TORTS I
10.19.09
ANSWERS
MASTERING TORTS
In addition to the questions remaining from last week, please consider the following in connection
with next week’s classes:
1.
Would Gipson v. Kasey have turned out differently if Watters, after receiving the pills from Kasey,
had given them to another person at the party whom Kasey did not know and about whom Kasey
had no information?
 Yes, he would be within the prescribed class within the group of individuals to be
protected by the statutes provided in the case
o You have to be one of the persons that the statute intended to protect and apart of
the crime attempted to prevent
 The statutes are trying to protect individuals who are not prescribed such
medicine
 Legislature establishes a duty of care (negligence)
 Designed to avoid injury and death to people
2.
Can the court’s decision in Gipson to treat the decedent’s voluntary ingestion of prescription
drugs as merely a comparative defense, rather than as a total bar to recovery, be reconciled with
the “unlawful conduct defense” discussed in Chapter 3? Wasn’t the decedent’s death the direct
result of knowing participation in serious criminal conduct of a wholly prohibited nature?
 There does appear to be an unlawful conduct defense and understanding its application
(understanding what the statute is trying to do) then it will most likely change the outcome
of the case from a criminal to civil sense.
3.
Explain whether the Oregon Supreme Court relied on a statute or on a regulation as the basis for
setting the standard of care in Stachniewicz v. Mar-Cam Corp.
 The Oregon Supreme Court relied on a regulation for their holding in setting the standard
of care
o The duty reasonably owed to establish a standard of care
 The Oregon Supreme Court held that a violation of either the statute or the regulation did
not constitute negligence per se
o Statute
 (3) No person shall give or otherwise make available any alcoholic liquor
to a person visibly intoxicated…
o Regulation
 (2) No licensee shall permit or suffer any loud, noisy, disorderly or
boisterous conduct, or any profane or abusive language, in or upon his
licensed premises, or permit any visibly intoxicated person to enter or
remain upon licensed domain
4.
Assume that lawyers in State X are required to pay a $200 occupational tax annually and failure
to pay this tax may result in suspension of a lawyer's license to practice law. Assume further that
lawyer L fails to pay the tax but has not been suspended because the state has failed to take action.
While in violation of this statute, L handles a case in a way that the client believes has caused harm
to the client. Can the client successfully sue L and argue that the violation of the statute establishes
negligence?
 No, the lack of a licensee does not constitute a violation of the statute establishing
negligence
5.
What is the rule that comes out of Martin v. Herzog?
 The unexcused omission to perform a statutory duty is negligence per se.
 Trial Court found the car driver to be negligent
o Appeals reversed the order finding the buggy driver to be contributory negligent
6.
Explain the difference among: (a) negligence per se, (b) violation of a statute as prima facie
evidence of negligence, and (c) violation of a statute as some evidence of negligence.
o Mastering Torts p. 98-9
o Negligence per seo Once establishing a breach of the duty, one cannot rebut offense
o Violation by prima facieo  has an opportunity to rebut the offense through reasonable excuse or care
o “If the buggy was prima facie evidence for negligence”
o A prime example of what is a standard of law; rebuttable presumption
o Violation by negligenceNEGLIGENCE
o Duty
o Breach
o Causation
o Damage
7.
Examine Ranard v. O’Neil and Zeni v. Anderson and provide examples of when conduct may
amount to an excused violation of a statute.
o In Ranard, 8 y/o child crossed the street and was hit by a car. Child was deemed to not
have sufficient knowledge to exhibit due care and look both ways, therefore establishing a
case in violation by Prima Facie.
o In Zeni, individual was hit by car while walking on main portion of the highway because
excess snow made it more dangerous to walk on overloaded sidewalk. The sidewalk was
inaccessible and Trial Courts held for . Appeals reversed decision because although it was
more dangerous to walk on sidewalk, the sidewalk was still available and the  cannot be
held liable for being negligent for ’s refusal to use provided sidewalk. (Rest.3d §15(b))
8.
What is the rule that comes out of the Montgomery v. Royal Motel case? What type of legislative
enactment was at issue? What facts would have qualified as special circumstances requiring greater
precautions than mandated by Las Vegas municipal ordinance 4-10-2?
o The ordinance once establishes only a minimum standard of conduct and that reasonably
prudent conduct might require additional precautions under the circumstances (i.e., a selflocking door), raising a question of fact for the jury.
9.
Review the discussion of contributory negligence, comparative negligence, and comparative fault
at pages 19-20 of the text and be able to explain the differences.
o
10. What role did the plaintiff's alleged contributory negligence play in the outcome of Seim v.
Garavalia?
o The  alleges 50% negligence for equal parties
11. Aside from the statute at issue in the Seim case, is it likely that the defendant could have been held
liable for negligence?
o If a dog, without provocation, attacks or injures any person who is peaceably conducting
himself in any place where he may lawfully be, the owner of the dog is liable in the
damages to the person so attacked or injured to the full amount of the injury
sustained…Minn. Stat § 347.22 (1980).
o The court is applying strict liability and not negligence, therefore, comparative fault is
nullified
Chapter 6 – Proving Negligence
o 1.
What “custom” was at issue according to Judge Hand’s decision in The T.J. Hooper?
Was it: (a) whether coastal ship owners equipped their tugboats with radio receivers, or
(b) whether coastal tugboats had radio receivers on board, or (c) something else? What
difference does it make? In Note 1 on page 322 of the text, the authors suggest that “Judge
Hand may have been misled by the fact that many of the receivers [on coastal tugs]
belonged to the captains of the tugs, rather than to the tugs’ owners.” Do you think that
Judge Hand was misled? Or was it necessary for Judge Hand to characterize industry
custom in a certain way to make a point? What point was that?
o Judge hand was wrong in thinking that there was no generally followed custom
with regard to receivers.
o Hand may have been misled by the fact that many of the receivers belonged to the
captains of the tugs, rather than to the tugs’ owners.
o To say that there was no custom of having receivers because the captains, rather
than the owners, often provided the radios makes no more sense than to say that it
is customary for automobile repairs to be done without wrenches on the ground
that mechanics, rather than the garages which employ them, usually provide hand
tools.
o 2.
Compare the opinion in The T.J. Hooper with the decision in Helling v. Carey (J&G at
294-95). Are the two courts applying the same reasoning?
o Helling decision
 As a matter of law, it was held that the reasonable standard that should
have been followed under the undisputed facts of this case was the timely
giving of this simple, harmless pressure test to this  and that, in failing to
do so, the s were negligent, which proximately resulted in the blindness
sustained by the  for which the s are liable.
o Hooper
 The courts found that there was no established custom with respect to
having a radio receiver on the tugboat.
 The opinion is famous because of Hand’s statement that one’s adherence
to custom does not necessarily mean that one was not negligent, as a
“whole calling may have unduly lagged in the adoption of new and
available devices.”
 Each tug and barge were jointly held liable to each cargo owner, and each
tug for half damages for the loss of its barge.
o Comparison

The two courts are not applying the same reasoning because Helling
removes all liability from the  even though the glaucoma could have
been a natural occurrence. Hooper establishes equal liability for the parties
due to precautionary negligence on the tug owner’s part.
o 3.
Look at Judge Hand’s statement from T.J. Hooper that an industry or profession
“never may set its own tests, however persuasive be its usages.” Can you formulate an
argument that Learned Hand’s statement is overly broad, particularly in highly specialized
areas of expertise? Does it help you to know that there is no constitutional right to a jury
trial in federal admiralty proceedings such as those in T.J. Hooper? What difference would
it make to know this?
o Standards have to be reasonable
o The outcome itself should not be different
o Dicta
 Statement by the court that’s not necessary to the court’s holding
 Dicta v. holding
 Holding
o Things that are necessary to make the law applicable
o Factors that are import to the decision of the courts
 Dicta
o Judge hand’s broad statement should have been
considered a part of the Dicta and not the holding
o 4.
What rule are you able to glean from Low v. Park Price Co.?
o What usually is done may be evidence of what ought to be done, but what ought to
be done is fixed by a standard of reasonable prudence, whether it usually is
complied with or not.
o Relevance of Custom
 Some evidence
 IF the actor does what others under like circumstances, there is at least a
possible inference that he is conforming to the community standard of
reasonable conduct; and if he does not do what others do, there is a
possible inference that he is not so conforming.
o 5.
What sort of facts should the plaintiff in Low have introduced into evidence to show
that it was unreasonable for the defendant to follow the custom of leaving cars in unfenced
areas?
o In determining whether conduct was negligent, the customs of the community, or
of others under like circumstances are factors to be taken into account but are not
controlling where a reasonable man would not follow them.
o Custom or usage does not determine ordinary care, but the standard is what a
reasonably prudent man under like circumstances would do.
o Evidence of custom is admissible on the issue of reasonable conduct, except in
extreme cases where a custom is negligent as a matter of law (e.g. habitual
jaywalking by pedestrians on a busy street).
o IF THE  had proved that the garage knew of similar thefts in the neighborhood,
or had received an anonymous threat, which indicated that customary precautions
might not have been sufficient.
o 6.
Compare Goddard v. Boston & M.R. Co. with Anjou v. Boston Elevated Ry. Co. How do
the cases differ procedurally? Factually?
o Goddard and Anjou are cases in which the s had slipped on banana peels.
Goddard lost their decision whereas Anjou won their appeal.
o In each case, the court considered whether there was circumstantial evidence to
support a finding that the peel had been in position long enough for the exercise of
reasonable care to have required its discovery and removal
 Goddard- No indication of the condition of the banana peel (hinting at the
duration for which the peel had been sitting in the station, whereby
establish negligence on the stations behalf) and thus no basis for such a
finding
 Anjou showed that the peel was black, dry, and gritty, providing sufficient
evidence to support an inference of duration, since it was unlikely that a
peel, which had reached that state of disintegration, had only recently
been discarded.
o 7.
In Anjou was it significant to the outcome of the case that “the crowd had left the
platform,” that the platform was “narrow,” and that the plaintiff was “following a few feet
behind” an employee of the defendant?
o Yes is was significance to the outcome of the case because there were no other
extenuating circumstances that could have alleviated the station from liability and
no reason why the peel should have still been sitting on the platform.
 Station proving to be negligent
o 8.
Describe the conduct of the defendant that the court in Sheehan v. Roche Brothers
Supermarkets determined to constitute negligence. Explain the court’s reasoning.
o The court adopted the mode of operation approach as a viable alternative to proof
of actual or constructive notice in slip-and-fall cases
o RADICAL VIEW- if a  proves that an injury occurred as a result of a premises
hazard or transitory substance in a self-service store, there is a rebuttable
presumption of negligence.
 The burden then shifts to the defendant to prove that it exercised care in
the maintenance of the premises
o 9.
In a negligence action, is it essential to prove that the defendant was on notice of the
hazard that caused the harm?
o RES IPSA LOQUITUR
One.
A Res Ipsa Loquiur (the thing speaks for itself) case is ordinarily one kind
of case of circumstantial evidence, in which the jury may reasonably infer both
negligence and causation from the occurrence of the event and the s relation to
it. DOES NOT NORMALLY OCCUR
i. The doctrine eases the s often-difficult burden of proof by raising an
inference (or, in some jurisdictions, a presumption) that the defendant was
negligent, despite the absence of evidence of how the  actually behaved
Two.
Res Ipsa Loquitor does not require a showing that the  was in exclusive
control of the dangerous instrumentality.
i. Evidence of exclusive control is merely one way of establishing that it is
fair to conclude that the  was a cause of the harm to the 
o We have to have reasonable forseeability to establish personal awareness to being
“on notice”
Direct Evidence
 Evidence that directly supports the finding of a fact in issue, such as eyewitness testimony
that the s vehicle was traveling in the wrong lane at the time of the accident occurred
 Evidence of the fact in question
o E.g. eyewitness testimony as to the identity of the assailant
Evidence of Custom
Evidence of Notice
Circumstantial Evidence
 Evidence not of a disputed fact, but of one or more other facts from which the existence or
non-existence of the fact in issue may reasonably be inferred
o Evidence of the length of skid marks may be used to prove circumstantially that the
s car was traveling faster than the speed limit
***Negligence can be proven by either forms of evidence but typically by a combination of the two
o While the eyewitness testimony of the archbishop that no one crossed the sandlot
may normally be convincing, it may pale in the comparison to circumstantial
evidence of fresh footprints in the sand.
o 10. Would it have made a difference in Mobil Chemical Co. v. Bell if the harm had been
caused by a minor leak in the equipment the first time it was switched on after being
turned over by the installer to the defendant?
o It would have made a difference if the  was able to prove that they were not in
control of the instrumentality at the time of the transfer.
 To make out a res ipsa loquitur case, the  was required to show that the
instrumentality was under the control of the 
 This did not meant that the  must have had possession of the
machine at all times when the negligence could have occurred, or
even at the time of the injury.
o 11. According to the court in Mobil, what is the procedural effect of establishing a res ipsa
case?
o The Res Ipsa doctrine is applicable when
 The character of the accident is such that it would not ordinarily occur
 in the absence of negligence the instrumentality causing the injury is
shown to have been under the management and control of the 
o In some cases the inferences arising form the circumstances of the accident are so
apparent that no special instruction is necessary
o There are some cases in which it is helpful to give the jury a more specialize res ipsa
instruction to the effect that if they find the two required factors, they are entitled,
but no compelled, to infer that the defendant was negligent.
o PROCEDURAL EFFECT (p.112)
 3 views
 permissible inference (majority)
 presumption that shift the burden of going forward with evidence
 presumption that shift the burden of persuasion
o 12. Why weren’t the claims in Mobil “on-the-job” injuries that would have been barred by
workers’ compensation?
o
o 13. Supposed that a pedestrian on the sidewalk is struck by a chair that falls from a
window of a hotel? Can the pedestrian make out a Res Ipsa case against the hotel? What if
the only window on the hotel that can be opened belongs to a maintenance closet, rather
than to a guest room? What if the object that caused the harm was not a chair but a ladder
of the type to which only the maintenance staff of the hotel ordinarily has access.
o If the window is to a maintenance closet then Res Ipsa would apply because the 
would be held accountable for an obvious lack of due care that circumstantial
evidence cannot be refuted to any extent.
o The evidence speaks for itself showing that the owner shall be held accountable
whereas a guest’s chair being thrown out cannot be reasonably foreseen, therefore
absolving the situation of a Res Ipsa.
o 14. A restaurant patron bites into a taco and damages his tooth on a machine screw that
was concealed in the taco filling. A customer slips on a banana peel outside the entrance to
a grocery store. Will the plaintiff in either of these cases be able to rely on res ipsa loquitur?
o If the  is able to prove prior injuries or instances whereby establishing necessary
action on the owner’s behalf, establishing a lack of due on their part then a Res Ipsa
will apply.
o 15. Compare the following statements from the decision in Mahowald v. Minnesota Gas
Co.: (1) “Really what we are considering in a determination of whether res ipsa loquitur
applies is the shifting of the burden of proof to someone who is responsible for the
instrumentality that caused the damage,” (J&G at 350), and (2) “[T]he rationale of res ipsa
loquitur [is] to allow a plaintiff to get to the jury by allowing the jury, in an appropriate
case, to draw an inference of negligence on the part of the gas company” (J&G at 351).
Now review the authors’ discussion of the “procedural effect” of res ipsa loquitur (J&G at
343). Can you spot the inconsistency in the two quotes from Mahowald?
o To make out a Res Ipsa case, the  was required to show that the instrumentality
was under the control of the .
o Res Ipsa applied to the facts of the case because it was likely that the negligence
took place while the machine, which had recently been installed, was in the s
exclusive possession
o PROCEDURAL EFFECT
 3 views
 (majority view) Permissible inference of negligence (creates prima
facie case)
 Burden of production
o presumption that shift the burden of going forward with
evidence
 Burden of proof
o presumption that shift the burden of persuasion to the 
o 16. What was the Minnesota Supreme Court’s conclusion about whether exclusive
control is necessary in a res ipsa case?
o For Res Ipsa to apply, it is not necessary that the  have superior knowledge or
superior opportunity to obtain knowledge
o Exclusivity of control is more in the causation portion of the case but it is not
always present or apparent
o 17. What factors did the court find to be significant in Mahowald in concluding that the
plaintiff could rely on res ipsa loquitur?
o The court, in part, based its decision to allow the use of the doctrine on the fact
that the company had “superior knowledge of the gas distribution system” and
“access and opportunity to identify persons acting in the vicinity of the gas mains.”
o 18. What if the plaintiff in Mahowald had pleaded or proven that the gas line had been
installed a depth less than the depth required by law? Could the plaintiff still rely on res ipsa
loquitur? Would there be any need to invoke the doctrine?
o No, Res Ipsa wouldn’t be required because the  can retrieve damages for the s
negligence
Res Ipsa
 The accident is one that does not ordinarily occur in the act of
negligence
 The  must have exclusive control
o 19. What was the potential problem with applying the doctrine of res ipsa loquitur in Ybarra
v. Spangard?
o s claim that Res Ipsa shouldn’t apply because  does not have exact knowledge of
which  was in exclusive control, whereby establishing the agent at fault
o 20. Is the statement in the Ybarra opinion that “the injury must not have been due to the
plaintiff’s voluntary action” still good law? Why or why not?
o 21. What was the procedural effect of res ipsa loquitur in the Ybarra decision?
o Applying Res Ipsa
 It required that each defendant absolve themselves of being negligent
o 22. The court in Ybarra stated that if the rules of negligence were unable to provide
redress in cases such as this, "the courts, in order to avoid gross injustice, would be forced
to invoke the principles of absolute liability." As you are aware, sometimes the terms
“absolute liability” and “strict liability” are used interchangeably, although they technically
mean different things. See J&G at 25). Why would it be problematic to impose strict
liability if a person suffers an injury during the course of treatment while under anesthesia?
o The control at one time or another, of tone or more of the various agencies or
instrumentalities which might have harmed the , was in the hands of every  or
of his employees or temporary servant
 This places upon them the burden of initial explanation.
o  was rendered unconscious for the purpose of undergoing surgical treatment by
the defendants
 It is manifestly unreasonable for them to insist that he identify any one of
them as the person who did the negligent act
o 23. Does the application of res ipsa loquitur to multiple defendants create a risk of collusion
and perjury? Explain.
o
o 24. What is the rule that comes out of Trevio v. Ortega on spoliation of evidence?
o The court found that the availability of other remedies made recognition of an
independent tort action for spoliation unnecessary and undesirable
 Case arose from the destrucion of medical records, trial judges have broad
discretion to deal with spoliation by imposing sanctions
o Collateral attacks
 Gives the  two chances to win his case
o Spoliation of Evidence
 Some states permit an independent action
 Others use presumptions or sanctions
 Consider
 Is there a duty (statutory regulatory, or eitherical) to preserve?
 When does a duty arise? Pre-liitgation?
 Was the duty creached without excuse?
 Was the creach intentional, reckless, or negligent?
 Did the breach hinder presentation of the case?
 Was the evidence relevant, cumulative, critical?
 What sanction is appropriate?
o …
Chapter 7 – Factual Causation
Factual Causation
o Factual Causation is an inquiry into what actually occurred; it focuses on whether
the s conduct in fact precipitated the injury to the 
o One way (but not the only way) to meet this requirement is to show that
“but for” the s conduct the harm would not have occurred.
o Proximate Cauation is concerned with issues of policy; it asks whether, even if
there is a factual-cause relationship between the s tortious conduct and the s
injury, there is good reason that the  should not be held liable
o Test: foreseeability
 It is FAIR to hold tortfeasors liable for harm that should have
been foreseen and avoided
o 1. Was the plaintiff's conduct in Williams v. Steves Industries, Inc. a but-for cause of the
accident? Explain. Can there be more than one but-for cause of an accident?
o Sine Qua Non: The “But For” Test
 Yes, the s conduct can be construed as a “but for” cause of the accident
 the court held that an award of damages for the death of the s
children had to be reduced by reason of the s comparative
negligence, since but for the s negligent failure to keep gas in
the car, the car would not have stalled on the highway where it
was foreseeably struck by the s truck.
o Yes, there can be more than one “but for” cause of an accident
o 2.
How much “foreseeability” is required before tortious conduct will be found to be a
proximate cause of resulting harm?
o There should be an element of possible foreseeability to establish proximate cause
o 3. What is the rule that comes out of Reynolds v. Texas & Pacific Ry.? What effect does post
hoc ergo propter hoc have on the court's reasoning? Is expert testimony necessary to establish
that lack of light multiplies the chances of a fall?
o A  is not required to establish causation in fact with absolute certainty; it is
sufficient that the evidence shows that the s conduct more likely than not brought
about the accident
o Post hoc ergo propter hoc
 It is not enough that negligence of the employer and injury to the
employee coexisted, but the injury must have been caused by the
negligence
o 4. Compare Reynolds with Kramer Service, Inc. v. Wilkins and distinguish the substantial
factor (but-for) test from the evidentiary standard applicable to proving substantiality.
o A careless reading of Reynolds and Kramer may lead one to conclude that not only
must the s tortious conduct have multiplied the chances of harm to the , it
must have multiplied those chances so much that harm was more likely than not to
occur
o Reynolds (p.117)
 s conduct cannot be a substantial factor (ie a factual or but for cause)
unless it multiplies the chance for harm
 As to how much they must be multiplied, nothing more can be said than
that the increased chances of harm must usually rise to the level where
they make an indispensible (i.e. “but for”) contribution to the harm
o 5. If the plaintiff in Saelzler v. Advanced Group 400 did not get a good look at her attackers,
how could she prove that they were unauthorized intruders, rather than tenants of the
complex? As a matter of public policy, why does the plaintiff have the burden of proving
factual causation? Is it consistent with tort law's goal of compensating innocent victims?
o
o 6. What is the rule that you are able to derive from Anderson v. Minneapolis, St. Paul &
S.S.M. Ry.?
o 7. Simultaneously, A stabs B with a knife and C fractures B's skull with a rock. B dies,
and either wound alone would have been fatal. Can A or C be held liable for the death?
Explain.
o 8.
Analyze and be able to describe the “cases” at J&G page 367.
o 9.
What is the rule of law from Matsuyama v. Birnbaum? Does a plaintiff whose chance
of survival has probably declined from 20% to 10% as a result of a doctor's negligence, but
who has not yet died, have a cause of action?
o 10. What is the rule that comes out of Sindell v. Abbott Laboratories?
o 11. Was there any question as to whether the defendants in Sindell were negligent?
o 12. Does the scenario in Sindell fit within the rule from Ybarra? Does it fit within the rule
of Summers v. Tice?
o 13. Do the facts in Sindell make out a case for enterprise liability?
o 14. How does the "New York version" of market share liability in Hymowitz differ from
the "California version" in Sindell?
o 15. What is the best reason for using a national market in market share liability cases?
What is the greatest weakness in using a national market approach?
o