1
Torts Outline
Original Class Notes/History of Torts
I.
Torts
A. Two major goals
1. Promote beneficial behavior over non-beneficial behavior
2. If both behaviors are beneficial, both should be supported
B. Historic tension
1. Rugged individualism (personal responsibility)
2. Industrial revolution (corporate responsibility)
C. Trespass
1. An invasion of a protected interest (land, person, etc.)
2. Evolved into intentional tort
3. Direct and intentional actions
D. Trespass on the case
1. Indirect and unintentional
2. Evolved into negligent tort
II.
Negligence
A. Four part analysis
1. Duty
2. Breach
3. Causation (actual and proximate)
4. Damages
a. Remittitur (Motion by the defendant claiming the amount awarded by
the jury’s verdict is too high and should be reduced)
b. Additur (Motion by the plaintiff claiming the amount awarded by the
jury’s verdict is too low and should be increased)
Stanley v. Powell/Fowler v. Lanning
(English Cases—1891/1959)
Facts: P was shot by the D; P sued for trespass to the person.
Rule of Law: In the absence of a claim of negligence or intent to harm, there is no basis
for P’s c/a for trespass to the person.
Williams v. Holland
(English Case—1833)
Facts: P alleges D drove his horse and gig into his horse and cart, causing injury to
himself and his family.
Rule of Law: When one party directly injures another in the absence of intent to injure,
the injured party may file a c/a for either trespass or action on the case to recover
damages.
Letang v. Cooper
(English Case—1965)
Facts: P had her legs run over by the D’s jaguar.
Rule of Law: A direct, unintentional action resulting in injury does not constitute a c/a
for trespass.
E. Chapter 4—Negligence overview
A. Every element of negligence must be proven to exist in order to win a case
2
B. Duty
1. “Negligence represents the more modern view that a man’s freedom of
action is subject only to the obligation not to infringe any duty of care
which he owes to others.”—Diplock, J.
Negligence
Heaven v. Pender
(English Case—1883)
Facts: P was painting D’s ship; D provided P with a “stage” with burnt ropes; P fell and
was injured.
Rule of Law: The supplier of faulty equipment does owe a duty of care to a third party
with whom there is no contractual privity.
Donoghue v. Stevenson
(English Case—1932)
Facts: D produced a sealed bottle of ginger beer; A friend of P’s bought it for her; there
was a snail in the bottle.
Rule of Law: The manufacturer of a food product does owe a duty of care to third party
consumers to ensure that the product is free of defects that may cause injury, when
defects in the product, through reasonable inspection, cannot be detected.
Palsgraf v. Long Island Railroad Co.
(N.Y. Court of Appeals—1928)
Facts: P was injured by a scale that fell onto her on a train platform; D’s agents
pushed/pulled a man onto the moving train; man dropped a package; package exploded
causing scale to fall.
Rule of Law: The unintentional action of a third party, in the absence of privity or
physical proximity, that results in injuries or damage to property does not constitute a c/a
for tort negligence—Those outside of the “danger zone” cannot recover—Cardozo.
Dissent: Due care is a duty imposed on us all to protect society from unnecessary danger,
not just a limited number of people—As long as injury results from one’s actions,
proximate cause is established and liability should be established too—“Zone of Danger”
is expanded—Andrews.
Dallas v. Granite City Steel Co.
(Illinois Appellate Court—1965)
Facts: P was playing on an ash pit near abandoned buildings in his neighborhood; the
area was owned by the D, who did not fence or raze the property; the P was injured by a
saw hidden in the ashes.
Rule of Law: The general rule is that infants have no greater right to trespass on the land
of others than adults; “an exception exists where the owner or person in possession
knows, or should know, that young children habitually frequent the vicinity of a defective
structure or dangerous agency existing on the land, which is likely to cause injury to them
because they, by reason of their immaturity, are incapable of appreciating the risk
involved, and where the expense or inconvenience of remedying the condition is slight
compared to the risk to the children. In such cases there is a duty upon the owner or other
person in possession and control of the premises to exercise due care to remedy the
condition or otherwise protect the children from injury resulting from it.”
Roberson v. Allied Foundry & Machinery Co.
(Alabama Supreme Court—1984)
3
Facts: Two prisoners in a work-release program tried to rape/rob a woman working in a
store nearby.
Rule of Law: There is no “special duty” owed on the part of an employer toward society
that its work-release employees would not commit criminal acts.
Home Office v. Dorset Yacht Co., LTD.
(English Case—1970)
Facts: P alleges that “borstal” boys under the supervision of the D, in an attempt to flee
the island on which they were confined, caused damage to a yacht owned by the P.
Rule of Law: When it is reasonably foreseeable that parties may suffer injury or damage
as a result of a failure on the part of the supervisor to exercise reasonable care over its
inmates, the supervisor owes a duty to the parties within proximate range to control said
inmates, and protect against injury or damage that may result if they are not properly
controlled or supervised.
Breach
Vaughan v. Menlove
(English Case—1837)
Facts: D accidentally started a fire due to faulty stacking of hay, even after he was
warned by Ps to stack it differently.
Rule of Law: The appropriate standard in this case is whether or not the D acted
negligently with reference to the standard of ordinary care, as opposed to whether or not
the D acted according to the best of his judgement.
Brown v. Kendall
(Mass. Supreme Judicial Court—1850)
Facts: D was trying to break up a fight between two dogs; accidentally hit P in the eye
with a stick in the process.
Rule of Law: A party is not liable when he/she unintentionally injures another in the
commission of a lawful act while exercising reasonable care.
Camerlinck v. Thomas
(Nebraska Court—1981)
Facts: D child struck P child in the eye when coming down a slide with a stick.
Rule of Law: Children can be held liable for actionable negligence regardless of their
age, so long as it is determined that their actions, under the circumstances, were indeed
negligent and that they had the maturity and intellectual capacity to understand the
consequences of their actions.
Children are to be judged on a case by case basis, and held to the standard of care set
forth by the Restatement (Second) of Torts, § 283A (1965), “that of a reasonable person
of like age, intelligence, and experience under like circumstances.”
Glascow Corporation v. Muir
(English Case—1943)
Facts: D employed two men who were bringing an urn of tea into a room via a
passageway; children were in the passageway; men warned children to move; urn tipped
over burning children with hot water.
Rule of Law: A duty of care is not owed to parties in situations where the negligent act in
question could not reasonably be foreseen and reasonable care was exercised in the
commission of the allegedly negligent act.
4
Book /Class Notes
F. The issue of whether a duty of care has been breached
A. Two step analysis
1. To define as specifically as possible the parameters of the standard
2. To weigh the various circumstances that would influence the
behavior of the man on the Clapham omnibus (the prudent and
reasonable man)
Cause-in-Fact
Jeffers v. Amoco Production Co.
(Louisiana Court of Appeals—1981)
Case is irrelevant because it deals with procedural issues rather than substantive issues.
Tice v. Tice
(Alabama Supreme Court—1978)
Facts: P grandmother slipped and fell in her grandchildren’s yard on an unidentified
object; P was babysitting at the time; alleges negligence in allowing toys in the yard.
Rule of Law: The P must present evidence proving that her/his injury was the direct
result of the D’s negligence.
Proximate Cause
Wing v. Morse
(Maine Supreme Judicial Court—1973)
Facts: D made a u-turn on a highway, crashed, caused a traffic jam; P crashed into traffic
jam about ten minutes later.
Rule of Law: Proximate cause is defined by the court as “that cause which, in natural and
continuous sequence, unbroken by an efficient intervening cause, produces the injury,
and without which the result would not have occurred.” Johnson v. Dubois.
Proximate cause refers to closeness of causal relation, not time or distance relation.
Damages
Livingstone v. The Rawyards Coal Co.
(English Case—1880)
Facts: Ds took coal from P’s land; D was awarded 550 ls. at trial; appellate court lowered
the damages.
Rule of Law: It was the rule of the Common Law that when something that was at one
time a part of the land is converted into chattel, the original owner of the land is entitled
to the value of the chattel as soon as it is extracted from the land.
If the chattel was innocently extracted, and no wrong was done to the owner, then the
owner should receive the value of the converted chattel if it were to be sold at a fair
market price.
Carbonaro v. Johns-Manville Corp.
(U.S. District Court for E.D. Penn.—1981)
Facts: P filed suit in state court; Ds filed summary judgment; instead of opposing; P
removed case to federal court.
Rule of Law: A plaintiff is not entitled to recover damages for a suit based on the same
claim that was rendered Res Judicata by a prior court decision.
5
Defenses and Parties
Butterfield v. Forrester
(English Case—1809)
Facts: P rode his horse very fast through the streets; crashed into an obstruction in the
street placed by the D; question of contributory negligence by the P.
Rule of Law: A defendant is not liable for tort negligence if the plaintiff contributed to
the injury by failing to exercise reasonable care.
Merryweather v. Nixan
(The rule of Merryweather established joint and several liability.)
(English Case—1799)
Facts: Starkey filed suit against two parties; after winning damages, Starkey only sought
damages from one party; the one party now sues the party who wasn’t assessed damages
for contribution.
Rule of Law: In a case where a monetary award is assessed against two parties, and only
one of those parties is assessed the damages by the plaintiff, the other party is not
required to contribute to paying those damages.
Duty
“Duty is a question of law, to be decided by a judge”—Class Notes
Book Notes
I.
For various reasons, the common law threw up what may be called no-duty rules
that were applied to classes of factual situations. Thus, if a plaintiff’s complaint
was within the ambit of such a rule, then the defendant was entitled to prevail as a
matter of law
II.
Foreseeability is a flexible concept which varies with the circumstances of each
case.
A. When the degree of result or harm is great, and the prevention of such harm is not
difficult, there is a low degree of foreseeability required.
B. When the degree of result or harm is low, and the prevention of such harm is difficult,
there is a higher degree of foreseeability required.
C. What does this mean???
1. If it is easy to prevent a relatively dangerous situation, then the courts will
enforce a standard of foreseeability such that the manufacturer/responsible
person for the harm, is held liable more often.
2. If it is difficult to prevent a relatively minor situation, then the courts will
enforce a very strict standard of foreseeability, such that the
manufacturer/responsible person for the harm is not often held liable.
III.
Lurton, J. (dissenting) in Wadsworth v. Western Union Tel. Co.--It is Difficult to
maintain a c/a for emotional damages
A. The reasons for this are:
1. The damages are too remote to be measured
2. The damages are impossible to prove or disprove
Mickle v. Blackmon
(South Carolina Supreme Court—1969)
Facts: P was thrown against a gear shift lever in a car crash; impaled on the gear shaft
because the plastic ball shattered.
6
Rule of Law: A manufacturer owes a duty of care to reasonably minimize risk of death
or serious injury to the users of the product in question when the product is used in its
natural environment for its intended purpose.
Olson v. Village of Oak Lawn
(Illinois Appellate Court—1982)
Facts: P injured when he fell while skateboarding and hitting a crack in the sidewalk.
Rule of Law: A municipality does not owe a duty of care to maintain its property in such
a state as to prevent injury when the property is not used for its original or reasonably
anticipated purpose.
Emotional Harm-Not caused by physical contact
Mitchell v. Rochester Railway Co.
(N.Y. Court of Appeals—1896)
Facts: P was scared when a horse that was attached to a streetcar suddenly appeared in
front of her; P had a miscarriage and suffered emotional distress.
Rule of Law: In the absence of physical contact, a plaintiff may not recover damages
based on the emotional distress experienced as a result of a defendant’s negligence.
Waube v. Warrington
(Wisconsin Supreme Court—1935)
Facts: Mother saw her child struck and killed by a car; suffered emotional distress.
Rule of Law: A plaintiff who was not in any physical danger at any time, may not
recover damages for physical injuries suffered from the emotional distress of witnessing
the death or injury of another person because there is no duty owed by the party
responsible for causing the death or injury to the plaintiff.
McLoughlin v. O’Brian & Others
(English Case—1982)
Facts: P arrived at the hospital only to see her family injured/killed after an accident.
Rule of Law: A plaintiff may recover damages for physical injuries that resulted from
emotional distress suffered after witnessing or learning about a traumatic situation when
the emotional distress was reasonably foreseeable by the defendant.
Owners and Occupiers of Land
1. Under the common law rules there was no liability owed by a landowner to any
trespassers, adult, infant, animal, or otherwise for any harm they suffered while on the
landowner’s property. However, all trespassers, including the owners of animals who
trespassed, except for dogs, were liable for damages to a landowner’s property.
Robert Addie and Sons (Collieries) v. Dumbreck
(English Case—1929)
Facts: P’s son was killed after trespassing on D’s land and getting hurt by some farm
machine.
Rule of Law: The duty of care owed by a landowner is dependent on the status of the
injured party.
An invitee is owed the highest duty of care, and the landowner is required to take
reasonable care that the premises are safe.
A licensee is owed a lower duty of care, and the landowner is required to abstain from
setting a trap or allowing a concealed danger to exist on the premises, which is not
apparent to the visitor, and which is known, or ought to be known by the landowner.
7
A trespasser is owed no duty of care by the landowner. A trespasser enters a
landowner’s property at his own risk. Liability can only be established if the landowner
intentionally caused harm to the trespasser, or if the landowner acted with reckless
disregard of the trespasser.
A child trespasser who is killed on the defendant’s property is not owed a duty of care.
Preston v. Sleziak
(Michigan Supreme Court—1970)
Facts: Ps were injured after an elevator/cable car fell and crashed; Ps were social guests
of the Ds.
Rule of Law: The general rule is that a social guest injured by a defect in the premises
cannot recover in the absence of evidence establishing something more than ordinary
negligence.
A social guest can only recover when the injury is the result of active and affirmative
negligence of the host/landowner, or the failure of the host/landowner to warn the social
guest of known dangers which the social guest, in the exercise of reasonable care, could
not discover and avoid.
There is no duty owed by a host/landowner to improve his or her premises for the
purpose of limiting the risks inherent in the property for social guests.
Under Miller v. Miller, a social guest can be liable if the host/landowner failed to inform
the social guest of known dangers that were not capable of being discovered or avoided
by the social guest—Used by the court.
Rowland v. Christian
(California Supreme Court—1968)
(Most states maintain the old common law categories of invitee, licensee, and trespasser
despite the holding in Rowland)
Facts: P was a social guest in D’s apartment; P was injured by a porcelain faucet that
broke in his hand; D knew of the danger but didn’t warn the P.
Rule of Law: The general rule is that a trespasser and licensee or social guest are obliged
to accept the premises as they find them, and that the owner or host owes them a duty
only to refrain from wanton or willful injury.
Status of the visitor is not determinative, and therefore “Where the occupier of land is
aware of a concealed condition involving in the absence of precautions an unreasonable
risk of harm to those coming in contact with it and is aware that a person on the premises
is about to come in contact with it, the trier of fact can reasonably conclude that a failure
to warn or to repair the condition constitutes negligence.”—Minority Rule.
Dwyer v. Skyline Apartments, Inc.
(N.J. Supreme Court—1973)
Facts: P was a tenant in D’s building; a fixture for the bathtub came out of the wall,
causing serious burns over P’s body.
Rule of Law: The landlord has a duty to exercise reasonable care to insure the safety of
the tenants, and may be held liable for injuries or damages arising from defects of “which
he has knowledge or of defects which have existed for so long a time that…he had both
an opportunity to discover and to remedy.”
Children
United Zinc and Chemical Co. v. Britt
(Supreme Court—1921)
8
Facts: 2 boys went into what they thought was a pool; pool was an old basement with
chemicals mixed with water; 2 boys died after going in.
Rule of Law: A landowner owes no greater duty to prevent injury to child trespassers
than to adult trespassers.
A landowner owes no duty to trespassers to prevent injury as a result of dangers, whether
hidden or otherwise, on his/her property.
Restatement (Second) of Torts
§ 339—Artificial Conditions Highly Dangerous to Trespassing Children
A possessor of land is subject to liability for physical harm to children trespassing
thereon caused by an artificial condition upon the land if:
(a) the place where the condition exists is one upon which the possessor knows or has
reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which
he realizes or should realize will involve an unreasonable risk of death or serious
bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk
involved in intermeddling with it or in coming within the area made dangerous but it,
and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating
the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to
protect the children.
Comment
1. This section is concerned only with conditions on the land, and not with activities of
the possessor. A “condition,” however, includes controllable forces already in
operation, as in the case of machinery in motion.
a. The rule stated in this section is now accepted by the great majority of the American
courts. It is still rejected in seven or eight jurisdictions, in all of which, however,
liability to the trespassing child may be found under various special circumstances.
The rule originated in 1873 in Sioux City and Pacific R. Co. v. Stout, 84 U.S. (17
Wall.) 657, 21 L.Ed. 745 (1873), where a child was injured while playing with a
railroad turntable. From that case, and others like it, the rule acquired the name of the
“turntable doctrine.” An early Minnesota decision, Keffe v. Milwaukee and St. Paul
R. Co., 21 Minn. 207, 18 Am. Rep 393 (1875), supplied the theory that the child had
been allured or enticed onto the premises by the condition created by the defendant,
so that the defendant was himself responsible for the trespass, and could not set it up
against the child. From this theory the rule also acquired the misnomer of “attractive
nuisance,” by which it is still known in many courts.
b. Children. In the great majority of the cases in which the rule here stated has been
applied, the plaintiff has been a child of not more than twelve years of age…A few
courts have attempted to state arbitrary age limits, setting a maximum age of fourteen
for the possible application of the rule…
c. Conditions upon the land. The rule stated in this section is limited to structures or
other artificial conditions upon the land…
9
Economic Harm
Ultramares v. Touche, Niven and Co.
(N.Y. Court of Appeals—1931)
Facts: P granted Stern a loan only after D performed an audit; Stern soon went bankrupt
and P sued D for failing to conduct an adequate audit.
Rule of Law: A party who acted negligently in its performance of a contract with a
second party, without committing reckless misstatement or insincere profession of an
opinion, is not liable for damages incurred by a third party when such damages were
incurred as a result of the performing party’s negligence.
Economic Injury in the Absence of Personal Injury or
Property Damage
PPG Industries, Inc. v. Bean Dredging Co.
(Louisiana Supreme Court—1984)
Facts: P company got gas from Texaco via an underwater pipeline. D struck the pipe and
restricted P’s ability to get gas from Texaco; P had to pay more for gas as a result.
Rule of Law: “The general rule that has been applied mechanically by this court
regardless of the specific circumstance of the case is that when the question of recovery
of indirect economic losses caused by a negligent injury to property that interferes with
contractual relations is raised, recovery is denied to the injured party.”
Petition of Kinsman Transit Co.
(2d Cir. 1968)
Facts: Chain reaction; D’s ship on the loose crashed into other ships and caused them
damages; this, in turn, caused a dam, which prevented one P from unloading its cargo,
and caused another P to incur extra cost for unloading its cargo, even though their ships
were not damaged.
Rule of Law: When damages arising from a negligent act are so remote as to be
unforeseeable consequences of such negligent action, the injured party may not recover
damages from the negligent party.
Rescuers
Book Notes
G. With regard to Rescues
A. The Restatement (Second) of Torts §314 (1965) states:
1. The general rule is that the mere fact that an actor realizes or should
realize that his action is necessary for the aid of another, while perhaps
imposing a moral duty to act, does not in itself impose a legal duty to act.
B. No-duty rescue rule v. “rescuer doctrine”
1. The “rescuer doctrine” is the opposite of the no-duty rule
a. The “rescuer doctrine” states: “a duty of care is imposed on ‘one who
has, through his negligence, endangered the safety of another’ such
that the one who negligently created the danger ‘may be held liable for
injuries sustained by a third person in attempting to save [the
endangered] person from injury.’”
C. Good Samaritan statutes
1. Many legislatures have adopted so-called “Good Samaritan” statutes
10
In these statutes, immunities are granted or standards are lowered in specified emergency
situations so that “Good Samaritans” are not unfairly punished when attempting to help
those in need.
Horsley v. MacLaren
(English Case—1970)
Facts: P decedent tried to rescue a guy who fell off of a boat; D captain of boat failed to
adequately rescue the other guy; P sued D for failure to exercise reasonable care.
Rule of Law: Where one creates a situation of peril through negligence it is a foreseeable
consequence that a rescuer will go to the aid of the victim, and the party responsible for
the negligence is liable for any injury sustained by the rescuer.
Special Note: HOWEVER, though P’s rescue attempt was foreseeable, because D had
previously warned P from leaving the cabin or cockpit of the boat because he
thought that he was inexperienced with boating, D excused himself from liability.
Tarasoff v. Regents of University of California
(Cal. Supreme Court—1976)
Facts: P was murdered by D’s client, a crazy student; D psychologist failed to inform P’s
parents, but did inform supervisor who told campus police, but nothing was done to him.
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 which make the conduct
unreasonably dangerous.”
However, when the avoidance of foreseeable harm requires a defendant to control the
conduct of another person, liability may only result IF the defendant had a relationship to
the dangerous person or to the potential victim.
Harm to Unborn Children
Bonbrest v. Kotz
(DC Cir. 1946)
Facts: P father of dead child alleged D Dr. negligently delivered child causing it to die.
Rule of Law: A child, born alive and viable, is allowed to maintain a c/a for injuries
wrongfully committed on its person while still in the womb.
Grover et al. v. Eli Lilly and Co. et al.
(Supreme Court of Ohio—1992)
Facts: P’s grandmother used drug DES, P’s mom suffered reproductive injuries that led
to P’s injuries.
Rule of Law: In order to establish liability, a manufacturer must know, or should know,
in the exercise of ordinary care, of the existence of a risk or hazard resulting from its
product, and fail to warn of the risk or hazard.
Wrongful Death and Survival
Baker v. Bolton
(English Case—1808)
(Baker v. Bolton crystallized the now accepted rule that there can be no c/a brought by
the survivors or the estate of a killed person in respect to the wrongful act that killed
him/her.)
Facts: P’s wife died when a stagecoach owned by D tipped over; P tried to sue after his
wife was dead.
Rule of Law: There is no recovery of damages allowed by a survivor for the death of
another.
11
Jacksonville Street Railway v. Chappel Adm’x
(Florida Supreme Court—1886)
Facts: P died while riding a streetcar; P’s administratrix attempted to sue streetcar owner.
Rule of Law: Under the common law and under the statute §77, p. 830, McClellan, Dig.,
“all actions for personal injuries (torts) shall die with the person to-wit, assault and
batteries, slander, false imprisonment, and malicious prosecution. All other actions shall
and may be maintained in the name of the representative of the deceased (contract
cases).”
Florida East Coast Railway v. McRoberts
(Florida Supreme Court—1933)
Facts: P’s wife was killed as a result of D’s alleged negligence.
Rule of Law: Under the Florida Wrongful Death statute (sections 4960, 4961, R.G.S.,
sections 7047, 7048, C.G.L.) exemplary or punitive damages are not recoverable where
the facts of the case before the jury would warrant the recovery of such damages had no
death resulted from the alleged negligence.
Wrongful Birth and Wrongful Life
Boone v. Mullendore
(Alabama Supreme Court—1982)
(In Boone, the “opinion drew a distinction between wrongful birth in which parents seek
to recover certain damages pertaining to the rearing of a defective child, and wrongful life
in which a deformed or otherwise congenitally defective child seeks to recover general
damages for having been permitted to be born.” Many decisions have held that a
wrongful birth cause of action is cognizable.)
Facts: P had surgery to have cysts removed, Dr. told her he removed her fallopian tubes;
P had sex and had a child; sued Dr. for the misrepresentation.
Rule of Law: Based on the holding in Coleman v. Garrison, this court believes that in the
event of a “wrongful birth”, whereby an unwanted child is born due to the negligence of a
physician in either treating or misrepresenting the parent’s ability to have children, the
parent may recover damages for: (1) The physical pain and suffering, and mental anguish
of the mother as a result of her pregnancy; (2) the loss to the husband of the comfort,
companionship, services, and consortium of the wife during her pregnancy and
immediately after the birth; and (3) the medical expenses incurred by the parents as a
result of the pregnancy.
Harbeson v. Parke-Davis, Inc.
(Washington Supreme Court—1983)
Facts: P’s mother was prescribed a drug by her Dr.; the drug caused serious deformities
in the P children.
Rule of Law: “A child may maintain an action for wrongful life in order to recover the
extraordinary expenses to be incurred during the child’s lifetime, as a result of the child’s
congenital defect.”
Chapter 6--Breach
“It is only where the facts are such that all reasonable men must draw the same
conclusion from them that the question of negligence is ever considered as one of law for
the court.” Lamar, J. Grand Trunk Railway Co. v. Ives
Griffin v. Watkins
(North Carolina Supreme Court-1967)
12
Facts: P was driving and crashed into the back of the D’s tractor which was partly in the
road after it ran out of gas; both P and D were injured; questions were concerning
contributory negligence and breach.
Rule of Law: Failure to exercise due care is the failure to perform some specific duty
required by law.
Contributory negligence exists when the injury in question was caused, in part, by the
plaintiff’s own negligence.
Douglas v. Great Atlantic and Pacific Tea Co.
(Mississippi Supreme Court-1981)
Facts: P slipped and fell on some water in a supermarket; D had no knowledge of the
water at the time of the accident.
Rule of Law: In the absence of evidence that the defendant caused the defective
condition, in order to establish negligence in a slip and fall case, it must be proven that
the defendant had actual or constructive notice of the defect that caused the injury.
Mickle v. Blackmon
(South Carolina Supreme Court-1969)
Facts: Defective gearshift ball exacerbated P’s injuries in car crash.
Rule of Law: The general rule is that “a manufacturer is not liable for the failure of a
product due to deterioration from ordinary wear and tear or misuse.”
However, when there is an inherent defect in the construction of a product that would
cause it to deteriorate over time, a manufacturer may be held liable regardless of how
long the injury occurred after the production of the product.
Watson v. State Farm Fire and Casualty Insurance Co.
(Supreme Court of Louisiana-1985)
Facts: P’s husband was shot to death by the P boy who was given the gun by his P father;
decedent was not wearing “hunter orange.”
Rule of Law: According to the LaCiv.Code Ann. Art. 2323 “When contributory
negligence is applicable to a claim for damages, its effect shall be as follows: If a person
suffers injury, death or loss as the result partly of his own negligence and partly as a
result of the fault of another person or persons, the claim for damages shall not thereby be
defeated, but the amount of damages recoverable shall be reduced in proportion to the
degree or percentage of negligence attributable to the person suffering the injury, death or
loss.”—Comparative negligence.
Washington v. Louisiana Power and Light Co.
(Supreme Court of Louisiana-1990)
Facts: P electrocuted himself for the second time when carrying an antenna that touched
a power line in his yard.
Rule of Law: When the risk of injury is high, in comparison to an inexpensive remedy to
prevent such risk, the party responsible for creating and failing to prevent the risk has
breached its duty to the injured party, and is liable for negligence.
United States Fidelity and Guaranty Co. v. Plovidba
(7th Circuit-1982)
Facts: P fell through an open hatch on a ship and died.
Rule of Law: Based on the “Hand formula” for determining negligence, when the burden
of the precautions necessary to prevent the injury are less than the magnitude of the loss
13
incurred by the injury multiplied by the probable risk of injury if precautions were not
taken, then there is negligence.
Res Ipsa Loquitur
Bryne v. Boadle
(English common law court-1866)
Facts: P was hit on the head by a barrel of flour that fell from D’s window.
Rule of Law: A plaintiff who was exercising reasonable care need not provide specific
evidence of negligence in order to recover damages from an injury resulting from a
dangerous instrumentality in the sole control of the defendant and that could not have
occurred but for the defendant’s negligence.
Escola v. Coca-Cola Bottling Co.
(California Supreme Court-1944)
Facts: Coca-Cola bottle exploded in P’s hand, apparently for no reason.
Rule of Law: Res ipsa loquitur may be applied if the plaintiff or a third party did not in
any way contribute to the accident, if the defendant had exclusive control of the thing
causing the injury, and if the accident is such that it could not have occurred but for the
defendant’s negligence.
Dayton Tire and Rubber Co. v. Davis
(Florida intermediate appellate court-1977)
Facts: P died after his motorcycle tire blew out as a result, allegedly, of defective cords
within the tire.
Rule of Law: Res ipsa loquitur may be applied if the plaintiff or a third party did not in
any way contribute to the accident, if the defendant had exclusive control of the thing
causing the injury, and if the accident is such that it could not have occurred but for the
defendant’s negligence.
Book Notes
In Schott v. Pancoast Properties, it was held that “The doctrine (of res ipsa) may not be
invoked unless it appear that the thing causing the injury was so completely in the control
of the defendant that, in the ordinary course of events, the mishap could not have
occurred had there been proper care on the defendant’s part.”
The Supreme Court of the United States has held that “… res ipsa loquitur means that the
facts of the occurrence warrant the inference of negligence, not that they compel such an
inference; that they furnish circumstantial evidence of negligence where direct evidence
of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as
sufficient.” Sween
Melerine v. Avondale Shipyards, Inc.
(U.S. Court of Appeals, Fifth Circuit-1981)
Facts: P was injured when a cable struck a scaffold he was standing on when directing a
crane operator while working.
Rule of Law: Negligence per se may only be established as a result of the violation of a
statute if the plaintiff falls within the class of persons designed to be protected under the
statute and the negligence alleged was the proximate cause of the plaintiff’s injuries.
Custom
Mayhew v. Sullivan Mining Co.
(Maine Supreme Judicial Court-1884)
14
Facts: P fell through a ladder hole cut into a platform by the D; P was to do mining work
on the platform; question as to common practice/custom in cutting the holes.
Rule of Law: Ordinary care is the care which persons of ordinary prudence—not careless
persons—would take under all the circumstances.
Custom or common practice cannot preclude the standard of ordinary care in a
negligence action.
St. Louis-San Francisco Railway Co. v. White
(Florida District Court of Appeal-1979)
Facts: P sued D railway after he was struck and killed by a train at a crossing without a
crossbuck; question as to validity of custom in having crossbucks in these circumstances.
Rule of Law: It is proper to instruct a jury to consider violation of industry standards or
statutes in determining the existence of negligence.
Modified Standard—Lower Capacity
Breunig v. American Family Insurance Co.
(Wisconsin Supreme Court-1970)
Facts: P truck driver was struck by crazy lady D car driver who thought she could fly
because Batman could; D was prone to having mental delusions like this.
Rule of Law: The general rule is that insanity is not a defense to tort actions except for
cases of intentional tort. Restatement of Torts, 2d Ed., p. 16, sec. 283B.
In order to be considered free from liability in a negligent tort action based on alleged
mental instability/delusions, the mental condition must have affected the tortfeasor’s
ability to understand and appreciate the duty owed to others, and if it does not affect
his/her ability to understand and appreciate the duty, it must affect his/her ability to
control the instrumentality causing the harm in an ordinarily prudent manner. Theisen v.
Milwaukee Automobile Mut. Ins. Co.
Also, there must be an absence of notice of forewarning to the person that he/she may be
suddenly subjected to such mental conditions.
Modified Standard—Emergency
Horsley v. MacLaren
(English case-1970)
Facts: Boat; captain rescued poorly; P attempted rescue but died in attempt.
Rule of Law: When the circumstances surrounding a rescue attempt are sufficiently
complex and confusing, and time and opportunities for the rescue attempt are limited,
even if the rescuer owes a duty to attempt the rescue, if the rescuer acts negligently in
his/her attempt, he/she may not be said to have breached the duty to the victim.
Klepper v. Breslin
(Florida Supreme Court-1955)
Facts: D tried to avoid a dog in the street; instead struck a child and killed it.
Rule of Law: The plaintiff submitted instructions requesting a lower standard of care,
and the defendant submitted instructions requesting a higher standard due to the
emergency situation. The primary rule of this case is that the jury is to decide when a
breach has occurred. A breach is a question of fact, not of law.
15
Malpractice
Perin v. Hayne
(Iowa Supreme Court-1983)
Facts: D attempted surgery on the P’s back; P’s vocal chords were damaged accidentally
in the process; several questions/claims including: specific negligence, res ipsa locquitur,
breach of express warranty, battery.
Rule of Law: In order to establish liability for specific negligence, the plaintiff must
provide expert testimony/evidence showing that the physician’s lack of care is so obvious
as to be beyond the comprehension of a layman, and evidence that the physician injured a
part of the body not involved in the treatment.
In order to establish liability for res ipsa loquitur, the plaintiff must prove that the injury
or damage is caused by an instrumentality in the exclusive control of the defendant, and
that the injury or damage could not have occurred but for the lack of reasonable care on
the part of the defendant.
In order to establish liability for breach of express warranty, the plaintiff must prove that
a physician expressly promised a cure or guarantee as to a particular result. The general
rule is that a physician, by undertaking treatment, does not impliedly warrant a cure or
guarantee as to a particular result.
In order to establish liability for battery or trespass, the plaintiff must prove that the
physician performed an operation other than the one that the plaintiff consented to.
Pederson v. Dumouchel
(Washington Supreme Court-1967)
Facts: P suffered convulsive seizures after D doctor left the surgery up to a dentist and
anesthesiologist nurse who was a drunk.
Rule of Law: The “locality rule” was the accepted standard of care in the past, and
maintained that a professional (except for lawyers) should be judged in relation to the
same level of skill, care, diligence and learning of other professionals in the same or
similar localities.
Today, the applicable rule is that doctors are charged with the responsibility of
maintaining a degree of care that an average, competent practitioner in similar
circumstances would exercise.
Aetna Insurance Co. v. Hellumuth, Obata & Kassabaum, Inc.
(U.S. Court of Appeals, Eighth Circuit-1968)
Facts: Architect negligently designed a building.
Rule of Law: An architect is not a guarantor or insurer, but as a professional, he has the
duty to exercise the ordinary, reasonable technical skill, ability and competence required
of a similar professional under similar circumstances; and if by failing to exercise due
care a foreseeable injury results, then liability is established.
The general rule is that expert testimony must be submitted in order to establish a
reasonable standard of professional care when issues are presented that are beyond the
comprehension of most ordinary people, but is not necessary when considering
commonplace factual situations that ordinary people can understand.
Modified Standard—Common Carriers & Hazardous
Activities
Blueflame Gas, Inc. v. Van Hoose
16
(Colorado Supreme Court-1984)
Facts: P injured in propane gas explosion caused by failure of D to odorize the gas so the
P could be warned of a gas leak.
Rule of Law: Greater care may be required of one who dispenses a product in the stream
of commerce when the product itself, by virtue of its inherent character, poses a high risk
of injury to others.
Statutory Modifications
Spence v. Vaught
(Arkansas Supreme Court-1963)
Facts: P injured in car crash where D was the driver and was taking the P home after
Sunday school; guest statute involved.
Rule of Law: As long as the jury is instructed to apply the standard of care required by
statute, the inclusion of additional jury instructions emphasizing a different standard of
care is acceptable and does not prejudice either side.
Negligence is the failure to use ordinary care.
Gross negligence is the failure to use even slight care.
Wilful negligence is the same as gross negligence except the actor knows, or should
know, that the act or failure to act will probably cause harm. Scott v. Shairrick.
Chapter 7—Cause-in-Fact
“Causation is a question of fact, to be decided by a jury”—Class notes
Circumstantial Proof
Zinnel v. Berghuis Construction Co.
(Minnesota Supreme Court—1979)
Facts: Car crash; plaintiff contends that signs were negligently used; due to construction,
the way to go was too confusing; no proof offered; could have been due to defendant or
some other cause.
Rule of Law: When the evidence equally supports two or more inconsistent inferences,
so that one inference does not reasonably predominate over the others, the plaintiff has
not sustained the burden of proof that one of the inferences alone would entitle him to
recover.
New York Life Insurance Co. v. McNeely
(Arizona Supreme Court—1939)
Facts: Decedent died with apparently no evidence as to how; his wife attempted to get
double indemnity under the policy, but had no proof that he qualified based on the way in
which he died.
Rule of Law: A legal conclusion regarding an ultimate or determinative fact may be
based on an inference from circumstantial evidence, but the inference regarding the
ultimate or determinative fact may not be based on another inference as to the existence
of circumstantial facts.
When an inference is the basis for the final determination of liability, such
circumstances/theories providing the basis for the inference must be based on direct
evidence supported by facts.
Shifting the Burden of Proof
Oliver v. Miles
(Mississippi Supreme Court—1927)
17
Facts: Bird hunting; two poor white trash hunters shot a child in the eye when they
negligently shot over the highway; child was walking along the side of the highway.
Rule of Law: Unless one of two or more parties can show that he/she is not the actual
cause of the damage or injury in question, when all of the parties were engaged in the
same negligent actions, then all parties will be held liable for the injury or damage in
question—Burden shifted to Defendants.
Sindell v. Abbott Laboratories
(California Supreme Court—1980)
(Some courts have declined to adopt the “market share” liability theory of causation even
in cases of the drug DES.)
Facts: DES drug; plaintiff injured while in the womb, could not prove which of several
drug company defendants sold the drug to her mother, who ingested the drug.
Rule of Law: In the absence of evidence establishing which of several defendant
manufacturers is responsible for tortious conduct that caused injury or damage to the
plaintiff, when all of the defendant manufacturers participated in the same tortious
conduct, the likelihood that the defendant manufacturers supplied the product that injured
the plaintiff may be measured by the defendant manufacturers’ market share of the total
sales of the product in question, unless the defendant manufacturers can provide evidence
establishing that they are not liable for the injuries or damages.
Anderson v. Somberg
(New Jersey Supreme Court—1974)
Facts: Plaintiff operated on; piece of surgical equipment broke, lodged in plaintiff’s
back; no clear evidence as to who was responsible, but it must have been either the
doctor, equipment manufacturer, etc.
Rule of Law: In the absence of contributory negligence or evidence establishing the
specific cause of the injury or damages, when the injury or damages in question could not
have occurred but for the negligence of one of multiple defendants, the burden of proof
must be shifted to the defendants to show that they did not cause the injury.
Chapter 8—Proximate Causation
City of Scottsdale v. Kokaska
(Arizona Court of Appeals—1972)
Facts: Car crash between police officer and another car while in hot pursuit.
Rule of Law: When it is reasonably foreseeable that an accident may occur, and that the
defendant therefore owes a duty to the plaintiff, then foreseeability is not a necessary
factor in determining proximate causation.
Unforeseen Plaintiffs
Palsgraf v. Long Island Railroad
(New York Court of Appeals—1928 (Cardozo-maj./Andrews-min.))
(This opinion based solely on Andrews’ dissent)
Facts: Man was pushed/pulled onto train; dropped package of fireworks; woman injured
far away on train platform when a scale fell on her.
Rule of Law: Regardless of the injured party’s proximity to the negligent conduct, even
if they are considered to be outside of the “danger zone,” if the injury was proximately
caused by the negligence, then liability should be established.
Unforeseen Consequences
18
In re Polemis v. Furness, Withy and Company
(English Case—1921)
Facts: Board fell into the hold of a ship, striking something, caused a spark, ignited petrol
vapor; led to a fire.
Rule of Law: The nature of the result caused by a negligent act need not be foreseeable
in order to establish liability for proximate causation. On the other hand, in order to
establish liability for proximate causation, it must be foreseeable that the negligent act
would cause some kind of injury or damage. If some damage or injury is foreseeable,
and the injury or damage resulting from a negligent act is “directly traceable to the
negligent act, and not due to the operation of independent causes having no connection
with the negligent act,” proximate cause is established.
Overseas Tankships Ltd. v. Monks Dock & Engineering Co. Ltd.(The Wagon
Mound)
(English Case—1961)
Facts: Oil spill was set afire by molten metal from welding on a ship in a dock, causing
damage to the dock and slipways.
Rule of Law: Proximate cause is established when the foreseeability that the
consequences of some negligent act will result, regardless of whether the consequences
were the direct or indirect result of such negligence.
Zeigler v. Blount Bros. Construction Co.
(Alabama Supreme Court—1978)
Facts: Dam was alleged to be negligently constructed/designed, causing it to collapse;
disrupted electric power; led to increase in electric rates.
Rule of Law: In the case of a “remote result” which is not reasonably foreseeable by the
defendant(s), proximate cause cannot be established, even if the defendant’s negligence
indirectly led to such “remote result.”
Novus Actus Interveniens
Moum v. Maercklein
(North Dakota Supreme Court—1972)
Facts: Employee called into work on snowy day, got into car crash, employee died;
daughter of victims of the other car sues employer for calling him into work.
Rule of Law: “Proximate cause of an injury is a cause which in its natural and
continuous sequence, unbroken by any controlling, intervening cause, produces injury,
and without which it would not have occurred.” Olson v. Cass County Electric CoOperative, Inc.
Freakish Sequence of Events
Tolin v. Terrell
(Kentucky Court of Appeals—1909)
Facts: Mule bitten on the butt by a horse; kicked the plaintiff causing him injury; horse
was running a ferryboat owned by the defendant.
Rule of Law: Proximate cause relies on the foreseeability of the harm that resulted from
the defendant’s negligence. In the absence of foreseeability, liability cannot be
established.
Chapter 9—Contributory Negligence
Davies v. Mann
19
(English Case—1842)
Facts: Plaintiff bound the feet of his ass and left it in the highway, where it was run over
and killed by the defendant by his wagon and horses.
Rule of Law: Butterfield v. Forrester held: “although there may have been negligence on
the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have
avoided the consequences of the defendant’s negligence, he is entitled to recover; if by
ordinary care he might have avoided them, he is the author of his own wrong.”
Last Clear Chance
Odekirk v. Austin
(Arizona Supreme Court—1961)
Facts: Plaintiff running in street, defendant hit him with his car, but plaintiff didn’t see
defendant, and defendant didn’t see plaintiff until the accident.
Rule of Law: The doctrine of “last clear chance” is applicable when: “The plaintiff has
negligently subjected himself to a danger and such negligence has terminated or
culminated in a situation of peril from which he could not, by the exercise of reasonable
care, extricate himself; the defendant saw or ought to have seen the peril of the plaintiff,
and the defendant thereafter has a last clear chance to avoid injuring the plaintiff by the
exercise of reasonable care and fails to do so.” OR “The plaintiff has negligently
subjected himself to a danger which he could have avoided by the exercise of reasonable
vigilance; the defendant actually saw or knew of the plaintiff’s situation and realized or
ought to have realized that the plaintiff was inattentive, and the defendant thereafter has a
last clear chance to avoid injuring the plaintiff by the exercise of reasonable care and fails
to do so.”
Assumption of Risk
Lambert v. Will Brothers Company
(8th Cir.—1979)
Facts: Plaintiff got hand crushed by a hydraulic press; alleged that the machine was
negligently made; defendants alleged the plaintiff “assumed the risk.”
Rule of Law: The doctrine of assumption of risk occurs only when the plaintiff actually
knows and appreciates the danger involved. The standard in measuring knowing or
appreciating is subjective, and is based upon what the person in fact knows, sees,
understands, and appreciates. McDonald v. Hickman.
Fellow Servant Rule
Priestly v. Fowler
(English Case—1837)
Facts: Plaintiff (servant) injured when driving defendant’s (master) wagon/van which
was overloaded; van overturned; plaintiff sued.
Rule of Law: “[T]he mere relation of the master and the servant never can imply an
obligation on the part of the master to take more care of the servant than he may
reasonably be expected to do of himself.”
Immunities
(Municipal Immunity)
Enghauser Mfg. Co. v. Eriksson Engineering
(Ohio Supreme Court—1983)
20
Facts: No facts; somebody sued a municipality for some tort; doctrine of municipal
immunity.
Rule of Law: With regard to municipal liability in the State of Ohio, the rule is liability,
the exception is immunity. However, municipalities may only be held liable for torts, but
may not be held liable for any action involving “the exercise of a legislative or judicial
function, or the exercise of an executive or planning function involving the making of a
basic policy decision.”
Interspousal Immunity
Beattie v. Beattie
(Supreme Court of Delaware—1993)
Facts: Wife rendered quadriplegic when husband got in a car accident with a truck; wife
sues husband for her medical expenses.
Rule of Law: The doctrine of interspousal immunity should be abrogated to the extent
that it deals with negligent torts, although the reasoning in the present case may be
applied to intentional torts as well.
Parental Immunity
Sears, Roebuck & Co. v. Huang
(Supreme Court of Delaware—1995)
Facts: Child got her hand caught in escalator when her mom failed to supervise her
watching a jewelry presentation in a department store.
Rule of Law: In cases of parental control, authority, or discretion, parental immunity is
preserved when the action is filed directly against the parent, or by third parties for
contribution.
In cases where the parent’s negligence is relevant to the child’s theory of liability, but not
actionable, the defendant may introduce evidence showing that the parent’s negligence
was a supervening (operating independently of anything else) cause of the child’s injury.
If the parent’s negligence provides a proximate, but not a supervening cause, then the
parent may not be liable either in full or in part for the liability assessed against multiple
tortfeasors, since parents cannot be joint tortfeasors.
Chapter 10—Damages
Personal Injury
Rush v. Sears, Roebuck and Co.
(New York Supreme Court, Appellate Division—1983)
Facts: Tent fire; Two children, one died, the other one was burned over 42% of her body;
question as to reasonableness of damages.
Rule of Law: The amount of damages awarded by a jury for pain and suffering resulting
from injury must be reasonable in the circumstances, taking into account the injured
party’s abilities and experiences after the injury.
Helfend v. Southern California Rapid Transit District
(California Supreme Court—1970)
Facts: Man stuck his arm out of his car to make a hand signal; arm crushed by a bus;
plaintiff’s insurance carrier paid for his injuries; question as to whether collateral source
rule should be used (can insurance be used to mitigate damages against bus company?)
Rule of Law: “[I]f an injured party receives some compensation for his injuries from a
source wholly independent of the tortfeasor, such payment should not be deducted from
21
the damages which the plaintiff would otherwise collect from the tortfeasor.”—Collateral
Source Rule.
Nature of Proof
Jordan v. Bero
(West Virginia Supreme Court of Appeals—1974)
Facts: P (a boy) was struck and injured by D’s car; P was awarded damages, and father
was awarded damages related to future consequences; question as to sufficiency of
evidence of future consequences.
Rule of Law: “The permanency or future effect of any injury must be proved with
reasonable certainty in order to permit the injured party to recover future damages.”
“As an element of future damages, pain and suffering may be an item of recovery where
it is reasonably certain that such will result from the injury received.”
“Future medical expenses and impairment of earning capacity are proper elements of
recovery when a plaintiff has suffered a permanent injury and it has been shown that
these particular results are reasonably certain to occur and ensue from the injury.”
O’Dowd v. Lineham
(Supreme Court of Michigan—1971)
Facts: Expert testimony case; question as to when expert testimony is admissible.
Rule of Law: In determining whether expert testimony should be admitted, it must be
determined whether:
1. There is a recognized expert available in the field.
2. There are facts that require examination or analysis by an expert.
3. There is common knowledge in a particular area that is known only to an expert as
opposed to the common man.
Adjustments to Recoveries
Doctrine of Avoidable Consequences
“It is well established that an injured party may not recover damages from a wrongdoer
for any consequences of the injury which could have been reasonably avoided. In
practice, the rule focuses on the injured party’s efforts to minimize those damages
proximately flowing from the injury-producing event. The scope of the minimization
effort is circumscribed by these factors:
(1) it must be in good faith;
(2) it must be executed with reasonable skill, prudence, and efficiency;
(3) it must be reasonably warranted by, and in proportion to, the injury and consequences
to be averted; and
(4) it must be undertaken in a reasonably justified belief that it will avoid or reduce the
damage otherwise to be expected from the wrongdoing.
The rule applied whether the injury be to person or to property, in both settings
precluding as a matter of policy those recoveries which either would be unjust or would
contribute to an unnecessary increase in the overall costs of accidents. Moreover, the
doctrine of avoidable consequences applies with equal force whether the action is in tort
or for breach of contract.
Importantly, the rule does not foreclose all recovery and should not be confused with the
doctrine of contributory negligence. Contributory negligence, which may serve as a bar
to any recovery to the injured party [or to diminish damages in a comparative law
22
jurisdiction], focuses on the cause of the initial injury-producing event. Minimization of
damages, in contrast, focuses on the injured party’s action or inaction subsequent to the
initial injury.” Note 6, pp. 430-431—casebook.
Punitive Damages
Roginsky v. Richardson-Merrill, Inc.
(2d Cir. 1967)
Facts: P developed cataracts after using the drug produced by the D manufacturer;
question as to whether punitive damages may be awarded.
Rule of Law: In order to award punitive damages, whether taken separately or as a
whole, a defendant’s conduct must be so reckless as to be almost criminal, and it must be
“clearly established.”
Chapter 11—Multiple Parties
Vicarious Liability
Perdue v. Mitchell
(Alabama Supreme Court—1979)
Facts: Old lady permitted a 17 year old boy to drive her to the market; boy drove off
without permission and crashed the car; question as to whether P who was hit by the boy
can sue under vicarious liability.
Rule of Law: In order to establish a defendant’s liability for the actions of a third party, it
must be shown that the third party, at the time of the tortious act, was acting as the
defendant’s agent and was within the scope of employment.
Weber v. Stokely-Van Camp, Inc.
(Minnesota Supreme Court—1966)
Facts: P was driving with his employee, who got into a car crash with the D; P sued D,
but D claimed contributory negligence on the part of the P; question as to whether
contributory negligence on the part of a driver will bar recovery of passenger against
other driver.
Rule of Law: The general rule, as articulated in Restatement (Second) of Torts § 495, is
“A plaintiff is barred from recovery if the negligence of a third person is a legally
contributing cause of his harm, and the plaintiff has been negligent in failing to control
the conduct of such person.”
HOWEVER, in cases of auto accidents, the doctrine of imputed contributory negligence
is not acceptable because a passenger cannot reasonably control the conduct of the
driver.
Scott v. McGaugh
(Kansas Supreme Court—1973)
Facts: Two salesmen driving; got into a car crash with the D; one of the salesmen filed
suit; question as to whether vicarious liability may be applied; question as to imputing
negligence of the driver onto the passenger.
Rule of Law: “Where evidence of the relationship and understanding of the parties is
undisputed and the facts and circumstances clearly show a passenger does not have an
equal privilege and right to control the operation of the vehicle under the “right of
control” test, the issue of joint enterprise to support vicarious liability becomes one of
law for the court’s determination; and, the court should instruct the jury that negligence
of the driver, if any, is not imputable to the plaintiff passenger.”
23
Stoppleworth v. Refuse Hideaway, Inc.
(Supreme Court of Wisconsin—1996)
Facts: P developed cancer, allegedly from toxins in a landfill near his well; question as to
whether the insurance company was properly excluded from consideration.
Rule of Law: “[I]n a jury trial, as a procedural rule, the court should apprise the jurors of
the names of all the parties to the lawsuit.”
Settlement Issues
“Four elements of common law tort liability guided settlement negotiations in predictable
paths: first, the rule that a plaintiff’s contributory negligence barred recovery; second, the
rule that joint tortfeasors were jointly and severally liable for all damages; third, the rule
that the release of one joint tortfeasor released them all; and, fourth, the rule of no
contribution among joint tortfeasors.”
1. Comparative negligence (each party pays damages with respect to their level of
responsibility for the injury) has supplanted contributory negligence (bar to recovery)
in most jurisdictions.
2. “The doctrine of joint and several liability of multiple tortfeasors permits a plaintiff
to extract judgment from any one of several tortfeasors or some from one and some
from another until the entire judgment is satisfied … This gives plaintiffs an
undeniable advantage. Nevertheless, the corollary rule that the release of one joint
and several tortfeasor releases all imperils unsuspecting plaintiffs.”
Vermont Union School District v. H.P. Cummings Construction Co.
(Vermont Supreme Court—1983)
Facts: Leaky roof; P and two D’s entered an agreement whereby the D’s would pay the
P, but he would not sue them for punitive damages, would discharge the judgments, and
they would help prosecute the third D; question as to validity of that sort of agreement.
Rule of Law: A pretrial agreement entered into by some, but not all of the parties, that
involves various settlement components is legal and proper.
Special Considerations in Comparative Negligence Actions
Liability of Multiple Defendants
1. Joint and several liability—“a plaintiff who receives a judgment of $8000 against
Defendants A, B and C can execute the judgment in any manner, collecting all from
one or some from each until the judgment is satisfied.”—P’s negligence is taken into
account by mitigation of damages based on P’s percentage of fault.
2. Apportioned liability (comparative fault/negligence)—“no defendant is liable for
more than a proportionate share of the plaintiff’s total damages. The plaintiff also
stands the risk of judgment proof tortfeasors and the burden of multiple
executions.”—P’s negligence is taken into account by mitigation of damages based
on P’s percentage of fault.
3. Hybrid liability (Texas)—“all defendants whose individual negligence is greater
than that of the plaintiff [are] jointly and severally liable for the apportioned recovery,
but … a defendant whose individual negligence is less than that of the plaintiff [is]
liable only for the product of the plaintiff’s total damages and the particular
defendant’s percentage of negligence.”
4. Threshold comparisons—49%, 50% Rules (Slight/Gross Rules)—Under modified
comparative negligence systems, recovery may be barred if the D’s negligence is not
24
less than that of the P—Two Rules: (1) Unit Rule—The negligence of the P is
compared to that of all Ds—“A plaintiff who is permitted to recover under the Unit
Rule recovers against all defendants, including those whose individual negligence is
less than that of the plaintiff; (2) Individual Rule—The negligence of the P is
compared to that of each D individually—“the Individual Rule states will permit
recovery against a particular defendant whose negligence is exceeded by [or equal to]
that of the plaintiff,” depending on the state.
5. Phantom tortfeasors—“Unknown persons, such as hit and run drivers, and immune
persons, such as spouses or sovereigns, are examples of ‘phantom tortfeasors.’” In
some states the phantom’s share is included in the total award of damages, in some
states the share is not included.
Contribution and Indemnification
1. No contribution rule—One exception to this rule is that “in instances in which both
of two defendants were wrongdoers as to the plaintiff but as between themselves were
not wrongdoers,” (e.g. both injured P’s property, but did so unintentionally) then
contribution may be had from one defendant to the other. However, if the two
defendants were “wrongdoers as between each other … neither contribution not
indemnity would be permitted.” (e.g. both committed a knowingly wrongful act that
injured P’s property).
2. Equal pro rata shares—“in theory favors those greater in fault at the expense of
those lesser in fault. It implicitly recognizes, however, the difficulty, artificiality and
cost of allocating negligence in exact percentages.”—allows the defendant primarily
responsible to obtain equal shares of damages from the other defendants, regardless
of their percentage of responsibility.
3. Contribution would not apply to comparative negligence with individual
apportioned liability.
Chapter 12—Intentional Torts to the Person
Mental State of the Defendant
Clayton v. New Dreamland Roller Skating Rink
(New Jersey Supreme Court—1951)
Facts: P broke her arm at skating rink; D officer of the rink tried to set her arm against
P’s wishes; additional harm was done, likely as a result of D’s actions.
Rule of Law: “The least manual touching of the body of another against his will
constitutes an ‘assault and battery.’”
Good faith intentions are irrelevant in determining when an assault and battery has
occurred.
Masters v. Becker
(New York Supreme Court, Appellate Division--1964)
Facts: Two children; P child was on a ledge when D child pried her fingers off of a bar
causing her to fall and be injured.
Rule of Law: Intent is established where “an act is done with the intention of inflicting
upon another an offensive but not a harmful bodily contact or of putting another in
apprehension of either a harmful or offensive bodily contact, and such act causes a bodily
contact to the other … although the act was not done with the intention of bringing about
the resulting bodily harm.” Restatement of the Law of Torts, Vol. 1 § 16.
25
“A plaintiff in an action to recover damages for an assault founded on bodily contact
must prove only that there was bodily contact; that such contact was offensive; and that
the defendant intended to make the contact. The plaintiff is not required to prove that
defendant intended physically to injure him.”
Peterson v. Haffner
(Indiana Supreme Court—1877)
Facts: D 13 year old boy threw mortar at another boy, but hit the P 6 year old boy in the
eye causing him to lose his eye.
Rule of Law: Intent to do a wrongful act, though without intent to injure, is sufficient to
constitute actionable assault and battery.
§ 13--Battery: Harmful Contact
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) a harmful contact with the person of the other directly or indirectly results.
§ 18—Battery: Offensive Contact
(1) 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.
An act which is not done with the intention stated in Subsection (1,a) does not make the
actor liable to the other for a mere offensive contact with the person although the act
involves an unreasonable risk of inflicting it and, therefore, would be negligent or
reckless if the risk threatened bodily harm.
Malicious Prosecution
Sanders v. Daniel International Corporation
(Supreme Court of Missouri, en banc—1984)
Facts: P charged with theft of tools; prosecutor later dropped the case; P sued for
malicious prosecution.
Rule of Law: Under the Restatement (Second) of Torts, § 668: “To subject a person to
liability for malicious prosecution, the proceedings must have been initiated primarily for
a purpose other than that of bringing an offender to justice.”
§ 682—General Principle (Abuse of Process)
One who uses a legal process, whether criminal or civil, against another primarily to
accomplish a purpose for which it is not designed, is subject to liability to the other for
harm caused by the abuse of process.
§ 653—Elements of a Cause of Action [Malicious Criminal Prosecution]
A private person who initiates or procures the institution of criminal proceedings against
another who is not guilty of the offense charged is subject to liability for malicious
prosecution if
(a) he initiates or procures the proceedings without probable cause and primarily for a
purpose other than that of bringing an offender to justice, and
the proceedings have terminated in favor of the accused.
Chapman v. Honig
(English Case—1963)
26
Facts: P was a tenant of D’s building; P sued D in a civil action; P won; D attempted to
evict P; P sued.
Rule of Law: “[W]hen the validity of an act done in purported exercise of a right under a
contract or other instrument is disputed, the inquiry is limited to ascertaining whether the
act has been done in accordance with the provisions of the contract or other instrument.”
Intentional Infliction of Emotional Distress
Eckenrode v. Life of America Insurance Co.
(7th Cir. 1972)
Facts: P’s husband was insured by D company; Husband died; D refused to pay; D acted
nasty in the process; question as to intentional infliction of emotional distress.
Rule of Law: Intentional infliction of emotional distress must include:
(1) Outrageous conduct by the defendant;
(2) The defendant’s intention of causing, or reckless disregard of the probability of
causing emotional distress;
(3) The plaintiff’s suffering severe or extreme emotional distress; and
(4) Actual and proximate causation of the emotional distress by the defendant’s
outrageous conduct.
§ 46—Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if
bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he
intentionally or recklessly causes severe emotional distress
(a) 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
to any other person who is present at the time, if such distress results in bodily
harm.
Scienter
(Deceit)
Derry v. Peek
(English Case—1889)
Facts: D claimed that it was going to use steam power instead of horse; P bought shares
in the company; D was refused the right to use steam; D misread the statute; P sued for
misrepresentation.
Rule of Law: “[W]here a man makes a statement to be acted upon by others which is
false, and which is known by him to be false, or is made by him recklessly, or without
care whether it is true or false, that is, without any reasonable ground for believing it to
be true, he is liable in an action of deceit at the suit of anyone to whom it was addressed
or anyone of the class to whom it was addressed and who was materially induced by the
misstatement to do an act to his prejudice.”
§ 525—Liability for Fraudulent Misrepresentation
One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the
purpose of inducing another to act or to refrain from action in reliance upon it, is subject
to liability to the other in deceit for pecuniary loss caused to him by his justifiable
reliance upon the misrepresentation.
27
§ 526—Conditions Under Which Misrepresentation is Fraudulent (Scienter)
A misrepresentation is fraudulent if the marker
(a) knows or believes that the matter is not as he represents it to be,
(b) does not have the confidence in the accuracy of his representation that he states or
implies, or
(c) knows that he does not have the basis for his representation that he states or implies.
Probable Cause
Coblyn v. Kennedy’s, Inc.
(Mass. Supreme Judicial Court—1971)
Facts: P old man put scarf in his coat pocket; bought a coat in D’s store; after buying new
coat, P removed scarf from old coat; P was stopped by D employee and detained,
suffered heart problems; P sued for false imprisonment.
Rule of Law: Under G.L. c. 231, “In an action for false arrest of false imprisonment
brought by any person by reason of having been detained for questioning on or in the
immediate vicinity of the premises of a merchant, if such person was detained in a
reasonable manner and for not more than a reasonable length of time by a person
authorized to make arrests or by the merchant or his agent or servant authorized for such
purpose and if there were reasonable grounds to believe that the person so detained was
committing or attempting to commit larceny of goods for sale on such premises, it shall
be a defence to such action. If such goods had not been purchased and were concealed
on or amongst the belongings of a person so detained it shall be presumed that there
were reasonable grounds for such belief.”
Restatement (Second) Torts
§ 35—False Imprisonment
(1) An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other or a third person within boundaries fixed by
the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.
An act which is not done with the intention stated in Subsection (1,a) does not make the
actor liable to the other for a merely transitory or otherwise harmless confinement,
although the act involves an unreasonable risk of imposing it and therefore would be
negligent or reckless if the risk threatened bodily harm.
§ 36—What Constitutes Confinement
(1) To make the actor liable for false imprisonment, the other’s confinement within the
boundaries fixed by the actor must be complete.
(2) The confinement is complete although there is a reasonable means of escape, unless
the other knows of it.
(3) The actor does not become liable for false imprisonment by intentionally preventing
another from going in a particular direction in which he has a right or privilege to go.
§ 42—Knowledge of Confinement
Under the rule stated in § 35, there is no liability for intentionally confining another
unless the person physically restrained knows of the confinement or is harmed by it.
Mental State of the Plaintiff
McDonald v. Ford
(Florida District Court of Appeal—1969)
28
Facts: D tried to hug and kiss the P; P resisted, struck her face on an unidentified object;
ran away; P sued in negligence; D claimed only battery was applicable.
Rule of Law: “An assault and battery is not negligence for such action is intentional,
while negligence connotes an unintentional act.”
Wilkinson v. Vesey
(Supreme Court of Rhode Island—1972)
Facts: P alleges that she suffered injury from radiation treatment administered by her Dr.;
claimed D Dr. failed to inform her as to risks; D claimed he had no duty to inform.
Rule of Law: “The jury can decide if the doctor has disclosed enough information to
enable the patient to make an intelligent choice without the necessity of the plaintiff’s
expert.”
“[A] physician is bound to disclose all the known material risks peculiar to the proposed
procedure.”
Apprehension of Battery
Stephens v. Myers
(English Case—1830)
Facts: P and D were at a meeting, D was asked to leave, but instead ran at the P and
attempted to strike him, but no contact occurred as the D was stopped before he could
reach the P.
Rule of Law: In all cases of assault, “there must … be the means of carrying the threat
into effect.”
§ 21—Assault
(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contract with the person of the
other or a third person, or an imminent apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension.
(2) An act which is not done with the intention stated in Subsection (1,a) does not make
the actor liable to the other for an apprehension caused thereby although the act involves
an unreasonable risk of imposing it and therefore, would be negligent or reckless if the
risk threatened bodily harm.
Reasonable Reliance
Sharp v. Idaho Investment Corp.
(Idaho Supreme Court—1972)
Facts: P purchased stock in the D company after P was shown a “pitch-kit” and was
allegedly persuaded through false information. P sued for fraudulent misrepresentation.
Rule of Law: “[A] representation consisting of promise or a statement as to a future
event will not serve as basis for fraud, even though it was made under circumstances as to
knowledge and belief which would give rise to an action for fraud had it related to an
existing or past fact.”
HOWEVER, “fraud may be predicated upon the nonperformance of a promise in certain
cases where the promise is the device to accomplish the fraud.”
Bessett v. Basnett
(Florida Supreme Court—1980)
Facts: P purchased a lodge from the D; D made statements about the conditions; amount
of land, etc. all of which were false; P however, failed to inspect on their own. P sued.
29
Rule of Law: “[A] recipient may rely on the truth of a representation, even though its
falsity could have been ascertained had he made an investigation, unless he knows the
representation to be false or its falsity is obvious to him.”
Defenses
Defenses of Life and Limb
Watts v. Aetna Casualty & Surety Company
(Louisiana Court of Appeals—1975)
Facts: P brought his car to get it fixed by the D at a garage; P verbally abused D; D
struck P twice in the face, causing him to require hospitalization; P sued; D maintains he
was in immediate apprehension of a battery by the P.
Rule of Law: “Mere words, no matter how calculatedly they are used to excite or irritate,
cannot justify a battery. … Provocation by words, however, can be considered in
mitigation of damages although rejected as justification for an unlawful act.” Morneau v.
American Oil Co.
Assault and Battery
Bradley v. Hunter
(Louisiana Court of Appeal—1982)
Facts: P is wife of JW, a 28 year old punk; Ds owned a store where P was acting rowdy;
P was told to leave, he did but came back; when he came back, D shot him and killed him
because she was in fear of her and her mother’s life; P had a history of violence.
Rule of Law: “Where a person reasonably believes he is threatened with bodily harm, he
may use whatever force appears to be reasonably necessary to protect against the
threatened injury.. . . Of course, each case depends on its own facts, such as, for instance,
the relative size, age and strength of the parties, their reputations for violence, who was
the aggressor, the degree of physical harm reasonably feared and the presence or absence
of weapons.” Roberts v. American Employers Ins. Co., Boston, Mass.
Defense of Property
Katko v. Briney
(Iowa Supreme Court—1971)
Facts: D owned a farmhouse that was abandoned; her husband put a spring gun in a
bedroom that was aimed low to frighten potential thieves; P entered the house to steal
bottles; P was shot in the leg by the gun; P sued.
Rule of Law: “[T]he accepted rule [is] that there is no privilege to use any force
calculated to cause death or serious bodily injury to repel the threat to land or chattels,
unless there is also such a threat to the defendant’s personal safety as to justify a selfdefense. … spring guns and other man-killing devices are not justifiable against a mere
trespasser, or even a petty thief.” Prosser on Torts, Third Edition, pp. 116-118.
Defense of Economic Interests
Frank Coulson, Inc.—Buick v. General Motors Corp.
(5th Cir.—1974)
Facts: P was told to sell his dealership by the D, but was not permitted to sell for more
than $50,000, even though the business was worth more than that and another buyer was
willing to pay more; the buyer ended up getting the business for $50,000 plus another
$35,000 from another separate transaction; question as to malicious interference with a
prospective contractual relationship.
30
Rule of Law: Under Florida law, “a strict legalistic concept of maliciousness is not an
element of an action based on interference with a prospective contractual relationship. In
Florida, malice will be inferred where the interference is shown to be intentional.”
§ 766—Intentional Interference with the Performance of Contract by Third Person
One who intentionally and improperly interferes with the performance of a contract
(except a contract to marry) between another and a third person by inducing or otherwise
causing the third person not to perform the contract, is subject to liability to the other for
the pecuniary loss resulting to the other from the failure of the third person to perform the
contract.
§ 766A—Intentional Interference with Another’s Performance of His Own Contract
One who intentionally and improperly interferes with the performance of a contract
(except a contract to marry) between another and a third person, by preventing the other
from performing the contract or causing his performance to be more expensive or
burdensome, is subject to liability to the other for the pecuniary loss resulting to him.
§ 766B—Intentional Interference with Prospective Contractual Relation
One who intentionally and improperly interferes with another’s prospective contractual
relation (except a contract to marry) is subject to liability to the other for the pecuniary
harm resulting from loss of the benefits of the relation, whether the interference consists
of
(a) inducing or otherwise causing a third person not to enter into or continue the
prospective relation or
preventing the other from acquiring or continuing the prospective relation.
Pares Patria—Intentional Corporal Punishment
Thomas v. Bedford
(Louisiana Court of Appeals—1980)
Facts: D teacher beat some little bad child’s ass after the child acted like a punk; question
as to whether D was authorized to beat the child, and if so to what extent.
Rule of Law: “Where appropriate, corporal punishment may be administered in a
reasonable manner as a measured, rational response to serious acts of misconduct.”