stated, was "to ameliorate the harshness of the of the doctrine of contributory
negligence." The Court then draws an important distinction: "The comparative negligence
statute remedied the injustice of the doctrine of contributory negligence by stating that a
plaintiff's negligence prevents recovery only in proportion as it causes plaintiff's
damages." In essence, "each defendant is liable only to the extent of that defendant's
proportion of the total fault." By excluding an intentional tortfeasor, the court concluded,
courts run the risk of unfairly and disproportionately holding one actor liable for the
tortious acts of another.
261
Turner v. Jordan
Turner v. Jordan
Citation. 957 S.W.2d 815.
Brief Fact Summary. The Court of Appeals of Tennessee upheld a lower court decision
granting Appellee psychiatrist's motion for a new trial after a jury returned a verdict in
favor of the injured nurse and her spouse in their suit for injuries sustained when a
mentally ill patient attacked her. The nurse and her spouse sought review.
Synopsis of Rule of Law. A plaintiff whose negligence is less than that of a defendant
may recover damages in an amount reduced in proportion to the percentage of the
plaintiff's own negligence.
Facts. A psychiatric in-patient attacked and severely beat a nurse at the hospital where
she worked. The nurse and her spouse filed suit against a psychiatrist, the patient's
attending physician, for medical negligence. Plaintiffs alleged that he violated his duty to
use reasonable care in the treatment of his patient. The jury returned a verdict in favor of
the nurse and her spouse, but the trial court, concluding the allocation of fault unjustified,
granted the psychiatrist's motion for a new trial. The Tennessee Supreme Court held,
first, that the psychiatrist owed the nurse a duty of care and that he had breached that
duty. The Court then addressed the issue of comparative negligence.
Issue. Should the psychiatrist's negligence have been compared with the intentional
conduct of the non-party patient in determining the extent of Defendant's liability?
Held. No. Reversed and remanded. The Court held that the lower courts erred in ruling
that the psychiatrist's negligence should have been compared with the intentional conduct
of the non-party patient in allocating fault, but such error was harmless, as the jury had
assessed 100% fault to Defendant. The court remanded for entry of judgment.
Discussion. While the outcome in this case is relatively straightforward, i.e., although
the lower courts court incorrectly compared the psychiatrist's negligence and the
intentional act of the patient, the error was harmless as the jury attributed 100% fault for
the former and awarded damages accordingly, exploration of the issue is instructive.
The court first addressed the analytical framework for negligence claims in connection
with third-party tortious conduct. "Although courts have generally held that a person has
a duty to use reasonable care to refrain from conduct that will foreseeably cause injury to
others, this duty does not extend to the protection of others from the dangerous conduct
of third persons unless the defendant stands in some special relationship to either the
person who is the source of the danger, or to the person who is foreseeably at risk from
the danger." Thus the court concluded the jury correctly assigned liability to the
Defendant psychiatrist and the lower courts erred in overruling that determination.
The court examined next the approach other jurisdictions have employed in analyzing
comparative fault, and noted the concerns of each: 1) In cases that compare the
negligence of a defendant with the intentional act of a third party, the concern is not
262
Turner v. Jordan
unfairly burdening a negligent tortfeasor in excess of their fault; 2) In cases that do not
compare, the concern is to not penalize a plaintiff by permitting a negligent tortfeasor to
escape or reduce liability. As is often the case in negligence actions, the crux of the
matter is foreseeability. As the Turner court stated: "The conduct of a negligent defendant
should not be compared with the intentional conduct of another in determining
comparative fault where the intentional conduct is the foreseeable risk created by the
negligent tortfeasor."
The court also saw in the case an opportunity to clarify a fine point of law with regard to
apportionment of fault: "There is a distinction between comparative negligence and
comparative fault. The former is the measure of the plaintiff's negligence in percentage
terms used for the purpose of reducing the plaintiff's recovery from the defendant. The
latter is defined as those principles which encompass the determination of how to
apportion damage recovery among multiple or joint tortfeasors according to the
percentage of fault attributed to those actors after reduction for the plaintiff's percentage
of negligence."
263
Turner v. Jordan
CHAPTER XXVI.
Damages
264
Martin v. United States
Martin v. United States
Citation. 471 F.Supp. 6, United States District Court, District of Arizona (1979).
Brief Fact Summary. This was a personal injury action in which the District Court
determined damages to be awarded plaintiffs, minor children by and through their next of
friends and personal representatives, in their claim brought under the Federal Tort Claims
Act 28 U.S.C.S §§1346, 2674. The case, brought under the claim of governmental
negligence, was tried in the federal district court where the court found in favor of the
minors, ruling the government liable for contributory negligence.
Synopsis of Rule of Law. In calculating proper awards for damages in a negligence
claim, the following elements are properly considered: 1) Past medical expenses and
future medical expenses; 3) Present value of lost future earning capacity; 4) Pain and
suffering, and 5) interference with normal and usual activities.
Facts. Plaintiffs, two minor boys, were riding a motorbike when they struck a sagging
power line that had been negligently maintained by the government. They both suffered
severe and permanent injuries. Plaintiffs brought a claim pursuant to the Federal Tort
Claims Act. With regard to assessment of damages, both sides, in a proceeding in before
a judge of the U.S. District Court (District of Arizona) brought professional experts to
testify as to the likely vocational prospects and medical and other costs surrounding the
Plaintiffs' injuries. The same judge then requested that the parties submit post-trial
memoranda concerning damages. He then issued an assessment of damages.
Issue. What elements are to be examined when assessing damages in a personal
injury/negligence claim?
Held. The court issued its findings of fact and conclusions regarding damages to be
awarded the injured minors in their action against the government under the Federal Tort
Claims Act.
Discussion. Per Restatement of Torts § 924 under tort law personal injury victims can be
compensated for (1) medical expenses; (2) lost wages or impaired earning capacity; (3)
pain and suffering; (4) other incidental economic consequences caused by the injury; and,
in some case, (5) the cost of medical monitoring.
This case offers a blueprint of the manner in which a court typically assesses such
damages. The United States District Court offered a detailed analysis of the assessment of
each area of injury:
Medical testimony. The court found that by trial, plaintiff one had incurred approximately
$48,000 medical costs; future medical expenses were calculated at $49,000, plus $5,000
for psychological treatments.
Future Earnings. Economic and vocational experts testified, based on the education and
aptitude of the plaintiffs, and the local demographic, as to their likely future earnings.
265
Martin v. United States
The court took that figure, and conservatively calculated for future and compounded
interest as well as cost-of-living adjustments, and awarded plaintiff approximately
$548,000.
Pain and suffering. Based on testimony concerning medical and psychological factor, the
court awarded $1,000,000 damages for pain and suffering.
266
McDougald v. Garber
McDougald v. Garber
Citation. 73 N.Y.2d 246.
Brief Fact Summary. The Appellate Division of the Supreme Court in the First Judicial
Department (New York) affirmed a trial court's order awarding plaintiff damages against
defendants, a doctor and an anesthesiologist, in a malpractice action alleging surgical
error that lead to plaintiff's brain damage and coma. The physician and the
anesthesiologist appealed.
Synopsis of Rule of Law. An award of damages to a person injured by the negligence of
another is to compensate the victim, not to punish the wrongdoer. The goal is to restore
the injured party, to the extent possible, to the position that would have been occupied
had the wrong not occurred.
Facts. Plaintiff, 31 year-old Emma McDougald, entered a New York hospital to undergo
a Caesarian section and tubal ligation. In the course of the procedure she suffered oxygen
deprivation, resulting in severe brain damage and leaving her in a permanent coma.
McDougald and her husband brought an action claiming medical malpractice. A jury
awarded multiple damages, including damages for "loss of pleasures and pursuits of life."
On appeal, the court modified the award and granted a new trial on nonpecuniary
damages on the basis that the trial court had erred in its jury instructions.
Issue. Does an award of damages for loss of enjoyment to a person whose injuries
preclude any awareness of the loss serve a compensatory purpose?
!
Should the loss of enjoyment of life be considered a category of damages
separate from pain and suffering?
Held. No and No. The court modified the damages awards, with costs to defendants, by
granting a new trial on the issue of nonpecuniary damages of Plaintiff Emma McDougald
and, as modified, affirmed. With regard to the specific issues:
!
Such an award merely serves a punitive purpose and the court declined to
reverse the lower court's ruling.
!
The estimation of nonpecuniary damages cannot be measured precisely,
and to attempt to do so by engaging in separate analytical measure would
only confuse and distort the damages assessment process.
Dissent. In dissent, Judge Titone takes issue with the majority's approach, stating "The
majority's holding represents a compromise position that neither comports with the
fundamental principles of tort compensation nor furnishes a satisfactory, logically
consistent framework for compensating nonpecuniary loss." Specifically, Titone finds an
award for loss of enjoyment of life appropriate to a nonpecuniary award analysis, stating:
"I conclude that loss of enjoyment of life is an objective damage item, conceptually
distinct from conscious pain and suffering, I can find no fault with the trial court's
267
McDougald v. Garber
instruction authorizing separate awards and permitting an award for 'loss of enjoyment of
life' even in the absence of any awareness of that loss on the part of the injured plaintiff."
Discussion. The consideration of pain and suffering in most cases is broad in scope, in
that it will include the psychological distress that accompanies severe physical injuries,
and the contemplation of a victim's future inabilities. Pain and suffering, and other forms
of mental distress have no obvious monetary equivalent.
In McDougald, the court must first address the parameters of awarding damages: "The
goal is to restore the injured party, to the extent possible, to the position that would have
been occupied had the wrong not occurred. To be sure, placing the burden of
compensation on the negligent party also serves as a deterrent, but purely punitive
damages - that is, those which have no compensatory purpose - are prohibited unless the
harmful conduct is intentional, malicious, outrageous, or otherwise aggravated beyond
mere negligence."
The court must then evaluate the enigma, presented by the particular facts here, of
assessing damages for "loss of enjoyment of life" for one who is comatose. The court
explained, "Cognitive awareness is a prerequisite to recovery for loss of enjoyment of
life. The fact finder is not required to sort out varying degrees of cognition and determine
at what level a particular deprivation can be fully appreciated. The charge to the fact
finder that there must be some level of awareness is an appropriate standard for all
aspects of nonpecuniary loss." Thus, its conclusion that such an award serves no
compensatory purpose.
With regard to the second issue, the court stated flatly, "A trial court errs when it instructs
a jury that a victim's awareness is irrelevant to their consideration of damages for loss of
enjoyment of life and in directing the jury to consider that aspect of damages separately
from pain and suffering." The court then ruminates on the nebulous character of
attempting to calculate less concrete forms of loss. "This aspect of damages, however,
stands on less certain ground than does an award for pecuniary damages. An economic
loss can be compensated in kind by an economic gain; but recovery for noneconomic
losses such as pain and suffering and loss of enjoyment of life rests on the legal fiction
that money damages can compensate for a victim's injury." Money, the court notes, is an
incomplete substitute for pain and suffering but the closest courts can come to provide
solace for loss. There are, however, limits to such compensation, thus, "The court's
willingness to indulge this fiction comes to an end, however, when it ceases to serve the
compensatory goals of tort recovery. When that limit is met, further indulgence can only
result in assessing damages that are punitive."
268
Mercado v. Ahmed
Mercado v. Ahmed
Citation. 974 F.2d 863.
Brief Fact Summary. The United States District Court for the Northern District of
Illinois denied Plaintiff's motion for a new trial. Plaintiff appealed that a new trial on the
issue of damages was mandated where the jury's verdict was inconsistent.
Synopsis of Rule of Law. In order to allow a witness to testify as an expert, the court
must be convinced that the witness will rely only upon evidence that a reasonable expert
in the field would rely.
Facts. Brian Mercado, age 6, was severely injured when struck by a taxi. He required
institutionalization, and it was predicted that he would remain so for the rest of his life.
At trial, a jury found for Plaintiff and awarded damages for pain and suffering and for
medical expense. The trial court had conducted intensive voir dire to evaluate the
methods employed by the putative expert and concluded that his testimony was
insufficient to meet the criteria for experts. Plaintiff's mother, dissatisfied with the
judgment on the grounds that the trial court had excluded proffered expert testimony,
appealed.
Issue. Did the trial court err in its exclusion of Defendant's proffered expert testimony
thus precluding the jury from awarding additional nonpecuniary damages?
Held. No. Affirmed. The Court of Appeals agreed with the trial court's conclusions in
excluding the testimony in question on the grounds the 1) no consensus among experts
supported the opinion under consideration; and 2) the opinion was arrived at by analyzing
the behavior of non-experts.
Discussion. The focus of this case is the manner by which expert testimony is evaluated
and the subsequent impact its inclusion, or here, exclusion, will have on pecuniary
damages assessments. The Court offered instructive articulation of the applicable
standards for such evaluation. It stated first the proper grounds for ordering a new trial.
"Appellate review of a district court's denial of a plaintiff's motion for a new trial is
governed by federal law. The district court's decision to deny a motion for a new trial will
be reversed only upon exceptional circumstances showing a clear abuse of discretion. A
jury verdict will not be set aside if a reasonable basis exists in the record to support that
verdict." Then, turning to the evidentiary issues, the court explained, "Damages evidence
is reviewed in the light most favorable to the verdict, and a verdict will be allowed to
stand unless there is no rational connection between the evidence on damages and the
verdict."
With regard to experts generally, because of the specialized skill and training needed to
be a doctor, lawyer, accountant, or other professionals, courts defer to the expertise of
members of the specific profession to determine the collective professional standards
practiced in a particular field. Thus, expert testimony is often required as an evidentiary
269
Mercado v. Ahmed
tool. As the court stated, "In order to allow a witness to testify as an expert, the court
must be convinced that the witness will rely only upon evidence that a reasonable expert
in the field would rely." Such evidence must meet a high standard, as the court explained,
"A witness who knows no more than the average person is not an expert. The theory upon
which expert testimony is admitted is that such testimony serves to inform the court about
affairs not within the full understanding of the average man." Finally, when, as here, such
proffered testimony does not meet the threshold requirements for expertise, it may be
properly excluded as the court held: "Expert testimony not only is unnecessary but indeed
may properly be excluded in the discretion of the trial judge if all the primary facts can be
accurately and intelligibly described to the jury and if they, as men of common
understanding, are as capable of comprehending the primary facts and of drawing correct
conclusions from them as are witnesses possessed of special or peculiar training,
experience, or observation in respect of the subject under investigation."
270
Keans v. Bottiarelli
Keans v. Bottiarelli
Citation. 35 Conn. App. 239.
Brief Fact Summary. The Superior Court in the judicial district of Hartford-New
Britain at New Britain (Connecticut) awarded damages to the patient in her dental
malpractice action but reduced the award after finding that the patient failed to mitigate
her damages, denied the dentist's motion to set aside the judgment, and denied the
patient's motion for a bill of costs. Both Plaintiff patient and Defendant dentist appealed
the decision.
Synopses of Rules of Law. In order to prevail in a medical malpractice action the plaintiff
must prove (1) the requisite standard of care for treatment, (2) a deviation from that
standard of care, and (3) a causal connection between the deviation and the claimed
injury. To prove that a physician has breached the legally required standard of care, the
plaintiff must offer some evidence that the conduct of the physician was negligent.
Testimony of an expert witness is necessary to establish both the standard of proper
professional skill or care on the part of a physician and that the defendant failed to
conform to that standard of care.
One who is injured by the negligence of another must use reasonable care to promote
recovery and prevent any aggravation or increase of the injuries. When there are facts in
evidence that indicate that a plaintiff may have failed to promote his recovery and do
what a reasonably prudent person would be expected to do under the same circumstances,
the court, when requested to do so, is obliged to charge on the duty to mitigate damages.
Facts. Plaintiff patient visited Defendant, an oral surgeon, for extraction of a tooth. She
told the dentist that she suffered from a rare blood disorder, myelofibrosis, which
inhibited production of red blood cells and platelets. The dentist extracted the tooth
without first consulting the patient's hematologist. The patient suffered postoperative
complications and contacted the dentist. The patient made no further effort to contact the
dentist despite worsening of her condition. The patient then contacted her hematologist,
who recommended that she be admitted to the hospital where she was treated and
released after three days, suffering no permanent injuries. She brought suit against the
dentist.
Issue.
!
Did the trial court correctly finds that plaintiff had met her burden with
respect to the elements of medical malpractice?
!
Was the trial court correct in reducing damages because plaintiff failed to
mitigate her injuries in accordance with the avoidable consequences rule?
Held. The trial court's judgment was affirmed.
271
Keans v. Bottiarelli
!
Yes. The court ruled that the trial court's finding that the patient had
established the elements necessary to prove dental malpractice by the
dentist was correct.
!
Yes. The court agreed with the reduction in damages because the patient's
conduct exacerbated her initial injury.
Discussion. The trial court found in favor of the patient but concluded that her failure to
follow the dentist's postoperative instructions led to the hospitalization, and reduced
damages to the extent of the patient's hospitalization expense. This is an example of a
court's applying the avoidable consequences rule.
Concerning the underlying claim for medical malpractice, the court first iterates the
elements of a prima facie case: (1) the requisite standard of care for treatment, (2) a
deviation from that standard of care, and (3) a causal connection between the deviation
and the claimed injury. In applying this standard, and in assessing the weight of expert
testimony, the trial court correctly found for plaintiff. The trial court found that the
dentist deviated from the standard of prudent practice in failing to consult with plaintiff's
hematologist. Thus, its ruling was proper.
With regard to mitigation, a general rule (the "avoidable consequences" rule) a plaintiff is
required to exercise reasonable care to minimize damages; if a plaintiff fails to mitigate
injuries, the defendant will not be held liable for incremental losses that otherwise could
have been avoided. If, for example, one has an eye injury and a doctor tells her to avoid
swimming, but she goes swimming anyway and her condition is exacerbated by exposure
to chlorine, the avoidable consequences rule would deny recovery for medical expenses
related to chlorine exposure.
272
State Farm Mutual Automobile Insurance Co. v. Campbell
State Farm Mutual Automobile Insurance Co. v. Campbell
Citation. 123 S.Ct. 1513 (2003)
Brief Fact Summary. A car accident occurred resulting in the death of one individual,
and the incapacitation of another. The insurance company of the driver at fault, who was
not injured, acted inappropriately, and the driver sued the company and was awarded a
substantial amount of compensatory and punitive damages.
Synopsis of Rule of Law. When analyzing the validity of a punitive damage award, the
three guideposts from [BMW v. Gore] must be applied. Those include: "(1) the degree
of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or
potential harm suffered by the plaintiff and the punitive damages award; and (3) the
difference between the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases."
Facts. While driving with his wife, Curtis Campbell ("Mr. Campbell") (collectively
referred to as the "Campbells") attempted to pass six vans on a two-lane highway. By
doing so, however, Mr. Campbell was driving on the wrong side of the highway. An
accident ensued, and one individual was killed and another permanently disabled. Mr.
Campbell and his wife were unscathed. It was determined that Mr. Campbell's unsafe
pass caused the accident. Nonetheless, the Petitioner, Mr. Campbell's insurer, State Farm
Mutual Automobile Insurance Co. (the "Petitioner"), contested liability and declined
offers to settle with the estate of the deceased and with the permanently injured
individual. The Campbells' policy limit was $50,000. The Petitioner assured the
Campbells that "their assets were safe, that they had no liability for the accident, that
[State Farm] would represent their interests, and that they did not need to procure
separate counsel." The case eventually went to trial, and a jury found that Mr. Campbell
was 100% at fault and a judgment of $185,849 was entered against him. Initially, the
Petitioner refused to pay the excess $135,849 above the policy limits. Additionally, State
Farm would not post a bond to allow Mr. Campbell to appeal the verdict. The Campbells
retained their own counsel for the appeal. The estate of the deceased and the individual
that was incapacitated, agreed not to satisfy their claims against Mr. Campbell, it he were
to bring a "bad faith action against State Farm and to be represented by Slusher's and
Ospital's attorneys." Slusher and Ospital were the representatives of the deceased and the
incapacitated victims of the accident. In 1989, the Utah Supreme Court denied Mr.
Campbell and his wife's appeal, and State Farm satisfied the entire judgment. Despite the
outcome of the appeal, Mr. Campbell and his wife filed suit against the Petitioner,
alleging "bad faith, fraud, and intentional infliction of emotional distress." The jury
awarded the Campbell's $2.6 million in compensatory damages and $145 million in
punitive damages. The trial court reduced the compensatory award to $1 million and the
punitive award to $25 million. The Utah Supreme court reinstated the punitive award.
Issue. "[W]hether, [based on the circumstances], an award of $145 million in punitive
damages, where full compensatory damages are $1 million, is excessive and in violation
273
State Farm Mutual Automobile Insurance Co. v. Campbell
of the Due Process Clause of the Fourteenth Amendment to the Constitution of the
United States"?
Held. Yes, the reinstatement of the $145 million dollar punitive damage award was
excessive. The court first recognized there are procedural and substantive constitutional
limitations on compensatory and punitive damages awards. Specifically "[t]he Due
Process Clause of the Fourteenth Amendment prohibits the imposition of grossly
excessive or arbitrary punishments on a tortfeasor." Based on [BMW v. Gore], courts are
instructed to examine three "guideposts" when construing the validity of a punitive
damage award: "(1) the degree of reprehensibility of the defendant's misconduct; (2) the
disparity between the actual or potential harm suffered by the plaintiff and the punitive
damages award; and (3) the difference between the punitive damages awarded by the jury
and the civil penalties authorized or imposed in comparable cases." The court discussed
each in turn.
!
The court first discussed the "reprehensibility of the defendant's misconduct,"
which it says is the most important of the guideposts. Reprehensibility is
judged "by considering whether: the harm caused was physical as opposed to
economic; the tortious conduct evinced an indifference to or a reckless
disregard of the health or safety of others; the target of the conduct had
financial vulnerability; the conduct involved repeated actions or was an
isolated incident; and the harm was the result of intentional malice, trickery,
or deceit, or mere accident." The court then criticized the Utah Supreme
Court's condemning of the Petitioner "for its nationwide policies rather than
for the conduct directed toward the Campbells." Further, the majority
recognized the Utah Supreme court "awarded punitive damages to punish and
deter conduct that bore no relation to the Campbells' harm." The court also
found that the punitive damage award could not be upheld under the guise that
State Farm was a recidivist.
!
The court then construed the second guidepost and refused to "impose a
bright-line ratio, which a punitive damages award cannot exceed." However,
the majority recognized "[o]ur jurisprudence and the principles it has now
established demonstrate, however, that, in practice, few awards exceeding a
single-digit ratio between punitive and compensatory damages, to a significant
degree, will satisfy due process." Moreover, "[i]n the context of this case, we
have no doubt that there is a presumption against an award that has a 145- to-1
ratio." The court recognized that the $1 million compensatory award was
complete compensation, especially since the damages in the case before
itwere entirely economic and not physical.
!
The third and final guidepost concerned the "the disparity between the
punitive damages award and the 'civil penalties authorized or imposed in
comparable cases. ' " The court observed, "[t]he most relevant civil sanction
under Utah state law for the wrong done to the Campbells appears to be a
$10,000 fine for an act of fraud, [ ] an amount dwarfed by the $145 million
274
State Farm Mutual Automobile Insurance Co. v. Campbell
punitive damages award." The court refused to look at criminal penalties in
making their assessment.
Dissent. Justice Antonin Scalia ("J. Scalia") filed a dissenting opinion adhering to his
view expressed in his "dissenting opinion in [BMW of North America, Inc. v. Gore], that
the Due Process Clause provides no substantive protections against 'excessive' or
'unreasonable' awards of punitive damages."
!
Justice Clarence Thomas ("J. Thomas") also filed a dissenting opinion arguing
"the Constitution does not constrain the size of punitive damage awards."
!
Justice Ruth Bader Ginsburg ("J. Ginsburg") entered a dissenting opinion
arguing that punitive damages awards are the prerogative of the states. J.
Ginsburg recognized that "[w]hen the Court first ventured to override statecourt punitive damages awards, it did so moderately." However, she argued
"[t]oday's decision exhibits no such respect and restraint. No longer content to
accord state-court judgments 'a strong presumption of validity,' [ ] the Court
announces that 'few awards exceeding a single-digit ratio between punitive
and compensatory damages, to a significant degree, will satisfy due process.' "
As such, "I would not join the Court's swift conversion of those guides into
instructions that begin to resemble marching orders."
Discussion. This case offers a good example of how the [BMW v. Gore] factors should
be applied.
275
CHAPTER XXVIII.
Worker's Compensation
276
Jaeger Baking Co. v. Kretschmann
Jaeger Baking Co. v. Kretschmann
Citation. 96 Wis. 2d 590.
Brief Fact Summary. The Wisconsin Court of Appeals reversed an order dismissing a
Claimant's application for compensation from the State Department of Industry under
Wisconsin's Worker's Compensation statute. Petitioner employer appealed the decision.
Synopsis of Rule of Law. Wisconsin's Worker's Compensation statute covers employees
injured while in a parking lot owned or maintained by the employer for the convenience
of its employees but does not cover employees injured while walking from the employer's
parking lot to the work premises.
Facts. While walking on the direct path between the parking lot and his work premises,
Kretschmann was attacked by unknown assailants. He was on his way to work the 2:00
a.m. shift on a sidewalk adjacent to his employer's place of business, and was about 50
feet from the entrance when he was attacked.
Issue. Was plaintiff entitled to coverage pursuant to the workman's compensation
statute?
Held. The Court reversed the lower court's order and dismissed respondent's application;
respondent was not entitled to coverage under the worker's compensation statute because
although he was walking on the direct path to his workplace, he was not walking from the
company parking lot.
Dissent. The dissent finds the majority's strict construction of the statute problematic,
stating, "[T]he Worker's Compensation Act, like any remedial statute, 'should be liberally
construed in favor of including all service that can in any sense be said to reasonably
come within it.'" The dissent finds the majority's interpretation not only unfair, but
exclusionary, noting, "Kretschmann was injured he was located on the same route an
employee would take if he used the parking lot, and walked to the employer's premises
on a direct route. The difference between Kretschmann, and employees who drove to
work, is that since Kretschmann took public transit his starting point was not the parking
lot but a bus stop," and thus, "the question becomes whether, liberally construed, the
phrase 'going between an employer's designated parking lot and the employer's work
premises while on a direct route' should be interpreted as creating an area at the premises
in which recovery to injured employees is mandated, or merely protects a class of people"
Thus, the dissent concluded, "This statute should be construed as affording protection to
those employees on a direct route between the employer's parking lot and his premises,
whatever the mode of transportation taken to reach that route."
Discussion. This decision is primarily one of strict statutory interpretation and the
purview of the court. To that end, the court noted, "Questions of law, including the
interpretation and application of a statute, are reviewable by the court. No deference will
be accorded an agency finding when the finding is based entirely on uncontroverted
277
Jaeger Baking Co. v. Kretschmann
evidence." In overruling a state agency, the court asserted, "The court is in as good a
position as the agency to make findings of fact where the evidence is undisputed and the
credibility of witnesses is not in issue." Nevertheless, the court does limit its jurisdiction,
pointing out, "Because the law of worker's compensation is wholly statutory, public
policy questions concerning its scope and fairness are for the legislature rather than the
courts." However, the court continued, "When the statutory language is unambiguous, the
intention of the legislature must be arrived at by giving the language its ordinary and
accepted meaning."
With regard to the matter at hand, the court examined the issue with an eye toward first to
plain language interpretation as well as contextual reading: "The legislative intent is
expressly stated and is apparent when the pertinent portions of the statute are read in their
entirety. The clause immediately following the one quoted provides, 'while on a direct
route and in the ordinary and usual way.' The plain and simple meaning is that coverage
may be allowed when an employee is traveling from the parking lot to the work premises,
or vice versa, on a direct route." Thus, because the statute only gave coverage to those
workers who had left the parking lot and were traveling directly to the work premises and
Kretschmann was not walking from the parking lot, he was not covered by the statute.
278
State Industrial Commissioner v. Leff
State Industrial Commissioner v. Leff
Citation. 265 N.Y. 533, Supreme Court of New York (1934).
Brief Fact Summary. A printing employee died in an explosion and the State Industrial
Board awarded his survivors damages. Owners of the printing shop appealed.
Synopsis of Rule of Law. Worker's Compensation Law is written with the primary
purpose of providing economic assistance to an employee who is injured on the job and
thereby suffers a loss of earnings
Facts. The Appellants, Herman and Lillian Leff, were engaged in the printing business.
They employed the deceased as a press feeder. The injury causing his death resulted from
an explosion in an adjoining building which caused the wall of the latter building, which
extended up four stories above the roof of the employers' premises, to fall over onto and
through the roof of the printing shop crushing the employee beneath the falling material.
Appellants contended that the accident in question was not of the type that would warrant
compensation as they were not sustained in connection with claimant's employment.
Issue. Were the injuries sustained by decedent sustained in the course of employment
and thus entitled to compensation?
Held. Yes. Affirmed. The New York Supreme Court affirmed the order of the Appellate
Division of an award granted by the State Industrial Board made under the Workmen's
Compensation Law.
Discussion. Courts must examine statutes in order to determine whether the statute was
designed to protect against the type of harm suffered by the plaintiff and whether the
class of persons designed to be protected by the statute includes the plaintiff - as here,
where legislation was passed to promote worker safety.
As one court has explained, "The primary purpose of workmen's compensation is to
provide economic assistance to an employee who is injured and thereby suffers a loss of
earnings; such legislation is intended to impose upon the employer the burden of taking
care of the casualties occurring in his employment, thus preventing the injured employee
from becoming a public charge" See Carvalho v. Decorative Fabrics Co. 117 R.I. 231
(1976). Generally, such statutes are designed to compensate for injuries suffered on the
job, in particular for those injuries specifically associated with the job, or even, as here,
personal injuries that arise while the employee is engaged in employment.
The court in Leff concurred in the finding of the Industrial Board, that even an out of the
ordinary occurrence such as an explosion in an adjacent building may cause the kind of
occurrence and conditions resulting in the type of injuries sustained by claimant. The
court thus found that the employee was "within the zone of special danger" and his
injuries were of the type that could be contemplated by Appellants. The court concluded
that such injuries fell under the umbrella of "accidental injuries arising out of and in the
course of employment." affirmed the Appellate Division's decision.
279
Carvalho v. Decorative Fabrics Co.
Carvalho v. Decorative Fabrics Co.
Citation. 117 R.I. 231.
Brief Fact Summary. The Rhode Island Workmen's Compensation Commission denied
an employee's request for compensation and dismissed his petition. Petitioner employee
sought review of the decision.
Synopsis of Rule of Law. To recover for work-related injuries pursuant to worker's
compensation law, a claimant need only establish that the injury arose out of and in the
course of employment; a nexus or causal connection between the injury and the
employment must be shown. It is entirely reasonable and natural that workers will
indulge in momentary diversion to play a prank. When it is accomplished on the
employer's premises, with a temporary instrumentality furnished by the employer and
readily available, it becomes a risk of the employment and part and parcel of the
employment.
Facts. The employee worked in a yarn factory, and it was the custom of the workers, at
the end of the day, to assist one another in removing yarn fragments from their clothing.
This they did with the aid of an air hose. On the occasion in question, a fellow employee
placed the air hose near the employee's rectum. He felt his stomach blow up, was unable
to work the following day, and went to the hospital where it was discovered that he had
suffered a perforated rectum. He filed a claim, and the commission denied that claim on
the grounds that his injury was sustained during horseplay, did not arise from his
employment, and thus he was not entitled to recover. Claimant appealed.
Issue. Is an employee who is injured while on the job, even in the course of work place
horseplay, nevertheless entitled to workman's compensation for his injuries?
Held. Yes. The Court held that common law views regarding worker's compensation
rights were outdated due to replacement by statutory regulation the scope and intent of
which have broadened to include even injuries that occur when employees are engaged in
rough-housing or horseplay so long as the activity is nominally connected to the
claimant's employment. The Court sustained the employee's appeal and vacated the
Commission's decree. The cause was remanded to the Commission for further
proceedings.
Discussion. The Court notes the transition from common law applications to the modern,
codified approach to governing work injury-related compensation. As the Court pointed
out, "The primary purpose of workmen's compensation is to provide economic assistance
to an employee who is injured and thereby suffers a loss of earnings; such legislation is
intended to impose upon the employer the burden of taking care of the casualties
occurring in his employment." Worker's compensation acts have broadened the scope and
intent of coverage, thus, "[A] worker need no longer be free from fault to receive
compensation. Decisions and commentaries on the issue of 'horseplay' in workmen's
compensation cases have taken the position that injuries are compensable for the
280
Carvalho v. Decorative Fabrics Co.
'participant' as well as the 'innocent victim' under certain conditions." The Court
considers human nature in its analysis, observing, "When people are placed together and
are in close association with one another in performing their work there is a natural
instinct to fool around and play pranks on one another. Such activity is part of the work
environment, an incident of the employment." Hence, the Court pointed out, "The injured
claimant should not be denied compensation merely because of his participation in
'horseplay.' To hold that an injury arises out of the employment if it is inflicted on a
workman attentive to duty by the sportive conduct of a fellow-employee, but that it does
not so arise if the injured workman participates, however slightly, in the sport is to draw a
distinction based on the injured workman's fault." The Court thus concluded, "It is
entirely reasonable and natural that workers will indulge in momentary diversion to play
a prank. When it is accomplished on the employer's premises, with a temporary
instrumentality furnished by the employer and readily available, it becomes a risk of the
employment and part and parcel of the employment."
281
Harris v. Board of Educ. of Howard County
Harris v. Board of Educ. of Howard County
Citation. 375 Md. 21 (Md. 2003)
Brief Fact Summary. Plaintiff, Vernell Harris, injured her back while working for
Defendant, Board of Education of Howard County. The injury occurred as she dragged a
box of soap outside.
Synopsis of Rule of Law. A majority of jurisdictions do not have an “unusual activity”
requirement for relief under worker’s compensation acts, but only have to be an
accidental injury.
Facts. Plaintiff worked in Defendant’s school kitchen. During routine duties, Plaintiff
discovered that box with soap was contaminated with cockroaches. Plaintiff and a
coworker dragged the box outside to avoid further contamination, and once Plaintiff
returned to her normal duties she felt a crack in her back. She immediately saw a doctor,
and the doctor surmised that the dragging of the box led to her injury. Plaintiff filed a
Worker’s Compensation claim, and Maryland’s Worker’s Compensation Commission
granted it. Defendant appealed to the Circuit Court for Howard County where a jury
denied the claim because the injury was not caused by an unusual activity. The Maryland
Court of Special Appeals affirmed.
Issue. The issue is whether there is an “unusual activity” requirement the Plaintiff needs
to meet before qualifying for worker’s compensation.
Held. The Court of Appeals of Maryland abandoned any requirement for an injury to be
the product of an unusual activity in order to be considered an accident under worker’s
compensation guidelines. The Court reasoned that nearly all other jurisdictions do not
have this requirement, and the requirement is not found in the statutory language and is
contrary to the spirit of the statute. The requirement has been inconsistently applied to
other cases.
Discussion. For most jurisdictions, there is no requirement to prove that an injury
stemmed from an unusual activity in order to be considered accidental. The test is
typically whether the injury was an unexpected result of routine work performed by a
worker.
282
Martin v. Lancaster Battery Co.
Martin v. Lancaster Battery Co.
Citation. 530 Pa. 11, 606 A.2d 444.
Brief Fact Summary. The Superior Court, Philadelphia (Pennsylvania) reversed a trial
court order sustaining the Appellants', Lancaster Battery Co. Stuart C. Manix, and R.A.
Boben, Jr., M.D. and Lancaster Pediatric Associates, Ltd. (Appellants), preliminary
objections to an action for fraudulent misrepresentation. The Appellees, Joseph H.
Martin, Sr. (Mr. Martin) and Patricia J. Martin (Appellees) alleged that the Appellants (as
Appellee husband's employer) withheld the results of blood tests required by federal
safety regulations. The Appellants sought review.
Synopsis of Rule of Law. The applicable workmen's compensation statute is not the
exclusive remedy for the aggravation of an employee's work-related injury where the
employer's fraudulent misrepresentation has been alleged.
Facts. Mr. Martin was an employee of Lancaster Battery, a battery manufacturer, and in
the course of employment was exposed to lead dust and fumes. Per federal safety
regulations, employees were to be tested regularly to monitor the lead content in their
blood. The company supervisor overseeing the testing purposefully withheld Mr. Martin's
results over a period of more than three years. In some cases, the supervisor altered test
results. As a result, Mr. Martin developed chronic lead toxicity and severe related
conditions. The Appellees sued, alleging intentional and willful misconduct by the
Appellants. The trial court sustained the Appellants' preliminary objections in the nature
of a demurrer to the Appellees' complaint, holding that the exclusivity provision of the
Workmen's Compensation Act (the Act) barred the action. The appellate court reversed.
Issue.
!
Did the Act's "exclusive remedy" provision bar claimants' action?
!
Did the Appellants submit facts sufficient to support a cause of action?
Held. The Pennsylvania Supreme Court affirmed the decision of the appellate court,
which reversed and remanded the trial court's order, holding:
!
The Appellants' actions were not covered by the Act and that the
Appellees' claim of fraudulent misrepresentation was actionable at
common law.
!
The Appellees pleaded facts sufficient to support an action for fraudulent
misrepresentation.
Dissent. The dissent takes issue with the majority's interpretation of the plain language
of the Act, specifically with regard to the exclusive remedy provision, stating that the
case at bar was "clearly within the scope of immunity granted employers under the
283
Martin v. Lancaster Battery Co.
Workmen's Compensation Act. The decision of the Superior Court, holding that the
present action against the employer can proceed, should be reversed."
Discussion.
The Pennsylvania Supreme Court in Martin addressed the distinction between claims for
injuries in connection with the Act and those aimed at recovery for tortuous conduct,
noting that the former "does not preclude an action at common law for intentional wrongs
committed by fellow employees." The court articulates the distinction this way: "The
applicable workmen's compensation statute is not the exclusive remedy for the
aggravation of an employee's work-related injury where the employer's fraudulent
misrepresentation has been alleged." Thus, in alleging fraudulent misrepresentation,
Appellees stated a separate and distinct cause of action, the elements of which the court
enunciated in the following manner: "A cause of action for fraudulent misrepresentation
is comprised of the following elements: (1) a misrepresentation, (2) a fraudulent utterance
thereof, (3) an intention by the maker that the recipient will thereby be induced to act, (4)
justifiable reliance by the recipient upon the misrepresentation and (5) damage to the
recipient as the proximate result."
With regard to the Appellants' demurrer, originally sustained by the trial court and
subsequently reversed, the court's explanation of the relevant procedural consideration is
instructive: "Preliminary objections in the nature of a demurrer are reviewed pursuant to
the following standard: All material facts set forth in the complaint as well as all
inferences reasonably deducible therefrom are admitted as true for the purpose of this
review. The question presented by the demurrer is whether on the facts averred the law
says with certainty that no recovery is possible. Where a doubt exists as to whether a
demurrer should be sustained, this doubt should be resolved in favor of overruling it."
The court disagreed with the trial court's assessment of the factual case presented by the
Appellees and thus ruled in their favor.
284
Kerans v. Porter Paint Co.
Kerans v. Porter Paint Co.
Citation. 61 Ohio St. 3d 486, 575 N.E.2d. 428.
Brief Fact Summary. The Court of Appeals for Hamilton County (Ohio) affirmed an
order from the trial court that granted summary judgment for the Appellee employer,
Porter Paint Co. (Appellee), in the employee's action for sexual harassment. The
Appellant employee challenged the decision.
Synopsis of Rule of Law. Where a plaintiff brings a claim against an employer
predicated upon allegations of workplace sexual harassment by a company employee and
where there is evidence in the record suggesting that the employee has a past history of
sexually harassing behavior about which the employer knew or should have known,
summary judgment may not be granted in favor of the employer, even where the
employee's actions in no way further or promote the employer's business.
Facts. The Appellants were Mr. and Mrs. Kerans (Appellants). Mrs. Kerans worked for
a retail outlet owned by the Appellee and alleged the store manager sexually harassed
her. Mrs. Kerans reported the incidents and the manager subsequently resigned. The
Appellants filed a claim against the Appellee. The Appellants settled the claim against the
Appellees' store manager, but expressly reserved their right to bring action against the
company, which they did filing a complaint containing five counts. The trial court
granted summary judgment. The court of appeals affirmed. The Ohio Supreme Court
reversed the judgment as to all the causes of action, except the first because it essentially
duplicated of the other claims. The court held that the employee's claims for sexual
harassment were not barred by the exclusivity provision of the Workers' Compensation
Act (the Act) and further that there were disputed issues of fact as to whether the
supervisor was acting in the scope of his employment and as to whether the employer
knew or should have known about the supervisor's alleged history of sexual harassment.
Issue. Is a claim of sexual harassment barred by the exclusive remedy provision of the
Act?
Held. No. The court held that the Appellants' claims for sexual harassment were not
barred by the exclusivity provision of the Act, stating that where an employee alleges
sexual harassment by another employee and there is evidence in the record suggesting
that the employee has a past history of sexually harassing behavior about which the
employer knew or should have known, summary judgment may not be granted in favor of
the employer.
Dissent. The dissent takes the view that, while the majority's intention of providing relief
for sexual harassment victims is noble, he could not "join the majority in its creation of a
new tort against an employer which has no foundation in common law." In particular the
dissenting Justice takes issue with what he sees as a haphazard cobbling together of
disparate elements of statutory construction, stating: "[T]ort law does provide remedies
for victims of sexual harassment. For example, actions have been brought under the
285
Kerans v. Porter Paint Co.
theories of assault and battery. However, these claims each have their own distinct
elements, which may not be blurred by lumping them into a general claim for sexual
harassment." Finally, the dissent sees such application as being in contravention of
present statutory aims: "Either an expansive interpretation of the intentional tort
exception or the development of new negligent tort actions would thwart the basic
purpose of the statutory and constitutional scheme by eroding the exclusivity of remedy
provided by the Workers' Compensation Act."
Discussion. In addition to the necessary distinction to be drawn between types of injuries
covered by workman's compensation statutes, the court in Kerans must address a number
of corollary issues. The primary of which is a general one, the degree of responsibility an
employer holds for worker safety. The court stated broadly, "An employer has a duty to
provide its employees with a safe work environment and, thus, may be independently
liable for failing to take corrective action against an employee who poses a threat of harm
to fellow employees, even where the employee's actions do not serve or advance the
employer's business goals." More specifically, with regard to the applicability of the
exclusive remedy provision, the court returned to the "types of injuries" analysis, stating,
"A physical injury occasioned solely by mental or emotional stress received in the course
of employment is an 'injury' within the definition," however, the court clarified, the
applicable statute "state [d] that injury does not include psychiatric conditions except
where the conditions have arisen from an injury or occupational disease." Turning to the
statutory language, the court pointed out "injury [for purposes of applicability of the
exclusionary provision] does not include psychiatric conditions except where the
conditions have arisen from an injury or occupational disease." Thus, as the
employee/plaintiff's injury was purely psychological, it did not fall under the
exclusionary provision and thus her claim was permissible. The court provided the
rationale that, if the exclusionary provision were to apply, victims of sexual harassment
would have no remedy under law.
The court then turns to the secondary corollary issue, that of an employer's vicarious
liability. It stated, "In determining whether to impose liability based on respondeat
superior on an employer for the sexually harassing acts of one of its employees, federal
courts have employed traditional agency principles." The court continued, "Specifically,
they have held that where an employee is able to sexually harass another employee
because of the authority or apparent authority vested in him by the employer, it may be
said that the harasser's actions took place within the scope of his employment." Thus the
court concluded, "Where the harassment takes place during working hours, at the office,
and is carried out by someone with the authority to hire, fire, promote, and discipline the
employee, the harassing employee's conduct takes place in the scope of his employment."
The court then addressed a tertiary issue, the distinction between the tortuous action of an
employee and an employer's inaction as separate violations. The Court stated "A
company's failure to investigate a complaint of abusive treatment is independent of the
abusive treatment itself and a company may be liable for failing to stop the abusive
treatment regardless of whether the treatment itself rises to the level of an actionable
tort." Thus, the court states, "A cause of action for negligence against an employer may
be stated if the employer, in the exercise of reasonable care, should have known of an
286
Kerans v. Porter Paint Co.
employee's reputation for sexual harassment and that it was foreseeable that the employee
would engage in sexual harassment of a fellow employee but he was continued in his
employment."
287
CHAPTER XXIX.
Public Compensation Systems, Including Social
Security
288
Heckler v. Campbell
Heckler v. Campbell
Citation. 461 U.S. 458.
Brief Fact Summary. The Respondent, Carmen Campbell (Respondent) applied for and
was denied disability benefits. An administrative law judge agreed with the decision,
concluding the Respondent was not disabled and the district court affirmed. The United
States Court of Appeals for the Second Circuit reversed the judgment, finding that the
medical-vocational guidelines that had been promulgated by the Petitioner, Heckler the
Secretary of Health and Human Services (Petitioner) did not provide evidence of a
specific job that was available for the Respondent. The Petitioner sought review.
Synopsis of Rule of Law. A claimant who establishes that he suffers impairment so
severe that he is prevented from pursuing any gainful work will be considered disabled
without further inquiry. If a claimant suffers from a less severe impairment, the Secretary
of Health and Human Services must determine whether the claimant retains the ability to
perform either his former work or some less demanding employment. If a claimant can
pursue his former occupation, he is not entitled to disability benefits.
Facts. The Respondent applied for disability benefits in 1979 because a back condition
and hypertension prevented her from continuing her work as a maid. Her application was
denied and she sought a hearing before an administrative law judge who concluded that
though she could no longer work as a maid due to her back condition, but she could
nevertheless perform light work. The Respondent's claim was thus denied. On appeal, the
Second Circuit reversed on the grounds that the Health and Human Services (HHS)
guidelines were inadequate as "evidence of a claimant's ability to perform a specific
alternative occupation." Seeking review, the Petitioner argued that the court of appeals'
holding effectively prevented her use of the medical-vocational guidelines by requiring
her to identify specific alternative jobs in every disability hearing. The Supreme Court of
the United States (Supreme Court) granted certiorari.
Issue. May the Secretary of HHS rely on medical-vocational guidelines to determine a
claimant's right to Social Security disability benefits?
Held. Yes. The Supreme Court held that the court of appeals erred in reversing the
judgment because the Petitioner's use of the medical-vocational guidelines to determine a
claimant's right to disability benefits did not conflict with the Social Security Act, nor
were the guidelines arbitrary or capricious.
Dissent. Justice Thurgood Marshall (J. Marshall) in dissent, echoes the concern of
Justice William Brennen (J. Brennan) regarding "the additional question whether the
Administrative Law Judge fulfilled his obligation to look fully into the issues." J.
Marshall further expresses concern with regard to claimant's due process rights.
Specifically the principle of administrative law that, when an agency takes official or
administrative notice of facts, a litigant must be given an adequate opportunity to respond
289
Heckler v. Campbell
- a requirement the majority held as inapplicable where, as in this case, the agency has
promulgated valid regulations.
Concurrence. J. Brennen, while concurring in the judgment, nevertheless had
reservations concerning the thoroughness with which the Administrative Law Judge
carried out the obligation to "scrupulously and conscientiously explore for all the relevant
facts" in connection with a claim as an integral component of a "claimants' basic statutory
and constitutional right to due process in the adjudication of their claims."
Discussion. In Heckler, the Supreme Court takes the opportunity to clarify the purpose
and application of the statutory framework surrounding Social Security disability
benefits. J. Lewis stated, "The Social Security Act defines 'disability' in terms of the
effect a physical or mental impairment has on a person's ability to function in the
workplace. It provides disability benefits only to persons who are unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment." And, J. Powell adds, the Social Security Act "specifies that a person must
not only be unable to do his previous work but must be unable, considering his age,
education, and work experience, to engage in any other kind of substantial gainful work
which exists in the national economy, regardless." He clarifies, "of whether such work
exists in the immediate area in which he lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he applied for work." With regard to the
standard of review incumbent on the HHS Secretary, J. Powell notes, "The Social
Security Act directs the Secretary of Health and Human Services to adopt reasonable and
proper rules and regulations to regulate and provide for the nature and extent of the
proofs and evidence and the method of taking and furnishing the same in disability
cases." Further, "While the statutory scheme contemplates that disability hearings will be
individualized determinations based on evidence, this does not bar the Secretary from
relying on rulemaking to resolve certain classes of issues." In short, where the agency has
promulgated valid regulations, both policy and efficiency permit the HHS secretary to
rely on such regulations. As the Supreme Court noted, "The determination as to whether
jobs exist that a person having the claimant's qualifications could perform requires the
Secretary to determine a factual issue that is not unique to each claimant and may be
resolved as fairly through rulemaking as by introducing testimony of vocational experts
at each disability hearing."
290
CHAPTER XXX.
Private Insurance Solutions
291
Licari v. Elliott
Licari v. Elliott
Citation. 57 N.Y.2d 230, 455 N.Y.S. 2d 570, 441 N.E.2d 1088.
Brief Fact Summary. The Appellate Division of the Supreme Court of New York in the
Second Judicial Department reversed a judgment pursuant to a jury verdict that found the
Plaintiff, Licari (Plaintiff), personal injury victim, to be 30 percent liable and the
Defendant driver, Elliot (Defendant), 70 percent liable and awarded the injured Plaintiff
the principle sum of $ 14,700. The lower court also dismissed the injured Plaintiff's
complaint. The Plaintiff sought review.
Synopsis of Rule of Law. A serious injury is defined as a personal injury which results
in death; dismemberment; significant disfigurement; a fracture; permanent loss of use of
a body organ, member, function or system; permanent consequential limitation of use of
a body organ or member; significant limitation of use of a body function or system; or a
medically determined injury or impairment of a non-permanent nature which prevents the
injured person from performing substantially all of the material acts which constitute
such person's usual and customary daily activities for not less than 90 days during the one
180 days immediately following the occurrence of the injury or impairment.
Facts. The Plaintiff, injured in a motor vehicle accident in February 1979, was
diagnosed with a concussion, acute cervical sprain, acute dorsal lumbar sprain and a
contusion of the chest and returned home later that day. Two days later he consulted with
his physician and was admitted to the hospital for tests, which showed no damage. He
was released and 24 days after the accident, he returned to his job as a taxi driver,
resuming work with only minor limitations. The Plaintiff testified that he could not do
various household chores and that he had occasional transitory headaches and dizzy
spells which aspirin relieved. The Defendant then moved to dismiss, claiming the
Plaintiff failed to establish that this injury met any of the threshold requirements of
serious injury as defined by the Insurance Law. The court submitted the case to the jury
on the theories that, in order to recover, the Plaintiff must have (1) suffered an injury
which prevented him from performing all his daily activities for not less than 90 days
during the 180 days immediately following the accident or (2) that as a result of the
accident he sustained a significant limitation of use of a body function or system. The
jury found for the Plaintiff. The Appellate Division reversed and dismissed the complaint,
holding that the Plaintiff had failed, as a matter of law, to prove a serious injury under
either definition.
Issue. Did the injured Plaintiff meet the requirements to prove injury within the meaning
of the no-fault provision found in the New York insurance law?
Held. No. The court affirmed the order reversing the original judgment because the
injured failed to establish a prima facie case that he sustained a serious injury.
Discussion. The court in Licari first takes the opportunity to examine the policies and
purpose of the "No-fault" law, which the court notes was created specifically to address
292
Licari v. Elliott
"certain infirmities recognized to exist under the common-law tort system of
compensating automobile accident claimants." As the court explained, "By enacting the
No-Fault Law, the legislature modified the common-law rights of persons injured in
automobile accidents to the extent that plaintiffs in automobile accident cases no longer
have an unfettered right to sue for injuries sustained. Thus, to the extent that the
legislature has abrogated a cause of action, the issue is one for the court, in the first
instance where it is properly raised, to determine whether the plaintiff has established a
prima facie case of sustaining serious injury." Economy of resources and judicial
efficiency are also primary considerations. The court reasoned, "Since the purpose of the
No-Fault Law is to assure prompt and full compensation for economic loss by curtailing
costly and time-consuming court trials, requiring that every case, regardless of the extent
of the injuries, be decided by a jury would subvert the intent of the legislature and destroy
the effectiveness of the statute. The result of requiring a jury trial where the injury is
clearly a minor one would perpetuate a system of unnecessary litigation." Thus, in a
limited capacity, "A court should decide the threshold question of whether the evidence
warrants a jury finding that the injury falls within the class of injuries that, under no-fault,
should be excluded from judicial remedy." To that end, in this instance the court found
that the jury could not have concluded that the injured suffered a significant limitation of
use of body function or system, or that he was prevented from performing substantially
all of his usual daily activities for 90 days as required by statute.
293
CHAPTER XXXII.
Communication Of Personally Harmful
Impressions To Others
294
New York Times v. Sullivan
New York Times v. Sullivan
Citation. 376 U.S. 254.
Brief Fact Summary. The Alabama Supreme Court of upheld a judgment awarding the
Respondent, L.B. Sullivan (Respondent), damages in a civil libel action. The Petitioner,
the New York Times (Petitioner), appealed.
Synopsis of Rule of Law. Constitutional guarantees require a federal rule that prohibits
a public official from recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made with actual malice - that is,
with knowledge that it was false or with reckless disregard of whether it was false or not.
Facts. The Petitioner newspaper published a full-page ad that alleged the Rev. Martin
Luther King, Jr.'s (King) arrest for perjury in Alabama was part of a campaign to destroy
King's efforts to integrate public facilities and encourage blacks to vote. The Respondent,
the Montgomery city commissioner, filed a libel action against the newspaper and four
black ministers who were listed as endorsers of the advertisement. The Respondent
claimed that the allegations against the Montgomery police defamed him personally. The
advertisement included statements, some of which were false, about police action
allegedly directed against students who participated in a civil rights demonstration and
against a leader of the civil rights movement. The Respondent claimed the statements
referred to him because his duties included supervision of the police department. Under
Alabama law, the Respondent did not have to prove that he had been harmed. Also, a
defense claiming that the advertisement was truthful was unavailable since the
advertisement contained factual errors. The jury found for the Respondent, awarding a
$500,000 judgment. The State Supreme Court affirmed.
Issue. Did Alabama's libel law, by not requiring the Respondent to prove that the speech
in question was motivated by actual malice, unconstitutionally infringe on the First
Amendment's freedom of speech and freedom of press protections?
Held. Yes. The court ruled that the First Amendment of the United States Constitution
(Constitution) protects the publication of all statements, even false ones, about the
conduct of public officials except when statements are made with actual malice (with
knowledge that they are false or in reckless disregard to truth or falsity). Specifically, the
rule of law applied by the Alabama courts was constitutionally deficient for failure to
provide the Petitioner the safeguards for freedom of speech and of the press that were
guaranteed by the First and Fourteenth Amendments of the Constitution in a libel action
brought by a public official against critics of his official conduct.
Concurrence.
!
Interestingly, Justices Arthur Goldberg (J. Goldberg) and Hugo Black (J.
Black) (with whom Justice William Douglas (J. Douglas) joined in
concurrence) did not feel that the new standard afforded sufficient
295
New York Times v. Sullivan
protection. As J. Black, taking issue with the malice requirement stated,
"'Malice,' even as defined by the Court, is an elusive, abstract concept,
hard to prove and hard to disprove. The requirement that malice be proved
provides at best an evanescent protection for the right critically to discuss
public affairs and certainly does not measure up to the sturdy safeguard
embodied in the First Amendment." J. Black would, in fact grant the press
"absolute immunity for criticism of the way public officials do their public
duty." This is a point of utmost concern for J. Black, as he asserted, "To
punish the exercise of this right to discuss public affairs or to penalize it
through libel judgments is to abridge or shut off discussion of the very
kind most needed. This Nation, I suspect, can live in peace without libel
suits based on public discussions of public affairs and public officials. But
I doubt that a country can live in freedom where its people can be made to
suffer physically or financially for criticizing their government, its actions,
or its officials."
!
J. Goldberg, echoing J. Black, states flatly, "In my view, the First and
Fourteenth Amendments to the Constitution afford to the citizen and to the
press an absolute, unconditional privilege to criticize official conduct
despite the harm which may flow from excesses and abuses." J. Goldberg
would dispense with any litmus test connected with the mindset of those
exercising free speech: "The right should not depend upon a probing by
the jury of the motivation of the citizen or press." Ominously, J. Goldberg
warns, "If liability can attach to political criticism because it damages the
reputation of a public official as a public official, then no critical citizen
can safely utter anything but faint praise about the government or its
officials. The vigorous criticism by press and citizen of the conduct of the
government of the day by the officials of the day will soon yield to silence
if officials in control of government agencies, instead of answering
criticisms, can resort to friendly juries to forestall criticism of their official
conduct."
Discussion. In its landmark ruling in Sullivan, the United States Supreme Court
(Supreme Court) uses the case as an opportunity to examine the parameters of free speech
and First and Fourteenth Amendment protections. Until Sullivan, defamation law was
entirely defined by the law of the states with no constraints imposed by the Constitution.
Since Sullivan defamation law has been "constitutionalized" with the Supreme Court
expanding and refining the boundaries of free speech.
At immediate issue in Sullivan was the question of libel, and the court noted, "Like
insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity,
solicitation of legal business, and the various other formulae for the repression of
expression that have been challenged in the Supreme Court, libel can claim no talismanic
immunity from constitutional limitations." The court flatly concludes, "The Constitution
does not protect libelous publications." There was thus a requirement to explore more
fully what constitutes libel. The Supreme Court quickly dispenses with the primary
defense, "Authoritative interpretations of the First Amendment guarantees have
296
New York Times v. Sullivan
consistently refused to recognize an exception for any test of truth -- whether
administered by judges, juries, or administrative officials -- and especially one that puts
the burden of proving truth on the speaker." Such a test would create liability simply on
the basis of error, as the Supreme Court explained, "Erroneous statement is inevitable in
free debate, and it must be protected if the freedoms of expression are to have the
breathing space that they need to survive."
Nevertheless, another important distinction had to be drawn in Sullivan in that the
Respondent was a public official. Thus the delineation between the rights of a public
figure and those of a private citizen needed to be drawn. With regard to the former, the
court chose to adopt a standard of "actual malice", and explained, "Constitutional
guarantees require a federal rule that prohibits a public official from recovering damages
for a defamatory falsehood relating to his official conduct unless he proves that the
statement was made with actual malice - that is, with knowledge that it was false or with
reckless disregard of whether it was false or not." Reinforcing the point, the court states,
"Any one claiming to be defamed by a communication must show actual malice or go
remediless. This privilege extends to a great variety of subjects, and includes matters of
public concern, public men, and candidates for office." The court's rationale was that no
less than the citizenry's right to criticize government was at stake: "The Constitution
delimits a state's power to award damages for libel in actions brought by public officials
against critics of their official conduct." Thus, under the new Federal standard, the
evidence presented in Sullivan was constitutionally insufficient to support the judgment
for the Respondent, since it failed to support a finding that the statements were made with
actual malice or that they related to him.
297
Gertz v. Robert Welch Inc.
Gertz v. Robert Welch Inc.
Citation. 418 U.S. 323.
Brief Fact Summary. The United States Court of Appeals for the Seventh Circuit held
that the Petitioner, Elmer Gertz (Petitioner), was a public figure and that the New York
Times standard applied in his defamation action. Accordingly, the court of appeals
affirmed the district court's grant of a judgment notwithstanding the verdict in favor of
the Respondent publisher, Robert Welch Inc. (Respondent). The Petitioner attorney
sought review.
Synopsis of Rule of Law. Because private individuals have less effective opportunities
for rebuttal than do public officials and public figures, they are more vulnerable to injury
from defamation. Thus, state interest in compensating injury to the reputation of private
individuals is greater than for public officials and public figures, and States may
constitutionally allow private individuals to recover damages for defamation on the basis
of any standard of care except liability without fault.
Facts. After a policeman killed a youth, the youth's family retained the Petitioner an
attorney to represent them in a civil action. In a magazine called American Opinion, the
John Birch Society accused the Petitioner of being a "Leninist" and a "Communistfronter" because he chose to represent clients who were suing a law enforcement officer.
Because the statements contained serious inaccuracies, the Petitioner filed a libel action
against the Respondent. The district court held that the New York Times standard
applied, which meant that the Respondent escaped liability unless the Petitioner proved
that a defamatory falsehood was published with actual malice. The district court entered
judgment for the Respondent and the court of appeals affirmed.
Issue. Does the standard enunciated in New York Times v. Sullivan requiring a plaintiff
to establish actual malice to successfully bring a defamation suit against a public figure
extend to private individuals?
Held. No. The Supreme Court of the United States (Supreme Court) reversed and
remanded. Because the Petitioner was not a public figure, the state's interest in
compensating injury to his reputation required a different standard from that formulated
in New York Times. The Supreme Court held further that the states could define for
themselves the appropriate standard of liability for a publisher or broadcaster of
defamatory falsehood injuries to a private individual.
Dissent. The ruling in Gertz elicited four dissenting opinions - in a 5-4 vote.
!
Chief Justice Warren Burger (J. Burger) wrote a relatively short dissent,
the crux of which is protection of …"The important public policy which
underlies this tradition - the right to counsel - would be gravely
jeopardized if every lawyer who takes an 'unpopular' case, civil or
criminal, would automatically become fair game for irresponsible
298
Gertz v. Robert Welch Inc.
reporters and editors who might, for example, describe the lawyer as a
'mob mouthpiece' for representing a client with a serious prior criminal
record, or as an 'ambulance chaser' for representing a claimant in a
personal injury action."
!
Justice William Douglas (J. Douglas) takes issue first, with the majority's
deference to the States in what he sees as the federal sphere. Second,
flowing from that position, with what he sees as an inconsistency with
regard to the decision in Times: "With the First Amendment made
applicable to the States through the Fourteenth, I do not see how States
have any more ability to 'accommodate' freedoms of speech or of the press
than does Congress. This is true whether the form of the accommodation
is civil or criminal since [quoting Times v. Sullivan] ' [what] a State may
not constitutionally bring about by means of a criminal statute is likewise
beyond the reach of its civil law of libel.'"
!
Justice William Brennan (J. Brennan) takes a similar view, that the
majority's reasoning places too-tight strictures on speech: "I cannot agree,
however, that free and robust debate -- so essential to the proper
functioning of our system of government -- is permitted adequate
'breathing space,' when, as the Court holds, the States may impose all but
strict liability for defamation if the defamed party is a private person and
'the substance of the defamatory statement 'makes substantial danger to
reputation apparent' (Citations omitted)."
!
Justice Byron White (J. White) approaches the problem from a different
perspective, disagreeing with the majority on the standard of proof
required: "Plainly, with the additional burden on the plaintiff of proving
negligence or other fault, it will be exceedingly difficult, perhaps
impossible, for him to vindicate his reputation interest by securing a
judgment for nominal damages, the practical effect of such a judgment
being a judicial declaration that the publication was indeed false. Under
the new rule the plaintiff can lose, not because the statement is true, but
because it was not negligently made."
Discussion. In the majority opinion, Justice Lewis Powell (J. Powell) argued that the
application of the New York Times v. Sullivan standard was not appropriate here because
the Petitioner was neither a public official nor a public figure.
J. Powell first advanced the argument that ordinary citizens should be allowed more
protection from libelous statements than individuals in the public eye. "A publisher or
broadcaster of defamatory falsehoods about an individual who is neither a public official
nor a public figure may not claim the New York Times protection against liability for
defamation on the ground that the defamatory statements concern an issue of public or
general interest."
299
Gertz v. Robert Welch Inc.
However, continued L. Powell, the actual malice standard did not lose all significance in
cases involving ordinary citizens as he advised states to use it in assessing claims for
punitive damages by citizens suing for libel. "The States, however, may not permit
recovery of presumed or punitive damages when liability is not based on knowledge of
falsity or reckless disregard for the truth, and the private defamation plaintiff who
establishes liability under a less demanding standard than the New York Times test may
recover compensation only for actual injury."
J. Powell then proffers a standard by which to assess a plaintiff's status: "Absent clear
evidence of general fame or notoriety in the community and pervasive involvement in
ordering the affairs of society, an individual should not be deemed a public figure for all
aspects of his life. Rather, the public-figure question should be determined by reference
to the individual's participation in the particular controversy giving rise to the
defamation."
J. Powell concludes by first reiterating what the majority sees as a proper prospective
view toward establishing the parameters of free speech while safeguarding individual
protection, and: "In today's opinion the Court abandons the traditional thread so far as the
ordinary private citizen is concerned and introduces the concept that the media will be
liable for negligence in publishing defamatory statements with respect to such persons."
J. Powell then directly addressing the exception taken by the dissenting opinions, noting,
"Although I agree with much of what Mr. Justice White states, I do not read the Court's
new doctrinal approach in quite the way he does. I am frank to say I do not know the
parameters of a "negligence" doctrine as applied to the news media. Conceivably this
new doctrine could inhibit some editors, as the dissents of Mr. Justice Douglas and Mr.
Justice Brennan suggest. But I would prefer to allow this area of law to continue to
evolve as it has up to now with respect to private citizens rather than embark on a new
doctrinal theory which has no jurisprudential ancestry."
300
Friedman v. Dozorc
Friedman v. Dozorc
Citation. 412 Mich. 1.
Brief Fact Summary. The Court of Appeals of Michigan dismissed a doctor's causes of
action for negligence and abuse of process in connection with the litigation of a medical
malpractice action against him. The doctor appealed.
Synopsis of Rule of Law. An attorney who initiates a civil proceeding on behalf of his
client or one who takes any steps in the proceeding is not liable if he has probable cause
for his action and even if he has no probable cause and is convinced that his client's claim
is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client
in obtaining a proper adjudication of his claim.
Facts. The Plaintiff, Doctor Friedman (Plaintiff), performed surgery on a Mrs. Serafin
and in the course of surgery she began to hemorrhage uncontrollably. She died five days
later and the Defendant attorneys, Dozorc and Golden (Defendants), acting on behalf of
Anthony Serafin, Jr., brought suit against the doctor for wrongful death. No evidence was
submitted at trial establishing professional negligence and the trial judge directed a
verdict in the Plaintiff's favor. The Plaintiff then brought suit against the Defendants
alleging malicious prosecution, negligence and abuse of process. The trial court
dismissed the actions and the court of appeals affirmed, but reversed with regards to the
action for malicious prosecution. In this action, the Plaintiff argued that the Defendants
owed him a duty to reasonably investigate and examine facts to establish that their client
had an actionable claim.
Issue. Do attorneys have a duty to adequately investigate claims in order to protect the
opposition from a frivolous lawsuit and, if failing to do so, open themselves up to a
malicious prosecution claim?
Held. No. The court concluded that imposing a duty on an attorney to protect an
opposition plaintiff from frivolous lawsuit by extending his duty to adequately investigate
claims would present a conflict of interests and would be detrimental to free access to the
courts.
Dissent. The dissent takes the view that the majority does not go far enough in
safeguarding access to the courts, and takes particular issue with its attention to the
special injury issue: "[T]his Court's concern should be for preserving free access to the
courts for meritorious claims. The majority, by protecting meritorious and frivolous
claims alike, has denied free access to the courts for all those who have suffered harm but
no "special injury" from wrongful litigation."
Discussion. Breach of duty is the defendant's failure to act as a reasonable person would
have under the same or similar circumstances. More simply, breach is unreasonable
conduct by the defendant. The threshold issue in any negligence case is whether the
defendant owed a duty to the plaintiff in the first place. The Friedman court begins with a
301
Friedman v. Dozorc
standard analysis concerning this issue: "In a negligence action the question whether the
defendant owes an actionable legal duty to the plaintiff is one of law which the court
decides after assessing the competing policy considerations for and against recognizing
the asserted duty." Following from this premise, "Only if the law recognizes a duty to act
with due care arising from the relationship of the parties does it subject the defendant to
liability for negligent conduct." This delineation of duty takes on a different patina within
the context of litigation, and the court noted, "Assuming that an attorney has an
obligation to his client to conduct a reasonable investigation prior to bringing an action,
that obligation is not the functional equivalent of a duty of care owed to the client's
adversary. Such a duty would be inconsistent with basic precepts of the adversary
system." Further, and more specifically, the element of reliance is the converse of duty,
and in this context, the court explained, "The absence of reliance distinguishes a third
party's relationship with a member of the legal profession who represents that party's
adversary from a third party's relationship with a member of another profession whose
negligent conduct may affect him."
The court then notes the usual requirement for malicious prosecution is special injury and notes in passing "No decision of the Court holds that an action for malicious
prosecution of civil proceedings can be maintained absent special injury, whatever the
precise boundaries of that concept." But as plaintiff may make no such allegation, the
court focuses on the responsibility of an attorney in vigorously advocating for his/her
client: "The attorney's obligation is to represent his client honorably and ethically, and he
may, without being guilty of malicious prosecution, vigorously pursue litigation in which
he is unsure of whether his client or the client's adversary is truthful, so long as that issue
is genuinely in doubt." Along these same lines, the court observes, " An attorney's
evaluation of the client's case should not be inhibited by the knowledge that perseverance
may place the attorney personally at risk; the next fact or the next medical opinion may
be the one that makes the case, and such developments may occur even on the eve of
trial." Thus, the court concludes, "An attorney who initiates a civil proceeding on behalf
of his client or one who takes any steps in the proceeding is not liable if he has probable
cause for his action and even if he has no probable cause and is convinced that his client's
claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his
client in obtaining a proper adjudication of his claim." Accordingly, the court affirmed
the judgment of the court of appeals, but reversed their remand of the malicious
prosecution action, and dismissed all claims against the Defendants.
302
Solano v. Playgirl, Inc.
Solano v. Playgirl, Inc.
Citation. 292 F.3d 1078 (9th Cir. 2002)
Brief Fact Summary. Plaintiff, Jose Solano, Jr., was pictured on the cover of a magazine
published by Defendant, Playgirl, Inc. The magazine is known for its pictures of nude
men.
Synopsis of Rule of Law. When claiming false light invasion of privacy and
misappropriation of likeness, a plaintiff needs to prove that malice could be inferred from
the publication and only needs to demonstrate damages due to embarrassment to be
entitled to a trial.
Facts. Plaintiff was a star on a hit television show. Defendant published a magazine that
contained nude photos of men. Defendant’s magazine put a bare-chested picture of
Plaintiff on its cover, alongside a heading, “Primetime’s Sexy Young Stars Exposed”.
There were no actual nude photographs of Plaintiff inside the magazine. Plaintiff brought
a claim against Defendant for false light invasion of privacy and misappropriation of his
likeness. The trial court granted Defendant’s summary judgment because they found no
evidence of false impression or malice, and that the picture fell under the public affairs
exception for misappropriation.
Issue. The issue is whether Plaintiff presented evidence to support claims for false light
and misappropriation of likeness against Defendant.
Held. Plaintiff has met the burden of presenting triable issues of fact to support claims
for false light and misappropriation of likeness. Plaintiff was able to provide evidence to
support that the publication would be of a kind that would be considered injurious, and
that that his picture combined with the rest of the cover conveyed a false impression that
Plaintiff posed for the magazine. The Plaintiff only needed to prove that malice could be
inferred from the cover, and his humiliation was sufficient to establish damages.
Discussion. For false light and misappropriation of likeness, there is no requirement to
provide direct evidence of actual malice, but there needs to be evidence to prove an
inference of malice. Damages can be as slight as the injury of humiliation.
303
CHAPTER XXXIII.
Communication Of Commercially Harmful
Impressions To Others
304
Jeffrey v. Cathers
Jeffrey v. Cathers
Citation. 104 S.W.3d 424 (Mo. App. E.D. 2003)
Brief Fact Summary. Plaintiff, Thomas Jeffrey, entered into a contract with a company
through its president, the Defendant Edgar Cathers. Defendant allegedly altered the
contract to include lien language, and Plaintiff brought suit for slander of title.
Synopsis of Rule of Law. There is no absolute privilege for a mechanic’s lien in regards
to a claim for slander of title.
Facts. Defendant contracted with Plaintiff to perform demolition and hauling services on
Plaintiff’s property. Plaintiff believed that Defendant did not adequately perform the
work and therefore refused to pay Defendant. Defendant allegedly fraudulently inserted
language into the contract after the signing that authorized a mechanic’s lien. Defendant
used this to get a mechanic’s lien against Plaintiff’s property. Plaintiff brought suit on six
counts: fraudulent misrepresentation, abuse of process, slander of title, and punitive
damages for each.
Issue.
!
The first issue is whether Plaintiff stated a proper cause of action for slander
of title.
!
The second issue is whether Defendant’s mechanic’s lien was entitled to
absolute privilege.
!
The third issue is whether the slander of title and corresponding punitive
damages claims are barred by collateral estoppel or res judicata.
!
Plaintiff stated a proper cause of action for slander of title. For slander of
title, a plaintiff needs to demonstrate that he had an interest in the property at
issue, that the words were false and maliciously published, and there was a
pecuniary loss as a result of the words. Plaintiff’s claim that the mechanic’s
lien language falsely inserted by Defendant caused a loss.
!
There was no case law that supported an absolute privilege for a mechanic’s
lien, and therefore Defendant was not entitled to the privilege.
!
Defendant could not offer proof of a prior directed verdict for the slander of
title claim, and therefore Defendant was not entitled to bar the slander of title
claim.
Held.
Discussion. Slander of title has four elements: 1) an interest in the property; 2) false
words; 3) publication; and 4) damages.
305
Brunson Communications, Inc. v. Arbitron, Inc.
Brunson Communications, Inc. v. Arbitron, Inc.
Citation. 266 F.Supp.2d 377 (E.D. Pa. 2003)
Brief Fact Summary. Defendant, Arbitron, Inc., implemented a new system to
determine ratings for television networks. Plaintiff, Brunson Communications, owned a
television station that was initially left out of Defendant’s new ratings collection, but
Defendant maintained that the new ratings accurately reflected viewership.
Synopsis of Rule of Law. A sufficient complaint for disparagement of commercial
products needs to specifically identify a pecuniary loss.
Facts. Defendant implemented a new ratings system that required new equipment to add
to each station. Defendant did not have enough equipment to update all stations, so
Plaintiff’s station was not accommodated. Defendant nonetheless stated to advertisers
that their rating system was accurate. Plaintiff was therefore unable to provide
Defendant’s ratings to advertisers for over a year. Plaintiff therefore complained that the
statements by defendant concerning the accuracy of their ratings were a disparagement of
commercial products. Plaintiff believed the conduct of Defendant was negligent.
Issue.
!
The first issue is whether Plaintiff’s complaint for disparagement of
commercial products was sufficient.
!
The second issue is whether Defendant’s conduct was negligent.
!
Plaintiff’s complaint for disparagement of commercial products. Plaintiff’s
complaint did allege that Defendant’s statement was inaccurate, knew it was
inaccurate, and that Defendant should have known it would cause harm. The
Plaintiff did not specifically identify a pecuniary loss, so the complaint was
dismissed without prejudice.
!
Plaintiff had no legal basis for a negligence complaint. Plaintiff could not cite
any case law that demonstrated a legal duty for this type of business activity.
A plaintiff can not recover damages on a theory for purely economic damages.
Held.
Discussion. It is not enough to allege that a defendant damaged a business under a
disparagement claim, a plaintiff needs to specifically identify the damages.
306
Alyeska Pipeline Service Co. v. Aurora Air Services
Alyeska Pipeline Service Co. v. Aurora Air Services
Citation. 604 P.2d 1090.
Brief Fact Summary. The Superior Court of the State of Alaska, Fourth Judicial District
found the Appellants, Alyeska Pipeline Service Co. (Aleyska), Clyde F. Klick, and Leslie
Warren Bays (Appellants) liable in tort for intentionally interfering in the contractual
relationship of the Appellee, Aurora Air Services (Appellee), with a third party and
inducing a breach of contract without acting in good faith. The Appellant and individuals
challenged the decision.
Synopsis of Rule of Law. A party to a contract has a cause of action against a third party
who has intentionally procured the breach of that contract by the other party without
justification or privilege.
Facts. Alyeska contracted with RCA to provide a communications system in connection
with a pipeline in which the company was involved. RCA in turn contracted with the
Appellee for use of an aircraft, pilot and parts and services to be used along the pipeline.
Alyeska then had a dispute with the Appellee and the former exercised an option to take
over the flight operation, thus, constructively terminating the Appellee's contract. The
Appellee sued, claiming Alyeska induced breach of contract. Alyeska moved for
summary judgment, which the trial court denied. The court held that although Alyeska
could terminate its contract with RCA - indirectly terminating the Appellee's contract - it
could not do so in bad faith. A jury found for the Appellee and Alyeska appealed.
Issue. Did Alyeska terminate the contract at issue in bad faith and thus interfere with the
Appellee's right to contract through inducing breach?
Held. Yes. The court held that even though a contract was terminable at will, a claim of
unjustifiable interference can still be made.
Discussion. The court in Alyeska deals with a relatively recent development in tort law,
a general protection against interference of contract. Analogous to where trespass and
negligence within the scope of tort law intersect with various aspects of property law, this
is an area of intersection between tort and contract. As the court explained, "even though
a contract is terminable at will, a claim of unjustifiable interference can still be made, for
the wrong for which the courts may give redress includes also the procurement of the
termination of a contract which otherwise would have been continued in effect." The
court, interestingly, points out, "One is privileged to invade the contractual interest of
himself, others, or the public, if the interest advanced by him is superior in social
importance to the interest invaded." There are limits, however, and the factual question of
the underlying motivation for such interference comes into play: "However," the court
cautions, "if one does not act in a good faith attempt to protect his own interest, or that of
another but, rather, is motivated by a desire to injure the contract party, he forfeits the
immunity afforded by the privilege." Thus, the court states, "A party to a contract has a
307
Alyeska Pipeline Service Co. v. Aurora Air Services
cause of action against a third party who has intentionally procured the breach of that
contract by the other party without justification or privilege."
308
Caruso v. Local Union No. 690 of International Brotherhood of Teamsters
Caruso v. Local Union No. 690 of International Brotherhood of
Teamsters
Citation. 100 Wash.2d 343.
Brief Fact Summary. A Washington appeals court affirmed a trial court's judgment,
upon a jury verdict, rendered in favor of the Appellee employer, Caruso (Appellee), in its
suit against the union for interference with business relations and defamation arising from
the union's publication of an article that urged its members and others not patronize the
Appellee's business. The Appellant, Local Union No. 690 of International Brotherhood of
Teamsters (Appellant) challenged a decision
Synopsis of Rule of Law.
Damage to the business of persons subject to a primary boycott, lawfully conducted, is
one of the inconveniences for which the law does not afford a remedy.
In order to recover under a cause of action for defamation, plaintiff must establish four
essential elements: (1) falsity; (2) an unprivileged communication; (3) fault, and (4)
damages.
Facts. The Appellee, owner of a carpeting business, owned a parking lot not far from his
Spokane store. He leased parking spaces to local motorists. Periodically, commercial
vehicles would block access to the lot and on one such occasion the Appellee went to the
lot in an attempt to negotiate the removal of one such vehicle. The vehicle, a beer truck,
belonged to a member of the Appellant Union. Caruso, noticing the keys were in the
truck, moved the vehicle himself. The vehicle was subsequently towed and the truck
owner and the Appellee got into a heated dispute. Shortly thereafter, the union published
a piece in its newsletter urging its membership to boycott the Appellee's business. The
Appellee began to receive harassing telephone calls and under economic pressure
precipitated by the boycott eventually relocated his business. The Appellee brought an
action against the union for interference with business relations and a jury rendered
judgment in his favor. The appellate court affirmed.
Issue. In its publication of a piece in its newsletter urging its members to boycott a local
business, did the Appellant union tortiously interfere with a local business?
Held. No. The court held that the published articles were privileged as to the business
interference claim, reversed the decision of the Court of Appeals and the judgment, and
dismissed the business interference claim.
Discussion. In its reversal of the lower court's decision, the court in Caruso analogized
the manner in which the Appellant union boycotted the Appellee's business to similar
actions taken in the push for civil rights, i.e., the use of economic pressure to achieve
other ends and the use of speech to effect such pressure. The court explained, "Though
perhaps coercive, the petitioner's activity was speech in its purest form and thus is
309
Caruso v. Local Union No. 690 of International Brotherhood of Teamsters
entitled to at least the same degree of protections the NAACP's 'speech plus' conduct'
activities were afforded against imposition of damages for business interference." Citing
to an earlier decision, the court characterized the Union's newsletter as "plainly intended
to influence respondent's conduct by its activities," which, the court noted, were "not
fundamentally different than the function of a newspaper." The court then quoted the
prior, analogous decision, pointing out that certain views and practices may be offensive,
however, "So long as the means are peaceful, the communication need not meet standards
of acceptability." Hence, the content of speech is seldom at issue, and the means of
disseminating it are granted wide latitude. The court stated succinctly, "Damage to the
business of persons subject to a primary boycott, lawfully conducted, is one of the
inconveniences for which the law does not afford a remedy."
With regard to the defamation claim, the court ruled that the trial court did not abuse its
discretion by granting the employer leave to amend to add the defamation claim and that
the union was not prejudiced by the amendment. The court drew the distinction between
public and private figures and the standards to be applied respectively: "The necessary
degree of fault depends on whether plaintiff is a private individual or a public figure or
public official. If plaintiff is a private individual, a negligence standard of fault applies.
Otherwise, plaintiff must prove actual malice - that is, knowledge of falsity or reckless
disregard of the truth or falsity - to recover." The court thus remanded for a new trial on
the defamation claim.
310
Qualitex Co. v. Jacobson Products Co., Inc.
Qualitex Co. v. Jacobson Products Co., Inc.
Citation. 514 U.S. 159 (1995)
Brief Fact Summary. Plaintiff, Qualitex, manufactures green-gold dry cleaning press
pads. Plaintiff trademarked the color of the pads and brought a trademark infringement
suit against Defendant, Jacobson Products, for manufacturing green-gold press pads.
Synopsis of Rule of Law. A trademark, consisting solely of a color, is eligible for
trademark registration providing all other requirements for a trademark are met.
Facts. Plaintiff has made green-gold dry cleaning press pads since the 1950’s. Defendant
began manufacturing press pads in the same color. Plaintiff applied for, and received, a
trademark for the color of green-gold for press pads. The color of the pads serves no
functional purpose for the pads.
Issue. The issue is whether Plaintiff can trademark the color of its product.
Held. The United States Supreme Court held that a color that meets all the requirements
for a trademark registration is therefore eligible for trademark registration. In this case,
the color acts as a symbol and it has developed a secondary meaning of identifying the
source of the pads. Any color could be used as the green-gold serves no useful function
other than to identify the source.
Discussion. The spirit of the Trademark Act of 1946 (the “Lanham Act”) is to allow a
company to claim a proprietary interest in anything that meets the trademark
requirements outlined in the act.
311
Sears, Roebuck & Co. v. Stiffel Co.
Sears, Roebuck & Co. v. Stiffel Co.
Citation. 376 U.S. 225.
Brief Fact Summary. The United States Court of Appeals for the Seventh Circuit
affirmed an order enjoining the Petitioner, Sears, Roebuck & Co. (Petitioner) from selling
lamps similar to those designed by the Respondent manufacturer, Stiffel Co.
(Respondent). The retailer was also ordered to pay damages for its violation of the state's
unfair competition law and the Supreme Court of the United States (Supreme Court)
granted certiorari.
Synopsis of Rule of Law. A State may not, consistently with the Supremacy Clause of
the United States Constitution (Constitution), extend the life of a patent beyond its
expiration date or give a patent on an article that lacked the level of invention required for
federal patents.
Facts. The Respondent secured design patents on a "pole lamp", a vertical tube with
light fixtures attached, that runs from floor to ceiling. The lamp enjoyed strong
commercial success, and shortly after its manufacture the Petitioner retailer began
marketing a lamp of almost identical design. Given its size and national retail operation,
the Petitioner was able to sell the item at a significantly lower price than the Respondent.
The latter brought an action against the Petitioner alleging patent infringement and
confusion of trade. Although the lamps were not patented under federal law, the district
court enjoined the Petitioner from selling the lamps and ordered it to pay damages to the
Respondent.
Issue. May a state's unfair competition law, consistently with federal patent laws, impose
liability for or prohibit the copying of an article that is protected by neither a federal
patent nor a copyright?
Held. No. Reversing the appellate court, the Supreme Court held that because federal
law was supreme with regard to copyrights and patents, the states were precluded from
providing more protection to unpatented articles.
Discussion. The court in Sears held that a manufacturer could not use a state unfair
competition law to obtain an injunction against copying its product or an award of
damages for such copying, as such use of state law conflicts with the exclusive power of
the Federal Government to grant patents only to true inventions and then only for a
limited time. The Supreme Court noted that an unpatented article, being in the public
domain, might be freely copied, though state law may require labeling or other
precautions where appropriate to prevent deception as to source.
Justice Hugo Black (J. Black) writing for the Supreme Court, began by asserting federal
authority and cited Congress Article I powers which grant the Legislature full authority to
"promote the Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
312
Sears, Roebuck & Co. v. Stiffel Co.
Such Congressional power supersedes most state law: "When state law touches upon the
area of these federal statutes, it is 'familiar doctrine' that the federal policy may not be set
at naught, or its benefits denied by the state law. This is true, of course, even if the state
law is enacted in the exercise of otherwise undoubted state power." J. Black proceeds
then to explain the function and policy behind patent law. "Patent rights exist only by
virtue of statute. The patent system is one in which uniform federal standards are
carefully used to promote invention while at the same time preserving free competition."
This raises the issue of where state authority fits into the equation. J. Black notes,
"Obviously a State could not, consistently with the Supremacy Clause of the
Constitution, extend the life of a patent beyond its expiration date or give a patent on an
article which lacked the level of invention required for federal patents. To do either
would run counter to the policy of Congress of granting patents only to true inventions,
and then only for a limited time." Central to the controversy is the Respondent's failure to
secure a patent: "An unpatentable article, like an article on which the patent has expired,
is in the public domain and may be made and sold by whoever chooses to do so. Sharing
in the goodwill of an article unprotected by patent or trade-mark is the exercise of a right
possessed by all, and in the free exercise of which the consuming public is deeply
interested." State intervention would act as a barrier to rights of the commonwealth: "To
allow a State by use of its law of unfair competition to prevent the copying of an article
which represents too slight an advance to be patented would be to permit the State to
block off from the public something which federal law has said belongs to the public."
With regard to the confusion of trade issue, J. Black states, "Mere inability of the public
to tell two identical articles apart is not enough to support an injunction against copying
or an award of damages for copying that which the federal patent laws permit to be
copied." There are, however, alternative remedies: "Doubtless a State may, in appropriate
circumstances, require that goods, whether patented or unpatented, be labeled or that
other precautionary steps be taken to prevent customers from being misled as to the
source, just as it may protect businesses in the use of their trademarks, labels, or
distinctive dress in the packaging of goods so as to prevent others, by imitating such
markings, from misleading purchasers as to the source of the goods." For the above
reasons, the court reversed the injunction and judgment against the retailer Petitioner.
313
CHAPTER XXXIV.
Misrepresentation And Other Misdealings
314
Ultramares Corp. v. Touche, Niven & Co.
Ultramares Corp. v. Touche, Niven & Co.
Citation. 255 N.Y. 170.
Brief Fact Summary. The Appellate Division of the Supreme Court in the First Judicial
Department (New York) modified and affirmed judgment in favor of the Defendants,
George A. Touche and Touche, Niven & Co (Defendants), setting aside the Plaintiff,
Ultramare Corp's (Plaintiff) verdict and dismissing the complaint in the Plaintiff's action
for negligent and fraudulent misrepresentations respecting an audit.
Synopsis of Rule of Law. Accountants owe to their employer a duty imposed by law to
make their certificate of audit without fraud and a duty growing out of contract to make it
with the care and caution proper to their calling.
Facts. The Defendants, public accountants, had been employed by a third-party to
prepare and certify a balance sheet exhibiting that party's financial health. The
Defendants certified capital and surplus to be in excess of $1 million. The business,
however, was actually close to insolvency. Relying on the Defendant's independent
assessment of the third-party's finances, the Plaintiff extended several loans and when the
third-party's business collapsed the Plaintiff was unable to secure repayment. The
Plaintiff sued, alleging damages arising from the Defendants' misrepresentations,
negligence and fraud. The Defendants were aware third-party would use its certificate of
audit to obtain credit for the operation of its business and in other financial dealings.
Following judgment, the parties cross-appealed the appellate court's dismissal of the
Plaintiff's complaint.
Issue. Do accountants owe a duty to submit audits in a thorough, accurate manner and in
failing to do so face liability for fraud?
Held. Yes. The court concluded that the Defendants made a statement as true to their
own knowledge when they had no knowledge on the subject and thus were liable.
Discussion. Writing for the New York Court of Appeals, Judge Cardozo examined the
quality and degree of duty owed by accountants when certifying the financial health of
business the records of which will be proffered to potential lenders.
As a threshold issue, Cardozo points out, "Accountants owe to their employer a duty
imposed by law to make their certificate of audit without fraud, and a duty growing out of
contract to make it with the care and caution proper to their calling." He clarified further,
"Fraud includes the pretense of knowledge when knowledge there is none." Certitude
with respect to auditing is critical, in that, as Cardozo explained, "To creditors and
investors to whom the employer exhibits a certificate of audit, accountants owe a duty to
make the certificate of audit without fraud, when there is notice in the circumstances of
its making that the employer did not intend to keep the certificate of audit to himself." In
other words, investors and other figures place great reliance on the veracity of accounting
firms' analyses. Cardozo underscores the seriousness with which courts will regard such
315
Ultramares Corp. v. Touche, Niven & Co.
expectations of fiscal probity: "If liability for negligence exists, a thoughtless slip or
blunder, the failure to detect a theft or forgery beneath the cover of deceptive entries, may
expose accountants to a liability in an indeterminate amount for an indeterminate time to
an indeterminate class. The hazards of a business conducted on these terms are so
extreme as to enkindle doubt whether a flaw may not exist in the implication of a duty
that exposes to these consequences." The final responsibility, Cardozo asserts, will rest
with the preparers of financial reports: "If the certificate of audit involves a representation
of a fact as true to the knowledge of the auditors, and such a statement is made, whether
believed to be true or not, the auditors are liable for deceit in the event that it is false."
Liability may attach both with regard to certified documents and professional
assessments. "Even an opinion, especially an opinion by an expert, may be found to be
fraudulent if the grounds supporting it are so flimsy as to lead to the conclusion that there
was no genuine belief back of it." Further, Cardozo notes, "A representation even though
knowingly false does not constitute ground for an action of deceit unless made with the
intent to be communicated to the persons or class of persons who act upon it to their
prejudice." Specifically in regard to the case at hand, Cardozo observes, "Public
accountants are public only in the sense that their services are offered to any one who
chooses to employ them. This is far from saying that those who do not employ them are
in the same position as those who do." Even mistaken belief may not shield one from
liability: "Where accountants certify as a fact, true to their own knowledge, that the
balance sheet is in accordance with the books of account, if their statement is false, they
are not to be exonerated because they believed it to be true." In essence, Cardozo states,
the bottom line is the thoroughness and accuracy of the work in question: "How far books
of account fair upon their face are to be probed by accountants in an effort to ascertain
whether the transactions back of them are in accordance with the entries, involves to
some extent the exercise of judgment and discretion. Not so, however, the inquiry
whether the entries certified as there, are there in very truth, there in the form and in the
places where men of business training would expect them to be." Finally, the fiduciary
duty owed by accounting firms cuts two ways, both to their clients and the general public:
"Public accountants are public only in the sense that their services are offered to any one
who chooses to employ them. This is far from saying that those who do not employ them
are in the same position as those who do."
316
Gauerke v. Rozga
Gauerke v. Rozga
Citation. 112 Wis. 2d 271, 332 N.W.2d 804.
Brief Fact Summary. The Court of Appeals (Wisconsin) found the Appellants,
Kenwood Gauerke and Elisabeth Gauerke (the Gauerkes), realty companies, a real estate
agent, and an insurer (Appellants), liable on a theory of strict responsibility for the
misrepresentations of the Appellant real estate agent regarding the acreage and the
amount of road and river frontage of resort property purchased by the Respondent
purchasers, Robert W. Rozga and Ann C. Rozga (Respondents). The Appellants
challenged the decision.
Synopsis of Rule of Law. A cause of action for misrepresentation can be based on
intent, negligence, or strict responsibility. The bases of responsibility in these three
classifications of torts have at least three elements in common: (1) The representation
must be of a fact and made by the defendant; (2) the representation of fact must be untrue
and (3) the plaintiff must believe such representation to be true and rely thereon to his
damage.
Facts. Through a local realtor, the Gauerkes purchased a hotel property owned by the
Respondents and listed for sale by a second realtor. It was later discovered that the
acreage was less than they had been told. The Respondents brought an action against the
Appellants arguing strict responsibility for the misrepresentations regarding the acreage.
One realtor settled and a jury found in the Gauerkes' favor and awarded damages, having
found the other realtor liable on the theory of strict responsibility. That realtor appealed,
contending that strict responsibility did not apply.
Issue. Should the theory of strict responsibility have applied in the case and an
instruction to that effect been submitted to the jury?
Held. Yes. The court affirmed the finding in favor of the Respondents against the realty
Appellants in the Respondents' action for misrepresentation.
Discussion. The tort of fraudulent misrepresentation or deceit provides for recovery for
pure economic loss, unassociated with other injury. While the Wisconsin court applies a
three-point scheme, most jurisdictions apply the formula outlined in the Restatement,
which consists of five elements: (1) a material misrepresentation; (2) the defendant acted
with the requisite scienter: she knew the statement was false or made it with reckless
disregard as to its truth or falsity; (3) the defendant intended to induce reliance; (4) the
misrepresentation caused plaintiff's justifiable reliance; (5) pecuniary damages resulted to
the plaintiff. The formula applied in Gauerke is, in any event, an abbreviated version of
the former. As the court further explained (and as noted above), "A cause of action for
misrepresentation can be based on intent, negligence, or strict responsibility. The bases of
responsibility in these three classifications of torts have at least three elements in
common: (1) The representation must be of a fact and made by the defendant; (2) the
317
Gauerke v. Rozga
representation of fact must be untrue; and (3) the plaintiff must believe such
representation to be true and rely thereon to his damage."
With regard to deceit, knowledge on the part of the defendant is the central consideration:
"In intentional deceit the defendant must either know the representation is untrue or the
representation was made recklessly without caring whether it was true or false and with
intent to deceive and induce the plaintiff to act upon it to the plaintiff's pecuniary
damage." For a defendant to be held strictly responsible, the court explained, "the
misrepresentation must be made on the defendant's personal knowledge or under
circumstances in which he necessarily ought to have known the truth or untruth of the
statement and the defendant must have an economic interest in the transaction." Further,
the court noted, "Intent to deceive and good-faith belief in the truth of the representation
are immaterial. In this classification the speaker is supposed to possess complete
knowledge of the facts or could normally be expected to know them without
investigation. A person is therefore justified in expecting infallibility as to the
representations of fact." Finally, the court articulates the heightened standard to which
actors in commercial transactions are to be held: "Assertions of fact as to the quantity or
quality of land or goods sold, the financial status of corporations, and similar matters
including commercial transactions, may justifiably be relied on without investigation, not
only where such investigation would be burdensome or difficult, as where land which is
sold lies at a distance, but likewise where the falsity of the representation might be
discovered with little effort by means easily at hand."
318
Pinnacle Peak Developers v. TRW Investment Corp.
Pinnacle Peak Developers v. TRW Investment Corp.
Citation. 129 Ariz. 385, 631 P.2d 540.
Brief Fact Summary. An Arizona trial court granted partial summary judgment to the
property owners by quieting title to the property and awarding attorney fees. The
developer appealed.
Synopsis of Rule of Law. The parol evidence rule renders inadmissible any evidence of
prior or contemporaneous oral understandings and of prior written understandings, which
would contradict, vary or add to a written contract, which was intended as the final and
complete statement or integration of the parties' agreement.
Facts. TRW purchased 40 acres of property from Pinnacle Peak for residential housing.
Their agreement required TRW to make improvements, including the building of roads
and utility installation, by a certain date. TRW had an option to purchase additional
acreage contingent on the completion of the above-mentioned improvements. The
deadline for the option arrived, the improvements having been completed, and Pinnacle
considered the option expired. TRW claimed that Pinnacle had fraudulently induced to
forego the improvements, and thus the option period was still open. TRW alleged that it
was induced to enter into the purchase and option agreement, relying on Pinnacle Peak's
promise that the non-completion of improvements in question would not be an
impediment in the exercising of the option if significant progress towards completion had
been made. Thus, they argued, Pinnacle had falsely represented their position. The trial
court granted partial summary judgment to Pinnacle.
Issue. Did the parol evidence rule apply, thus barring the admission of alleged oral
representations that were made prior to the execution of the option contract?
Held. Yes. The court held that the parol evidence rule did indeed apply
Discussion. In Pinnacle, Judge (later Justice) Sandra Day O'Connor, writing for the
Arizona Court of Appeals, addresses what she termed "the confusion which exists in the
judicial opinions in this state and elsewhere on the question of application of the parol
evidence rule to allegations of promissory fraud when it contradicts or varies the terms of
the written agreement of the parties."
After a cursory review of the requirements for the granting of summary judgment, i.e.,
that the latter should be granted only where the pleadings, depositions, admissions on file,
and affidavits, if any, show that there is no genuine issue as to any material fact,
O'Connor begins with a simple working definition of misrepresentation: "A promise,
when made with a present intention not to perform it, is a misrepresentation which can
give rise to an action of fraud." It follows, then, that "Representations which give rise to
an action of fraud must, of course, be of matters of fact which exist in the present, and not
merely an agreement or promise to do something in the future, or an expression of
opinion or judgment as to something which has happened or is expected to happen."
319
Pinnacle Peak Developers v. TRW Investment Corp.
O'Connor then provides an overview of the application of the parol evidence rule:
The parol evidence rule renders inadmissible any evidence of prior or contemporaneous
oral understandings and of prior written understandings, which would contradict, vary or
add to a written contract, which was intended as the final and complete statement or
integration of the parties' agreement. There are three situations in which it is said that the
above rule does not apply and parol evidence is admissible: (1) to show that no contract
was in fact made or that the contract is voidable for fraud, mistake, duress, undue
influence, incapacity, or illegality; (2) to demonstrate that the parties intended the writing
to be only a partial integration of their agreement, thereby permitting the existence of
non-contradictory collateral agreements to be proved; and (3) to assist in the
interpretation of the contract, or to prove the usages and customs in relation to which the
parties contracted, thus allowing the addition of consistent terms of performance or the
definition of words used in the contract.
She notes that the rule was designed to prevent fraudulent claims by excluding certain
types of evidence that are easy to fabricate. However, O'Connor states, "The application
of the parol evidence rule moves along a continuum based on the extent of the
contradiction and the relative strength and sophistication of the parties and their
negotiations." Further, she adds, "There are circumstances under which evidence of a
prior or contemporaneous contradictory oral representation or promise would be
admissible notwithstanding the subsequent integrated written agreement of the parties."
In this instance, she observes, that in the present instance, "the parties each had
experience in business transactions and that the written option agreement was prepared as
the result of negotiations between the parties, who were represented by counsel. It
involved a relatively substantial and sophisticated real estate transaction. The written
option agreement was a 'formal contract.' The contradiction of the written agreement and
the oral representation is clear." Thus, as the terms of the contract were clear and
unambiguous and all parties had experience in business transactions, evidence of the
prior oral statements was properly denied.
320
Ollerman v. O'Rourke Co.
Ollerman v. O'Rourke Co.
Citation. 94 Wis. 2d 17, 288 N.W.2d 95,.
Brief Fact Summary. The Circuit Court for Milwaukee County (Wisconsin) overruled
the Appellant, O'Rourke Co's (Appellant), motion to dismiss the Appellee, Ollerman's
(Appellee) amended complaint for failing to state a claim upon which relief could be
granted. The Appellant sought review.
Synopsis of Rule of Law. The bases of responsibility in the intent, negligence, and strict
responsibility classifications of torts have at least three elements in common: (1) The
representation must be of a fact and made by the defendant; (2) the representation of fact
must be untrue and (3) the plaintiff must believe such representation to be true and rely
thereon to his damage.
Facts. The Appellee purchased a lot from the Appellant and when excavating the
property in order to build a house, he discovered an uncovered, uncapped, underground
well from which water was released. Modifications in plans and building activity cost the
Appellee in excess of $13,000. The Appellee brought an action for misrepresentation
claiming the Appellant knew of the well's existence, but failed to disclose that fact. The
Appellant moved to dismiss and the court denied the motion.
Issue. Was the omission of a known fact where there is a duty to disclose tantamount to
material misrepresentation and thus actionable?
Held. Yes. The Wisconsin Supreme Court affirmed the lower court's ruling and held that
the Appellant's arguments, that the well was not an omitted material fact to sustain a
cause of action for intentional misrepresentation was a matter to be raised at trial, not in a
motion to dismiss. The court further held that the Appellee's complaint was sufficient to
state a cause of action for the tort of intentional misrepresentation.
Discussion. The tort of fraudulent misrepresentation or deceit provides for recovery for
pure economic loss. As the court in Ollerman defines it, "Misrepresentation is a generic
concept separable into the three familiar tort classifications: intent, negligence, and strict
responsibility." As noted above, the court outlined the elements thusly: "The bases of
responsibility in the intent, negligence, and strict responsibility classifications of torts
have at least three elements in common: (1) The representation must be of a fact and
made by the defendant; (2) the representation of fact must be untrue; and (3) the plaintiff
must believe such representation to be true and rely thereon to his damage." Knowledge
is a critical component in the liability equation: "In intentional deceit, the defendant must
either know the representation is untrue or the representation was made recklessly
without caring whether it was true or false and with intent to deceive and induce the
plaintiff to act upon it to the plaintiff's pecuniary damage." A high standard exists with
respect to a seller's knowledge and concomitant responsibility: "In strict responsibility,
the misrepresentation must be made on the defendant's personal knowledge or under
circumstances in which he necessarily ought to have known the truth or untruth of the
321
Ollerman v. O'Rourke Co.
statement and the defendant must have an economic interest in the transaction. Intent to
deceive and good-faith belief in the truth of the representation are immaterial. In this
classification the speaker is supposed to possess complete knowledge of the facts or
could normally be expected to know them without investigation." Thus, as the court
explained, "In negligent misrepresentation, the defendant need only fail to exercise
ordinary care in making a misrepresentation or in ascertaining the facts but like other
cases of negligence, it requires a duty of care or a voluntary assumption of a duty."
The specific issue in the instant case was one of omission, which the court addressed by
noting, "The general rule is that silence, a failure to disclose a fact, is not an intentional
misrepresentation unless the seller has a duty to disclose. If there is a duty to disclose a
fact, failure to disclose that fact is treated in the law as equivalent to a representation of
the nonexistence of the fact." Facts, specifically in their disclosure and materiality, are
integral in determining whether a duty exists within the business context: A person in a
business deal must be under a duty to disclose a material fact before he can be charged
with a failure to disclose. One who fails to disclose to another a thing which he knows
may justifiably induce the other to act or refrain from acting in a business transaction is
subject to the same liability to the other as though he had represented the nonexistence of
the matter which he has failed to disclose, if, but only if, he is under a duty to the other to
exercise reasonable care to disclose the matter in question." The standard of care is one of
simple reasonableness, as the court explained, "A party to a transaction is under a duty to
exercise reasonable care to disclose to the other facts basic to the transaction, if he knows
that the other is about to enter into it under a mistake as to them, and that the other,
because of the relationship between them, the customs of the trade, or other objective
circumstances, would reasonably expect a disclosure of those facts."
In addition to duty, materiality then becomes the key issue, as it will determine whether
there exists a duty to disclose a particular fact. The court draws the distinction, "A fact is
material if a reasonable purchaser would attach importance to its existence or
nonexistence in determining the choice of action in the transaction in question; or if the
vendor knows or has reason to know that the purchaser regards or is likely to regard the
matter as important in determining the choice of action, although a reasonable purchaser
would not so regard it. Whether the fact is or is not readily discernible will depend on the
nature of the fact, the relation of the vendor and purchaser and the nature of the
transaction." Here, the existence of the well and the additional capital expenditure
required to modify building plans that existence entailed would more than likely have
given the buyer reason to act otherwise. That fact was thus material and a duty to disclose
was incumbent on the seller, and the court found him liable.
322
Torts
Keyed to:
Epstein
Ninth Edition
Gray Publishing & Media, Inc.
Publishers
Copyright © 2008 By Gray Publishing & Media, Inc.
Ollerman v. O'Rourke Co.
CHAPTER I.
Intentionally Inflicted Harm: The Prima Facie
Case And Defenses
323
Vosburg v. Putney
Vosburg v. Putney
Citation. 50 N.W. 403 (Wis. 1891).
Brief Fact Summary. Putney (Defendant) slightly, but unlawfully, kicked Vosburg
(Plaintiff) during school. Defendant did not intent to do any harm to Plaintiff. Although
the kick was slight, Plaintiff lost the use of his limb because Defendant's kick revivified a
previous injury.
Synopsis of Rule of Law. In actions for assault and battery, Plaintiff must show either
that the intention was unlawful, or that Defendant is at fault. The wrongdoer is liable for
all injuries resulting directly from the wrongful act whether they could or could not have
been foreseen by him.
Facts. Plaintiff brought an action against Defendant to recover damages for assault and
battery. Both Plaintiff (14-years old) and Defendant (11-years old) are students. Plaintiff
and Defendant were sitting opposite each other across an aisle in school. Defendant
reached across the aisle and slightly kicked Plaintiff in the shin. At first Plaintiff did not
feel it. However, a few minutes later, Plaintiff felt a violent pain and cried out loudly. A
few days before this incident, Plaintiff had hurt the same spot on his leg. Plaintiff's) leg
was in the process of healing. The theory of at least one of the medical witnesses was that
Defendant's kick revivified the microbes, causing bone destruction. Medical testimony
agreed that Defendant's slight kick was the exciting cause of the injury to P. P lost the use
of his limb. The jury rendered a verdict for Plaintiff in the amount of $2,800. The case
was again tried in the circuit court, and the trial resulted in a verdict for Plaintiff in the
amount of $2,500. Defendant appealed from the judgment.
Issue. There are 2 separate issues in this case. The first issue deals with intent. The
second issue addresses damages.
!
Is the rule "the intention to do harm is of the essence of an assault" in
actions to recover for assault, applicable to actions to recover for assault
and battery?
!
Is the wrongdoer liable for all injuries resulting directly from the wrongful
act, whether they could or could not have been foreseen by him?
Held. No, in actions for assault and battery, Plaintiff must show either that the intention
was unlawful, or that Defendant is at fault. Yes, the wrongdoer is liable for all injuries
resulting directly from the wrongful act whether they could or could not have been
foreseen by him. Judgment reversed and case remanded for a new trial.
!
The rule, "the intention to do harm is of the essence of an assault" in
actions to recover for assault, does not apply to actions to recover for
assault and battery. The jury found that Defendant did not intend to do any
harm to Plaintiff. Thus, Defendant maintains Plaintiff has no cause of
324
Vosburg v. Putney
action. If this were an action to recover for assault instead of assault and
battery, the rule would apply and Plaintiff would have no cause of action.
In an action to recover damages for an alleged assault and battery, Plaintiff
must show either that the intention was unlawful, or that Defendant is at
fault. If the intended act is unlawful, the intention to commit it must
necessarily be unlawful. The kicking of Plaintiff by Defendant was an
unlawful act and thus the intention of Defendant to kick Plaintiff was also
unlawful. In this case, the act was unlawful since it took place during
class, rather than on the playground. Had the Defendant kicked Plaintiff
on the playground, the court would hesitate to hold the act of Defendant
unlawful, or that he could be held liable in this action. Under these facts,
Plaintiff can show that the intention was unlawful. The injury to Plaintiff
was inflicted in the classroom, after the teacher had called it to order.
Plaintiff has a cause of action for assault and battery.
!
The wrongdoer is liable for all injuries resulting directly from the
wrongful act, whether they could or could not have been foreseen by him.
The circuit court correctly refused to submit questions to the jury that
would limit damages recoverable by Plaintiff to only such damages as
Defendant might reasonably have contemplated. Defendant is liable for all
of Plaintiff's injuries caused by Defendant's slight kick.
Discussion. Because Defendant kicked Plaintiff in school when it was inappropriate, the
court held it was unlawful and that unlawfulness was enough to impose liability on
Defendant. A defendant takes a plaintiff as he finds him.
325
Dougherty v. Stepp
Dougherty v. Stepp
Citation. 18 N.C. 371 (1835).
Brief Fact Summary. Stepp (Defendant) entered onto Dougherty's (Plaintiff's) land to
claim a portion of it as his own. No actual physical damage was done to Plaintiff's land.
Synopsis of Rule of Law. Every unauthorized entry onto the land of another is a
trespass.
Facts. Plaintiff brought an action of trespass quarum clausum freigit against Defendant.
Trespass to real property was traditionally called trespass quarum clausum freigit.
Defendant entered Plaintiff's unenclosed land. Defendant entered with a surveyor and
chain carriers and surveyed the land and claimed a part of it. However, there was no
marking or cutting of bushes. The issue at trial was actual damage done to the land. The
trial court held that there cannot be a trespass without some damage done to the land. The
jury found for the Defendant. Plaintiff appealed.
Issue. Is Defendant liable for an unauthorized and unlawful entry onto Plaintiff's land
even if Defendant's entry causes no actual physical damage?
Held. Yes. Judgment reversed. New trial granted.
!
Any and every unauthorized, and therefore unlawful entry onto the land of
another is a trespass even if Defendant causes no physical damage to the
land. In an action for trespass, the law infers some damage even if there is
nothing more than treading down the grass, herbage, or shrubbery. The
fact that Defendant did not mark or cut any bushes only changes the
degree and not the nature of the injury. It is the entry itself that constitutes
the trespass.
Discussion. The requisite intent to maintain an action for trespass is merely the intent to
enter the land. An honest mistake or belief that the land belongs to the trespasser will not
relieve Defendant of liability. In this case, Defendant is strictly liable for the trespass
regardless of his intent or negligence. Defendant will compensate Plaintiff for the
trespass even if there is no physical damage to Plaintiff's land. In this case, Plaintiff can
possibly recover a small amount in money damages or obtain an injunction.
326
Intel Corp. v. Hamidi
Intel Corp. v. Hamidi
Citation. 71 P.3d 296 (Cal. 2003).
Brief Fact Summary. Intel Corp. (Plaintiff) brought suit against Hamidi (Defendant),
claiming that by communicating with Plaintiff's employees on Plaintiff's email system,
Defendant committed the tort of trespass to chattels.
Synopsis of Rule of Law. Under California law, the tort of trespass to chattels does not
encompass an electronic communication that neither damages the recipient computer
system nor impairs its functioning.
Facts. Plaintiff brought an action of trespass to chattels against Defendant. Plaintiff
maintains an electronic mail (e-mail) system. On this mail system, messages between
employees and those outside the company can be sent and received. Employers can make
reasonable non-business use of this system.
Defendant, a former employee, sent emails criticizing Plaintiff's employment practices to
numerous current employees on Plaintiff's e-mail system. Defendant did not breach any
computer security barriers. Defendant offered to remove recipients from his mailing list.
Defendant's e-mails caused neither physical damage nor functional disruption to the
company's computers. However, Defendant's emails caused discussion among employees
and managers. Plaintiff claimed that by communicating with its employees on its e-mail
system, Defendant committed the tort of trespass to chattels.
The trail court granted Plaintiff's motion for summary judgment. Defendant was enjoined
from any further mailings. The Court of Appeals affirmed. Defendant appealed.
Issue. May Plaintiff maintain an action for trespass to property if Defendant sends an
unauthorized electronic communication over Plaintiff's electronic mail system, which
neither damages the recipient computer system nor impairs its functioning?
Held. No. In this case, electronic communication does not constitute an actionable
trespass to personal property (the computer system) because it does not interfere with the
possessor's use or possession of, or any other legally protected interest in, the personal
property itself.
!
To be actionable under current California tort law, Defendant's
interference must have caused some injury to the chattel or to Plaintiff's
rights in it. The Restatement makes clear that some actual harm must have
occurred in order for a trespass to chattels to be actionable. Plaintiff
suggests that the requirement of actual harm does not apply here because it
sought only injunctive relief. To obtain injunctive relief, Plaintiff must
show that Defendant's wrongful acts threaten to cause irreparable injury.
In this case, the court stated that it would make little legal sense to issue an
injunction without a showing of likely irreparable injury in an action for
trespass to chattels, in which injury to the personal property or the
327
Intel Corp. v. Hamidi
possessor's interest in it is an element of the action. Plaintiff argued that its
interest in employee productivity is a comparable protected interest in its
computer system. The court disagreed. The distraction of reading an
unsolicited communication is not within the scope of the tort trespass to
chattels.
!
California common law should not be extended to cover, as a trespass to
chattels, an otherwise harmless e-mail whose contents are objectionable.
Writing on behalf of several industry groups appearing as amici curiae,
Professor Epstein suggested that a company's server should be its castle,
upon which any unauthorized intrusion, however harmless, is a trespass.
However, the court found computers to be personal property, not realty.
The court analogized an objectionable email on a computer to an
unwelcome message on a telephone or fax. The court refused to adopt
Professor Epstein's view.
!
The court declines to address the First Amendment claims that would arise
if Plaintiff had stated a claim for common law trespass. The court
analogized Defendant's e-mails to Plaintiff's employees to that of a
protester holding a sign or shouting through a bullhorn outside corporate
headquarters.
Dissent. (J. Brown) Plaintiff's objection is directed not toward Defendant's message but
toward his use of Plaintiff's property to display his message. Plaintiff deserves an
injunction even if its objections are based entirely on the e-mail's contents. Plaintiff is
entitled to allow its employees Internet access without incurring any simultaneous
obligation to allow access to pornographic websites.
!
(J. Mosk) The majority refused to distinguish the Internet from
unauthorized intermeddling on a private Intranet. Defendant is not
communicating in the equivalent of an unsolicited "junk" mailing through
the U.S. Postal Service. Defendant's actions, in crossing into Plaintiff's
Intranet, is more like intruding into a private mailroom, commandeering
the mail cart, and dropping of unwanted broadsides on 30,000 desks.
Concurrence. (J. Kennard) To establish the tort of trespass to chattels, Plaintiff must
show that Defendant's occasional emails to Plaintiff's employees damaged Plaintiff's
computer system or impaired its functioning in some significant way.
Discussion. In this case the court refused to hold that the objectionable e-mail messages
distributed to a company's employees constituted a trespass. An action for trespass to
chattels will not lie if there are is no damage to the chattels. Here, the e-mails were only a
momentary disturbance to the employees.
328
Mohr v. Williams
Mohr v. Williams
Citation. 104 N.W. 12 (Minn. 1905).
Brief Fact Summary. Mohr (Plaintiff) brought suit against Williams (Defendant), a
surgeon, for assault and battery after Defendant successfully and skillfully performed an
operation on Plaintiff's left ear that impaired Plaintiff's hearing.
Synopsis of Rule of Law. If an operation is performed without Plaintiff's consent, and
the circumstances were not such as to justify its performance without consent, then the
operation is wrongful and thus unlawful.
Facts. Plaintiff brought suit against Defendant for assault and battery. Defendant, an
excellent physician and ear specialist, examined Plaintiff's right and left ear. Defendant
informed Plaintiff of the result of his examination and advised her to have an operation
on her right ear. Plaintiff was not informed that her left ear was in any way diseased.
Plaintiff agreed to undergo surgery on her right ear.
While Plaintiff was unconscious, when Defendant found Plaintiff's left ear to be in a
more serious condition than her right ear. Defendant also found the right ear to be less
serious than expected. Defendant concluded that the right ear should not be operated
upon and that instead, Plaintiff's left ear should be operated upon. Plaintiff was
unconscious, was not informed, and did not consent to her left ear being operated upon.
The operation on Plaintiff's left ear was in every way successfully and skillfully
performed. However, Plaintiff claimed that Defendant's operation on her left ear greatly
impaired her hearing. Plaintiff brought suit against Defendant for assault and battery to
recover damages for the hearing impairment in her left ear.
The lower court trial resulted in a verdict for Plaintiff for $14,322.50. The trial judge set
aside the verdict as excessive and ordered a new trial. Both parties appealed.
Issue. Did Plaintiff impliedly consent to an operation on her left ear when she consented
to an operation on her right ear?
Held. No. Judgment affirmed.
!
An operation that is performed without the consent of the patient is
wrongful unless the circumstances were such as to justify its performance
without it. If the operation is wrongful it is unlawful. There is no evidence
that the left ear involved a serious or life threatening situation. The
circumstances were such that consent should have been obtained. Whether
or not consent was obtained is a question left to the jury. If the operation
was not consented to, then it was unlawful.
!
The amount of Plaintiff's recovery, if she is entitled to recover at all, must
depend upon the character and extent of the injury inflicted. The beneficial
329
Mohr v. Williams
nature of the operation and the good faith of Defendant should be taken
into consideration.
Discussion. Plaintiff's consent to an operation on one ear does not extend to an operation
on the other ear. In genuine emergencies, an implied consent may be found.
330
Canterbury v. Spence
Canterbury v. Spence
Citation. 464 F.2d 772 (D.C. Cir. 1972).
Brief Fact Summary. Plaintiff experienced back pain. Defendant told Plaintiff that he
needed surgery, but did not inform of the risks of the surgery. Plaintiff sued Defendant
for negligently withholding the risk of the surgery.
Synopsis of Rule of Law. A doctor has a duty to disclose all reasonable information
about a proposed treatment to his patients.
Facts. Plaintiff consulted Defendant, a doctor, after experiencing severe back pain.
Defendant had the Plaintiff undergo a myelogram, which revealed that the Plaintiff
suffered from a filling defect in the region of his fourth thoracic vertabra. Defendant told
Plaintiff that he needed to undergo a laminectomy to correct what he suspected was a
ruptured disc. Defendant did not tell Plaintiff the details of the proposed operation nor did
Plaintiff inquire about them. Defendant told Plaintiff's mom that the operation was a
serious one, but not any more serious than any other operation. Defendant performed the
operation and discovered Plaintiff's swollen spinal cord to be in very poor condition.
Defendant did what he could to relieve the pressure and left Plaintiff in bed to recuperate.
Plaintiff was recuperating, when he slipped off the side of the bed and suffered nearcomplete paralysis. There was no one there to assist him and no side rail to break his fall.
Defendant performed an emergency operation and Plaintiff's condition improved.
Plaintiff sued Defendant for negligence in the performance of the laminectomy and for
failure to inform him of the risk involved. Plaintiff introduced no evidence to show
medical and hospital practices customarily pursued in regard to the critical aspects of the
case. Defendant testified that even without trauma, paralysis can be anticipated
somewhere in the nature of one percent. Defendant felt that communication of the risk to
Plaintiff was not good medical practice because it might deter him from undergoing
needed surgery and might produce adverse physiological reactions, which could preclude
the success of the operation. The trial court held that Plaintiff failed to produce any
medical evidence indicating negligence. Plaintiff appealed.
Issue. Does Defendant have a duty to disclose the risk associated with surgery?
Held. Yes. Judgment reversed. Plaintiff's evidence was of such caliber as to require a
submission to the jury.
!
Defendant did not reveal the risk of paralysis from the laminectomy.
Every human being of sound mind has a right to determine what shall be
done with his own body. It is a physician's duty to warn of the dangers
lurking in the proposed treatment. There is also a duty to impart
information, which the Plaintiff has every right to expect. In this case,
Defendant had a duty to make adequate disclosure to Plaintiff.
331
Canterbury v. Spence
!
Defendant's noncompliance with the professional custom to reveal, like
any other departure from prevailing medical practice, may give rise to
liability to Plaintiff. However, Plaintiff's cause of action is not dependant
upon the existence and nonperformance of irrelevant, professional
tradition. The standard measuring performance of the duty to disclose by
doctors, as by others, is conduct, which is reasonable under the
circumstances.
!
It is unrealistic to expect doctors to discuss with their patients every risk of
proposed treatment, no matter how small or remote and generally
unnecessary from the patient's viewpoint. A risk is material when a
reasonable person, in what the doctors knows or should know to be the
patient's position, would be likely to attach significance to the risk or
cluster of risks in deciding whether or not to forgo the proposed therapy.
!
A doctor bears no responsibility for the discussion of hazards the patient
has already discovered.
!
When a genuine emergency arises, the impracticality of conferring with
the patient dispenses a need for it. Also, a doctor does not have to disclose
the risk of treatment if the disclosure would make the patient become ill or
emotionally distraught.
!
The privilege to withhold information does not include the paternalistic
notion that the doctor may remain silent simply because divulgence might
prompt the patient to forgo therapy the doctor feels the patient really
needs.
Discussion. In this case, the court was concerned with Defendant's attempt to sensor
from the Plaintiff the risk of surgery.
332
Hudson v. Craft
Hudson v. Craft
Citation. 204 P.2d 1 (Cal. 1949).
Brief Fact Summary. Hudson (Plaintiff) was injured in an unlicensed boxing match
conducted by Craft (Defendant). Defendant did not obtain a license and did not observe
the rules and regulations. Plaintiff consented to the boxing match.
Synopsis of Rule of Law. A boxing promoter is liable for the boxers' injuries in an
unlicensed boxing match, regardless of whether or not the boxers consented.
Facts. Plaintiff brought suit against Defendant for injuries sustained in an unlicensed
boxing match. Defendant was conducting a carnival where one of the concessions
consisted of boxing exhibitions. These boxing exhibitions were in violation of section
412 of the Penal Code and the Business and Professions Code (chap. 2 div. 8), because
prizes and prize money was given to boxing contestants and no license had been
obtained. Defendant offered Plaintiff $5 to engage in a boxing match. Plaintiff suffered
personal injuries as the result of being struck by his opponent. Plaintiff was 18 years old.
Plaintiff brought suit against Defendant to recover for the injuries he sustained. The lower
court ordered a judgment of dismissal, because of Plaintiff's failure to amend their
complaint, after a demurrer was sustained with leave to amend. Plaintiff appealed.
Issue. Is an unlicensed boxing promoter liable for the injuries of the boxers in the boxing
match regardless of the rights and consent of the boxers?
Held. Yes. Judgment reversed.
!
The majority view states that when consent is mutual, both parties can
recover from the other for battery. The minority view, taken from
Restatements of Torts, states that mutual consent prevents a touching from
being tortious. The court held that the facts of this case fall under the
exception to the rule in the Restatement.
!
Under the exception to the rule, when it is a crime to inflict an invasion
upon a class of persons and the policy of the law is to protect the interest
of such a class of persons from the inability to appreciate the
consequences of such an invasion, and is not solely to protect the interest
of the public, the assent of such a person to such an invasion is not a
consent thereto. In this case, Defendant's conduct constituted a crime.
Many boxing regulations were not followed. One of the chief goals of the
rules and regulations of boxing matches is to provide safeguards for the
protection of the boxers. In this case, Plaintiff, a boxer, is a member of the
class to be protected by the rules and regulations. Thus, under the
exception to the rule in the Restatement, Plaintiff's consent to the boxing
match does not relieve Defendant from liability.
333
Hudson v. Craft
Discussion. In this case Plaintiff's consent did not release Defendant from liability
because Defendant did not obtain a license and was in violation of the rules and
regulations pertaining to boxing matches. Defendant is liable for the injuries sustained by
Plaintiff as a matter of public policy. Public policy protects Plaintiff, a boxer, from the
inability to appreciate the consequences of a boxing match.
334
McGuire v. Almy
McGuire v. Almy
Citation. 8 N.E. 2d 760 (Mass. 1937).
Brief Fact Summary. Mcquire (Plaintiff), a registered nurse, was hired to care for Almy
(Defendant), an insane person. During a violent attack, Defendant stuck Plaintiff with the
leg of a low-boy (a piece of furniture). Plaintiff brought suit against Defendant for assault
and battery.
Synopsis of Rule of Law. An insane person is liable for his intentional torts.
Facts. Plaintiff was a registered nurse. Defendant was an insane person. Before Plaintiff
was hired to care for Defendant, she learned that Defendant had a mental disorder, but
was in good physical health. During the period of fourteen months, while Plaintiff cared
for Defendant, Defendant had a few odd spells when she showed hostility towards
Plaintiff. Defendant, while locked in her room, had a violent attack during which she
broke furniture and warned Plaintiff not to enter Defendant's room or she would be killed.
Plaintiff decided that it would be better to remove the broken items before Defendant did
any more harm to herself. Plaintiff approached Defendant, who was positioned with the
leg of a low-boy raised above her head, ready to strike. Plaintiff tried to grab Defendant's
hand and Defendant struck Plaintiff, causing injuries for which the action was brought.
The jury returned a verdict in favor of Plaintiff. Defendant appealed.
Issue. Is Defendant, an insane person, liable for assault and battery?
Held. Yes. Judgment for Plaintiff on the verdict.
!
Courts almost invariably hold an insane person liable for his torts. Where
an insane person by his act does intentional damage to the person or
property of another he is liable for that damage in the same circumstance
in which a normal person would be liable.
!
The law will not inquire further into an insane person's peculiar mental
condition with a view to excusing him if it should appear that delusion or
other consequence of his affliction has caused him to entertain that intent
or that a normal person would not have entertained it. In this case, the jury
could have found that Defendant was capable of entertaining, and that she
did entertain, an intent to strike and to injure Plaintiff and that Defendant
acted upon that intent.
Discussion. An insane person will be liable for his or her torts. Previous rulings
involving insanity have prevented liability for certain intentional torts such as defamation
and deceit largely because they require a malicious intent. In those cases, the law holds
that such intent must be shown.
335
Courvoisier v. Raymond
Courvoisier v. Raymond
Citation. 47 P. 284 (Colo. 1896).
Brief Fact Summary. Courvoisier (Defendant), a jewelry storeowner, shot Raymond
(Plaintiff), a police officer, because Defendant believed his life was in danger.
Synopsis of Rule of Law. Defendant shot Plaintiff during a riot. Defendant swears that
he thought Plaintiff, a police officer, to be a rioter who was approaching him in a
threatening attitude.
Facts. Defendant was asleep in the second story of a building. He occupied a portion of
the lower floor of this building as a jewelry store. Parties shaking or trying to open the
door of the jewelry store woke Defendant up. These parties insisted on being admitted
into the jewelry store. Upon Defendant's refusal, the parties broke some signs and entered
the building through another entrance. The parties knocked on the door where
Defendant's sister was sleeping. Defendant grabbed his gun and chased the parties out of
the building. In order to frighten the parties, Defendant fired a warning shot in the air.
The parties were not scared and threw bricks at Defendant. Defendant fired more warning
shots. The first warning shot attracted Plaintiff, a police officer. Plaintiff approached
Defendant, calling out to him that he was a police officer and to stop shooting. It was
dark but the street was well lighted. Defendant took aim of Plaintiff and fired, causing
injury to Plaintiff. Plaintiff claims that Defendant, knowing him to be a police officer,
recklessly fired the shot in question. Defendant claims that Plaintiff was approaching in a
threatening manner and the surrounding circumstances were such to cause a reasonable
man to believe that his life was in danger. The trial court held in favor of Plaintiff.
Defendant appealed.
Issue. During a riot, is one justified in shooting another in an act of self-defense if he
believes the other person to be one of the rioters?
Held. Yes. Judgment reversed.
!
The jury instruction "if plaintiff was not assaulting defendant, then your
verdict should be for plaintiff" was erroneous. It excluded from the jury a
full consideration of the justification claimed by the defendant. If the jury
believed that Defendant would have been justified in shooting one of the
rioters and that Defendant mistook Plaintiff for one of the rioters, then
Defendant would be entitled to a judgment in his favor, as long as, the
circumstances of the shooting were excusable leading up to and
surrounding the commission of the shooting. Defendant's justification did
not rest entirely upon the proof of assault by Plaintiff. A riot was in
progress. The Defendant claimed he was hit with stones and that he shot
Plaintiff thinking he was a rioter. The jury might have ruled in favor of
Defendant if the erroneous jury instruction was not submitted to the jury.
336
Courvoisier v. Raymond
Discussion. Self-defense is universally recognized as a justification for intentionally
inflicting harm. In this case, the jury instruction did not allow the jury to fully consider
Defendant's version of the shooting.
337
Bird v. Holbrook
Bird v. Holbrook
Citation. 130 eng. Rep. 911 (C.P. 1825).
Brief Fact Summary. Bird (Defendant) set a spring gun trap in his garden to protect his
property. The spring gun trap injured Holbrook (Plaintiff) innocent trespasser.
Synopsis of Rule of Law. No man can do indirectly that which he is forbidden to do
directly.
Facts. Defendant occupied a walled garden in which Defendant grew valuable tulips.
Defendant's garden had been robbed of flowers and roots worth 20 pounds. To protect his
property, Defendant decided to set up a spring gun in the garden.
Issue. Is Defendant permitted to set a spring gun trap to protect his property?
Held. No. Judgment for Plaintiff.
!
One who sets spring gun trap for the purpose of catching an intruder
without posting a notice is liable for damages. In this case, Defendant
placed the spring gun trap for the purpose of doing injury. Defendant
decided not to give notice of the spring gun trap because if he did, he
would not catch the thief. Defendant intended the gun to be discharged
into the victim.
Concurrence. (J. Burrough) Notice of the spring gun trap should have been given. If the
Defendant wanted only to protect his property from thieves, then he would have set the
spring gun trap only at night. Plaintiff was only a trespasser. If Defendant were present he
would not even be allowed to take Plaintiff into custody. No man can do indirectly that
which he is forbidden to do directly.
Discussion. Defendant placed of a spring gun in his house to protect his property. If the
spring gun is tripped, it would not be able to distinguish between the innocent trespasser
or the intentional trespasser. Here, Defendant is held liable, and Plaintiff happens to be an
innocent trespasser. It is not clear how the court would have held had Plaintiff been an
actual burglar.
338
Kirby v. Foster
Kirby v. Foster
Citation. 22 A. 1111 (R.I. 1891).
Brief Fact Summary. Foster (Defendant) used force to retake money from Kirby
(Plaintiff). Plaintiff peacefully took money entrusted to him because he honestly believed
that the money was due to him.
Synopsis of Rule of Law. The right of recapture of chattels involves two things: first,
possession by the owner, and, second, a purely wrongful taking or conversion, without a
claim of right.
Facts. Plaintiff worked as a bookkeeper for Providence Warehouse Co. (Corporation), of
which Defendant was the agent. The Corporation lost fifty dollars. Plaintiff was held
responsible and fifty dollars was deducted from Plaintiff's pay. Defendant handed
Plaintiff some money to pay the employees. Plaintiff took from this money an amount
due to him, including the fifty dollars, and returned the balance to Defendant. Defendant
and his son grabbed Plaintiff in an attempt to retake the money. A struggle ensued and
Plaintiff was injured for which suit was brought. The jury returned a verdict in favor of
Plaintiff. Defendant appealed.
Issue. Were Defendants justified in the use of force upon Plaintiff to retake money from
him?
Held. No. Judgment for Plaintiff.
!
If one takes another's property for his possession without right and against
his will, the owner or person in charge may protect his possession, or
retake the property, by the use of necessary force. Defendants argue that
Plaintiff's conversion of the money to his own personal use was a
wrongful conversion amounting to embezzlement, which justified
Defendants' use of force.
!
The right of recapture involves two things: first, possession by the owner,
and, second, a purely wrongful taking or conversion, without a claim of
right. If one has entrusted his property to another, who afterwards,
honestly though erroneously, claims it as his own, the owner has no right
to retake it by force. Under the facts in the case, Defendants' proper
remedy would be to bring actions of replevin and trover.
!
The law does not permit parties to take the settlement of conflicting claims
into their own hands. Even if the remedy at law may seem to be
inadequate, the injured party cannot be the arbitrator of his own claim.
Public order and peace are of greater consequence than a private right or
an occasional hardship.
339
Kirby v. Foster
!
Defendants' right to recapture chattels is limited to the defense of his
personal possession against a mere wrongdoer. In this case, Plaintiff stated
what he had done and handed the balance back. The court did not agree
with Defendants' position that the conversion amounted to embezzlement,
which justified the use of force.
!
Defendants object to the court's ruling in this case because it would
prevent the recapture of property obtained by trickery or fraud. However,
there was no evidence that the money was procured by misrepresentation,
trickery or fraud.
Discussion. The self-help remedy of recapture of chattels is allowed when one person
wrongfully obtained the possession by either force or fraud, or without claim of right.
Any privilege of recapture must be exercised promptly (the hot pursuit requirement) or
else the privilege will be lost.
340
Ploof v. Putnam
Ploof v. Putnam
Citation. 71 A. 188 (Vt. 1908).
Brief Fact Summary. To escape a storm, Ploof (Plaintiff) tied his boat to Putnam's
(Defendant's) dock. Defendant untied Plaintiff's boat. Plaintiff and his family were
injured and the boat was destroyed.
Synopsis of Rule of Law. Necessity will justify entries upon land and interferences with
personal property that would otherwise have been trespass.
Facts. Defendant owned a dock. Defendant's servant was in charge of the dock when
Plaintiff and his family were sailing. A storm arose and Plaintiff was forced to tie his boat
to Defendant's dock. Defendant's servant untied Plaintiff's boat. Plaintiff and his family
were injured and the boat was destroyed. Plaintiff sued in trespass, claiming that it was
Defendant's servant's duty to allow Plaintiff to tie his boat to Defendant's dock. The trial
court ruled for Plaintiff. Defendant appealed.
Issue. Is Defendant permitted to untie Plaintiff's boat when Plaintiff tied his boat to
Defendant's dock out of necessity?
Held. No. Judgment affirmed and cause remanded.
!
Necessity will justify entries upon land and interferences with personal
property that would otherwise have been trespass. The court gave a few
illustrations to illustrate the doctrine of necessity:
!
A traveler on a highway, who finds it obstructed from a sudden and
temporary cause, may pass upon the adjoining land without becoming a
trespasser, because of necessity. Entry upon land to save goods, which are
in danger of being lost or destroyed, is not a trespass.
!
Necessity applies with special force to the preservation of human life. One
assaulted and in peril of his life may run through the land 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.
!
In this case, Plaintiff entered the land of Defendant in effort to escape the
storm and avoid injury. Defendant claims that Plaintiff could have tied his
boat to natural objects with equal safety. However, the facts show that
Plaintiff tied his boat to Defendant's dock to save the boat and the people
in it. The requirements of the claim for necessity are complete. Yet, the
rule of necessity cannot be held applicable irrespective of circumstances.
The question of circumstances and natural objects is left for adjudication.
Discussion. This case is a commonly cited example of private necessity. Plaintiff has the
privilege of private necessity. He tied his boat to Defendant's dock to avoid injury to
341
Ploof v. Putnam
himself, his family, and his property. Plaintiff is privileged to enter Defendant's land
under the doctrine of private necessity.
342
Vincent v. Lake Erie Transportation Co.
Vincent v. Lake Erie Transportation Co.
Citation. 124 N.W. 221 (Minn. 1910).
Brief Fact Summary. Lake Erie Transportation Co. (Defendant) tied and prudently held
its steamship to Vincent's (Plaintiff's) dock during a severe storm. In doing so, Defendant
preserved its steamship at the expense of Plaintiff's dock. Plaintiff seeks compensation
for the damage done to the dock and Defendant claims the privilege of private necessity.
Synopsis of Rule of Law. A party acting under private necessity is liable for damages
incurred to the property of others.
Facts. Defendant tied their steamship to a dock owned by Plaintiff. The steamship was at
the Plaintiff's dock to unload cargo. While the cargo was being unloaded, a storm started
to build. After the cargo had been unloaded, the storm became so violent that navigation
was practically suspended. Defendant signaled for a tug to tow the steamship from the
dock but no tug was available because of the storm. The Defendant's steamship remained
tied to Plaintiff's dock. If the steamship had been untied, it would have drifted to sea. The
storm threw the steamship into Plaintiff's dock causing damage to the dock. The jury
awarded Plaintiff $500 for the damage done to the dock. Defendant appealed.
Issue. Is Defendant, acting under the privilege of private necessity, liable for damages
incurred to Plaintiff's property?
Held. Yes. Order affirmed.
!
Because of the storm, it would have been highly imprudent for Defendant
to attempt to leave the dock or to have permitted his vessel to drift away
from it. The Plaintiff and Defendant used ordinary prudence and care in
holding the vessel fast to the dock.
!
Plaintiff argued that is was negligent for Defendant to tie the steamship to
an exposed part of the dock, and to leave it there after it became apparent
that the storm was severe. The court disagreed. The court held that the
location of the docking of the steamship to be a proper and safe place.
!
Defendant claimed that, because of the storm, it was necessary to keep the
steamship tied to Plaintiff's dock and Defendant cannot be held liable for
any injury resulting to the property of others. The court disagreed. If
Defendant's steamship had entered the harbor during the storm, become
disabled, and been thrown against Plaintiff's dock, then Plaintiff could not
recover. In this case, the steamship was deliberately held against the dock.
Defendant preserved its steamship at the expense of Plaintiff's dock. The
Defendant is responsible for the damage done to Plaintiff's dock.
343
Vincent v. Lake Erie Transportation Co.
!
This is not a case where life or property was menaced by any object or
thing belonging to Plaintiff, the destruction of which became necessary to
prevent the threatened disaster. Nor is it a case where, because of the act
of God, the infliction of the injury was beyond the control of Defendant.
In this case, Defendant prudently availed itself of Plaintiff's property for
the purpose of preserving its own more valuable property. Plaintiff is
entitled to compensation for the damage done to the dock.
Dissent. (J. Lewis) The majority opinion assumes that Defendant's steamship was
lawfully tied to Plaintiff's dock. If the steamship was lawfully tied to the dock at the time
of the storm, and Defendant could not, in the exercise of due care, have left the dock
without subjecting his vessel to the hazards of the storm, then the damage to the dock was
the result of an inevitable accident. If Plaintiff constructed a dock to a navigable line of
waters and entered into contractual relations with Defendant, then Plaintiff takes the risk
of damage to his dock by a boat caught there by a storm.
Discussion. This case represents a "conditional" or "incomplete" privilege. Here,
Defendant may use Plaintiff's dock because of the emergency situation, but he could only
do so when it is a necessity. Defendant must pay for the privilege with reasonable rental
value or compensation for lost or damaged property.
344
I. de S. and Wife v. W. de S.
I. de S. and Wife v. W. de S.
Citation. At the Assizes, coram Thorpe, C.J., 1348 [or 1349] Year Book, Liber
Assisarum, folio 99, placitum 60.
Brief Fact Summary. After Defendant struck the door of Plaintiff's tavern with a
hatchet, Plaintiff told Defendant to stop. Defendant saw Plaintiff and struck the door with
the hatchet again, but he did not hit Plaintiff. Plaintiff sued Defendant for assault.
Synopsis of Rule of Law. The tort of assault does not require physical contact.
Facts. I. de S. and Wife (Plaintiffs) owned a tavern. W. de S. (Defendant) went to
Plaintiffs' tavern to buy some wine, however the tavern door was closed. Defendant
struck the tavern door with a hatchet. Wife stuck her head out the window and told
Defendant to stop. Defendant saw Wife and again struck with the hatchet but did not
touch Wife. Plaintiffs sued Defendant for assault.
Issue. Does the tort of assault require physical contact?
Held. No. Judgment for Plaintiff.
!
Assault does not require physical contact. Even though Defendant did not
touch Plaintiff, Defendant is liable for assault. Plaintiff is entitled to
recover damages.
Discussion. Assault is the reasonable apprehension of imminent harmful or offensive
contact.
345
Tuberville v. Savage
Tuberville v. Savage
Citation. 86 Eng. Rep. 684 (K.B. 1669).
Brief Fact Summary. Plaintiff put his hand upon his sword and said to Defendant, "If it
were not assize-time, I would not take such language from you." Defendant sued Plaintiff
for assault.
Synopsis of Rule of Law. Threats of some future harm are insufficient to constitute the
tort of assault.
Facts. Plaintiff put his hand upon his sword and said to Defendant, "If it were not assizetime, I would not take such language from you." Defendant sued Plaintiff for assault.
Issue. Did Plaintiff assault Defendant?
Held. No. Judgment for Plaintiff.
!
The intention to assault coupled with the act makes an assault. For
example, if someone strikes the hand, arm, or breast of another while
talking to him or her, there is no assault because the actor did not intend to
assault. However, if someone intended to assault another and struck at but
missed him or her, it would constitute an assault. If someone held up his
hand against another in a threatening manner but said nothing, it would
constitute an assault. In this case, Plaintiff did not assault Defendant.
Discussion. Threats of some future harm are insufficient to constitute the tort of assault.
An assault is the act of putting another person in reasonable fear or apprehension of an
immediate battery by means of an act amounting to an attempt or threat to commit a
battery. In this case, Defendant put his hand on this sword. The act requirement of a
claim for assault has been satisfied. The reason why Defendant is not liable to Plaintiff
for assault in this case is because of the words spoken by Defendant to Plaintiff.
Defendant's statement did not reflect an immediate attack. His words implied an attack in
the future, it at all. Assault requires an immediate apprehension of a battery. In this case,
Defendant did not express a wish or intent to commit an immediate battery. Thus Plaintiff
may not maintain an action against Defendant for assault.
346
Alcorn v. Mitchell
Alcorn v. Mitchell
Citation. 63 Ill. 553 (1872).
Brief Fact Summary. Alcorn (Plaintiff) was awarded $1,000 in damages after Mitchell
(Defendant) spat in Plaintiff's face. Defendant appealed, claiming the damages were
excessive.
Synopsis of Rule of Law. It is customary to instruct juries that they may give vindictive
damages when there are circumstances of malice, willfulness, wantonness, outrage and
indignity attending the wrong.
Facts. There was a trial for an action of trespass between Plaintiff and Defendant. At the
close of the trial, the court adjourned. Immediately after the adjournment, in the presence
of a large number of persons, Defendant spat in Plaintiff's face. Plaintiff brought suit
against Defendant and was awarded $1,000. Defendant appealed, claiming the damages
were excessive.
Issue. Was the $1,000 in damages awarded to Plaintiff excessive?
Held. No. Judgment affirmed.
!
Under these facts, damages that punish the wrongdoer (punitive damages)
are appropriate. Punitive damages are intended for acts of the greatest
indignity, which are highly provocative of retaliation by force. The law
should afford substantial protection against such outrages by awarding
liberal damages to the victim. These liberal damages may deter victims
from resorting to personal violence as the only means of redress. In this
case, Plaintiff should not have to endure such a disgraceful indignity.
!
It is customary to instruct juries that they may give vindictive damages
when there are circumstances of malice, willfulness, wantonness, outrage
and indignity attending the wrong. Defendant's act was indicative of such
qualities. Defendant was a man of wealth and was not forced to pay too
dearly for the indulgence.
Discussion. Battery is the intentional harmful or offensive touching of another. Spitting
on someone is an offensive touching. Defendant intended to cause this offensive
touching. Therefore, Defendant is liable to Plaintiff for an offensive battery.
347
Bird v. Jones
Bird v. Jones
Citation. 115 Eng. Rep. 688 (K.B. 1845).
Brief Fact Summary. Jones (Defendant) prohibited Bird (Plaintiff) from moving in the
direction he wished to go. Plaintiff was free to remain where he was, or move in any
other direction but the one direction obstructed by Defendant. Plaintiff sued Defendant
for false imprisonment.
Synopsis of Rule of Law. A prison may have boundaries that are large or narrow,
visible or tangible, moveable or fixed, but it must have some boundary.
Facts. Plaintiff was on the highway and wanted to continue along it. Part of the public
highway was closed for spectators who paid to see a boat race. Defendant restricted
Plaintiff from passing onwards in the direction in which he declared he wished to go.
Plaintiff was allowed to remain unmolested where he was. Although obstructed from
continuing forward, Plaintiff was at liberty to move in any other direction. Plaintiff sued
Defendant for false imprisonment. The jury returned a verdict for Plaintiff. Defendant
appealed.
Issue. Is prohibiting a person from moving in one direction, when all other directions are
unobstructed, enough to constitute a boundary for the tort of false imprisonment?
Held. No. Defendant's request for a new trial was granted.
!
A prison may have boundaries that are large or narrow, visible or tangible,
moveable or fixed, but it must have some boundary. In this case,
Defendant only prohibits Plaintiff from moving in one set direction. In
order to maintain an action for false imprisonment, Plaintiff must be
confined to a boundary. In this case, Defendant caused Plaintiff to suffer a
loss of freedom. Imprisonment is something more than the loss of
freedom. Imprisonment includes the notion of restraint within some limits
defined by a will or power exterior to our own. In this case, Plaintiff was
not constrained to any determinable boundary.
Dissent. (Chief Justice Lord Denman) The dissent had no idea that a particular boundary
would to be necessary to constitute imprisonment. The liberty to do something else does
not appear to affect the question of imprisonment. As long as one is prevented from doing
what one have a right to do, of what importance is it that one permitted to do something
else?
Discussion. In order to have a claim for false imprisonment, the Plaintiff must have been
confined to some boundary, whether it be tangible or intangible. In this case, Plaintiff
was not restrained to a bounded area. Plaintiff still had the option to remain in one spot or
proceed in a different direction. Defendant only prevented Plaintiff from continuing in
one specific direction. Plaintiff may have suffered a loss of freedom, but this loss of
freedom did not constitute false imprisonment.
348
Coblyn v. Kennedy's Inc.
Coblyn v. Kennedy's Inc.
Citation. 268 N.E. 2d 860 (Mass. 1971).
Brief Fact Summary. After shopping in Kennedy's Inc.'s (Defendant's) store, Coblyn
(Plaintiff) was leaving when Defendant stopped him. Defendant thought Plaintiff was
attempting to steal an ascot. Plaintiff was hospitalized and sued Defendant for false
imprisonment.
Synopsis of Rule of Law. Any demonstration of physical power, which, to all
appearances, can be avoided only by submission, operates as a false imprisonment.
Defendant has a privilege to detain Plaintiff if done in a reasonable manner, for a
reasonable length of time, and Defendant had reasonable grounds for believing that
Plaintiff was attempting to commit larceny of goods held for sale.
Facts. Plaintiff, a 70-year-old man, was shopping in Defendant store. Plaintiff wore an
ascot he had previously purchased in another department store. While trying on a sports
coat, Plaintiff took off his ascot and put it in his pocket. Plaintiff purchased the sports
coat. As Plaintiff was leaving the store, he took his ascot out of his pocket and put it on
again. Goss, an employee of Defendant, "loomed up" in front of Plaintiff and demanded
that he stop and explain where he had gotten the ascot. Approximately eight to ten people
were watching as Plaintiff agreed to return with Goss to the store. On the way up the
stairs, Plaintiff experienced chest and back pains and had to stop several times. When
they reached the second floor, the salesman who had sold Plaintiff the sports coat told
Goss that the ascot was indeed Plaintiff's. Plaintiff was so upset by the incident that he
required the store nurse's attention. Plaintiff was subsequently hospitalized and treated for
myocardial infract. The jury awarded Plaintiff $12,500 for false imprisonment. Defendant
appealed.
Issue. There are two issues in this case. The first issue addresses Plaintiff's claim of false
imprisonment. The second issue addresses Defendant's privilege to imprison.
!
Does restraint of personal liberty, by fear of a personal difficulty, amount
to a false imprisonment?
!
If Plaintiff was falsely imprisoned, was the imprisonment privileged?
Held. Yes, Defendant falsely imprisoned Plaintiff. No, the imprisonment was not
privileged. Judgment for Plaintiff affirmed.
!
Any general restraint is sufficient to constitute an imprisonment. Any
demonstration of physical power, which, to all appearances, can be
avoided only by submission, operates as effectually to constitute an
imprisonment. In this case, Goss firmly grasped Plaintiff's arm and told
him that he had better go back to see the manager. There was another
employee standing next to Goss. Considering Plaintiff's age and heart
349
Coblyn v. Kennedy's Inc.
condition, it is hardly expected that Plaintiff could do anything but comply
with Goss's "request" that he go back and see the manager. If a man is
restrained of his personal liberty by fear of a personal difficulty, that
amounts to a false imprisonment.
!
The jury could have found that the restraint of duress, imposed by the
mode of investigation, constituted restraint even if there was no public
arrest made or physical restraint attempted. In this case, the honesty and
veracity of Plaintiff had been openly challenged. If Plaintiff left before
exonerating himself, the onlookers might have interpreted his departure as
an admission of guilt.
!
Defendant, a shopkeeper, has a privilege to detain Plaintiff if detained in a
reasonable manner, for a reasonable length of time, and if Defendant had
reasonable grounds for believing that Plaintiff was attempting to commit
larceny of goods held for sale. In this case, it is conceded that Plaintiff was
held for a reasonable length of time. However, Defendant's detention of
Plaintiff was not performed in a reasonable manner. There were no
reasonable grounds for believing that Plaintiff was committing larceny
and, therefore, he should not have been detained at all. Furthermore,
Goss's failure to identify himself as an employee of Defendant, coupled
with the physical restraint in a public place imposed upon Plaintiff, an
elderly man, who had exhibited no aggressive intention to depart, could be
said to constitute an unreasonable method by which to effect detention.
!
The 'reasonable grounds for believing that Plaintiff was attempting to
commit larceny' is an objective test. In this case, Defendant sought jury
instructions that reflected a subjective test. Defendant's subjective test for
reasonableness asked whether Goss had an honest and strong suspicion
that Plaintiff was committing or attempting to commit larceny.
Defendant's test would subject Plaintiff's right to liberty and freedom of
movement to the honest suspicion of Goss based on his own inarticulate
hunches without regard to any discernible facts. The result would be to
afford Defendant even greater authority than that given to a police officer.
Discussion. In this case, Plaintiff was imprisoned by a demonstration of physical power
that could only be avoided by submission. Plaintiff was falsely imprisoned and Defendant
was not privileged to detain Plaintiff. Defendant did not have any objective, reasonable
grounds for believing that Plaintiff committed larceny. The court added that even if there
were reasonable grounds to detain Plaintiff, the detainment was not executed in a
reasonable manner. In its analysis, the court pays special attention to Plaintiff's age and
physical condition.
350
Wilkinson v. Downton
Wilkinson v. Downton
Citation. [1897] 2 Q.B. 57.
Brief Fact Summary. As a practical joke, Defendant told Plaintiff that her husband was
injured in an accident and broke both of his legs. In hearing the news, Plaintiff
experienced a violent shock to her nervous system. The jury awarded Plaintiff £100 for
injuries caused by nervous shock.
Synopsis of Rule of Law. Outrageous conduct that causes physical harm or mental
distress to another gives rise to a cause of action.
Facts. As a practical joke, Defendant told Plaintiff that her husband was injured in an
accident and broke both of his legs. Defendant then told her to take a cab, bring two
pillows, and bring him home. All of this was false. In hearing the news, Plaintiff
experienced a violent shock to her nervous system, producing weeks of vomiting,
suffering, and other more serious and permanent physical consequences. The jury
awarded Plaintiff the cost of the cab and £100 for injuries caused by nervous shock.
Defendant appealed.
Issue. Does outrageous conduct that causes physical harm or mental distress to another
give rise to a cause of action?
Held. Yes. Judgment for Plaintiff affirmed.
!
In this case, Defendant has willfully done an act calculated to cause
physical harm to Plaintiff. Defendant infringed Plaintiff's legal right to
personal safety and has caused physical harm to her.
!
Defendant's act was plainly calculated to produce an ill effect on Plaintiff.
An ill effect was produced, and the intention to produce the ill effect ought
to be imputed to Defendant. The statement by Defendant, made with
apparent seriousness, would have grave effects upon everyone but the
exceptionally indifferent person.
!
The fact that more harm was done to Plaintiff than was anticipated is true
of all types of wrongs.
!
This case is without precedent
Discussion. This is the seminal case, which allowed for recovery under a separate tort,
the intentional infliction of mental distress. This court held that Defendant's statement
was outrageous and intentional. As a result, the court affirmed the jury award.
351
CHAPTER II.
Strict Liability And Negligence: Historic And
Analytic Foundations
352
The Thorns Case
The Thorns Case
Citation. Y.B. Mich. 6 Ed. 4, f. 7, pl. 18 (1466).
Brief Fact Summary. Defendant cut thorns from a hedge. These thorns landed on
Plaintiff's land and Defendant entered Plaintiff's land to retrieve them. Plaintiff brought
suit for trespass.
Synopsis of Rule of Law. If one does harm to the person or property of another, he is
liable for the damage he causes even if it is an unintentional, lawful act that has caused
the damage.
Facts. Defendant owns one acre of land that adjoins Plaintiff's five acres of land.
Defendant cut a thorn hedge located on his property. Against Defendant's will, the cut
thorns landed on Plaintiff's land. Defendant entered Plaintiff's land to take the cut thorns.
Plaintiff sued Defendant for trespass.
Issue. Is Defendant liable for trespass for the lawful cutting and unintentional dropping
of the thorns onto Plaintiff's land?
Held. Yes. Judgment for the Plaintiff. The Thorns Case is an old English case. There is a
debate among five lawyers followed by the opinions of two judges.
!
(C.J. Choke) When the principal thing is not lawful, then the thing, which
depends upon it, is not lawful. When Defendant cut the thorns and they
fell on Plaintiff's land, the falling was not lawful, so Defendant's coming
to take them away was not lawful. Defendant should have plead that he
could not do it in any other manner or that he did all that was in his power
to keep them out.
Dissent. Two lawyers write dissenting opinions. They believe Defendant should not be
liable to Plaintiff for trespass.
!
(Catesby) If Defendant does a lawful act and thereby damage comes to
Plaintiff against Defendant's will, Defendant shall not be punished.
Defendant's cutting was lawful and the falling on Plaintiff's land was
against Defendant's will, thus the retaking was good and lawful.
!
(Younge) Plaintiff has no tort and has no reason to recover damages.
When Defendant came onto Plaintiff's property to take the thorns which
had fallen onto it, this entry was not tortious, for when Defendant cut them
and they fell on Plaintiff's land, the property in them was Defendant's and
thus it was lawful for Defendant to take them of the land. In doing so, if
Plaintiff does not have damage, then Defendant has done no tort.
Concurrence. Concurring opinions are written by the remaining three lawyers and one
judge.
353
The Thorns Case
!
(Fairfax) There is a difference when a man does a thing from which felony
ensues and one from which a trespass ensues.
!
(Pigot) If a man had a fishpond in his manor and he empties the water out
of the pond to take the fishes and the water floods my land, I shall have a
good action; and yet the act was lawful.
!
(Brian) When any man does an act, he is bound to do it in such a manner
that by his act no prejudice or damage is done to others. The fact that the
act was lawful does not relieve Defendant of liability
!
(J. Littleton) If a man suffers damages, it is right that he be compensated.
In this case, it is proper for Defendant to make amend to what he has done.
Discussion. One who voluntarily does an act that results in damage to another's property
is responsible for the damage even if the act was lawful. Since Defendant's actions caused
Plaintiff's damages, he is liable in tort. The majority opinion adopts a rule of strict
liability.
354
Weaver v. Ward
Weaver v. Ward
Citation. 80 Eng. Rep. 284 (1616).
Brief Fact Summary. Ward (Defendant) and Weaver (Plaintiff), both soldiers, were
skirmishing with muskets when Defendant's musket accidentally fired, injuring Plaintiff.
Plaintiff brought an action of trespass of assault and battery against Defendant.
Synopsis of Rule of Law. An inevitable accident is a defense to trespass.
Facts. Plaintiff and Defendant were both soldiers. They were skirmishing with their
muskets when Defendant's musket accidentally discharged, injuring Plaintiff. Plaintiff
brought an action of trespass of assault and battery against Defendant. Judgment was
given for Plaintiff. Defendant appealed.
Issue. Is an inevitable accident enough to constitute a trespass?
Held. No.
!
Defendant claimed that Plaintiff ran into the musket when it was
discharging. It appeared to the Court that the discharge and injury to
Plaintiff had been inevitable. Defendant had committed no negligence to
give occasion to the hurt.
Discussion. The court does not define what is meant by an inevitable accident. Here,
Defendant did not act negligently, nor did he possess an intent to harm.
355
Scott v. Shepherd
Scott v. Shepherd
Citation. 96 Eng Rep. 525 (K.B. 1773).
Brief Fact Summary. Shepard (Defendant) threw a lighted squib into a crowded
marketplace. As a result, two other patrons threw the squib until it struck Scott (Plaintiff)
in the face, injuring him. Plaintiff sued Defendant for trespass and assault.
Synopsis of Rule of Law. Everyone who does an unlawful act is considered as the doer
of all that follows.
Facts. Defendant threw a lighted squib, made of gunpowder, from the street into the
marketplace where large groups of people were assembled. The lighted squib landed near
Yates. To prevent injury to himself and Yates, Willis threw the quid across the
marketplace. The squib landed next to Ryal. To save his own goods from being injured,
Ryal picked up the squib and threw it to another part of the marketplace. The squib then
struck Plaintiff in the face. The combustible matter of the lighted squib injured Plaintiff's
eyes. Plaintiff lost the use of his eye. Plaintiff sued Defendant for trespass and assault for
throwing, casting, and tossing the lighted squib. The jury returned a verdict in favor of
Plaintiff. Defendant appealed.
Issue. Did the injury received by Plaintiff arise from the force of the original act of
Defendant, or from a new force by a third person?
Held. Yes. Judgment for Plaintiff affirmed.
!
(C.J. DeGrey) The question here is whether the injury received by Plaintiff
arises from the force of the original act of Defendant, or from a new force
by a third person. Here, the injury is the direct and immediate act of the
Defendant. Throwing the squib was an unlawful act. Mischief was
originally intended - not any particular mischief, but mischief
indiscriminate and wanton. Defendant is the author of whatever mischief
thereafter that follows. All that was done subsequent to the original
throwing was a continuation of the first force and first act, which will
continue until the squib was spent by bursting.
!
Any innocent person removing the danger from himself to another is
justifiable. The blame falls upon Defendant, the first thrower. Willis and
Ryal were acting under a compulsive necessity for their own safety and
self-preservation. Their throwing of the squib was not a separate trespass,
but a continuation of Defendant's original trespass.
Dissent. (J. Blackstone) An action did not lie for Plaintiff against Defendant.
!
The lawfulness or unlawfulness of the original act is not the criterion. For
an action of trespass to lie, the injury must be immediate, not merely
consequential. The only determination should be whether the injury to
356
Scott v. Shepherd
Plaintiff was immediate or consequential. In this case, Defendant's tortious
act was complete when the squib landed near Yates. Yates can protect
himself from the squib, but should do so in a manner as not injury others.
Defendant is not liable for the new motion and new direction given to the
squib.
!
It is said that the act is not complete, nor the squib at rest, until after it is
spent or exploded. A stone that has been thrown against the window has
the ability of doing fresh mischief. If any person gives that stone a new
motion and does further mischief, trespass will not lie against the original
thrower. If a man tosses a football into the street and, after being kicked
about by one hundred people, it at last breaks a tradesman's window, the
man who gave it that mischievous direction is the only one liable.
!
In this case, trespass would lie against Ryal, the immediate actor. Ryal did
not use sufficient care in removing the danger from himself. Throwing the
squib, instead of brushing it down, was unnecessary and incautious.
Defendant is answerable in trespass for all the direct and inevitable effects
caused by his own immediate act - the throwing the squib at Yates.
Concurrence. (J. Nares) The natural and probable consequence of the act done by
Defendant was injury to somebody, and therefore the act was illegal at common law.
Being unlawful, Defendant was liable to answer for the consequences, be the injury
mediate or immediate.
Discussion. The decision in this case depends on how far the Court wants to extend
liability. Defendants are liable for direct injuries. A direct injury is an injury that is the
cause in fact of Plaintiff's damage and is not too far remote in the chain of causation.
Conversely, Defendants are not liable for consequential injuries. A consequential injury
is an injury that is the cause in fact of Plaintiff's damage but is not closely enough tied to
the damage in the chain of cause action. The difference between the two is arbitrary and
decided by the courts. Both direct injuries and consequential injures are injuries that did
in fact cause the damage complained of. The difference between the in the number of
steps required in the chain of events. A direct injury will be one that requires only a few
causal steps to go from the breach of the duty to the damage that resulted. A
consequential injury will be one that requires more casual steps.
357
Brown v. Kendall
Brown v. Kendall
Citation. 60 Mass. 292 (1850).
Brief Fact Summary. Defendant accidentally struck Plaintiff in an attempt to separate
fighting dogs. Plaintiff sued Defendant in an action of trespass for assault and battery.
Synopsis of Rule of Law. If the injury was unavoidable, and the conduct of Defendant
was free from blame, he will not be liable.
Facts. Two dogs, belonging to Plaintiff and Defendant, were fighting. Defendant took a
stick about four feet long and commenced beating the dogs in order to separate them.
Plaintiff was looking on. In their struggle, the dogs approached the place where Plaintiff
was standing. Defendant retreated backwards from the dogs, striking them as he
retreated. With his back towards Plaintiff, Defendant raised his stick over his shoulder
and accidentally hit Plaintiff in the eye, inflicting severe injury upon him. Plaintiff sued
Defendant in an action of trespass for assault and battery.
Issue. Is Defendant responsible for damage done by an unintentional act?
Held. No. Judgment for Defendant. New trial ordered.
!
Plaintiff must come prepared with evidence to show either that the
intention was unlawful, or that the Defendant was at fault. If the injury
was unavoidable, and the conduct of Defendant was free from blame, he
will not be liable.
!
If both Plaintiff and Defendant at the time of the blow were using ordinary
care, or if at the time, Defendant was using ordinary care, and Plaintiff
was not, or if at that time, both Plaintiff and Defendant were not using
ordinary care, then Plaintiff could not recover. Ordinary care will vary
with circumstances of the case. Generally, it means that kind and degree of
care, which prudent and cautious men would use.
!
The act of Defendant in attempting to part the fighting dogs was a lawful
and proper act. If it was the result of pure accident, or was involuntary and
unavoidable, the action would not lie. If Defendant was chargeable with
some negligence, and Plaintiff was contributorily negligent, Plaintiff
cannot recover without showing that the damage was caused wholly by the
act of Defendant.
!
Plaintiff bares the burden of proof. In this case, Plaintiff failed to carry his
burden.
Discussion. If the injury was unavoidable, and the conduct of Defendant was free from
blame, then Defendant will not be liable. Plaintiff bears the burden of showing that either
the intention was unlawful or that Defendant was at fault. This case also discusses the
358
Brown v. Kendall
concept of contributory negligence. If the court finds that Plaintiff was contributorily
negligent in causing his injury, he cannot recover. In other words, if Plaintiff's own
negligence contributed to his injury, he cannot recover under a negligence theory.
359
Fletcher v. Rylands
Fletcher v. Rylands
Citation. 159 Eng. Rep. 737 (Ex. 1865).
Brief Fact Summary. Water from Defendant's reservoir escaped onto Plaintiff's land
because of an unknown latent defect in Defendant's subsoil. Plaintiff sued Defendant for
trespass.
Synopsis of Rule of Law. This action is maintainable on the plain ground that
Defendant has caused water to flow into Plaintiff's land.
Facts. Flooding waters from a reservoir constructed on Defendant's land damaged
Plaintiff's property. The water from the reservoir would not have escaped from
Defendant's land and no mischief would have been done to Plaintiff, but for a latent
defect in Defendant's subsoil. Plaintiff sued Defendant for trespass. Opinions are taken
from the intermediate appellate court.
Issue. Is Defendant liable to Plaintiff in trespass for damage caused as a result of a defect
in Defendant's land if he was not aware of the defect?
Held. Yes. (B. Bramwell) Judgment for Plaintiff.
!
Plaintiff had a right to be free from water artificially brought or sent to
him directly, or indirectly. Defendant had no right to pour or send water
onto Plaintiff's land. It does not matter that Defendant did so unwittingly.
The knowledge or ignorance of the damage done is immaterial. The
burden of proof is not on Defendant.
!
This action is maintainable on the plain ground that the Defendant caused
water to flow onto Plaintiff's land. Knowledge and willfulness are not
necessary to make Defendant liable. No trespass, nuisance, or negligence
must be present.
Dissent. (B. Martin) Judgment should be in favor of Defendant.
!
To constitute trespass, the act doing the damage must be immediate. In
this case, the damage was consequential. Secondly, there was no nuisance
in the ordinary and generally understood meaning of that word. Making a
pond for holding water is a nuisance to no one. Digging a reservoir in
Defendant's own land is a lawful act.
!
When damage is done to personal property, there must be negligence on
the part of Defendant to render him legally responsible. If there is no
negligence then Plaintiff must bear the damage. There is no reason why
damage to real property should be governed by a different rule or principle
than damage done to personal property.
360
Fletcher v. Rylands
!
If Defendant directly and by his immediate act, cast water upon Plaintiff's
land, it would have been a trespass, but they did not do this. Rather, they
dug a reservoir and put water in it, which, by underground openings of
which they were ignorant, escaped onto Plaintiff's land. This is a very
different thing from a direct casting of water upon the land. To hold
Defendant liable without negligence would effectually make him an
insurer.
Discussion. In this case the court holds Defendant liable for the trespass on the theory of
strict liability. Both opinions state that Defendant is not liable on a theory of trespass,
nuisance, or negligence.
361
Fletcher v. Rylands
Fletcher v. Rylands
Citation. L.R. 1 Ex. 265 (1866).
Brief Fact Summary. Water from Defendant's reservoir escaped onto Plaintiff's land
because of an unknown latent defect in Defendants' subsoil. Plaintiff sued Defendant for
trespass.
Synopsis of Rule of Law. The person for whom his own purposes, brings on his lands
and collects and keeps there anything likely to do mischief if it escapes, must keep it at
his peril, and, if he does not do so, is prima facie answerable for all the damage which is
the natural consequence of its escape.
Facts. Plaintiff was damaged by his property being flooded by water, which, without any
fault, broke out of a reservoir constructed on Defendant's land. Water in the reservoir
would not have escaped from Defendant's land and no mischief would have been done to
Plaintiff, but for a latent defect in Defendant's subsoil. Plaintiff sued Defendant for
trespass.
Issue. Is Defendant liable to Plaintiff in trespass for damage caused as a result of a defect
in Defendant's land if they were not aware of the defect?
Held. Yes. Judgment for Plaintiff.
!
The person for who his own purpose brings on his land and collects and
keeps there anything likely to do mischief if it escapes, must keep it at his
peril, and, if he does not do so, is prima facie answerable for all the
damage which is the natural consequence of its escape.
!
The neighbor, who has brought something on his own property which was
not naturally there, harmless to others so long as it is confined to his
property, but which he knows to be mischievous if it gets on his
neighbors, should be obliged to make good the damage it ensues if he does
not succeed in confining it to his own property. In this case, Defendant is
required to compensate Plaintiff because he brought water, which was not
naturally there. Had the water not escaped, Defendant would not be liable.
Defendant must keep the water on his property at his peril, or he will be
answerable for the natural consequences of its escape.
!
Courts have held that when damage is done to personal property there
must be negligence in the party doing the damage to render him legally
responsible. In this case the facts are distinguishable. Here, Plaintiff did
not the risk upon himself.
Discussion. The court held Defendant liable for trespass against Plaintiff because
Defendant placed an unnatural body of water on his property, at his peril, and Plaintiff
had not taken the risk upon himself. Plaintiff is an innocent neighbor. He should not have
362
Fletcher v. Rylands
to bear the burden of loss associated with Defendant's use of his land. Plaintiff did not
take the risk upon himself because Plaintiff did not cause the water to enter his land and
could not have reasonably prevented it from doing so. The outcome of this case would
have been different if the water at issue was drain water or percolating water or if
Plaintiff had played some part in the unnatural water's escape.
363
Rylands v. Fletcher
Rylands v. Fletcher
Citation. L.R. 3 H.L. 330 (1868).
Brief Fact Summary. Water from Defendant's reservoir escaped onto Plaintiff's land
because of an unknown latent defect in Defendant's subsoil. Plaintiff sued Defendant for
trespass.
Synopsis of Rule of Law. One who lawfully brings something onto his land, which
though harmless while it remains there will naturally do mischief if it escapes the land,
will be strictly liable for its escape.
Facts. Plaintiff was damaged by his property being flooded by water, which, without any
fault on his part, broke out of a reservoir constructed on Defendants' land. Water in the
reservoir would not have escaped from Defendant's land and no mischief would have
been done to Plaintiff, but for a latent defect in Defendant's subsoil. Plaintiff sued
Defendant for trespass. Opinions are taken from the intermediate appellate court.
Issue. Is Defendant liable to Plaintiff in trespass for damage caused as a result of a defect
in Defendant's land if they were not aware of the defect?
Held. (L.C. Cairns) Yes. Judgment for Plaintiff.
!
Defendant might lawfully have used the land for any purpose for which it
might in the ordinary course of the enjoyment of the land be used. If by
the laws of nature, water entered Plaintiff's land, then Plaintiff could not
have recovered against Defendant.
!
However, Defendant used the land for the purpose of introducing that,
which in its natural condition, was not in or upon it. As a result, the water
came to escape and enter Plaintiff's land. Defendant should be held liable
at their own peril.
Concurrence. (Lord Cranworth) I concur with the judgment for Plaintiff.
!
If a person brings, or accumulates, on his land anything, which, if it should
escape, may cause damage to his neighbor, he does so at his peril. The
question is not whether the Defendant has acted with due care and caution,
but whether his acts have occasioned the damage. In this case, the damage
sustained by Plaintiff was occasioned by the unnatural escape of water
from Defendant's reservoir.
Discussion. In this case the court adopts a theory of strict liability for owners who bring
unnatural things upon their land, which later escapes.
364
Brown v. Collins
Brown v. Collins
Citation. 53 N.H. 442 (1873).
Brief Fact Summary. Collins (Defendant) unintentionally and without fault entered and
damaged Brown (Plaintiff) land when his horses became frightened. Plaintiff sued
Defendant for trespass.
Synopsis of Rule of Law. The distinction made between natural and unnatural use of
land is not established in the law. The rule in Rylands v. Fletcher would impose penalty
upon efforts made in a reasonable, skillful, and careful manner.
Facts. Defendant was waiting by a railroad crossing on his wagon, which was loaded
with grain and drawn by two horses. An engine on the railroad frightened the horses and
Defendant's horses became unmanageable. The horses ran and struck a stone post with a
street lamp owned by Plaintiff. The Defendant used ordinary care and skill in managing
the horses. Plaintiff sued Defendant for trespass.
Issue. Is Defendant liable to Plaintiff for the unintentional damage done to Plaintiff's
land?
Held. No. Judgment for Defendant.
!
The rule in Rylands v. Fletcher is in conflict with the rule in a class of
cases, which dealt with damage resulting from neighbors' fires. Fire, like
water or steam, is likely to produce mischief if it escapes. Yet it has never
been held that one person with a fire upon his land can be made liable if it
escapes upon his neighbor's land and does him damage without proof of
negligence.
!
Everything that a man can bring onto his land is capable of escaping
against his will and without his fault.
!
The distinction made between a natural and unnatural use of the land is
not established in the law.
Discussion. In this case the court abandons the rule in Rylands v. Fletcher. The court
found that the effect of the rule in Rylands v. Fletcher was to impose a penalty upon a
person's effort, which was made in a reasonable, skillful, and careful manner. This case
holds that a person is only liable for damage to neighboring property, which is caused by
his negligence. For example, a person who has a fire on his land, which escapes to his
neighbors' land, is not liable unless his negligence caused the damage.
365
Powell v. Fall
Powell v. Fall
Citation. 5 Q.B. 597 (1880).
Brief Fact Summary. Powell (Plaintiff) sued Defendant to recover damages for an
injury caused by sparks escaping from the fire of a traction engine.
Synopsis of Rule of Law. Defendant is liable to Plaintiff for damages done to Plaintiff's
land caused by Defendant's dangerous acts, even if Defendant is not negligent.
Facts. Plaintiff owned a farm with a rick of hay upon it. Injury was done to Plaintiff's
land by the sparks of a traction (locomotive) engine belonging to Defendant. Defendant's
engine was not speeding. Plaintiff brings suit against Defendant. Judgment for Plaintiff,
Defendant appealed.
Issue. Is Defendant responsible for damages to Plaintiff caused by his own dangerous
acts, even if he was not negligent?
Held. Yes. Judgment for Plaintiff.
!
The passing of Defendant's engine along the road next to Plaintiff's rick of
hay is confessedly dangerous, inasmuch as sparks cannot be prevented
from flying from it. If a person uses a dangerous machine, he should pay
for the damage, which it causes. The damage done aught not be borne by
Plaintiff.
Discussion. In this case, the court imposed strict liability on Defendant's dangerous act
despite his lack of negligence.
366
Stone v. Bolton
Stone v. Bolton
Citation. [1950] K.B. 201 (C.A.).
Brief Fact Summary. Stone (Plaintiff) was struck in the head by cricket ball from
Defendant's cricket club. Plaintiff sued Defendant for public nuisance and negligence.
Synopsis of Rule of Law. Plaintiff's injury was caused by a reasonably foreseeable risk
and Defendant is liable for damages since he had a duty to take reasonable measures to
prevent it.
Facts. Plaintiff lived on a side street next to a cricket ground. She was at the gate in front
of the house when she was struck on the head by a cricket ball. The ball that hit Plaintiff
was one of the longest balls that had ever been hit at the grounds during the last forty
years. The cricket ground was large enough for all practical purposes. The field was
surrounded by twelve-foot high fence. Witnesses testified that over a thirty-year period
about six to ten balls had been hit onto Plaintiff's side street. Plaintiff sued the home
cricket club and all of its members (Defendants). She alleged that the grounds constituted
a public nuisance. She separately alleged common law negligence. The trial court gave
judgment to the Defendants on both the public nuisance and negligence counts. The
Court of Appeal reversed the judgment on the negligence claim. Defendant then appealed
to the House of Lords.
Issue. If a risk is reasonably foreseeable, is there a duty to prevent it?
Held. Yes. Judgment for Defendant.
!
Plaintiff's injury was a reasonable, foreseeable risk. Although, only on
very rare occasions, perhaps no more then six times in thirty seasons,
cricket balls had been hit onto Plaintiff's Side Street. What had happened
several times before could reasonably be expected to happen again sooner
or later.
!
It is irrelevant that no possible precaution would have arrested the flight of
the cricket ball that hit Plaintiff. If cricket cannot be played on a given
ground without foreseeable risks, then, it is always possible to stop using
the grounds for cricket. The court failed to see on what principle Plaintiff
is entitled to be required to accept the risk of Defendants cricket club.
Discussion. In this case, the court did not want to force Plaintiff to bare the burden of an
unlikely but foreseeable risk of injury. The court held Defendant liable on the basis of
forseeability.
367
Bolton v. Stone
Bolton v. Stone
Citation. [1951] A.C. 850.
Brief Fact Summary. Plaintiff was struck in the head by a cricket ball from Defendant's
cricket club. Plaintiff sued Defendant for public nuisance and negligence.
Synopsis of Rule of Law. The test to be applied here is whether the risk of damage to a
person on the road was so small that a reasonable man in the position of the Defendant,
considering the matter from the point of view of safety, would have thought it right to
refrain from taking steps to prevent danger.
Facts. Plaintiff lived on a side street next to a cricket ground. She was at the gate in front
of the house when she was struck on the head by a cricket ball. The ball that hit Plaintiff
was one of the longest balls that had ever been hit at the grounds during the last forty
years. The cricket ground was large enough for all practical purposes. The field was
surrounded by a twelve-foot high fence. Witnesses testified that over a thirty-year period
about six to ten balls had been hit onto Plaintiff's Side Street. Plaintiff sued the home
cricket club and all of its members. She alleged that the cricket grounds constituted a
public nuisance. She separately alleged common law negligence. The trial court gave
judgment to the Defendant on both the public nuisance and negligence counts. The Court
of Appeal reversed the judgment on the negligence claim. Defendant then appealed to the
House of Lords.
Issue. Must Defendant not carry out or permit an operation that he knows or ought to
know clearly can cause such damage, however improbable that result may be?
Held. No. Judgment reversed.
!
If the only test applicable to this case is that of foreseeability, then
Plaintiff must prevail. Plaintiff claims that at least as soon as one ball had
been driven into the road in the ordinary course of a match, the appellants
could and should have realized that it might happen again and that, it if
did, someone might be injured. Under the theory of foreseeability alone, it
is irrelevant to determine the percentage of chance a ball might hit
Plaintiff. It is only necessary to determine if it is foreseeable.
!
The foreseeability test alone does not address the standards of ordinary
careful people in the ordinary course of life. Even the most careful person
cannot avoid creating risks.
!
This case does not come within the principle of Rylands v. Fletcher. The
test to be applied here is whether the risk of damage to a person on the
road was so small that a reasonable man in the position of Defendant,
considering the matter from the point of view of safety, would have
thought it right to refrain from taking steps to prevent danger. In this test,
368
Bolton v. Stone
it would be right to take into consideration the remoteness of the chance
that a person might be struck and how serious the consequences are likely
to be if a person is struck. It is not right to take into account the difficulty
of remedial measures.
!
The risk here was extremely small. Defendant's ground was held to be
large enough to be safe for all practical purposes.
Concurrence. (Lord Radcliffe) There is nothing unfair with requiring the Defendant to
compensate Plaintiff for the injuries sustained to Plaintiff on the account of Defendant.
However, the law of negligence is concerned less with what is fair than with what is
culpable. A breach of duty has taken place if Plaintiff shows that Defendant failed to take
reasonable care to prevent the accident. In this case, a reasonable man would not have felt
himself called upon either to abandon the use of the ground for cricket or to increase the
height of his surrounding fences. In this case, the reasonable man would have done
nothing.
Discussion. In its ruling in favor of Defendant, the court uses a negligence theory. In the
application of its negligence theory, the court held that Defendant took reasonable care to
prevent the accident to Plaintiff. Although the accident to Plaintiff is unfortunate,
Defendant is not liable.
369
Hammontree v. Jenner
Hammontree v. Jenner
Citation. 97 Cal. Rptr. 739 (Cal. App. 1971).
Brief Fact Summary. Jenner (Defendant) had an elliptic seizure while driving his car
and crashed into Plaintiff's store causing personal injuries and property damage. Plaintiff
sued in negligence and absolute liability. The court refused to impose absolute liability.
Synopsis of Rule of Law. Liability of a driver, suddenly stricken by an illness rendering
him unconscious, for injury resulting from an accident occurring during that time rests on
principles of negligence.
Facts. Defendant was driving home from work when he experienced an epileptic seizure
and crashed his car through the wall of a bicycle shop owned by Hammontree and her
husband (Plaintiff). Defendant had a history of epilepsy. Defendant was under the
constant care of a neurologist. The Neurologist testified that he believed it was safe for
Defendant to operate a motor vehicle, even though it was impossible for Defendant to
drive during an epileptic seizure. Plaintiff sued Defendant for personal injuries and
property damage arising out of the automobile accident. The trial court refused to give
the jury an instruction on strict absolute liability. The jury returned a verdict in favor of
Defendant. Plaintiff appealed.
Issue. Is Defendant liable to Plaintiff for injuries sustained in a car crash resulting from
Defendant's unexpected epileptic seizure, even though doctors told Defendant that it was
safe for him to drive?
Held. No. Judgment for Defendant affirmed.
!
Liability of a driver, suddenly stricken by an illness rendering him
unconscious, for injury resulting from an accident occurring during the
illness time rests on principles of negligence. The trial court was right to
refuse to allow a jury instruction that would have held Defendant
responsible for the injuries to Plaintiff on a theory of strict liability.
!
Plaintiff seeks to have the court adopt a standard of strict liability. Plaintiff
cites cases where a manufacturer was held strictly liable in tort when an
article he placed on the market, knowing that it is to be used without
inspection for defects, proves to have a defect, which causes injury.
Plaintiff argues that only a driver who is affected by a physical condition,
which would render him unconscious, and who is aware of this condition
can anticipate the hazards and foresee the dangers. Thus the liability of the
driver should be predicated on strict liability.
!
The court refuses to superimpose the absolute liability of products liability
cases upon drivers under the circumstances here. Manufacturers in
products liability cases are engaged in the business of distributing goods to
370
Hammontree v. Jenner
the public for a profit and thus should bear the cost of injuries from
defective products.
!
To invoke a rule of strict liability on users of the streets and highways,
without also establishing in substantial detail how this new rule should
operate, would only contribute confusion to the automobile accident
problem. It is up to the legislature to enact a comprehensive plan for the
compensation of automobile accident victims in place of or in addition to
the law of negligence.
!
The jury instruction was also refused because it does not except from its
ambit the driver who suddenly is stricken by an illness or physical
condition which he had no reason to anticipate and of which he had no
prior knowledge.
Discussion. Plaintiff sought absolute liability, but the court refused to expand absolute
liability beyond cases dealing with merchants and products liability.
371
CHAPTER III.
The Negligence Issue
372
Vaughan v. Menlove
Vaughan v. Menlove
Citation. 132 Eng. Rep. 490 (C.P. 1837).
Brief Fact Summary. Defendant's rick of hay burst into flames after several repeated
warnings of the possibility of fire. Plaintiff's neighboring cottages were consumed in the
fire. Plaintiff sued Defendant for gross negligence.
Synopsis of Rule of Law. In assessing Defendant's liability under a theory of gross
negligence, Defendant is bound to proceed with such reasonable caution as a prudent man
would have exercised under similar circumstances.
Facts. Plaintiff owned two cottages. Defendant was Plaintiff's neighbor. Defendant
placed a haystack, or rick, on his property, but near its boundaries. The placement of the
hay gave rise to discussions regarding the probability of a fire. In the period of five
weeks, Defendant was warned of the possibility of fire. On one occasion, he said, "he
would chance it." Defendant made an aperture or chimney through the rick, which burst
into flames from the spontaneous heating of its materials. The flames consumed
Defendant's barn and staples and Plaintiff's cottages, which were entirely destroyed. The
jury returned a verdict for Plaintiff. Defendant appealed.
Issue. In a claim of gross negligence, is Defendant bound to proceed with such
reasonable caution as a prudent man would have exercised under the circumstances?
Held. Yes. Judgment for Plaintiff affirmed.
!
(Talfourd Serjt. and Whately) A man must use his property as not to injure
that of others. The standard of conduct is that of a man of ordinary
prudence.
Dissent. (R.V. Richards) There was no duty on Defendant to be responsible for the
exercise of any given degree of prudence. Defendant had the right to place his rick of hay
as close to the boundary of his property as he pleased. Defendant is only required to act
according to his best judgment. What is and what is not gross negligence ought to be
estimated by the faculties of the individual. If a jury deems Defendant to have
subjectively believed the rick to be safe, then Defendant should not be liable under a
theory of gross negligence.
Concurrence. (C.J. Tindal) On concurrence there is a rule of law, which says you must
so enjoy your property as not to injure that of another. In this case, and according to that
rule, Defendant is liable for the consequences of his own neglect. Although the
Defendant did not himself light the fire, he is as much the cause of it as if he had himself
put a candle to the rick. We ought to adhere to the rule, which requires the same caution
as a man of ordinary prudence would observe.
!
(J.Park) It was proper to leave the question to the jury, of whether
Defendant acted as any man of ordinary prudence would in regards to the
373
Vaughan v. Menlove
caution and if so, Defendant would therefore be not liable under gross
negligence.
!
(J.Vaughan) Everyone takes upon himself the duty of so dealing with his
own property as not to injure property of others. The conduct of a prudent
man has always been the criterion for the jury.
Discussion. In this case, the court adopts the objective prudent, cautious man standard.
The court paid special attention to the fact that Defendant stated he would chance it when
observers warned Defendant of the possibility of fire. In all claims of gross negligence, a
Defendant must use that standard of care used by a reasonable, cautious, prudent man to
avoid liability.
374
Roberts v. Ring
Roberts v. Ring
Citation. 173 N.W. 437 (Minn.1919).
Brief Fact Summary. Ring (Defendant), seventy-seven years old, hit Roberts (Plaintiff),
seven-years old, with his car. Plaintiff sued Defendant for negligence. Defendant claimed
contributory negligence.
Synopsis of Rule of Law. In considering the negligence of a seven-year-old boy, the
standard of care, is the degree of care commonly exercised by the ordinary boy of his age
and maturity.
Facts. Defendant, seventy-seven years old, was driving on a busy street. His sight and
hearing were defective. (Plaintiff, a seven-year-old boy, ran from behind a buggy, across
the street, and in front of Defendant's car. As he passed in front of Defendant's car,
Plaintiff was struck and injured. Plaintiff sued Defendant for negligence.
Issue. There are two issues in this case:
!
Was Defendant negligent in failing to promptly stop his car?
!
Is Plaintiff held to the same standard of care commonly exercised by the
ordinary boy of his age and maturity?
Held. Yes, Defendant was negligent. Yes, Plaintiff is held to the degree of care
commonly exercised by the ordinary boy of his age and maturity.
!
The question of Defendant's negligence was a proper one to be submitted
to the jury. Defendant was driving four to five miles per hour, not a
negligent rate of speed. However, Defendant testified that he saw Plaintiff
just before striking him with his car. It is common knowledge that a car
traveling at Defendant's rate of speed can be stopped within a very few
feet. In this case, Defendant drove his car clear over the Plaintiff. The jury
could have found that Defendant was negligent in failing to stop his car
sooner.
!
The question of Plaintiff's contributory negligence is also appropriate for
the jury. In considering the negligence of a seven-year-old boy, the
standard of care, is the degree of care commonly exercised by an ordinary
boy of his age and maturity.
Discussion. In this case, the court makes clear that the question of negligence is one
properly submitted to the jury. In assessing Defendant's negligence the jury must take
into consideration Defendant's age and whether or not Defendant had any physical
infirmities.
375
Daniels v. Evans
Daniels v. Evans
Citation. 224 A.2d 63 (N.H. 1966).
Brief Fact Summary. Plaintiff, 19-years old, was struck and killed by Defendant's car.
Plaintiff's estate sued Defendant for negligence. The issue on appeal was Plaintiff's
standard of care in Defendants' claim of contributory negligence.
Synopsis of Rule of Law. When minor plaintiff undertakes an adult activity, which can
result in grave danger to others, the standard of care is measured by what a reasonable
and prudent adult would use.
Facts. Plaintiff, a 19-year-old, was killed when his motorcycle collided with Defendant's
car. The jury returned a verdict for Plaintiff. Defendant appealed and alleged error
pertaining to the standard of care required of Plaintiff.
Issue. When Plaintiff undertakes an adult activity, which can result in grave danger to
others, is the standard of care that which the reasonable and prudent adult would use?
Held. Yes. Judgment for Defendant.
!
When children are walking, running, playing with toys, throwing balls,
operating bicycles, sliding or engaged in other childhood activities, their
conduct should be judged by the rule of what is reasonable conduct of a
child with comparable age, experience, and stage of mental development.
!
It would be unfair to the public to permit a minor in the operation of a
motor vehicle to observe any other standard of care than that expected of
all others. In today's modern life, where vehicles are powered by motors,
to apply to minors a more lenient standard in the operation of motor
vehicles is unrealistic, contrary to legislative policy, and inimical to public
safety.
Discussion. Any minor operating a motor vehicle must be judged with the same standard
of care as an adult. At the time this case was heard, a minor was someone who was under
the age of twenty-one.
376
Breunig v. American Family Insurance Co.
Breunig v. American Family Insurance Co.
Citation. 173 N.W. 2d 619 (Wis. 1970).
Brief Fact Summary. Erma Veith, an insured of American Family Insurance Company
(Defendant), became involved in an automobile accident with (Plaintiff) when she was
suddenly seized with a mental delusion. The jury awarded Defendant $7,000 in damages.
Synopsis of Rule of Law. Not all types of insanity are a defense to a charge of
negligence.
Facts. Veith, an insured of Defendant, was driving her car when it struck a car driven by
Plaintiff. Veith's car veered across the center of the road and into Plaintiff's lane.
Defendant claimed Veith was not negligent because just prior to the collision she
suddenly and without warning was seized with a mental delusion which rendered her
unable to operate the car with her conscious mind. Veith told her psychiatrist that she was
driving when she believed that God was taking a hold of the steering wheel and was
directing her car. She saw the truck coming and stepped on the gas in order to become air
borne because she knew she could fly because she thought she could fly like Batman. The
jury returned a verdict for Plaintiff because they found that Veith had knowledge and
forewarning of her mental delusions. More specifically, the court, despite the testimony
of the psychiatrist, found that Veith had knowledge of her condition due to her past
conduct. Therefore, the question was properly left for the jury. Defendant, insurance
company, appealed.
Issue. Did Veith have foreknowledge of her susceptibility to a mental delusion as to
make her negligent in driving a car?
Held. Yes. Judgment for Plaintiff affirmed.
!
The general policy for holding an insane person liable for his torts is stated
as follows:
i.
When one of two innocent persons must suffer a loss it should be
borne by the one who occasioned it;
ii.
To induce those interested in the estate of the insane person to
restrain and control him; and,
iii.
!
To stop false claims of insanity to avoid liability
However, not all types of insanity vitiate responsibility for a negligent tort.
The effect of the mental illness or mental disorder must be such as to
affect the person's ability to understand and appreciate the duty, which
rests upon him to drive his car with ordinary care. In addition, there must
be an absence of notice or forewarning to the insane person that he may
suddenly be unable to drive his car.
377
Breunig v. American Family Insurance Co.
!
All we hold is that a sudden mental incapacity equivalent in its effect to
such physical causes as a sudden heart attack, epileptic seizure, stroke, or
fainting should be treated alike and not under the general rule of insanity.
!
In this case, the jury could infer that Veith had knowledge of her condition
and the likelihood of her condition, just as one who has knowledge of a
heart condition knows the possibility of an attack.
Discussion. In this case, the court applied an objective standard of care to Defendant, an
insane person. To avoid liability under this statute, there must be an absence of
forewarning to the defendant that he or she would be subject to a debilitating mental
illness. This court also held that persons who suffer from sudden mental incapacity due to
sudden heart attack, epileptic seizure, stroke, or fainting should not be judged under the
same objective test as those who are insane.
378
Fletcher v. City of Aberdeen
Fletcher v. City of Aberdeen
Citation. 338 P.2d 743 (Wash. 1959).
Brief Fact Summary. Fletcher (Plaintiff), a blind man, fell into a ditch excavated by the
City of Aberdeen (Defendant). Defendant failed to provide proper barricades up at the
time Plaintiff fell. Plaintiff sued Defendant for negligence.
Synopsis of Rule of Law. The duty of maintaining the sidewalks and adjacent parking
strips is a continuing one. A city is obligated to afford that degree of protection, which
would bring notice to a person with a physical disability, the danger being encountered.
Facts. For the purpose of placing electric wires underground, the city (Defendant) dug a
ditch in the parking strip adjacent to the sidewalk. Defendant erected suitable barricades
to protect pedestrians from falling into the ditch. One of Defendant's employees removed
the barricades while working on another site and negligently failed to replace them.
Plaintiff, a blind man, fell into the ditch while the barricades were down. By use of his
cane, the barriers would have prevented Plaintiff from falling into the ditch. Plaintiff sued
Defendant for negligence. The jury returned a verdict for Plaintiff and found that the city
was negligent in removing the barriers without providing other warning.
Issue. Must the city exercise a standard of care above that of an ordinary person for a
disabled person?
Held. Yes. Judgment for Plaintiff affirmed.
!
The duty of maintaining the sidewalks and the adjacent parking strips is a
continuing one. In this case, the city is negligent when it removes proper
and necessary barricades without giving pedestrians other types of
warning.
!
The city is charged with knowledge that those who are physically infirm
as well as those in perfect physical condition will use its streets. The
person under a physical disability is obligated to use the care, which a
reasonable person under the same or similar disability would exercise
under the circumstances. The city is obligated to use the care, which
would give notice to a physically disabled person a danger to be
encountered.
Discussion. In this case the court held that Defendant, a city, is obligated at all times to
warn pedestrians of dangers encountered on the sidewalk, whether that pedestrian be
physically disabled or in perfect health.
379
Robinson v. Pioche, Bayerque & Co.
Robinson v. Pioche, Bayerque & Co.
Citation. 5 Cal. 460 (1855).
Brief Fact Summary. Action for damages sustained by Plaintiff who was drunk and fell
into an uncovered hole, dug in the sidewalk in front of Defendant's premises.
Synopsis of Rule of Law. The gross negligence of Defendant in leaving an uncovered
hole on the sidewalk of a public street will not be excused by Plaintiff's contributory
negligence.
Facts. An action for damages sustained by Plaintiff who was drunk and fell into an
uncovered hole, dug in the sidewalk in front of Defendants' premises. The lower court
gave a verdict in favor of Defendant. Plaintiff appealed.
Issue. Will Plaintiff's contributory negligence negate Defendant's gross negligence in
failing to cover a hole in the sidewalk of a public street?
Held. No. Judgment for Plaintiff. The judgment is reversed and the case is remanded.
!
The gross negligence of Defendant in leaving an uncovered hole on the
sidewalk of a public street will not be excused by Plaintiff's contributory
negligence.
!
A drunken man is as much entitled to a safe street as a sober one, and
much more in need of it.
Discussion. Plaintiff's contributory negligence, his intoxication, will not excuse
Defendant's gross negligence in this case. The court treats an intoxicated pedestrian the
same as it treats a sober pedestrian.
380
Denver & Rio Grande R.R. v. Peterson
Denver & Rio Grande R.R. v. Peterson
Citation. 69 P. 578 (Colo.1902).
Brief Fact Summary. The facts are not revealed in the casebook.
Synopsis of Rule of Law. The care required of a warehouse man is the same, whether he
be rich or poor.
Facts. The facts are not revealed in the casebook.
Issue. Is wealth a factor in determining liability under a claim of negligence?
Held. No.
!
If a warehousemen's liability were predicated on his wealth, then it would
be possible for an extremely poor warehouseman to incur no liability in a
claim of negligence. No one is willing to relieve a warehouseman of
liability on the basis of his wealth.
Discussion. This case suggests that the level of care required of a defendant is constant
regardless of its wealth.
381
Blyth v. Birmingham Water Works
Blyth v. Birmingham Water Works
Citation. 156 Eng. Rep. 1047 (Ex.1856).
Brief Fact Summary. Blyth's (Plaintiff's) house was flooded with water, because of a
plug that was frozen over during one of the most severe storms in recent history.
Synopsis of Rule of Law. In a claim of negligence, the issue of duty is a question of
law, not properly left for the determination of a jury. It would be monstrous to hold
Defendant's responsible because they did not foresee and prevent an obscure accident that
was not discovered until many months thereafter.
Facts. Defendant was hired by the city to lay pipe for a water main. The pipes were built
out of materials, which were sound and in good order. One of the most severe storms
created frost on the stopper, which caused the water to force its way around the neck of
the main, and on the ground into Plaintiff's house. The judge left it to the jury to consider
whether Defendant had used proper care to prevent the accident to Plaintiff's house. The
jury found a verdict for Plaintiff. Defendant appealed.
Issue. Is Defendant negligent for failing to guard Plaintiff's house against one of the
most severe storms?
Held. No. Judgment for Defendant.
!
There is no evidence to be left to the jury in this case. Negligence is the
omission to do something, which a reasonable man would do, or do
something, which a prudent and reasonable man would not do. In this case
a reasonable man would act with reference to the average circumstances of
the temperature in previous winters.
Concurrence. (B.Bramwell) The Defendants were not bound to keep the plugs clear.
Plaintiff was under as much obligation to remove the ice and snow, which had
accumulated, as Defendants. It would be monstrous to hold Defendants responsible
because they did not foresee and prevent an obscure accident that was not discovered
until many months thereafter.
Discussion. In this case, Defendant owed no duty to Plaintiff. The issue of duty is one of
law, not of fact. Juries decide issues of fact. Judges decide issues of law. Because
Defendant owed Plaintiff no duty to inspect the pipes and remove the ice and snow,
which had accumulated, it was not proper for the trial court to submit Plaintiff's claim of
negligence to the jury.
382
Eckert v. Long Island R.R.
Eckert v. Long Island R.R.
Citation. 43 N.Y. 502 (1871).
Brief Fact Summary. Plaintiff was hit and killed by Long Island R.R.'s (Defendant's)
train in an attempt to rescue a child who was on the train tracks. Defendant moved for a
nonsuit upon the ground that Plaintiff's negligence contributed to the injury.
Synopsis of Rule of Law. Negligence implies some act of commission or omission
wrongful in itself. Plaintiff will not be held to be negligent in rescuing a child.
Facts. Plaintiff was standing about fifty feet from Defendant's railroad track in the
afternoon of the day. A child, three or four years old was sitting or standing upon
Defendant's railroad track as the train was approaching. The train was likely to run the
child over if Plaintiff, seeing the danger, had not rescued child. Plaintiff threw the child
clear of the track, but continuing across the track himself, was struck by the train and
died. Defendant moved for a nonsuit upon the ground that it appeared that Plaintiff's
negligence contributed to the injury. The lower court denied Defendants request and the
jury found a verdict for Plaintiff. Defendant appealed
Issue. Is Plaintiff negligent and thus barred from recovery when he puts himself at peril
to save the life of a child?
Held. No. Judgment for Plaintiff affirmed.
!
If Plaintiff, for his own purposes, attempted to cross the track, then his
conduct would have been grossly negligent and no recovery would have
been allowed. But in this case, the evidence showed there was a small
child upon the track, who, if not rescued, would have been crushed by the
approaching train. Negligence implies some act of commission or
omission wrongful in itself. In this case, Plaintiff's act cannot be viewed as
wrongful. The law has so high a regard for human life that it will not
impute negligence in an effort to preserve it.
Dissent. Plaintiff went upon the track in front of an approaching train voluntarily. His
action was the result of his own choice. No one can maintain an action for a wrong when
he consents or contributes to the act, which occasions his loss. One who with liberty of
choice, and knowledge of the hazard of injury, places himself in the position of danger,
does so at his own peril, and must take the consequences of his act.
Discussion. A high value is placed on the preservation of human life and the court will
not negate the Plaintiff's claim of negligence.
383
Osborne v. Montgomery
Osborne v. Montgomery
Citation. 234 N.W. 372 (Wis. 1931).
Brief Fact Summary. Osborne (Plaintiff) was injured when his bike hit Defendant's car
door. Plaintiff sued Defendant for negligence.
Synopsis of Rule of Law. While acts result in injury to others, they are held not to be
negligent because they are in conformity to what the great mass of mankind would do
under similar circumstances.
Facts. Plaintiff, a boy of thirteen years of age, was employed as an errand boy. He was
returning to his place of employment on a bicycle. He followed a car driven by
Defendant. Defendant stopped his car for the purpose of leaving some clothes at the
cleaners. As Defendant's car stopped and his door opened Plaintiff attempted to pass
when the right handle bar of his bicycle collided with Defendant's car door. As a result,
Plaintiff was injured. The jury found Defendant negligent, because he did not look before
opening his car door, but not negligent in stopping his car where he did. The instruction
of the trial judge on the definition of negligence read as follows: 1. By ordinary care, it is
meant that degree of care, which the great mass of mankind, or the type of that mass, the
ordinary prudent man, exercises under like or similar circumstances. 2: Negligence is the
want of ordinary care. Defendant appealed.
Issue. Are all actions in our society that cause harm to others considered negligent?
Held. No. Judgment for the Defendant. Reversed and remanded on the question of
damages only.
!
Not every want of care results in liability. In order to measure ordinary
care, some standards must be adopted. Right, duties, obligations are
relative, not absolute.
!
The law determines that under the circumstances of a particular case, an
actor should or should not be liable for the natural consequences of his
conduct. In this case, Defendant exercised that degree of care, which
drivers ordinarily exercise under the same or similar circumstances.
Discussion. Not every injury is actionable. Society deems an actor liable for conduct that
is outside that of ordinary care. Ordinary care is that degree of care, which under the
same or similar circumstances, the great mass of mankind would ordinarily exercise.
384
Cooley v. Public Service Co.
Cooley v. Public Service Co.
Citation. 10 A.2d 673 (N.H. 1940).
Brief Fact Summary. In a severe storm, Public Service Co.'s (Defendant's) electric lines
fell, which caused a loud noise in Cooley's (Plaintiff's) phone line. In hearing the noise,
Plaintiff suffered a very rare neurosis. Plaintiff sued Defendant for negligence.
Synopsis of Rule of Law. The law could not tolerate the theory of "be liable if you do
and be liable if you don't." Defendant is not liable to Plaintiff when there is no way to
prevent Plaintiff's rare and remote injury without exposing the public to an obvious and
immediate injury.
Facts. Defendant maintained un-insulated electric lines above telephone lines. During a
severe winter storm, Defendant's power line broke and hit a telephone line. At that
moment, Plaintiff was using the telephone when suddenly a loud noise came through.
Plaintiff fainted and fell to the floor. She suffered a very rare neurosis with severe
physical consequences. Plaintiff sued the telephone company and Defendant for
negligence. The jury found for the telephone company but against the Defendant. The
Defendant appealed.
Issue. Is Defendant liable to Plaintiff for negligence when Plaintiff is not capable of
suggesting a safer possible precaution Defendant could have undertaken without entailing
a greater risk to the lives of others?
Held. No. Judgment for Defendant affirmed.
!
There is no claim that the negligence of Defendant caused the electric
wires to fall. Rather, Plaintiff asserts that the electric lines should have had
one of two devices. After a detailed examination of these proposals, the
court concluded that each of Plaintiff's devices would have entailed a
greater risk of electrocution to people passing on the street.
!
As long as Defendant's lines are properly installed, there is no danger of
electrocution in the house. The only possible danger to telephone users in
the house is that of fright and neuroses. In balancing the two, the danger to
Plaintiff is remote and the danger to those on the ground is obvious and
immediate. The Defendant's duty of care towards Plaintiff is weaker than
that towards the man in the street. Defendant's duty could not be both. The
law could not tolerate the theory of "be liable if you do and be liable if you
don't."
!
There is no doubt that Defendant may owe a duty to Plaintiff. However, it
is Plaintiff's duty to bring forth evidence that affords protection against
emotional disturbances without subjecting the public to live wires
immediately dangerous to life.
385
Cooley v. Public Service Co.
Discussion. As a practical matter, the court was unwilling to impose liability on
Defendant, when to do so would be to punish Defendant for preventing live wires from
coming into contact with the public. Defendant's duty to Plaintiff is outweighed by the
duty Defendant owes to the public at large. If Plaintiff can present evidence of means
where Defendant could have reasonably and concurrently protected the public from live
wires and Plaintiff from emotional distress, then Defendant would be liable for the breach
of duty to Plaintiff.
386
United States v. Carroll Towing Co.
United States v. Carroll Towing Co.
Citation. 159 F.2d 169 (2d Cir. 1947).
Brief Fact Summary. Plaintiff's barge broke away from Defendant's tugboat and started
to leak after it was swept away into the propeller of a tanker. The issue before the court
was the contributory negligence of Plaintiff.
Synopsis of Rule of Law. When the magnitude of the risk exceeds the utility of the
conduct, there is a duty of care to protect others from harm.
Facts. Defendant owned a tugboat and was moving a line of barges in New York,
including Plaintiff's barge, the Anna C. The Anna C broke away from the line of barges
and was carried by wind and tide into the propeller of a tanker. The Anna C started to
leak. The question before the court was the contributory negligence of the barge owner.
Issue. Should a bargee have been kept on board the barge so that it might have been
possible to save the barge by an early discovery of the damage to the hull?
Held. Yes. Judgment for Defendant.
!
There is no general rule to determine when the absence of a bargee will
make the owner of a barge liable for injuries to other vessels. Three
variables are considered: (1) the probability that she will break away; (2)
the gravity of the resulting injury if she does; and, (3) the burden of
adequate precautions.
!
The barge must not be the bargee's prison. Even in the crowded waters of
New York, a bargee might not need to be aboard at night. However, in this
case, the bargee had been away the whole time and the court found his
fabricated story to be affirmative evidence that there was no excuse for his
absence. It is a fair requirement that Plaintiff should have a bargee
onboard during the working hours of daylight.
Discussion. When the magnitude of the risk exceeds the utility of the conduct, there is a
duty of care to protect others from harm. This case suggests an economic interpretation of
negligence.
387
Lyons v. Midnight Sun Transportation Services, Inc.
Lyons v. Midnight Sun Transportation Services, Inc.
Citation. 928 P.2d 1202 (Alaska 1996).
Brief Fact Summary. Lyons (Plaintiff) was killed when her van was truck broadside by
a truck driven by David Jette and owned by Midnight Sun Transportation Services, Inc.
(Defendant).
Synopsis of Rule of Law. The court rejects the sudden emergency doctrine. In an
emergency, the standard of care remains that of a reasonable person under the
circumstances.
Facts. Plaintiff was killed when her van was truck broadside by a truck driven by Jette
and owned by Defendant. Plaintiff pulled out of a parking lot in front of Jette. Jette
braked and steered to the left but Plaintiff continued to pull out further into the traffic
lane. Jette's truck collided with Plaintiff. Plaintiff filed suit against Defendant, claiming
that Jette had been speeding and driving negligently. Conflicting testimony was
introduced regarding Jette's speed. Testimony suggested that if Jette had stayed in his
lane, the accident would not have happened. Defendant claimed that steering to the left
when a vehicle pulls out is a normal response. The jury was given an instruction on the
sudden emergency doctrine. The jury found that Jette (and thus Defendant) had been
negligent, but his negligence was not a cause of the accident. Plaintiff appeals, arguing
that the sudden emergency doctrine was wrongfully given to the jury.
Issue. In assessing Defendant's liability under a claim of negligence, was the jury
properly given an instruction on the sudden emergency doctrine?
Held. No. Judgment for Defendant.
!
The sudden emergency doctrine is a rule of law which states that a person
confronted with a sudden and unexpected peril, not resulting from his own
doing, is not expected to exercise the same judgment and prudence the law
requires of a person in calmer and more deliberate moments. The jury's
use of this doctrine was harmless error since the jury ruled in favor of
Defendant.
!
The court then went on to disapprove of the sudden emergency doctrine
stating that the doctrine is a generally useless appendage to the law of
negligence. With or without an emergency, the standard of care a person
must exercise is still that of a reasonable person under the circumstances.
!
The sudden emergency doctrine grew out of the harsh "all or nothing" rule
in contributory negligence. Comparative negligence reduces Plaintiff's
recovery proportionally to Plaintiff's degree of fault in causing the
damage, rather than baring recovery completely. In comparative
388
Lyons v. Midnight Sun Transportation Services, Inc.
negligence, the sudden emergency doctrine only confuses the jury and
adds no real substance to the standard of care.
!
Comparative negligence is a method of apportioning liability for a
particular accident among the various parties who have been deemed
negligent.
Discussion. In assessing a party's standard of care, the test is always the standard of a
reasonable person under like circumstances. If the circumstances are such that an
emergency is present, the "reasonable person under like circumstances" rule considers the
emergency without the need for the sudden emergency doctrine. The sudden emergency
doctrine is a legal principle exempting a person from the ordinary standard of reasonable
care if that person acted instinctively to meet a sudden and urgent need for aid. The
sudden emergency doctrine is essentially the "reasonable person under like
circumstances" rule. Under these facts and a system of comparative negligence, it is no
longer needed. Most jurisdictions follow the comparative fault system.
389
Andrews v. United Airlines
Andrews v. United Airlines
Citation. 24 F.3d 39 (9th Cir. 1994).
Brief Fact Summary. Andrews (Plaintiff) an airline passenger, was hit in the head after
a briefcase fell out of United Airlines' (Defendant) overhead compartment. The district
court granted summary judgment for Defendant.
Synopsis of Rule of Law. Common carriers owe both a duty of utmost care and the
vigilance of a very cautious person towards its passengers. The jury is equipped to decide
whether an airline has a duty to do more than warn passengers about the possibility of
falling luggage.
Facts. During a mad scramble, a briefcase fell from an overhead compartment of
Defendant and seriously injured Plaintiff. It is not clear who opened the overhead
compartment. Plaintiff does not claim that Defendant's personnel were involved Rather,
Plaintiff claims that her injury was foreseeable and that Defendant did not prevent it. The
district court dismissed the suit on summary judgment. Plaintiff appealed.
Issue. Is it proper for the jury to hear Plaintiff's claim of negligence against Defendant,
that the injury was foreseeable and Defendant was negligent in not preventing it?
Held. Yes. Summary judgment is not proper in this case. Reversed and remanded.
!
Defendant is a common carrier and as such owes both a duty of utmost
care and the vigilance of a very cautious person towards its passengers.
Though Defendant is responsible for any, even the slightest, negligence
and is required to do all that human care, vigilance, and foresight
reasonably can do under all circumstance, it is not an insurer of its
passengers.
!
In this case, Plaintiff introduced testimony of two witnesses. The first
witness disclosed that Defendant had received 135 reports of items falling
from overhead bins. As a result of this, Defendant added a warning to its
passengers as part of their arrival message. The second witness then stated
that the warning was ineffective because passengers could not see the
contents of the overhead compartments, no baggage nets were used and/or
Defendant did not limit the overhead compartments to lightweight objects.
!
Defendant used Plaintiff's 135 incident figure to point out the low
incidence of injuries as incontrovertible proof that the safety measures
suggested by Plaintiff were not necessary and would only add additional
cost and inconvenience to airline passengers.
!
The question is whether or not a warning is enough to safeguard airline
passengers from baggage falling out of overhead bins. Given the
390
Andrews v. United Airlines
heightened duty of Defendant, a common carrier, the court thought the
question ought to go to the jury. A reasonable jury might conclude
Defendant should have done more. A reasonable jury might also conclude
that Defendant did enough. In any case, summary judgment is
inappropriate.
Discussion. A common carrier has a heightened duty of care due to the fact that
passengers are completely dependent upon them for safety precautions.
391
Titus v. Bradford, B. & K. R. Co.
Titus v. Bradford, B. & K. R. Co.
Citation. 20 A. 517 (Pa. 1890).
Brief Fact Summary. Plaintiff, an employee of Defendant, was killed after Defendant's
broad-gauge (standard) car began to wobble and tobble on a narrow-gauge truck. Plaintiff
claims that Defendant is negligent in using narrow-gauge roads for standard car bodies.
The jury awarded Plaintiff $5,325
Synopsis of Rule of Law. Even if a practice is shown to be dangerous, does not mean
that it is negligent. Some employments are essentially hazardous. Absolute safety is
unattainable and employers are not insurers.
Facts. Defendant was in the business of transferring railroad cars from standard broadgauge trucks to narrow-gauge trucks. The standard car bodies were hoisted onto narrow
trucks. The car bodies had rounded bottoms and would not sit flat on the narrow trucks.
To prevent the car bodies from wobbling and tobbling when Defendant's narrow train
was in motion, Defendant's employees routinely secured them with blocks of wood,
which were bolted or tied in place. Plaintiff had worked for defendant for the last two
years and was familiar with the transfer and Defendant's operation. While riding on top of
a standard car secured on a narrow truck, said narrow truck began to wobble and tobble.
Plaintiff was killed when he jumped off of the standard car and was struck by the car
immediately behind him. Plaintiff claims that Defendant is negligent in using narrowgauge roads for standard car bodies. The jury awarded Plaintiff $5,325. Defendant
appealed.
Issue. Is Defendant, Plaintiff's employer, held liable for Plaintiff's injuries?
Held. No. Judgment reversed.
!
The court fails to find any evidence of Defendant's negligence. The
negligence declared upon is the placing of a broad-gauge car upon a
narrow-gauge truck. However, Defendant is in the business of placing
broad-gauge cars upon narrow-gauge trucks and Plaintiff is an employee
of Defendant who is quite familiar with the methods used in Defendant's
business.
!
Some employments are essentially hazardous. Absolute safety is
unattainable and employers are not insurers.
!
No man is held by law to a higher degree of skill than the fair average of
his profession or trade, and the standard of due care is the conduct of the
average prudent man. The test of negligence in employers is the same.
!
Plaintiff had ample opportunity to know the risks of his employment.
392
Titus v. Bradford, B. & K. R. Co.
Discussion. The court is unwilling to impose a higher standard of care on Defendant
merely because he is Plaintiff's employer. In essence, Plaintiff claimed Defendant was
liable because Defendant was engaged in its course of business. The fact that a course of
business is dangerous will not give rise to liability. In assessing a claim of negligence the
court is aware that some jobs are dangerous, and it is necessary to look at the customs of
the industry, and variations within, in order to determine liability. Modernly, Plaintiff
would have sued Defendant, his employer, for worker's compensation.
393
Mayhew v. Sullivan Mining Co.
Mayhew v. Sullivan Mining Co.
Citation. 76 Me. 100 (1884).
Brief Fact Summary. Plaintiff, an independent contractor, worked in Defendant's
mineshaft on a platform. Plaintiff fell through a ladder-hole and was seriously injured.
The court refused to allow Defendant's questions pertaining to industry custom to be
asked.
Synopsis of Rule of Law. Industry Custom is not a defense for gross negligence.
Facts. Plaintiff, an independent contractor, worked in Defendant's mineshaft on a
platform. Plaintiff claimed that Defendant negligently cut a hole for a ladder-hole in the
platform without placing any rail or barrier about it, or any light or other warning there
and without giving Plaintiff proper notice of it. Plaintiff fell through the ladder-hole and
was seriously injured. Plaintiff sued Defendant for negligence. The court refused to hear
Defendant's questions pertaining to industry custom. Defendant appealed.
Issue. In an action for negligence, is it proper for Defendant to ask questions which
pertain to the customs of an industry?
Held. No. Judgment for Plaintiff affirmed.
!
Defendant claims that favorable answers to questions, which ask if
Plaintiff "had ever seen a ladder-hole in a mine, below the surface, with a
railing around it," would have tended to show that there was no want of
"average ordinary care"
!
Even if Defendant was able to show that there were no railings around
ladder-holes, ever, it would not show that the act was consistent with
ordinary prudence or a due regard for the safety of Plaintiff. Industry
Custom and usage have no proper place in the definition of ordinary care.
Discussion. Here the court stated that customs within an industry do not prove or
disprove the standard of care required - ordinary prudence.
394
The T.J. Hooper
The T.J. Hooper
Citation. 53 F.2d 107 (S.D.N.Y. 1931).
Brief Fact Summary. Plaintiff's two barges, towed by Defendant's tugboats, were lost in
a storm. Plaintiff sued Defendant for negligence for failing to equip the tugboats with
reliable radios, which would have warned Defendant of the storm.
Synopsis of Rule of Law. If new technology is developed, and it is widely used and
accepted, then it is negligent not to utilize it.
Facts. Defendant, the operator of the T.J. Hooper and the Montrose tugboats, did not
have reliable radios on board. Plaintiff sued Defendant under a towing contract when two
barges and the cargo of coal were lost in a storm. The gist of Plaintiff's negligence claim
stated that it was negligent of Defendant not to equip the tugboats with reliable radios. If
the tugboats had radios Defendant would have received storm warnings and Plaintiff's
two barges would have been put safely into breakwater. Four other tugs were on the same
route as Defendant and avoided the storm because of reliable radios.
Issue. Is Defendant required to equip his tugboats with radio sets to pick up weather
reports?
Held. Yes. Judgment for Plaintiff.
!
There is no statutory law on the subject applicable to tugs of Defendant's
type. The standard of seaworthiness is not, however, dependent on the
legislature. Rather, seaworthiness changes with advancing knowledge,
experience, and the changed appliances of navigation. It is affected by
new devices of demonstrated worth, which have become regular
equipment by common usage.
!
At the time of the storm, radio broadcasting was widely used for the
dissemination of information. The government issued weather reports
twice a day and it was important information, which navigators would not
afford to ignore. Ninety percent of the tugs were equipped with ratios.
!
There was a duty for Defendant to supply weather-receiving radio sets.
Discussion. In this case, Defendant is held to be negligent because he did not equip the
tugboats with radios, which had become custom.
395
The T.J. Hooper
The T.J. Hooper
Citation. 60 F.2d 737 (1932).
Brief Fact Summary. Plaintiff's two barges, towed by Defendant's tugboats, were lost in
a storm. Plaintiff sued Defendant in negligence for failing to equip the tugboats with
reliable radios, which would have warned Defendant of the storm.
Synopsis of Rule of Law. If the utility of a safety precaution outweighs the cost of the
precaution, then it is negligent not to carry the safety precaution. An industry's general
custom does not dictate the standard of care. The courts decide what is required of the
parties.
Facts. Defendant, the operator of the T.J.Hooper and the Montrose tugboats, did not
have reliable radios on board. Plaintiff sued Defendant under a towing contract when two
barges and the cargo of coal were lost in a storm. The gist of Plaintiff's negligence claim
stated that it was negligent of Defendant not to equip the tugboats with reliable radios. If
the tugboats had radios, Defendant would have received storm warnings and Plaintiff's
two barges would have been put safely into breakwater. Four other tugs were on the same
route as Defendant and avoided the storm because of reliable radios. Lower court
judgment for Plaintiff. Defendant appealed.
Issue. Is Defendant negligent for failing to equip his tugboats with radios?
Held. Yes. Judgment affirmed.
!
The radio sets used by other tugboats were partly a toy, partly a part of the
equipment of the tugboat, but neither furnished by the owner, nor
supervised by the owner. It is not fair to say that there was a general
custom among tugs to carry radios.
!
An adequate receiving set suitable for a tugboat can be purchased for a
small amount of money and is reasonably reliable. Obviously, a radio is a
great source of protection to a tugboat. Twice a day tugboat owners can
receive weather predictions.
!
Tugboats towing heavy coal, strung out for over half a mile, do not
intentionally expose themselves to storm weather. For a small cost, they
can get valuable weather information.
!
There was no custom at all as to radio sets in tugboats. Some tugboats had
them, some did not. However, the adoption of new and available devices
does not dictate what it required of a tugboat owner. In the end, it is the
courts that decide what is required. Defendant should have equipped his
tugboats with radios. The injury was a direct consequence of
396
The T.J. Hooper
unseaworthiness. The tugboat's inability to receive weather reports made it
unseaworthy.
Discussion. In this case, J. Hand states that there is no general custom for tugboats to
carry weather radios. However, Defendant is nonetheless negligent for failing to carry a
radio. J. Hand reasoned that the small cost of a radio, compared with its importance,
made Defendant negligent in failing to carry one.
397
Lama v. Borras
Lama v. Borras
Citation. 16 F.3d 473 (1st Cir. 1994).
Brief Fact Summary. Defendant operated on Plaintiff twice to cure Plaintiff's back
pain. Plaintiff developed an infection and was diagnosed with discitis. Plaintiff sued
Defendant for negligence.
Synopsis of Rule of Law. A doctor must use that degree of skill and learning which is
normally possessed and used by doctors in good standing, in a similar practice, in a
similar community, and under like circumstances.
Facts. Plaintiff was suffering from back pain and was referred to Defendant, a
neurosurgeon. Defendant concluded that Plaintiff had a herniated disc and scheduled
Plaintiff for surgery. Defendant neither prescribed nor enforced a regime of absolute bed
rest prior to surgery, but did instruct Plaintiff to enter the hospital one week before the
surgery in order to clean out his lungs. Plaintiff was a heavy smoker. Plaintiff was not
subjected to conservative treatment. While operating, Defendant discovered that Plaintiff
had an "extruded" disc and attempted to remove the extruding material. Either because
Defendant failed to remove all the material, or because he operated at the wrong level,
Plaintiff's back pain returned in full force. Defendant scheduled Plaintiff for a second
surgery. It is unclear if the second operation cured the herniated disc. However, shortly
after the second surgery, Plaintiff began to experience severe pain in his back. Another
doctor, Dr. Piazza, diagnosed Plaintiff with discitis (an infection of the space between
discs) and initiated antibiotic treatment. Discitis is extremely painful and very slow to
cure. Plaintiff alleged that Defendant was negligent in four areas: (1) failure to provide
proper conservative medical treatment; (2) premature and otherwise improper discharge
after surgery; (3) negligent performance of surgery; and (4) failure to provide proper
management for the infection. The jury awarded Plaintiff $600,000. Defendant appealed.
Issue. Is Defendant required to use that degree of skill and learning which is normally
possessed and used by doctors in good standing, in a similar practice, in a similar
community, and under like circumstances?
Held. Yes. Judgment for Plaintiff affirmed.
!
To establish a prima facie case of medical malpractice (negligence)
Plaintiff must demonstrate: (1) the standard of care required by Defendant;
(2) proof that Defendant failed to meet this standard of care; and, (3) a
causal relation between the act or omission of Defendant and the injury
suffered. To establish the applicable standard of care, expert testimony is
usually required. Proof of causation is also more difficult because a jury
must often grapple with scientific processes that are unfamiliar and
involve inherent uncertainty. By a preponderance of the evidence, Plaintiff
must prove that Defendant's act or omission to act was the factor "most
probable" in causing injury to Plaintiff.
398
Lama v. Borras
!
In addressing Defendant's claim on appeal, that Plaintiff failed to
introduce relevant standards of care or a causal link, the court focuses on
Defendant's failure to provide conservative treatment prior to the first
operation.
!
The standard practice is for a neurosurgeon to postpone lumbar disc
surgery while the patient undergoes conservative treatment, with a period
of absolute bed rest as the prime ingredient. An expert testified at trial, "all
neurosurgeons go for [conservative treatment] before they finally decide
on an operation." Defendant neither prescribed nor attempted to enforce a
conservative regime. There was sufficient evidence for the jury to
conclude that Defendant failed to provide customary conservative
treatment and thus breached the applicable standard of care.
!
There are two issues in the chain of causation: (1) Did the surgery cause
the infection; and (2) would conservative treatment have made surgery
unnecessary. If a doctor negligently exposes a patient to risk-prone
surgery, he is liable for the harm associated with a foreseeable risk. In this
case, discitis was a foreseeable risk. Also, almost all of the experts
testified that conservative treatment would eliminate the need for surgery.
The jury could have reasonably found that Defendant's failure to
administer conservative treatment was the "most probable cause" of the
first operation.
Discussion. This case discusses the complex issues that a plaintiff faces in a claim for
negligent medical malpractice.
399
Canterbury v. Spence
Canterbury v. Spence
Citation. 464 F.2d 772 (D.C. Cir. 1972).
Brief Fact Summary. Plaintiff experienced back pain. Defendant told Plaintiff that he
needed surgery, but did not inform of the risks of the surgery. Plaintiff sued Defendant
for negligently withholding the risk of the surgery.
Synopsis of Rule of Law. A doctor has a duty to disclose all reasonable information
about a proposed treatment to his patients.
Facts. Plaintiff consulted Defendant, a doctor, after experiencing severe back pain.
Defendant had the Plaintiff undergo a myelogram, which revealed that the Plaintiff
suffered from a filling defect in the region of his fourth thoracic vertabra. Defendant told
Plaintiff that he needed to undergo a laminectomy to correct what he suspected was a
ruptured disc. Defendant did not tell Plaintiff the details of the proposed operation nor did
Plaintiff inquire about them. Defendant told Plaintiff's mom that the operation was a
serious one, but not any more serious than any other operation. Defendant performed the
operation and discovered Plaintiff's swollen spinal cord to be in very poor condition.
Defendant did what he could to relieve the pressure and left Plaintiff in bed to recuperate.
Plaintiff was recuperating, when he slipped off the side of the bed and suffered nearcomplete paralysis. There was no one there to assist him and no side rail to break his fall.
Defendant performed an emergency operation and Plaintiff's condition improved.
Plaintiff sued Defendant for negligence in the performance of the laminectomy and for
failure to inform him of the risk involved. Plaintiff introduced no evidence to show
medical and hospital practices customarily pursued in regard to the critical aspects of the
case. Defendant testified that even without trauma, paralysis can be anticipated
somewhere in the nature of one percent. Defendant felt that communication of the risk to
Plaintiff was not good medical practice because it might deter him from undergoing
needed surgery and might produce adverse physiological reactions, which could preclude
the success of the operation. The trial court held that Plaintiff failed to produce any
medical evidence indicating negligence. Plaintiff appealed.
Issue. Does Defendant have a duty to disclose the risk associated with surgery?
Held. Yes. Judgment reversed. Plaintiff's evidence was of such caliber as to require a
submission to the jury.
!
Defendant did not reveal the risk of paralysis from the laminectomy.
Every human being of sound mind has a right to determine what shall be
done with his own body. It is a physician's duty to warn of the dangers
lurking in the proposed treatment. There is also a duty to impart
information, which the Plaintiff has every right to expect. In this case,
Defendant had a duty to make adequate disclosure to Plaintiff.
400
Canterbury v. Spence
!
Defendant's noncompliance with the professional custom to reveal, like
any other departure from prevailing medical practice, may give rise to
liability to Plaintiff. However, Plaintiff's cause of action is not dependant
upon the existence and nonperformance of irrelevant, professional
tradition. The standard measuring performance of the duty to disclose by
doctors, as by others, is conduct, which is reasonable under the
circumstances.
!
It is unrealistic to expect doctors to discuss with their patients every risk of
proposed treatment, no matter how small or remote and generally
unnecessary from the patient's viewpoint. A risk is material when a
reasonable person, in what the doctors knows or should know to be the
patient's position, would be likely to attach significance to the risk or
cluster of risks in deciding whether or not to forgo the proposed therapy.
!
A doctor bears no responsibility for the discussion of hazards the patient
has already discovered.
!
When a genuine emergency arises, the impracticality of conferring with
the patient dispenses a need for it. Also, a doctor does not have to disclose
the risk of treatment if the disclosure would make the patient become ill or
emotionally distraught.
!
The privilege to withhold information does not include the paternalistic
notion that the doctor may remain silent simply because divulgence might
prompt the patient to forgo therapy the doctor feels the patient really
needs.
Discussion. In this case, the court was concerned with Defendant's attempt to sensor
from the Plaintiff the risk of surgery.
401
Anon.
Anon.
Citation. 87 Eng. Rep. 791 (K.B. 1703).
Brief Fact Summary. Facts not revealed in the casebook.
Synopsis of Rule of Law. If a statute gives a person a right, it also gives that person the
right to receive remedy from anyone who violates his right by that statute.
Facts. Facts not revealed in the casebook.
Issue. There was no ascertainable issue in the casebook.
Held. If a statute gives a person a right, it also gives that person the right to receive
remedy from anyone who violates his right by that statute.
Discussion. If the government enacts a statute, then those wronged by people violating
that statute have a remedy in law, not merely in equity.
402
Osborne v. McMasters
Osborne v. McMasters
Citation. 41 N.W. 543 (Minn. 1889).
Brief Fact Summary. Defendant sold Plaintiff poison without labeling it as such. Not
knowing it was poison, Plaintiff consumed it and died.
Synopsis of Rule of Law. When a statute or municipal ordinance imposes upon any
person a specific duty for the protection or benefit of others, if he neglects to perform that
duty he is liable to those for which the statute was designed to protect or benefit.
Facts. Defendant's clerk in his drugstore sold to Plaintiff a deadly poison without
labeling it as "Poison" as required be statute. Not knowing it was poison, Plaintiff
consumed it and died. Plaintiff sued Defendant for negligence. Defendant appealed.
Issue. Is Defendant negligent for the breach of duty imposed by statute?
Held. Yes. Judgment affirmed.
!
In this case, Defendant was in violation of Section 329 of the Penal Code
and Section 14, c. 147, Laws 1885. The purpose of these statutes was to
protect the public against the dangerous qualities of poison. When a statute
or municipal ordinance imposes upon any person a specific duty for the
protection or benefit of others, if he neglects to perform that duty he is
liable to those for which the statute was designed to protect or benefit. In
this case, Plaintiff is a consumer of the poison. The statute was intended to
protect Plaintiff, and Defendant violated the statute. Thus, Defendant is
liable to Plaintiff for the breach of duty imposed by the statutes.
!
Negligence is the breach of legal duty. It is immaterial whether the duty
breached is imposed by statute or by common law. The only difference is
that a breach of duty imposed by common law is to be determined by
common law principles. A breach of duty imposed by statue constitutes
conclusive evidence of negligence, or negligence per se. In this case the
statutes established a fixed standard by which the fact of negligence may
be determined. In the breach of the duty imposed by statute, Defendant is
negligent per se.
Discussion. Negligence can be a breach of a duty imposed by common law or a breach
of a duty imposed by a statute. A breach of a duty imposed by statute is called negligence
per se, it is conclusive evidence of negligence. However, to recover under negligence per
se, the legislature must have intended to protect Plaintiff from an injury that they had
contemplated when passing the statute, and Plaintiff must be in the group of people that
the legislature intended to protect.
403
Martin v. Herzog
Martin v. Herzog
Citation. 126 N.E. 814 (N.Y. 1920).
Brief Fact Summary. Plaintiff was killed when Defendant's automobile crashed into
Plaintiff's buggy. Defendant requested a ruling that the lack of lights on Plaintiff's buggy
was prima facie evidence of contributory negligence.
Synopsis of Rule of Law. Jurors have no dispensing power by which they may relax the
duty that one traveler on the highway owes under the statute to another.
Facts. The decedent (Plaintiff) was killed when Defendant's automobile crashed into
Plaintiff's buggy. The accident was at night, when it was dark, and Plaintiff was operating
his buggy without any lights, in violation of a statute. Defendant requested a ruling that
the absence of lights on Plaintiff's buggy was prima facie evidence of contributory
negligence. The trial court refused Defendant's request. The jury found Defendant liable
and Plaintiff free from contributory negligence. The appellate court reversed the trial
court's judgment. Plaintiff appealed the appellate court's ruling.
Issue. Does the jury have the dispensing power by which they may relax the duty that
one traveler on the highway owes under the statute to another?
Held. No. The appellate court's verdict is sustained.
!
The unexcused omission of the statute is negligence in itself, or negligence
per se. In this case, there was an excuse for Plaintiff to be driving without
lights. Lights are intended for the guidance and protection of other
travelers on the highway. Jurors should not have been permitted to treat
the omission of lights either as innocent or as culpable. Plaintiff's omission
of lights was a wrong. Being unexcused, it was also a negligent wrong. No
license should have been conceded to the tiers of facts to find it anything
else.
!
In this case, the court also distinguishes the question of negligence and the
question of causation. It is not enough that Plaintiff was negligent in
failing to light his buggy. For Plaintiff to be negligent, his negligence must
also be the cause of the accident. A plaintiff who travels without lights
does not forfeit the right to recover damages unless the absence of lights is
at least a contributing cause of the incident. Negligent conduct does not
always equate to contributory negligence.
Discussion. The jury may not discount a breach of a statutory duty. The question of duty
is a question of law. The jury is the trier of facts. Plaintiff wrongfully violated a statute
intended for the protection of Defendant. Plaintiff is negligent per se. The only thing left
to determine is causation and injury. If Plaintiff's failure to light the buggy was the cause
of the accident, then it is contributory negligence.
404
Brown v. Shyne
Brown v. Shyne
Citation. 151 N.E. 197 (N.Y. 1926).
Brief Fact Summary. Plaintiff was paralyzed after Defendant performed nine
chiropractic treatments without a license. The jury was permitted to infer negligence from
the violation of the statute.
Synopsis of Rule of Law. If violation of the statute by the defendant was the proximate
cause of the plaintiff's injury, then the plaintiff may recover upon proof of violation. If
violation of the statute has no direct bearing on the injury, proof of the violation becomes
irrelevant.
Facts. Plaintiff hired Defendant to give her chiropractic treatment. Defendant was not
licensed to practice medicine, yet he held himself out as being able to diagnose and treat
disease. Defendant was guilty of a misdemeanor for holding himself out as a licensed to
practice medicine. Plaintiff received a jury award in the sum of $10,000.00. For the
purposes of appeal, the court assumes Plaintiff's paralysis was caused by Defendant's
treatment. Defendant appealed.
Issue. If a violation of statute has no direct bearing on the injury, does proof of that
violation become irrelevant?
Held. Yes. Judgment reversed.
!
If violation of the statute by the defendant was the proximate cause of the
plaintiff's injury, then the plaintiff may recover upon proof of violation. If
violation of the statute has no direct bearing on the injury, proof of the
violation because irrelevant. The license to practice medicine confers no
additional skill upon the practitioner; nor does it confer immunity from
physical injury upon a patient unless the practitioner fails to exercise care.
!
The protection, which the statute was intended to provide, was against risk
of injury by the unskilled or careless practitioner. Unless Plaintiff's injury
was caused by carelessness or lack of skill, Defendant's failure to obtain a
license was not connected with the injury. The mere failure to be licensed
does not impute carelessness. To show negligence, Plaintiff needs to prove
that Defendant treated Plaintiff with lack of skill.
!
Defendant must satisfy the professional standards of skill and care
prevailing among those who are licensed. If injury follows for failure to
meet those standards, then Plaintiff may recover. In order to show that
Plaintiff has been injured by Defendant's breach of the statutory duty,
proof must be given that Defendant in such treatment did not exercise the
care and skill which would have been exercised by qualified practitioners
within the state, and that such lack of skill and care caused the injury.
405
Brown v. Shyne
Failure to obtain a license as required by law gives rise to no remedy if it
has caused no injury.
Dissent. (Justice Crane) Defendant is liable irrespective of negligence. The prohibition
against practicing medicine without a license was for the very purpose of protecting the
public from what occurred in this case. The violation was the direct and proximate cause
of the injury. If Defendant, in violation of the statute, takes his chances in trying to cure a
disease, and his acts result directly in injury, he should not complain if the law says that
his violation of the statute is some evidence of his incapacity.
Discussion. The court held that it was not required that Defendant be licensed in order to
avoid liability for negligence. Defendant could have treated Plaintiff with all the skill and
care required of a licensed professional, and Plaintiff could have nonetheless suffered
injuries. In such a case, Defendant would not be liable. The lack of care and skill is
evidence of Defendant's negligence, not the failure of Defendant to obtain a license.
406
Uhr v. East Greenbush Central School District
Uhr v. East Greenbush Central School District
Citation. 720 N.E.2d 886 (N.Y. 1999).
Brief Fact Summary. East Greenbush Central School District (Defendant) failed to
properly diagnosis Plaintiff's scoliosis at its early stage. Plaintiff sued under a statute,
which requires school authorities to examine students for scoliosis.
Synopsis of Rule of Law. A statutory duty does not per se confer a private right of
action.
Facts. Plaintiff was inflicted by scoliosis. The New York Education Law Article, Section
905 requires school authorities in New York to examine students between ages eight and
sixteen for scoliosis at least once a year. In the 1992-1993 school year, Plaintiff was
screened for scoliosis, but the test was negative. In the following year, Plaintiff was not
screened. However, in 1995, as a ninth grader, an examination for scoliosis illustrated
that she had the infliction. An examination by an orthopedic doctor concluded that her
scoliosis had progressed to the point that surgery was required, instead of the braces that
can often be utilized when the condition is diagnosed earlier. Plaintiff sued the Defendant
under Section 905 and for common law negligence.
Issue. Does Section 905, authorize a private right of action?
Held. No. Judgment affirmed.
!
A statutory command does not necessarily carry with it a right of private
enforcement by means of tort litigation. When a statute itself expressly
authorizes a private right of action there is no need for further analysis.
!
When a statute is silent, as it is here, courts have had to determine whether
a private right of action may be fairly implied. The test for a private right
of action is: (1) whether the plaintiff is one of the class for whose
particular benefit the statute was enacted; (2) whether recognition of a
private right of action would promote the legislative purpose; and, (3)
whether creation of such a right would be consistent with the legislative
scheme. In this case, Plaintiff has satisfied the first two parts, and the court
focuses on the third requirement
!
Plaintiff argued that a private right of action is necessary for enforcement
of the statute. However, the Legislature has vested the Commissioner with
the power to withhold public funding from noncompliant school districts.
Thus, the legislature clearly contemplated administrative enforcement of
the statute.
!
In Section 905(2), states that the school district shall not suffer any
liability to any person as a result of making such test or examination.
407
Uhr v. East Greenbush Central School District
Therefore, Section 905 (2) is compelling evidence that the Legislature did
not intend to provide a private right of action. However, Plaintiff claims
that Section 905(2) only applies when there was an examination, not when
Defendant fails to perform an examination. Plaintiff interprets the statute
as conferring immunity for misfeasance, but not nonfeasance. The court
disagreed.
!
The court in Bello v. Board of Education stated in dicta that "the
legislature did not intend to impose liability either for the making of the
tests, or for the failure to make the tests." Shortly after Bello, the
Legislature amended Section 905 (2), but only to require parental
notification and not to confer a private right of action. This is strong
evidence of the Legislature's conclusion that the court in Bello correctly
interpreted the statute's failure to confer a private right of action.
!
There is also the concern of cost to the school districts. Orthopedists
agreed to volunteer their time and expertise to train school personnel on
the simple examination procedure. The Legislature did not intend that the
districts bear the potential liability for a program that benefits a far wider
population.
!
Plaintiffs did not state a cause of action for common law negligence
Discussion. A statutory duty does not per se confer a private right of action. If a statute
is silent as to a private right of action, then the three-pong test should be applied.
408
Baltimore and Ohio R.R. v. Goodman
Baltimore and Ohio R.R. v. Goodman
Citation. 275 U.S. (1927).
Brief Fact Summary. Goodman (Plaintiff) was struck and killed by Baltimore and Ohio
R.R.'s (Defendant's) train when Plaintiff crossed a train track. Defendant argued that
Plaintiff's own negligence caused his death.
Synopsis of Rule of Law. The question of due care is generally left to the jury. When
the standard is clear, the court should make the decision. However, "when the standard is
clear, the Courts should lay it down once and for all."
Facts. Plaintiff was driving his automobile truck and was killed by a train operated by
Defendant running at a rate of speed not less than sixty miles per hour. Plaintiff's estate
argued that he had no practical view beyond a section house until he was about twenty
feet from the rail, or twelve feet from danger. Defendant's engine was obscured by said
section house. Plaintiff had been driving at ten or twelve miles per hour, but slowed down
to five or six miles per hour as he neared the crossing. The railroad line was straight, it
was daylight, and Plaintiff was familiar with the crossing. Plaintiff brought suit against
Defendant. Defendant argued that Plaintiff's own negligence caused his death. Defendant
requested a directed verdict, however it was denied. The jury found for the Plaintiff. This
decision was affirmed by the Circuit Court of Appeals. Defendant appealed.
Issue. Not knowing whether or not a train was coming, did Plaintiff assume the risk
when he crossed the train track without first exiting his vehicle and checking?
Held. Yes. Judgment reversed.
!
Plaintiff is responsible for his own death. Plaintiff knows that he must stop
for the train. If a driver cannot be sure if a train is dangerously near, then
he must stop and get out of his vehicle to check. If he does not, he fails to
meet the standard of conduct required of a careful driver and is responsible
for his injuries.
!
The question of due care very is left to the jury. However, "when the
standard is clear, the Courts should lay it down once and for all."
Discussion. In this case, the court found that Plaintiff assumed the risk of being hit by a
train when he failed to stop and get out of his vehicle to check for an approaching train.
The court held that the jury should not decide the standard of care in this case because
there is a clear duty to get out of the vehicle and check for trains.
409
Pokora v. Wabash Ry. Co.
Pokora v. Wabash Ry. Co.
Citation. 292 U.S. 98 (1934).
Brief Fact Summary. Plaintiff was killed while attempting to cross Wabash Ry. Co.'s
(Defendant's) four railroad tracks. Plaintiff did not get out of his vehicle to obtain a better
view as required by the opinion in Baltimore & Ohio R.R. v. Goodman.
Synopsis of Rule of Law. To get out of a vehicle is uncommon precaution, as everyday
experience informs us. The actions of a plaintiff depend on the situation and the
circumstances, and it is up to the jury to decide whether a particular course of action was
reasonable.
Facts. Defendant had four railroad tracks. Plaintiff, in his vehicle, attempted to cross the
tracks. Plaintiff could not see the main track because a boxcar on the first track obstructed
his view. Plaintiff stopped and listened for a bell or whistle but did not hear either.
Plaintiff did not get out of his vehicle to obtain a better view as the opinion in Baltimore
& Ohio R.R. v. Goodman seemed to require. The trial court directed a verdict for
Defendant on its finding that Plaintiff had been contributory negligent. Defendant
appealed.
Issue. Is there a duty for Plaintiff to stop, exit the vehicle, look and listen before crossing
a railroad track?
Held. No. Judgment reversed.
!
Courts declare standards of prudent conduct at times, but they are taken
over by the facts of life. To get out of a vehicle is an uncommon
precaution, as everyday experience informs us. Besides being uncommon
it is very futile and sometimes dangerous. A train traveling at a speed of
thirty miles per hour will cover a quarter of a mile in 30 seconds. Instead
of helping himself by getting out, Plaintiff might do better to press
forward. A train at rest at a station could be moving in the time it takes
Plaintiff to return to his vehicle.
!
Defendant did not show whether there was a locomotive at the forward
end, or whether the cars were so few that a locomotive could be seen. If
Plaintiff was to leave his vehicle near the curb, there was even stronger
reason to believe that the space covered in going back and forth would
make his observations worthless.
!
To get out of the train to look and listen for oncoming trains is not natural
behavior in its customary form, but a rule artificially developed and
imposed. Because there is no guide of customary conduct, the safeguards
and judgment of Plaintiff is for the jury to decide and not the judge.
410
Pokora v. Wabash Ry. Co.
Discussion. The jury gets to decide whether or not Plaintiff is required to get out of his
vehicle and look for trains. There is no standard requiring that Plaintiff always get out
and look and listen for a train each time he comes upon a track, because that is
uncommon conduct.
411
Jewell v. CSX Transportation, Inc.
Jewell v. CSX Transportation, Inc.
Citation. 135 F.3d 361 (6th Cir. 1998).
Brief Fact Summary. Plaintiffs' pickup truck was struck on a railroad crossing. The
wife and daughter sustained injuries, but the husband died.
Synopsis of Rule of Law. There must be sufficient evidence presented to raise a
material issue of fact for the jury. A directed verdict is proper only when no reasonable
juror could find for the nonmoving party.
Facts. Plaintiffs were traveling in their pickup truck in a rural area. As the pickup truck
approached the railroad crossing, the road narrowed and went up an incline to cross the
elevated tracks. There were no lights, bells, or mechanical gates guarding the railroad
crossing. The only warning devices were standard cross bucks. As the Plaintiffs crossed
the tracks, the train struck and all three were thrown from the pickup truck. Husband died
and wife and daughter sustained injuries. Plaintiffs alleged that CSX Transportation, Inc.
(Defendant), was negligent in failing to sound a warning as the train approached the
crossing, the train crew failed to exercise ordinary care in the operation of the train, and
that the railroad crossing was extra-hazardous. The district court issued a directed verdict
that the railroad crossing was not extra-hazardous. The jury returned a verdict for
Defendant. Plaintiffs appealed.
Issue. There are two issues in this case:
!
Was it proper for the district court to determine that the railroad crossing
was not extra-hazardous as a matter of law?
!
Was the jury verdict supported by sufficient evidence, in that a reasonable
juror could find for Defendant?
Held. Yes, the district court correctly concluded that the crossing was not extrahazardous as a matter of law. Yes, the jury verdict was supported by sufficient evidence.
Judgment for Defendant affirmed.
!
Because this is a diversity case, Kentucky law governs the issue of the
extra-hazardous crossing. A railroad is not required to have gates, lights,
or other warnings at a railroad crossing unless there is a statute imposing
such warnings, or the railroad crossing is extra-hazardous. An extrahazardous crossing is one that the ordinary prudent person would not be
sufficiently alerted by the usual and statutory signals and would not
appreciate the degree of danger involved unless given greater warning of
the actual approach of a train.
!
In this case, there were no physical obstructions to Plaintiffs' ability to see
and hear the oncoming train. Under Kentucky law, to be ultra-hazardous,
412
Jewell v. CSX Transportation, Inc.
the crossing must present an actual physical inability to see and hear, and
not merely a disinclination to look for a train due to the angle of the
intersection, distractions or diversions. The crossing was not ultra
hazardous as a matter of law. The district court was correct when it issued
a directed verdict that the railroad crossing was not extra-hazardous.
!
Plaintiffs also argue that the jury verdict was not supported by substantial
evidence because no reasonable jury could have determined that the train
sounded its whistle prior to the collision. However, the conductor of the
train testified that the whistle was sounded continuously through the
crossing even after the collision occurred. The court gives substantial
deference to jury verdicts. The testimony of the conductor was sufficient
to create a question of fact for the jury. There was substantial evidence
from which a jury could reasonably conclude that the whistle was sounded
prior to the accident.
Discussion. Under the applicable law, Defendants needed to produce evidence of the
standards required for ultra-hazardous. Defendants failed to meet these standards and it
was proper for the district court to hold that the crossing was not ultra-hazardous as a
matter of law. The court gives substantial deference to jury verdicts. The jury is the trier
of fact, so they determine who is lying and who is telling the truth. There was evidence
presented that the whistle was sounded prior to the collision. It does not matter that more
evidence was presented that it was not sounded. The jury believed the conductor's
testimony and the court would not substitute its fact-finding for that of the jury's
413
Byrne v. Boadle
Byrne v. Boadle
Citation. 159 Eng. Rep. 299 (Ex. 1863).
Brief Fact Summary. Plaintiff was struck in the head by a barrel of flour while passing
in front of Defendant's flour store. Plaintiff sued Defendant for negligence.
Synopsis of Rule of Law. It is possible for a presumption of negligence to arise solely
from the type of accident that has occurred.
Facts. Plaintiff, a pedestrian was passing along the highway in front of a flour store
when Plaintiff was struck and badly injured by a barrel of flour, which was being lowered
from a window above. Defendant argued that there was insufficient evidence of
negligence for the jury after the jury awarded Plaintiff £50. The trial court agreed with
Defendant and entered a non-suit verdict against Plaintiff. Plaintiff appealed. On appeal
in the Court of Exchequer, Defendant claimed that a purchaser of flour or a complete
stranger was supervising the lowering of the barrel of flour and that its fall was not
attributable in any way to Defendant or his servants. Judgment for Plaintiff. Defendant
appealed.
Issue. In this case, must Plaintiff present affirmative evidence of Defendant's negligence
in order to maintain an action?
Held. No. Judgment for Plaintiff affirmed.
!
There are many accidents from which no presumption of negligence can
arise. However it is wrong to impose a rule that in no case can
presumption of negligence arise from the fact of an accident.
!
Suppose a barrel rolled out of the store and stuck Plaintiff. It is the duty of
persons who keep barrels in a warehouse to use care in making sure they
do not roll out. A barrel could not roll out of a store without some
negligence. For a plaintiff to call witnesses to prove negligence seems
preposterous.
!
In this case, Plaintiff is passing in front of the premises of a dealer in flour.
A barrel of flour falls on him. It is apparent that the barrel was in the
custody of Defendant, and the fact that it fell is prima facie evidence of
negligence. Plaintiff, who was injured by it, is not required to show that it
could not fall without negligence. If there are facts inconsistent with the
presumption of negligence, then it is for Defendant to prove them.
Discussion. This case introduces the concept of res ipsa loquitur, "the thing speaks for
itself." Because of the circumstances and type of accident, Plaintiff was only required to
prove the fact of an accident. An inference of negligence is presumed. The burden then
shifts to Defendant to prove that there was no act of negligence in the accident.
414
Colmenares Vivas v. Sun Alliance Insurance Co.
Colmenares Vivas v. Sun Alliance Insurance Co.
Citation. 807 F.2d 1102 (1st Cir. 1986).
Brief Fact Summary. Plaintiffs suffered injuries in an accident, while riding an
escalator. Defendants were granted a directed verdict when the lower court held that the
doctrine of res ipsa loquitur did not apply.
Synopsis of Rule of Law. For res ipsa loquitur to apply: (1) the accident must be of a
kind which ordinarily does not occur in the absence of someone's negligence; (2) it must
be caused by an agency or instrumentality within the exclusive control of defendant; and,
(3) it must not be due to any voluntary action on the part of plaintiff. If these three
requirements are met, then the jury may infer that defendant was negligent even though
there is not direct evidence to that effect.
Facts. Jose Colmenares Vivas (Husband) and his wife, Dilia Arreza de Colmenares
(Wife), (Plaintiffs) arrived at the international airport in Puerto Rico. They took the
escalator on their way to the Immigration and Customs checkpoint. Wife was riding on
the escalator, holding on to the handrail one step above Husband. The handrail stopped
but the steps continued moving. Wife lost her balance and Husband grabbed her from
behind to prevent her fall. In doing so, Husband lost his balance and tumbled down the
stairs of the escalator. Plaintiffs filed suit against Sun Alliance Insurance Company
(Defendant), who is the liability insurance carrier for the airport's owner and operator.
Defendant brought a third-party action against Westinghouse Electric Corporation
(Westinghouse) based on a maintenance contract. The trial court ruled there was no
evidence that Defendant had been negligent and that the case could not go to the jury
based on res ipsa loquitur because at least one of the requirements for its application, that
the injury-causing instrumentality was within the exclusive control of Defendant, was not
met.
Issue. Does the doctrine of res ipsa loquitur apply?
Held. Yes. Judgment reversed.
!
Three requirements must be met for res ipsa loquitur to apply: (1) the
accident must be of a kind which ordinarily does not occur in the absence
of someone's negligence; (2) it must be caused by an agency or
instrumentality within the exclusive control of Defendant; and, (3) it must
not be due to any voluntary action on the part of Plaintiff. If these three
requirements are met, then the jury may infer that Defendant was
negligent even though there is not direct evidence to that effect.
!
In this case, the first requirement is met because an escalator handrail
probably would not stop suddenly, while the escalator continues moving
unless someone had been negligent. This requirement would not be met if
Plaintiffs had shown nothing more than they had been injured on the
415
Colmenares Vivas v. Sun Alliance Insurance Co.
escalator, because on this fact alone, it would not be likely that someone
other than Plaintiffs had been negligent.
!
As to the second requirement, the district court found that the escalator
was not within the exclusive control of the Defendants. However,
Defendants effectively had exclusive control over the escalator because
the authority in control of a public area had a non-delegable duty to
maintain its facilities in a safe condition.
!
The purpose of the second requirement is not to restrict the application of
the res ipsa loquitur inference, but to eliminate the possibility that the
accident was caused by a third party. It is not necessary for Defendant to
have had actual control. It is enough that Defendant, and not a third party,
was ultimately responsible.
!
Unless the duty is delegable, the res ipsa loquitur inference is not defeated
if Defendant had shifted physical control to an agent or contracted with
another to carry out its responsibilities. In this case, Defendant could not
delegate its duty to maintain the escalator. There is no set rule used to
determine whether or not a duty is delegable. The critical determination is
whether the responsibility is so important to the community that it should
not be transferred to another. Here, the duty to maintain a safe escalator,
used rigorously in a public airport, is important enough to the community
that it may not be delegated to another. Defendant recognized this duty
because Defendant made daily inspections of the escalator despite the
maintenance contract with Westinghouse.
!
There is a general tort law policy not to allow an entity to shift by contract
its responsibility for keeping an area used by the public in a safe condition.
!
The third requirement for res ipsa loquitur requires that the accident was
not the result of Plaintiffs' voluntarily actions. In this case, there is no
evidence that Plaintiffs did anything but ride the escalator.
Dissent. The mere reason that the handrail stopped and Plaintiffs fell, without further
evidence as to why the handrail malfunctioned, does not give rise to an inference of
negligence by Defendant. The majority applied a strict liability rule incorrectly.
Discussion. This case sets the three requirements necessary for res ipsa loquitur. As to
the second requirement, the court determined that the duty to maintain an escalator was
important enough that it could not be contracted out to avoid tort liability.
416
Ybarra v. Spangard
Ybarra v. Spangard
Citation. 154 P.2d 687 (Cal. 1944).
Brief Fact Summary. Plaintiff brought suit for negligence after he sustained injuries by
Defendants during the course of a surgical operation. Judgment was entered for
Defendants after the court held that the doctrine of res ipsa loquitur did not apply.
Synopsis of Rule of Law. When Plaintiff receives unusual injuries while unconscious
and in the course of medial treatment, all those defendants who had any control over his
body or the instrumentalities, which might have caused the injuries, may properly be
called upon to meet the inference of negligence by giving an explanation of their conduct.
Facts. Plaintiff consulted Dr. Tilley (Defendant) who diagnosed his ailment as
appendicitis. An appendectomy was to be performed by Dr. Spangard (Defendant).
Plaintiff was given a hypodermic injection and was awaken by Dr. Tilley and Dr.
Spangard to be wheeled into the operating room by nurse Gisler (Defendant). Dr. Reser
gave Plaintiff an anesthetic and Plaintiff lost consciousness. The next morning, Plaintiff
regained consciousness and was accompanied by special nurse Thompson (Defendant),
and another nurse who was not a party to the suit. When Plaintiff regained consciousness,
he felt a sharp pain in his right shoulder. Prior to the appendectomy, Plaintiff did not have
pain or a prior injury to his right shoulder. The condition grew worse and Plaintiff
developed paralysis and atrophy of the muscles around his shoulder. Plaintiff sued
Defendants for negligence. The trial court entered judgments of nonsuit as to all
defendants. Plaintiffs appealed. Plaintiff's theory is that there is sufficient evidence for
the application of the doctrine of res ipsa liquitur.
Issue. Is res ipsa loquitur appropriately invoked in cases of injury from medical
treatments when there were multiple doctors and nurses involved in the care of a patient?
Held. Yes. Judgment reversed.
!
The doctrine of res ipsa loquitur has three conditions: (1) the accident
must be of a kind which ordinary does not occur in the absence of
someone's negligence; (2) it must be caused by an agency or
instrumentality within the exclusive control of Defendant; and (3) it must
not be due to any voluntary action on the part of Plaintiff. The doctrine of
res ipsa loquitur is applicable to Plaintiff because he is a patient who
submitted himself to the care and custody of doctors and nurses, is
rendered unconscious, and receives injury from instrumentalities used in
his treatment.
!
If the doctrine of res ipsa loquitur did not apply to Plaintiff's case, then,
because of the multitude of different doctors and nurses, it would be
impossible for Plaintiff to recover unless the doctors and nurses
voluntarily decided to disclose the negligent person and the facts
417
Ybarra v. Spangard
necessary to establish liability. Doctors and nurses are not about to point
fingers at one another. In order for Plaintiff to recover without the use of
this doctrine, courts would be forced to invoke the principles of absolute
liability, irrespective of negligence.
!
The condition that the injury must not have been due to Plaintiff's
voluntary action is fully satisfied. The condition that the accident must be
one which ordinarily does not occur unless someone was negligent is fully
satisfied.
!
Defendants argue that Plaintiff has not shown an injury caused by an
instrumentality under a defendant's control because Plaintiff has not
shown which of the several instrumentalities caused the injury and that the
instrumentality was under the control of a defendant. In a modern hospital,
a patient is quite likely to come under the care of a number of persons in
different types of contractual and other relationships with each other. But
neither the number nor the relationship of Defendants alone determines
whether the doctrine of res ipsa loquitur applies. Each Defendant was
bound to exercise ordinary care to see that no unnecessary harm came to
Plaintiff and each would be liable for failure in this regard.
!
It is manifestly unreasonable for Defendants to insist that Plaintiff identify
any one of them as the person who did the alleged negligent act. It is
enough that Plaintiff can show an injury resulting from an external force
applied while he lay unconscious in the hospital.
Discussion. If res ipsa loquitur was not applicable, then Defendants would be free to
keep silent and Plaintiff would not be able to recover for his injuries. When the xourt
determines that res ipsa loquitur should apply, negligence is presumed to all Defendants
in the care of Plaintiff. It forces Defendants to talk, discuss, and point to the cause of
Plaintiff's injuries. It essentially transfers the burden to Defendants. This is appropriate
because the Defendants had exclusive control over Plaintiff, the injury was not the type
that would occur without negligence and Plaintiff did not contribute to his injuries.
418
CHAPTER IV.
Plaintiff's Conduct
419
Butterfield v. Forrester
Butterfield v. Forrester
Citation. 103 Eng. Rep. 926 (K.B. 1809).
Brief Fact Summary. Plaintiff was thrown off his horse and injured after he struck a
pole. Defendant had put the pole across part of the road for the purpose of making some
repairs to his house. Plaintiff sued Defendant for negligence.
Synopsis of Rule of Law. Plaintiff cannot recover for hitting an obstruction caused by
the fault of Defendant if Plaintiff did not himself use common and ordinary care to avoid
the obstruction.
Facts. Plaintiff was riding in town and there was just enough light left to discern the
obstruction within 100 yards. A witness testified that if Plaintiff had not been riding very
hard he might have observed and avoided the pole. Plaintiff sued Defendant for
negligence. The trial court directed the jury that if Plaintiff was riding along the street
extremely hard, and without ordinary care, they should find a verdict for Defendant. The
jury returned a verdict for Defendant and Plaintiff appealed.
Issue. Is Plaintiff permitted to recover for injuries sustained by Defendant's negligence,
if Plaintiff was also negligent?
Held. No. Verdict affirmed.
!
(Justice Bayley) If Plaintiff had used ordinary care, then he would have
seen the obstruction. The accident was entirely Plaintiff's fault.
Concurrence. (Chief Justice Lord Ellenborough) Plaintiff cannot recover for hitting an
obstruction caused by the fault of Defendant, if Plaintiff did use common and ordinary
care to avoid the obstruction. One person's fault will not dispense with Plaintiff's duty to
use ordinary care. For Plaintiff to recover two things must occur: (1) an obstruction in the
road by the fault of Defendant; and (2) no want of ordinary care to avoid it on the part of
Plaintiff.
Discussion. This case introduces the student to contributory negligence. Because
Plaintiff was negligent in failing to ride his horse with ordinary care, he is not permitted
to recover for his injuries. Plaintiff's contributory negligence caused the accident.
Defendant was negligent, but there would not have been an accident had Plaintiff
exercised ordinary care. Contributory negligence prevents Plaintiff from recovering from
Defendant.
420
Beems v. Chicago, Rock Island & Peoria R.R.
Beems v. Chicago, Rock Island & Peoria R.R.
Citation. 12 N.W. 222 (Iowa 1882).
Brief Fact Summary. Beems (Plaintiff) was killed when his foot was stuck while trying
to uncouple Chicago, Rock Island & Peoria R.R. Co.'s (Defendant's) speeding railroad
cars. The trial judge instructed the jury that if Plaintiff's foot was caught and run over
without any negligence by Defendant, then they could not find for Plaintiff.
Synopsis of Rule of Law. There is no contributory negligence in this case when Plaintiff
has his foot stuck and is run over by a train because of Defendant's negligence.
Facts. Plaintiff was a brakesman working for Defendant. Plaintiff was trying to uncouple
railroad cars. On his first attempt, he told the operator to check his speed. Believing that
the operator would check his speed, Plaintiff immediately tried to uncouple the cars
again. Plaintiff got his foot caught and was killed. Plaintiff's estate sued for damages. The
trial judge instructed the jury that if Plaintiff's foot was caught and Defendant ran him
over without any negligence, then they could not find for Plaintiff. The jury returned a
verdict for Plaintiff. Defendant appealed.
Issue. Is Defendant liable to Plaintiff in an action for negligence if Plaintiff's foot was
caught?
Held. Yes. Judgment affirmed.
!
If Plaintiff was run over by reason of Defendant's negligence, than it does
not make sense to hold that Defendant is not liable because Plaintiff's foot
was caught.
!
Whatever the Plaintiff's condition was at the time of the accident, whether
free to move or fastened in place, Defendant is liable if its cars were
negligently driven over Plaintiff.
Discussion. In this case, the court determined that Plaintiff's foot being caught did not
amount to contributory negligence. Defendant was liable to Plaintiff. Plaintiff's foot being
caught would not prevent him from recovering.
421
Gyerman v. United States Lines Co.
Gyerman v. United States Lines Co.
Citation. 498 P.2d 1043 (Cal. 1972).
Brief Fact Summary. Plaintiff, a longshoreman, was injured while he unloaded
fishmeal sacks, which belonged to the United States Lines Co. (Defendant). Plaintiff
knew the sacks were stacked in a dangerous manner, but he still attempted to unload
them. The trial court found that both parties were negligent, therefore, Plaintiff was
barred from recovery.
Synopsis of Rule of Law. The burden of proving all aspects of the affirmative defense
of contributory negligence, including causation, rests on the defendant, unless the
elements of the defense may be inferred from the plaintiff's evidence.
Facts. Plaintiff was injured while unloading fishmeal sacks for Defendant. Fishmeal is
very difficult cargo to handle. Plaintiff had been assigned to break down the fishmeal
sacks. Before he started, he noted that the sacks were not properly arranged. Plaintiff
complained to Noel, Defendant's chief marine clerk, that is was dangerous to proceed
with the work in question. Plaintiff was told that there was nothing that could be done
about it. Plaintiff did not speak to his own supervisor, even though the union contract
with his employer provided that "[l]ongshoremen shall not be required to work when in
good faith they believe that to do so is to immediately endanger health and safety" and
established a grievance procedure "to determine whether a condition is safe or unsafe."
During the first three days, a large number of fishsacks fell, but no harm resulted. On the
fourth day, twelve sacks fell simultaneously and one of them came towards Plaintiff.
Plaintiff sustained injuries to his back and legs as a result of the incident. The trial judge
found that Defendant was negligent in its failure to stack the fishmeal in a safe manner,
and that his negligence was the proximate cause of Plaintiff's harm. However, the court
held that Plaintiff's negligence in failing to stop work in the face of a known danger
barred his cause of action. Plaintiff appealed.
Issue. Does Defendant bear the burden of proof in establishing Plaintiff's contributory
negligence?
Held. Yes. Judgment reversed. Case remanded with directions for a new trial on the
limited issue of Plaintiff's contributory negligence.
!
Contributory negligence is conduct on the part of Plaintiff, which falls
below the standard to which he should conform for his own protection,
and which is a legally contributing cause co-operating with the negligence
of Defendant.
!
Plaintiff must exercise the amount of care that would be exercised by a
person of ordinary prudence in the same circumstances. In some instances,
Plaintiff may find himself powerless to abandon the task assigned to him.
422
Gyerman v. United States Lines Co.
!
Custom alone does not create the standard of proper diligence. However,
evidence of custom is ordinarily admissible for its bearing upon
contributory negligence.
!
In this case, the trial court determined that Plaintiff's failure to report the
condition was a proximate cause of his injuries, because if he had reported
the condition it could have been corrected. The burden of proving all
aspects of the affirmative defense of contributory negligence, including
causation, rests on Defendant, unless the elements of the defense may be
inferred from Plaintiff's evidence. The burden requires more than
conjecture or speculation.
!
Plaintiff did not create or maintain the dangerous conditions of storage.
Defendant negligently maintained and operated its warehouse. Defendant
had control of its cargo and directed its disposition. Defendant alone
created the risk.
!
Plaintiff was not negligent in his operation of the forklift or in his breaking
down the particular stack of fishmeal. According to the district court,
Plaintiff's negligence consisted solely in his failure to report the dangerous
condition to his own supervisor. Thus, there must be something in the
record showing that Plaintiff's failure to report was a substantial factor in
bringing about his harm. The testimony does not show that the stacks
would have been made safer. The record provides no clue as to what, if
anything, could have been done to break down the stacks of fishmeal more
safely. Other than the fact that there were "men there to take care of the
situation," no evidence at all was offered.
!
The record does not establish that Plaintiff's failure to report the dangerous
condition was a substantial factor in bringing about the fall of the sacks.
Defendant did not meet its burden of proving that Plaintiff's contributory
negligence was the proximate cause of his injuries.
Discussion. Contributory negligence is an affirmative defense. Defendant has the burden
of showing that Plaintiff's failure to report was a substantial factor in bringing about
Plaintiff's harm.
423
LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry.
LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry.
Citation. 232 U.S. 340 (1914).
Brief Fact Summary. Sparks from Chicago, Milwaukee & St. Paul Ry's (Defendant's)
train ignited Plaintiff's stack of straw. The jury found that Defendant negligently operated
its train by allowing it to emit large quantities of sparks and live cinders. However, the
jury found Plaintiff guilty of contributory negligence by placing the exposed stacks
within 100 feet of a railroad track.
Synopsis of Rule of Law. The rights of one man in the use of his property cannot be
limited by the wrongs of another.
Facts. Plaintiff stored about 700 tons of straw in 230 stacks on his land. The stacks were
lined up in two rows. Defendant's train was 70 from the first row and 85 feet from the
second row. One day a high wind carried sparks from Defendant's train to the stack
located 85 feet away. A fire resulted and consumed all the stacks. Plaintiff sued
Defendant for negligence. The jury found that Defendant negligently operated its train by
allowing it to emit large quantities of sparks and live cinders. They also found that
Defendant's negligence was the cause of Plaintiff's harm. However, the jury found
Plaintiff guilty of contributory negligence by placing the exposed stacks within 100 feet
of a railroad track. Plaintiff appealed. Plaintiff argued that there was no issue of
contributory negligence to give to the jury at all.
Issue. Does Plaintiff's act of placing stacks of straw on his land close to Defendant's
railroad constitute contributory negligence?
Held. No. Judgment reversed.
!
Plaintiff's use of the land was a proper use. It did not interfere with nor
embarrass the rightful operation of the railroad.
!
Plaintiff is not restricted to make a lawful use of his property. Plaintiff's
conduct does not amount to contributory negligence because it would
subject Plaintiff to the servitude of the wrongful use of property by
another. The district court's ruling casts upon Plaintiff the duty to use his
own property so that it may not be injured by the wrongs of another.
!
In essence, Defendant is granted immunity from their wrongful acts. The
court does not think that to be logical when Plaintiff was using his land
lawfully. The rights of one man in the use of his property cannot be
limited by the wrongs of another.
Concurrence. (Justice Holmes) A very important element in determining the right to
recover is whether Plaintiff's flax was so near to the track as to be in danger from even a
prudently managed engine. No one would deem it prudent to stack flax within five feet of
424
LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry.
the engines or imprudent to it at a distance of half a mile. Courts should let the jury
decide whether seventy feet is too near. This view depends on differences of degree.
Discussion. Plaintiff does not have to guard against another's wrongful use of their land.
Plaintiff need only make sure that he is using his land properly. The affirmative defense
of contributory negligence is not applicable against a party making a lawful and
reasonable use of their land.
425
Derheim v. N. Fiorito Co.
Derheim v. N. Fiorito Co.
Citation. 492 P.2d 1030 (Wash. 1972).
Brief Fact Summary. Plaintiff suffered injuries when his car collided with Defendant's
truck after Defendant made an illegal left turn. The trial court refused to allow Defendant
to use the seatbelt defense, which would have reduced Plaintiff's damage award.
Synopsis of Rule of Law. The failure of a plaintiff to wear a seat belt does not limit an
award for damages when the defendant is held to be negligent.
Facts. Defendant made a left turn in violation of the rules of the road. Plaintiff's car
collided with Defendant's truck. Plaintiff was not wearing a seatbelt at the time of the
collision. At trial, Defendant argued that Plaintiff's failure to wear a seatbelt was a form
of contributory negligence (the so-called "seatbelt defense"). The trial judge refused to
allow Defendant to amend his answer to raise the seatbelt defense. The trial judge also
refused to allow Defendant's expert to testify that if Plaintiff had warn his seatbelt, he
would not have suffered injuries. The trial court returned a verdict for Plaintiff.
Defendant appealed.
Issue. Does Plaintiff's failure to wear a seat-belt limit a recovery for damages in an
action for negligence?
Held. No. Judgment affirmed.
!
Courts have been inconsistent in their application of the "seatbelt"
defense. The defense does not fit into the familiar doctrines of
contributory negligence, assumption of risk, or avoidable consequences.
The failure to use a seatbelt occurs before defendant's negligence, as
opposed to contributory negligence, which is conduct contributing to the
accident itself.
!
Contributory negligence is an affirmative defense and a complete bar to
Plaintiff's recovery. It would be unjust to bar Plaintiff's recovery when the
failure to wear a seatbelt does not bear on the cause of the accident itself.
The same reasoning applies to the doctrine of assumption of risk. Under
the doctrine of assumption of risk, one who ventures upon the highway
without buckling up is voluntarily assuming the risk of more serious
injuries resulting from a possible accident proximately caused by the
negligence of another.
!
The doctrine of avoidable consequences is akin to the concept of
mitigation of damages. It applies when Plaintiff's conduct after the
occurrence fails to meet the standards of due care. In any case, Defendant
takes the Plaintiff as he finds him.
426
Derheim v. N. Fiorito Co.
!
The concern is that if the seatbelt defense is allowed, then similar defenses
will be allowed for other safety devices equipped in automobiles. This
would unduly lengthen trials and provide a battleground for safety experts,
as well as medical experts. The time and expense of litigation would be
increased.
!
The cases that reject the "seatbelt" defense are the better-reasoned cases. It
is extremely unfair to mitigate the damages of one who sustains those
damages in an accident for which he was in no way responsible.
!
There is no statutory duty in this jurisdiction to wear a seatbelt.
Discussion. The court pointed to the fact that wearing a seatbelt will not prevent the
accident itself from occurring. The seatbelt defense is inherently different from
contributory negligence. Furthermore, it is unjust to bar Plaintiff's recovery when
Plaintiff did nothing to cause the accident itself. Pay attention to the fact that in this
jurisdiction, wearing a seatbelt is not required by statute in 1972.
427
Fuller v. Illinois Central R.R.
Fuller v. Illinois Central R.R.
Citation. 56 So. 783 (Miss. 1911).
Brief Fact Summary. Illinois Central R.R.'s (Defendant's) train stuck a man's wagon
and the driver was killed instantly. Defendant saw the wagon on the track, 660 feet away.
He could have stopped, but did not. Plaintiff claims that Defendant had the last clear
chance to avoid the accident.
Synopsis of Rule of Law. The party who last has a clear opportunity of avoiding the
accident, notwithstanding the negligence of his opponent, is considered solely responsible
for it.
Facts. A man, over seventy-years-old, was riding his one-horse wagon over a straight
stretch of railroad track. Plaintiff had his head down and did not stop to look or listen for
Defendant's oncoming train. Defendant's train was late and was traveling faster than
usual. Plaintiff could see Defendant in plain view, on the track, about 660 feet away.
Defendant could have stopped the light train within 200 feet. However, Defendant did not
slow down. He blew his whistle twenty seconds before impact. Plaintiff was killed
instantly. Plaintiff sued Defendant for negligence. In response to Defendant's claim of
contributory negligence, Plaintiff argued that Defendant had the last clear chance to avoid
the accident. The trial court returned a verdict for Defendant. Plaintiff appealed.
Issue. Is Defendant, who has the last clear chance to avoid an accident, liable for the
accident if he does not avoid it despite the negligence of his victim?
Held. Yes. Reversed and remanded.
!
All that is required of Defendant, as to Plaintiff, a trespasser, is the
abstention from wanton or willful injury or gross negligence. Contributory
negligence is not a defense for an injury that is willfully, wantonly, or
recklessly done.
!
The contributory negligence of the party injured will not defeat the action
for negligence if it is shown that Defendant might, by the exercise of
reasonable care and prudence, have avoided the consequence of the
injured party's negligence. This principle is known as the "last clear
chance doctrine." It was first used in the case of Davies v. Mann. In
Davies, the Plaintiff permitted his donkey to graze on a public highway.
The Defendant's wagon ran over the donkey and killed it. Whether or not
the donkey was wrongfully on the highway, the Defendant could have
avoided the donkey by proper care. In Davies, the Defendant had the last
clear chance to avoid hitting the donkey. It did not matter if Plaintiff was
also negligent, because Defendant had the last clear chance to avoid the
accident.
428
Fuller v. Illinois Central R.R.
!
In this case, like in Davies, Defendant had the last clear chance to avoid
the accident. Plaintiff was in a wagon, and Defendant could have seen that
he was going to cross the track, and could only with difficulty extricate
himself from his perilous position.
Discussion. This case introduces the student to the last clear chance doctrine. For
example, if a driver, while driving his car, sees a pedestrian cross the street in gross
negligence, there is a duty upon that driver to avoid hitting the pedestrian. The driver
cannot hit the pedestrian and then escape an award for damages because pedestrian was
negligent. Driver saw the pedestrian, could have avoided him, and should have avoided
him but he did not. Pedestrian is entitled to collect from driver irrespective of his
contributory negligence.
429
Mills v. Armstrong
Mills v. Armstrong
Citation. 13 App. Cas. 1 (H.L.E. 1888).
Brief Fact Summary. Two ships, the SS Bushire and SS Bernina, collided because of
the mutual negligence of those in charge of and operating each ship. The trial court
imputed the contributory negligence of those in charge of the SS Bushire to the
employees of the SS Bushire (Plaintiffs) so as to bar their recovery under the traditional
law.
Synopsis of Rule of Law. An innocent passenger of vehicle A is not barred from
recovering against a negligent driver of vehicle B even if the driver of vehicle A is
negligent.
Facts. Two ships, the SS Bushire and SS Bernina, collided because of the mutual
negligence of those in charge of and operating each ship. Employees of the SS Bushire
(Plaintiffs) died in the collision. The trial court imputed the contributory negligence of
those in charge of the SS Bushire to the Plaintiffs so as to bar their recovery under the
traditional law. The court of appeals reversed the trial court. The House of Lords affirmed
the court of appeals. Defendants appealed.
Issue. Is the innocent passenger riding on a vessel barred from recovery by the
contributory negligence of the driver of the vessel?
Held. No. Judgment reversed.
!
Defendants argue that they are not liable to Plaintiffs, because those who
were navigating the vessel in which the deceased men (Plaintiffs) were
being carried were guilty of negligence, without which the disaster would
not have occurred. The court disagrees.
!
It does not make sense that a passenger by a public stagecoach, because he
avails himself of the accommodation afforded by it, be identified with the
driver. The passenger has no control over the driver, which would make it
reasonable to hold the former affected by the negligence of the latter.
Discussion. It is unacceptable to hold a passenger liable for a driver's negligence. It is
only acceptable in those situations when the passenger actually is negligent; if he were to
affect the driver in some way as to cause an accident.
430
Lamson v. American Axe & Tool Co.
Lamson v. American Axe & Tool Co.
Citation. 58 N.E. 585 (Mass. 1900).
Brief Fact Summary. Plaintiff was struck with a hatchet while working for Defendant.
Plaintiff warned Defendant of the dangerous condition. Plaintiff sued Defendant for
negligence.
Synopsis of Rule of Law. If an employee knowingly works in a dangerous situation, the
employer is not liable for the inevitable accident, because the employee is assuming the
risk.
Facts. Plaintiff was a hatchet painter in Defendant's hatchet shop. Plaintiff had worked
for Defendant many years. After being painted, hatchets were hung from pegs on a
hatchet rack. The motion of nearby machinery jarred the hatchet rack. A hatchet fell off
its peg and struck Plaintiff. Plaintiff sustained personal injuries. About a year before the
accident, new racks had been substituted for those previously in use. The new racks were
less safe. Plaintiff complained to Defendant that the hatchets were more likely to drop off
than when the old racks were in use. Defendant told Plaintiff to use the new racks or
leave. Plaintiff sued Defendant for negligence.
Issue. Is Plaintiff barred from recovering damages against Defendant for negligence if
Plaintiff assumed the risk of a hatchet falling?
Held. Yes. Judgment affirmed.
!
Plaintiff, as shown in the presentation of his own evidence, appreciated the
danger more than anyone else. It was perfectly clear to him what was
bound to happen. The falling of the hatchet did not require the doing of
some negligent act. Plaintiff assumed the risk.
Discussion. This case discusses the defense of assumption of risk. In this case, it was
very clear what was going to happen to Plaintiff, if he continued to work. Plaintiff
understood this and continued to work anyways. Plaintiff assumed the risk. Modernly,
Plaintiff would have brought suit for worker's compensation.
431
Murphy v. Steeplechase Amusement Co.
Murphy v. Steeplechase Amusement Co.
Citation. 166 N.E. 173 (N.Y. 1929).
Brief Fact Summary. A young man (Plaintiff) was injured on Steeplechase Amusement
Co.'s (Defendant's) amusement park ride, "The Flopper." Plaintiff sued Defendant for
negligence.
Synopsis of Rule of Law. One who takes part in a sport accepts the dangers that are
inherent in it so far as they are obvious and necessary.
Facts. Defendant maintains an amusement park. "The Flopper" is an attraction at
Defendant's park. It consists of a moving belt, running upward on an inclined plane, on
which passengers sit or stand. Many patrons are unable to keep their footing because of
the movement of the belt and are thrown backwards or aside. Plaintiff visited Defendant's
park and stepped upon the moving belt of "The Flopper." As he did so, he felt what he
describes as a sudden jerk, and was thrown to the floor. His wife in front of him and
friends behind him were thrown at the same time. Plaintiff suffered a fractured kneecap.
Plaintiff sued Defendant for negligence. In his claim for negligence, Plaintiff argued that
the belt was dangerous to life and limb in that it stopped and started violently and
suddenly and was not properly equipped to prevent injuries to people who were using it
without knowledge of its dangers. Plaintiff also argued that "The Flopper" was operated
at a fast and dangerous speed and should have been supplied with proper railing or guard.
The lower court returned a verdict for Plaintiff. Defendant appealed.
Issue. Is Defendant (an amusement park) liable for damages to Plaintiff who is hurt on a
ride when it is reasonably foreseeable that some danger is involved?
Held. No. Judgment reversed. New trial granted.
!
The sudden jerk experienced by Plaintiff is irrelevant because the risk of a
jerk was a fall. Plaintiff knew he was subjecting himself to a jerk. A jerk
was the very hazard that was invited and foreseen.
!
One who takes part in a sport accepts the dangers that are obvious and
necessary. In this case, Plaintiff stepped on The Flopper to be jerked and
thrown. It was obvious for Plaintiff to see the possibility that he might fall
down. Moreover, people expected The Flopper to jerk and try to knock
them down. It was necessary aspect of the ride's success as evidenced by
its name, "The Flopper."
!
It is a different case if the dangers inherent in the sport were obscure or
unobserved, or so serious as to justify the belief that precautions of some
kind must have been taken to avert them. This is not the case.
432
Murphy v. Steeplechase Amusement Co.
!
Plaintiff claims he fell on wood and that the padding was defective or
inadequate. He is strongly contradicted by the photographs and witness'
testimony. The padding should have been kept in repair to break the force
of any fall. However the case did not go to the jury for inadequate or
defective padding. It went to the jury for the sudden jerk of the ride.
Discussion. In this case, Plaintiff assumed the risk of a sudden jerk when he stepped on
the moving belt of "The Flopper." It was fairly obvious what the ride entailed and there
were no hidden surprises. Plaintiff assumed the risk of a sudden jerk. Defendant is not
liable to Plaintiff on a theory of negligence for an obvious and necessary sudden jerk.
433
Obstetrics & Gynecologists Ltd. v. Pepper
Obstetrics & Gynecologists Ltd. v. Pepper
Citation. 693 P.2d 1259 (Nev. 1985).
Brief Fact Summary. Rhonda Pepper (Plaintiff) was injured when Obstetrics &
Gynecologists Ltd. (Defendant) prescribed an oral contraceptive. Plaintiff's signature
appeared on Defendant's arbitration agreement. Defendant moved to order arbitration and
to stay the lawsuit pending arbitration.
Synopsis of Rule of Law. There is no assumption of risk when a patient signs an
agreement if the patient does not remember signing it and it was never explained to her.
Facts. Defendant requires its patients to sign an arbitration agreement, which provides
that all disputes shall be submitted to binding arbitration. It was common procedure for
Defendant's receptionist to hand the patient the arbitration agreement along with two
information sheets and inform him or her that any of their questions will be answered.
The patient was required to sign before receiving treatment. If the patient refused to sign
the arbitration agreement, then Defendant would refuse to give treatment. Plaintiff went
to Defendant's clinic to obtain a prescription for an oral contraceptive. Plaintiff suffered a
cerebral incident, which left her paralyzed. Plaintiff's signature is on Defendant's
arbitration agreement, but she did not remember signing it or having it explained to her.
Defendant moved to order arbitration and to stay the lawsuit pending arbitration. The
district court denied both motions. Defendant appealed.
Issue. If a patient signs an arbitration agreement without reading it or understanding it,
does she assume the risk of the agreement?
Held. No. Judgment affirmed and case remanded for further proceedings.
!
Since Defendant set up the existence of the agreement to preclude the
lawsuit from proceeding, it had the burden of showing that a binding
agreement existed. Defendant did not sustain the burden.
!
The arbitration contract was an adhesion contract. An adhesion contract is
a standardized contract form offered to consumers of goods and services
essentially on a "take it or leave it" basis, without affording the consumer
a realistic opportunity to bargain. The weaker party has no choice but to
accept its terms.
!
In this case, Plaintiff had no opportunity to modify its terms. Her choices
were to sign the agreement or forego treatment. There was no clear
notification of the terms and no understanding of consent. It was
reasonable for the district court to find that Plaintiff did not give an
informed consent to the agreement and that no meeting of the minds
occurred.
434
Obstetrics & Gynecologists Ltd. v. Pepper
Discussion. In this case, Plaintiff did not assume the risk of the terms of the arbitration
agreement because she was not aware or made aware of its terms and consequences. The
court applies the law of contracts. Meeting of the minds is a term used to describe offer
and acceptance. This case is used to illustrate that in order to assume a risk, you must be
aware or made aware of the risk.
435
Li v. Yellow Cab Co. of California
Li v. Yellow Cab Co. of California
Citation. 532 P.2d 1226 (Cal. 1975).
Brief Fact Summary. Defendant hit Plaintiff when Plaintiff attempted to cross three
lanes of oncoming traffic in order to enter a service station. Both parties were negligent.
The trial court held that Plaintiff was barred from recovery by her own contributory
negligence.
Synopsis of Rule of Law. The doctrine of comparative negligence assesses liability in
direct proportion to fault.
Facts. Plaintiff attempted to cross three lanes of oncoming traffic in order to enter a
service station. Defendant's driver was speeding, ran a yellow light and struck Plaintiff's
car. Both parties were negligent. The trial court held that Plaintiff was barred from
recovery due to her own contributory negligence. Plaintiff appealed.
Issue. Should the affirmative defense, contributory negligence, give way to a system of
comparative negligence, which assesses liability in direct proportion to fault?
Held. Yes. Judgment reversed.
!
The doctrine of comparative negligence assesses liability in direct
proportion to fault. It is preferable to the "all-or-nothing" doctrine of
contributory negligence from the point of view of logic, practical
experience and fundamental justice. Contributory negligence is inequitable
in its operation because it fails to distribute responsibility in proportion to
fault. Juries often allow recovery in cases of contributory negligence, and
the compromise in the jury room does result in some diminution of the
damages because of plaintiff's fault. Twenty-five states have abrogated the
"all-or-nothing" rule of contributory negligence and have enacted in its
place general apportionment statutes to assess liability in proportion to
fault.
!
Section 1714 does not preclude the court from adopting a system of
comparative negligence. It was not the intention of the Legislature in
enacting section 1714 of the Civil Code to insulate the matters therein
expressed from further judicial development.
!
There are some concerns with the adoption of a system of comparative
negligence. The most serious concern arises when all responsible parties
are not brought before the court. Problems of contribution and indemnity
lurk in the background. A second problem involves the administration of
fact finding. Assigning a specific percentage number can be difficult in the
face of hard facts. A third area of concern is with the doctrines of last clear
chance and assumption of risk. When true comparative negligence is
436
Li v. Yellow Cab Co. of California
adopted, then the doctrine of last clear chance is not used because it will
only give a windfall to Plaintiff. The adoption of a system of comparative
negligence should entail the merger of the defense of assumption of risk
into the general scheme of assessment of liability in proportion to fault, in
those cases where the form of assumption of risk is no more than a form of
contributory negligence. The final concern is with willful misconduct.
!
Two of the indicated areas of concern (multiple parties and willful
misconduct) are not present in this case. These areas will be better decided
in future cases. This case is to be viewed as a first step in what is deemed
to be a proper and just direction.
!
California adopts the "pure" form of comparative negligence as apposed to
the "50-percent" system. Under the pure form of comparative negligence,
liability is apportioned in direct proportion to fault in all cases. Under the
50-percent system, liability is apportioned based on fault up to the point at
which the plaintiff's negligence is equal to or greater than that of the
defendant. Under the 50-percent system, when Plaintiff's negligence is
equal to or greater than Defendant's, Plaintiff is barred from recovery.
!
The system of comparative negligence should apply in all cases in which
the trial has not yet begun.
Concurrence. Justice Mosk and Justice McComb concurred and dissented in part.
!
(Justice Mosk) Justice Mosk did not agree that comparative negligence
should apply in all cases in which the trial has not yet begun.
!
(Justice McComb) Justice McComb thought that section 1714 codified the
common law rule of contributory negligence, which could only be
displaced by other legislation.
Discussion. This case is the precedent for comparative negligence. The affirmative
defense of contributory negligence is no longer used in California. California adopts a
"pure" form of comparative negligence.
437
CHAPTER V.
Multiple Defendants: Joint, Several, And
Vicarious Liability
438
Union Stock Yards Co. of Omaha v. Chicago, Burlington, & Quincy R.R.
Union Stock Yards Co. of Omaha v. Chicago, Burlington, & Quincy
R.R.
Citation. 196 U.S. 217 (1905).
Brief Fact Summary. The employee of Union Stock Yards Co. of Omaha (Plaintiff)
was injured because Plaintiff and Chicago, Burlington, & Quincy R.R. (Defendant)
negligently failed to inspect a defective railroad car. Plaintiff paid damages to the
employee. Plaintiff then sought to recover these paid damages from Defendant in a suit of
contribution.
Synopsis of Rule of Law. When two parties, acting together, commit an illegal or
wrongful act, the party that is held responsible for the act cannot have indemnity or
contribution from the other, because both are equally culpable, and the damage results
from their joint offense.
Facts. A railroad company, Defendant, and a terminal company, Plaintiff, both failed to
inspect a railroad car before putting it in use. The car had a defective nut and injured
Plaintiff's employee. Either Plaintiff or Defendant could have discovered the defective
nut with a reasonable inspection. Both Plaintiff and Defendant were negligent. Plaintiff
paid its employee damages. Plaintiff now seeks to recover these damages from
Defendant. The lower court entered a judgment in favor of Defendant. Plaintiff appealed.
Issue. Can Plaintiff recover, from Defendant, the damages paid to its employee when
Plaintiff and Defendant are both equally at fault?
Held. No. Judgment for Defendant affirmed.
!
The general rule is that one of several wrongdoers cannot recover against
another wrongdoer, although he may have been compelled to pay all the
damages for the wrong done. When two parties, acting together, commit
an illegal or wrongful act, the party that is held responsible for the act
cannot have indemnity or contribution from the other, because both are
equally culpable, and the damage results from their joint offense. If the
employee had brought suit against both Plaintiff and Defendant, then it is
likely that the employee would have received damage awards from both
Plaintiff and Defendant.
!
In some cases, the court has abandoned this rule to impose liability on the
principle wrongdoer. There are exceptions engrafted upon the general rule
of non-contribution among wrongdoers. The law will inquire into the facts
of a case to impose liability upon the one whose wrong was primarily
responsible for the injury sustained.
!
Plaintiff argued that Defendant was primarily responsible for the injury to
employee because it was Defendant that had the first duty of inspection.
439
Union Stock Yards Co. of Omaha v. Chicago, Burlington, & Quincy R.R.
The court did not agree. The negligence of the parties was of the same
character. Both parties failed to inspect when they had a duty to. The facts
of this case do not fall within the exception to the rule, which permits one
wrongdoer that has been held liable for damages to be indemnified or
receive contribution from another.
Discussion. If Defendant's fault had been greater, then Plaintiff may have been allowed
to recover. However, in this case, both Plaintiff and Defendant are equally at fault.
440
American Motorcycle Associations v. Superior Court
American Motorcycle Associations v. Superior Court
Citation. 578 P.2d 899 (Cal. 1978).
Brief Fact Summary. Glen Gregos (Plaintiff) was injured at a motorcycle race, which
was operated by American Motorcycle Associations.
Synopsis of Rule of Law. A concurrent tortfeasor may seek partial indemnity from
another concurrent tortfeasor on a comparative fault basis.
Facts. Defendant sought leave to file a cross-complaint against Plaintiff's parents,
alleging their negligence and improper supervision of their minor son. Defendant also
requested that the judgment be reduced by the amount of the "allocable negligence" of
the parents. The trial court denied Defendant's request. Defendant appealed.
Issue. May a concurrent tortfeasor seek partial indemnity from another concurrent
tortfeasor on a comparative fault basis?
Held. Yes. Judgment reversed.
!
The simple feasibility of apportioning fault on a comparative negligence
basis does not render an indivisible injury "divisible" for purposes of the
joint and several liability rule. Defendant is a concurrent tortfeasor and is
liable for the whole of an indivisible injury whenever his negligence is a
proximate cause of that injury.
!
Defendant has no equitable claim in relation to Plaintiff to be relieved of
liability for damage which he has caused simply because some other
tortfeasor's negligence may also have caused the same harm.
!
Abandonment of the joint and several liability rule is not warranted by
Defendant's claim that after Li, a plaintiff is no longer "innocent." It is true
that under Li, a plaintiff may be found negligent. It is also true that there
will be cases when Plaintiff will be free from all responsibility. The
abandonment of joint and several liability would limit a plaintiff's possible
recovery. If one defendant is indigent, then under joint and several
liability, a plaintiff is not required to bear the burden of the loss when
there are other joint and several defendants liable for the complete amount
of the loss.
!
Plaintiff is partially at fault for his own injury. Plaintiff's culpability is not
equivalent to Defendant's. When the Plaintiff's conduct creates only a risk
of self-injury, it is not tortious.
!
Contribution is the apportionment of loss between multiple tortfeasors.
Indemnity is concerned solely with whether a loss should be entirely
shifted from one tortfeasor to another, rather than whether the loss should
441
American Motorcycle Associations v. Superior Court
be shared between the two. The differences between the two are more
formalistic than substantive. Both find solace in the equitable indemnity
doctrine.
!
The equitable indemnity doctrine states that when two individuals are
responsible for a loss, but one is more culpable than the other, it is only
fair that the more culpable party should bear a greater share of the loss.
Old contributory negligence injected this doctrine with an "all or nothing"
effect. Thus, a defendant could seek complete relief from a more culpable
co-defendant but could seek nothing from a less or equally culpable one.
!
The court holds that the current equitable indemnity rule is modified to
permit a concurrent tortfeasor to obtain partial indemnity from other
concurrent tortfeasors on a comparative basis.
!
The court realizes that Section 877 releases a settling tortfeasor only from
liability for contribution and not partial indemnity. However, the court
finds that from a realistic perspective, the legislative policy dictates that a
tortfeasor who has entered into a good faith settlement must also be
discharged from any claim for partial or comparative indemnity. A
plaintiff's recovery should be diminished only by the amount that the
plaintiff has actually recovered in good faith.
!
Under the common law, a concurrent tortfeasor may seek partial
indemnity from another concurrent tortfeasor on a comparative fault basis.
Dissent. The majority rejects Li in two ways. First, they adopt a joint and several
liability theory, holding that each defendant will be responsible for the loss attributable to
his co-defendant's negligence. Under the majorities holding, a co-defendant who is
minimally liable, might have to pay a large portion of the damage award if other
defendants are indigent. Second, a settlement releases the settling tortfeasor from further
liability and non-settling tortfeasors are left with a diminished recovery but only in the
amount actually received, not an amount apportioned to fault. The Legislature, not the
court is the proper institution to decide the issues presented in this case.
Discussion. This case changes joint and several liability, in that it is now apportioned to
the co-defendant's fault. Joint and several liability now reflects the change from the "all
or nothing" result in contributory negligence to the apportionment of fault in comparative
negligence.
442
McDermott, Inc. v. AmClyde & River Don Castings, Ltd.
McDermott, Inc. v. AmClyde & River Don Castings, Ltd.
Citation. 511 U.S. 202 (1994).
Brief Fact Summary. Plaintiff was injured in a construction accident. Some of the
defendants settled, but two did not. The jury assessed Plaintiff's loss at $2,100,000, and
the court decided how to divide an appropriate damage award against the two nonsettling Defendants.
Synopsis of Rule of Law. The liability of non-settling defendants is calculated by the
jury's determination of proportionate responsibility, not by giving the non-settling
defendants a credit for the amount of the settlement.
Facts. Plaintiff was injured in a construction accident. Plaintiff settled with three of the
Defendants for $1,000,000. AmClyde and River Don Castings, Ltd. (Defendants) did not
settle. A jury assessed Plaintiff's loss at $2,100,000 and allocated 32% of the damages to
Defendant AmClyde and 38% to Defendant River Don Castings, Ltd.
Issue. Is the liability of the non-settling defendants calculated with reference to the jury's
allocation of proportionate responsibility?
Held. Yes. Reversed and remanded for further proceedings.
!
Damages are to be assessed on the basis of proportionate fault when such
an allocation can be made.
!
When Plaintiff settles with one of several joint tortfeasors, the non-settling
defendants are entitled to a credit for that settlement. There is a divergence
among respected scholars and judges about how the credit should be
determined. There are three principal alternatives: (1) a "pro tanto" credit
with a right of contribution against a settling defendant; (2) a "pro tanto"
credit without a right of contribution against a settling defendant; and (3) a
credit for the settling defendants' proportionate share of responsibility for
the total obligation.
!
The proportionate share approach (alternative three) would make
Defendant River Don responsible for $798,000.00 (38% of $2,100,000) in
damages, precisely its share. The "pro tanto" approach (alternative one and
two) would make Defendant River Don responsible for $1,100,000.00
($2,100,000.00 minus $1,000,000.00) in damages.
!
Under the pro tanto approach, a defendant's liability will frequently differ
from its equitable share, because a settlement with one defendant for less
than its equitable share requires the non-settling defendant to pay more
than its share. This would seldom reflect an entirely accurate prediction of
443
McDermott, Inc. v. AmClyde & River Don Castings, Ltd.
the outcome of a trial. It also provides Plaintiff with a "war chest" with
which to finance the litigation against the remaining defendants.
!
To battle this potential for unfairness, "good-faith hearings" have been
used. In a "good-faith hearing," the settling defendant is protected against
contribution actions only if it shows that the settlement is a fair forecast of
its equitable share of the judgment.
!
The pro tanto rule has no clear advantage over the proportionate rule in
promoting settlements.
!
The proportionate share approach is superior.
Discussion. In this case, Plaintiff is going to recover more that what the jury assessed to
be Plaintiff's damage. Because the proportionate share approach does not deduct money
previously received, Plaintiff is basically permitted a double recovery.
444
Ira S. Bushey & Sons, Inc. v. United States
Ira S. Bushey & Sons, Inc. v. United States
Citation. 398 F.2d 167 (2nd Cir. 1968).
Brief Fact Summary. Ira S. Bushey's (Plaintiff's) drydock sustained damage when
United States Coast Guard's (Defendant's) drunken employee, Lane, opened a valve.
Defendant argues that it should not be liable because his employee acted outside the
scope of employment.
Synopsis of Rule of Law. Even if an employee's conduct is not motivated by his
employer's interests, an employer is still vicariously liable for an employee's negligent
acts if the employee's conduct was reasonably foreseeable and within the scope of his
employment.
Facts. Plaintiff was a private drydock owner. Lane was a seaman for the Defendant, who
was walking back to the ship drunk one night and opened a valve. The valve controlled
the drydock. As a result, the ship and part of the drydock both partially sank into the
water. Plaintiff sued Defendant for damages. The district court granted Plaintiff
compensation. Defendant appealed.
Issue. In this case, is an employer (Defendant) liable for the tortious acts of Lane, his
employee?
Held. Yes. Judgment affirmed.
!
Defendant argued that the imposition of liability is improper because his
employee was acting outside the scope of employment.
!
The court found that employee's conduct was not so "unforeseeable" as to
make it unfair to impose liability on the Defendant. Employee was drunk
and on his way back to the ship when caused damage to the ship. It is
reasonably foreseeable that a drunk sailor might do damage to Plaintiff's
drydock while leaving and exiting the ship.
!
The suggestion that imposition of liability here will lead to more intensive
screening of employees rests on highly questionable premises. In this case,
employee is in the navy.
!
The fact that Defendant is better able to afford to pay the damage is not
sufficient to justify legal responsibility. An employer's vicarious liability
rests on the sentiment that a business enterprise cannot justly disclaim
responsibility for accidents, which may fairly be said to be characteristic
of its activities.
!
The outcome of the case would have been different had employee set fire
to the bar where he had been drinking or caused an accident on the street.
The liability of an employer does not reach into areas when the employee
445
Ira S. Bushey & Sons, Inc. v. United States
creates risks different from those attendant to the actives pursued by the
employer.
Discussion. In this case, the court found that the damage done to the dock was
foreseeable. When Defendant grants access and quarters on the boat to drunken sailors, it
is predictable that damage will be done to nearby surroundings, such as Plaintiff's dock.
The imposition of vicarious liability is appropriate in this case because damage done to a
dock is within the possible normal and everyday actives of a ship owner.
446
Petrovich v. Share Health Plan of Illinois, Inc.
Petrovich v. Share Health Plan of Illinois, Inc.
Citation. 719 N.E.2d 756 (Ill. 1999).
Brief Fact Summary. Plaintiff died from tongue cancer. She alleged that Dr. Kowalski,
and thus her HMO, Share Health Plan of Illinois, Inc. (Defendant) under the theory of
vicarious liability, was negligent and tardy in diagnosing her aliment. However, her
doctor is not an employee of Defendant, but rather an independent contractor.
Synopsis of Rule of Law. As a general rule, no vicarious liability exists for the actions
of independent contractors. Vicarious liability may nevertheless be imposed for the
actions of independent contractors when an agency relationship is established under
either the doctrine of apparent authority, or the doctrine of implied authority.
Facts. Plaintiff alleged that her treating doctor, Dr. Kowalski and her HMO, Defendant,
were responsible for the negligent and tardy diagnosis of her tongue cancer. Plaintiff died
during trial. Defendant did not employ Dr. Kowalski but operated as "a financing entity
that arranges and pays for health care by contracting with independent medical groups
and doctors." Doctors in Defendant's network are required to complete an application and
meet with Defendant's approval. Doctors were compensated on a per patient basis.
Defendant maintained its quality assurance program. Plaintiff's handbook does not
mention that Dr. Kowalski is an independent contractor but instead refers to him as "your
Share physician." Defendant's primary care physicians are required to approve patients'
medical requests and make referrals to specialists. Dr. Kowalski did not feel constrained
by Defendant in making medicinal decisions. Plaintiff believed that Dr. Kowalski was an
employee of Defendant.
Issue. Is Defendant vicariously liable for the negligence of its independent-contractor
physicians?
Held. Yes. Plaintiff is entitled to a trial to determine whether or not Defendant is
vicariously liable under the doctrine of apparent and/or under the doctrine of implied
authority.
!
HMO accountability is essential to counterbalance the HMO goal of costcontainment. To the extent that HMOs are profit-making entities,
accountability is also needed to counter-balance the inherent drive to
achieve a larger and ever-increasing profit margin.
!
As a general rule, no vicarious liability exists for the actions of
independent contractors. Vicarious liability may nevertheless be imposed
for the actions of independent contractors when an agency relationship is
established under either the doctrine of apparent authority, or the doctrine
of implied authority.
447
Petrovich v. Share Health Plan of Illinois, Inc.
!
Under the doctrine of apparent authority, a principle will be bound not
only by the authority that is actually give to another, but also by the
authority it appears to give. When the principle creates the appearance of
authority, a court will not hear the principal's denials of agency.
!
To establish apparent authority against an HMO for physician malpractice,
the patient must prove: (1) that the HMO held itself out as the provider for
health care, without informing the patient that the care is given by
independent contractors; and (2) that the patient justifiably relied upon the
conduct of the HMO by looking to the HMO to provide health care
services, rather than a specific physician. Apparent authority is a question
of fact, and thus an appropriate determination to be made by a jury.
!
Plaintiff must also prove the element of "justifiable reliance" to establish
apparent authority against an HMO for physician malpractice. This means
that the patient acted in reliance upon the conduct of the HMO, consistent
with ordinary care and prudence. When a person selects the HMO and
does not rely upon a specific physician, then that person is relying upon
the HMO to provide health care. A person is also relying on an HMO
when, as in Plaintiff's case, she has no choice but to enroll with a single
HMO and does not rely on a specific physician. In this case, Plaintiff did
not select Defendant as her HMO. Plaintiff's employer selected Defendant.
Plaintiff then selected Dr. Kowalski from a list of physicians that
Defendant provided her. There is a reasonable inference that Plaintiff
relied upon HMO to provide her health care services.
!
The cardinal consideration for determining the existence of implied
authority is whether the alleged agent retains the right to control the
manner of doing the work. When an HMO effectively controls a
physician's exercise of medical judgment, there is implied authority. In
this case, Plaintiff argues that the facts and circumstances show that
Defendant exerted sufficient control over Doctor so as to negate their
status as independent contractors. The facts and circumstances presented
are properly left to a jury to determine the issue of implied authority.
Discussion. In its opinion, the court makes clear that the label of "independent
contractor" does not always shield an HMO from medical malpractice under the theory of
vicarious liability. An HMO may be held vicariously liable for the negligence of its
independent-contractor physicians under both the doctrines of apparent authority and
implied authority.
448
CHAPTER VI.
Causation
449
New York Central R.R. v. Grimstad
New York Central R.R. v. Grimstad
Citation. 264 F. 334 (2nd Cir. 1920).
Brief Fact Summary. Plaintiff drowned when he fell into the water from the deck of a
barge. Plaintiff sued Defendant, the barge owner, for negligence in failing to equip the
barge with life-preserving jackets.
Synopsis of Rule of Law. To be liable for negligence the cause of the accident must be
more than pure conjecture and speculation. It must be the cause in fact of the injury.
Facts. Plaintiff was on a barge when a tugboat bumped it. Plaintiff's wife felt the bump
and came out from the cabin. She discovered her husband (Plaintiff) in the water about
ten feet from the barge, holding up his hands out of the water. Plaintiff did not know how
to swim. Wife immediately ran back to the cabin for a small line, and when she returned
with the line, Plaintiff had disappeared. Plaintiff drowned. Plaintiff's estate brought an
action against the owner of the barge (Defendant), claiming that Defendant was negligent
in its failure to equip the barge with life preservers. The trial court retuned a verdict for
Plaintiff. Defendant appealed.
Issue. If Defendant's act is not a direct cause in fact of the accident, but merely a matter
of speculation, is it liable to Plaintiff for negligence?
Held. No. Judgment reversed.
!
The proximate cause of Plaintiff's death was his falling into the water.
There is no testimony in the record that this happened because of the
negligent act of Plaintiff or Defendant. Rather, the negligence alleged is
based on Defendant's failure to equip the boat with life preserving jackets.
Plaintiff claims that Defendant's failure to equip the barge with lifepreserving jackets was the cause of Plaintiff's drowning.
!
However, there was no evidence to show that Plaintiff drowned because
he did not know how to swim, or anything to show that, if there had been a
life-preserving jacket on board, the Plaintiff's wife would have got it in
time, or that Plaintiff would have grabbed it, or that it would have
prevented Plaintiff from drowning. The jury decided the issue of causation
with pure conjecture and speculation.
!
The trial court erred in denying Defendant's Motion to Dismiss.
Discussion. The cause of his death was falling in the water and not being able to swim.
There is no evidence presented by Plaintiff that the failure to equip a barge with life
preserving jackets would have caused Plaintiff's death.
450
Zuchowicz v. United States
Zuchowicz v. United States
Citation. 140 F.3d 381 (2nd Cir. 1998).
Brief Fact Summary. Ms. Zuchowicz (Plaintiff) took an overdose of the drug,
Danocrine because of the erroneous directions of a prescription. Plaintiff brought suit
against the United States (Defendant) under the Federal Tort Claims Act.
Synopsis of Rule of Law. If (a) a negligent act was deemed wrong because the act
increase the chances that a particular type of accident would occur; and (b) a mishap of
that very sort did happen, this is enough to support a finding by a tier of fact that the
negligent behavior caused the harm.
Facts. Plaintiff filed a prescription for the drug, Danocrine. The prescription erroneously
instructed Plaintiff to take 1600-milligrams of Danocrine per day. This was twice the
maximum recommended dosage. Plaintiff took the 1600-milligram dose each day for a
month and experienced abnormal weight gain, bloating, hot flashes, night sweats, a
racing heart, chest pains, dizziness, headaches, acne, and fatigue. She was told not to take
the drug anymore. She was diagnosed with primary pulmonary hypertension (PPH). She
was expected to live two and a half more years. She was on the waiting list for a heart
lung transplant when she became pregnant. Because she was pregnant, she was ineligible
for a heart lung transplant. She gave birth to her son and died a month later. Plaintiff
claims that she developed PPH because of the overdose of Danocrine and brought suit
against Defendant under the Federal Tort Claims Act.
!
Expert testimony revealed that Danocrine was responsible for Plaintiff's
PPH. The doctor did not rule out all other possible causes of PPH, but he
did exclude all other causes of secondary pulmonary hypertension. Expert
testimony also ruled out all previously known drug related causes of PPH.
The progression and timing of Plaintiff's disease in relation to her
overdose supported a finding of drug-induced PPH.
!
Judgment for Plaintiff. Defendant appealed.
Issue. Did Plaintiff present sufficient evidence that the overdose of Danocrine caused her
illness?
Held. Yes. Judgment affirmed.
!
The trier of fact could have concluded that Plaintiff's PPH was, more
likely than not, caused by Danocrine. Expert testimony was presented and
supported a finding of drug-induced PPH to a reasonable medical
certainty. There was not a long latency period between the onset of
symptoms and the patient's exposure to the drug.
451
Zuchowicz v. United States
!
However, in order to prove causation, it is necessary that the fact finder be
able to conclude, more probably than not, that the overdose was the cause
of Plaintiff's illness and ultimate death. The mere fact that the exposure to
Danocrine was likely responsible for the disease does not suffice.
!
If (a) a negligent act was deemed wrong because the act increase the
chances that a particular type of accident would occur; and (b) a mishap of
that very sort did happen, this is enough to support a finding by a tier of
fact that the negligent behavior caused the harm. When such a strong
casual connection exists, the burden shifts to Defendant to show that the
wrongful conduct was not a substantial cause.
Discussion. It is not enough to say that the Danocrine was the cause of Plaintiff's PPH. If
it can be proven that a standard dosage of Danocrine would have caused Plaintiff's PPH,
then it was not the overdose of Danocrine that caused Plaintiff's PPH. Plaintiff must show
that it was the overdose itself. Because this is difficult to prove, the following test was
used: If (a) a negligent act was deemed wrong because the act increase the chances that a
particular type of accident would occur; and (b) a mishap of that very sort did happen,
this is enough to support a finding by a tier of fact that the negligent behavior caused the
harm. Plaintiff satisfied her burden and the burden thus shifts to Defendant.
452
General Electric Co. v. Joiner
General Electric Co. v. Joiner
Citation. 522 U.S. 136 (1997).
Brief Fact Summary. Joiner (Plaintiff) was exposed to PCBs and diagnosed with
cancer. PCBs are dangerous to human health. Plaintiff sued General Electric Co.
(Defendant) for "promoting" his cancer.
Synopsis of Rule of Law. Abuse of discretion is the proper standard of review of a
district court's evidentiary ruling, i.e. did the district court abuse its discretion in granting
Defendant's Motion for Summary Judgment?
Facts. Plaintiff has worked as an electrician since 1973. This required Plaintiff to work
around transformers, and the dielectric fluid used as a coolant got into his eyes and
mouth, and stuck to his arms and hands. In 1983, the city discovered that the fluid in
some of its transformers contained PCBs, which are hazardous to the health of humans.
In 1991, Plaintiff was diagnosed with small cell lung cancer. He sued Defendant because
they manufactured transformer and dielectric fluid. Plaintiff had been a smoker for eight
years and there was a history of lung cancer in his family. Plaintiff alleged that his
exposure to PCBs "promoted" his cancer; had it not been for his exposure to these
substances, his cancer would not have developed for many years, if at all. Defendant
removed the case to federal court and then moved for summary judgment. Defendant
claimed there was no evidence that Plaintiff suffered significant exposure to PCBs and
that there was no admissible scientific evidence that PCBs promoted Plaintiff's cancer.
The district court ruled that there was a genuine issue of material fact, but there was no
evidence that Plaintiff had been exposed to PCBs, and the testimony of Plaintiff's experts
failed to show that there was a link between exposure to PCB and small cell cancer. The
case was dismissed. The court of appeals reversed. The Supreme Court of the United
States granted certiorari.
Issue. Was Plaintiff's case properly dismissed on Defendant's Motion for Summary
judgment?
Held. Yes. Judgment reversed. The district court's ruling was affirmed.
!
Abuse of discretion is the proper standard of review of a district court's
evidentiary ruling; did the district court abuse its discretion in granting
Defendant's motion for summary judgment? Under the Federal Rules of
Evidence and the Frye case, the trial judge is the "gatekeeper" in screening
evidence. In this case, the district court did not abuse its discretion.
!
The animal studies upon which Plaintiff relied did not support his
contention that exposure to PCBs had contributed to his cancer. No study
demonstrated that adult mice developed cancer after being exposed to
PCBs. One of the experts admitted that no study had demonstrated that
PCBs led to cancer in any other species. The studies were so dissimilar to
453
General Electric Co. v. Joiner
the facts presented in this litigation that is was not an abuse of discretion
for the district court to have rejected Plaintiff's reliance on them.
!
A court may conclude that there is simply too great an analytical gap
between the data and the opinions proffered.
Concurrence. (Justice Breyer) The trial judge is the gatekeeper of evidence, however,
judges are not scientists and should be strongly encouraged to utilize their inherent
authority to appoint experts.
!
(Justice Stevens), concurring in part and dissenting in part. The court of
appeals expressly decided that a "weight of the evidence" approach was
scientifically acceptable. That opinion is persuasive. The Environmental
Protection Agency (EPA) uses the same type of evidence as the Plaintiff.
The evidence as a whole raises an inference that PCBs promote lung
cancer. The court has not held that it would have been an abuse of
discretion to admit the expert testimony.
Discussion. Here, the Justices agree that the trial judge is to be the gatekeeper of
evidence. The majority opinion states that the District court did not abuse its discretion in
granting the summary judgment motion. The majority feels confident that the trial court
was capable of determining or dismissing the causal connection between Plaintiff's claim
and the evidence provided.
454
Herskovits v. Group Health Cooperative
Herskovits v. Group Health Cooperative
Citation. 664 P.2d 474.
Brief Fact Summary. Group Health Cooperative's (Defendant's) failure to diagnosis
Herskovits (Plaintiff) with cancer caused a 14% reduction in Plaintiff's chance for
survival. Plaintiff, at all times, had less than a 50% chance of survival. Plaintiff sought
damages from Defendant.
Synopsis of Rule of Law. Medical testimony of a reduction of the chance of survival
from 39 % to 25% is sufficient evidence to allow the issue of proximate cause to go to the
jury.
Facts. For the purposes of this case, the court assumed that Defendant failed to diagnose
Plaintiff's cancer, and proximately caused a 14% reduction in his chance of survival.
Before the alleged negligence, Plaintiff's chance of survival was less than 50%. The trial
court found that Defendant was not liable for Plaintiff's 14% reduction in his chance for
survival, because prior to the incident, Plaintiff had less than a 50% chance of survival.
The trial court granted Defendant's Motion for Summary Judgment. Plaintiff appealed.
Issue. Does a patient that has less than a 50% chance of survival, have a cause of action
against the hospital and its employees if they are negligent in diagnosing lung cancer,
which reduces the chance of survival by 14%?
Held. Yes. Judgment reversed.
!
Plaintiff contends that medical testimony of a reduction of the chance of
survival from 39% to 25% is sufficient evidence to allow the issue of
proximate cause to go to the jury. Defendant contends that Plaintiff must
prove there was at least a 51% chance of survival.
!
A person who negligently renders aid and consequently increases the risk
of harm to those he is trying to assist is liable for any physical damage he
causes. Some courts in other jurisdictions have allowed the issue of
proximate cause to go to the jury when under this rule. Other jurisdictions
have rejected this approach, generally holding that unless Plaintiff is able
to show that it was more likely than not that the harm was caused by
Defendant's negligence, proof of a decreased change of survival is not
enough to take the proximate cause issue to the jury.
!
In this case, the court holds that medical testimony of a reduction of the
chance of survival from 39% to 25% is sufficient evidence to allow the
issue of proximate cause to go to the jury.
Dissent. (Justice Brachtenberg) The dissent supported the traditional proximate cause
standard.
455
Herskovits v. Group Health Cooperative
Concurrence. (Justice Pearson) Under the all-or-nothing approach, the defendant will be
liable for all damages arising from the death, even though there was a 49% chance it
would have occurred despite his negligence. On the other hand, a plaintiff who
establishes that but for the defendant's negligence, the decedent had a 49% chance of
survival receives nothing.
Discussion. In this case, the court holds Defendant liable for all tortious injures sustained
by Plaintiff. The court does not consider it relevant that Plaintiff did not have a likely
chance of survival despite Defendant's negligence. The court reasoned that the jury
should determine the extent of that damage. Defendant is liable for the decrease of
Plaintiff's chance of recovery, even when recovery is unlikely.
456
Kingston v. Chicago & N.W. Ry.
Kingston v. Chicago & N.W. Ry.
Citation. 211 N.W. 913 (Wis. 1927).
Brief Fact Summary. Two fires were the proximate cause of the destruction of
Plaintiff's land. Chicago & N.W. Ry. (Defendant) negligently set one of the fires,
therefore, Plaintiff sued Defendant for negligence.
Synopsis of Rule of Law. Any one of two or more joint tortfeasors, or one of two or
more wrongdoers whose concurring acts of negligence result in injury, are each
individually responsible for the entire damage resulting from their joint or concurrent acts
of negligence.
Facts. Sparks emitted from Defendant's locomotive set a northeast fire. A northwest fire
was set by an unknown origin. Both fires constituted a proximate cause of the destruction
of Plaintiff's property. Both fires are well supported by the evidence. The two fires united
940 feet from Plaintiff's property and bore down upon it and destroyed it. Thus there
were are two separate, independent, and distinct fires, each of which constituted the
proximate cause of Plaintiff's damage and either of which, in the absence of the other,
would have destroyed Plaintiff's property. Plaintiff sued Defendant for negligence.
Judgment for Plaintiff.
Issue. Is Defendant responsible for damage caused by a fire that he started if another fire
of unknown origin would have done the damage alone, but instead joined the fire and
destroyed Plaintiff's property?
Held. Yes. Judgment affirmed.
!
Any one of two or more joint tortfeasors, or one of two or more
wrongdoers whose concurring acts of negligence result in injury, are each
individually responsible for the entire damage resulting from their joint or
concurrent acts of negligence.
!
In this case, it is impossible to apportion the damage or to say that either
perpetrated any distinct injury that can be separated from the whole. It
would be a different case if neither fire alone could have destroyed
Plaintiff's land or if one fire was so disproportionate to the other as to
consume it. But this is not the situation in this case.
!
Even if it were determined who had set the northwest fire, Defendant
would still be liable to Plaintiff for the entire damage for negligently
setting the northeast fire. When Plaintiff has suffered damage by fire and
proves the origin of the fire and the course of the fire up to the point of the
destruction of his property, Plaintiff has established liability on the part of
Defendant, the originator of the fire. The burden is then on Defendant to
prove that his fire was not the proximate cause.
457
Kingston v. Chicago & N.W. Ry.
Discussion. If the facts of the case were such that the only fire set was that of the
Defendant's and it negligently destroyed Plaintiff's property, then Defendant would still
be liable for the entire damage done. Therefore, the fact that there is a second fire, of
unknown origins, does not alter the outcome.
458
Summers v. Tice
Summers v. Tice
Citation. 199 P.2d 1 (Cal. 1948).
Brief Fact Summary. Charles A. Summers (Plaintiff) was struck in the eye and lip by
shots from one or both of Defendants' guns. There was no way to determine whose bullet
struck the Plaintiff. The trial court held that both Defendants were liable to Plaintiff.
Synopsis of Rule of Law. If two defendants cause damage that either one would be
liable for, then both defendants will be held liable if it cannot be easily determined which
defendant was the cause in fact of the injury.
Facts. Plaintiff, Ernest Simonson, and Harold W. Tice were hunting in the same area. At
the same time, both defendants negligently fired their guns at a quail, and in the direction
of Plaintiff. Plaintiff was struck in the eye and lip by shots from one or both of
Defendants' guns. There was no way to determine whether the shots were from the gun of
one defendant or the other or one shot from each of them. The shot that entered Plaintiff's
eye did the most damage, and that shot could not have come from both of the Defendants.
However, the trial court held that both Defendants were liable. Defendants appealed on
the grounds that they were not joint tortfeasors, they were not acting in concert and there
was insufficient evidence to show which of them was negligent.
Issue. Are both Defendants liable for shooting Plaintiff when it cannot be determined
which gun or guns fired the shots that injured Plaintiff?
Held. Yes. Judgment affirmed.
!
The court stated that both Defendants were acting in concert and they both
were liable. Each defendant is liable for the resulting injury to Plaintiff,
although no one can say who actually shot him. To hold otherwise would
be to exonerate both from liability, although each was negligent, and the
injury resulted from such negligence.
!
The innocent Plaintiff should not have to bear the burden of proof of
which shot from which gun or guns fired by the Defendants did the
damage. Such a burden is properly shifted to the Defendants. Each
Defendant can absolve himself, if he can. Defendants are in a far better
position to offer evidence to determine which one caused the injury.
!
In this case, Defendants may be treated as liable on the same basis as joint
tortfeasors. The wrongdoers should be left to work out between
themselves any apportionment of damages.
Discussion. In this case, the court imposes liability on Defendants without determining
which Defendant is the cause in fact of Plaintiff's injury. The test in this case is referred
to as the alternative causation test.
459
Skipworth v. Lead Industries Association
Skipworth v. Lead Industries Association
Citation. 690 A.2d 169 (Pa. 1997).
Brief Fact Summary. Skipworth (Plaintiff) was hospitalized for lead poisoning on three
separate occasions. Testing of the residence where she lived revealed the presence of lead
based paint at various locations throughout the home. Plaintiff filed an action against
several manufacturers of lead pigment and their successors, as well as a trade association
(Defendants).
Synopsis of Rule of Law. Market share liability is not proper in lead paint poisoning
cases
Facts. Plaintiff was born in 1988. Between 1990 and 1991 she was hospitalized for lead
poisoning on three separate occasions. Testing of the residence where she lived revealed
the presence of lead based paint at various locations throughout the home. Plaintiff filed
an action against several manufacturers of lead pigment and their successors, as well as a
trade association (Defendants). Plaintiff alleged physical and neuropsychological injuries
as a result of lead poisoning from the lead paint in her home. Plaintiff could not identify
the manufacturer of the lead pigment, which Plaintiff ingested, and admitted that they
could not identify when such pigment was made, sold, or applied to her home. Plaintiff
identified and joined substantially all of the manufacturers of lead pigment used in
residential house paint from 1870 until production ceased in 1977. Plaintiff invoked
theories of collective liability, market share liability, alternative liability, conspiracy, and
concert of action. Defendant filed a Motion for Summary Judgment. The trial court
granted Defendant's motion. The Superior Court affirmed.
Issue. Is market share liability proper in lead paint poisoning cases?
Held. No. Judgment affirmed.
!
The first issue presented to the court was whether or not the court should
adopt the market share liability theory in the context of lead poisoning
cases. The market share liability theory was first used in Sindell. In
Sindell, a plaintiff developed cancer as result of the drug, DES. The
plaintiff was unable to identify, though no fault of her own, the
manufacturer of the DES, which harmed her. The court in Sindell stated
that market share liability is appropriate when the following factors are
present: all the defendants are potential tortfeasors; the allegedly harmful
products are identical and share the same defective qualities; the plaintiff
is unable to identify which defendant caused her injury though no fault of
her own; and substantially all of the manufactures which created the
defective products during the relevant time are named defendants.
!
However, the facts in this case are very different from a typical DES case.
The relevant time period in question is far more extensive than the
460
Skipworth v. Lead Industries Association
relevant time period in a DES case. Plaintiff pinpoints more than a one
hundred year period from the date the house was built until the lead paint
ceased being sold for residential purposes. In contrast, the relevant time
period in a DES case is necessarily limited to nine months. Over a one
hundred year period, several of the lead paint manufacturers entered and
left the lead paint market. Certain pigment manufacturers would be liable
when they could not possibly have been a potential tortfeasor. Therefore,
the first prong of the Sindell test would not be met.
!
Lead paint, as opposed to DES, is not a fungible product. Lead pigments
had different chemical formulations, contained different amounts of lead,
and differed in potential toxicity. A manufacturer whose lead had a lower
bioavailability than average would have caused less damage than its
market share would indicate. Thus, market share liability would impose a
disproportionate share of damages.
!
The trial court correctly entered summary judgment in favor of Defendants
on Plaintiff's alternative liability theory. Alternative liability is
inapplicable to the facts of this case. Plaintiffs have failed to join all
entities, which manufactured lead paint over the one hundred year period.
!
The trial court correctly entered summary judgment in favor of Defendants
on Plaintiff's cause of action for civil conspiracy. In order to withstand
summary judgment, Plaintiff must have produced evidence that would
establish that Defendants acted in concert to commit an unlawful act or do
a lawful act by unlawful means, and that they acted with malice. Plaintiff
has failed to introduce evidence that Defendants were working in concert.
Plaintiff has also failed to introduce evidence of malice.
!
The trial court correctly entered summary judgment in favor of Defendants
on Plaintiff's concert of action claim. This theory provides that "for harm
resulting to a third person from the tortious conduct of another, one is
subject to liability if he does a tortious act in concert with the other or
pursuant to a common design with him." Concert of action cannot be
established when Plaintiff cannot identify the wrongdoer or the person
who acted in concert with the wrongdoer.
Discussion. Market share liability is appropriate on a select few fact patterns. This lead
paint case is not like the DES case. The relative time period that Plaintiff asserts in the
lead paint case is far more extensive than the time period in the DES case. In addition,
numerous lead paint manufacturers went into and went out of business during the one
year time period, alleged by this case.
461
Ryan v. New York Central R.R.
Ryan v. New York Central R.R.
Citation. 35 N.Y. 210 (1866).
Brief Fact Summary. New York Central R.R.'s (Defendant's) woodshed was set on fire
either by carelessness or by a defect in one of its engines. Plaintiff's house was 130 feet
from the shed. It was consumed in the fire despite diligent efforts to save it.
Synopsis of Rule of Law. Every person is liable for the consequences of his own acts.
He is liable for damages for the proximate results of his own acts, but not for remote
damages.
Facts. Defendant owned a woodshed, which was set on fire either by carelessness or by
a defect in one of its engines. Plaintiff's house was 130 feet from the shed. It was
consumed in the fire despite diligent efforts to save it. Plaintiff sued Defendant.
Defendant moved for a nonsuit, which was granted. The nonsuit was affirmed. Plaintiff
appealed.
Issue. Is Defendant liable to Plaintiff for the damages sustained to Plaintiff's house in a
fire, which originated from Defendant's woodshed?
Held. No. Judgment affirmed.
!
The destruction of Plaintiff's house was not a natural and expected result
of Defendant's fire. That Defendant's fire should spread and other
buildings be consumed is not a necessary or usual result. Plaintiff's action
for negligence cannot be sustained.
!
The damages incurred by Plaintiff are not the immediate, but the remote
result of Defendant's negligence. The immediate result was the destruction
of Defendant's own woodshed. Beyond that, it was remote.
!
A man may insure his own house, or his own furniture, but he cannot
insure his neighbor's building or furniture because he has no interest in
them. Each man to some extent runs the hazard of his neighbor's conduct.
Discussion. The terms, proximate cause and remote cause, set boundaries for how far the
court is willing to extent liability. Proximate causes and remote causes are causes in fact
of the injury or damage sustained. However, the court is not willing to grant relief for a
remote cause, only a proximate cause. A remote cause will essentially limit a plaintiff's
ability to collect from a defendant who caused him damage. Remote causes are not
recoverable because they are far removed from the scene, link, or causal connection.
462
Berry v. Sugar Notch Borough
Berry v. Sugar Notch Borough
Citation. 43 A. 240 (Pa. 1899).
Brief Fact Summary. Berry (Plaintiff) was going faster than eight miles per hour, in
violation of a statute. A gust of wind blew a tree on top of his car. Plaintiff sued
Defendant to recover damages for trespass for personal injuries.
Synopsis of Rule of Law. To impose liability based on the violation of a statute, the
violation must be the cause of the injury sustained, and not some mere coincidence.
Facts. A local ordinance stated that cars could go no faster than eight miles an hour.
Plaintiff was going faster than eight miles per hour, in violation of the statute. A gust of
wind blew a tree on top of his car. Plaintiff sued to recover damages for trespass for
personal injuries. The trial court awarded a verdict and judgment for Plaintiff for
$3,162.50. Defendant appealed.
Issue. Does Plaintiff's violation of a statute eliminate Plaintiff's ability to recover
damages?
Held. No. The violation of the statute was a coincidence and not the cause of the
incident. Judgment affirmed.
!
Defendant claimed that Plaintiff's speed caused his injuries because it
brought him to the exact place, at the exact time the tree fell. The court
disagrees that the speed was the immediate cause of Plaintiff's injury.
!
Defendant's next claim is that the speed at least contributed to the
incident's severity, and materially increased the damage. The jury would
have no basis on which to support this finding.
Discussion. Plaintiff's breach of a safety statute was not causally connected with his
injuries because it did not increase the risk or hazard of being stuck by the tree. It is
irrelevant that the increased speed coincidentally landed Plaintiff under the tree.
463
Brower v. New York Central & H.R.R.
Brower v. New York Central & H.R.R.
Citation. 103 A. 166 (N.J. 1918).
Brief Fact Summary. New York Central & R.R.'s (Defendant's) train hit Browe's
(Plaintiff's) wagon. Plaintiff was still confused from the accident, while third parties stole
his goods. Plaintiff sued Defendant for damages resulting from the accident and sought
recovery for the stolen goods.
Synopsis of Rule of Law. The acts of a third party do not affect the liability of the
original wrongdoer if the act should have been reasonably foreseen.
Facts. New York Central & R.R. (Defendant) owned and operated a train. Brower
(Plaintiff) was riding in a wagon loaded with goods. Defendant's train hit Plaintiff's
wagon. The accident killed Plaintiff's horse, destroyed his wagon, and spilled the goods.
While Plaintiff was still confused from the accident, third parties stole his goods.
Defendant had two railroad detectives on the train to protect Defendant's belongings from
thieves. The detectives did not assist Plaintiff. Plaintiff sued Defendant for damages
resulting from the accident and sought recovery for the stolen goods. Defendant denied
liability for the stolen goods because it was a result of third party intervention, which
broke the causal chain. The trial court ruled for Plaintiff. Defendant appealed.
Issue. Was the accident the proximate cause of the theft?
Held. Yes. Judgment affirmed.
!
Defendant argues that its negligence was not the proximate cause of the
loss of property, because thieves intentionally intervened. However, the
negligence, which caused the collision, prevented the driver of the wagon
from protecting his goods.
!
The act of a third person intervening and contributing a condition
necessary to the injurious effect of the original negligence will not excuse
the first wrongdoer, if such an act ought to have been foreseen. In this
case, Defendant found it necessary to have its freight train guarded by two
detectives against thieves. Clearly, Defendant was aware of the possibility
of thieves.
Dissent. (Justice Garrison) The collision afforded an opportunity for theft, but the
dissent could not agree that the collision was the proximate cause of the theft. Proximate
cause is the unbroken continuity between cause and effect. An independent criminal actor
breaks the causal link. The majority holding that criminal intervention should be foreseen
implies that crime is to be presumed.
Discussion. The court described the accident and loss of goods as two simultaneous and
concurrent causes of Plaintiff's damage, not an intervening cause.
464
Wagner v. International Ry. Co.
Wagner v. International Ry. Co.
Citation. 133 N.E. 437 (N.Y. 1921).
Brief Fact Summary. As International Ry. Co.'s (Defendant's) train turned a curve, a
violent lurch threw Plaintiff's cousin out of the car. Wagner (Plaintiff) got out and walked
445 feet until he arrived at the bridge where he thought he would find his cousin's body.
Plaintiff lost his footing in the dark, fell from the structure, and was injured.
Synopsis of Rule of Law. A tortfeasor is liable to all those who are injured in a
reasonable rescue attempt. A tortfeasor will not be held liable for injuries suffered by a
rescuer if the rescue efforts were unreasonable.
Facts. Plaintiff and his cousin boarded a car at a station. The conductor did not close the
doors of the car. The train turned a curve at six to eight miles per hour when a violent
lurch threw Plaintiff's cousin out of the car, near the point where a trestle changed to a
bridge. "Man overboard" was cried out, and the car stopped near the foot of an incline.
Plaintiff got out and walked 445 feet until he arrived at the bridge where he thought to
find his cousin's body. Plaintiff claimed that he was asked to go there by the conductor.
He claimed also that the conductor followed with a lantern. Plaintiff lost his footing in the
dark, fell from the structure, and was injured. Plaintiff sued Defendant. The judge
instructed the jury that Defendant would not be liable for Plaintiff's injuries, unless
Plaintiff had been invited by the conductor to go upon the bridge and the conductor had
followed with a light. The jury found for Defendant. Plaintiff appealed.
Issue. Is rescue a foreseeable act?
Held. Yes. Judgment reversed.
!
Danger invites rescue.
!
The fact that Plaintiff walked more than 445 feet in going to his cousin's
aid is of no consequence. Continuity in such circumstances is not broken
by the exercise of volition.
!
Whether Plaintiff's cousin's fall was due to Defendant's negligence, and
whether Plaintiff's attempted rescue, was foolhardy or reasonable in the
light of the emergency, were both questions for the jury.
Discussion. A tortfeasor is liable to all those who are injured in a reasonable rescue
attempt. A tortfeasor will not be held liable for injuries suffered by a rescuer if the rescue
efforts were unreasonable.
465
In re Polemis & Furness, Withy & Co.
In re Polemis & Furness, Withy & Co.
Citation. [1921] 3 K.B. 560.
Brief Fact Summary. Furness chartered the Polemis to carry a cargo of petrol and
benzene. While discharging at Casablanca, a heavy plank fell into the hold and caused an
explosion, which eventually destroyed the ship. The falling of the blank was due to
Defendant's negligence.
Synopsis of Rule of Law. If the negligent act would or might probably cause damage,
the fact that the damage it in facts causes is not the exact kind of damage one would
expect is immaterial, so long as the damage is in fact directly traceable to the negligent
act.
Facts. The Arbitrators found that a spark emanating from a dropped plank could not
reasonably have been anticipated. However, some damage to the ship might reasonably
be anticipated. Damages were found to be £196, 1s, 11d.
Issue. If Defendant is held to be negligent, are actual yet unforeseen damages too
remote?
Held. No. Plaintiff is permitted to recover for the complete loss of the ship caused by a
spark from a dropped plank.
!
Given the breach of duty which constitutes the negligence, and given the
damage as a direct result of that negligence, the anticipations of the person
whose negligent act has produced the damage is irrelevant. The damages
claimed are not too remote.
Concurrence. L.J. Warrington and L.J. Scrutton both concur.
!
(L.J. Warrington) Whether damages are recoverable depends if they are
the direct consequences of the act. In the present case, it is clear that the
act causing the plank to fall was a negligent act. Defendants are liable for
the actual loss due to their negligence.
!
(L.J. Scrutton) There is confusing language, which attempts to label
damage as natural but not probable, or probable but not natural. If the
negligent act would or might probably cause damage, the fact that the
damage caused is not the exact kind of damage one would expect is
immaterial, so long as the damage is in fact directly traceable to the
negligent act. In the present case, it was negligent in discharging cargo to
knock down the planks of the temporary staging, for they might easily
cause some damage either to workman, or cargo, or the ship. The fact that
they did produce an unexpected result, a spark in an atmosphere of petrol
vapor that caused a fire, does not relieve the person from the damage that
his negligent act caused.
466
In re Polemis & Furness, Withy & Co.
Discussion. Damages are not deemed proximate or remote as in causation. Damages are
actual, direct losses caused by the Defendant's negligence. It makes no difference that the
resulting damage was not foreseeable by the commission of the negligent act.
467
Palsgraf v. Long Island R.R.
Palsgraf v. Long Island R.R.
Citation. 162 N.E. 99 (N.Y. 1928).
Brief Fact Summary. Defendant helped to push a man aboard a train. The man's
package fell. Inside were firecrackers, which exploded causing some scales to fall and
injure Plaintiff
Synopsis of Rule of Law. Chief Justice Cardozo, writing for the majority held that
negligence is based on the foreseeability of the harm between the parties. Justice
Andrews, writing for the minority stated that each person owes an absolute duty of care;
i.e. each person must refrain from acts (foreseeable or not) that unreasonably threaten the
safety of others.
Facts. Mrs. Palsgraf (Plaintiff) was standing on a platform after she bought a ticket from
Long Island R.R. (Defendant). Two men ran to catch a train that was pulling out from the
platform. The first man jumped aboard. The second man, who was carrying a package,
attempted to jump aboard the car, however he was unsteady. A guard on the train, who
had held the door open, reached forward to help him in, and another guard on the
platform pushed him from behind at the same time. In this act, the package the man was
carrying was dislodged and fell upon the rails. The package contained fireworks, but
there was nothing from its appearance to give notice of its contents. The fireworks
exploded when they fell. The shock of the explosion threw down some scales at the other
end of the platform, many feet away. The stales struck Plaintiff, causing injuries for
which she sues. Plaintiff sued Defendant. Plaintiff was awarded damages. Defendant
appealed.
Issue. Does a Defendant owe a duty of care to Plaintiff who is outside the reasonably
foreseeable zone of danger?
Held. No. Judgment reversed.
!
A duty that is owed must be determined from the risk that can reasonably
be foreseen under the circumstances. A defendant owes a duty of care only
to those plaintiffs who are in the reasonably foreseeable zone of danger.
!
If no hazard is apparent to the eye of ordinary vigilance, an act innocent
and harmless does not become a tort because it happened to be wrong with
reference to someone else. The conduct in relation to Defendant's guard
was wrong in relation to the man carrying the parcel.
!
However, it was not wrong in relation to Plaintiff who was standing so far
away. There was no indication that the parcel contained fireworks. There
was no showing by Plaintiff that the act had such great possibilities of
danger as to entitle a party to protection against that act.
468
Palsgraf v. Long Island R.R.
!
For there to be a finding of negligence there must first be a finding that
Defendant owes a duty to Plaintiff and that the injury could have been
avoided by the Defendant.
!
The plaintiff must prove that her rights were violated and the duty that
Defendant owed to her was transgressed. It is not enough that Plaintiff
merely prove that a duty that was owed to another was transgressed. While
it is clear that Defendant violated its duty to the person carrying the
fireworks, Defendant did not violate any foreseeable duties to Plaintiff.
!
It was unforeseeable that a package being carried would explode and
cause any damage to Plaintiff. Even if the guard had intentionally taken
the package and thrown it, he would not have threatened Plaintiff's safety.
Defendant's liability for an intentional act cannot be greater when an act is
inadvertent or unintentional.
Dissent. (Justice Andrews) Everyone owes the world at large the duty of refraining from
those acts that may unreasonably threaten the safety of others. In determining proximate
cause the court must ask itself whether there was a natural and continuous sequence
between the cause and effect, and not whether the act would reasonably be expected to
injure another. If not for the explosion, she would not have been injured.
Discussion. This case identifies two ways to determine if a duty is owed to Plaintiff: (1)
the Cardozo method; and (2) the Andrews method:
!
(C.J. Cardozo) Negligence is based on the foreseeability of harm between
the parties. C.J. Cardozo's opinion is the majority view and is referred to
as the zone of danger view. Thus liability for negligence is limited to what
was foreseeable and what duties were owed that were reasonably
foreseeable prior to the negligent act. Thus to recover, a plaintiff must be a
foreseeable plaintiff and be in the zone of danger.
!
(J. Andrews) Each person owes an absolute duty of care; each person must
refrain from acts (foreseeable or not) that unreasonably threaten the safety
of others. Under J. Andrews' view, everyone is a foreseeable plaintiff.
469
Marshall v. Nugent
Marshall v. Nugent
Citation. 222 F.2d 604 (1st Cir. 1955).
Brief Fact Summary. Defendant's truck ran Plaintiff's car off the road. Defendant
stopped to help Plaintiff and told him to direct traffic. Another car stuck Plaintiff while
attempting to avoid hitting Defendant's truck.
Synopsis of Rule of Law. Any extra risk created by a negligent tortfeasor is the
proximate cause of Plaintiff's injuries if it is reasonably foreseeable.
Facts. Harriman, Marshall (Plaintiff's) son-in-law, was driving when Prince (Defendant,
Socony Oil Company) cut a corner and forced him off the road. No one was injured in the
accident, and Defendant offered to help get the car back on the road. Plaintiff, a
passenger in the car, went to direct traffic around the accident. Before Plaintiff could do
so, Nugent (Defendant) swerved to avoid the truck and hit Plaintiff. Plaintiff sued both
Defendants for damages from the accident. The jury returned a verdict for Nugent and for
Plaintiff against Prince. Prince appealed, claiming that the accident was not the proximate
cause of Plaintiff's injury.
Issue. Was Prince (Socony Oil Company), the proximate or legal cause of Plaintiff's
injuries?
Held. Yes. Judgment affirmed.
!
Proximate cause is better labeled as legal cause. It is not necessarily true
that Defendant's culpable act must be shown to have been the next or
immediate cause of Plaintiff's injury.
!
Defendant's culpable act must have been the proximate cause of Plaintiff's
harm. However, it would be disproportionately burdensome to hold a
culpable actor potentially liable for all the injurious consequences that
may flow from his act. There has to be a limit to the "but for" test. This is
the issue of proximate or legal cause.
!
Defendant's negligence constituted an irretrievable breach of duty to the
Plaintiff. Though Defendant's act of cutting the corner and forcing
Plaintiff off the road was over and done with, Plaintiff's injuries were still
a direct consequence of Defendant's initial act. Defendant's negligence
resulted in a traffic problem in a dangerous blind spot. When Plaintiff had
to get out of the car, he was subject to risks of injury.
!
It is not decided, however, if Plaintiff was also negligent in his attempt to
direct traffic. The jury should decide whether Plaintiff should be barred by
his contributory negligence.
470
Marshall v. Nugent
Discussion. Plaintiff's injury was not too remote in time or place from the negligent
conduct of Defendant. Defendant put Plaintiff in a dangerous situation. The jury could
have rightfully decided if Defendant's initial negligence was the legal cause of Plaintiff's
injuries.
471
Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. (Wagon Mound (No. 1))
Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd.
(Wagon Mound (No. 1))
Citation. [1961] A.C. 388 (P.C. Aust.).
Brief Fact Summary. Defendants carelessly discharged oil from their ship. Oil was
carried by the wind and tide to Plaintiff's wharf, which was destroyed by fire. Such
damage could not have been foreseen.
Synopsis of Rule of Law. Defendant is not liable for the damage solely because it
directly resulted from his negligent act. The rule in Polemis is overturned.
Facts. Defendants carelessly discharged oil from their ship while it was berthed in
Sydney harbor. After their ship set sail, oil was carried by the wind and tide to Plaintiff's
wharf, which was used for repair work on other ships in the harbor. Plaintiff's supervisor
was concerned about the oil and ordered his men to do no welding or burning in the area.
Plaintiff made some inquires and was testified that the oil was not flammable. He
accordingly instructed his men to resume welding operations and directed them to take
care that no flammable material should fall off the wharf into the oil. About two and a
half days later, Plaintiff's wharf was destroyed by fire. The outbreak of fire was due to the
fact that there was floating in the oil, underneath the wharf, a piece of debris on which lay
some smoldering cotton waste or rag which had been set on fire by molten metal falling
from the wharf. The trial judge found that Defendant knew that oil had been discharged
from the ship, however, he could not reasonably be expected to have known that oil was
capable of being set afire when spread on water. Plaintiff was awarded judgment.
Defendant appealed.
Issue. Is a tortfeasor liable for all damage, even that which is unforeseeable, directly
resulting from a negligent act?
Held. No. Appeal allowed.
!
The rule in Polemis plainly asserts the, if the defendant is guilty of
negligence, he is responsible for all the consequences whether reasonably
foreseeable or not. The negligent actor is not reasonable for consequences
that are not "direct."
!
A defendant ought to have anticipated as a reasonable man is material
when the question is whether or not he was guilty of negligence. This,
however, goes to culpability, not to compensation.
!
It seems to be a palpable injustice for the actor to be held liable for all
consequences however unforeseeable and however grave, so long as they
can be said to be "direct"
472
Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. (Wagon Mound (No. 1))
!
If the ordinary man had been asked, as a matter of common sense, to state
the cause of the fire, he would have assigned such cause to the discharge
of the oil by the Defendants.
Discussion. A tortfeasor is responsible for the reasonably foreseeable or probable
consequences of his negligent acts. In this case, the test for liability for fire is
foreseeability of injury from fire. However, this rule is in conflict with the "egg-skull"
plaintiff rule, which states that the defendant is liable for all injuries to the plaintiff, i.e.,
"you take the plaintiff as you find him."
473
Mitchell v. Rochester Railway
Mitchell v. Rochester Railway
Citation. 45 N.E. 354 (N.Y. 1896).
Brief Fact Summary. Plaintiff testified that the fright and excitement caused by
Defendant's approach and proximity of the horse-driven car resulted in her miscarriage
and other injuries.
Synopsis of Rule of Law. No recovery can be had for injuries sustained by fright
occasioned by the negligence of another, where there is no immediate personal injury.
Facts. Plaintiff was standing upon a crosswalk on Main Street awaiting an opportunity to
board one of Defendant's cars, which had stopped upon the street. While standing there, a
horse-drawn car of Defendant came down the street. As the horse-drawn car drew near, it
turned to the right and came close to Plaintiff, so that she stood between the horses' heads
when they were stopped. Plaintiff testified that the fright and excitement caused by
Defendant's approach and proximity resulted in her miscarriage and other injuries.
Plaintiff sued Defendant for negligence.
Issue. Is Plaintiff entitled to recover for Defendant's negligence, which occasioned her
fright and alarm and resulted in injuries?
Held. No. Judgment for Defendant.
!
Plaintiff cannot recover for injuries occasioned by fright, as there is no
immediate personal injury.
!
The right of action must depend on the question whether a recovery may
be had for fright. If it can, then an action may be maintained, however
slight the injury. If not, then there can be no recovery, no matter how
grave or serious the consequences.
!
If a right of recovery for negligent fright were established, there would be
a flood of litigation in cases when the injury complained of may be easily
feigned without detection and damages would rest upon conjecture and
speculation. To establish such a right would be contrary to principles of
public policy.
!
It cannot be properly said that Plaintiff's miscarriage was the proximate
cause of Defendant's negligence. Proximate damages are such as are the
ordinary and natural results of the negligence charged, and those that are
usual and may, therefore, be expected.
!
The injuries to Plaintiff were plainly the result of an accidental or unusual
combination of circumstances over which Defendant had no control, and,
hence, Plaintiff's damages are too remote to justify recovery.
474
Mitchell v. Rochester Railway
Discussion. There must be some physical injury in order to sustain a cause of action of
negligent infliction of emotional distress.
475
Dillon v. Legg
Dillon v. Legg
Citation. 441 P.2d 912 (Cal. 1968).
Brief Fact Summary. While driving his car, Defendant stuck and killed Dillon, a child
as she was crossing a public street. Plaintiffs sued for negligent infliction of emotional
distress.
Synopsis of Rule of Law. Plaintiff can recover for negligent infliction of emotional
distress even if he is not within the "zone of danger."
Facts. While driving his car, Defendant stuck and killed Dillon, a child as she was
crossing a public street. Dillon's mother and sister, Cheryl (Plaintiffs) sued Defendant for
wrongful death. Plaintiffs also sued for negligent infliction of emotional distress. The trial
court found that the mother was in close proximity to Dillon at the time of collision, but
that Defendant's car never threatened her safety because she was outside the zone-ofdanger. Accordingly, the trial court dismissed the mother's claim for emotional distress.
Cheryl's action for emotional distress was not dismissed because she was in the zone-ofdanger and feared for her own safety. The mother appealed.
Issue. Can a defendant be liable for the negligent infliction of emotional distress to a
plaintiff when he or she is outside the zone-of-danger?
Held. Yes. Judgment reversed.
!
If any defense is sustained and Defendant is not found liable for the death
of Dillon due to the contributory negligence of the mother, sister or child,
the court does not believe that Plaintiffs should recover for he emotional
trauma, which they allegedly suffered.
!
This case exposes the hopeless artificiality of the zone-of-danger rule. The
court can hardly justify relief to Cheryl for trauma, which she suffered
upon apprehension of Dillon's death, and yet deny it to the mother because
Cheryl was some few yards closer to the accident.
!
The requirement of presence in the zone is that one in the zone fears the
danger of impact, yet impact is not necessary for recovery.
!
We doubt that the problem of the fraudulent claim is substantially more
pronounced in the case of a mother claiming personal injury resulting
from seeing her child killed than in other areas of tort law, for which the
right to recover damages is well established in California.
!
Damages are allowed for mental suffering. The mental injury can be in
aggravation of, or "parasitic to" an established tort. Emotional distress, if
inflicted intentionally, constitutes an independent tort. The application of
tort law can never be a matter of mathematical precision. The process
476
Dillon v. Legg
cannot be perfect, yet we cannot let difficulties of adjudication frustrate
the principle that there be a remedy for every substantial wrong.
!
The chief element in determining whether Defendant owes a duty or
obligation to Plaintiff is the foreseeability of the risk. Duty must be
adjudicated only on a case-by-case basis.
!
In determining whether Defendant should reasonably foresee the jury to
the mother, the courts will take into account such factors as the following:
(1) whether plaintiff was located near the scene of the accident; (2)
whether the shock resulted form a direct emotional impact upon plaintiff
from the sensory and contemporaneous observance of the accident; and (3)
whether plaintiff and victim were closely related. The evaluation of these
factors will indicate the degree of Defendant's foreseeability.
!
In light of these factors the court will determine whether the accident and
harm were reasonably foreseeable. In this case, the presence of the above
factors indicates that the mother has alleged a prima facie case.
Dissent. There are two dissenting opinions in the casebook
!
(Chief Justice Traynor) The court's decision in Amaya v. Home Ice, Fuel
& Supply Co., was correctly decided and should not be overruled.
!
(Justice Burke) There are too many unanswered questions. Our trial courts
will not easily escape the burden of distinguishing between litigants on the
basis of the artificial and unpredictable distinctions laid out by the
majority.
Discussion. It is no longer required that Plaintiff be in the zone-of-danger in order to
maintain an action for the negligent infliction of emotional distress.
477
CHAPTER VII.
Affirmative Duties
478
Buch v. Amory Manufacturing Co.
Buch v. Amory Manufacturing Co.
Citation. 44 A. 809 (N.H. 1897).
Brief Fact Summary. Plaintiff, who was eight-years-old, trespassed in Defendant's mill.
Plaintiff's hand was crushed in a machine.
Synopsis of Rule of Law. An owner of land owes a trespasser a duty to abstain from any
other or further intentional or negligent acts of personal violence. Owners are not bound
to warn trespassers of hidden or secret dangers.
Facts. Plaintiff trespassed in Defendant's mill when weaving machinery was in
operation. An overseer told him to leave. The running machinery presented an obvious
hazard to a child of Plaintiff's age. Plaintiff's hand was crushed in a machine that his
brother, aged 13, an employee, was trying to teach him to run. The trial court denied a
motion for a directed verdict. Defendant appealed.
Issue. Assuming that Plaintiff was incapable either of appreciating the danger or of
exercising the care necessary to avoid it, is he entitled to recover?
Held. No. Judgment reversed.
!
Plaintiff was a trespasser in a place, which was dangerous to children of
his age. In the conduct of their business and machinery, Defendants were
without fault. The only negligence alleged, is that Defendant could not
make Plaintiff understand a command to leave, and they did not forcibly
eject him. Actionable negligence is the neglect of legal duty. Defendants
are not liable unless they owed Plaintiff a legal duty.
!
An owner of land owes a trespasser a duty to abstain from any other or
further intentional or negligent acts of personal violence. Owners are not
bound to warn trespassers of hidden or secret dangers. Owners may eject
trespassers. If owners do nothing, leave a trespasser entirely alone, in no
manner interfere with him, the trespasser can have no cause of action
against the owner for any injury that he may receive. On the contrary, the
trespasser is liable for any damage that he by his unlawful meddling may
cause them or their property.
!
There is no distinction between an adult trespasser or child trespasser for
purposes of this case.
!
The duty to do no wrong is a legal duty. The duty to protect against a
wrong is a moral obligation only, not recognized or enforced by law.
Discussion. In this case, Plaintiff is characterized as a trespasser and as such, Defendant
breached no duty of care owed to him.
479
Hurley v. Eddingfield
Hurley v. Eddingfield
Citation. 59 N.E. 1058 (Ind. 1901).
Brief Fact Summary. Plaintiff was in dire need of medical attention and he called upon
Defendant, his family doctor, to help him. For no reason, Defendant refused. Plaintiff
died.
Synopsis of Rule of Law. Licensed doctors are not obligated to accept all patients who
are in dire need of medical attention. There is no affirmative duty to be a good citizen and
help others in peril if you have not caused their predicament.
Facts. Defendant was a practicing physician, duly licensed under state law. Defendant
held himself out to the public as a general practitioner of medicine. Defendant was
Plaintiff's family physician. Plaintiff was violently ill and summoned Defendant by
messenger to attend to him and tendered the fee. The messenger told Defendant that no
other physician was available at that time and Plaintiff was relying upon Defendant for
help. Defendant refused to help Plaintiff. Defendant had nothing to do that prevented him
from helping Plaintiff. Plaintiff died wholly because Defendant refused to help him. The
alleged wrongful act was Defendant's refusal to enter into a contract for employment.
Plaintiff sued Defendant for wrongful death. Defendant demurred and the trial court
sustained it. Plaintiff appealed.
Issue. The facts of this case present two issues:
!
Are licensed doctors obligated to help patients who are in dire need of
medical attention?
!
Is there an affirmative duty to be a good citizen and help others in peril if
you have not caused their predicament?
Held. No, licensed doctors are not obligated to accept all patients who are in dire need of
medical attention. No, there is no affirmative duty to be a good citizen and help others in
peril if you have not caused their predicament.
Discussion. Absent a heightened relationship, there is no affirmative duty that a person
give help to a stranger.
480
Montgomery v. National Convoy & Trucking Co.
Montgomery v. National Convoy & Trucking Co.
Citation. 195 S.E. 247 (S.C. 1937).
Brief Fact Summary. Without their fault, National Convey & Trucking Co.'s
(Defendant) truck stalled on an icy highway, blocking the road completely. Plaintiff's car
crashed into Defendant's truck. Plaintiff sued Defendant for Defendant's negligence in
failing to warn of the danger he had created in a manner that would have been effective.
Synopsis of Rule of Law. One may be negligent by acts of omission as well as of
commission, and liability will therefore attach if the act or omission to act owed to
another is the direct, proximate and efficient cause of injury.
Facts. Without their fault, Defendant's truck stalled on an icy highway blocking the road
completely. Fifteen minutes later, Plaintiff's car came over a hill and started down toward
the trucks before Plaintiff or Plaintiff's driver could see them. Defendants knew or should
have known that Plaintiff's car could not stop because of the icy conditions of the road.
Defendant's drivers had ample time to place warning signs at the top of the hill where it
would have been possible for Plaintiff to stop his car. Plaintiff sued Defendant for
negligence. Defendant directed verdict was refused. The jury awarded Plaintiff
$3,000.00. Defendant appealed.
Issue. Can a party be liable for negligence for the omission to act when there is a duty to
act or warn of a danger?
Held. Yes. Judgment affirmed.
!
One may be negligent by acts of omission as well as of commission, and
liability will therefore attach if the act or omission to act owed to another
is the direct, proximate and efficient cause of injury.
!
One of the acts of negligence alleged is the failure of Defendant to
effectively warn approaching vehicles of the existing conditions.
!
Neither flagman nor warning of any description was placed at the crest of
the hill to warn approaching cars. That a warning at the crest of the hill
should have been effective and prevented the injury is fully demonstrated
from other evidence. The danger of the situation was self-evident.
Discussion. This case shows an example of a situation when a defendant had a duty to
act and was held liable for his failure to act.
481
Robert Addie & Sons (Collieries), Ltd. v. Dumbreck
Robert Addie & Sons (Collieries), Ltd. v. Dumbreck
Citation. [1929] A.C. 358.
Brief Fact Summary. Dumbreck's son entered Robert Addie & Sons Ltd.'s
(Defendant's) land, and was killed by Defendant's haulage system.
Synopsis of Rule of Law. The trespasser comes onto Defendant's premises at his own
risk. Defendant is liable only when the injury is due to some willful act involving
something more than the absence of reasonable care.
Facts. Defendant operated a haulage system in its fields. This system consisted of two
parts: the engine, which operated the system, and a wheel about which a cable turned.
The wheel was not visible from the engine. This wheel was dangerous, but very attractive
to children. Defendant took some measures to keep children away from the wheel;
however, the measures were only in the form of brief admonishments and warnings. It
was evident that Defendant was more concerned about the safety of its own property then
of the safety of the trespassers. The surrounding hedge had several gaps, making it easy
for children to pass over the property. Children, in fact, often used the property as a
shortcut. The two gates had signs warning trespassers that they would be prosecuted.
Dumbreck's (Plaintiff's) son was a four-year old boy. He had been warned by Plaintiff not
to go into the field. However, he ignored the warning, entered the property, was caught in
the wheel mechanism, and died. The court awarded judgment for the Plaintiff, holding
that the accident was Defendant's fault, because they did not take suitable precautions to
avoid accidents. Defendant appealed.
Issue. Does Defendant, a landowner, owe a special duty of care to a Plaintiff's child, a
trespasser?
Held. No. Judgment reversed.
!
The only question that arises for determination is the capacity in which the
deceased child was in the field and at the wheel on the occasion of the
accident. Plaintiff attempted to argue that his child was more than a mere
trespasser, and was owed a higher duty. The court disagreed.
!
The trespasser enters the Defendant's property at his own risk. Defendant
is liable only when the injury is due to some willful act involving
something more than the absence of reasonable care. There must be some
act done with the deliberate intention of doing harm to the trespasser, or at
least some act done with reckless disregard of the presence of the
trespasser for Defendant to be held liable.
Concurrence. (Viscount Dunedin) An invitee is on the land for some purpose in which
he and the proprietor have a joint interest. A licensee is a person whom the proprietor has
not in any way invited, he has no interest in his being there, but he has either expressly
482
Robert Addie & Sons (Collieries), Ltd. v. Dumbreck
permitted him to use his lands or knowledge of his presence more or less habitual having
been brought to him, he has then either accorded permission or shown no practical
anxiety to stop his further frequenting the lands. The trespasser is one who goes onto the
land without invitation of any sort and whose presence is either unknown to the
proprietor or, if known, is practically objected to.
Discussion. This case shows the harsh result when the party injured on the land of
another is classified as a trespasser.
483
Rowland v. Christian
Rowland v. Christian
Citation. 443 P.2d 561 (Cal. 1968).
Brief Fact Summary. Rowland (Plaintiff) asked to use the bathroom and was injured
when a cracked handle of the cold-water faucet on the basin broke and severed tendons
and nerves on his right hand. Nancy Christian (Defendant) had known for two weeks that
the handle was cracked and had complained to the manager. However, she did not warn
Plaintiff of the condition.
Synopsis of Rule of Law. Ordinary principles of negligence may be used to determine
the liability of a landowner to a person coming onto the property.
Facts. Plaintiff was a social guest in Defendant's apartment. Plaintiff asked to use the
bathroom and was injured when a cracked handle of the cold-water faucet on the basin
broke and severed tendons and nerves on his right hand. Defendant had known for two
weeks that the handle was cracked, and had complained to the manager. However, she
did not warn Plaintiff. A summary judgment was given to Defendant. Plaintiff appealed.
Issue. May ordinary principles of negligence be used to determine the liability of a
landowner to a person coming onto the property?
Held. Yes. Judgment reversed.
!
Defendant was aware that the faucet handle was defective and dangerous,
that the defect was not obvious, and that Plaintiff was about to come into
contact with the defective condition. Defendant did not warn Plaintiff of
the dangerous condition. From these facts the trier of fact can reasonably
conclude that a failure to warn or to repair the condition constitutes
negligence.
!
It is apparent that the classifications of trespasser, licensee, and invitee, the
immunities from liability predicated upon those classifications, and the
exceptions to those immunities, often do not reflect the major factors,
which should determine whether immunity should be conferred upon the
possessor of land.
!
Although in general, there may be a relationship between the remaining
factors and the classifications of trespasser, licensee, and invitee, there are
many cases in which no such relationship may exist. A man's life or limb
does not become less worthy of protection by the law, nor is his loss less
worthy of compensation under the law because he has come upon the lawn
of another without permission, or with permission but without a business
purpose. We decline to follow and perpetuate such rigid classifications.
Dissent. (Justice Burke) The distinctions between trespassers, licensees, and invitees
have been applied for many years. These classifications have a stability and predictability
484
Rowland v. Christian
in their outcome. If these issues must be decided on a case-by-case basis under the laws
of negligence, they will be bereft of the guiding principles and precedent the law has
provided. It is not the proper function of a court to overturn the learning, wisdom, and
experience of the past in this field; that is the domain of the Legislature.
Discussion. This court applies common law negligence on the owners and occupiers of
land notwithstanding the traditional distinctions in the law.
485
Coggs v. Bernard
Coggs v. Bernard
Citation. 92 Eng. Rep. 107 (K.B. 1703).
Brief Fact Summary. Coggs (Defendant) moved casks of brandy owned by Bernard
(Plaintiff) from one place to another. Through Defendant's negligence, some of the casks
were broken, and a large amount of brandy was lost. Plaintiff sued Defendant for the
amount of brandy lost.
Synopsis of Rule of Law. Any man who undertakes to do an act is liable to an action if
because of his neglect, damage occurs.
Facts. Plaintiff sued Defendant for the amount of brandy lost. Plaintiff received
judgment. Defendant appealed, claiming that he was neither a common porter, nor
received any reward or consideration.
Issue. If man undertakes to do an act, is he liable for any resulting damage, even if he
had no official duty or responsibility?
Held. Yes. Judgment affirmed.
!
Any man who undertakes to do an act is liable, if damage occurs as a
result of his negligence.
Concurrence. (Chief Justice Holt) The owner's trusting him with the goods is a
sufficient consideration to oblige him to a careful management.
Discussion. Once you start to act, you impose upon yourself the duty to act reasonably.
486
Erie R.R. v. Stewart
Erie R.R. v. Stewart
Citation. 40 F.2d 855 (6th Cir. 1930).
Brief Fact Summary. Erie R.R. (Defendant) voluntary undertook the duty to warn
Stewart (Plaintiff) of a danger. Plaintiff relied upon this warning, however Defendant
stopped warning Plaintiff without giving proper notice.
Synopsis of Rule of Law. If one undertakes to take a precaution, even though not
required to by statute, and then removes this precaution without due notice, he is
negligent and liable to an injured party.
Facts. Plaintiff was a passenger in a truck, when he was hit by one of Defendant's trains.
Defendant had a watchman at the intersection where the accident occurred. However, this
watchman was either within his shanty or just outside of it when the accident occurred.
Therefore, he was not able to give warning to Plaintiff to avoid the accident. Judgment
for granted to Plaintiff. Defendant appealed, claiming that the court erred in charging the
jury that the absence of the watchman, where one had been maintained by Defendant at
the highway crossing over a long period of time to the knowledge of Plaintiff, would
constitute negligence as a matter of law.
Issue. If there is no precaution required by statute, and one undertakes to take this
caution anyway, does the removal of this precaution without due notice constitute
negligence?
Held. Yes. Judgment affirmed.
!
When the voluntary employment of a watchman was unknown to the
traveler upon the highway, the mere absence of such watchman could
probably not be considered as negligence toward him as a matter of law,
for in such a case there is neither an established duty nor had he been led
into reliance. But when the traveler knows of the practice, and such
traveler has been educated into reliance upon it, some positive duty must
rest upon the railway with reference thereto.
!
The evidence conclusively established the voluntary employment of a
watchman. It also established the knowledge of this fact and reliance upon
it by the Plaintiff. Therefore, there is a duty, that Defendant, though the
watchman, will exercise reasonable care in warning such travelers as
plaintiff.
Concurrence. (Justice Tuttle) Justice Tuttle concurred in the result reached by the
opinion of the majority of the court. He did not concur with the views that would make
the actionable negligence of the Defendant dependent upon the knowledge of the Plaintiff
of the custom of the Defendant in maintaining a watchman at the crossing. Defendant
owes a duty to give such warnings to every traveler approaching the crossing if possible.
487
Erie R.R. v. Stewart
Discussion. In this case, the court required Defendant to give proper notice of its
intention to cease warning patrons of passing trains. Proper notice would have been
enough for the majority to relieve Defendant of liability. The concurring opinion thought
that it should be Defendant's duty to warn at the crossing.
488
Marsalis v. LaSalle
Marsalis v. LaSalle
Citation. 94 So. 2d 120 (La. App. 1957).
Brief Fact Summary. After LaSalle's (Defendant's) cat scratched Marsalis (Plaintiff),
Defendant agreed to keep the cat under observation until it could be tested for rabies. The
cat got out and Plaintiff underwent extensive treatment for rabies as a precaution.
Plaintiff sued Defendant for damages.
Synopsis of Rule of Law. One who voluntarily takes upon oneself a duty is under a
legal obligation to use reasonable in carrying out that duty.
Facts. Plaintiff was bitten or scratched by Defendant minor son's Siamese cat. Plaintiff
requested that Defendant keep the cat under observation for fourteen days until it could
be determined whether the animal was rabid. Defendant agreed to do so. If the cat were
allowed to wander around the neighborhood, Plaintiff would never know if she had rabies
without undergoing traumatic tests. Four or five days later, the cat escaped when
Defendant and some of her friends were exiting the basement. The cat was gone for about
a month and its whereabouts were unknown. Upon returning home the animal gave no
evidence of ever being infected. In the meantime, Plaintiff had undergone extensive
treatment, including several injections. Plaintiff sued for personal injuries, seeking
reimbursement of the cost of medical treatment. Plaintiff received judgment. Defendant
appealed.
Issue. If one voluntarily undertakes to care for, or to afford relieve or attendance to, an
ill, injured, or helpless person is he under a legal obligation to use reasonable care and
prudence in what he does?
Held. Yes. Judgment affirmed.
!
One who voluntarily undertakes to care for, or to afford relieve or
attendance to, an ill, injured, or helpless person is under a legal obligation
to use reasonable care and prudence.
!
Defendant's liability depends upon whether or not his failure to use
reasonable care was the proximate cause of Plaintiff's injuries. Initially,
Defendant owed Plaintiff no duty. However, once Defendant agreed to
restrain and keep the cat under observation, he was bound to use
reasonable care and prudence in doing so. Plaintiff unquestionably and in
good faith relied upon Defendant to carry out the agreement, which he
voluntarily made. By voluntarily agreeing to keep inside and observe the
cat, Defendant owed Plaintiff a duty.
!
Defendant made no change whatsoever in the animal's usual routine.
Defendant failed to use ordinary or reasonable care to see to it that the
489
Marsalis v. LaSalle
animal was kept secure. Defendant is liable for whatever damages Plaintiff
sustained as a result of Defendant's lack of care.
Discussion. In this case, Defendant would not have undertaken a duty if he had not
agreed to look after the cat. Defendant imposed upon himself a duty to use reasonable
care. The breech of that duty was the proximate cause of Plaintiff's injuries. If Defendant
had used reasonable care, then Plaintiff would not have had to undergo the course of
injections.
490
Moch Co. v. Rensselaer Water Co.
Moch Co. v. Rensselaer Water Co.
Citation. 159 N.E.896 (N.Y. 1928).
Brief Fact Summary. Moch Co.'s (Plaintiff's) building was destroyed by fire, due to a
lack of water to fight the fire. Plaintiff sued Rensselaer Water Co. (Defendant) for failing
to supply the city with sufficient water.
Synopsis of Rule of Law. One who undertakes to perform a contractual duty for
another, and fails to adequately perform this duty, owes no special duty to any third party
harmed by his non-performance, unless he specifically agreed to perform for the third
party.
Facts. Defendant supplied the City of Rensselaer with water. This water was used for
various things, including fire hydrants. Plaintiff owned a building in Rensselaer, which
burned down. The nearest fire hydrants were not able to produce sufficient water at an
appropriate pressure to save the building. Defendant was under contract with the city to
adequately provide this water. Plaintiff sued for damages caused by the failure of
Defendant to "fulfill the provisions of the contract between it and the city of Rensselaer."
Defendant filed a Motion to Dismiss the Complaint. Defendant's Motion was denied. The
appellate court reversed the district court.
Issue. The court addresses Plaintiff's three theories of liability:
!
If one undertakes to perform a contractual duty for another, and fails to
adequately perform this duty, is he liable to any third party harmed by his
non-performance?
!
Will a court generally allow a contractual breach of contract to result in
tort liability without a finding of duty owned independent of the contract?
!
May an incidental beneficiary recover in tort for a failure to perform a
contractual duty?
Held. No to issues (a), (b), and (c). Judgment affirmed.
!
A member of the public may not maintain an action against one
contracting with the city to furnish water at the hydrants, unless an
intention appears that the promisor is to be answerable to individual
members of the public as well as to the city for any loss ensuing from the
failure to fulfill the promise. The benefit must be one that is not merely
incidental and secondary. It must be primary and immediate in such a
sense and to such a degree as to establish the assumption of a duty. In this
case, the contract did not intend to give a member of the public a right of
action against the Defendant. Plaintiff is an incidental third-party
beneficiary and as such has no rights under the contract.
491
Moch Co. v. Rensselaer Water Co.
!
At common law, one who assumes to act, even though gratuitously, may
be charged with the duty of acting carefully. However, in this case,
Defendant did not bring itself into such a relationship with individual
members of the public. At most, Defendant's failure to supply the city with
water was the denial of a benefit to Plaintiff. It was not the commission of
a wrong.
!
The action is not maintainable as one for the breach of a statutory duty.
Defendant is subject to the provisions of the Transportation Corporations
Act. The duty imposed upon it under that act is to furnish the city with
water. However, if Defendant may not be held liable for a tort at common
law, then there is no reason that it may be held for a tort under the statute.
Discussion. Courts are reluctant to turn every contractual breach of contract into a tort. If
there is no special relationship or contractual relationship between the parties, there is no
tortious liability for withholding benefits under a contract to an incidental beneficiary.
This action was not maintainable under tort law either. If the courts were to expand
common law liability to Defendant, then there would be a tremendous amount of liability
and associated transactional cost. In this case, the court held that Defendant did not
undertake a duty to Plaintiff, but rather denied him a benefit.
492
Kline v. 1500 Massachusetts Avenue Apartment Corp.
Kline v. 1500 Massachusetts Avenue Apartment Corp.
Citation. 439 F.2d 477 (D.C. 1970).
Brief Fact Summary. Sarah B. Kline (Plaintiff) was attacked in the common hallway of
Massachusetts Avenue Apartment Corp.'s (Defendant's) apartment building. Plaintiff
brought suit against Defendant to recover the personal injuries she sustained.
Synopsis of Rule of Law. A landlord has a duty to take steps to protect tenants from
foreseeable criminal acts committed by third parties
Facts. Plaintiff leased an apartment from Defendant. At the time Plaintiff first signed the
lease, a doorman was on duty twenty-four hours a day and there was an employee behind
the main desk at all times. Approximately seven years later, Defendant had discontinued
posting a doorman, security gates were left open, and an employee was not always behind
the main desk. One evening, Plaintiff was criminally assaulted and robbed outside of her
apartment in the common hallway, which was under the exclusive control of Defendant.
Two weeks prior, another female tenant had been similarly attack in the same hallway.
Plaintiff brought suit against Defendant. The district court dismissed the complaint and
Plaintiff appealed.
Issue. Should a duty be placed on a landlord to take steps to protect tenants from
foreseeable criminal acts committed by third parties?
Held. Yes. Judgment reversed.
!
On the premises of the apartment building in question, there had been an
increase in violence, robbery, and assault crimes. The crime against
Plaintiff took place in the common hallway, which is under the exclusive
control of the Defendant. Certain duties have been assigned to the landlord
because of his control of common hallways. The duties are the landlord's
because by his control of the areas of common use, he is the only party
who had the power to make the necessary repairs or to provide the
necessary protection.
!
The general rule, which Defendant relies upon, is that a private person
does not have a duty to protect another from a criminal attack by a third
person. But this rule falters when it is applied to the conditions of modern
day apartment living. The landlord is not an insurer of the tenant's safety,
but he is not a bystander either. In this case, the landlord was on notice of
the possibility of a criminal attack upon Plaintiff. Just two weeks prior to
the assault on Plaintiff, another female tenant had been attacked in the
same hallway. The court places the duty of taking protective measures,
guarding the entire premises, and the areas peculiarly under the landlord's
control against the perpetration of criminal acts upon the landlord.
493
Kline v. 1500 Massachusetts Avenue Apartment Corp.
!
As between a tenant and landlord, the landlord is the only one in the
position to take the necessary acts of protection required. The landlord is
in the best position to take the necessary protective measures. Police
cannot patrol the entryways and the hallways.
!
The standard of care, which should be applied in judging if the landlord
has fulfilled his duty of protection, is reasonable care in all circumstances.
Therefore, the applicable standard of care is that standard which
Defendant had employed at the time Plaintiff began her tenancy in 1959.
In 1966 the record is clear that Defendant had breached that standard of
care. Defendant should have used the same standard of care in 1966 as it
employed in 1959.
!
The Landlord is not an insurer. Landlord is not expected to provide
protection owed by a police department. Landlord is entirely justified in
passing the cost of protection to the tenant in the form of increased rent.
Dissent. (Justice MacKinnon) Plaintiff has not proved that the alleged negligence was
the proximate cause of the assault or that it contributed to it in any way. It could have
been a tenant or a guest visiting the property who attacked Plaintiff. Also, Plaintiff was
not led to believe that she would get the same standard of protection in 1966 that was
furnished in 1959. Her original lease had terminated and she was on a month-to-month
basis. Thus, whatever contract existed was created at the beginning of the month. If
tenants expect increased protection, they can move to apartments where it is available and
presumably pay higher rent.
Discussion. Here, the court discusses the general rule that a private person does not have
a duty to protect another from a criminal attack by a third person. However, as this case
shows, that rule has exceptions for persons who share a special relationship. A landlord
does owe a duty to a tenant to provide protection against the intentional criminal acts of
third person. A large part of the court's reasoning is that the landlord is in the best
position to provide protection. If there were no duty imposed upon the landlord, a large
apartment complex such as Plaintiff's would go unprotected. In this case, the special
relationship between the Plaintiff and Defendant justifies the abandonment of the general
rule outlined above and the imposition of the duty of protection against Defendant.
494
Tarasoff v. Regents of University of California
Tarasoff v. Regents of University of California
Citation. 551 P.2d 334 (Cal. 1976).
Brief Fact Summary. Dr. Lawrence Moore's (Defendant's) mentally disturbed patient
killed Tatiana Tarasoff (Tarasoff). Tarasoff's parents (Plaintiffs) argued that Defendant
owed Plaintiff a duty to warn.
Synopsis of Rule of Law. When the avoidance of foreseeable harm requires a defendant
to control the conduct of another person, or to warn of such conduct, the common law has
traditionally imposed liability only if the defendant bears some special relationship to the
dangerous person or to the potential victim.
Facts. Moore (Defendant) was a psychologist at the University of California (Defendant)
hospital. Posenjit Poddar (Poddar) was an outpatient at Defendant's hospital. Moore
diagnosed Poddar with paranoid schizophrenic reaction, acute and severe. Poddar told
Moore that he intended to kill Tarasoff, because she was unresponsive to his romantic
advances. Upon Moore's request, the campus police briefly detained Poddar. Moore's
superior (Defendant) then released Poddar. Tarasoff was not warned of Poddar's threats
or condition. Poddar killed Tarasoff. Plaintiffs brought a wrongful death action against
Defendants. Plaintiffs' complaint predicates liability on two grounds: Defendants' failure
to warn and failure to confine Poddar.
Issue. Do Defendants, psychologists, owe a duty to Tarasoff, a third person, based on the
relationship with a patient?
Held. Yes. Judgment for Plaintiffs.
!
Defendants claim that they owe Tarasoff, a third person, no duty and that
in absence of a duty they are free to act in careless disregard of Tarasoff's
life and safety.
!
Duty is an expression of the sum total of those considerations of policy,
which lead the law to say that the particular plaintiff is entitled to
protection. The most important of the considerations in establishing duty
is foreseeability. Defendant owes a duty of care to all persons who are
foreseeably endangered by his conduct, with respect to all risks, which
make the conduct unreasonably dangerous. When the avoidance of
foreseeable harm requires a defendant to control the conduct of another
person, or to warn of such conduct, the common law has traditionally
imposed liability only if the defendant bears some special relationship to
the dangerous person or to the potential victim.
!
Under the Restatement of Torts § 315, a duty of care may arise from either
(a) a special relation between the actor and the third person which imposes
a duty up the actor to control the third person's conduct; or (b) a special
495
Tarasoff v. Regents of University of California
relationship between the actor and the other which gives the other a right
of protection.
!
One person owes no duty to control the conduct of another, however the
courts have carved out an exception to this rule when the defendant stands
in a special relationship. In this case, the relationship of Defendants
(psychologists/therapists) to either Plaintiff or the patient, Poddar, will
suffice to establish a duty of care.
!
California decisions that recognize this duty have involved cases in which
the defendant stood in a special relationship both to the victim and the
person whose conduct created the danger. Plaintiff is this case, stood in no
special relationship with Defendant, however the court did not think that
the duty should be constricted to such situations. The court analogized the
facts in this case to that of a doctor who is liable to persons infected by his
patient if he negligently fails to diagnose a contagious disease, or, having
diagnosed the illness, fails to warn members of the patient's family.
!
Defendants contend that a duty to exercise reasonable care to protect third
persons is unworkable because a therapist cannot accurately predict
whether or not a patient will resort to violence. Defendants add that
therapists are more often wrong than right. The court recognizes this
difficulty and requires that Defendants exercise that reasonable degree of
skill, knowledge, and care ordinarily possessed and exercised by members
of that professional specialty under similar circumstances. In this case, it is
not contested that Defendants did in fact predict that Poddar would kill
Plaintiff's daughter. Plaintiff's complaint alleged that Defendants failed to
warn, knowing what would likely happen.
!
The court recognized the public interest in safeguarding the confidential
character of psychotherapeutic communication but felt that it must give in
to the public interest in safety from violent assault. The court summarized
its reasoning in adding, "the protective privilege ends where the public
peril begins."
!
Defendant therapists were not immune from liability for their failure to
warn. Both defendant therapists and defendant police officers were
immune from liability for failure to confine Poddar.
Dissent. (Justice Clark) Confidentiality is essential to effectively treat the mentally ill
and imposing a duty on doctors to disclose patient threats to potential victims greatly
impairs treatment. The Legislature has already decided that effective and confidential
treatment is preferred over imposition of a duty to warn.
Concurrence. (Justice Mosk) The concurrence states that Defendants did in fact know
that Poddar was going to kill. The court is not concerned with the fact that Defendants
should have known Poddar was going to kill.
496
Tarasoff v. Regents of University of California
Discussion. In this case, the court held that a special relationship existed between
Plaintiff and Defendant. Because of this special relationship, Defendant owed Plaintiff
the duty to warn.
497
CHAPTER VIII.
Traditional Strict Liability
498
Poggi v. Scott
Poggi v. Scott
Citation. 139 P. 815 (Cal. 1914).
Brief Fact Summary. Defendant mistakenly sold Plaintiff's wine. Plaintiff sued Scott
(Defendant) for conversion.
Synopsis of Rule of Law. Conversion is the unwarranted interference by defendant with
the dominion over the property of the plaintiff, which results in damages.
Facts. Plaintiff stored his wine barrels in a basement under lock and key. He rented the
basement from a judge. Plaintiff visited the storeroom about twice per month. Eventually
the building was sold to Defendant. The judge testified that he had sold the building to
Defendant and had informed Defendant of Plaintiff's lease with the Laundry Company.
The judge did not tell Plaintiff that the premises had been sold. When Plaintiff inspected
the basement after the sale, he found that all his wine had been sold. Two men told
Defendant that they wanted to buy some broken barrels stored in the basement.
Defendant allegedly inspected the barrels and sold the empty barrels for fifteen dollars on
the condition that the men clear out the basement. The two men were arrested for theft
and Plaintiff sued Defendant for conversion. The trial court granted a nonsuit for
Defendant. Plaintiff appealed.
Issue. Is an innocent mistake a defense to the tort of conversion?
Held. No. Judgment reversed.
!
The foundation for the action of conversion rests neither in the knowledge
nor the intent of the defendant. Is rests upon the unwarranted interference
by defendant with the dominion over the property of the plaintiff from
which injury to the latter results. It makes no difference if defendant acted
in good faith or bad faith - with care or with negligence.
!
In this case Defendant is liable to Plaintiff for the tort of conversion. By
his own testimony, it is clear that Defendant sold barrels that did not
belong to him, but did belong to Plaintiff. The fact that Defendant did not
know the barrels contained wine does not matter.
Discussion. Traditionally, conversion was a strict liability cause of action. Standards of
care are not relevant in deciding whether or not a wrongdoer is liable under a theory of
strict liability. The outcome in this case would have been the same had Defendant
intentionally or negligently sold Plaintiff's barrels of wine.
499
Moore v. Regents of the University of California
Moore v. Regents of the University of California
Citation. 793 P.2d 479 (Cal. 1990).
Brief Fact Summary. Dr. Golde (Defendant) removed Moore's (Plaintiff's) spleen and
blood products to save his life. Defendant knew that these blood products had great
economic value. Defendant deceived Plaintiff and developed the cells without his
consent. Plaintiff sued for conversion and failure to disclose.
Synopsis of Rule of Law. To establish conversion, Plaintiff must establish an actual
interference with his ownership or right of possession. If Plaintiff has neither title nor
possession, he may not maintain an action for conversion.
Facts. Plaintiff visited UCLA Medical Center shortly after he learned that he had hairycell leukemia. Defendant removed Plaintiff's spleen to save his life. Even before the
operation, Golde and Quan (Defendant), a researcher for the University of California,
both knew that Plaintiff's blood products could have great commercial uses unrelated to
his medical research. Plaintiff flew from Seattle to UCLA several times because he was
told that it was necessary and required for his well-being. However, these visits were
designed to collect more research materials. Defendants then developed and patented a
cell line from Plaintiff's cells and licensed them for commercial development. The
commercial rights were substantial and included cash payments and stock options.
Plaintiff alleged that Defendants failed to disclose preexisting research and economic
interests in the cells before obtaining consent to the medical procedures. Plaintiff also
seeks to impose liability upon Defendants for the tort of conversion.
Issue. There are two issues in this case:
!
Are Defendants liable to Plaintiff for conversion in the unauthorized use
of human cells in medical research?
!
Must Defendants disclose personal interests unrelated to the Plaintiff's
health that may affect Defendants' medical judgment?
Held. No, Defendant is not liable for conversion. Yes, Defendants must disclose.
!
Defendants are liable for nondisclosure. Defendants were required to
obtain Plaintiff's informed consent.
!
Conversion protects against interference with possessory and ownership
interests in personal property. Plaintiff's argued that he continued to own
his cells after their removal and Defendant's unauthorized use of the cells
constituted a conversion. However, no court has imposed conversion
liability for the use of human cells in medical research. Plaintiff claims
ownership of the results of socially important medical research, including
500
Moore v. Regents of the University of California
the genetic code of chemicals that regulate the functions of every human
being's immune system.
!
Under current law, the tort of conversion does not extend to the facts of
this case. To establish a conversion, Plaintiff must establish an actual
interference with his ownership or right of possession. If Plaintiff has
neither title nor possession, he may not maintain an action for conversion.
It is clear that Plaintiff did not intend to maintain possession of the cells
after their removal. After reviewing applicable statutes and cases, the court
found nothing to support the claim that a person retains a sufficient
interest in excised cells to suppose a cause of action for conversion.
!
The court gives three reasons why conversion liability should not be
extended to encompass the facts of this case: (1) policy considerations; (2)
defer to the Legislature; and (3) not necessary to protect patients' rights.
!
Policy considerations - The court weighs the public interest in a patient's
right to make autonomous medical decisions against the consideration that
the court not threaten innocent researchers engaged in socially useful
activities with disabling civil liability. The court did not extend conversion
liability because it would utterly sacrifice the goal of protecting third
parties. Extending liability for conversion would only indirectly protect
patients' right to autonomy. Since conversion is a strict liability tort, it
would impose liability on all those into who work with the cells. It would
not protect innocent parties.
!
Defer to Legislature - It is the legislature that should decide to impose
liability if they feel it to be appropriate.
!
Not necessary to protect patients' rights - Disclosure obligations will
protect patients against the very type of harm Plaintiff suffered.
Enforcement of physician's disclosure obligations protects patients
directly, without hindering the socially useful practices of innocent
researchers.
Dissent. There are two dissenting opinions.
!
(Justice Broussard) I dissent from the majorities' holding that facts of this
case do not state a cause of action for conversion. Because Plaintiff alleges
that Defendants wrongfully interfered with his right to determine, prior to
the removal of his body parts, how those parts would be used after
removal, J. Broussard concludes that the complaint stated a cause of action
for conversion under traditional common law principles.
!
(Justice Mosk) The majority opinion gives patients only the right to refuse
consent and the right to prohibit the commercialization of this tissue. It
does not give them the power to consent to that commercialization on the
501
Moore v. Regents of the University of California
condition that he shares in the proceeds. Furthermore, any researcher or
physician who is not personally treating the patient does not need to obtain
consent.
Discussion. In this case, the majority was fearful in imposing liability on the Defendants
under the theory of conversion and strict liability. The court did not want to penalize
researchers who were working on cures for diseases. If the court had found Defendants
liable for conversion, the damage award would have been astronomical. If Plaintiff has
neither title nor possession, he may not maintain an action for conversion.
502
Gehrts v. Batteen
Gehrts v. Batteen
Citation. 620 N.W.2d 775 (S.D. 2001).
Brief Fact Summary. A domesticated dog owned by Cindy Batteen bit Plaintiff.
Plaintiff sued Jon Batteen and Cindy Batteen (Defendants) in negligence and in strict
liability.
Synopsis of Rule of Law. If the owner of a domesticated animal knows or has reason to
know that the animal has abnormally dangerous propensities, then he may be held liable
for negligence.
Facts. Ms. Batteen visited the home of Plaintiff. Wilbur, Ms. Batteen's St. Bernard, was
secured in the back of her pickup by a harness. Plaintiff asked if she could pet Wilbur,
and Ms. Batteen consented. When Plaintiff reached up to pet Wilbur, Wilbur bit her in
the face causing injuries to Plaintiff's nose and forehead. Plaintiff received extensive
medical treatment as a result of those injuries. Plaintiff sued Defendants in strict liability
and negligence. Defendant was granted summary judgment as to both claims. Plaintiff
appealed.
Issue. Is Defendant negligent or strictly liable for the injuries caused by his domesticated
dog?
Held. No. Judgment affirmed.
!
If the owner of a domesticated animal knows or has reason to know that
the animal has abnormally dangerous propensities, then he may be held
liable for negligence. This liability attached to Defendant regardless of the
amount of care exercised. Before the breach of duty will attach, Plaintiff
must establish that the owner knew or should have known of that animal's
dangerous propensities. If the animal had bitten someone before, then it is
established that the owner knew or should have known of the animal's
dangerous propensities. If the animal barked, bared its teeth, and strained
at its leash, then this would be sufficient to establish knowledge. In this
case, there is no evidence that Defendant knew or should have known that
Wilbur would bite Plaintiff. St. Bernard's are generally gentle dogs.
Wilbur was very docile and had never bitten anyone before. Plaintiff even
admitted that she did not know of any incidents that would have alerted
Defendant to any dangerous propensities.
!
However, a cause of action for negligence can survive with the owner's
actual knowledge of an animal's dangerous propensities. In these
scenarios, the ordinary negligence standard of foreseeability will be
applied. Plaintiff must establish that an ordinary, prudent person should
have foreseen Wilbur's attack. To prove this, Plaintiff called an expert who
testified that Defendant should have known that Plaintiff had been around
503
Gehrts v. Batteen
another dog, and that the scent of that dog would still be on Plaintiff. She
should have known that Wilbur would have reacted to the dog scent on
Plaintiff, and would have bitten the Plaintiff. Plaintiff also argued that
Defendant should have taken Wilbur out of the harness and placed him on
a leash when Plaintiff asked to pet him.
!
The court found there to be no evidence that Defendant violated the
reasonable person standard of care. A reasonable person would not have
known that Wilbur would have bitten Plaintiff, because of the dog scent,
or that the harness would have been an unreasonable restraint on Wilbur.
Plaintiff's cause of action for negligence cannot survive.
!
The Legislature is the proper place to decide when to impose strict
liability. This Legislature has not followed a strict liability standard for
domesticated animals.
Dissent. (Justice Sabers) This court should not have affirmed the summary judgment
motion. Negligence issues are best left to trial and a jury.
Discussion. In this case, the court makes a distinction between domesticated animals and
wild animals. An owner is strictly liable for the harm caused by wild animals despite the
care exercised. Domesticated animals are different. In this case, Defendant was not
negligent because she had no reason to know Wilbur would bite Plaintiff. Defendant did
not breach a duty owed to Plaintiff and thus summary judgment is appropriate.
504
Spano v. Perini Corp.
Spano v. Perini Corp.
Citation. 250 N.E.2d 31 (N.Y. 1969).
Brief Fact Summary. Spano's (Plaintiff's) garage was destroyed by Perini Corp.'s
(Defendant's) non-negligent explosion of 194 sticks of dynamite on its nearby property.
The trial court awarded Plaintiff damages.
Synopsis of Rule of Law. One who engages in blasting must assume responsibility and
be liable without fault for any injury he causes to neighboring property.
Facts. Spano's (Plaintiff's) garage and Davis' (Plaintiff's) car, which was in the garage,
were both wrecked by shock waves from a dynamite blast set off by Defendant on its
nearby property. Defendant set off 194 sticks of dynamite about 125 feet from Plaintiff's
garage. There was no physical trespass and no proof of negligence on the part of
Defendant. Prior law under Booth v. Rome required that negligence must be shown,
unless the blast was accompanied by a physical invasion of the property. No attempt at
trial was made to show that Defendant had failed to use reasonable care. The court
awarded Spano, $4,400.00, and Davis, $329.00. Defendant appealed.
Issue. May a person that has sustained property damage caused by blasting on nearby
property, maintain an action for damages without a showing that the blaster was
negligent?
Held. Yes. Judgment affirmed.
!
One who engages in blasting must assume responsibility and be liable
without fault for any injury he causes to neighboring property. This
holding overturns the holding in Booth.
!
In Booth, the court held that public policy is promoted by the construction
of towns and cities and improvement of property. An unnecessary restraint
on freedom of action of a property owner hinders this. However, the court
in this case, points to the fact that the Plaintiff in Booth was not seeking to
exclude the Defendant from blasting and thus preventing desirable
improvements to the latter's property. Rather, the Plaintiff was merely
seeking compensation for the damage that was inflicted upon his own
property.
!
In this case, the court asked, who should bear the cost of the resulting
damage? The innocent neighbor should not bear the cost of the intentional
acts of his neighbor. Thus, Defendant is free to use 194 sticks of dynamite,
125 feet away from Plaintiff so long as he pays for whatever damage it
causes.
Discussion. When dealing with explosives, a Defendant is strictly liable for the resulting
damage done to a neighbor's land. Abnormally dangerous materials are always subject to
505
Spano v. Perini Corp.
strict liability, but make sure that it was the abnormally dangerous activity that caused the
injury.
506
Indiana Harbor Belt R.R. v. American Cyanamid Co.
Indiana Harbor Belt R.R. v. American Cyanamid Co.
Citation. 916 F.2d 1174 (7th Cir. 1990).
Brief Fact Summary. Indiana Harbor Belt R.R. (Plaintiff) sued American Cyanamid
Co. (Defendant) in negligence and strict liability to recoup the clean-up cost of
acrylonitrile, which spilled out of Defendant's railroad car.
Synopsis of Rule of Law. The Restatement (Second) of Torts § 520, lists six factors to
determine whether or not an activity is subject to strict liability: (1) the risk of harm is
great; (2) the harm that would ensure is great; (3) the activity is not one of common
usage; (4) the harm cannot be prevented by utmost care; (5) the activity is inappropriate
for the location where it took place; and (6) the social value of the activity is not
sufficient to offset the risks.
Facts. Defendant loaded 20,000 gallons of liquid acrylonitrile, a toxic substance, into a
railroad car in order to ship it to New Jersey. The car was sitting in Plaintiff's rail yard
when a leak was discovered. The leak was eventually brought under control, but 5,000
gallons of the toxic substance was spilled, and it caused the evacuation of the surrounding
area. The clean-up bill was $981,022.75. Plaintiff sued Defendant to recover this cost.
Plaintiff claimed that Defendant was negligent, that the transportation of toxic chemicals
was an abnormally dangerous activity, and Defendant should be strictly liable. The jury
returned a verdict for Plaintiff. Defendant appealed.
Issue. Is Defendant strict liability for the transportation of liquid acrylonitrile?
Held. No. Judgment reversed and remanded.
!
Section 520, lists six factors to determine whether or not an activity is
subject to strict liability: (1) the risk of harm is great; (2) the harm that
would ensure is great; (3) the activity is not one of common usage; (4) the
harm cannot be prevented by utmost care; (5) the activity is inappropriate
for the location where it took place; and (6) the social value of the activity
is not sufficient to offset the risks.
!
The largest class of cases is which strict liability has been imposed under
Section 520 involves the use of dynamite and other explosives for
demolition in residential or urban areas. Acrylonitrile is both flammable
and toxic, even at low temperatures.
!
No one suggests that the leak in this case was caused by the inherent
properties of acrylonitrile. It was caused by carelessness. If a tank car is
carefully maintained, the danger of an acrylonitrile spill is negligible.
Thus, there is no compelling reason to hold Defendant responsible in strict
liability.
507
Indiana Harbor Belt R.R. v. American Cyanamid Co.
!
Plaintiff focuses on the fact that the spill occurred in a densely populated
region and could have been disastrous. Plaintiff argues that strict liability
would provide Defendant with an incentive to find another route, one that
does not go through a major town or suburb. However, Plaintiff fails to
realize that the railroad is a hub and spoke system and the hubs are in
densely populated areas.
Discussion. Acrylonitrile is not a sufficiently abnormally dangerous substance to impose
strict liability upon the Defendant. If Defendant is liable for the clean-up cost, it will be
under a negligence theory.
508
Vogel v. Grant-Lafayette Electric Cooperative
Vogel v. Grant-Lafayette Electric Cooperative
Citation. 548 N.W.2d 829.
Brief Fact Summary. The Vogels (Plaintiffs) sued Defendant on two different theories
of nuisance for stray voltage from Grant-Lafayette Electric Cooperative's (Defendant's)
electrical service.
Synopsis of Rule of Law. A private nuisance is a nontrespassory invasion of another's
interest in the private use and enjoyment of the land. The common law doctrine of private
nuisance is both "broad" to meet the wide variety of possible invasions, and "flexible" to
adapt to changing social values and conditions.
Facts. The Plaintiffs were dairy farmers and members of Defendant, a cooperative
association that distributed electricity to its members. Shortly after building a new
milking facility in 1970, Plaintiffs noticed problems with their herd. They discovered that
the problems were associated with stray voltage. In 1986, Defendant responded to
Plaintiff's concerns about stray voltage and built an isolator. The behavior of the herd
began to improve immediately. In 1992, Plaintiffs filed suit against Defendant for
negligence and nuisance. Defendant denied these allegations and alleged that Plaintiffs
were contributorily negligent in the design, maintenance, and operation of their electrical
equipment. The jury found that Defendant was negligent and that it had created a
nuisance. It awarded Plaintiffs $240,000.00 in economic damages and $60,000.00 in
annoyance and inconvenience damages. A verdict for $200,000.00 was entered and
Defendant appealed. The court of appeals held that the trial court erred in submitting the
nuisance claim to the jury.
Issue. There are two issues in this case:
!
Could Defendant's stray voltage constitute a private nuisance?
!
Does Defendant's stray voltage constitute an intentional invasion
nuisance?
Held. Yes, Defendant's stray voltage could constitute a private nuisance. No,
Defendant's stray voltage does not constitute an intentional invasion nuisance.
!
A private nuisance is a nontrespassory invasion of another's interest in the
private use and enjoyment of the land. Defendant argues that the definition
of a private nuisance necessarily involves a unilateral encroachment.
According to Defendant, the Plaintiffs' act of requesting electrical service
and cooperating in the receipt of electricity by connecting its system to
Defendant's distribution system negates the concept of unilateral invasion
and thus defeats a claim for nuisance. The court disagrees. Plaintiffs'
request for electric service itself does not negate the invasion element of
509
Vogel v. Grant-Lafayette Electric Cooperative
nuisance. Plaintiffs requested electrical service, but they did not request
excessive stray voltage to flow though their farm.
!
The common law doctrine of private nuisance is both "broad" to meet the
wide variety of possible invasions, and "flexible" to adapt to changing
social values and conditions. Nuisance law is applicable to stray voltage
claims because excessive levels of stray voltage may invade a person's
private use and enjoyment of land.
!
Plaintiffs assert that although Defendant may not have intended to cause
harm, the invasion is intentional because Defendant knew that the stray
voltage was substantially certain to result from its conduct. The court
disagreed, the mere fact that the systems were interconnected does not
create an intentional invasion. It is the unreasonable level of stray voltage
that may give rise to liability. Plaintiffs fail to identify any evidence,
which would indicate that the Defendant had knowledge that the system
was straying unreasonably high levels of voltage onto the Plaintiffs' farm.
Plaintiffs also argue that Defendant's conduct constitutes an intentional
invasion because it was a continuing invasion of which they had
knowledge. However, as soon at Defendant became aware of the stray
voltage, it immediately responded and worked to alleviate the problem. It
installed an isolator on the system, which helped immediately.
Discussion. For Plaintiffs to recover under a claim for intentional nuisance, Defendant
must have intended to cause the harm to the herd. Defendant is not liable for a continuing
trespass either because as soon as Defendant was aware of the stray voltage, it made
immediate steps to fix it. Defendant is liable for private nuisance in providing undesirable
and harmful stray electric along with the requested electricity. Notice in the private
nuisance analysis, it does not matter whether or not Defendant knew or should have know
that its stray electricity caused Plaintiff harm. Private nuisance is a strict liability tort.
510
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc.
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc.
Citation. 114 So. 2d 357 (Fla. App. 1959).
Brief Fact Summary. Fontainebleau Hotel Corp. (Defendant) maliciously began to
build an addition to his hotel, which blocked the air and light to Plaintiff's neighboring
hotel.
Synopsis of Rule of Law. There is no common law easement for air-flow or light
Facts. Defendant was in the process of building a fourteen-story addition to their hotel,
which was being constructed twenty feet from its northern property line. During the
winter months, from two in the afternoon until the end of the day, the shadow of
Defendant's addition will extend over the cabana, swimming pool, and sunbathing areas
of Eden Roc, which is located on the southern portion of Plaintiff's property. Plaintiff
filed suit when the addition was eight stories high. Plaintiff contended that the shadow,
which would be cast by the addition would render Plaintiff's beach wholly unfit for the
use and enjoyment of its guests. Plaintiff also contends that Defendant's intention to build
the addition on the north side of their property was motivated in part by malice and ill
will. Construction on the south side of Defendant's property would not have caused the
same problems. Plaintiff alleged that the construction would interfere with the easements
of light and air enjoyed by Plaintiff, and that Plaintiff had an easement by implication.
Defendant denied the material allegations, pleading laches and estoppel by judgment.
Plaintiff received a temporary injunction. It is clear that the addition to Defendant's
property will damage Plaintiff. Defendant appealed.
Issue. Does Plaintiff have a legal right to the flow of light and air across the adjoining
land of a neighbor?
Held. No. Judgment reversed.
!
One must not use his property to injure the lawful rights of another.
!
No decision has been cited, which provides for a legal right to the free
flow of light and air across the adjoining land of a neighbor, in the absence
of some contractual or statutory obligation. Under the common law, there
was no such right in the absence of an easement.
!
In the absence of an easement, no such rights exist. Because there is no
legal right to the free flow of light and air from the adjoining land, it is
universally held that when a structure serves a useful and beneficial
purpose, it does not give rise to a cause of action, either for damages or for
an injunction even though it causes injury to another, and that injury was
created from malice and ill will.
511
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc.
Discussion. This type of situation is one best left to the legislature. There is no common
law easement for light or air, but the legislature has imposed height restrictions. Height
restrictions raise takings and just compensation issues.
512
Rogers v. Elliot
Rogers v. Elliot
Citation. 15 N.E. 768 (Mass. 1888).
Brief Fact Summary. Elliott (Defendant) rang a church bell, which he knew would hurt
Rogers (Plaintiff) who was recovering from a serious case of sunstroke. Plaintiff sued
Defendant.
Synopsis of Rule of Law. One must act reasonably, using his property in a manner that
would be acceptable to the common man.
Facts. Plaintiff was recovering from a serious case of sunstroke in a house near the
church when Defendant rang the church bell. Plaintiff suffered severe convulsions due to
the noise generated by the bell. Plaintiff's doctor warned Defendant that the bell was
hurting Plaintiff, and urged him to stop ringing it. Defendant did not like Plaintiff, so he
told the doctor that he would continue to ring the bell, and that he would ring the bell
even if his mother were ill. Plaintiff suffered further damage. Plaintiff brought an action
against Defendant.
Issue. Was it unlawful for Defendant to ring the bell in the manner which he do so?
Held. No. Judgment on the verdict.
!
One must simply act reasonably, using his property in a manner that
would be acceptable to the common man. The answer to the fundamental
question is that one must take action that is reasonable under the
circumstances. This standard is more lenient in a less populated area, but
more stringent in a densely populated area. The right to make noise for a
proper purpose must be measured in reference to the degree of annoyance
which others may reasonably be required to submit to. Legal rights as to
the use of property must not be left to uncertainty. The test must be the
common care of persons of ordinary prudence, without regard to the
peculiarities of one or two people.
Discussion. The Restatement (Second) of Torts adopted the reasoning and holding in
this case. "There is liability for a nuisance only to those to whom it causes significant
harm, of a kind that would be suffered by a normal person in the community or by
property in normal condition and used for a normal purpose."
513
Ensign v. Walls
Ensign v. Walls
Citation. 34 N.W.2d 549 (Mich. 1948).
Brief Fact Summary. Plaintiffs alleged that Defendant's use of her property constitutes
a nuisance. Defendant argued that her use was prior to the Plaintiffs moving to the area,
and as a result, an injunction should not be granted.
Synopsis of Rule of Law. Carrying on an offensive trade for any number of years in a
place remote from buildings and public roads, does not entitle the owner to continue it in
the same place after houses have been built. The fact that Plaintiffs 'came to the nuisance'
is not a defense.
Facts. Defendant raises and breeds St. Bernard dogs. Plaintiffs are nearby property
owners and neighbors. Plaintiffs sued for injunctive relief. The complaint alleged that
obnoxious odors came from Defendant's premises and the continual barking of the dogs
interfered with and disturbed the Plaintiffs in the use and enjoyment of their respective
properties. Plaintiffs also stated that Defendant's premises were infested with rats and
flies, and that on occasion, dogs escaped from their premises and roamed the
neighborhood. Defendant claimed that Plaintiffs are not entitled to the injunction,
because many of the Plaintiffs had just recently moved into the area, and were aware of
Defendant's business prior to their move. The court found that Defendant's business
represented a nuisance to Plaintiffs, and that Defendant had not acquired the right to
continue the nuisance by prescriptive use of the property. Defendant appealed.
Issue. Should Plaintiffs be denied equitable relief because Defendant's use of her
property was prior to Plaintiffs' use of their property?
Held. No. Judgment affirmed.
!
Carrying on an offensive trade for any number of years in a place remote
from buildings and public roads, does not entitle the owner to continue it
in the same place after houses have been built. As the city extends, such
nuisances should be removed to the vacant grounds beyond the immediate
neighborhood of the citizens' residences. In this case, Defendant's use was
not a nuisance to the surrounding property owners twenty years ago, but
now that the city has expanded, Defendant's land is encompassed by a
residential neighborhood. Plaintiffs are entitled to the use and enjoyment
of their land. Defendant must move if she wishes to continue her use.
Discussion. The city is continuing to expand and Plaintiffs are entitled to enjoy their
land. If the court were to permit Defendant to continue her use, the numerous residential
properties surrounding Defendant's premises would be impaired. It only makes sense to
require Defendant to stop her use of the property, or move. Coming to the nuisance is not
a defense.
514
Boomer v. Atlantic Cement Co.
Boomer v. Atlantic Cement Co.
Citation. 257 N.E. 2d 870 (N.Y. 1970).
Brief Fact Summary. Atlantic Cement Co.'s (Defendant's) cement company emitted a
large amount of dirt, dust and vibrations, which gave cause to a nuisance. Numerous
landowners (Plaintiffs) brought suit to enjoin Defendant from operating his plant.
Synopsis of Rule of Law. An injunction is not the appropriate remedy in a nuisance case
when the defendant is providing an essential product or service to the public. An award of
permanent damages is better suited.
Facts. Defendant operated a cement plant. This plant emitted a large amount of dirt,
smoke, and vibrations, affecting a group of landowners. Plaintiffs brought suit to enjoin
Defendant from operating the plant. The court found that the cement plant constituted a
nuisance, and that there was substantial damage to Plaintiffs. The court awarded Plaintiffs
permanent damages of $185,000.00 and refused to issue an injunction. The trial court
reasoned that the total damage to Plaintiffs was small when compared to the value of
Defendant's operation. Plaintiffs appealed.
Issue. Must an injunction be issued when a nuisance has been determined to exist and
when there are substantial damages shown by the party complaining of the interference?
Held. No. Judgment reversed and remanded as to the award of permanent damages.
!
The public concern with air pollution arising from many sources in
industry and in transportation is currently accorded ever-wider
recognition. The amelioration of air pollution will depend on technical
research, on a carefully balanced consideration of the economic impact of
close regulation, and the effect on public health. A court should not try to
do this on its own as a by-product of private litigation.
!
When a nuisance has been found and there has been substantial damage
shown by the plaintiff, an injunction will be granted. The rule in New
York is that defendant will be enjoined although marked disparity is
shown in economic consequence between the effect of the injunction and
the effect of the nuisance.
!
The court wanted to avoid the immediate drastic remedy of a permanent
injunction. Instead, the court pointed to two ways in which Plaintiff may
be granted relief. One alternative was to grant the injunction but postpone
its effect to a specified future date to give opportunity for technical
advances to permit defendant to eliminate the nuisance. Another
alternative was to grant the injunction conditioned on the payment of
permanent damages to Plaintiff that would compensate them for the total
515
Boomer v. Atlantic Cement Co.
economic loss to their property present and future caused by Defendant's
operation. The court chose the latter alternative.
!
The problems with cement plants are universal. The technology required
to eliminate the nuisance will come from the cement industry, not the
Defendant.
!
It seems fair to both sides to grant permanent damages to Plaintiffs, which
will terminate this private litigation. The order should be reversed, without
costs, and the cases remitted to grant an injunction with shall be vacated
upon payment by Defendant of such amounts of permanent damage to the
Plaintiffs as shall for this purpose be determined by the court.
Dissent. (Justice Jasen) This long-standing rule should not be changed when substantial
damages are involved. The majority is licensing a continuing wrong. Once these damages
are paid, there will be no incentive to alleviate the wrong. Defendant should be given a
reasonable time to abate the nuisance, otherwise it should be enjoined.
Discussion. The majority in this case forced the parties into a settlement. In essence, the
Plaintiff will hold Defendant hostage. Plaintiff will seek money out of Defendant. The
cement plant will not be shut down. The nuisance will continue and there will be no
incentive to abate it. The result that the majority reaches allows Defendant to continue his
nuisance so long as it pays for it. As the majority pointed out, courts issue injunctions
when a nuisance has been proven. This case is a departure from precedent.
516
Anonymous
Anonymous
Citation. Y.B. Mich. 27 Hen. 8, f. 27, pl. 10 (1535).
Brief Fact Summary. Plaintiff was attempting to use a public road. However,
Defendant had blocked this road, and nobody was able to use it.
Synopsis of Rule of Law. One cannot bring an action against another for damages if the
harms are against the public as a whole.
Facts. Plaintiff was attempting to use a public road. However, Defendant had blocked
this road, and nobody was able to use it. Plaintiff sued Defendant, claiming that his
actions caused Plaintiff damages because Plaintiff was unable to use the road.
Issue. Can one bring an action for damages against another if the other person's harms
are against the public as a whole?
Held. No. Judgment for Defendant.
!
One cannot bring an action against another for damages if the harms are
against the public as a whole. The tortfeasor would be subjected to many
suits and would have to pay several times for damages. The municipality
should be the party to bring suit against Defendant.
Concurrence. (Justice Fitzherbert) I agree with the holding. Plaintiff can bring suit for a
public nuisance only if he has suffered greater hurt or inconvenience than the rest of the
public.
Discussion. For a public nuisance, the correct party to bring the action is the
municipality or the government unless a particular person has suffered greater harm than
the public as a whole.
517
532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc.
532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc.
Citation. 750 N.E.2d 1097 (N.Y. 2001).
Brief Fact Summary. A section of the south wall of an office tower partially collapsed.
532 Madison Avenue Gourmet Foods, Inc., (Plaintiff) had to remain closed for five
weeks. Plaintiff sued Defendant for public nuisance.
Synopsis of Rule of Law. A public nuisance is actionable by a private person only if it
is shown that the person suffered special injury beyond that suffered by the community at
large.
Facts. A section of the south wall of 540 Madison Avenue, a 39-story office tower,
partially collapsed. Bricks, mortar and other material fell onto Madison Avenue at 55th
Street, a prime commercial location crammed with stores and skyscrapers. It was
necessary to close off the surrounding areas. Plaintiff operates a 24-hour delicatessen,
one-half block south of 540 Madison. They had to remain closed for five weeks. Other
stores and entities also sued because they were shut down as well. The Supreme Court of
New York dismissed Plaintiff's public nuisance claim on the ground that the injuries were
the same in kind as those suffered by all of the businesses in the community. Plaintiff
appealed.
Issue. Is a public nuisance actionable by a private person only if it is shown that the
person suffered special injury beyond that suffered by the community at large?
Held. Yes. Judgment affirmed.
!
A public nuisance exists for conduct that amounts to a substantial
interference with the exercise of a common right of the public, thereby
offending public morals, interfering with the use by the public of a public
place or endangering or injuring the property, health, safety or comfort of
a considerable number of persons. A public nuisance is a violation against
the state and is subject to abatement or prosecution by the proper
governmental authority.
!
A public nuisance is actionable by a private person only if it is shown that
the person suffered special injury beyond that suffered by the community
at large. A nuisance is the actual invasion of interests in land, and it may
arise from varying types of conduct.
!
Under these facts, the public space around Madison Avenue and Times
Square was invaded, not only by the building collapses but also by the
City's decision, in the interest of public safety, to close off those areas. In
this case, the economic loss was "common to an entire community and
Plaintiff suffered it only in a greater degree than others." It is not a
518
532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc.
different kind of harm and Plaintiff cannot recover for the invasion of the
public right.
Discussion. In order for Plaintiff to maintain its action for public nuisance, they have to
prove that they suffered a different type of injury. Their claim was dismissed because the
injury suffered only varied in degree, not type. Plaintiff, a private individual, cannot
maintain an action for public nuisance unless the harm suffered is of a different type than
the community at large.
519
Camden County Board of Chosen Freeholders v. Beretta, U.S.A. Corp.
Camden County Board of Chosen Freeholders v. Beretta, U.S.A. Corp.
Citation. 273 F.3d 536 (3d Cir. 2001).
Brief Fact Summary. Camden County (Plaintiff), a municipal county, sued Beretta,
U.S.A. Corp. (Defendant), a gun company, for public nuisance.
Synopsis of Rule of Law. For the interference to be actionable, Defendant must exert a
certain degree of control over the source of the nuisance.
Facts. Plaintiff alleged that Defendant's conduct and the marketing and distribution of
handguns, created and contributed to the widespread criminal use of handguns in the
county. Plaintiff invoked three theories of liability: negligence, negligent entrustment,
and public nuisance. The district court rejected all three of Plaintiff's theories. On appeal,
Plaintiff dismissed the two negligence claims and pursued only the public nuisance claim.
Plaintiff contended that Defendant knowingly facilitated, participated in, and maintained
a handgun distribution system that provided criminals and youth easy access to handguns,
and that Defendant knowingly created the public nuisance of criminals and youth with
handguns. Plaintiff contended that Defendant released into the market substantially more
handguns than they expect to sell to law-abiding purchasers. And that Defendant
continued to use certain distribution channels, despite knowing that those channels lead
to increased criminal activity.
Issue. As a matter of law, can a legally manufactured product placed in the stream of
commerce create a nuisance?
Held. No. Judgment affirmed.
!
A public nuisance is an unreasonable interference with a right common to
the general public. For the interference to be actionable, Defendant must
exert a certain degree of control over its source. New Jersey has never
allowed a public nuisance claim to proceed against manufacturers for
lawful products that are lawfully placed in the stream of commerce. On
the contrary, the courts have enforced the boundary between the welldeveloped body of product liability law and public nuisance law.
!
If public nuisance law were permitted to encompass product liability,
nuisance law "would become a monster that would devour in one gulp the
entire law of tort." If defective products are not a public nuisance as a
matter of law, then the non-defective, lawful products at issue in this case
cannot be a nuisance without straining the law to absurdity.
!
To connect the manufacture of handguns with municipal crime-fighting
costs requires a lengthy chain of casual connections. This causal chain is
simply too attenuated to attribute sufficient control to the manufacturers to
make out a public nuisance claim.
520
Camden County Board of Chosen Freeholders v. Beretta, U.S.A. Corp.
Discussion. In this case, Plaintiff attempted to phrase their claim as a public nuisance
cause of action when in reality it is more of a products liability cause of action. It is
important to note that a defendant must have a certain degree of control over the source
of the nuisance in order for a plaintiff to maintain their claim for public nuisance. The
court separated a cause of action for nuisance from that of negligence and strict products
liability.
521
CHAPTER IX.
Products Liability
522
Winterbottom v. Wright
Winterbottom v. Wright
Citation. 152 Eng. Rep. 402 (Ex. 1842).
Brief Fact Summary. Winterbottom (Plaintiff) was hurt when a coach broke down and
threw him to the ground. Plaintiff sued Wright (Defendant), who maintained the coaches
for Plaintiff's employer.
Synopsis of Rule of Law. There must be privity between parties to an action in order for
that action to be maintained.
Facts. Defendant contracted with the Postmaster General to keep the coaches in a safe
and secure condition. Plaintiff, a coach driver, was driving a coach serviced by Defendant
and was hurt when a latent defect caused the coach to break down, throwing him to the
ground and injuring him.
Issue. Must there be privity in order for Plaintiff to sue Defendant for negligence?
Held. Yes. Judgment for Defendant.
!
Unless a public duty was undertaken, parties to a contract are liable only
to each other for breaches of the contract. If third-party actions were
permitted, contracting parties would be exposed to unlimited liability from
any number of suits. In this case, Plaintiff is not in privity of contract with
Defendant. It is clear that he is not, because if he were, we would have
sued under the contract.
Discussion. There must be privity between parties to a suit. Privity is a legal bridge. It is
a connection, or bond of union, between parties, as to some particular transaction. In this
case, Plaintiff and Defendant were not in privity with one another. There was no contract
between them and Defendant had not undertaken and breached any public duty.
523
MacPherson v. Buick Motor Co.
MacPherson v. Buick Motor Co.
Citation. 111 N.E. 1050 (N.Y. 1916).
Brief Fact Summary. MacPherson (Plaintiff) was injured when a defective wheel on his
car collapsed. Buick Motor Co. (Defendant) sold the car to a Buick dealer who resold it
to Plaintiff. Plaintiff brought suit against Defendant, the manufacturer of the automobile.
Synopsis of Rule of Law. The manufacturer of a product owes a duty of care to any
foreseeable user of that product.
Facts. Defendant and automobile manufacturer, sold a car to a Buick dealer who resold
it to Plaintiff. Plaintiff was driving the car when a wheel with defective wooden spokes
suddenly collapsed. Plaintiff was injured when he was thrown from the car. An
independent subcontractor manufactured the wheel and sold it to Defendant. The defects
in the wheel could have been discovered by a reasonable inspection. Defendant did not
inspect the wheel. There was no privity between Plaintiff and Defendant. Judgment was
awarded to Plaintiff. Defendant appealed.
Issue. Does Defendant, a manufacturer of a product, owe a duty of care to Plaintiff who
is not in privity with Defendant, but is a foreseeable user of the product?
Held. Yes. Judgment affirmed.
!
The foundations of this branch of the law were laid out in the case,
Thomas v. Winchester, 6 N.Y. 397 (1852). In that case, the Plaintiff was a
consumer of a poison that was falsely labeled. Plaintiff recovered damages
from the Defendant, that the manufacturer who had originally sold the
poison to the druggist. The Defendant's negligence placed human life in
imminent danger. Because the danger is foreseen, there is a duty to avoid
the injury.
!
In this case, Defendant argues that the reasoning in Thomas is not
applicable to the facts in this case, because a car is not imminently
dangerous, as is a poison, explosive or deadly weapon. The court held that
the principle in Thomas is not limited to poisons, explosives and things of
that nature. If the nature of a thing is such that it is reasonably certain to
place life and limb in peril when negligently made, it is then a thing of
danger.
!
There must be knowledge of a danger, not merely a possibility of a
danger. A mere possibility of danger is not enough to charge the
manufacturer with a duty independent of his contract. There must be some
knowledge that in the usual course of events, persons other than the buyer
will share the danger.
524
MacPherson v. Buick Motor Co.
!
In this case, Defendant knew of the danger associated with wheels on cars.
The car sold to Plaintiff was designed to operate at fifty miles per hour.
However, unless its wheels are in good condition, injury is almost certain.
Defendant also knew that persons other than the buyer would use the car.
Defendant knew that an end user, such as Plaintiff, would be operating or
riding in the car. Under the court's expansion of the principle in Thomas,
Defendant owed a duty to Plaintiff.
!
Defendant was not absolved from the duty of inspection because it bought
the wheels from a reputable manufacturer. It was not unreasonable to
believe that the product would be sold to Defendant.
Dissent. (Chief Justice Bartlett) A manufacturer should not be liable unless there is an
imminent danger that the negligence will cause a serious injury.
Discussion. This case establishes the reasoning of strict products liability. Later cases
build on Justice Cardozo's majority opinion in this case. The lack of privity between
Plaintiff and Defendant is no longer relevant when Defendant places a dangerously
defective product in the stream of commerce.
525
Escola v. Coca Cola Bottling Co. of Fresno
Escola v. Coca Cola Bottling Co. of Fresno
Citation. 150 P.2d 436 (Cal. 1944).
Brief Fact Summary.