UNIVERSITY OF FLORIDA
COLLEGE OF LAW
MONASH UNIVERSITY
2005
TORTS
J. Little, Instructor
UNIVERSITY OF FLORIDA
COLLEGE OF LAW
MONASH UNIVERSITY
2005
COMPARATIVE TORT LAW
TOPIC ONE: OVERVIEW OF DEVELOPMENT OF US LAW OF NEGLIGENCE
1.
Subtopic One: Introduction; Overview of the Common Law: . . . . . . . . . . . . . . . . . . . . . . 3
Evolution of Common Law of Torts; American Jury System
a.
Stages of a Law Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.
Subtopic Two: Duty as the Threshold Element of a Negligence Cause of Action . . . . . . 7
a.
Heaven v. Pender, [1883] 11 Q.B.D. 503 (C.A.) . . . . . . . . . . . . . . . . . . . . . . . . . . 8
b.
Palsgraf v. Long Island Railroad, 162 N.E. 99 (N.Y. 1928) . . . . . . . . . . . . . . . . 12
3.
Subtopic Three: Some Special Duty Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
a.
Owners and Occupiers of Land:
Stitt v. Holland Abundant Life Fellowship, 614 N.W. 2nd 88 (Mi. 2000) 18
b.
Emotional Injuries:
McLoughlin v. O’Brian & Others, [1983] A.C. 410 (H. L.) . . . . . . . . . . 25
c.
Pure Economic Loss:
Ultramares v. Touche Niven & Co., 174 N.E. 441 (N.Y. 1931) . . . . . . . 30
4.
Subtopic Four: Breach of Duty (Negligence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
a.
Standard: Vaughan v. Menlove, 3 Bing 3 N. C. 468 (1837) . . . . . . . . . . . . . . . . 38
b.
Application: Bolton v. Stone, [1951] A.C. 850 (House of Lords) . . . . . . . . . . . 40
5.
Subtopic Five: Causation as an element of the cause of action,
including proximate causation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
a.
Cause-in-fact: Jeffers v. Amoco, 405 So.2d 1227 (La. App. 1981) . . . . . . . . . . . 49
b.
Cause-in-fact:
Thames Water Utilities Limited v. London Regional Transport,
London Underground . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
c.
Proximate Causation: Palsgraf v. Long Island Railroad Co.,
162 N.E. 99 (1929)(Andrews, J., Dissenting) . . . . . . . . . . . . . . . . . . . . . 56
d.
Proximate Causation: Wing v. Morse, 300 A.2d 491 (Me. 1973) . . . . . . . . . . . . 60
6.
Subtopic Six: Damages as an element of the cause of action with particular application
to personal injuries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
a.
Jordan v. Bero, 210 S.E.2d 618 (W. Va. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . 66
1
b.
c.
d.
Kansas City Southern Railway Company, Inc.,
798 So.2d 374 (Miss. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Spitzke v. United States, 914 F.2d 262 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . 79
Rees v. Darlington Memorial Hospital NHS Trust,
[2004] 1 A.C. 309 (H.L) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
7.
Subtopic Seven: Defenses to Negligence Cause of Action . . . . . . . . . . . . . . . . . . . . . . . 98
a.
Contributory Negligence: Butterfield v. Forrester,
11 East, 60, 103 English Reprint, 926 (1808) . . . . . . . . . . . . . . . . . . . . . 99
b.
Comparative fault: Froom v. Butcher, [1976] Q.B. 286; . . . . . . . . . . . . . . . . . . 99
Hoffman v. Jones, 280 So.2d 431 (Fla.1973). . . . . . . . . . . . . . . . . . . . . 104
c.
Volenti Non-Fit Injuria (assumption of the risk):
Kennedy v. Providence Hockey Club, Inc., 376 A.2d 329
(R.I.1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
8.
Subtopic Eight: Other theories of liability: Intentional Torts . . . . . . . . . . . . . . . . . . . . 112
a.
Battery; Assault; Intentional Infliction of Emotional Distress:
Dickens v. Puryear, 276 S.E.2nd 325 (N. C. 1981) . . . . . . . . . . . . . . . . 113
b.
Defenses: Hixson v. Slocum, 161 S.W. 522 (Ky. 1913) . . . . . . . . . . . . . . . . . . . 120
c.
Deceit: Shackett v. Bickford, 65 A. 252 (N.H. 1906) . . . . . . . . . . . . . . . . . . . . . 122
9.
Subtopic Nine: Other theories of liability: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
a.
Common law strict liability: Klein v. Pyrodyne Corporation,
817 P.2d 917 (Wash. 1991), amended by 817 P.2d 1359
(Wash. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
b.
Product Strict liability: Greenman v. Yuba Power Products, Inc.,
377 P.2d 897 (Cal. 1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
c.
Trespass and other torts to real property: Sleep v. Morrill,
260 P.2d 487 (Or. 1953); . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
Fairview Farms, Inc. v. Reynolds Metals Company,
176 F. Supp. 178 ( D. Oregon 1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
10.
Examination.
2
INTRODUCTION:
OVERVIEW OF THE COMMON LAW:
eVOLUTION OF COMMON
LAW OF TORTS:
AMERICAN JURY SYSTEM
3
STAGES OF A CIVIL LAW SUIT
(Typical but specifically based on law of Florida)
2005
THE PLEADINGS STAGE
1. COMPLAINT: (or petition for relief): The plaintiff’s allegations must state a cause of
action upon which relief could be given. This means that all the elements of the torts causes of
action must be satisfactorily shown on the face of the complaint.
[To test the sufficiency of the allegations, the defendant may file a motion to dismiss the
complaint on the ground the allegations, if true, do not state a cause of action.)
[MOTION TO DISMISS]
2. ANSWER: The defendant must admit or deny (or neither admit nor deny) each of
plaintiff’s allegations. The defendant must also plead affirmative defenses, if any, in the
answer. All of the elements of the torts defenses must show on the face of the complaint and
the answer.
[The plaintiff may file a motion to dismiss affirmative defenses on the grounds that the
allegations, if true, do not establish the legal basis for them.]
3. DISCOVERY: Parties may engage in discovery using tools such as requests for
admissions, requests for the production of documents and tangible evidence, interrogatories,
depositions, and the like.
4. MOTIONS FOR SUMMARY JUDGMENT OR JUDGMENT ON THE
PLEADINGS: Either party may test the sufficiency of the evidence to prove the prima facie
case or affirmative defenses by filing these motions. The testimony to be tested is represented
by sworn depositions or affidavits of expected witnesses. If a dispositive factual issue remains
in dispute, the disputed facts or issues must be resolved by a jury at trial.
5. MEDIATION: Many jurisdictions now mandate pre-trial mediation and others afford
voluntary mediation.
THE TRIAL STAGE
1.
JURY SELECTION
A. The Venire (Pool of people from which the jury is selected.)
B. The “voir dire” (i.e., actual selection of jurors.)
C. Jury is sworn
2. PARTIES’ OPENING STATEMENTS
4
A. Plaintiff speaks first.
B. Defendant speaks second.
3. PRESENTATION OF EVIDENCE
[Pre-trial motions in limine.]
A. Plaintiff presents case in chief.
(1) Testimony of witnesses: direct examination, cross-examination, re-direct,
etc.
(2) Presentation of demonstrative (non-testimonial) evidence.
B. Plaintiff rests (i.e., concludes presentation of evidence to prove case).
[The defendant may move for a directed verdict of no liability on the grounds that the
plaintiff’s evidence did not prove the elements of the prima facie case pleaded in the
complaint.]
C. Defendant presents evidence to refute the plaintiff’s prima facie case and to prove
defendant’s affirmative defenses, if any.
D. BOTH PARTIES CLOSE.
[Both parties may file motions for directed verdicts on any element of the case.]
4. CLOSING ARGUMENTS.
A. Plaintiff argues first.
B. Defendant argues second.
C. Plaintiff rebuts.
5. CHARGING CONFERENCE.
Parties propose instructions of law for the judge to read to the jury, which the trial
court accepts or rejects.
[The charging conference may occur at any time as prescribed by the judge.]
6. THE JUDGE CHARGES [INSTRUCTS] THE JURY AS TO THE LAW.
7. THE JURY RETURNS ITS VERDICT.
8. THE JUDGE ENTERS FINAL JUDGMENT.
5
9. PARTIES SUBMIT POST-TRIAL MOTIONS.
Examples include motions for new trial, motions for judgment non obstante veredicto,
motions for remittitur or additur, renewal of motions for directed verdict.
THE APPELLATE STAGE
1. APPEALS FROM DISPOSITIVE PRE-TRIAL ORDERS.
Examples include orders granting a defendant’s motion to dismiss or motion for
summary judgment of no liability.
2. APPEALS FROM DISPOSITIVE POST-TRIAL ORDERS.
Examples include orders on motions for new trial, remittitur, additur, and judgment
non-obstante veredicto.
6
Subtopic two
DUTY AS THE
THRESHOLD ELEMENT
OF A NEGLIGENCE
CAUSE OF ACTION
7
a contract with a shipowner whose ship was in
the defendant's dock to paint the outside of his
ship. The defendant, the dock owner, supplied,
under a contract with the shipowner, an ordinary
stage to be slung in the ordinary way outside the
ship for the purpose of painting her. It must have
been known to the defendant's servants, if they
had considered the matter at all, that the stage
would be put to immediate use, that it would not
be used by the shipowner, but that it would be
used by such a person as the plaintiff, a working
ship painter.
HEAVEN
v.
PENDER
(1882-83) LR 11 Q.B.D. 503
[The defendant, a dock owner, supplied and put
up a staging outside a ship in his dock under a
contract with the shipowner. The plaintiff was a
workman in the employ of a ship painter who
had contracted with the shipowner to paint the
outside of the ship, and in order to do the
painting the plaintiff went on and used the
staging, when one of the ropes by which it was
slung, being unfit for use when supplied by the
defendant, broke, and by reason thereof the
plaintiff fell into the dock and was injured:- ......
The ropes by which the stage was slung, and
which were supplied as a part of the instrument
by the defendant, had been scorched and were
unfit for use and were supplied without a
reasonably careful attention to their condition.
When the plaintiff began to use the stage the
ropes broke, the stage fell, and the plaintiff was
injured.
The plaintiff was a ship painter in the employ of
one William Gray, a master painter, who had
contracted with the owner of a vessel in the
defendant's dock to paint the outside of the
vessel, and on the 8th of April, 1882, whilst the
plaintiff was engaged in painting the vessel, and
using for that purpose the staging which the
defendant had put up on that same day, one of
the ropes by which it was suspended from the
vessel gave way, and the plaintiff fell in
consequence into the dock and was injured.
[The action was tried in county court resulting in
a judgment for the plaintiff in the amount of £20.
The defendant appealed to the Divisional
Court.]The Divisional Court held that the
plaintiff could not recover against the defendant.
The plaintiff appealed [to the present court; tje
Queen’s Bench.].
The action is in form and substance an action for
negligence. That the stage was, through want of
attention of the defendant's servants, supplied in
a state unsafe for use is not denied. But want of
attention amounting to a want of ordinary care is
not a good cause of action, although injury ensue
from such want, unless the person charged with
such want of ordinary care had a duty to the
person complaining to use ordinary care in
respect of the matter called in question.
Actionable negligence consists in the neglect of
the use of ordinary care or skill towards a person
to whom the defendant owes the duty of
observing ordinary care and skill, by which
The action was remitted for trial The county
court judge gave judgment for the plaintiff for
£20, the amount of damages agreed between the
parties.
The Queen's Bench Division, on motion by way
of appeal, ordered judgment to be entered for the
defendant.]
BRETT, M.R.
In this case the plaintiff was a workman in the
employ of Gray, a ship painter. Gray entered into
8
neglect the plaintiff, without contributory
negligence on his part, has suffered injury to his
person or property. The question in this case is
whether the defendant owed such a duty to the
plaintiff.
imposes on the one of them a duty towards the
other to observe, with regard to the person or
property of such other, such ordinary care or
skill as may be necessary to prevent injury to his
person or property; and whether the present case
falls within such definition. When two drivers or
two ships are approaching each other, such a
relation arises between them when they are
approaching each other in such a manner that,
unless they use ordinary care and skill to avoid
it, there will be danger of an injurious collision
between them. This relation is established in
such circumstances between them, not only if it
be proved that they actually know and think of
this danger, but whether such proof be made or
not.
If a person contracts with another to use ordinary
care or skill towards him or his property the
obligation need not be considered in the light of
a duty; it is an obligation of contract. It is
undoubted, however, that there may be the
obligation of such a duty from one person to
another although there is no contract between
them with regard to such duty. Two drivers
meeting have no contract with each other, but
under certain circumstances they have a
reciprocal duty towards each other. So two ships
navigating the sea. So a railway company which
has contracted with one person to carry another
has no contract with the person carried but has a
duty towards that person. So the owner or
occupier of house or land who permits a person
or persons to come to his house or land has no
contract with such person or persons, but has a
duty towards him or them. It should be observed
that the existence of a contract between two
persons does not prevent the existence of the
suggested duty between them also being raised
by law independently of the contract, by the facts
with regard to which the contract is made and to
which it applies an exactly similar but a contract
duty.
It is established, as it seems to me, because any
one of ordinary sense who did think would at
once recognise that if he did not use ordinary
care and skill under such circumstances there
would be such danger. And every one ought by
the universally recognised rules of right and
wrong, to think so much with regard to the safety
of others who may be jeopardised by his
conduct; and if, being in such circumstances, he
does not think, and in consequence neglects, or
if he neglects to use ordinary care or skill, and
injury ensue, the law, which takes cognisance of
and enforces the rules of right and wrong, will
force him to give an indemnity for the injury. In
the case of a railway company carrying a
passenger with whom it has not entered into the
contract of carriage the law implies the duty,
because it must be obvious that unless ordinary
care and skill be used the personal safety of the
passenger must be endangered.
We have not in this case to consider the
circumstances in which an implied contract may
arise to use ordinary care and skill to avoid
danger to the safety of person or property. We
have not in this case to consider the question of
a fraudulent misrepresentation express or
implied, which is a well recognised head of law.
The questions which we have to solve in this
case are--what is the proper definition of the
relation between two persons other than the
relation established by contract, or fraud, which
With regard to the condition in which an owner
or occupier leaves his house or property other
phraseology has been used, which it is necessary
to consider. If a man opens his shop or
warehouse to customers it is said that he invites
them to enter, and that this invitation raises the
9
relation between them which imposes on the
inviter the duty of using reasonable care so to
keep his house or warehouse that it may not
endanger the person or property of the person
invited. This is in a sense an accurate phrase, and
as applied to the circumstances a sufficiently
accurate phrase. Yet it is not accurate if the word
"invitation" be used in its ordinary sense. By
opening a shop you do not really invite, you do
not ask A. B. to come in to buy; you intimate to
him that if it pleases him to come in he will find
things which you are willing to sell. So, in the
case of shop, warehouse, road, or premises, the
phrase has been used that if you permit a person
to enter them you impose on yourself a duty not
to lay a trap for him.
The proposition which these recognised cases
suggest, and which is, therefore, to be deduced
from them, is that whenever one person is by
circumstances placed in such a position with
regard to another that every one of ordinary
sense who did think would at once recognise that
if he did not use ordinary care and skill in his
own conduct with regard to those circumstances
he would cause danger of injury to the person or
property of the other, a duty arises to use
ordinary care and skill to avoid such danger.
Without displacing the other propositions to
which allusion has been made as applicable to
the particular circumstances in respect of which
they have been enunciated, this proposition
includes, I think, all the recognised cases of
liability. It is the only proposition which covers
them all. It may, therefore, safely be affirmed to
be a true proposition, unless some obvious case
can be stated in which the liability must be
admitted to exist, and which yet is not within
this proposition. There is no such case.
.....
This, again, is in a sense a true statement of the
duty arising from the relation constituted by the
permission to enter. It is not a statement of what
causes the relation which raises the duty. What
causes the relation is the permission to enter and
the entry. But it is not a strictly accurate
statement of the duty. To lay a trap means in
ordinary language to do something with an
intention. Yet it is clear that the duty extends to
a danger the result of negligence without
intention. And with regard to both these phrases,
though each covers the circumstances to which
it is particularly applied, yet it does not cover the
other set of circumstances from which an exactly
similar legal liability is inferred.
I cannot conceive that if the facts were proved
which would make out the proposition I have
enunciated, the law can be that there would be
no liability. Unless that be true, the proposition
must be true. If it be the rule the present case is
clearly within it. This case is also, I agree, within
that which seems to me to be a minor
proposition--namely, the proposition which has
been often acted upon, that there was in a sense,
an invitation of the plaintiff by the defendant, to
use the stage. The appeal must, in my opinion,
be allowed, and judgment must be entered for
the plaintiff.
It follows, as it seems to me, that there must be
some larger proposition which involves and
covers both sets of circumstances. The logic of
inductive reasoning requires that where two
major propositions lead to exactly similar minor
premisses there must be a more remote and
larger premiss which embraces both of the major
propositions. That, in the present consideration,
is, as it seems to me, the same proposition which
will cover the similar legal liability inferred in
the cases of collision and carriage.
COTTON, L.J.
Bowen L.J., concurs in the judgment I am about
to read
In this case the defendant was the ower of a dock
10
for the repair of ships, and provided for use in
the dock the stages necessary to enable the
outside of the ship to be painted while in the
dock, and the stages which were to be used only
in the dock were appliances provided by the
dock owner as appurtenant to the dock and its
use. After the stage was handed over to the
shipowner it no longer remained under the
control of the dock owner. But when ships were
received into the dock for repair and provided
with stages for the work on the ships which was
to be executed there, all those who came to the
vessels for the purpose of painting and otherwise
repairing them were there for business in which
the dock owner was interested, and they, in my
opinion, must be considered as invited by the
dock owner to use the dock and all appliances
provided by the dock owner as incident to the
use of the dock. To these persons, in my opinion,
the dock owner was under an obligation to take
reasonable care that at the time the appliances
provided for immediate use in the dock were
provided by him they were in a fit state to be
used--that is, in such a state as not to expose
those who might use them for the repair of the
ship to any danger or risk not necessarily
incident to the service in which they are
employed. That this obligation exists as regards
articles of which the control remains with the
dock owner was decided in Indermaur v. Dames
and in Smith v. London and St. Katharine Docks
Co. the same principle was acted on. I think that
the same duty must exist as to things supplied by
the dock owner for immediate use in the dock, of
which the control is not retained by the
dockowner, to the extent of using reasonable
care as to the state of the articles when delivered
by him to the ship under repair for immediate
use in relation to the repairs. For any neglect of
those having control of the ship and the
appliances he would not be liable, and to
establish his liability it must be proved that the
defect which caused the accident existed at the
time when the article was supplied by the
dockowner.
Blackmore v. Bristol and Exeter Ry. Co. may be
relied on as at variance with the opinion thus
expressed by me, but I think that the objection is
not well founded. If the plaintiff is to be
considered as a volunteer there would be no
implied request or invitation to him by the
defendant to use the dock and the appliances
provided. But he was there for the purpose of
work, for the due execution of which the
defendant received the ship into his dock, and
the defendant received payment as remuneration
for allowing the work to be done in his dock, and
for providing the necessary appliances for
enabling it to be done. The plaintiff was
therefore engaged in work in the performance of
which the defendant was interested, and he
cannot be looked upon in the light of a
volunteer. Whether the Court was right in
Blackmore's Case [FN45] in treating the plaintiff
as a volunteer may be a question. But as the
ground of the decision is that he was so, that
circumstance prevents the case being an
authority inconsistent in principle with the
conclusion at which I have arrived.
This decides this appeal in favour of the
plaintiff, and I am unwilling to concur with the
Master of the Rolls in laying down unnecessarily
the larger principle which he entertains,
inasmuch as there are many cases in which the
principle was impliedly negatived.
.....
For the reasons stated I agree that the plaintiff
is entitled to judgment, though I do not entirely
concur with the reasoning of the Master of the
Rolls.
11
air, so to speak, will not do.' Pollock, Torts (11th
Ed.) p. 455; . . . Cf. Salmond, Torts (6th Ed.) p.
24. 'Negligence is the absence of care, according
to the circumstances.' Willes, J., in Vaughan v.
Taff Vale Ry. Co., 5 H. & N. 679, 688; . . .
PALSGRAF
v.
LONG ISLAND R. CO.
162 N.E. 99 (N.Y. 1928)
The plaintiff, as she stood upon the platform of
the station, might claim to be protected against
intentional invasion of her bodily security. Such
invasion is not charged. She might claim to be
protected against unintentional invasion by
conduct involving in the thought of reasonable
men an unreasonable hazard that such invasion
would ensue. These, from the point of view of
the law, were the bounds of her immunity, with
perhaps some rare exceptions, survivals for the
most part of ancient forms of liability, where
conduct is held to be at the peril of the actor. . .
. If no hazard was apparent to the eye of
ordinary vigilance, an act innocent and harmless,
at least to outward seeming, with reference to
her, did not take to itself the quality of a tort
because it happened to be a wrong, though
apparently not one involving the risk of bodily
insecurity, with reference to some one else. 'In
every instance, before negligence can be
predicated of a given act, back of the act must be
sought and found a duty to the individual
complaining, the observance of which would
have averted or avoided the injury.' McSherry,
C. J., in West Virginia Central & P. R. Co. v.
State, 96 Md. 652, 666, 54 A. 669, 671 (61 L. R.
A. 574).
. . . . 'The ideas of negligence and duty are
strictly correlative.' Bowen, L. J., in Thomas v.
Quartermaine, 18 Q. B. D. 685, 694. The
plaintiff sues in her own right for a wrong
personal to her, and not as the vicarious
beneficiary of a breach of duty to another.
Court of Appeals of New York.
CARDOZO, C. J.
Plaintiff was standing on a platform of
defendant's railroad after buying a ticket to go to
Rockaway Beach. A train stopped at the station,
bound for another place. Two men ran forward
to catch it. One of the men reached the platform
of the car without mishap, though the train was
already moving. The other man, carrying a
package, jumped aboard the car, but seemed
unsteady as if about to fall. A guard on the car,
who had held the door open, reached forward to
help him in, and another guard on the platform
pushed him from behind. In this act, the
package was dislodged, and fell upon the rails.
It was a package of small size, about fifteen
inches long, and was covered by a newspaper.
In fact it contained fireworks, but there was
nothing in its appearance to give notice of its
contents.
The fireworks when they fell
exploded. The shock of the explosion threw
down some scales at the other end of the
platform many feet away. The scales struck the
plaintiff, causing injuries for which she sues.
The conduct of the defendant's guard, if a wrong
in its relation to the holder of the package, was
not a wrong in its relation to the plaintiff,
standing far away. Relatively to her it was not
negligence at all. Nothing in the situation gave
notice that the falling package had in it the
potency of peril to persons thus removed.
Negligence is not actionable unless it involves
the invasion of a legally protected interest, the
violation of a right. 'Proof of negligence in the
A different conclusion will involve us, and
swiftly too, in a maze of contradictions. A guard
stumbles over a package which has been left
upon a platform. It seems to be a bundle of
12
newspapers. It turns out to be a can of dynamite.
To the eye of ordinary vigilance, the bundle is
abandoned waste, which may be kicked or trod
on with impunity. Is a passenger at the other end
of the platform protected by the law against the
unsuspected hazard concealed beneath the
waste? If not, is the result to be any different, so
far as the distant passenger is concerned, when
the guard stumbles over a valise which a
truckman or a porter has left upon the walk?
danger. Life will have to be made over, and
human nature transformed, before prevision so
extravagant can be accepted as the norm of
conduct, the customary standard to which
behavior must conform.
The argument for the plaintiff is built upon the
shifting meanings of such words as 'wrong' and
'wrongful,' and shares their instability. What the
plaintiff must show is 'a wrong' to herself; i. e.,
a violation of her own right, and not merely a
wrong to some one else, nor conduct 'wrongful'
because unsocial, but not 'a wrong' to any one.
We are told that one who drives at reckless
speed through a crowded city street is guilty of a
negligent act and therefore of a wrongful one,
irrespective of the consequences. Negligent the
act is, and wrongful in the sense that it is
unsocial, but wrongful and unsocial in relation to
other travelers, only because the eye of vigilance
perceives the risk of damage. If the same act
were to be committed on a speedway or a race
course, it would lose its wrongful quality. The
risk reasonably to be perceived defines the duty
to be obeyed, and risk imports relation; it is risk
to another or to others within the range of
apprehension. . . .
The passenger far away, if the victim of a wrong
at all, has a cause of action, not derivative, but
original and primary. His claim to be protected
against invasion of his bodily security is neither
greater nor less because the act resulting in the
invasion is a wrong to another far removed. In
this case, the rights that are said to have been
violated, are not even of the same order. The
man was not injured in his person nor even put
in danger. The purpose of the act, as well as its
effect, was to make his person safe. It there was
a wrong to him at all, which may very well be
doubted it was a wrong to a property interest
only, the safety of his package. Out of this
wrong to property, which threatened injury to
nothing else, there has passed, we are told, to the
plaintiff by derivation or succession a right of
action for the invasion of an interest of another
order, the right to bodily security.
This does not mean, of course, that one who
launches a destructive force is always relieved of
liability, if the force, though known to be
destructive, pursues an unexpected path. 'It was
not necessary that the defendant should have had
notice of the particular method in which an
accident would occur, if the possibility of an
accident was clear to the ordinarily prudent eye.'
Munsey v. Webb, 231 U. S. 150, 156, 34 S. Ct.
44, 45 (58 L. Ed. 162); . . . Some acts, such as
shooting are so imminently dangerous to any one
who may come within reach of the missile
however unexpectedly, as to impose a duty of
prevision not far from that of an insurer. Even
to-day, and much oftener in earlier stages of the
law, one acts sometimes at one's peril. Jeremiah
The diversity of interests emphasizes the futility
of the effort to build the plaintiff's right upon the
basis of a wrong to some one else. The gain is
one of emphasis, for a like result would follow if
the interests were the same. Even then, the orbit
of the danger as disclosed to the eye of
reasonable vigilance would be the orbit of the
duty. One who jostles one's neighbor in a crowd
does not invade the rights of others standing at
the outer fringe when the unintended contact
casts a bomb upon the ground. The wrongdoer
as to them is the man who carries the bomb, not
the one who explodes it without suspicion of the
13
Smith, Tort and Absolute Liability, 30 H. L. Rv.
328; Street, Foundations of Legal Liability, vol.
1, pp. 77, 78. Under this head, it may be, fall
certain cases of what is known as transferred
intent, an act willfully dangerous to A resulting
by misadventure in injury to . . . These cases
aside, wrong is defined in terms of the natural or
probable, at least when unintentional. . . .
still the keynote of the wrong.
Confirmation of this view will be found in the
history and development of the action on the
case. Negligence as a basis of civil liability was
unknown to mediaeval law. 8 Holdsworth,
History of English Law, p. 449; Street,
Foundations of Legal Liability, vol. 1, pp. 189,
190. For damage to the person, the sole remedy
was trespass, and trespass did not lie in the
absence of aggression, and that direct and
personal. Holdsworth, op. cit. p. 453; Street, op.
cit. vol. 3, pp. 258, 260, vol. 1, pp. 71, 74.
Liability for other damage, as where a servant
without orders from the master does or omits
something to the damage of another, is a plant of
later growth. Holdsworth, op. cit. 450, 457;
Wigmore, Responsibility for Tortious Acts, vol.
3, Essays in Anglo-American Legal History,
520, 523, 526, 533. When it emerged out of the
legal soil, it was thought of as a variant of
trespass, an offshoot of the parent stock. This
appears in the form of action, which was known
as trespass on the case. Holdsworth, op. cit. p.
449; cf. Scott v. Shepard, 2 Wm. Black. 892;
Green, Rationale of Proximate Cause, p. 19.
The victim does not sue derivatively, or by right
of subrogation, to vindicate an interest invaded
in the person of another. Thus to view his cause
of action is to ignore the fundamental difference
between tort and crime. Holland, Jurisprudence
(12th Ed.) p. 328. He sues for breach of a duty
owing to himself.
The range of reasonable apprehension is at times
a question for the court, and at times, if varying
inferences are possible, a question for the jury.
Here, by concession, there was nothing in the
situation to suggest to the most cautious mind
that the parcel wrapped in newspaper would
spread wreckage through the station. If the
guard had thrown it down knowingly and
willfully, he would not have threatened the
plaintiff's safety, so far as appearances could
warn him. His conduct would not have involved,
even then, an unreasonable probability of
invasion of her bodily security. Liability can be
no greater where the act is inadvertent.
Negligence, like risk, is thus a term of relation.
Negligence in the abstract, apart from things
related, is surely not a tort, if indeed it is
understandable at all. Bowen, L. J., in Thomas
v. Quartermaine, 18 Q. B. D. 685, 694.
Negligence is not a tort unless it results in the
commission of a wrong, and the commission of
a wrong imports the violation of a right, in this
case, we are told, the right to be protected
against interference with one's bodily security.
But bodily security is protected, not against all
forms of interference or aggression, but only
against some. One who seeks redress at law
does not make out a cause of action by showing
without more that there has been damage to his
person. If the harm was not willful, he must
show that the act as to him had possibilities of
danger so many and apparent as to entitle him to
be protected against the doing of it though the
harm was unintended. Affront to personality is
The law of causation, remote or proximate, is
thus foreign to the case before us. The question
of liability is always anterior to the question of
the measure of the consequences that go with
liability. If there is no tort to be redressed, there
is no occasion to consider what damage might be
recovered if there were a finding of a tort. We
may assume, without deciding, that negligence,
not at large or in the abstract, but in relation to
the plaintiff, would entail liability for any and all
14
consequences, however novel or extraordinary.
. . . . There is room for argument that a
distinction is to be drawn according to the
diversity of interests invaded by the act, as where
conduct negligent in that it threatens an
insignificant invasion of an interest in property
results in an unforeseeable invasion of an
interest of another order, as, e. g., one of bodily
security. Perhaps other distinctions may be
necessary. We do not go into the question now.
The consequences to be followed must first be
rooted in a wrong.
but to all who might have been there--a wrong to
the public at large. Such is the language of the
street. Such the language of the courts when
speaking of contributory negligence. Such again
and again their language in speaking of the duty
of some defendant and discussing proximate
cause in cases where such a discussion is wholly
irrelevant on any other theory. Perry v.
Rochester Line Co., 219 N. Y. 60, 113 N. E.
529, L. R. A. 1917B, 1058. As was said by Mr.
Justice Holmes many years ago:
'The measure of the defendant's duty in
determining whether a wrong has been
committed is one thing, the measure of
liability when a wrong has been committed is
another.' Spade v. Lynn & B. R. Co., 172
Mass. 488, 491, 52 N. E. 747, 748 (43 L. R. A.
832, 70 Am. St. Rep. 298).
The judgment of the Appellate Division and that
of the Trial Term should be reversed, and the
complaint dismissed, with costs in all courts.
ANDREWS, J. (dissenting).
Due care is a duty imposed on each one of us to
protect society from unnecessary danger, not to
protect A, B, or C alone.
.....
Assisting a passenger to board a train, the
defendant's servant negligently knocked a
package from his arms. It fell between the
platform and the cars. Of its contents the servant
knew and could know nothing. A violent
explosion followed. The concussion broke some
scales standing a considerable distance away. In
falling, they injured the plaintiff, an intending
passenger.
.....
The proposition is this: Every one owes to the
world at large the duty of refraining from those
acts that may unreasonably threaten the safety of
others. Such an act occurs. Not only is he
wronged to whom harm, might reasonably be
expected to result, but he also who is in fact
injured, even if he be outside what would
generally be thought the danger zone. There
needs be duty due the one complaining, but this
is not a duty to a particular individual because as
to him harm might be expected. Harm to some
one being the natural result of the act, not only
that one alone, but all those in fact injured may
complain. We have never, I think, held
otherwise. Indeed in the Di Caprio Case we said
that a breach of a general ordinance defining the
degree of care to be exercised in one's calling is
evidence of negligence as to every one. We did
not limit this statement to those who might be
expected to be exposed to danger. Unreasonable
But we are told that 'there is no negligence
unless there is in the particular case a legal duty
to take care, and this duty must be not which is
owed to the plaintiff himself and not merely to
others.' Salmond Torts (6th Ed.) 24. This I
think too narrow a conception. Where there is
the unreasonable act, and some right that may be
affected there is negligence whether damage
does or does not result. That is immaterial.
Should we drive down Broadway at a reckless
speed, we are negligent whether we strike an
approaching car or miss it by an inch. The act
itself is wrongful. If is a wrong not only to those
who happen to be within the radius of danger,
15
risk being taken, its consequences are not
confined to those who might probably be hurt.
16
Subtopic THREE
SOME SPECIAL DUTy
CONSIDERATIONS
17
Moeller was not a member of the church. Ms.
Drake parked her car in the church parking lot.
As she exited Ms. Drake's car, plaintiff tripped
and fell over a tire stop, fracturing her left arm.
Plaintiff subsequently sued the defendant
church, asserting that defendant negligently
placed the concrete tire stops and failed to
provide adequate lighting in the parking lot.
STITT
v.
HOLLAND ABUNDANT LIFE
FELLOWSHIP
614 N.W. 2d 88 (Mi. 2000)
Supreme Court of Michigan
YOUNG, J.
Before trial, the church twice filed motions for
summary disposition. The trial court denied
both motions, but determined that Ms. Moeller
was a licensee and not an invitee at the time of
the accident. The case proceeded to trial, at
which time the judge instructed the jury on the
duties owed to licensees. [FN3] At the close of
trial, the jury returned a verdict in favor of the
defendant. The court subsequently entered a
judgment of no cause on the verdict.
In this premises liability case the plaintiff, Violet
Moeller, was injured when she tripped over a
concrete tire stop in defendant church's parking
lot. [FN1] Plaintiff was visiting the church to
attend bible study. Plaintiff sued the church,
alleging that the defendant negligently placed the
tire stops and failed to provide adequate lighting
in the parking lot.
At trial, the jury was instructed on the
obligations property owners owe to licensees.
The jury returned a verdict in favor of the
church. The Court of Appeals reversed and
remanded the case for a new trial after
determining that the trial court erred by
instructing the jury on the obligations owed to
licensees rather than "public invitees" as defined
in 2 Restatement Torts, 2d, § 332, p. 176.
FN3. The trial court gave the following
instructions:
The possessor of land or premises is
liable for physical harm caused to the
licensee by a condition on the premises
if, but only if, (A) the possessor knew or
should've known of the condition, and
should have realized that it involved an
unreasonable risk of harm to the
licensee, and should have expected that
she would not discover or realize the
danger and (B) the possessor failed to
exercise reasonable care to make the
conditions safe or to warn the licensee of
the condition and the risk involved, and
(C) the licensee did not know or have
reason to know of the condition and risk
involved.
We granted leave in this case to determine the
proper standard of care owed to individuals on
church property for noncommercial purposes.
We hold that the trial court correctly instructed
the jury that such individuals are licensees and
not invitees. Accordingly, we reverse the Court
of Appeals decision and reinstate the trial court
judgment in favor of the church.
I
Factual and Procedural Background
Plaintiff appealed, contending that the trial court
erred in determining that she was a licensee at
the time of her accident. The Court of Appeals
held that the plaintiff was a "public invitee" as
defined in 2 Restatement Torts, 2d, § 332, and
On the evening of November 22, 1989, Violet
Moeller accompanied her friend Pat Drake to
defendant's church to attend bible study. Ms.
18
not a licensee. The Court of Appeals
acknowledged that this Court has never
explicitly adopted the Restatement provision.
However, on the basis of its reading of Preston
v. Sleziak, 383 Mich. 442, 175 N.W.2d 759
(1970), the Court of Appeals concluded that this
provision applies in Michigan and that the trial
court improperly instructed the jury.
Accordingly, the Court of Appeals reversed the
trial court judgment and remanded the case for a
new trial. We granted defendant's application
for leave to appeal. 461 Mich. 861, 602 N.W.2d
577 (1999).
know of, if the licensee does not know or have
reason to know of the dangers involved. The
landowner owes no duty of inspection or
affirmative care to make the premises safe for
the licensee's visit. Id. Typically, social guests
are licensees who assume the ordinary risks
associated with their visit. Preston, supra at
451, 175 N.W.2d 759.
The final category is invitees. An "invitee" is "a
person who enters upon the land of another upon
an invitation which carries with it an implied
representation, assurance, or understanding that
reasonable care has been used to prepare the
premises, and make [it] safe for [the invitee's]
reception." Wymer, supra at 71, n. 1, 412
N.W.2d 213. The landowner has a duty of care,
not only to warn the invitee of any known
dangers, but the additional obligation to also
make the premises safe, which requires the
landowner to inspect the premises and,
depending upon the circumstances, make any
necessary repairs or warn of any discovered
hazards. Id. Thus, an invitee is entitled to the
highest level of protection under premises
liability law. Quinlivan v. Great Atlantic &
Pacific Tea Co., Inc., 395 Mich. 244, 256, 235
N.W.2d 732 (1975).
II
Analysis
A. The Common-Law Classifications
Historically, Michigan has recognized three
common-law categories for persons who enter
upon the land or premises of another: (1)
trespasser, (2) licensee, or (3) invitee. Wymer v.
Holmes, 429 Mich. 66, 71, n. 1, 412 N.W.2d 213
(1987). Michigan has not abandoned these
common-law classifications. Reetz v. Tipit, Inc.,
151 Mich.App. 150, 153, 390 N.W.2d 653
(1986). Each of these categories corresponds to
a different standard of care that is owed to those
injured on the owner's premises.
Thus, a
landowner's duty to a visitor depends on that
visitor's status. Wymer, supra at 71, n. 1, 412
N.W.2d 213.
A possessor of land is subject to liability for
physical harm caused to his invitees by a
condition on the land if the owner: (a) knows of,
or by the exercise of reasonable care would
discover, the condition and should realize that
the condition involves an unreasonable risk of
harm to such invitees; (b) should expect that
invitees will not discover or realize the danger,
or will fail to protect themselves against it; and
(c) fails to exercise reasonable care to protect
invitees against the danger. Id. at 258, 235
N.W.2d 732, citing Restatement, § 343.
A "trespasser" is a person who enters upon
another's land, without the landowner's consent.
The landowner owes no duty to the trespasser
except to refrain from injuring him by "wilful
and wanton" misconduct. Id.
A "licensee" is a person who is privileged to
enter the land of another by virtue of the
possessor's consent. Id. A landowner owes a
licensee a duty only to warn the licensee of any
hidden dangers the owner knows or has reason to
The Court of Appeals correctly recognized that
invitee status is commonly afforded to persons
19
Preston, supra at 448, 175 N.W.2d 759, quoting
Cooley on Torts, appears to recognize the
commercial purpose requirement associated with
invitee status:
An invitation may be inferred when there
is a common interest or mutual
advantage, a license when the object is
the mere pleasure or benefit of the
person using it. "To come under an
implied invitation, as distinguished from
a mere license, the visitor must come for
a purpose connected with the business
with which the occupant of the premises
is engaged, or which he permits to be
carried on there. There must be some
mutuality of interest in the subject to
which the visitor's business relates,
although the particular business which is
the object of the visit may not be for the
benefit of the occupant. The distinction
between a visitor who is a mere licensee
and one who is on the premises by
invitation turns largely on the nature of
the business that brings him there, rather
than on the words or acts of the owner
which precede his coming." [3 Cooley,
Torts (4th ed.), § 440, pp. 193-194
(emphasis added).]
entering upon the property of another for
business purposes. See, e.g., Nezworski, supra;
Pelton v. Schmidt, 104 Mich. 345, 62 N.W. 552
(1895). In this case, we are called upon to
determine whether invitee status should extend
to individuals entering upon church property for
non commercial purposes. Because invitee
status necessarily turns on the existence of an
"invitation," we must examine our common law
in order to ascertain the meaning of that term.
B. The Meaning of Invitation in Michigan's
Common Law
Unfortunately, our prior decisions have proven
to be less than clear in defining the precise
circumstances under which a sufficient invitation
has been extended to a visitor to confer "invitee"
status.
On the one hand, several of our
decisions appear to support the requirement that
the landowner's premises be held open for a
commercial business purpose. Indeed, several
panels of our Court of Appeals have interpreted
our decisions as supporting the requirement of a
business purpose. The "commercial purpose"
distinction is sufficiently
recognized in
Michigan case law that there are even secondary
authorities that include Michigan among those
jurisdictions conferring invitee status only on
business visitors. See, e.g., 95 A.L.R.2d 992, §
4, p. 1014.
Cooley's acknowledgment that an invitee's status
is dependent upon a visit associated with a
"commercial purpose" and "mutuality of
interest" concerning the reason for the visit
demonstrate the extent to which Michigan has
historically, if not uniformly, recognized a
commercial business purpose as a precondition
for establishing invitee status.
In contrast with the line of cases supporting a
commercial purpose requirement, some of our
earlier decisions are replete with broad language
suggestive of the Restatement's "public invitee"
definition, although the precise contours of the
definition are difficult to discern.
Despite the divergence of our cases concerning
the elements necessary to confer invitee status,
one thing has been consistent:
to our
knowledge, this Court has never squarely
addressed the question whether a mere "public
invitee" such as a churchgoer is entitled to
Finally, there is Preston, supra which is
internally inconsistent on this point. Preston
was interpreted by the Court of Appeals as
having implicitly adopted the Restatement
definition of "public invitee." At the same time,
20
invitee status. While plaintiff suggests that our
cases have already recognized invitee liability
for churches, a careful review of these cases
shows that this is a less than accurate analysis.
To the contrary, Michigan cases that have
conferred invitee status upon an individual
injured on church premises reveals that each has
involved a plaintiff who was on the church
premises for a commercial business purpose.
For example, in Bruce v. Central Methodist
Episcopal Church, 147 Mich. 230, 110 N.W.
951 (1907), the plaintiff was allowed to recover
from the defendant church for injuries he
sustained while painting the church building.
The plaintiff was working for a contractor,
painting the ceiling of the church when the
scaffolding on which he was standing broke.
As these cases illustrate, invitee status has
traditionally been conferred in our cases only on
persons injured on church premises who were
there for a commercial purpose.
C. The Restatement
We begin by noting that a large number of
jurisdictions have adopted § 332 of the
Restatement:
(1) An invitee is either a public invitee or a
business visitor.
(2) A public invitee is a person who is invited
to enter or remain on land as a member of the
public for a purpose for which the land is held
open to the public.
(3) A business visitor is a person who is
invited to enter or remain on land for a purpose
directly or indirectly connected with business
dealings with the possessor of the land.
Almost fifty years later, a defendant church was
held liable in Manning v. Bishop of Marquette,
345 Mich. 130, 76 N.W.2d 75 (1956). In
Manning, the plaintiff fell and was injured on
church property as she was leaving a bingo
game. The defendant argued that the plaintiff's
claim was barred because she was at the church
for an illegal purpose and should not use her
illegal conduct as a foundation for her claim that
she was on the premises as an invitee. Id. at 137,
76 N.W.2d 75. The Court refused to entertain
any defenses based on illegality or charitable
immunity and held that the plaintiff was an
invitee.
Subsection (2) of § 332 of the Restatement
creates an invitee status that does not depend on
a commercial purpose. In this case, the Court of
Appeals interpreted Preston, supra, as having
implicitly adopted the Restatement definition of
"public invitee."
We certainly agree that
Preston relied on § 332 of the Restatement.
However, the issue whether to adopt the
Restatement definition of "public invitee" was
not before this Court in Preston.
In Preston, the plaintiffs were social guests who
had been invited to the defendant's cottage for
the weekend. In order to access the cottage, the
plaintiffs entered a lift. The lift consisted of a
car that was controlled by cable and an electric
winch. After the plaintiffs entered the lift, a
shaft broke and the car crashed, injuring the
plaintiffs. Id. at 445, 175 N.W.2d 759. The
plaintiffs filed suit against the defendants. The
jury returned a verdict in favor of the defendants.
The Court of Appeals erroneously determined
that the plaintiffs were invitees merely because
Later, in Kendzorek v. Guardian Angel Catholic
Parish, 178 Mich.App. 562, 444 N.W.2d 213
(1989), overruled on other grounds in Orel v.
Uni-Rak Sales Co., 454 Mich. 564, 563 N.W.2d
241 (1997), a child was injured on a swing at a
carnival held on the church grounds.
The
carnival was a church fund-raiser. The child's
mother brought suit against the church. The
Court of Appeals held that, at the time the child
was injured, she was an invitee.
21
they had been "invited" onto the premises. That
Court reversed and remanded the case for a new
trial. Id. This Court held that the Court of
Appeals committed error requiring reversal
because the trial judge properly instructed the
jury on the duty owed by a host to his social
guests, licensees. Id. at 454, 175 N.W.2d 759.
As stated by the trial judge, a host has no duty to
reconstruct his premises or make his home more
convenient or more safe for those accepting his
hospitality. The guest assumes the ordinary
risks that come with the premises. Id. at 446,
175 N.W.2d 759.
we conclude that the prospect of pecuniary gain
is a sort of quid pro quo for the higher duty of
care owed to invitees. Thus, we hold that the
owner's reason for inviting persons onto the
premises is the primary consideration when
determining the visitor's status: In order to
establish invitee status, a plaintiff must show
that the premises were held open for a
commercial purpose.
With regard to church visitors, we agree with the
court in McNulty v. Hurley, 97 So.2d 185 (Fla.,
1957), that such persons are licensees. [FN10]
In McNulty, a churchgoer was injured when, as
she was leaving the church, she was pushed to
the ground by a crowd of people. The lower
court granted the defendant church's motion to
dismiss on grounds that the plaintiff failed to
state a cause of action.
The defendant
contended that one entering church premises for
the purpose of attending religious services is a
mere licensee. Thus, the only duty of the
church was to refrain from wanton negligence or
wilful misconduct and to refrain from
intentionally exposing her to danger. Id. at 187.
The plaintiff, on the other hand, argued that she
was on the church premises by invitation and
that most religions urge members and others to
enter their churches and hold their doors open as
a standing invitation. Id. The Florida Supreme
Court disagreed, stating:
There was no contention in Preston that the
plaintiffs were "public invitees," because that
case involved only the duty owed to social
guests. Thus, the issue whether to adopt the
Restatement definition of "public invitee" was
not before this Court in Preston and there is
room for doubt regarding whether Preston can
properly be regarded as binding precedent on
this point. However, to the extent Preston
purported to adopt the Restatement definition,
and this could be properly considered a binding
holding, we overrule Preston. Moreover, as
explained below, we decline to adopt § 332 of
the Restatement here.
D. Business Purpose As A
Precondition of Invitee Status
Given the divergence of our cases on what
circumstances create invitee status, we must
provide some form of reconciliation in this case.
In harmonizing our cases, we conclude that the
imposition of additional expense and effort by
the landowner, requiring the landowner to
inspect the premises and make them safe for
visitors, must be directly tied to the owner's
commercial business interests. It is the owner's
desire to foster a commercial advantage by
inviting persons to visit the premises that
justifies imposition of a higher duty. In short,
FN10. The Florida Supreme Court has
since moved away from McNulty and has
adopted § 332 of the Restatement. See
Post v. Lunney, 261 So.2d 146 (Fla.,
1972). However, we continue to find
McNulty's reasoning persuasive.
[A]n invitation to enter and worship, whether
it be either express or implied, does not
constitute one who accepts the invitation an
invitee in the legal sense. In order for such
relationship to arise the person entering onto
22
the premises, i.e., the invitee, must have done
so for purposes which would have benefited
the owner or occupant of the premises, i.e., the
invitor, or have been of mutual benefit to the
invitee and the invitor. And as we view it this
benefit must be of a material or commercial
rather than of a spiritual, religious, or social
nature. [Id. at 188.]
... that one who attends a religious edifice for
the purpose of attending a religious service, as
did the plaintiff in this case, does so "for his
own convenience, pleasure or benefit" and is at
best a licensee. [Id. at 188-189.]
We agree that whether the plaintiff in the instant
case previously gave an offering to the church
has no bearing on whether she was a licensee or
an invitee. Absent a showing that the church's
invitation to attend its services was for an
essential commercial purpose, Ms. Moeller
should be considered a licensee and not an
invitee. A person who attends church as a guest
enjoys the "unrecompensed hospitality" provided
by the church in the same way that a person
entering the home of a friend would. Hambright
v. First Baptist Church, 638 So.2d 865, 868
(Ala., 1994). We conclude that church visitors
who are attending church for religious worship
are more like social guests (licensees) than
business visitors (invitees). [FN11]
Thus, as we do, the McNulty court considered a
business purpose or a business or commercial
benefit to the landowner as a necessary
requirement in order for a visitor to be deemed
an invitee. The McNulty court rejected the
argument that church members confer a benefit
to the church by supporting the church, stating:
It cannot be successfully or logically argued
that a person enters a place of worship, call it
by any name, and participates in worship and
prayer to the God or Supreme Being of his
choice for the benefit of the body or
organization which owns the church, the
religious or lay readers who conduct the
services, or the God or Supreme Being whom
he worships and asks for guidance, help or
forgiveness.
One of the concepts of all
religious beliefs known to us is that
participation in religious activities is for the
benefit of the mortals who participate therein.
[Id.]
FN11. The solicitation of entirely
voluntary donations by a nonprofit
organization is plainly not a commercial
activity.
Accordingly, a church
providing an opportunity for voluntary
donations during a religious service that
are in no way required to attend the
service, i.e., passing a collection plate,
does not transform one who attends the
church service and elects to make a
donation from a licensee into an invitee.
Indeed, we imagine that many religious
individuals would find it offensive to
have their voluntary donations to a
church regarded as part of a business or
commercial transaction, rather than as a
gift intended to aid in various religious
good works.
The McNulty court also addressed the issue
whether financial contributions at a religious
service provided a sufficient basis for invitee
status. We find this analysis instructive because
the plaintiff in the case at bar similarly alleges
that on prior visits to the church she made
financial contributions to the church to such an
extent that she should be considered an invitee.
The McNulty court stated:
[N]or would it matter if the plaintiff had
alleged that she made a contribution when the
collection plate was passed, for this would not
have changed her status.... It seems clear to us
IV
Conclusion
23
We recognize that a majority of jurisdictions
considering the issue have adopted the public
invitee definition set forth in § 332 of the
Restatement. However, in exercising our
common-law authority, our role is not simply to
"count heads" but to determine which commonlaw rules best serve the interests of Michigan
citizens. We believe that Michigan is better
served by recognizing that invitee status must be
founded on a commercial purpose for visiting
the owner's premises.
protection to the public without unduly
burdening property owners.
I agree with the Indiana Court of Appeals when
it stated:
The public invitee test set out in Restatement
section 332(2) would require that the occupant
open his premises to the public or to some
broad segment of it. Thus, it would not
extend invitee status to social guests. When
premises are opened to the public, their use
and condition begin to affect the public
interest, so that it is reasonable for courts to
impose upon the occupant a standard of
reasonable care toward those members of the
public who enter for the purpose for which
they were invited. Prosser, [Business visitors
and invitees, 26 Minn. L. R. 573, 587 (1942) ].
The occupant does not lose control of his
property; he can withdraw the invitation or
restrict entry as he sees fit. Id. Neither does
he owe a duty of reasonable care to the public
in general. The test would further require that
the visitor enter the premises for the particular
purpose for which the occupant has
encouraged the public to do so. It is this latter
fact which raises the inference that the
occupant will use reasonable care to keep the
premises safe for the visitor.
For the above stated reasons, we hold that
persons on church premises for other than
commercial purposes are licensees and not
invitees. Accordingly, we reverse the decision
of the Court of Appeals and reinstate the trial
court's decision.
MARILYN J. KELLY, J. (dissenting ).
I concur with the majority's chronicling of the
facts and its statement of the applicable standard
of review. I agree, also, with its recitation of the
three common-law categories for persons who
enter the land or premises of another. However,
I dissent from the remainder of the majority's
opinion.
.....
Michigan's definition of a common-law invitee
is identical to that contained in § 332, and § 332
has been, at least implicitly, adopted by Preston.
However, even if I were to agree with the
majority that the Restatement rule is not the law,
public policy supports adoption of the
Restatement view at this time. As previously
stated, our common law is a flexible body of
principles and is adaptable to changes in public
policy. Beech Grove, supra. The application of
the public invitee provision to this case is
entirely consistent with that view.
It is
responsive to the public interest that is
implicated when premises are opened to the
public. Furthermore, § 332 provides greater
***
Given the public interest involved and our
recognition of the implication of safety which
arises when the public is encouraged to enter
premises for a particular purpose, we conclude
that the public invitee test is a proper guide for
determining invitee status. [Fleischer v.
Hebrew Orthodox Congregation, 504 N.E.2d
320, 323 (Ind.App., 1987).]
CONCLUSION
The public invitee provision of § 332
accurately reflects the common law of
24
Michigan. It was adopted by this Court in
Preston and should be applied here.
Furthermore, it reflects the sound public policy
of protecting members of the public when
premises are open to them.
foreseeable. The Court of Appeal dismissed an
appeal by the plaintiff, holding that, although it
was reasonably foreseeable that injury by shock
would be caused to a wife and mother in the
position of the plaintiff, it was settled law that
the duty of care that was owed by the driver of a
vehicle was limited to persons or owners of
property at or near the scene of an accident and
directly affected by his negligence, that
considerations of policy limited the duty of care
in that way and did not require it to be extended
and that, accordingly, since the plaintiff had been
two miles from the accident and had not learned
of it or seen its consequences until two hours
later, she was not entitled to recover damages for
nervous shock.]
McLOUGLIN
v.
O'BRIAN
[1983] A.C. 410
House of Lords
[Mrs. McLoughlin is the plaintiff. Her husband
and three children were involved in a road
accident at about 4 p.m. on October 19, 1973,
when their car was in collision with a lorry
driven by the first defendant and owned by the
second defendants that had itself just collided
with an articulated lorry driven by the third
defendant and owned by the fourth defendants.
The plaintiff, who was at home two miles away
at the time, was told of the accident at about 6
p.m. by a neighbour, who took her to hospital to
see her family. There she learned that her
youngest daughter had been killed and saw her
husband and the other children and witnessed the
nature and extent of their injuries. She alleged
that the impact of what she heard and saw
caused her severe shock resulting in psychiatric
illness.
LORD WILBERFORCE.
.....
The appellant [i.e., Ms. McLoughlin, the
plaintiff] now appeals to this House. The critical
question to be decided is whether a person in the
position of the appellant, i.e. one who was not
present at the scene of grievous injuries to her
family but who comes upon those injuries at an
interval of time and space, can recover damages
for nervous shock.
.....
To argue from one factual situation to another
and to decide by analogy is a natural tendency of
the human and the legal mind. But the lawyer
still has to inquire whether, in so doing, he has
crossed some critical line behind which he ought
to stop. That is said to be the present case. The
reasoning by which the Lords Justices decided
not to grant relief to the plaintiff is instructive.
Both Stephenson L.J. and Griffiths L.J. accepted
that the "shock " to the plaintiff was foreseeable;
but from this, at least in presentation, they
diverge. Stephenson L.J. considered that the
defendants owed a duty of care to the plaintiff,
but that for reasons of policy the law should stop
In 1976, she began an action against the
defendants for damages for personal injuries
pleaded as shock and injury to health resulting in
depression and change of personality affecting
her abilities as a wife and mother. The
defendants admitted liability for the death of her
daughter and the injuries suffered by her family
but denied that the shock and injury to her was
due to their negligence. At the trial, Boreham J.
held that the defendants owed no duty of care to
the plaintiff because the possibility of her
suffering injury by nervous shock, in the
circumstances, had not been reasonably
25
short of giving her damages: it should limit relief
to those on or near the highway at or near the
time of the accident caused by the defendants'
negligence. He was influenced by the fact that
the courts of this country, and of other common
law jurisdictions, had stopped at this point: it
was indicated by the barrier of commercial sense
and practical convenience. Griffiths L.J. took the
view that although the injury to the plaintiff was
foreseeable, there was no duty of care. The duty
of care of drivers of motor vehicles was,
according to decided cases, limited to persons
and owners of property on the road or near to it
who might be directly affected. The line should
be drawn at this point. It was not even in the
interest of those suffering from shock as a class
to extend the scope of the defendants' liability: to
do so would quite likely delay their recovery by
immersing them in the anxiety of litigation.
This is saying that foreseeability must be
accompanied and limited by the law's judgment
as to persons who ought, according to its
standards of value or justice, to have been in
contemplation. Foreseeability, which involves a
hypothetical person, looking with hindsight at an
event which has occurred, is a formula adopted
by English law, not merely for defining, but also
for limiting, the persons to whom duty may be
owed, and the consequences for which an actor
may be held responsible. It is not merely an issue
of fact to be left to be found as such. When it is
said to result in a duty of care being owed to a
person or a class, the statement that there is a
"duty of care " denotes a conclusion into the
forming of which considerations of policy have
entered. That foreseeability does not of itself,
and automatically, lead to a duty of care is, I
think, clear.
.....
I am impressed by both of these arguments,
which I have only briefly summarised. Though
differing in expression, in the end, in my
opinion, the two presentations rest upon a
common principle, namely that, at the margin,
the boundaries of a man's responsibility for acts
of negligence have to be fixed as a matter of
policy. Whatever is the correct jurisprudential
analysis, it does not make any essential
difference whether one says, with Stephenson
L.J., that there is a duty but, as a matter of
policy, the consequences of breach of it ought to
be limited at a certain point, or whether, with
Griffiths L.J., one says that the fact that
consequences may be foreseeable does not
automatically impose a duty of care, does not do
so in fact where policy indicates the contrary.
This is an approach which one can see very
clearly from the way in which Lord Atkin stated
the neighbour principle in Donoghue v.
Stevenson [1932] A.C. 562, 580: "persons who
are so closely and directly affected by my act
that I ought reasonably to have them in
contemplation as being so affected. ..."
We must then consider the policy arguments. In
doing so we must bear in mind that cases of
"nervous shock," and the possibility of claiming
damages for it, are not necessarily confined to
those arising out of accidents on public roads. To
state, therefore, a rule that recoverable damages
must be confined to persons on or near the
highway is to state not a principle in itself, but
only an example of a more general rule that
recoverable damages must be confined to those
within sight and sound of an event caused by
negligence or, at least, to those in close, or very
close, proximity to such a situation.
The policy arguments against a wider extension
can be stated under four heads.
First, it may be said that such extension may lead
to a proliferation of claims, and possibly
fraudulent claims, to the establishment of an
industry of lawyers and psychiatrists who will
formulate a claim for nervous shock damages,
including what in America is called the
26
customary miscarriage, for all, or many, road
accidents and industrial accidents.
that fears of a flood of litigation may be
exaggerated - experience in other fields suggests
that such fears usually are. If some increase does
occur, that may only reveal the existence of a
genuine social need: that legislation has been
found necessary in Australia may indicate the
same thing.
Secondly, it may be claimed that an extension of
liability would be unfair to defendants, as
imposing damages out of proportion to the
negligent conduct complained of. In so far as
such defendants are insured, a large additional
burden will be placed on insurers, and ultimately
upon the class of persons insured - road users or
employers.
But, these discounts accepted, there remains, in
my opinion, just because "shock" in its nature is
capable of affecting so wide a range of people, a
real need for the law to place some limitation
upon the extent of admissible claims. It is
necessary to consider three elements inherent in
any claim: the class of persons whose claims
should be recognised; the proximity of such
persons to the accident; and the means by which
the shock is caused. As regards the class of
persons, the possible range is between the
closest of family ties - of parent and child, or
husband and wife - and the ordinary bystander.
Existing law recognises the claims of the first: it
denies that of the second, either on the basis that
such persons must be assumed to be possessed
of fortitude sufficient to enable them to endure
the calamities of modern life, or that defendants
cannot be expected to compensate the world at
large. In my opinion, these positions are
justifiable, and since the present case falls within
the first class, it is strictly unnecessary to say
more. I think, however, that it should follow that
other cases involving less close relationships
must be very carefully scrutinised. I cannot say
that they should never be admitted. The closer
the tie (not merely in relationship, but in care)
the greater the claim for consideration. The
claim, in any case, has to be judged in the light
of the other factors, such as proximity to the
scene in time and place, and the nature of the
accident.
Thirdly, to extend liability beyond the most
direct and plain cases would greatly increase
evidentiary difficulties and tend to lengthen
litigation.
Fourthly, it may be said - and the Court of
Appeal agreed with this - that an extension of the
scope of liability ought only to be made by the
legislature, after careful research. This is the
course which has been taken in New South
Wales and the Australian Capital Territory.
The whole argument has been well summed up
by Dean Prosser (Prosser, Torts, 4th ed. (1971),
p. 256):
"The reluctance of the courts to enter this field
even where the mental injury is clearly
foreseeable, and the frequent mention of the
difficulties of proof, the facility of fraud, and the
problem of finding a place to stop and draw the
line, suggest that here it is the nature of the
interest invaded and the type of damage which is
the real obstacle."
Since he wrote, the type of damage has, in this
country at least, become more familiar and less
deterrent to recovery. and some of the arguments
are susceptible of answer. Fraudulent claims can
be contained by the courts, who, also, can cope
with evidentiary difficulties. The scarcity of
cases which have occurred in the past, and the
modest sums recovered, give some indication
As regards proximity to the accident, it is
obvious that this must be close in both time and
space. It is, after all, the fact and consequence of
27
the defendant's negligence that must be proved
to have caused the "nervous shock. " Experience
has shown that to insist on direct and immediate
sight or hearing would be impractical and unjust
and that under what may be called the
"aftermath" doctrine one who, from close
proximity, comes very soon upon the scene
should not be excluded. In my opinion, the result
in Benson v. Lee [1972] V.R. 879 was correct
and indeed inescapable. It was based, soundly,
upon
"direct perception of some of the events which
go to make up the accident as an entire event,
and this includes ... the immediate aftermath ..."
(p. 880.)
The High Court's majority decision in Chester v.
Waverley Corporation (1939) 62 C.L.R. 1,
where a child's body was found floating in a
trench after a prolonged search, may perhaps be
placed on the other side of a recognisable line
(Evatt J. in a powerful dissent placed it on the
same side), but, in addition, I find the conclusion
of Lush J. to reflect developments in the law.
party. In Hambrook v. Stokes Brothers [1925] 1
K.B. 141, indeed, it was said that liability would
not arise in such a case and this is surely right. It
was so decided in Abramzik v. Brenner (1967)
65 D.L.R. (2d) 651. The shock must come
through sight or hearing of the event or of its
immediate aftermath. Whether some equivalent
of sight or hearing, e.g. through simultaneous
television, would suffice may have to be
considered.
Finally, and by way of reinforcement of
"aftermath" cases, I would accept, by analogy
with "rescue" situations, that a person of whom
it could be said that one could expect nothing
else than that he or she would come immediately
to the scene - normally a parent or a spouse could be regarded as being within the scope of
foresight and duty. Where there is not immediate
presence, account must be taken of the
possibility of alterations in the circumstances,
for which the defendant should not be
responsible.
LORD EDMUND-DAVIES.
speech of Lord Wilberforce.)
My Lords, I believe that these indications,
imperfectly sketched, and certainly to be applied
with common sense to individual situations in
their entirety, represent either the existing law,
or the existing law with only such circumstantial
extension as the common law process may
legitimately make. They do not introduce a new
principle. Nor do I see any reason why the law
should retreat behind the lines already drawn. I
find on this appeal that the appellant's case falls
within the boundaries of the law so drawn. I
would allow her appeal.
(Agreed with
LORD RUSSELL OF KILLOWEN. (Would
allow Mrs. McLoughlin’s appeal.)
LORD SCARMAN. (Agreed with speech of
Lord Bridge of Harwick.)
LORD BRIDGE OF HARWICH.
......
The question, then, for your Lordships' decision
is whether the law, as a matter of policy, draws
a line which exempts from liability a defendant
whose negligent act or omission was actually
and foreseeably the cause of the plaintiff's
psychiatric illness and, if so, where that line is to
be drawn. In thus formulating the question, I do
not, of course, use the word "negligent" as
Subject only to these qualifications, I think that
a strict test of proximity by sight or hearing
should be applied by the courts.
Lastly, as regards communication, there is no
case in which the law has compensated shock
brought about by communication by a third
28
prejudging the question whether the defendant
owes the plaintiff a duty, but I do use the word
"foreseeably" as connoting the normally
accepted criterion of such a duty.
.....
depends on weighing against each other two
conflicting considerations. On the one hand, if
the criterion of liability is to be reasonable
foreseeability simpliciter, this must, precisely
because questions of causation in psychiatric
medicine give rise to difficulty and uncertainty,
introduce an element of uncertainty into the law
and open the way to a number of arguable claims
which a more precisely fixed criterion of liability
would exclude. I accept that the element of
uncertainty is an important factor. I believe that
the "floodgates" argument, however, is, as it
always has been, greatly exaggerated. On the
other hand, it seems to me inescapable that any
attempt to define the limit of liability by
requiring, in addition to reasonable
foreseeability, that the plaintiff claiming
damages for psychiatric illness should have
witnessed the relevant accident, should have
been present at or near the place where it
happened, should have come upon its aftermath
and thus have had some direct perception of it,
as opposed to merely learning of it after the
event, should be related in some particular
degree to the accident victim - to draw a line by
reference to any of these criteria must impose a
largely arbitrary limit of liability.
.....
In approaching the question whether the law
should, as a matter of policy, define the criterion
of liability in negligence for causing psychiatric
illness by reference to some test other than that
of reasonable foreseeability it is well to
remember that we are concerned only with the
question of liability of a defendant who is, ex
hypothesi, guilty of fault in causing the death,
injury or danger which has in turn triggered the
psychiatric illness. A policy which is to be relied
on to narrow the scope of the negligent
tortfeasor's duty must be justified by cogent and
readily intelligible considerations, and must be
capable of defining the appropriate limits of
liability by reference to factors which are not
purely arbitrary. A number of policy
considerations which have been suggested as
satisfying these requirements appear to me, with
respect, to be wholly insufficient. I can see no
grounds whatever for suggesting that to make
the defendant liable for reasonably foreseeable
psychiatric illness caused by his negligence
would be to impose a crushing burden on him
out of proportion to his moral responsibility. .
...
My Lords, I have no doubt that this is an area of
the law of negligence where we should resist the
temptation to try yet once more to freeze the law
in a rigid posture which would deny justice to
some who, in the application of the classic
principles of negligence derived from Donoghue
v. Stevenson [1932] A.C. 562, ought to succeed,
in the interests of certainty, where the very
subject matter is uncertain and continuously
developing, or in the interests of saving
defendants and their insurers from the burden of
having sometimes to resist doubtful claims. I
find myself in complete agreement with Tobriner
J. in Dillon v. Legg, 29 A.L.R. 3d 1316, 1326
that the defendant's duty must depend on
To attempt to draw a line at the furthest point
which any of the decided cases happen to have
reached, and to say that it is for the legislature,
not the courts, to extend the limits of liability
any further, would be, to my mind, an
unwarranted abdication of the court's function of
developing and adapting principles of the
common law to changing conditions, in a
particular corner of the common law which
exemplifies, par excellence, the important and
indeed necessary part which that function has to
play. In the end I believe that the policy question
29
reasonable foreseeability and
"must necessarily be adjudicated only upon a
case-by-case basis. We cannot now predetermine
defendant's obligation in every situation by a
fixed category; no immutable rule can establish
the extent of that obligation for every
circumstance of the future."
engaged in the importation and sale of rubber.
To finance its operations, it required extensive
credit and borrowed large sums of money from
banks and other lenders. All this was known to
the defendants. The defendants knew also that
in the usual course of business the balance sheet
when certified would be exhibited by the Stern
Company to banks, creditors, stockholders,
purchasers, or sellers, according to the needs of
the occasion, as the basis of financial dealings.
Accordingly, when the balance sheet was made
up, the defendants supplied the Stern Company
with thirty-two copies certified with serial
numbers as counterpart originals. Nothing was
said as to the persons to whom these
counterparts would be shown or the extent or
number of the transactions in which they would
be used. In particular there was no mention of
the plaintiff, a corporation doing business chiefly
as a factor, which till then had never made
advances to the Stern Company, though it had
sold merchandise in small amounts. The range
of the transactions in which a certificate of audit
might be expected to play a part was as
indefinite and wide as the possibilities of the
business that was mirrored in the summary.
To put the matter in another way, if asked where
the thing is to stop, I should answer, in an
adaptation of the language of Lord Wright (in
Bourhill v. Young [1943] A.C. 92, 110) and
Stephenson L.J. [1981] Q.B. 599, 612, "where in
the particular case the good sense of the judge,
enlightened by progressive awareness of mental
illness, decides."
.....
My Lords, I would accordingly allow the
appeal.
ULTRAMARES
v.
TOUCHE, 2174 N.E. 441 (N.Y. 1930)
Court of Appeals of New York
CARDOZO, C. J.
By February 26, 1924, the audit was finished and
the balance sheet made up. It stated assets in the
sum of $2,550,671.88 and liabilities other than
capital and surplus in the sum of $1,479,956.62,
thus showing a net worth of $1,070,715.26.
Attached to the balance sheet was a certificate as
follows:
The action is in tort for damages suffered
through the misrepresentations of accountants,
the first cause of action being for
misrepresentations that were merely negligent,
and the second for misrepresentations charged to
have been fraudulent.
'Touche, Niven & Co.
'Public Accountants
'Eighty Maiden Lane
'New York
'February 26, 1924.
In January, 1924, the defendants, a firm of public
accountants, were employed by Fred Stern &
Co., Inc., to prepare and certify a balance sheet
exhibiting the condition of its business as of
December 31, 1923. They had been employed at
the end of each of the three years preceding to
render a like service. Fred Stern & Co., Inc.,
which was in substance Stern himself, was
'Certificate of Auditors
'We have examined the accounts of Fred
Stern & Co., Inc., for the year ending
30
December 31, 1923, and hereby certify that
the annexed balance sheet is in accordance
therewith and with the information and
explanations given us. We further certify
that, subject to provision for federal taxes on
income, the said statement, in our opinion,
presents a true and correct view of the
financial condition of Fred Stern & Co., Inc.,
as at December 31, 1923.
'Touche, Niven & Co.
'Public Accountants.'
finance the sales of rubber. Up to that time the
dealings between the two houses were on a cash
basis and trifling in amount. As a condition of
any loans the plaintiff insisted that it receive a
balance sheet certified by public accountants,
and in response to that demand it was given one
of the certificates signed by the defendants and
then in Stern's possession. On the faith of that
certificate the plaintiff made a loan which was
followed by many others. The course of
business was for Stern to deliver to the plaintiff
documents described as trust receipts which in
effect were executory assignments of the moneys
payable by purchasers for goods thereafter to be
sold. When the purchase price was due, the
plaintiff received the payment, reimbursing itself
therefrom for its advances and commissions.
Some of these transactions were effected without
loss. Nearly a year later, in December, 1924, the
house of cards collapsed. In that month, plaintiff
made three loans to the Stern Company, one of
$100,000, a second of $25,000, and a third of
$40,000. For some of these loans no security
was received. For some of the earlier loans the
security was inadequate. On January 2, 1925,
the Stern Company was declared a bankrupt.
Capital and surplus were intact if the balance
sheet was accurate. In reality both had been
wiped out, and the corporation was insolvent.
The books had been falsified by those in charge
of the business so as to set forth accounts
receivable and other assets which turned out to
be fictitious. The plaintiff maintains that the
certificate of audit was erroneous in both its
branches.
The first branch, the asserted
correspondence between the accounts and the
balance sheet, is one purporting to be made as of
the knowledge of the auditors. The second
branch, which certifies to a belief that the
condition reflected in the balance sheet presents
a true and correct picture of the resources of the
business, is stated as a matter of opinion. In the
view of the plaintiff, both branches of the
certificate are either fraudulent or negligent. As
to one class of assets, the item of accounts
receivable, if not also as to others, there was no
real correspondence, we are told, between
balance sheet and books, or so the triers of the
facts might find. If correspondence, however, be
assumed, a closer examination of supporting
invoices and records, or a fuller inquiry directed
to the persons appearing on the books as
creditors or debtors, would have exhibited the
truth.
This action, brought against the accountants in
November, 1926, to recover the loss suffered by
the plaintiff in reliance upon the audit, was in its
inception one for negligence. On the trial there
was added a second cause of action asserting
fraud also. The trial judge dismissed the second
cause of action without submitting it to the jury.
As to the first cause of action, he reserved his
decision on the defendants' motion to dismiss,
and took the jury's verdict. They were told that
the defendants might be held liable if with
knowledge that the results of the audit would be
communicated to creditors they did the work
negligently, and that negligence was the
omission to use reasonable and ordinary care.
The verdict was in favor of the plaintiff for
$187,576.32. On the coming in of the verdict,
The plaintiff, a corporation engaged in business
as a factor, was approached by Stern in March,
1924, with a request for loans of money to
31
the judge granted the reserved motion. The
Appellate Division (229 App. Div. 581, 243 N.
Y. S. 179) affirmed the dismissal of the cause of
action for fraud, but reversed the dismissal of the
cause of action for negligence, and reinstated the
verdict. The case is here on cross-appeals.
whether they owed a duty to these to make it
without negligence. If liability for negligence
exists, a thoughtless slip or blunder, the failure
to detect a theft or forgery beneath the cover of
deceptive entries, may expose accountants to a
liability in an indeterminate amount for an
indeterminate time to an indeterminate class.
The hazards of a business conducted on these
terms are so extreme as to enkindle doubt
whether a flaw may not exist in the implication
of a duty that exposes to these consequences.
......
The two causes of action will be considered in
succession, first the one for negligence and
second that for fraud.
1. We think the evidence supports a finding that
the audit was negligently made, though in so
saying we put aside for the moment the question
whether negligence, even if it existed, was a
wrong to the plaintiff. To explain fully or
adequately how the defendants were at fault
would carry this opinion beyond reasonable
bounds. A sketch, however, there must be, at
least in respect of some features of the audit, for
the nature of the fault, when understood, is
helpful in defining the ambit of the duty.
Three cases in this court are said by the plaintiff
to have committed us to the doctrine that words,
written or oral, if negligently published with the
expectation that the reader or listener will
transmit them to another, will lay a basis for
liability though privity be lacking. These are
Glanzer v. Shepard, 233 N. Y. 236, 238, 135 N.
E. 275, 23 A. L. R. 1425; International Products
Co. v. Erie R. R. Co., 244 N. Y. 331, 155 N. E.
662, 56 A. L. R. 1377, and Doyle v. Chatham &
Phenix Nat. Bank, 253 N. Y. 369, 171 N. E. 574.
We begin with the item of accounts receivable.
(Review the evidence Cardozo concluded that a
“mere glance” by an auditor would have
revealed some of the discrepancies in the
accounts.)
In Glanzer v. Shepard, the seller of beans
requested the defendants, public weighers, to
make return of the weight and furnish the buyer
with a copy. This the defendants did. Their
return, which was made out in duplicate, one
copy to the seller and the other to the buyer,
recites that it was made by order of the former
for the use of the latter. The buyer paid the
seller on the faith of the certificate which turned
out to be erroneous. We held that the weighers
were liable at the suit of the buyer for the
moneys overpaid. Here was something more
than the rendition of a service in the expectation
that the one who ordered the certificate would
use it thereafter in the operations of his business
as occasion might require. Here was a case
where the transmission of the certificate to
another was not merely one possibility among
many, but the 'end and aim of the transaction,' as
The defendants owed to their employer a duty
imposed by law to make their certificate without
fraud, and a duty growing out of contract to
make it with the care and caution proper to their
calling.
Fraud includes the pretense of
knowledge when knowledge there is none. To
creditors and investors to whom the employer
exhibited the certificate, the defendants owed a
like duty to make it without fraud, since there
was notice in the circumstances of its making
that the employer did not intend to keep it to
himself. Eaton, Cole & Burnham Co. v. Avery,
83 N. Y. 31, 38 Am. Rep. 389; Tindle v. Birkett,
171 N. Y. 520, 64 N. E. 210, 89 Am. St. Rep.
822. A different question develops when we ask
32
certain and immediate and deliberately willed as
if a husband were to order a gown to be
delivered to his wife, or a telegraph company,
contracting with the sender of a message, were
to telegraph it wrongly to the damage of the
person expected to receive it.
......
suitable insurance, made inquiry of the bailee as
to the location of the storage. The warehouse
was incorrectly named, and the policy did not
attach. Here was a determinate relation, that of
bailor and bailee, either present or prospective,
with peculiar opportunity for knowledge on the
part of the bailee as to the subject-matter of the
statement and with a continuing duty to correct
it if erroneous. Even the narrowest holdings as
to liability for unintentional misstatement
concede that a representation in such
circumstances may be equivalent to a warranty.
.....
The intimacy of the resulting nexus is attested by
the fact that, after stating the case in terms of
legal duty, we went on to point out that viewing
it as a phase or extension of Lawrence v. Fox,
supra, or Seaver v. Ransom, supra, we could
reach the same result by stating it in terms of
contract. . . . . . The bond was so close as to
approach that of privity, if not completely one
with it. Not so in the case at hand. No one
would be likely to urge that there was a
contractual relation, or even one approaching it,
at the root of any duty that was owing from the
defendants now before us to the indeterminate
class of persons who, presently or in the future,
might deal with the Stern Company in reliance
on the audit. In a word, the service rendered by
the defendant in Glanzer v. Shepard was
primarily for the information of a third person, in
effect, if not in name, a party to the contract, and
only incidentally for that of the formal promisee.
In the case at hand, the service was primarily for
the benefit of the Stern Company, a convenient
instrumentality for use in the development of the
business, and only incidentally or collaterally for
the use of those to whom Stern and his
associates might exhibit it hereafter. Foresight of
these possibilities may charge with liability for
fraud. The conclusion does not follow that it
will charge with liability for negligence.
In one respect the decision in International
Products Co. v. Erie R. R. Co. is in advance of
anything decided in Glanzer v. Shepard. The
latter case suggests that the liability there
enforced was not one for the mere utterance of
words without due consideration, but for a
negligent service, the act of weighing, which
happened to find in the words of the certificate
its culmination and its summary. This was said
in the endeavor to emphasize the character of the
certificate as a business transaction, an act in the
law, and not a mere casual response to a request
for information. The ruling in the case of the
Erie Railroad shows that the rendition of a
service is at most a mere circumstance and not
an indispensable condition. The Erie was not
held for negligence in the rendition of a service.
It was held for words and nothing more. So in
the case at hand.
If liability for the
consequences of a negligent certificate may be
enforced by any member of an indeterminate
class of creditors, present and prospective,
known and unknown, the existence or
nonexistence of a preliminary act of service will
not affect the cause of action. The service may
have been rendered as carefully as you please,
and its quality will count for nothing if there was
negligence thereafter in distributing the
summary.
In the next of the three cases (International
Products Co. v. Erie R. R. Co., supra) the
plaintiff, an importer, had an agreement with the
defendant, a railroad company, that the latter
would act as bailee of goods arriving from
abroad. The importer, to protect the goods by
33
Doyle v. Chatham & Phenix Nat. Bank, supra,
the third of the cases cited, is even more plainly
indecisive. A trust company was a trustee under
a deed of trust to secure an issue of bonds. It
was held liable to a subscriber for the bonds
when it certified them falsely. A representation
by a trustee intended to sway action had been
addressed to a person who by the act of
subscription was to become a party to the deed
and a cestui que trust.
The extension, if made, will so expand the field
of liability for negligent speech as to make it
nearly, if not quite, coterminous with that of
liability for fraud. Again and again, in decisions
of this court, the bounds of this latter liability
have been set up, with futility the fate of every
endeavor to dislodge them. Scienter has been
declared to be an indispensable element, except
where the representation has been put forward as
true of one's own knowledge (Hadcock v.
Osmer, 153 N. Y. 604, 47 N. E. 923), or in
circumstances where the expression of opinion
was a dishonorable pretense. . . . Even an
opinion, especially an opinion by an expert, may
be found to be fraudulent if the grounds
supporting it are so flimsy as to lead to the
conclusion that there was no genuine belief back
of it. Further than that this court has never gone.
Directors of corporations have been acquitted of
liability for deceit, though they have been lax in
investigation and negligent in speech. . . . This
has not meant, to be sure, that negligence may
not be evidence from which a trier of the facts
may draw an inference of fraud (Derry v. Peek,
[L. R.] 14 A. C. 337, 369, 375, 376), but merely
that, if that inference is rejected, or, in the light
of all the circumstances, is found to be
unreasonable, negligence alone is not a
substitute for fraud. Many also are the cases that
have distinguished between the willful or
reckless representation essential to the
maintenance at law of an action for deceit, and
the misrepresentation, negligent or innocent, that
will lay a sufficient basis for rescission in equity.
. . . If this action is well conceived, all these
principles and distinctions, so nicely wrought
and formulated, have been a waste of time and
effort. They have even been a snare, entrapping
litigants and lawyers into an abandonment of the
true remedy lying ready to the call. The suitors
thrown out of court because they proved
negligence, and nothing else, in an action for
deceit, might have ridden to triumphant victory
if they had proved the self-same facts, but had
The antidote to these decisions and to the
overuse of the doctrine of liability for negligent
misstatement may be found in Jaillet v.
Cashman, 235 N. Y. 511, 139 N. E. 714, and
Courteen Seed Co. v. Hong Kong & Shanghai
Banking Corporation, 245 N. Y. 377, 381, 157
N. E. 272, 273, 56 A. L. R. 1186. In the first of
these cases the defendant supplying ticker
service to brokers was held not liable in damages
to one of the broker's customers for the
consequences of reliance upon a report
negligently published on the ticker. If liability
had been upheld, the step would have been a
short one to the declaration of a like liability on
the part of proprietors of newspapers. In the
second the principle was clearly stated by Pound,
J., that 'negligent words are not actionable unless
they are uttered directly, with knowledge or
notice that they will be acted on, to one to whom
the speaker is bound by some relation of duty,
arising out of public calling, contract or
otherwise, to act with care if he acts at all.'
From the foregoing analysis the conclusion is,
we think, inevitable that nothing in our previous
decisions commits us to a holding of liability for
negligence in the circumstances of the case at
hand, and that such liability, if recognized, will
be an extension of the principle of those
decisions to different conditions, even if more or
less analogous. The question then is whether
such an extension shall be made.
34
given the wrong another label, and all this in a
state where forms of action have been abolished.
So to hold is near to saying that we have been
paltering with justice. A word of caution or
suggestion would have set the erring suitor right.
Many pages of opinion were written by judges
the most eminent, yet the word was never
spoken. We may not speak it now. A change so
revolutionary, if expedient, must be wrought by
legislation. . . . .
with care does not arise unless the words are the
culmination of a service, and, second, that it
does not arise unless the service is rendered in
the pursuit of an independent calling,
characterized as public. As to the first of these
suggestions, we have already had occasion to
observe that given a relation making diligence a
duty, speech as well as conduct must conform to
that exacting standard. International Products
Co. v. Erie R. R. Co., supra. As to the second of
the two suggestions, public accountants are
public only in the sense that their services are
offered to any one who chooses to employ them.
This is far from saying that those who do not
employ them are in the same position as those
who do.
We have said that the duty to refrain from
negligent representation would become
coincident or nearly so with the duty to refrain
from fraud if this action could be maintained. A
representation, even though knowingly false,
does not constitute ground for an action of deceit
unless made with the intent to be communicated
to the persons or class of persons who act upon
it to their prejudice. Eaton, Cole & Burnham
Co. v. Avery, supra. Affirmance of this
judgment would require us to hold that all or
nearly all the persons so situated would suffer an
impairment of an interest legally protected if the
representation had been negligent. We speak of
all 'or nearly all,' for cases can be imagined
where a casual response, made in circumstances
insufficient to indicate that care should be
expected, would permit recovery for fraud if
willfully deceitful. Cases of fraud between
persons so circumstanced are, however, too
infrequent and exceptional to make the radii
greatly different if the fields of liability for
negligence and deceit be figured as concentric
circles. The like may be said of the possibility
that the negligence of the injured party,
contributing to the result, may avail to overcome
the one remedy, though unavailing to defeat the
other.
Liability for negligence if adjudged in this case
will extend to many callings other than an
auditor's. Lawyers who certify their opinion as
to the validity of municipal or corporate bonds,
with knowledge that the opinion will be brought
to the notice of the public, will become liable to
the investors, if they have overlooked a statute or
a decision, to the same extent as if the
controversy were one between client and adviser.
Title companies insuring titles to a tract of land,
with knowledge that at an approaching auction
the fact that they have insured will be stated to
the bidders, will become liable to purchasers
who may wish the benefit of a policy without
payment of a premium. These illustrations may
seem to be extreme, but they go little, if any,
farther than we are invited to go now.
Negligence, moreover, will have one standard
when viewed in relation to the employer, and
another and at times a stricter standard when
viewed in relation to the public. Explanations
that might seem plausible, omissions that might
be reasonable, if the duty is confined to the
employer, conducting a business that presumably
at least is not a fraud upon his creditors, might
wear another aspect if an independent duty to be
suspicious even of one's principal is owing to
Neither of these possibilities is noted by the
plaintiff in its answer to the suggestion that the
two fields would be coincident. Its answer has
been merely this, first, that the duty to speak
35
investors. 'Every one making a promise having
the quality of a contract will be under a duty to
the promisee by virtue of the promise, but under
another duty, apart from contract, to an
indefinite number of potential beneficiaries
when performance has begun. The assumption
of one relation will mean the involuntary
assumption of a series of new relations,
inescapably hooked together' Moch Co. v.
Rensselaer Water Co., supra, at page 168 of 247
N. Y., 159 N. E. 896, 899. 'The law does not
spread its protection so far' Robins Dry Dock &
Repair Co. v. Flint, supra, at page 309 of 275 U.
S., 48 S. Ct. 134, 135.
Our holding does not emancipate accountants
from the consequences of fraud. It does not
relieve them if their audit has been so negligent
as to justify a finding that they had no genuine
belief in its adequacy, for this again is fraud. It
does no more than say that, if less than this is
proved, if there has been neither reckless
misstatement nor insincere profession of an
opinion, but only honest blunder, the ensuing
liability for negligence is one that is bounded by
the contract, and is to be enforced between the
parties by whom the contract has been made.
We doubt whether the average business man
receiving a certificate without paying for it, and
receiving it merely as one among a multitude of
possible investors, would look for anything
more.
.....
[In sum, the Court of Appeals held that the
plaintiff’s action based upon negligent
misrepresentation must be dismissed for the
reasons stated. The Court also held that the
plaintiff’s claim that the defendants were guilty
of intentional misrepresentation, i.e., fraud,
should not be dismissed.]
36
Subtopic FOUR
BREACH OF DUTY
(NEGLIGENCE)
37
proceed with such reasonable caution as a
prudent man would have exercised under such
circumstances.
VAUGHAN
v.
MENLOVE
3 Bing. (N.C.) 467, 132 E.R. 490 (1837)*
A verdict having been found for the Plaintiff, a
rule nisi for a new trial was obtained, on the
ground that the jury that the jury should have
been directed to consider, not, whether the
Defendant had been guilty of gross negligence
with reference to the standard of ordinary
prudence, a standard too uncertain to afford any
criterion; but whether he had acted bona fide to
the best of his judgment; if he had, he ought not
to be responsible for the misfortune of not
possessing the highest order of intelligence. The
action under such circumstances, was of the first
impression.
[Two cottages owned by the plaintiffs were
destroyed when a hayrick [i.e., stack of hay]
owned and maintained by the defendant on his
land burst into flames as a result of spontaneous
combustion and burned across the intervening
fields to the cottages. The plaintiffs won a
verdict in the trial court. The defendant made a
motion (or sought a “rule”) for a new trial.]
At the trial it appeared that the rick in question
had been made by the Defendant near the
boundary of his own premises; that the hay was
in such a state when put together, as to give rise
to discussions on the probability of fire: that
though there were conflicting opinions on the
subject, yet during a period of five weeks, the
Defendant was repeatedly warned of his peril;
that his stock was insured; and that upon one
occasion, being advised to take the rick down to
avoid all danger, he said “he would chance it.”
He made an aperture or chimney through the
rick; but in spite, or perhaps in consequence of
this precaution, the rick at length burst into
flames from the spontaneous heating of its
materials; the flames communicated to the
Defendant’s barns and stables, and thence to the
Plaintiff’s cottages, which were entirely
destroyed.
TINDAL C.J.
I agree that this is a case primae impressionis; but
I feel no difficulty in applying to it the principles
of law as laid down in other cases of a similar
kind. Undoubtedly this is not a case of contract,
such as a bailment or the like where the bailee is
responsible in consequence of the remuneration
he is to receive: but there is a rule of law which
says you must so enjoy your own property as not
injure that of another; and according to that rule
the Defendant is liable for the consequence of his
own neglect: and though the Defendant did not
himself light the fire, yet mediately, he is as
much the cause of it as if he had himself put a
candle to the rick: for it is well known that hay
will ferment and take fire if it be not carefully
stacked. It has been decided that if an occupier
burns weeds so near the boundary of his own
land that damage ensues to the property of his
neighbour, he is liable to an action for the
amount of injury done, unless the accident were
occasioned by a sudden blast which he could not
forsee: Turbervill v. Stamp (1 Salk. 13). But put
the case of a chemist making experiments with
ingredients, singly innocent, but when combined,
Patteson J. before whom the cause was tried,
told the jury that the question for them to
consider, was, whether the fire had been
occasioned by gross negligence on the part of
the Defendant; adding, that he was bound to
[Ed— English Reports, general reporter of
older English cases; decision of House of
Lords; Bingham’s reports, new cases.]
38
liable to ignite; if he leaves them together, and
injury is thereby occasioned to the property of
his neighbour, can any one doubt that an action
on the case would lie?
of applying it, a jury has always been able to say,
whether, taking that rule as their guide, there has
been negligence on the occasion in question.
Instead, therefore, of saying that the liability for
negligence should be co-extensive with the
judgment of each individual, which would be as
variable as the length of the foot of each
individual, we ought rather to adhere to the rule
which requires in all cases a regard to caution
such as a man of ordinary prudence would
observe. That was in substance the criterion
presented to the jury in this case, and therefore
the present rule must be discharged.
It is contended, however, that the learned Judge
was wrong in leaving this to the jury as a case of
gross negligence, and that the question of
negligence was so mixed up with reference to
what would be the conduct of a man of ordinary
prudence that the jury might have though the
latter the rule by which they were to decide; that
such a rule would be too uncertain to act upon;
and that the question ought to have been
whether the Defendant had acted honestly and
bona fide to the best of his own judgment. That,
however, would leave so vague a line as to
afford no rule at all, the degree of judgment
belonging to each individual being infinitely
various; and though it has been urged that the
care which a prudent man would take, is not an
intelligible proposition as a rule of law, yet such
has always been the rule adopted in cases of
bailment, as laid down in Coggs v. Bernard (2
Ld. Raym. 909). Though in some cases a
greater degree of care is exacted than in others,
yet in “the second sort of bailment, viz.
commodatum or lending gratis, the borrower is
bounded to the strictest case and diligence to
keep the goods so as to restore them back again
to the lender; because the bailee has a benefit by
the use of them, so as if the bailee be guilty of
the least neglect he will be answerable; as if a
man should lend another a horse to go
westward, or for a month; if the bailee put this
horse in his stable, and he were stolen from
thence, the bailee shall not be answerable for
him; but if he or his servant leave the house or
stable doors open and the thieves take the
opportunity of that, and steal the horse, he will
be chargeable, because the neglect gave the
thieves the occasion to steal the horse.” The
care taken by a prudent man has always been the
rule laid down; and as to the supposed difficulty
PARK J.
I entirely concur in what has fallen from his
Lordship.
As to the direction of the learned Judge, it was
perfectly correct. Under the circumstances of the
case it was proper to leave it to the jury whether
with reference to the caution which would have
been observed by a man of ordinary prudence,
the Defendant had not been guilty of gross
negligence. After he had been warned repeatedly
during five weeks as to the consequences likely
to happen, there is no colour for altering the
verdict, unless it were to increase the damages.
GASELEE J. concurred in discharging the rule.
VAUGHAN J.
The principle on which this action proceeds, is by
no means new. It has been urged that the
Defendant in such a case takes no duty on
himself; but I do not agree in that position: every
one takes upon himself the duty of so dealing
with his own property as not to injure the
property of others. It was, if any thing, too
favourable to the Defendant to leave it to the jury
whether he had been guilty of gross negligence:
39
for when the Defendant upon being warned as to
the consequences likely to ensure from the
condition of the rick, said, “he would chance it,”
it was manifest he adverted to his interest in the
insurance office. The conduct of a prudent man
has always been the criterion for the jury in such
cases: but it is by no means confined to them.
In insurance cases, where a captain has sold his
vessel after damage too extensive for repairs,
the question has always been, whether he had
pursued the course which a prudent man would
have pursued under the same circumstance.
Here, there was not a single witness whose
testimony did not go to establish gross
negligence in the Defendant. He had repeated
warnings of what was likely to occur, and the
whole calamity was occasioned by his
procrastination.
a defendant.
The club had been in existence, and matches
regularly played on this ground, since about
1864. Beckenham Road was constructed and
built up in 1910. For the purpose of its law-out,
the builder made an arrangement with the club
that a small strip of ground at the Beckenham
Road end should be exchanged for a strip at the
other end. The match pitches had always been,
and still were, kept along a line opposite the
pavilion, which was the mid-line of the original
ground. The effect was that for a straight drive the hit in the case in question - Beckenham Road
had for some years been a few yards nearer the
batsman than the opposite end. The cricket field,
at the point at which the ball left it, was protected
by a fence seven feet high but the upward slope
of the ground was such that the top of the fence
was some seventeen feet above the cricket pitch.
The distance from the striker to the fence was
about seventy-eight yards, not ninety yards as
Oliver, J., stated, and to the place where the
plaintiff was hit just under 100 yards.
Rule discharged. [i.e., the rule for a new trial
was reversed and the judgment for the plaintiff
approved.]
BOLTON
v.
STONE
[1951] A.C. 850
Beckenham Road was an ordinary side-road
giving access to private houses. It followed the
western half of the northern edge of the ground,
with houses on the far side only, and then,
approximately opposite the line of the wickets,
turned northeastwards with houses thereafter on
both sides of the highway. The plaintiff's house
was the second after the house in the angle of the
turn. Opposite there was a row of six houses, No.
11, occupied by one Brownson, standing nearest
the ground, with its side towards the northern
boundary, and being substantially closer to it than
the spot where the plaintiff was injured.
House of Lords
APPEAL from the Court of Appeal (Singleton
and Jenkins, L.JJ., Somervell, L.J., dissenting).
The facts, as stated by Lord Porter, were as
follows:- On August 9, 1947, Miss Stone, the
plaintiff, was injured by a cricket ball while
standing on the highway outside her house, No.
10 Beckenham Road, Cheetham Hill,
Manchester. The ball was hit by a batsman
playing in a match on the Cheetham Cricket
Ground which was adjacent to the highway. She
brought an action for damages against the
committee and members of the club. The striker
of the ball, a member of a visiting team, was not
Brownson, giving evidence, said that five or six
times during the last few years he had known
balls hit his house or come into the yard. His
evidence was vague as to the number of
occasions. Members of the club of twenty years'
40
standing or more agreed, in evidence, that the
hit was altogether exceptional in comparison
with anything previously seen on that ground.
They also said (and Oliver, J., accepted their
evidence) that it was only very rarely indeed that
a ball was hit over the fence during a match. A
club member of thirty-three years' standing said
that he knew of no complaints of balls being hit
into the road. Another member estimated that
balls had been hit into that road about six times
in twenty-eight years, but said that there had
been no previous accident, so far as he knew.
the road even once: such an event gave the
appellants warning that a ball might be hit into
the road, and the appellants knowing this must,
as reasonable men also know that an injury was
likely to be caused to anyone standing in the road
or to a passer-by. The argument was however, as
she said, strengthened when it was remembered
that a ball had been driven over the fence from
time to time even though at somewhat remote
intervals. Such an event was known to the
appellants to have occurred, and if they had
considered the matter they ought to have
envisaged the possibility of its repetition.
The plaintiff claimed damages in respect of
injuries said to be caused by the defendants'
negligence or as the result of a nuisance for
which they were responsible. The particulars of
negligence were that they "(A) pitched the
cricket pitch too near to the said road; (B) failed
to erect a ... fence ... of sufficient height to
prevent balls being struck into the said road; (C)
failed to ensure that cricket balls would not be
hit into the said road".
But the question remains: Is it enough to make an
action negligent to say that its performance may
possibly cause injury, or must some greater
probability exist of that result ensuing in order to
make those responsible for its occurrence guilty
of negligence?
In the present case the appellants did not do the
act themselves, but they are trustees of a field
where cricket is played, are in control of it, and
invite visiting teams to play there. They are,
therefore, and are admitted to be responsible for
the negligent action of those who use the field in
the way intended that it should be used.
On the facts found by him Oliver, J., acquitted
the defendants of negligence and held that
nuisance was not established. The Court of
Appeal, reversing this decision, held that a
public nuisance was not established but that the
defendants were guilty of negligence and were
liable in damages. The defendants appealed to
the House of Lords.
The question then arises: What degree of care
must they exercise to escape liability for anything
which may occur as a result of this intended use
of the field?
LORD PORTER
Undoubtedly they knew that the hitting of a
cricket ball out of the ground was an event which
might occur and, therefore, that there was a
conceivable possibility that someone would be
hit by it. But so extreme an obligation of care
cannot be imposed in all cases. If it were, no one
could safely drive a motor car since the
possibility of an accident could not be
overlooked and if it occurred some stranger
might well be injured however careful the driver
[after stating the facts in the terms set out
above]:- My Lords, in the action and on appeal
the respondent contended that the appellants
were negligent or guilty of creating a nuisance
in failing to take any sufficient precautions to
prevent the escape of cricket balls from the
ground and the consequent risk of injury to
persons in Beckenham Road. In her submission
it was enough that a ball had been driven into
41
might be. It is true that the driver desires to do
everything possible to avoid an accident,
whereas the hitting of a ball out of the ground is
an incident in the game and, indeed, one which
the batsman would wish to bring about; but in
order that the act may be negligent there must
not only be a reasonable possibility of its
happening but also of injury being caused. In the
words of Lord Thankerton in Bourhill v. Young
[FN39] the duty is to exercise "such reasonable
care as will avoid the risk of injury to such
persons as he can reasonably foresee might be
injured by failure to exercise such reasonable
care ", and Lord Macmillan used words to the
like effect. So, also, Lord Wright in Glasgow
Corporation v. Muir [FN41] quoted the wellknown words of Lord Atkin in Donoghue v.
Stevenson [FN42]: "You must take reasonable
care to avoid acts or omissions which you can
reasonably foresee would be likely to injure
your neighbour". It is not enough that the event
should be such as can reasonably be foreseen;
the further result that injury is likely to follow
must also be such as a reasonable man would
contemplate, before he can be convicted of
actionable negligence. Nor is the remote
possibility of injury occurring enough; there
must be sufficient probability to lead a
reasonable man to anticipate it. The existence of
some risk is an ordinary incident of life, even
when all due care has been, as it must be, taken.
second, whether, if negligence can be inferred,
those facts do constitute negligence. The first is
a question of law upon which the judge must
actually or inferentially rule; the second, a
question of fact upon which the jury, if there is
one, or, if not, the judge, as judge of fact, must
pronounce. Both to some extent, but more
particularly the latter, depend on all the attendant
circumstances of the case.
In the present instance the learned trial judge
came to the conclusion that a reasonable man
would not anticipate that injury would be likely
to result to any person as a result of cricket being
played in the field in question and I cannot say
that that conclusion was unwarranted. In arriving
at this result I have not forgotten the view
entertained by Singleton, L.J., that the appellants
knew that balls had been hit out of the ground
into the road, though on very rare occasions - I
think six were proved in twenty-eight years - and
it is true that a repetition might at some time be
anticipated But its happening would be a very
exceptional circumstance, the road was obviously
not greatly frequented and no previous accident
had occurred. Nor do I think that the respondent
improves her case by proving that a number of
balls were hit into Mr. Brownson's garden. It is
danger to persons in the road not to Mr.
Brownson or his visitors which is being
considered. In these circumstances I cannot say
that as a matter of law the decider of fact,
whether judge or jury, must have come to the
conclusion that the possibility of injury should
have been anticipated. I cannot accept the view
that it would tend to exonerate the appellants if it
were proved that they had considered the matter
and decided that the risks were very small and
that they need not do very much. In such a case I
can imagine it being said that they entertained an
altogether too optimistic outlook. They seem to
me to be in a stronger position, if the risk was so
small that it never even occurred to them.
FN39 [1943] A. C. 92, 98.
FN41 [1943] A. C. 448, 460.
FN42 [1932] A. C. 562, 580.
It must be remembered and cannot too often be
repeated that there are two different standards to
be applied when one is considering whether an
appeal should be allowed or not. The first is
whether the facts relied upon are evidence from
which negligence can in law be inferred; the
42
Nor am I assisted by any reliance upon the
doctrine of "res ipsa loquitur ". Where the
circumstances giving rise to the cause of the
accident are unknown that doctrine may be of
great assistance, but where, as in the present
case, all the facts are known, it cannot have any
application. It is known exactly how the
accident happened and it is unnecessary to ask
whether this accident would have happened had
there been no negligence; the only question is,
do the facts or omissions which are known and
which led up to the injury amount to negligence.
My Lords, for the reasons I have given I am of
opinion that the appeal should be allowed, the
judgment of the learned judge in the court of first
instance should be restored, and the respondent
should pay the costs in your Lordships' House
and in the Court of Appeal.
LORD NORMAND.
My Lords, it is not questioned that the occupier
of a cricket ground owes a duty of care to persons
on an adjacent highway or on neighbouring
property who may be in the way of balls driven
out of the ground by the batsman. But it is
necessary to consider the measure of the duty
owed. In the Court of Appeal Jenkins, L.J., said
that it was "a duty to prevent balls being hit into
Beckenham Road so far as there was any
reasonably foreseeable risk of that happening".
There can be no quarrel with this proposition, but
one must not overlook the importance of the
qualification "reasonably".
I may add that the suggestion that it would have
been a wise precaution to move the pitch to a
position equally between the north and south
boundaries to my mind has little force. I do not
think that it would have occurred to anyone that
such an alteration would make for greater safety
or that there was any danger in allowing things
to remain as they were. The golf club case
(Castle v. St. Augustine's Links Ld. [FN44])
rested upon a different set of circumstances in
which a succession of players driving off
alongside a road might be expected from time to
time to slice their ball over or along the road
and, therefore, the possibility of injury to those
using the highway was much greater. The
quantum of danger must always be a question of
degree. It is not enough that there is a remote
possibility that injury may occur: the question is,
would a reasonable man anticipate it? I do not
think that be would, and in any case, unless an
appellate body are of opinion that no clearly
ought to have done so, the tribunal upon whom
lies the duty of finding the facts is the proper
judge of whether he would or not. I need not
discuss the alternative claim based upon
unisance, since it is admitted on behalf of the
respondent that in the circumstances of this case
nuisance cannot be established unless
negligence is proved.
t is not the law that precautions must be taken
against every peril that can be foreseen by the
timorous. In Glasgow. Corporation v. Muir
the decision turned on the standard of care, and
Lord Thankerton held that a person is bound to
foresee only the reasonable and probable
consequences of the failure to take care, judged
by the standard of the ordinary reasonable man".
He observed that the question whether a defender
had failed to take the precautions which an
ordinary reasonable man would take is essentially
a jury question, and that it is the duty of the court
to approach the question as if it were a jury and
that a Court of Appeal should be slow to interfere
with the conclusions of the trial judge. Lord
Macmillan agreed that the standard of duty was
the reasonable man of ordinary intelligence and
experience contemplating the reasonable and
probable consequences of his acts. What ought to
have been foreseen is the test accepted by Lord
Wright, who quoted Lord Atkins words in
I
FN44 (1922) 38 T. L. R. 615.
43
Donoghue v. Stevenson [FN50]: "You must take
reasonable care to avoid acts or omissions
which you can reasonably foresee would be
likely to injure your neighbour". Lord Clauson
[FN51] stated as the test whether the person
having the duty of care ought, as a reasonable
person, "to have had in contemplation that,
unless some further precautions were taken,
such an unfortunate occurrence as that which in
fact took place might well be expected". It is
therefore not enough for the plaintiff to say that
the occupiers of the cricket ground could have
foreseen the possibility that a ball might be hit
out of the ground by a batsman and might injure
people on the road; she must go further and say
that they ought, as reasonable men, to have
foreseen the probability of such an occurrence.
fact show that the number of balls driven straight
out of the ground by the players who use it in any
cricket season is so small as to be almost
negligible, and the probability of a ball so struck
hitting anyone in Beckenham Road is very slight.
The issue is thus one eminently appropriate for
the decision of a jury, and Oliver, J., dealt with it
in a jury would and gave his decision without
elaborating his reasons. I think that the
observations of Lord Thankerton in Glasgow
Corporation v. Muir are apposite and that it is
unfortunate that the Court of Appeal should have
reversed the decision.
I do not think that the change which took place in
1910, when Beckenham Road was made and a
small strip next to it was taken from the ground
in exchange for a strip at the other end, has much
relevance. That change was made thirty-seven
years before this accident, and the evidence about
the infrequency of hits out of the ground is
directed to the period since 1910, and is a
sufficient basis for a judgment on the degree of
risk and on the duty resting on the defendants. It
was said by Singleton, L.J. that the defendants
might have escaped liability if in 1910 they had
considered the matter and decided that the risks
were so small that nothing need be done, but that
since they did not consider it at all they must bear
the consequences. I am not, with respect,
disposed to agree with this reasoning. We are
concerned with the practical results of
deliberation, and the consequences of failing to
consider the risk and of considering this risk but
deciding to do nothing are the same. The
precautions suggested by the plaintiff, being
either the moving of the wickets a few steps
further away from the Beckenham Road end or
the heightening of the fencing, would have had
little or no effect in averting the peril. The only
practical way in which the possibility of danger
could have been avoided would have been to stop
playing cricket on this ground. I doubt whether
that fairly comes within paragraph (c) of the
FN50 [1932] A. C. 562, 580.
FN51 [1943] A. C. 448, 468.
Among the facts found by Oliver, J., are:- (1.)
that a house substantially nearer the ground than
the place where the plaintiff was injured had
been hit by a cricket ball driven out of the
ground on certain occasions (vaguely estimated
at five or six by a witness) in the previous few
years; (2.) that the hit which occasioned the
plaintiff's injury was altogether exceptional; and
(3.) that it was very rarely indeed that a ball was
hit over the fence between the road and the
ground. It is perhaps not surprising that there
should be differences of opinion about the
defendants' liability even if the correct test is
applied. The whole issue is, indeed, finely
balanced. On the one side there are, as we were
told, records of much longer hits by famous
cricketers than the drive which caused the injury
to the plaintiff and it is, of course, the object of
every batsman to hit the ball over the boundary
if he can. Again, the serious injury which a
cricket ball might cause must not be left out of
account. But on the other side the findings of
44
the adjacent footpaths and highways as negligible
and it is not, in my opinion, actionable
negligence not to take precautions to avoid such
risks.
particulars of negligence - "failure to ensure that
cricket balls would not be hit into the said road".
That seems to point to some unspecified method
of stopping balls from reaching the road while a
game is in progress on the ground. But whatever
view may be taken on these matters, my
conclusion is that the decision of Oliver, J.,
should have been respected as equivalent to a
verdict of a jury on a question of fact.
LORD REID.
My Lords, it was readily foreseeable that an
accident such as befell the respondent might
possibly occur during one of the appellants'
cricket matches Balls had been driven into the
public road from time to time and it was obvious
that, if a person happened to be where a ball fell,
that person would receive injuries which might
or might not be serious. On the other hand it was
plain that the chance of that happening was
small. The exact number of times a ball has been
driven into the road is not known, but it is not
proved that this has happened more than about
six times in about thirty years. . . . . .
I agree that the appeal should be allowed.
LORD OAKSEY.
My Lords, I have come to the conclusion in this
difficult case that Oliver, J.'s decision ought to
be restored.
Cricket has been played for about ninety years
on the ground in question and no ball has been
proved to have struck anyone on the highways
near the ground until the respondent was struck,
nor has there been any complaint to the
appellants. . . . . . Many foreseeable risks are
extremely unlikely to happen and cannot be
guarded against except by almost complete
isolation. The ordinarily prudent owner of a dog
does not keep his dog always on a lead on a
country highway for fear it may cause injury to
a passing motor cyclist, nor does the ordinarily
prudent pedestrian avoid the use of the highway
for fear of skidding motor cars. It may very well
be that after this accident the ordinarily prudent
committee man of a similar cricket ground
would take some further precaution, but that is
not to say that he would have taken a similar
precaution before the accident. . . . . .
The definition of negligence which has perhaps
been most often quoted is that of Alderson, B., in
Blyth v. Birmingham Waterworks Co. [FN55]:
"Negligence is the omission to do something
which a reasonable man, guided upon those
considerations which ordinarily regulate the
conduct of human affairs, would do, or doing
something which a prudent and reasonable man
would not do". I think that reasonable men do in
fact take into account the degree of risk and do
not act on a bare possibility as they would if the
risk were more substantial.
.....
FN55 (1856) 11 Ex. 781, 784.
In considering that matter I think that it would be
right to take into account not only how remote is
the chance that a person might be struck but also
how serious the consequences are likely to be if
a person is struck; but I do not think that it would
be right to take into account the difficulty of
remedial measures. If cricket cannot be played on
There are many footpaths and highways
adjacent to cricket grounds and golf courses on
to which cricket and golf balls are occasionally
driven, but such risks are habitually treated both
by the owners and committees of such cricket
and golf courses and by the pedestrians who use
45
a ground without creating a substantial risk, then
it should not be played there at all. I think that
this is in substance the test which Oliver, J.,
applied in this case. He considered whether the
appellants' ground was large enough to be safe
for all practical purposes and held that it was.
This is a question not of law but of fact and
degree. It is not an easy question and it is one on
which opinions may well differ. I can only say
that having given the whole matter repeated and
anxious consideration I find myself unable to
decide this question in favour of the respondent.
But I think that this case is not far from the
borderline. If this appeal is allowed, that does
not in my judgment mean that in every case
where cricket has been played on a ground for a
number of years without accident or complaint
those who organize matches there are safe to go
on in reliance on past immunity. I would have
reached a different conclusion if I had thought
that the risk here had been other than extremely
small, because I do not think that a reasonable
man considering the matter from the point of
view of safety would or should disregard any
risk unless it is extremely small.
.....
I think that the case is in some respects a peculiar
one, not easily related to the general rules that
govern liability for negligence. If the test whether
there has been a breach of duty were to depend
merely on the answer to the question whether this
accident was a reasonably foreseeable risk, I
think that there would have been a breach of
duty, for that such an accident might take place
some time or other might very reasonably have
been present to the minds of the appellants. It
was quite foreseeable, and there would have been
nothing unreasonable in allowing the imagination
to dwell on the possibility of its occurring. But
there was only a remote, perhaps I ought to say
only a very remote, chance of the accident taking
place at any particular time, for, if it was to
happen, not only had a ball to carry the fence
round the ground but it had also to coincide in its
arrival with the presence of some person on what
does not look like a crowded thoroughfare and
actually to strike that person in some way that
would cause sensible injury.
Those being the facts, a breach of duty has taken
place if they show the appellants guilty of a
failure to take reasonable care to prevent the
accident. One may phrase it as "reasonable care"
or "ordinary care" or "proper care " - all these
phrases are to be found in decisions of authority but the fact remains that, unless there has been
something which a reasonable man would blame
as falling beneath the standard of conduct that he
would set for himself and require of his
neighbour, there has been no breaks of legal duty.
and here, I think, the respondent's ease breaks
down. It seems to me that a reasonable man,
taking account of the chances against an accident
happening, would not have felt himself called
upon either to abandon the use of the ground for
cricket or to increase the height of his
surrounding fences. He would have done what
the appellants did: in other words, he would have
done nothing. Whether, if the unlikely event of
an accident did occur and his play turn to
LORD RADCLIFFE.
My Lords, I agree that this appeal must be
allowed. I agree with regret, because I have
much sympathy with the decision that
commended itself to the majority of the
members of the Court of Appeal. I can see
nothing unfair in the appellants being required
to compensate the respondent for the serious
injury that she has received as a result of the
sport that they have organized on their cricket
ground at Cheetham Hill. But the law of
negligence is concerned less with what is fair
than with what is culpable, and I cannot
persuade myself that the appellants have been
guilty of any culpable act or omission in this
case.
46
another's hurt, he would have thought it equally
proper to offer no more consolation to his victim
than the reflection that a social being is not
immune from social risks, I do not say, for I do
not think that that is a consideration which is
relevant to legal liability.
.....
47
Subtopic FIVE
CAUSATION AS AN ELEMENT OF THE
CAUSE OF ACTION, INCLUDING
PROXIMATE CAUSATION
48
supported by a deposition of Matthews Cormier,
who was drilling foreman for Amoco. The well
was being drilled by a drilling contractor, Power
Rig, for Amoco. Plaintiffs' basis for possible
liability on the part of Cameron was that
Cameron manufactured a blow-out preventer
which had been installed on the well but which
failed to function, thus contributing to the flash
fire and injuries sued upon.
JEFFERS
v.
AMOCO PRODUCTION COMPANY,
INC.
405 So.2d 1227 (La. App. 1981)
[This was an action brought by workmen who
were injured in an oil field fire. Among the
many defendants was Cameron Iron Works,
Inc., manufacturer of a device called a “blowout preventer” which was intended to avoid
explosions. Plaintiffs alleged that the preventer
was defective and thus failed to prevent the fire.
Cameron defended on the grounds that the
preventer could not have been in use at the time
of the explosion because of the presence in the
hole of a device called “the Kelly” when the
explosion occurred. The Kelly is a device that
rotates the pipes to which the oil well drill bit is
attached.
The bit drills the hole deep
underground. In this particular application the
blow-out preventer could not be activated when
the Kelly was resting in the drill hole.]
Cormier's clear and unequivocal testimony is
that Cameron's blow-out preventer was never
activated. The Kelly was at that time in the hole,
according to Cormier's testimony, and the
Cameron blow-out preventer could not be
activated when the Kelly was in the hole.
Plaintiff Quelle (whose brief as stated is the only
plaintiff's brief filed) contends that counsel for
plaintiffs attempted to introduce the depositions
of Emile Durr, Jr. and Stephen Barnard, which
would have shown that the Kelly was not in the
hole. Hence, the inference is that, if standard oil
field procedure had been followed, the Cameron
blow-out preventer would have been activated at
the time of the flash fire. The trial court,
according to Quelle's brief, improperly refused to
admit the depositions of Durr and Barnard.
WATKINS, Judge.
These are consolidated cases brought by
victims and survivors of deceased victims which
arise from an oil rig blow-out in East Baton
Rouge Parish. [Defendant]Cameron Iron Works
applied for summary judgment dismissing it as
a party defendant. Summary judgment was
granted as sought. Plaintiffs . . . . . appealed. . .
...
After taking the matter under advisement, the
trial court granted summary judgment, as we
have indicated.
If the blow-out preventer had not been activated
before the flash fire occurred, as Cormier's
testimony unequivocally states, clearly Cameron
could not be liable, as the sole basis of
contended liability on the part of Cameron was
the alleged malfunction of the Cameron blowout preventer.
Although plaintiff Quelle
contends the depositions of Durr and Barnard
were improperly ruled inadmissible, plaintiff did
not make an effort to proffer the excluded
depositions. There is thus no genuine issue as to
The fire or blow-out occurred at approximately
8:30 a. m. on July 7, 1979. All of the injuries
sued upon resulted from this fire.
Approximately an hour and a half later, an
explosion occurred which totally destroyed the
rig. No further personal injuries were sustained
in the second fire or explosion.
Cameron's motion for summary judgment was
49
a material fact, as the sole testimony available in
the record before this court indicates that the
Cameron blow-out preventer was not activated
before the flash fire occurred.
company “many millions of pounds “ (i.e.,
English pounds sterling ) in remedial work to fix
the broken water pipe and in compensation the
utility was required to pay to others for damaged
caused by the water that escaped from the
broken pipe.
We are not favored with a transcript of the
hearing on motion for summary judgment
containing the argument of counsel in which the
two depositions were held inadmissible.
Moreover, the record presented before us does
not contain these depositions as a proffer. A
proffer could have been made under LSAC.C.P. art. 1636. No proffer was apparently
made. It is incumbent upon counsel who
contends his evidence was improperly excluded
to make a proffer (an offer of proof), and if he
fails to do so, he cannot contend such exclusion
was error. Greene v. Wright, 365 So.2d 551
(La.App. 1st Cir.1978).
The plaintiff was unable to present proof that
some specific event for which the defendant was
responsible caused the pipe to break, but instead
relied upon the theory that the defendant’s
tunneling activities caused differential settling of
the earth in the vicinity of the pipes, thus placing
unacceptable forces at the joints, causing the
failure. The underground company (sometime
referred to as LUL) defended on three primary
grounds. First, the break could have been caused
from unusual forces placed upon the pipe from
the road under which it was embedded. Second,
the plaintiff could not establish that the LUL’s
underground construction created sufficient
differential settling of the earth to cause the
break. And, third, the plaintiff’s cast iron pipes
were already subject to numerous strains from
other causes that placed them near the bursting
point and, accordingly, any additional forces
caused by defendant’s activities were di minimis
(i.e., so slight as to be harmless) and could not
be deemed to be a legal cause of the breakage
even if they constituted the “straw that broke the
camel’s back.”
Thus, under the record before us, summary
judgment was proper.
Hence, the judgment of the trial court is
affirmed, at appellants' cost.
THAMES WATER UTILITIES LIMITED
v.
LONDON REGIONAL TRANSPORT,
London Underground Limited,
2004 WL 1808952(QBD (TACC)),
[2004] EWHC 2021, High Court of Justice
Technology & Construction Court (2004)
The trial judge first examined the law of
causation, as follows: ]
[A water utility company sued the London
underground railway company (i.e.,
“underground”)
on the theory that the
underground company’s construction works
placed undue strains of a 36 inch cast iron water
pipe (main) owned by the utility company,
causing it to burst at a joint. The escaping water
caused substantial damage to the water system
and nearby properties, costing the utility
The question of causation is a matter for factual
enquiry by the court, which is traditionally
undertaken by the application of the "but for"
test. A helpful summary of this approach can be
found in a passage from Clarke and Lindsell 17th
Edn. at 2-06:
"The first step in establishing causation
is to eliminate irrelevant causes, and this
is the purpose of the "but for" test. The
50
courts are concerned, not to identify all
of the possible causes of a particular
incident, but with the effective cause of
the resulting damage in order to assign
responsibility for that damage. The "but
for" test asks: would the damage of
which the claimant complains have
occurred "but for" the negligence (or
other wrongdoing) of the defendant? Or
to put it more accurately, can the
claimant adduce evidence to show that it
is more likely than not, more than 50 per
cent probable, that "but for" the
defendant's wrongdoing the relevant
damage would not have occurred. In
other words, if the damage would have
occurred in any event the defendant's
conduct is not a "but for" cause".
13. However, at the end of the passage, the
editors of C&L add the following caveat:
"It is worth bearing in mind that the ‘but for’
test functions as an exclusionary test, i.e. its
purpose is to exclude from consideration
irrelevant causes. The fact that the defendant's
conduct is found to be a cause, applying the ‘but
for’ test, is not conclusive as to whether he
should be held responsible in law since the
function of the causal enquiry in law is to
determine which causes have significance for
the purpose of attributing legal responsibility. It
is sometimes said that the law seeks the causa
causans (effective factor) rather than the causa
sine qua non (factor(s) without which damage
could not have occurred)."
14. There has been considerable judicial
discussion as to the limitations of the "but for"
test in establishing necessary causal connections
between the defendant's conduct and the
claimant's loss. See Dean v Dean and others
(2000) 80 P&CR 457, Lexis UK Property, 1975
CA, at para [31] where Peter Gibson LJ
observed that it is rarely a sufficient test for
ascertaining whether to that defendant is to be
attributed the sole effective cause of loss in a
case of tort.
In Case v Morane Ltd [2001] ICR 316, [2001]
IRLR 166, Mance LJ at para. 23 endorsed the
view that, in circumstances where there are
several possible causes contributing to the
claimant's loss, the determination of a causal
nexus that links the conduct of the defendant to
the said loss, and which is prerequisite to the
defendant's liability, should focus on the notions
such as "predominant", "real" or "effective"
cause rather than on the "but for" causal test.
15. In Banque Bruxelles Lambert SA v Eagle
Star Insurance Co Ltd and others (unreported,
Court of Appeal, 22 March 1996), an appeal on
an aspect of the trial that ended in the House of
Lords decision in Banque Bruxelles Lambert SA
v Eagle Star Insurance Co. Ltd and others [1995]
QB 375, Saville LJ said: "These two findings
of the judge undoubtedly satisfy a "but for" test
of causation. But so too, of course, would an
infinity of other facts. The real test however, is,
in my judgment, much more pragmatic and
based simply on common sense rather than
philosophical or metaphysical considerations. It
is whether the negligence was an effective cause
of the loss. That test has been repeated many
times in our courts."
16. Otton LJ elaborated on the common sense
approach:
"It is not necessary to identify the source of those
expressions, but they include, "an effective
cause", "present in the mind and influenced";
"contributory"; "an inducing cause"; "operated
upon the mind"; "relied upon, in a broad or
narrow sense"; "gives weight to his decision";
"motivates him"; "encourages him"; "is one of
the factors". Apart from the philosophical and
metaphysical considerations, to which my Lord
has referred, it is not helpful to consider any
linguistic distinctions between these expressions.
In the context of this case they would sit
comfortably in a judicial thesaurus. The
expression "but for" does not, in my view, add
anything and I am sceptical that except in a
51
general sense it has much value as a test for
causation. To paraphrase, which I do gratefully,
the words of McHugh JA in Alexander v
Cambridge Credit Corporation Ltd (1987) 9
NSWLR 310 at p 359 "the common law
champions the common sense notion of
causation". It is trite to say that causation is
essentially a question of fact in each case".
17. In March v. E. & M.H. Stramare Pty. Ltd.
(1991) 171 CLR 506, in the High Court of
Australia, four of the five members of the High
Court of Australia took the view that the "but
for" test was not a definitive test of causation in
tort. In the judgment of Mason CJ at 515:
"The common law tradition is that what was
the cause of a particular occurrence is a question
of fact which 'must be determined by applying
common sense to the facts of each particular
case', in the words of Lord Reid: Stapley v
Gypsum Mines Ltd. [1953] A.C. 663, 681 ... It
is beyond question that in many situations the
question whether Y is a consequence of X is a
question of fact. And, prior to the introduction
of the legislation providing for apportionment of
liability, the need to identify what was the
'effective cause' of the relevant damage
reinforced the notion that a question of
causation was one of fact and, as such, to be
resolved by the application of common sense.
Commentators subdivide the issue of causation
in a given case into two questions: the question
of causation in fact -- to be determined by the
application of the 'but for' test -- and the further
question whether a defendant is in law
responsible for damage which his or her
negligence has played some part in producing ...
It is said that, in determining this second
question, considerations of policy have a
prominent part to play, as do accepted value
judgments ... However, this approach to the
issue of causation (a) places rather too much
weight on the 'but for' test to the exclusion of
the 'common sense' approach which the
common law has always favoured; and (b)
implies, or seems to imply, that value judgment
has, or should have, no part to play in resolving
causation as an issue of fact. As Dixon CJ
Fullagar and Kitto JJ remarked in Fitzgerald v
Penn (1954) 91 C.L.R. 268, 277 'it is all
ultimately a matter of common sense' and 'in
truth the conception in question (i.e. causation)
is not susceptible of reduction to a satisfactory
formula"'
18. This approach was endorsed, as the correct
approach to causation, in Fairchild v Glenhaven
Funeral Services Ltd and others [2003] 1 AC 32,
HL, Lord Bingham said that Mason CJ did not at
p.508 (supra) "accept the 'but for' (causa sine
qua non) test ever was or now should become
the exclusive test of causation in negligence
cases", and then referred to the passage from the
Australian decision at 516:
"The 'but for' test gives rise to a well known
difficulty in cases where there are two or more
acts or events which would each be sufficient to
bring about the plaintiff's injury. The application
of the test 'gives the result, contrary to common
sense, that neither is a cause': Winfield &
Jolowicz on Tort, 13 superth ed (1989), p 134. In
truth, the application of the test proves to be
either inadequate or troublesome in various
situations in which there are multiple acts or
events leading to the plaintiff's injury: see e g
Chapman v Hearse, Baker v Willoughby [1970]
AC 467; McGhee v National Coal Board;
M'Kew v Holland & Hannen & Cubitts
(Scotland) Ltd 1970 SC(HL) 20 (to which I shall
shortly refer in some detail). The cases
demonstrate the lesson of experience, namely,
that the test, applied as an exclusive criterion of
causation, yields unacceptable results and that
the results which it yields must be tempered by
the making of value judgments and the infusion
of policy considerations."
19. In Fairchild v Glenhaven, the House of
Lords considered whether, and in which
circumstances, the 'but for' test of causation
could be relaxed. By reference to the specific
52
facts of the case, Lord Bingham formulated the
principles determining when the causal test for
the purposes of establishing liability could be
relaxed so as to allow the claimant to succeed in
the circumstances when the claimant for reasons
of scientific impossibility could not satisfy the
'but for' requirements. At para. 40, Lord
Bingham set out the factual circumstances and
the question raised by the appeals:
"The essential question underlying the
appeals may be accurately expressed in this way.
If (1) C was employed at different times and for
differing periods by both A and B, and (2) A
and B were both subject to a duty to take
reasonable care or to take all practicable
measures to prevent C inhaling asbestos dust
because of the known risk that asbestos dust (if
inhaled) might cause a mesothelioma, and (3)
both A and B were in breach of that duty in
relation to C during the periods of C's
employment by each of them with the result that
during both periods C inhaled excessive
quantities of asbestos dust, and (4) C is found to
be suffering from a mesothelioma, and (5) any
cause of C's mesothelioma other than the
inhalation of asbestos dust at work can be
effectively discounted, but (6) C cannot
(because of the current limits of human science)
prove, on the balance of probabilities, that his
mesothelioma was the result of his inhaling
asbestos dust during his employment by A or
during his employment by B or during his
employment by A and B taken together, is C
entitled to recover damages against either A or
B or against both A and B? To this question (not
formulated in these terms) the Court of Appeal
(Brooke, Latham and Kay LJJ), in a reserved
judgment of the court reported at [2002] 1 WLR
1052, gave a negative answer. It did so because
applying the conventional 'but for' test of
tortious liability, it could not be held that C had
proved against A that this mesothelioma would
probably not have occurred but for the breach of
duty by A, nor against B that his mesothelioma
would probably not have occurred but for the
breach of duty by B, nor against A and B that his
mesothelioma would probably not have occurred
but for the breach of duty by both A and B
together. So C failed against both A and B.
The crucial issue on appeal is whether, in the
special circumstances of such a case, principle,
authority or policy requires or justifies a
modified approach to proof of causation."
"To the question posed in paragraph 2 of this
opinion I would answer that where conditions
(1)-(6) are satisfied C is entitled to recover
against both A and B. That conclusion is in my
opinion consistent with principle, and also with
authority (properly understood). Where those
conditions are satisfied, it seems to me just and
in accordance with common sense to treat the
conduct of A and B in exposing C to a risk to
which he should not have been exposed as
making a material contribution to the contracting
by C of a condition against which it was the duty
of A and B to protect him. I consider that this
conclusion is fortified by the wider jurisprudence
reviewed above. Policy considerations weigh in
favour of such a conclusion. It is a conclusion
which follows even if either A or B is not before
the court. It was not suggested in argument that
C's entitlement against either A or B should be
for any sum less than the full compensation to
which C is entitled, although A and B could of
course seek contribution against each other or
any other employer liable in respect of the same
damage in the ordinary way. No argument on
apportionment was addressed to the House. I
would in conclusion emphasise that my opinion
is directed to cases in which each of the
conditions specified in (1)-(6) of paragraph 2
above is satisfied and to no other case."
20. Lords Nicolls and Hoffman arrived at the
same view holding that exceptionally a lesser
degree of causal connection may suffice than the
'but for' test of causal connection.
21. The 'but for' test clearly continues to be the
normal route to considering questions of
53
causation. It is not determinative as to the
question of causation. It may be a weighty
ingredient when all the factual elements are
evaluated not least whether the liability lies
within the scope of duty to the claimant imposed
on the Defendant by law. See Regina v
Immigration appeal Tribunal ex parte Shah 1959
AC page 629
22. Similarly in Banque Bruxelles Lambert SA
v Eagle Star Insurance Co. Ltd and others sub
nom. South Australia Asset Management
Corporation v York Montague Ltd [1997] AC
191. a decision on the issue of the measure of
damages, Lord Hoffmann considered the
following example that is illuminating on the
legal principles of causation as well:
“A mountaineer about to undertake a difficult
climb is concerned about the fitness of his knee.
He goes to a doctor who negligently makes a
superficial examination and pronounces the
knee fit. The climber goes on the expedition,
which he would not have undertaken if the
doctor had told him the true state of his knee.
He suffers an injury which is an entirely
foreseeable consequence of mountaineering but
has nothing to do with his knee. **
On the Court of appeal's principle, the doctor
is responsible for the injury suffered by the
mountaineer because it is damage, which would
not have occurred if he had been given correct
information about his knee. He would not have
gone on the expedition and would have suffered
no injury. On what I have suggested is the more
usual principle, the doctor is not liable. The
injury has not been caused by the doctor's bad
advice because it would have occurred even if
the advice had been correct.
(...) Your Lordships might, I would suggest,
think that there was something wrong with a
principle, which, in the example, which I have
given, produced the result that the doctor was
liable. What is the reason for this feeling? I think
that the Court of Appeal's principle offends
common sense because it makes the doctor
responsible for consequences which, though in
general terms foreseeable, do not appear to have
a sufficient causal connection with the subject
matter of the duty. The doctor was asked for
information on only one of the considerations
which might affect the safety of the mountaineer
on the expedition. There seems no reason of
policy which requires that the negligence of the
doctor should require the transfer to him of all
the foreseeable risks of the expedition."
23. From the decisions that I refer to above, the
following considerations apply to questions of
causation in this case. The 'but for' test is a
necessary but not determinative test of causation.
It may serve as an exclusionary filter, or to
identify viable causes.
Even where the claimant satisfies the 'but for'
test, the court has an obligation to evaluate that
cause in terms of its materiality.
The court approaches the task of evaluation in a
'common sense' way informed and guided by
reference to the scope of the duty owed.
There are no 'exceptional' or 'policy' grounds
that would warrant the relaxation of the normal
rules as to causation.
[Ed. After exhaustively summarizing the
extensive evidence, the trial rendered these
judgments on the evidence:]
**
]Ed. Suppose the physician
negligently told the patient that the knee was
bad when in fact it was good. Based upon the
negligent advice, the patient decided to forego
the trip. As a consequence, the patient failed
to claim a share of a very valuable prize.
Should the physician be responsible for this
lost opportunity and the share of the prize?]
178. I am satisfied that strains induced by
relative rotation caused by ground movement led
to substantial strains in the failed socket which
were of such magnitude that when added to
54
those from the normal operating and imposed
loads resulted in the strain in the cast iron
exceeding that which was permissible and led to
the failure by way of a prising/shearing
fragmentation.
.....
fractured surface.
184. The possibility that the mode of failure
was caused by an abnormally
large, rapidly applied, localised loading in my
judgment has been positively excluded.
185. I am satisfied that the deep tunnel
excavations, shaft sinking and compensation
grouting caused differential settlement in the
shallow made-up ground surrounding the pipe.
This was in part the result of the type of
predicted settlement, which was in fact greater
than anticipated. It was also in consequence of
the induced consolidation effects of the
tunnelling and the other works in particular, the
east vent shaft which affected the ground water
regime.
186. These works triggered the localised
movements in the Alluvium proved to be present
beneath the failed section of the pipe so as to
affect the shallow foundations of the pipe.
Because of the natural geology erosion processes
and man made disturbance the localised
movements both complex and variable had
horizontal and vertical components.
187. The probability exists that the effects of
the differential settlement caused by London
Underground works led also to some of the
shallow supporting ground becoming metastable
and that this proximate event causing final
failure was a relatively minor triggering event.
188. The state of affairs brought about by
London Underground was the prime and
effective cause for the differential settlement,
which led to the imposition of loadings to the
joint, causing shearing/prising and thus bursting.
189. I am satisfied on the evidence that had the
settlement caused by LUL works not have
occurred, then the state of the pipe was such that
it would have continued in use for many years to
come.
190. I reject the suggestion that the ground
movement caused by LUL was so slight that it
could be characterised as 'the straw that broke
the camel's back', by adding a nominal loading to
180. I am also persuaded by the evidence of Dr
New contained in his supplemental statement
and confirmed in oral evidence that the
explanation of the high localised rapidly applied
load causing the fracture cannot be supported.
181. Dr New produced graphic impressive
evidence as to the effects brought about where
a pipe fails due to an established localised point
of loading such as proposed by LUL's experts.
One is a photograph of a pipe of a brittle
material (not cast iron) which shows a failure
pattern depicted in figure 7.3 in Young & Trott.
The fragmentation pattern is wholly different to
the failed main in this case. The second
photograph is particularly relevant. It is a
photograph of a recent failure of a 36-inch cast
iron water main, which occurred at Wallace
Road, London, NW1 on 24 superth November
2003. The failure occurred during drilling, in a
metal fenced off area in the road by a mini JCB.
The fragmentation of the failed pipe at St.
Thomas Street bears no resemblance to the
fragmentation pattern caused by localised
loading.
182. It is accepted by all experts that the road
was not being excavated, so any possible direct
hit on the pipe by dynamic localised load must
have been transmitted through the bituminous
layers of pavement at sub base, some 1.4 metres
down to the crown of the pipe.
183. There is clear and undisputed evidence of
the witness mark left by a jackhammer when the
failed pipe was in fact broken out after the
failure. A vivid description of the effect of large
rapidly applied and localised force. No such
mark or indentation of any kind was left on the
outside of the fail pipe and in the vicinity of the
55
a pipe grossly loaded as a result of historic
locked in strains and stresses.
191. There will be judgment for Thames Water
on the issue of liability and causation.
to the relation between cause and effect. We
deal in terms of proximate cause, not of
negligence.
Negligence may be defined roughly as an act or
omission which unreasonably does or may affect
the rights of others, or which unreasonably fails
to protect one's self from the dangers resulting
from such acts. Here I confine myself to the first
branch of the definition. Nor do I comment on
the word 'unreasonable.' For present purposes it
sufficiently describes that average of conduct
that society requires of its members.
PALSGRAF
v.
LONG ISLAND R. CO.
162 N.E. 99 (N.Y. 1928)
Court of Appeals of New York.
ANDREWS, J. (dissenting).
There must be both the act or the omission, and
the right. It is the act itself, not the intent of the
actor, that is important. ... In criminal law both
the intent and the result are to be considered.
Intent again is material in tort actions, where
punitive damages are sought, dependent on
actual malice--not one merely reckless conduct.
But here neither insanity nor infancy lessens
responsibility. ...
As has been said, except in cases of
contributory negligence, there must be rights
which are or may be affected. Often though
injury has occurred, no rights of him who suffers
have been touched. A licensee or trespasser
upon my land has no claim to affirmative care on
my part that the land be made safe....Where a
railroad is required to fence its tracks against
cattle, no man's rights are injured should he
wander upon the road because such fence is
absent..... An unborn child may not demand
immunity from personal harm. ...
Assisting a passenger to board a train, the
defendant's servant negligently knocked a
package from his arms. It fell between the
platform and the cars. Of its contents the servant
knew and could know nothing. A violent
explosion followed. The concussion broke
some scales standing a considerable distance
away. In falling, they injured the plaintiff, an
intending passenger.
Upon these facts, may she recover the damages
she has suffered in an action brought against the
master? The result we shall reach depends upon
our theory as to the nature of negligence. Is it a
relative concept--the breach of some duty owing
to a particular person or to particular persons?
Or, where there is an act which unreasonably
threatens the safety of others, is the doer liable
for all its proximate consequences, even where
they result in injury to one who would generally
be thought to be outside the radius of danger?
This is not a mere dispute as to words. We
might not believe that to the average mind the
dropping of the bundle would seem to involve
the probability of harm to the plaintiff standing
many feet away whatever might be the case as to
the owner or to one so near as to be likely to be
struck by its fall. If, however, we adopt the
second hypothesis, we have to inquire only as
But we are told that 'there is no negligence
unless there is in the particular case a legal duty
to take care, and this duty must be not which is
owed to the plaintiff himself and not merely to
others.' Salmond Torts (6th Ed.) 24. This I
think too narrow a conception. Where there is
the unreasonable act, and some right that may be
affected there is negligence whether damage
56
does or does not result. That is immaterial.
Should we drive down Broadway at a reckless
speed, we are negligent whether we strike an
approaching car or miss it by an inch. The act
itself is wrongful. If is a wrong not only to
those who happen to be within the radius of
danger, but to all who might have been there--a
wrong to the public at large. Such is the
language of the street. Such the language of the
courts when speaking of contributory
negligence. Such again and again their language
in speaking of the duty of some defendant and
discussing proximate cause in cases where such
a discussion is wholly irrelevant on any other
theory.... As was said by Mr. Justice Holmes
many years ago:
'The measure of the defendant's duty in
determining whether a wrong has been
committed is one thing, the measure of
liability when a wrong has been committed is
another.' Spade v. Lynn & B. R. Co., 172
Mass. 488, 491, 52 N. E. 747, 748 (43 L. R.
A. 832, 70 Am. St. Rep. 298).
wife's services. To say that the wrongdoer was
negligent as to the husband as well as to the wife
is merely an attempt to fit facts to theory. An
insurance company paying a fire loss recovers
its payment of the negligent incendiary. We
speak of subrogation--of suing in the right of the
insured. Behind the cloud of words is the fact
they hide, that the act, wrongful as to the
insured, has also injured the company. Even if
it be true that the fault of father, wife, or insured
will prevent recovery, it is because we consider
the original negligence, not the proximate cause
of the injury. Pollock, Torts (12th Ed.) 463.
.....
The proposition is this: Every one owes to the
world at large the duty of refraining from those
acts that may unreasonably threaten the safety of
others. Such an act occurs. Not only is he
wronged to whom harm, might reasonably be
expected to result, but he also who is in fact
injured, even if he be outside what would
generally be thought the danger zone. There
needs be duty due the one complaining, but this
is not a duty to a particular individual because as
to him harm might be expected. Harm to some
one being the natural result of the act, not only
that one alone, but all those in fact injured may
complain. We have never, I think, held
otherwise. Indeed in the Di Caprio Case we said
that a breach of a general ordinance defining the
degree of care to be exercised in one's calling is
evidence of negligence as to every one. We did
not limit this statement to those who might be
expected to be exposed to danger. Unreasonable
risk being taken, its consequences are not
confined to those who might probably be hurt.
Due care is a duty imposed on each one of us to
protect society from unnecessary danger, not to
protect A, B, or C alone.
It may well be that there is no such thing as
negligence in the abstract. 'Proof of negligence
in the air, so to speak, will not do.' In an empty
world negligence would not exist. It does
involve a relationship between man and his
fellows, but not merely a relationship between
man and those whom he might reasonably
expect his act would injure; rather, a
relationship between him and those whom he
does in fact injure. If his act has a tendency to
harm some one, it harms him a mile away as
surely as it does those on the scene. We now
permit children to recover for the negligent
killing of the father. It was never prevented on
the theory that no duty was owing to them. A
husband may be compensated for the loss of his
If this be so, we do not have a plaintiff suing by
'derivation or succession.' Her action is original
and primary. Her claim is for a breach of duty to
herself--not that she is subrogated to any right of
action of the owner of the parcel or of a
passenger standing at the scene of the explosion.
57
The right to recover damages rests on additional
considerations. The plaintiff's rights must be
injured, and this injury must be caused by the
negligence. We build a dam, but are negligent
as to its foundations. Breaking, it injures
property down stream. We are not liable if all
this happened because of some reason other than
the insecure foundation. But, when injuries do
result from out unlawful act, we are liable for
the consequences. It does not matter that they
are unusual, unexpected, unforeseen, and
unforeseeable. But there is one limitation. The
damages must be so connected with the
negligence that the latter may be said to be the
proximate cause of the former.
brown swamp water flows from the left. Later,
from the right comes water stained by its clay
bed. The three may remain for a space, sharply
divided. But at last inevitably no trace of
separation remains. They are so commingled
that all distinction is lost.
As we have said, we cannot trace the effect of an
act to the end, if end there is. Again, however,
we may trace it part of the way. A murder at
Serajevo may be the necessary antecedent to an
assassination in London twenty years hence. An
overturned lantern may burn all Chicago. We
may follow the fire from the shed to the last
building. We rightly say the fire started by the
lantern caused its destruction.
These two words have never been given an
inclusive definition. What is a cause in a legal
sense, still more what is a proximate cause,
depend in each case upon many considerations,
as does the existence of negligence itself. Any
philosophical doctrine of causation does not
help us. A boy throws a stone into a pond. The
ripples spread. The water level rises. The
history of that pond is altered to all eternity. It
will be altered by other causes also. Yet it will
be forever the resultant of all causes combined.
Each one will have an influence. How great
only omniscience can say. You may speak of a
chain, or, if you please, a net. An analogy is of
little aid. Each cause brings about future events.
Without each the future would not be the same.
Each is proximate in the sense it is essential.
But that is not what we mean by the word. Nor
on the other hand do we mean sole cause. There
is no such thing.
A cause, but not the proximate cause. What we
do mean by the word 'proximate' is that, because
of convenience, of public policy, of a rough
sense of justice, the law arbitrarily declines to
trace a series of events beyond a certain point.
This is not logic. It is practical politics. Take
our rule as to fires. Sparks from my burning
haystack set on fire my house and my
neighbor's. I may recover from a negligent
railroad He may not. Yet the wrongful act as
directly harmed the one as the other. We may
regret that the line was drawn just where it was,
but drawn somewhere it had to be. We said the
act of the railroad was not the proximate cause
of our neighbor's fire. Cause it surely was. The
words we used were simply indicative of our
notions of public policy. Other courts think
differently. But somewhere they reach the point
where they cannot say the stream comes from
any one source.
Should analogy be though helpful, however, I
prefer that of a stream. The spring, starting on
its journey, is joined by tributary after tributary.
The river, reaching the ocean, comes from a
hundred sources. No man may say whence any
drop of water is derived. Yet for a time
distinction may be possible. Into the clear creek,
Take the illustration given in an unpublished
manuscript by a distinguished and helpful writer
on the law of torts. A chauffeur negligently
collides with another car which is filled with
dynamite, although he could not know it. An
explosion follows. A, walking on the sidewalk
58
nearby, is killed. B, sitting in a window of a
building opposite, is cut by flying glass. C,
likewise sitting in a window a block away, is
similarly injured. And a further illustration: A
nursemaid, ten blocks away, startled by the
noise, involuntarily drops a baby from her arms
to the walk. We are told that C may not recover
while A may. As to B it is a question for court
or jury. We will all agree that the baby might
not. Because, we are again told, the chauffeur
had no reason to believe his conduct involved
any risk of injuring either C or the baby. As to
them he was not negligent.
truth little to guide us other than common sense.
There are some hints that may help us. The
proximate cause, involved as it may be with
many other causes, must be, at the least,
something without which the event would not
happen. The court must ask itself whether there
was a natural and continuous sequence between
cause and effect. Was the one a substantial
factor in producing the other? Was there a direct
connection between them, without too many
intervening causes? Is the effect of cause on
result not too attentuated? Is the cause likely, in
the usual judgment of mankind, to produce the
result? Or, by the exercise of prudent foresight,
could the result be foreseen? Is the result too
remote from the cause, and here we consider
remoteness in time and space. Bird v. St. Paul &
M. Ins. Co., 224 N. Y. 47, 120 N. E. 86, 13 A. L.
R. 875, where we passed upon the construction
of a contract--but something was also said on
this subject. Clearly we must so consider, for the
greater the distance either in time or space, the
more surely do other causes intervene to affect
the result. When a lantern is overturned, the
firing of a shed is a fairly direct consequence.
Many things contribute to the spread of the
conflagration--the force of the wind, the
direction and width of streets, the character of
intervening structures, other factors. We draw
an uncertain and wavering line, but draw it we
must as best we can.
But the chauffeur, being negligent in risking the
collision, his belief that the scope of the harm he
might do would be limited is immaterial. His
act unreasonably jeopardized the safety of any
one who might be affected by it. C's injury and
that of the baby were directly traceable to the
collision. Without that, the injury would not
have happened. C had the right to sit in his
office, secure from such dangers. The baby was
entitled to use the sidewalk with reasonable
safety.
The true theory is, it seems to me, that the injury
to C, if in truth he is to be denied recovery, and
the injury to the baby, is that their several
injuries were not the proximate result of the
negligence. And here not what the chauffeur
had reason to believe would be the result of his
conduct, but what the prudent would foresee,
may have a bearing--may have some bearing, for
the problem of proximate cause is not to be
solved by any one consideration. It is all a
question of expediency. There are no fixed
rules to govern our judgment. There are simply
matters of which we may take account. We
have in a somewhat different connection spoken
of 'the stream of events.' We have asked
whether that stream was deflected--whether it
was forced into new and unexpected channels.
... This is rather rhetoric than law. There is in
Once again, it is all a question of fair judgment,
always keeping in mind the fact that we
endeavor to make a rule in each case that will be
practical and in keeping with the general
understanding of mankind.
Here another question must be answered. In the
case supposed, it is said, and said correctly, that
the chauffeur is liable for the direct effect of the
explosion, although he had no reason to suppose
it would follow a collision. 'The fact that the
59
injury occurred in a different manner than that
which might have been expected does not
prevent the chauffeur's negligence from being in
law the cause of the injury.' But the natural
results of a negligent act--the results which a
prudent man would or should foresee--do have
a bearing upon the decision as to proximate
cause. We have said so repeatedly. What should
be foreseen? No human foresight would suggest
that a collision itself might injure one a block
away. On the contrary, given an explosion, such
a possibility might be reasonably expected. I
think the direct connection, the foresight of
which the courts speak, assumes prevision of
the explosion, for the immediate results of
which, at least, the chauffeur is responsible.
the direct cause of the plaintiff's injuries.' So it
was a substantial factor in producing the result-there was here a natural and continuous
sequence--direct connection.
The only
intervening cause was that, instead of blowing
her to the ground, the concussion smashed the
weighing machine which in turn fell upon her.
There was no remoteness in time, little in space.
And surely, given such an explosion as here, it
needed no great foresight to predict that the
natural result would be to injure one on the
platform at no greater distance from its scene
than was the plaintiff. Just how no one might be
able to predict. Whether by flying fragments, by
broken glass, by wreckage of machines or
structures no one could say. But injury in some
form was most probable.
If may be said this is unjust. Why? In fairness
he should make good every injury flowing from
his negligence. Not because of tenderness
toward him we say he need not answer for all
that follows his wrong. We look back to the
catastrophe, the fire kindled by the spark, or the
explosion. We trace the consequences, not
indefinitely, but to a certain point. And to aid us
in fixing that point we ask what might ordinarily
be expected to follow the fire or the explosion.
Under these circumstances I cannot say as a
matter of law that the plaintiff's injuries were not
the proximate result of the negligence. That is
all we have before us. The court refused to so
charge. No request was made to submit the
matter to the jury as a question of fact, even
would that have been proper upon the record
before us.
WING
v.
MORSE
300 A.2d 491 (ME 1973)
Supreme Judicial Court of Maine.
This last suggestion is the factor which must
determine the case before us. The act upon
which defendant's liability rests is knocking an
apparently harmless package onto the platform.
The act was negligent. For its proximate
consequences the defendant is liable. If its
contents were broken, to the owner; if it fell
upon and crushed a passenger's foot, then to
him; if it exploded and injured one in the
immediate vicinity, to him also as to A in the
illustration. Mrs. Palsgraf was standing some
distance away. How far cannot be told from the
record--apparently 25 or 30 feet, perhaps less.
Except for the explosion, she would not have
been injured. We are told by the appellant in his
brief, 'It cannot be denied that the explosion was
POMEROY, Justice.
[The plaintiff, the driver of a tractor trailer, sued
the defendant for injuries he suffered when he
crashed as a result of the defendant’s actions
described below. The trial court directed a
verdict for the plaintiff and the defendant
appealed.]
We sustain the appeal and order a new trial.
60
The action arose out of an automobile accident
which occurred on Interstate Highway #95 in
Bangor, Maine.
attached. The trailer was loaded with potatoes
and the trip had originated in Caribou. The
plaintiff's destination was Vassalboro. His
testimony on direct examination as to the events
immediately prior to the happening of the
accident was as follows:
Q Alright, and what happened as you
approached the Hogan Interchange or bypassed
the Hogan interchange?
A I was in the left hand lane and I was looking
to get back into the right hand lane because
that is where trucks belong, but the traffic from
the streets before I got to the Hogan Road was
still to the right of me so I couldn't pull over.
I see this traffic up ahead and it seemed to be
moving very slow, but as I got closer it wasn't
moving at all.
Q Now what did you see? What actually did
you see?
A I see these-I see these two cars. One was at
quite a right angle to me, and I could see the
lights, the tail lights of it.
Q When you say it was at quite a right angle,
what do you mean?
A Well it was off-the trial end was off to the
side a little ways.
Q And where was the front end?
A The front end was out towards the middle of
the road.
Q What else did you see with reference to that
automobile?
A I see that it wasn't moving.
Q Did you see another vehicle in the area?
A I didn't notice. They were-there was another
vehicle. It didn't look like it was moving, but
I wasn't sure of that either.
Q What else did you see?
A So I started slowing down.
Q What else did you see?
A Oh, I see that there was no way for me to get
by them and there was no way for me to stop.
Q How far away were you, would you
estimate, when you first saw these vehicles in
the road?
The undisputed evidence makes it apparent
Interstate Highway #95 at the point where the
accident occurred is a 4-lane limited access
highway, 2 lanes being utilized for northbound
traffic and 2 lanes for southbound traffic. A
median strip separated the northbound lane from
the southbound lane. The defendant admitted he
had attempted to make a U-turn crossing from
the northbound lane into the southbound lane
across and median strip.
The this constituted a violation of law is not
disputed.
It is likewise clear that this negligent action on
the part of the defendant was the legal cause of
a collision with an automobile to which a house
trailer was attached which was proceeding in a
southerly direction along the southbound lane of
the highway. This caused the automobile and
trailer to come to rest with the automobile
across the passing lane, so-called, of the
southbound lane of the highway and the trailer
projecting somewhat into the traveled lane.
Shortly after this collision occurred a State
Police officer appeared on the scene and stopped
his unmarked police vehicle on the median strip.
The police vehicle was equipped with a blue
light on its dash. The officer turned on the blue
light. A large number of automobiles were
traveling in the southbound lane of the highway
and by reason of the accident, had been caused
to slow down to such an extent a line of vehicles
had been formed extending from the scene of
the accident back a distance the jury could have
concluded was about one-half mile.
It is undisputed that the plaintiff was driving a
Ford Diesel tractor with a refrigerated trailer
61
A Oh, approximately 200 yards.
Q Alright, and then what did you do at that
point?
A I applied the brakes.
Q And what else did you do?
A I see that I couldn't stop, and I couldn't pull
to the right because of the traffic on the right
of me, so I left the road to avoid hitting the
cars in the road.
Q You say you left the road. What did you
do?
Q I pulled it down into the median strip.
Q Pulled what?
A The truck.
Q Alright. The median strip being the grassy
area between the north bound and south bound
lanes?
A Right.
Q Alright. Tell us what happened as you
pulled it over off the road?
A When I pulled it off the road I figured, well
I have had it, but here goes, and I did. I went
down into the Median strip and across the
service road. When I hit the other side
everything just went white and I don't
remember too much after that.'
The word 'proximate' is a legacy of Lord
Chancellor Bacon. Bacon, Maxims of the Law,
Reg. 1.[FN1]
FN1. 'In jure non remota causa, sed
proxima spectatur. (In law the near
cause is looked to, not the remote one.) It
were infinite for the law to judge the
cause of causes, and their propulsion of
one another; therefore it contenteth itself
with the immediate cause and judgeth of
actions by that, without looking to any
further degree.'
When the word 'proximate' was first taken up by
the courts, it had connotations of proximity of
both time and space. These connotations have
long since disappeared. It is a confusing and
therefore an unfortunate word because it
improperly places emphasis on the physical or
mechanical closeness of the cause under
investigation and the happening of the event in
issue. Of this, most modern authorities are in
agreement. See for example, Edgerton, Legal
Cause, 72 U.Pa.L.Rev. 211 (1924); Morris, On
the Teaching of Legal Cause, 39 Colum.L.Rev.
1087 (1931).
The appellant here urges upon us that the
defendant's negligence in attempting to
negotiate a U-turn in violation of the law was so
remote it cannot be considered a proximate
cause of the plaintiff's injury.
There are other situations in which a 'cause' is
clearly near in both point of time and distance,
but yet, because of legal policy considerations
working in the framework of the particular facts,
such cause is not held to be a 'legal cause.' In
such cases there is the intervention of an
unrelated cause, (unrelated in the sense of not
being within the policy considerations) not
reasonably foreseeable, which intervening cause
is itself an efficient cause. See for example:
Curtis v. Jacobson, 142 Me. 351, 54 A.2d 520
(1947).
From the evidence the jury would be forced to
conclude that at least ten minutes elapsed
between the happening of the collision,
admittedly occasioned by the defendant's
attempted U-turn and the accident which
occasioned the plaintiff's injuries.
Very few words commonly employed in the law
of torts have occasioned as much case law and
confusion as the term 'proximate cause.'
It is for this reason our Court has defined
proximate cause to mean:
'. . . that cause which, in natural and
62
continuous sequence, unbroken by an efficient
intervening cause, produces the injury, and
without which the result would not have
occurred.'
Johnson v. Dubois, Me., 256 A.2d 733, 734
(1969).
A negligent act, i. e., a violation of the duty to
use reasonable care toward another, is a legal
cause of harm to such other person if
(a) the actor's conduct is a substantial factor in
bringing about the harm, and
(b) there is no rule of law relieving the actor
from liability because of the manner in which
his negligence has resulted in the harm.
In Marsh v. Great Northern Paper Company,
101 Me. 489, 502, 64 A. 844, 850 (1906), it
was said:
'Another important rule which must be taken
into consideration, and which if (sic) very
generally agreed to is that time or distance is
not decisive test of proximity of cause. The
expression means closeness of causal relation,
not nearness in time or distance, although it is
undoubtedly true that time and distance, in
some cases, may have an important bearing
upon the question of causal relation.'
Here, in the case before, us, it is clear that as a
matter of law this defendant owed a duty to all
travelers on the highway to exercise reasonable
care toward all such travelers whom he ought
reasonably to have had in contemplation as a
traveler to be affected by the doing of his
negligent act as the time did such act. There was
certainly no rule of law relieving him from
liability. His failure to deport himself in
accordance with the standard of care by which
he was bound, was most certainly a substantial
factor, though clearly not the only factor, in
bringing about this plaintiff's misfortune.
A complete and thorough discussion of the
whole question of proximate cause as applied to
a situation not substantially unlike that here
before us is to be found in an opinion by Chief
Judge Magruder in Marshall v. Nugent and
Socony-Vacuum Oil Company, 222 F.2d 604,
610-612 (1st Cir. 1955). . . .
It is also clear the defendant's negligence in
attempting to negotiate the U-turn from the
northbound lane into the southbound lane caused
the collision with the unidentified motor vehicle
to which the house trailer was attached. This the
defendant concedes in his brief.
In approaching any problem of proximate cause
one must start with the premises that the act or
conduct, to be negligent toward another, must
involve an unreasonable risk of
(1) causing harm to a class of persons of
which the other is a member, and
(2) subjecting the other to ahazard from which
the harm results.
The accident in which the plaintiff received
injuries, although happening ten minutes or more
after the first collision, occurred at a time the
highway was partially clogged by traffic and
before the southbound lane had become cleared.
The risks created by the defendant's departure
from the standard of care required of all travelers
on the highway were still viable.
Cause, in the philosophic sense, includes each
of the substantial number of events without
which any happening would not have occurred.
Each of the events is a cause in that sense. The
effect of many of them, however, is so
insignificant that no reasonable mind would
ordinarily think of them as causes.
The question whether the defendant's violation
of the law prohibiting the U-turn, which
admittedly brought about the collision with the
unidentified vehicle, was a 'proximate cause' or
'legal cause' of the plaintiff's injures was for the
63
jury. Johnson v. Dubois, supra; Marsh v. Great
Northern Paper Company, supra.
The jury found it was such legal cause.
We cannot say as a matter of law it was not.
64
Subtopic SIX
DAMAGES AS AN ELEMENT
OF THE CAUSE OF ACTION
WITH PARTICULAR APPLICATION
TO PERSONAL INJURIES
65
injuries from the accident. Russell Jordan was
injured by reason of a collision which occurred
between his bicycle and a 1968 Fiat automobile
owned by defendant Linda Bero and driven by
her husband Wayne Bero, who was the sole
occupant of the automobile. How the collision
occurred was a matter in dispute. The Bero
automobile overtook the Jordan bicycle when
both vehicles were traveling the same lane of
traffic and the automobile either struck the
bicycle from behind or the Jordan infant drove
his bicycle into the path of the overtaking
vehicle.
JORDAN
v.
BERO
210 S.E.2D 618 (W.VA. 1974)
Supreme Court of Appeals of West Virginia
HADEN, Justice:
This is an appeal by Linda L. Bero and Wayne
R. Bero, defendants in an automobile accident
case, who complain of a final order of the
Circuit Court of Marshall County which refused
to set aside a judgment entered upon a jury
verdict in favor of the plaintiffs in the amounts
of $20,000 and $6,000 respectively.
Without a doubt, the most troublesome problem
presented on this appeal involves the proof of
permanent injuries and the instructions given and
refused by the court in clarification of this issue.
Defendants' Instruction No. 19 which was
refused by the court would have told the jury that
there was not sufficient evidence of permanent
injury suffered by the plaintiff resulting from the
accident which would permit a lawful recovery
of damages therefor. Consequently, even though
the jury determined to find for the plaintiffs, it
would have been instructed by the court not to
award any damages for permanent injuries.
[The jury returned a verdict for the injured boy
in the amount of $20,000 for general damages,
future medical expenses, earnings losses and
pain and suffering. The jury also returned a
verdict for the boy’s father in the amount of
$6,000 for accrued medical expenses and losses
of the boy’s services and for future medical
expenses and future losses of the boy’s
services.]
We accepted this appeal to consider . . . .
whether the medical evidence in support of the
plaintiffs' claims for personal injury and future
effects proximately resulting therefrom was
adduced with a degree of reasonable certainty so
as to support instructions to the jury which made
the existence of and recovery for such injuries a
question for the jury to decide.
On the other hand, Plaintiffs' Instruction Nos. 14
and 15, given by the court, made the question of
the existence and amount of permanent injuries
one for the jury's determination. In both
instructions the jury was permitted, after
resolution of the issue of liability, to allocate a
portion of its award of damages to permanent
injuries. Neither Plaintiffs' Instruction No. 14 nor
Plaintiffs' Instruction No. 15 required that the
jury find as a part of its award that plaintiff was
entitled to permanent damages. The language
used was merely permissive or suggestive to the
jury that it could award such damages 'if any'
they found to be warranted under the
circumstances and evidence of the case.
.....
The accident which provided the genesis for this
litigation occurred at approximately 5:30 p.m.
on the 29th day of May, 1969, on State Route
No. 2, in Mason County, West Virginia. An
infant plaintiff, Russell Jordan, then ten years of
age, who was riding his bicycle in a northerly
direction on the highway, suffered personal
66
In Plaintiffs' Instruction No. 14, the jury was
instructed that Norman Jordan, the infant
plaintiff's father, would be entitled to recover
from a negligent defendant, specials
representing doctor, drug and hospital bills
expended to date in the amount of $1,022.53. In
addition, and forming the basis for the
defendants' objection, the jury was also
permitted to give consideration to injuries,
permanent in nature, allocable to Norman
Jordan, as represented by:
'(1) Future doctor, drug and medical bills to be
incurred, If any, on behalf of Russell Jordan;
'(2) Any future labor or wages of Russell
Jordan that his father, Norman D. Jordan,
would be entitled to in the future, If any.
(Emphasis supplied).
'And in considering the above, you may take
into consideration the age and physical
condition of the Plaintiff, Russell Jordan, at
the time of his injuries, but in no event shall
your verdict in this case exceed the sum of
$12,000.00.' (The amount demanded in the Ad
damnum clause of the complaint).
physical condition of the Plaintiff at the time of
his injuries, but in no event shall your verdict
in this case exceed the sum of $50,000.00.'
(The amount demanded in the Ad damnum
clause of the complaint).
The defendants objected to both instructions on
the basis that they, in allowing the jury to
consider the amount sued for, $12,000 and
$50,000, respectively, amounts not proven in
evidence, constituted prejudicial error from that
standpoint alone. While we agree with the thrust
and implication of the defendants' objection in
this regard, that such sums are normally relevant
only in limitation of the amount of the jury's
award to a plaintiff, we do not find error on this
assignment.
Certainly, the better practice would be to
withhold any monetary figure from the jury's
consideration which might be suggestive of
amounts of damage not proven in evidence.
However, recognizing the proper function of the
jury and, also, that damage awards in personal
injury actions are necessarily somewhat
indeterminate in character and amount, this
Court, while not approving exposition of Ad
damnum clauses to the jury, does not reverse a
case for this impropriety alone. . . .
In Plaintiffs' Instruction No. 15, the jury was
instructed that the infant plaintiff, Russell
Jordan, could recover from a negligent
defendant for the physical and mental pain to
date that he had suffered as a result of the
accident, and further--again forming the basis
for the defendants' objection--, the jury could
consider any of plaintiff's injuries resulting from
the accident which were permanent in nature,
and make an award in such sum as would
compensate him for:
'(1) Future physical and mental pain and
suffering, If any.
'(2) Loss of future earnings, If any, which he
may sustain in the future.
'(3) Any residuals, If any, that he may sustain
in the future. (Emphasis supplied).
'And in considering the above, you (the jury)
may take into consideration the age and
Moving to the substantial and troublesome bases
of defendants' objections--to the court's refusal in
giving Defendants' Instruction No. 19, and to the
court's granting of Plaintiffs' Instructions Nos. 14
and 15---, we must squarely confront the
question of permanency of injuries and the proof
adduced in support thereof. In a nutshell,
defendants assert, and correctly so, that to form
a basis of a legal recovery for the future
permanent consequences of the wrongful
infliction of a personal injury, it must appear
with reasonable certainty that such consequences
will result from the injury. Contingent or merely
possible future injurious effects are too remote
67
and speculative to support a lawful recovery.
Wilson v. Fleming, 89 W.Va. 553, 109 S.E. 810
(1921). To meet the contention, the plaintiffs,
while recognizing the validity of the foregoing
rule in this jurisdiction, seek to avoid the thrust
of this objection on the basis that the inclusion
of the crucial language, 'if any' vitiates the
objection. Plaintiffs say that inasmuch as the
instructions allowing an award of permanent
injuries are couched in merely permissive
language rather than in the form of a binding
directive to the jury, the giving of the same does
not constitute reversible error. . . . The drafter of
this opinion would be fortunate indeed if the
problem were susceptible of such a simple
solution. Unfortunately, it is not.
permanent in nature.
This evidence was not diminished in sufficiency
or counteracted by other evidence elicited by
cross-examination that the boy was in good
condition upon his discharge from the hospital,
or that he was asymptomatic at the time of
examination, or that there was a 'good prognosis'
for recovery. If words are to have their common
meaning, a permanent injury is one from which
there can be no complete recovery. The
physicians who testified in this case did not wish
to play God in prognosticating the future effects
of the plaintiff's permanent injury. Neither will
this Court. We must take the facts as they are and
recognize that a ten-year-old boy suffered a
severe brain injury proximately resulting from
the negligent conduct of the defendant. Although
this boy had made a reasonably good recovery
from that injury at the time of trial, neither his
physicians, a jury, the trial court, nor this Court
can predict with absolute certainty the future
effects which may ensue from this permanent
injury. The physicians have, however, diagnosed
with reasonable certainty that a brain injury of
this type is permanent. As the jury did, we accept
that diagnosis.
We are confronted once again with the problem
of determining how much evidence is necessary
to meet the standard of reasonable certainty
which will support instructions to the jury that
that body properly might give consideration in
its award of damages to lasting and permanent
effects of an injury suffered at the hands of a
negligent defendant. At the outset, we must
review the evidence of permanency in this case
and then decide whether the rules applicable to
the evidence sustain the recovery given the
plaintiffs in the court below, or whether these
rules necessarily require the reversal of the
results of this case and the award of a new trial
to the defendants.
Consequently, we hold that it was not error for
the trial court to refuse to give Defendants'
Instruction No. 19, which would have instructed
the jury that they could not consider plaintiff's
claim for permanent injuries in making an award
if they found defendant's acts negligent and
proximately causative of plaintiff's injuries.
The medical evidence in this case tells us that
Russell Jordan was rendered unconscious by a
blow or blows sustained in his vehicular
accident with Wayne Bero.
Numerous cases from this jurisdiction and others
have sustained an award or reversed a case to
permit an award for permanent injuries on
evidence similar in sufficiency.
.....
.....
We hold that plaintiff introduced sufficient
proof from expert testimony that the contusion
which rendered him unconscious for a period of
six days was a severe brain injury which is
Beyond merely suggesting to the jury that it
could make an award for permanency, Plaintiffs'
68
Instructions Nos. 14 and 15 elaborated and
specified elements of permanent injuries. In its
consideration of plaintiff's damages, the jury
was specifically referred to Future: residuals,
pain and suffering, impairment of plaintiff's
earning capacity and medical expenses, if any,
respectively. Here, as with the objections to the
general consideration of permanency,
defendants also say that the evidence of these
specific matters was not sufficiently presented,
to a degree of certainty, so as to support
instructions suggesting these items of recovery.
evidence, but a court must be scrupulous to
prevent pure speculation. See generally, Carrico
v. West Virginia C. & P. Ry. Co., 39 W.Va. 86,
102--103, 19 S.E. 571 (1894); 22 Am.Jur.2d
Damages s 26 (1965).
In this case, both the treating and evaluating
physician predicted in some measure future
effects of the Jordan infant's permanent brain
injury. Dr. Obregon, the treating physician
opined 'how soon it (the scar on the brain) will
manifest itself . . . nobody can really say for sure.
Only time will tell.' He testified in a statistical
sense that a significant number of people
suffering this type of brain injury later suffer
from permanent residuals such as personality
changes, memory changes, seizures of a simple
nature where just one arm shakes or an eye
twitch or 'be of a generalized nature' or relatively
more severe, 'they go into generalized
convulsions as in epilepsy.' The doctor further
concluded that without opening the brain there
would be no way to determine the amount of scar
tissue or knowing exactly how extensive it was,
or the stage of maturity of the scar, and said that
if he knew those things he might be in a better
position to predict the consequences. Otherwise,
as to a permament prognosis, he predicted
'(O)nly God knows. Only time will tell.'
At the outset, we note our belief that pain and
suffering and 'residuals' are elements so integral
to the legal and medical concept of permanency
as to be virtually inseparable and
indistinguishable. This Court and others have so
treated these subjects where the evidence has
warranted such approach. Fairness to the
objections raised by defendants, however,
compels a somewhat more extensive review of
the evidence and the law.
The question of the legal sufficiency of evidence
tending to prove the future effects of an injury
presents a classic dilemma for the litigants, the
witnesses, the courts and juries. In some
instances lay witnesses, including a party, may
relate their observations of the manifestations of
injuries. The prognosis of the future effect of
permanent injuries, however, must be elicited
from qualified experts, evaluated first by the
court and then, if found sufficient, considered by
the jury upon proper instruction. Further, as the
injured plaintiff is limited to but one recovery
for all of his injuries, presently ascertainable and
foreseeably predictable, proximately resulting
from a single tort, the juridical system must
respond fairly, adequately and completely in one
trial of the issues. In doing so, the court may
permit the plaintiff, who attempts to recover for
the future effects of his injuries, to infer
consequences from a sufficient quantum of
Considering objections to this type of testimony,
the court stated 'I'm sure that the jury understand
that he (the doctor) does not have a definite
opinion because he has nothing to base it on.'
Nevertheless, with this understanding, the trial
court overruled the defendants' objections and
admitted the testimony for the jury's
consideration.
In responding to questions as to the probability
that plaintiff would suffer future pain by reason
of the permanent injury, the treating physician
was much more definite. He testified that there
were two good reasons why the plaintiff would
69
experience pain in the future--the scalp wound
scar and the scar within the skull, resulting from
the contusion of the brain. In this context and in
the context of having an approximate fifty-one
percent chance of probability, he opined that the
plaintiff would have headaches in the future due
to the injury.
from the accident occurrence were proved to be
both necessary and reasonable, no effort was
made by the plaintiffs to prove the necessity for
future medical expenses or their projected
reasonable cost.
We also note that the plaintiffs made no
substantial effort to adduce explicit proof which
would support a finding that the boy's future
earning capacity would be impaired by reason of
his brain injury. The only evidence bearing on
this aspect of damages was the father's testimony
that the infant plaintiff did not perform his daily
chores with the same alacrity and concentration
as he had demonstrated prior to the accident.
Some ten months after the accident, the plaintiff
was referred to a second physician, Dr.
Holbrook, who specialized in neurosurgery.
Based upon the patient's case history, x-rays
previously taken, and upon his own physical
examination of the boy, the doctor found him to
be asymptomatic at the time of the examination,
and stated that the results of the neurological
examination disclosed an essentially normal
eleven-year-old boy.
On the other hand, this physician also agreed the
contusion suffered by the boy could result in
loss of memory, concentration and thinking
which were common residuals of such severe
brain injuries. He said that he could not rule out
future complications and could not to a
reasonable degree of medical certainty rule out
the possibilities of residuals from the permanent
brain injury. His ultimate medical conclusions
as to future permanent residuals from the
permanent injury were virtually synonymous
with that of Dr. Obregon, that is, 'only time will
tell.'
Although no specific medical or other expert
testimony was adduced on the point of
impairment of earning capacity, or on the point
of specific manifestations of permanent residuals
emanating from the permanent brain injury, lay
testimony was introduced directly and
inferentially on these points. The plaintiff
himself testified as to a complete memory loss of
events happening immediately prior to the
accident. This testimony, incidentally, was
corroborated by Drs. Obregon and Holbrook,
both of whom noted such condition in the Jordan
boy. The plaintiff also testified as to headaches
and as to lack of feeling at the scar situs on his
scalp, both of which were indicative of
neuroimpairment.
Dr. Holbrook also testified that the future
prognosis for the boy was good and, at the time
of his examination, no further medical treatment
was needed. Dr. Obregon's testimony on this
point was silent. Obregon merely said that he
had seen the boy some five times after his initial
discharge from the hospital on an out-patient
basis and that he was in 'good condition' when
released from initial hospitalization.
The boy's father, also a plaintiff in the action,
testified to several instances which tended to
demonstrate his son's lack of proper memory as
to events occurring before the accident, his lack
of ability to concentrate since the accident on
matters requiring both mental and physical
attention, and the general deterioration of the
boy's grade point average in school work
occurring since the accident.
Although the past medical expenses arising
On these basic facts we are asked whether
70
sufficient evidence of future consequences from
the negligent act of the defendant was proven to
lawfully permit the jury to make an award for
the future effects of the permanent injury.
establish the future effects of the injury to a
reasonable degree of certainty. . . . . .
Brain injury cases exemplify those in which both
the injury itself and more often, the future effects
of the injury fall into the classification of
'obscure' injuries. Physicians, courts and juries all
have particular trouble with evaluations of these
injuries.
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. . . . . . Future damages are
those sums awarded to an injured party for,
among other things: (1) Residuals or those
future effects of an injury which have reduced
the capability of an individual to function as a
whole man; (2) future pain and suffering; (3)
loss or impairment of earning capacity; and (4)
future medical expenses.
In fairness to the plaintiff, courts and juries tend
to give the benefit of the doubt to the injured
plaintiff when the effects of the injury are such
that they may very well be serious, permanent,
and functionally disabling, when their possible
manifestations are latent and often hidden from
the view of both the qualified surgeon and the
layman juror. On the other hand, in fairness to a
defendant who may be called upon to pay a very
large sum to compensate for an injury which
may, in fact, not be present, courts remain
circumspect and necessarily severe in the
application of the reasonable certainty rule.
As indicated from the case references to
permanency of injuries and sufficiency of proof
thereof, Supra, many such cases are tested on
appeal from the aspect of who was qualified to
give testimony as to the reasonable certainty of
the future effects of injuries. The general rules
of sufficiency on this point have been developed
with reference to the apparency of the injury to
the beholder.
Once, however, permanency is established by
competent testimony to a degree of reasonable
certainty, proof of foreseeable consequences is
less difficult. In all of the following cases upon
proof of permanency, the jury was permitted to
infer the extent and value of the future effects of
head and brain injuries and make award therefor
to the plaintiff. . . .
Where the injury is of such a character as to be
obvious, the effects of which are reasonably
common knowledge, it is competent to prove
either by lay testimony from the injured litigant
or others who have viewed his injuries, or by
expert testimony--medical, forensic, actuarial,
and the like--, or from both lay and expert
testimony. . . . . .
In summary, these cases adopt the salutary view
that where, as with brain injuries, the
manifestation of a permanent injury may be
latent, unpredictrable in the time of its
appearance and obscure, positive medical
evidence that the injury is permanent is usually
sufficient to take the question to the jury and to
support an award of damages for the future
effects of the injury. . . . This rule has been
recognized and applied by this jurisdiction to
claims for 'residuals' or future effects of proved
On the other hand, where the injury is obscure,
that is, the effects of which are not readily
ascertainable, demonstrable, or subject of
common knowledge, mere subjective testimony
of the injured party or other lay witnesses does
not prove the future effect of the injury to a
reasonable certainty. In such situation, medical
or other expert opinion testimony is required to
71
permanent injuries. . . . We now reaffirm its
validity to the facts at hand.
views reasonable inferences arising from the
evidence in proof of future effects of permanent
injury. This approach, however, cannot be
extended to unreasonable lengths in support of
instant claims for impairment of earning capacity
and future medical expenses, which in this trial
were proffered on a paucity of evidence in one
instance and on no evidence in the other.
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. . . . The rule was summarized
by Judge Haymond in the case of Shreve v.
Faris, Supra, at page 827 of the West Virginia
Report, 111 S.E.2d at page 174:
'As to future pain and suffering in general,
such pain and suffering on the part of the
injured person, in consequence of the injury,
are a proper element of damages which may
be allowed if there is reasonable certainty that
such pain and suffering will result. 15
Am.Jur., Damages, Section 73.'
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. . . .
Undoubtedly, even an infant plaintiff who has
never been gainfully employed may recover
damages for impairment of his future earning
capacity. During his minority, his parents or
guardians may also recover damages for such
impairment or loss of earning capacity occurring
during the infant plaintiff's minority proximately
resulting from the negligent conduct of a
defendant. . . . Nevertheless, impairment of
earning capacity is an item of permanent
damages which again must be proved to a
reasonable degree of certainty; it cannot be left to
sheer speculation or surmise.
Again, on this point, where the injury has been
shown to be permanent with a reasonable degree
of certainty and symptoms as to pain and
suffering persist at the time of trial, coupled
with the presence of other residuals as
documented by lay and expert testimony in the
case of an obscure injury, such future pain and
suffering may be reasonably inferred by the jury
from the very fact or existence of the permanent
injury.
.....
In this case we recognize and apply the rule of
Collins v. Skaggs, 110 W.Va. 518, 159 S.E. 515
(1931), which held:
'The law furnishes no measure of damages for
pain and suffering. In such case, the decision
of the jury upon the amount is generally
conclusive, unless it is so large or small as to
induce the belief that the jury was influenced
by passion, partiality, corruption, or prejudice,
or misled by some mistaken view of the case.'
Id. at page 520, 159 S.E. at page 516.
.....
In this case, the testimony from plaintiff's father
that his son did not perform his chores with the
same degree of concentration and diligence as he
did previous to the injuries sustained in the
accident cannot, standing alone, support an
award of impairment of earning capacity. This
evidence, while competent, is of such slight
inferential value as to be deficient when it is
asserted in support of a permissive instruction
allowing the jury to make an award for
impairment of earning capacity to his father and
guardian and to the infant himself. On the other
hand, we believe, consistent with our holding in
respect to future pain and suffering and residuals,
As we have indicated, this Court favorably
72
where the permanent injury is proven,
reasonable inferences based upon sufficient
evidence are all that is necessary to carry this
question to the jury for its consideration. Here,
however, the evidence was De minimis and was
not sufficient to raise a proper inference for the
jury's consideration.
well as the necessity and reasonableness of such
prospective medical charges. . . .
With the foregoing principles firmly in mind, we
sustain the award of $20,000 to the infant
plaintiff for the injuries suffered by him
proximately resulting from the negligent conduct
of the defendant Wayne Bero on the highways of
this State.
'In determining whether the verdict of a
jury is supported by the evidence, every
reasonable and legitimate inferencve,
fairly arising from the evidence in favor
of the party for whom the verdict was
returned, must be considered, and those
facts, which the jury might properly find
under the evidence, must be assumed as
true.' . . .
On the question of permitting the jury to
consider an award for future medical expenses,
the plaintiff's reach also exceeds his grasp. As
noted previously, the record is absolutely devoid
of any attempt to prove that plaintiff or his
father will incur future medical expenses from
the injury.
Medical expenses are a proper measure of
damages, but the legal proof of the same is
conditioned with more stringent rules than that
which attends claims for other permanent
consequences of an injury. The general rule on
proof of medical services is that the proper
measure of damages is not simply the expenses
or liability incurred, or that which may be
incurred in the future, but rather the Reasonable
value of medical services made Necessary
because of the injury proximately resulting from
the defendant's negligence. . . . A plaintiff may
thus recover for the reasonable value of the
medical services rendered him because of the
injury, provided that he can also show that these
services were necessary. . . .
The verdict in favor of the infant plaintiff was
attacked as excessive, and as not supported by
the evidence. We must reject this attack. There
was ample evidence of permanency of an injury
which was obscure only in its final and ultimate
effects. Lay and medical evidence adduced in
support of the plaintiff's case demonstrated that
in addition to the permanent injury, plaintiff had
suffered deleterious effects from the automobile
accident from which a jury may have reasonably
inferred he will so suffer in the future and that
such suffering and residuals will effect this
capacity to function as a whole man in the future.
Consequently, we hold that the giving of the
permissive Instruction No. 15, offered by the
plaintiffs, was a lawful instruction supported by
the evidence of this case.
The same rules apply to the attempts of recovery
for future medical services which may be
required to treat a permanent injury of the
plaintiff. There, too, recovery may be had only
for the necessary expense of medical attendance
and nursing which is reasonably certain to be
incurred in the future. . . . . . To support a
relevant instruction on the recovery of future
medical expenses, the plaintiff must offer proof
to a degree of reasonable certainty which will
indicate costs within an approximate range, as
[The court found for the father’s award of $6,000
to be excessive because the evidence was
inadequate to establish that the father would lose
his son’s services in the future.]
Considering what might occur to this plaintiff
and the cost of remedying such occurrences, we
73
cannot say that the verdict rendered in favor of
the infant plaintiff, Russell Jordan, was
excessive.
'In a civil action to recover damages for
personal injuries, the amount which the
plaintiff is entitled to recover being
indeterminate in character, the verdict of
the jury may not be set aside by the trial
court or by this Court on the ground that
the amount of the verdict is excessive,
unless the verdict in that respect is not
supported by the evidence or is such that
the amount thereof indicates that the
jury was influenced by passion,
partiality, prejudice or corruption, or
entertained a mistaken view of the case.'
...
Both parties to this litigation have engaged in
the expense and time involved in trial. They
should not have to repeat the process if it can be
avoided and still be served by an outcome fair to
their respective adversary interests. If this case
were reversed and remanded for a new trial it
would be for the sole reason that Plaintiffs'
Instruction No. 14 constituted reversible error
and permitted a recovery in favor of Norman
Jordan in excess of the medical expenses in the
amount of $1,022.53 proved by him as
necessary and reasonable for his son's care. We
have struck as improper from that instruction a
suggestion to the jury that it could award
damages for impairment of Russell Jordan's
earning capacity and for future medical
expenses.
amount in excess in an excessive verdict is
definitely ascertainable, a remittitur may be
properly employed.' . . . If he chooses to accept
this reduced award without the necessity of a
new trial, the case may be so concluded under the
procedure recently approved in Earl T. Browder,
Inc. v. County Court of Webster County, Supra:
"When the illegal part of the damages ascertained
by the verdict of a jury is clearly distinguishable
from the rest, and may be ascertained by the
court without assuming the functions of the jury
and substituting its judgment for theirs, the court
may allow plaintiff to enter a Remittitur for such
part, and then refuse a new trial.' Point 4,
Syllabus, Chapman v. Beltz & Sons Co., 48
W.Va. 1, 35 S.E. 1013.' Syllabus point 2, Id.
Otherwise, the plaintiffs must submit to a new
trial. See Carlin, 'Remittiturs and Additurs', 49
W.Va. Law Q. 1 (1942).
.....
Affirmed in part; reversed in part; and
remanded with directions.
NEELY, Justice (concurring):
I concur in the result in this case but I
respectfully differ from the majority with regard
to the reasoning of syllabus points 7, 9, 12, 13
and 15, all relating to the level of proof necessary
to sustain a claim for future damages as a result
of personal injury. The majority opinion
articulates the traditional rule that future damages
must be proved to a reasonable degree of medical
certainty, but then recognizes that in an area such
as brain injury where it is difficult to predict the
ultimate effects of an injury it is almost
impossible to comply with the rule.
Consequently, to avoid the necessity and cost of
a new trial of this case for a single issue, we
choose to reverse on this point and remand the
case and to direct that the trial court give the
plaintiff Norman Jordan a period of thirty days
to decide whether he will accept a Remittitur in
the amount of $4,977.47 resulting in a total
verdict payable to him in the amount of
$1,022.53, plus interest and costs. 'Where the
It appears that the traditional rule requiring future
damages to be proved to a reasonable degree of
medical certainty was developed at a time when
lawyers and judges had substantially less
74
sophistication with probability theory and
statistics than they have today. Accordingly the
rule has been stated in relatively vague language
and has been even more vaguely applied to
various factual situations. I believe that the real
rule which is in practice applied in the courts
and which has been applied by this Court in the
case at bar is far different from the enigma of
supposed logic which is presented as the formal
rule.
.....
the victim completely lose in the game of chance
he is playing with the fates.
Accordingly the jury would be instructed that
from all the evidence they should determine what
the overall probability is that the plaintiff will
suffer future damages, and that from all of the
evidence they should determine the amount of
monetary damages to which the plaintiff would
be entitled if the disabilities which doctors
reasonably believe are possible actually come to
pass. The jury would then be instructed to
multiply the amount of future damages
reasonably to be expected times the probability
of those damages actually occurring and arrive at
a figure which will compensate the plaintiff for
the possibility of future injuries. It would appear
that in a major damage suit the jury could be
aided by expert testimony with regard to
probability analysis to make the problem
comprehensible to the average layman.
The fact that a person is confronted with a ten
percent, fifteen percent, or twenty percent
probability (in the mathematical sense) that he
will suffer future injuries should be sufficient to
permit him to recover for those future injuries at
least in proportion to the probability of such
injuries occurring. Therefore, in a hypothetical
case, if a man can demonstrate that there is a
twenty percent probability that he will have
future injuries which would, if they occurred,
result in damage to him in the amount of a
hundred thousand dollars, he should be able to
recover twenty thousand dollars from the
defendant, which recovery would represent the
injury of incurring a twenty percent probability
of suffering one hundred thousand dollars worth
of damages.
.....
While this analysis may appear to be overly
complicated on first reading, it merely recognizes
that mathematical probabilities exist which are
less than fifty percent and that when the experts
testify that such a probability of under fifty
percent exists, it is still possible to award
appropriate damages without becoming
speculative.
In keeping with the traditional rule, the
probability, in the mathematical sense, of future
injury must be proved to a reasonable degree of
medical certainty. Accordingly a doctor should
be permitted to testify that on the basis of his
experience and his evaluation of statistical
information from recorded cases of similar
injuries he believes that there is to a reasonable
degree of medical certainty a twenty percent
probability of suffering a particular disability.
Once it is determined that there is a probability
of loss, evidence should then be admitted
concerning the maximum expected loss should
KANSAS CITY SOUTHERN RAILWAY
COMPANY, INC.
v.
J.C. JOHNSON
798 So.2d 374 (Miss. 2001)
Supreme Court of Mississippi.
SMITH, Justice, for the Court:
.....
¶ 2. Kansas City Southern Railway appeals to
this Court from a jury verdict rendered in Hinds
75
County Circuit Court in favor of J.C. Johnson in
the amount of $2.5 million and $1 million for
Kerry Lynn Johnson. Judgment was entered
based on the verdict. KCS subsequently moved
for a judgment notwithstanding the verdict or a
new trial. The circuit court denied this motion
but ordered a remittitur of $500,000 on the
damage award to Kerry Lynn Johnson. The
remittitur was accepted.
KCS promptly
perfected this appeal.
flashing lights or gates, or any other form of
active protection, to warn motorists that a train
was approaching this crossing at about 60 feet
per second.
¶ 6. KCS's conductor seated on the left side of
the locomotive cab testified that he saw Johnson
as he turned off Highway 80 onto Johnson
Quarters Road, when the train was about 300 feet
away from impact. The engineer on the right
side of the cab never saw Johnson's truck until
somewhere between 100 to 150 feet. There was
evidence that the train's horn was blown before
the collision, but it was alleged that KCS's
engineer had failed to blow his horn at a
sufficient distance away from the crossing to give
Johnson adequate warning that the 40 mph(60
feet per second) train was coming.
¶ 3. This Court holds that the jury was properly
instructed regarding damages for loss of
enjoyment of life recoverable as a separate form
of damages. We further hold that the trial court
properly allowed the testimony of plaintiff's
expert witness, Dr. Stan Smith. We therefore
affirm the trial court.
¶ 7. It is also alleged that KCS had not
maintained the crossing nor adopted any
reasonable policy relative to vegetation control to
provide a clear sight distance to the motoring
public to detect approaching high speed trains.
As a result of the railroad's negligence, in both
crossing maintenance and train operation,
Johnson contends he sustained severe and
permanent injuries, consisting of a closed-head
injury which has left him little more than a child.
Johnson had a long history of employment and
alleges he has suffered significant economic loss
and medical expenses. Additionally, his wife
suffered substantial loss of consortium.
STATEMENT OF THE FACTS
¶ 4. Viewed in the light most favorable to the
Johnsons, the facts are as follows. On July 18,
1995, the vehicle driven by J.C. Johnson
("Johnson") was struck by KCS's eastbound 40mile-per-hour freight train operated by its
engineer, Cook. Before turning off to his right
from U.S. Highway 80 some 68 feet north of the
railroad crossing, Johnson had been traveling
east on Highway 80, heading parallel with and
in the same direction as the train, which,
unknown to Johnson, was overtaking him from
behind.
¶ 8. After hearing the evidence, the jury found in
favor of the Johnsons. KCS appeals to this Court
and presented a number of issues for discussion.
¶ 5. As Johnson headed up the steep, rough
roadway slope of Johnson Quarters Road to the
humpbacked summit of the crossing, unable to
see oncoming vehicles on the other side of the
tracks because of the severe grade, his view both
up and down the tracks was seriously impaired
by trees, bushes and other vegetation growing
on KCS's right-of-way, which extended out 50
feet on either side of the track. There were no
STATEMENT OF THE ISSUES
.....
III. WHETHER THE CIRCUIT COURT
ABUSED ITS DISCRETION IN ALLOWING
76
EXPERT TESTIMONY REGARDING
HEDONIC DAMAGES.
IV. WHETHER THE CIRCUIT COURT
ERRED IN ALLOWING RECOVERY OF
HEDONIC DAMAGES.
V. WHETHER THE CIRCUIT COURT
ERRED IN GRANTING NUMEROUS JURY
INSTRUCTIONS.
there are no Mississippi cases directly on point
on the question of whether loss of enjoyment of
life is an element of damages in a survival
personal injury action. KM Leasing, Inc. v.
Butler, 749 So.2d 310 (Miss.Ct.App.1999).
While we have not declared how to classify the
loss of enjoyment of life, we have made clear
that the damages to a particular plaintiff in a
personal injury action should be decided on a
case-by-case basis. . . . We allowed recovery for
all damages including those for partial loss of
enjoyment of life in W.J. Runyon & Son, Inc. v.
Davis, 605 So.2d 38, 50 (Miss.1992). This Court
has also recognized damages for the loss of
enjoyment of life in a number of other personal
injury cases. See Flight Line, Inc. v. Tanksley,
608 So.2d 1149, 1163 (Miss.1992) (recognized
loss of enjoyment of life as a factor in
determining jury award); General Motors Corp.
v. Jackson, 636 So.2d 310, 315 (Miss.1994)
(holding award that included damages for loss of
enjoyment of life not excessive); Atwood v.
Lever, 274 So.2d 146, 149 (Miss.1973) (jury
instruction on damages for loss of enjoyment of
life recognized but found no facts in record to
support award of damages based on loss of
enjoyment of life.), Haywood v. Collier, 724
So.2d 1105, 1107 (Miss.Ct.App.1998).
DISCUSSION OF LAW
.....
III. WHETHER THE CIRCUIT COURT
ERRED IN ALLOWING RECOVERY OF
HEDONIC DAMAGES.
¶ 20. The loss of one's enjoyment of life
continues to be an area of confusion in the state
of Mississippi. The issue to be decided here is
whether our state will or will not recognize this
type of recovery in a personal injury action, and
if so to what extent? Jurisdictions around the
country have chosen either; 1) not to recognize
the loss of enjoyment of life, 2) recognize the
loss of enjoyment of life as a completely
separate element considered in addition to pain
and suffering, or 3) recognize the loss of
enjoyment of life but only as integrated into pain
and suffering. See e.g., Elliott v. United States,
877 F.Supp. 1569 (M.D.Ga.1992); Loth v.
Truck-A-Way Corp., 60 Cal.App.4th 757, 70
Cal.Rptr.2d 571 (1998); Florida Patient's
Compensation Fund v. Von Stetina, 474 So.2d
783, 792 (Fla.1985)(recognizing as separate
from pain and suffering); Brookshire Bros., Inc.
v. Wagnon, 979 S.W.2d 343, 353
(Tex.Ct.App.1998) (recognizing as an element
of pain and suffering); Kirk v. Washington State
Univ., 109 Wash.2d 448, 746 P.2d 285 (1987).
Today we decide to follow the jurisdictions
which recognize the loss of enjoyment of life.
¶ 22. Furthermore, we said that an injured
plaintiff enjoys the right to damages such as will
compensate him for all of his losses, past and
future and is entitled to the present worth of all
that has been forced upon him. Davis, 605 So.2d
at 50. It was not, however, specified as to
whether damages for loss of enjoyment of life
were to be considered as part of or separate from
those for pain and suffering.
¶ 23. The loss of enjoyment of life should be
fully compensated and should be considered on
its own merits as a separate element of damages,
not as a part of one's pain and suffering. We
decide to follow other jurisdictions which have
¶ 21. The Court of Appeals has pointed out that
77
held that damages for loss of enjoyment of life
compensate the injured person for the
limitations placed on his or her ability to enjoy
the pleasures and amenities of life. Overstreet
v. Shoney's, Inc., 4 S.W.3d 694, 715-16
(Tenn.Ct.App.1999) (citing Thompson v.
National R.R. Passenger Corp., 621 F.2d 814,
824 (6th Cir.1980)). This type of damage
relates to daily life activities that are common to
most people. There are numerous activities that
courts have held constitute daily life activities:
going on a first date, reading, debating politics,
the sense of taste, recreational activities, and
family activities. . . . . . Pain and suffering
encompasses the physical and mental discomfort
caused by an injury, such as anguish, distress,
fear, humiliation, grief, shame, and worry.
Overstreet, 4 S.W.3d at 715. A permanent
injury differs from pain and suffering in that it is
an injury from which the plaintiff cannot
completely recover. . . . .
Johnson's daughter, Angela: "I watched an active
man sit in a wheelchair all day. I watched an
articulate man who took pride in his vocabulary
struggle to get one word out. And I have
watched a person that was always happy look
sullen and sad, stare out into space."
¶ 25. It is apparent that Johnson is no longer the
person he was prior to the accident. We hold
today that these restrictions are significant
enough to warrant compensation as a separate
and distinct element of damages.
¶ 26. We believe jury instruction P-11A was
correctly given. The instruction at issue reads as
follows:
The Court instructs the jury that "damages" is
the word which expresses in dollars and cents
the injuries sustained by a plaintiff. The
damages to be assessed by a jury in a personal
injury case cannot be assessed by any fixed
rule, but you are the sole judges as to the
measure of damages in any case. Should your
verdict be for the plaintiffs, you may consider
the following factors in determining the
amount of damages to be awarded as may be
shown by a preponderance of the evidence: ...
5.) Loss of enjoyment of Life, and 6.) The
value of past, present and future physical pain
and suffering and resulting mental anguish, if
any.
This instruction adequately separates loss of
enjoyment of life damages from pain and
suffering.
The instruction was a simple,
appropriate way to place before the jury the issue
of loss of the enjoyment of life as a distinct and
separate element of damages which cannot be
considered as pain and suffering. The trial court
did not err in granting this instruction.
¶ 24. Evidence was presented at trial that prior
to the accident Mr. Johnson enjoyed hunting,
fishing, and yard work. As a result of the
accident, Johnson suffered brain injury, a
cracked pelvis, bruised lungs, pneumonia, and
was forced to move to an inpatient rehabilitation
center for close to a year. Johnson also testified
as to his inability to enjoy those activities in
which he participated prior to the accident. His
wrist has been damaged and one of his fingers
remains crooked.
Furthermore, there is
evidence that Johnson has a diminished ability
to speak. We find that the testimony of Mr.
Johnson, Ms. Johnson, the physical therapist,
the rehab specialist, the speech therapist, are
ample to support damages for Johnson's lost
ability to enjoy his prior life style. Johnson has
demonstrated that he is conscious of his lost
enjoyment of life's pleasures, and our tort
system should compensate him for these losses.
Perhaps most telling about the effects of the
accident on Johnson's life is this testimony from
.....
78
CONCLUSION
Insurance Fund ("State Fund"), the workers'
compensation insurance carrier for and subrogee
of CCC, intervened in the action, seeking
indemnity for workers' compensation benefits
paid by State Fund on behalf of Mr. Spitzke.
¶ 34. Having held that damages for loss of
enjoyment of life are recoverable as a separate
form of damages, and that admission of the
testimony of Smith was not error, we affirm the
judgment of the trial court.
The district court tried the action in two stages.
After the liability trial, the court concluded that
NASA employees' negligence contributed 75
percent and Mr. Spitzke's negligence contributed
25 percent to his injury. The court further found
that CCC did not cause or contribute to Mr.
Spitzke's injuries. The parties are not appealing
the district court's liability findings and
conclusions.
SPITZKE
v.
UNITED STATES
914 F.2d 263 (9th Cir. Cal. 1990)
Before FLETCHER and NELSON, Circuit
Judges, and CARROLL, District Judge
The district court found, after a damages trial,
that at the time of the accident Mr. Spitzke was
53 years old, in excellent health, and had a life
expectancy of approximately 22.7 years with a
work life expectancy of approximately 12 years.
The court found that, as a result of the accident,
he suffered "a severe, permanent and disabling
brain injury, resulting in quadriplegia, aphasia
and severe brain damage," and that "He is in a
persistent vegetative state with incontinent
bladder and bowel," permanently disabled,
incapable of gainful employment, unable to care
for himself, and requires 24- hour attendant care.
The court found that Mr. Spitzke had incurred or
would incur $495,461 in damages for lost
earnings, $1,712,313.83 in damages for medical
and related expenses, and $2,500,000 in damages
for pain and suffering. The court reduced Mr.
Spitzke's compensatory award to account for his
25 percent comparative negligence and the
$442,091.83 awarded to State Fund for the
medical and disability payments made by it on
Mr. Spitzke's behalf, and awarded him
$3,199,263 in damages.
This is an appeal by the United States of pain
and suffering and loss of consortium damage
awards under the Federal Tort Claims Act
("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80.
Plaintiff-Appellees in their cross-appeal claim
that the district court erred in its interpretation
under California law of the effect of a spouse's
comparative negligence on the other spouse's
claim for loss of consortium.
BACKGROUND
Plaintiff-appellee Gary Spitzke sustained a
severe injury in an accident on February 8,
1984.
The accident occurred while Mr.
Spitzke, a truck driver for Contractors Cargo
Company ("CCC"), was helping National
Aeronautics and Space Administration
("NASA") employees load a cargo lift trailer
onto a truck at the NASA Ames Research
Center near San Jose, California.
Gary Spitzke and his wife Susan brought this
personal injury action against the United States
under the FTCA seeking damages for Mr.
Spitzke's personal injuries and Mrs. Spitzke's
loss of consortium.
State Compensation
The court further found that Mrs. Spitzke, who
was 55 years old, in excellent health, had a life
expectancy of 26.5 years at the time of the
79
I. EXCESSIVE DAMAGES
accident and had suffered and would continue to
suffer damages for loss of consortium in the
amount of $750,000. The court reduced her
damages by the 25 percent comparative
negligence attributed to Mr. Spitzke, and
awarded her $562,500 in damages.
The elements and amount of compensatory
damages recoverable in FTCA cases are
governed by the law of the state where the tort
occurred, in this case California. Shaw, 741 F.2d
at 1205; Felder, 543 F.2d at 665; see 28 U.S.C.
§§ 1346(b), 2674. California law entitles a
negligently injured person to pain and suffering
damages, in order to compensate for any pain,
discomfort, fears, anxiety and other mental and
emotional distress, as well as the loss of the
capacity to enjoy life and share in its amenities.
. . . There is no fixed standard for determining
pain and suffering damages under California law;
rather, the trier of fact is required to determine
the amount of damages that are just and
reasonable in light of the evidence.
The
detriment resulting from pain and suffering is
difficult to translate into monetary loss, but it is
a genuine one that must be compensated in order
to avoid having the damage award found
inadequate as a matter of law. . . .
The United States did not present any evidence
at the damage trial.
The United States appeals the $2,500,000 pain
and suffering award and the $750,000 loss of
consortium award as excessive. On crossappeal, the Spitzkes challenge the district court's
reduction of Mrs. Spitzke's loss of consortium
damages by the percentage of comparative
negligence attributable to her husband. The
parties are not appealing the district court's lost
earnings and medical expenses determinations.
The parties have not designated any portion of
the Reporter's Transcript of the damages trial.
Therefore, the scant record on appeal is the
district court's Findings of Fact and Conclusions
of Law filed April 21, 1988.
Under California law, the spouse of a negligently
injured person may recover damages for loss of
consortium, including such elements as security,
comfort, affection and companionship, as may be
established by the evidence. . . . If the loss of
consortium results in physical illness or
consequences to the spouse suffering the loss,
such illness or other consequences also may be
an element of damage. United Services Auto.
Ass'n v. Warner, 64 Cal.App.3d 957, 964-65, 135
Cal.Rptr. 34, 38 (1976).
ISSUES
1. Was the district court's award of $2,500,000
pain and suffering damages for Gary Spitzke
excessive?
2. Was the district court's award of $750,000
loss of consortium damages for Susan Spitzke
excessive?
The district court found that Mr. Spitzke
sustained pain and suffering and awarded
damages in the amount of $2,500,000, and that
Mrs. Spitzke had suffered a loss of consortium of
$150,000 to date (February, 1984-April, 1989)
and would "incur a future loss of consortium
reduced to a present value in the amount of Six
Hundred Thousand Dollars." The United States
3. Did the district court err in reducing Mrs.
Spitzke's loss of consortium damage award by
25 percent to account for her husband's
comparative negligence.
.....
DISCUSSION
80
contends that these awards are excessive and
should be reduced.
1478(b) (9th ed. 1988). Such a comparison by
the reviewing court seriously invades the realm
of the factfinder when it upsets a jury's award
based on comparisons to other cases, Bertero v.
National Gen. Corp., 13 Cal.3d 43, 65 n. 12, 529
P.2d 608, 118 Cal.Rptr. 184, 200 n. 12 (1974); .
....
We look to the relevant state's case law on
excessive damages in order to determine
whether a given award is excessive. McCarthy
v. United States, 870 F.2d 1499, 1500 (9th
Cir.1989); Trevino v. United States, 804 F.2d
1512, 1515 (9th Cir.1986), cert. denied, 108
S.Ct. 70, 98 L.Ed.2d 34 (1987); Shaw, 741 F.2d
at 1208. Under California law, an award is
considered excessive if it is "excessive as a
matter of law," or the amount awarded "is so
grossly disproportionate to the harm suffered as
to raise the presumption that it resulted from
passion or prejudice," Hasson v. Ford Motor
Co., 32 Cal.3d 388, 419, 650 P.2d 1171, 185
Cal.Rptr. 654, 673 (1982), cert. dismissed, 459
U.S. 1190, 103 S.Ct. 1167, 75 L.Ed.2d 422
(1983). In addition, the award is excessive if it
"is so out of line with reason that it shocks the
conscience and necessarily implies that the
verdict must have been the result of passion or
prejudice." Seffert v. Los Angeles Transit Lines,
56 Cal.2d 498, 364 P.2d 337, 15 Cal.Rptr. 161,
167 (1961) (en banc).
This court has followed a practice of comparing
the challenged award in a FTCA case to similar
awards within the relevant state in order to
maintain some measure of uniformity among
awards. . . . This type of comparison also aids
us in determining whether a state court would
find the particular award excessive. In addition,
such comparisons are appropriate because this
court's review of the trial judge's damage award
is not as constrained as the appellate review of a
jury verdict. See Shaw, 741 F.2d at 1205 (review
of trial judge's factual determinations is "not
restrained by the statutory and constitutional
limitations applicable to our review of a jury's
verdict"). Accordingly, we review the facts of
this case in light of similar California cases to
determine whether the district court's pain and
suffering and loss of consortium awards are
excessive under California law.
Because both pain and suffering, and loss of
consortium awards are to be determined based
on the evidence presented at trial, each case
must stand on its own facts. See Shaw, 741 F.2d
at 1209. However, in similar cases involving
similar losses, courts should maintain some
degree of uniformity. Id. To accomplish this
objective, we compare the challenged award to
awards in similar cases in the same jurisdiction.
McCarthy, 870 F.2d at 1500; Trevino, 804
F.2d at 1515; Shaw, 741 F.2d at 1208.
A. THE PAIN AND SUFFERING AWARD TO
GARY SPITZKE
The Government urges us to rely heavily on the
Shaw case, as a comparison case in deciding
whether Gary Spitzke's pain and suffering
damages of $2,500,000 are excessive. In that
case, we applied Washington law.
The
Government argues that the Shaw case is a
proper comparison case because both
Washington and California apply the "passion
and prejudice" test to determine whether
damages are excessive. This argument is not
persuasive. Because the law of the state where
the tort occurred controls the measure of
damages to be awarded, the comparison cases
California courts criticize the practice of
measuring the validity of an award by
techanically comparing average awards for
particular injuries to awards in other cases. See
6 B.E. Witkin, Summary of California Law §
81
must be those that show the amounts of
damages awarded in similar cases in that state.
Cal.App.3d 397, 201 Cal.Rptr. 226 (1984), the
court refused to reduce a verdict of $2,500,000
for medical expenses, lost earnings, and pain and
suffering awarded to an active 17 year old boy,
who was rendered a paraplegic in an automobile
accident, and reversed the trial court's order for a
new trial or remittitur of $500,000. The court
noted that plaintiff had sustained a broken back
and loss of sensory and motor functioning below
his rib cage, would suffer phantom pain, muscles
spasms, and sterility for the rest of his life, was
unemployable and in extreme pain, and would
require $1,770,000 to provide minimum home
care and medical expenses, not including
psychological care costs.
In Hasson v. Ford Motor Co., 32 Cal.3d 388,
419, 650 P.2d 1171, 185 Cal.Rptr. 654, 673
(1982), cert. dismissed, 459 U.S. 1190, 103
S.Ct. 1167, 75 L.Ed.2d 422 (1983), the
California Supreme Court held that a
compensatory damage award of $5,850,000 to a
19 year old college freshman, who suffered a
severely fractured skull, extensive brain
damage, profound psychological problems and
total, permanent physical disability in an
automobile accident was not excessive. A jury
had awarded plaintiff $7,500,000 in
compensatory damages and $4,000,000 in
punitive damages. The trial court found the
compensatory damage award to be excessive
and remitted $1,650,000 of that amount.
Plaintiff's expert had projected special damages
totalling $3,619,000 for lost earnings, medical
expenses, and attendant care, but the amount
actually awarded for each component of
damages was not reported. Although noting
that the claims for future economic damages
might have been somewhat exaggerated, the
court ruled that the trial court's remittitur
brought "the total amount of damages within
reasonable limits and rendered it nonexcessive." Id. at 419, 650 P.2d 1171, 185
Cal.Rptr. at 673-74. In Fortman v. Hemco,
Inc., 211 Cal.App.3d 241, 259 Cal.Rptr. 311,
323 (1989), the court ruled that an award of
$17,742,620 for economic losses and $6 million
for non-economic losses to a 3 year old child,
who was in a coma for four months and suffered
loss of bowel and bladder function, scoliosis,
seizures, perceptual problems, and significant
brain and spinal cord injury, rendering her a
paraplegic and unable to obtain more than the
intellectual level of a 5 year old, was not
excessive.
In Rodriguez v. McDonnell Douglas Corp., 87
Cal.App.3d 626, 151 Cal.Rptr. 399 (1979), the
court held that an award of $4,235,996, which
the trial court had reduced to a net judgment of
$4,113,122.25 by deducting $122,873.75 for
workers' compensation benefits paid, was
reasonable.
.....
In Niles v. City of San Rafael, 42 Cal.App.3d
230, 116 Cal.Rptr. 733 (1974), the court ruled
that an award of $4,025,000 to an 11 year old boy
rendered a quadriplegic and mute as a result of
head injuries was not excessive.
.....
As the United States points out, Mr. Spitzke is
substantially older than any of the plaintiffs in
the comparison cases, and, thus, can be expected
to endure pain and suffering for a shorter period
of time. On the other hand, his injuries are
arguably more severe than those described in the
comparison cases. It is reasonable to infer from
the district court's finding that Mr. Spitzke is in
a persistent vegetative state, that he has no ability
to enjoy life, unlike the plaintiffs in the
comparison cases who had recovered some or all
of their mental capabilities.
In Bigboy v. County of San Diego, 154
82
Considering the facts of this case within the
general framework established by these
comparison cases, this court concludes that the
size of Gary Spitzke's pain and suffering award
is not excessive under California law.
Although Spitzke is substantially older than any
of the plaintiffs in the comparison cases, and,
thus, can be expected to endure pain and
suffering for a shorter period of time, his
injuries are more severe. The district court's
finding that Mr. Spitzke is in a persistent
vegetative state confirms that he has no ability
to enjoy life.
Mrs. Spitzke sought damages for her own
physical and emotional injuries and past and
future medical care resulting from her loss of
consortium, as well as for the nonpecuniary
components of consortium. The district court
did not make a finding that any part of Mrs.
Spitzke's award was for her pecuniary losses.
The record presented to this court is meager at
best and accordingly the award to Mrs. Spitzke
must be viewed as one for non-pecuniary loss of
consortium.
Relying on Rodriguez v. McDonnell Douglas
Corp., Id., in which the court found an award of
$500,000 for loss of consortium to the wife of
the 22 year old plaintiff reasonable, the United
States argues that the award of $750,000 to Mrs.
Spitzke is excessive, because her period of loss
will be much shorter than that of Mrs. Rodriguez.
While it is true that Mr. Spitzke's life expectancy
is much shorter than Mr. Rodriguez's life
expectancy, Mrs. Rodriguez will be able to enjoy
her husband's consortium to a greater extent than
Mrs. Spitzke will be able to do. Mr. Rodriguez's
mind cleared; whereas, Mr. Spitzke is in a
persistent vegetative state. In addition, factors
such as the couples previous relationship and
likelihood of the non-injured spouse's remarriage,
weigh in favor of higher awards for loss of
consortium in more longstanding relationships.
Based upon the limited record before this court,
under the constraint of California law, the award
of $750,000 to Susan Spitzke for loss of
consortium is not so grossly disproportionate to
the harm suffered, that it raises the presumption
that it resulted from passion or prejudice or
would shock a court's conscience.
Given that the injuries are not identical in any of
the cases discussed, the United States'
contention that we can determine an appropriate
pain and suffering award by multiplying awards
in other cases by the ratio of the current
plaintiff's life expectancy over the comparison
case's plaintiff's life expectancy is overly
simplistic and violates the rule that each case
must stand on its own facts. Substantial awards
have been held not to be excessive by California
courts in the past, and damage awards have risen
dramatically in the last few years. Accordingly,
based upon a review of the record, under the
constraint of California law, this court
concludes that Gary Spitzke's pain and suffering
award is not so grossly disproportionate to the
harm suffered that it raises the presumption that
it resulted from passion or prejudice or shocks
this court's conscience.
THE LOSS OF CONSORTIUM AWARD TO
SUSAN SPITZKE
The district court found that Susan Spitzke had
suffered a loss of consortium in the amount of
$150,000 in the past and would suffer a future
loss of consortium "reduced to present value" in
the amount of $600,000. The United States
contends that these awards are excessive.
We, however, perceive a different problem not
addressed by the parties in light of Finding No.
28 (ER 19) of the trial court that reads:
28. As a result of the subject incident plaintiff
Susan Spitzke will incur a future loss of
83
consortium reduced to a present value in the
amount of Six Hundred Thousand Dollars
($600,000). (Emphasis supplied).
generally, 61 A.L.R. 314, 330, "Damages,
Spouse Death or Injury."
The actual loss of consortium award (unknown
discount factor and length of discount period) is
actually well in excess of $750,000. I concur
with the majority's conclusion that the case must
be remanded for further findings with respect to
the discount factors involved.
The judge failed to determine the actual amount
of the future loss of consortium award, before
reducing that award to a present value of
$600,000. The consortium award should be
remanded for further findings with respect to
amount and the discount factors involved unless
the parties stipulate to the $750,000 figure
awarded.
.....
REES
v.
DARLINGING MEMORIAL HOSPITAL
NHS TRUST
[2004] 1 A.C. 309 (H.L)
CONCLUSION
We affirm the district court's award of
$2,500,000 for pain and suffering to Gary
Spitzke.
[In McFarlarlane v. Tayside Health Board,
[2000] 2A.C. 59, the House of Lords considered
a claim by normal and healthy parents of a
normal healthy baby against medical defendants.
The parents had attempted to avoid the
conception of children by having the father
undergo a vasectomy, which failed because of the
negligence of the defendants. The parents sought
a recovery to pay the rearing costs of the baby.
McFarlane held that such a claim would not be
acknowledged. (Apparently, the claim for the
medical costs associated with the pregnancy and
delivery was acknowledged and remedy
provided.)
We remand the district court's award of
$750,000 for loss of consortium to Susan
Spitzke for further findings and determination of
amount unless the parties stipulate to the
$750,000 figure.
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED.
CARROLL, District Judge dissenting.
I respectively dissent. I believe that both of
these awards are excessive when compared with
awards in "similar" California cases and
accordingly shock my judicial conscience. I
note particularly that $500,000 is the largest
reported award for loss of consortium in
California, Rodriguez v. McDonnell Douglas
Corp., 151 Cal.Rptr. 399, and that in a most
perfunctory manner.
Shortly thereafter, in Parkinson v. St. James and
Seacroft University Hospital NHS Trust, [2002]
Q.B.266, the Court of Appeal permitted recovery
for the abnormal rearing costs of a defective baby
born under similar circumstances. The parents
chose not to abort the foetus despite knowledge
that the (unwanted) child might be born with
defects. No appeal was taken to the House of
Lords.
I do not find support for the award of the loss of
consortium award of $750,000 when looking at
decisions from other jurisdictions.
See
The extended facts of Rees and the issues
presented to the House of Lords in this decision
84
are stated in paragraph 1 of the judgment on
Lord Bingham, below, and restated in several of
the following judgments.]
child. The Court of Appeal (Robert Walker and
Hale LJJ, Waller LJ dissenting) held that she was
entitled to recover the additional costs she would
incur so far as they would be attributable to her
disability: [2003] QB 20. The appellant NHS
Trust now challenges that decision as
inconsistent with McFarlane. The claimant seeks
to uphold the decision, but also claims the whole
cost of bringing up the child, inviting the House
to reconsider its decision in McFarlane.
.....
8 My concern is this. Even accepting that an
unwanted child cannot be regarded as a financial
liability and nothing else and that any attempt to
weigh the costs of bringing up a child against the
intangible rewards of parenthood is unacceptably
speculative, the fact remains that the parent of
achild born following a negligently performed
vasectomy or sterilisation, or negligent advice on
the effect of such a procedure, is the victim of a
legal wrong. The members of the House who
gave judgment in McFarlane recognised this by
holding, in each case, that some award should be
made to Mrs McFarlane (although Lord Millett
based this on a ground which differed from that
of the other members and he would have made a
joint award to Mr and Mrs McFarlane).
LORD BINGHAM OF CORNHILL
1 My Lords, in McFarlane v Tayside Health
Board [2000] 2 AC 59 a husband and wife,
themselves healthy and normal, sought to
recover as damages the cost of bringing up a
healthy and normal child born to the wife,
following allegedly negligent advice on the
effect of a vasectomy performed on the husband.
Differing from the Inner House of the Court of
Session 1998 SLT 307, the House unanimously
rejected this claim.
A factual variant of that case reached the Court
of Appeal in Parkinson v St James and Seacroft
University Hospital NHS Trust [2002] QB 266:
the mother, who had undergone a negligently
performed sterilisation operation, conceived and
bore a child who was born with severe
disabilities. Following McFarlane, the Court of
Appeal held that the mother could not recover
the whole cost of bringing up the child; but it
held that she could recover the additional costs
she would incur so far as they would be
attributable to the child's disabilities. There was
no appeal from that decision.
I can accept and support a rule of legal policy
which precludes recovery of the full cost of
bringing up a child in the situation postulated,
but I question the fairness of a rule which denies
the victim of a legal wrong any recompense at all
beyond an award immediately related to the
unwanted pregnancy and birth. The spectre of
well-to-do parents plundering the National
Health Service should not blind one to other
realities: that of the single mother with young
children, struggling to make ends meet and
counting the days until her children are of an age
to enable her to work more hours and so enable
the family to live a less straitened existence; the
mother whose burning ambition is to put
domestic chores so far as possible behind her and
The present case raises a further factual variant
of McFarlane. The claimant in these
proceedings (Ms Rees) suffers a severe and
progressive visual disability, such that she felt
unable to discharge the ordinary duties of a
mother, and for that reason wished to be
sterilised. She made her wishes known to a
consultant employed by the appellant NHS
Trust, who carried out a sterilisation operation
but did so negligently, and the claimant
conceived and bore a son. The child is normal
and healthy but the claimant's disability remains.
She claimed as damages the cost of rearing the
85
embark on a new career or resume an old one.
Examples can be multiplied.
dissenting judgment. (3) It is undesirable that
parents, in order to recover compensation, should
be encouraged to portray either their children or
themselves as disabled. There is force in the
points made by Kirby J in paragraphs 163-166 of
his judgment in Melchior. (4) In a state such as
ours, which seeks to make public provision for
the consequences of disability, the quantification
of additional costs attributable to disability,
whether of the parent or the child, is a task of
acute difficulty. This is highlighted by the
inability of the claimant in this appeal to give any
realistic indication of the additional costs she
seeks to recover.
To speak of losing the freedom to limit the size
of one's family is to mask the real loss suffered
in a situation of this kind. This is that a parent,
particularly (even today) the mother, has been
denied, through the negligence of another, the
opportunity to live her life in the way that she
wished and planned. I do not think that an award
immediately relating to the unwanted pregnancy
and birth gives adequate recognition of or does
justice to that loss. I would accordingly support
the suggestion favoured by Lord Millett in
McFarlane, at p 114, that in all cases such as
these there be a conventional award to mark the
injury and loss, although I would favour a
greater figure than the £5,000 he suggested (I
have in mind a conventional figure of £15,000)
and I would add this to the award for the
pregnancy and birth. This solution is in my
opinion consistent with the ruling and rationale
of McFarlane. The conventional award would
not be, and would not be intended to be,
compensatory. It would not be the product of
calculation. But it would not be a nominal, let
alone a derisory, award. It would afford some
measure of recognition of the wrong done. And
it would afford a more ample measure of justice
than the pure McFarlane rule.
10 I would accordingly allow the appeal, set
aside the orders of the Court of Appeal and of the
deputy judge, and order that judgment be entered
for the claimant for £15,000. I would invite the
parties to make written submissions on costs
within 14 days.
LORD NICHOLLS OF BIRKENHEAD
11 My Lords, in this appeal, as in the recent
case of McFarlane v Tayside Health Board
[2000] 2 AC 59, your Lordships' House has to
make a decision concerning the development of
the law in a field which is highly controversial
and, therefore, exceedingly difficult. What
should be the policy of the law on the award of
damages when an unwanted pregnancy occurs,
and an unintended child is born, following
professionally negligent medical procedures or
advice? Should the doctor or the hospital be
required to pay the cost of bringing up the child
to an age when he will be self-supporting?
9 I would for my part apply this rule also,
without differentiation, to cases in which either
the child or the parent is (or claims to be)
disabled. (1) While I have every sympathy with
the Court of Appeal's view that Mrs Parkinson
should be compensated, it is arguably
anomalous that the defendant's liability should
be related to a disability which the doctor's
negligence did not cause and not to the birth
which it did. (2) The rule favoured by the Court
of Appeal majority in the present case inevitably
gives rise to anomalies such as those highlighted
by Waller LJ in paragraphs 53-54 of his
12 The parent's claim in this type of case can be
stated simply. The negligent doctor committed a
legal wrong towards the parent, and the precise
event the parent sought to avoid then happened:
the birth of a child. On ordinary legal principles
the foreseeable adverse financial consequences of
86
a legal wrong may expect to be borne by him
who committed the wrong. Here the cost of
bringing up the child was foreseeable and,
indeed, may have been one of the very reasons
why the parent sought to avoid pregnancy.
should extend so far. The approach usually
adopted in measuring recoverable financial loss
is not appropriate when the subject of the legal
wrong is the birth of an unintended healthy child
and the head of claim is the cost of the whole of
the child's upbringing.
13 This argument is forceful. But it is
important to keep in mind that the law's
evaluation of the damages recoverable for a
legal wrong is not an automatic, mechanical
exercise. Recoverability of damages is always
bounded by considerations of fairness and
reasonableness: see Kuwait Airways Corpn v
Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC
883, 1090-1091, paras 69-70. So the answers to
the questions I have stated calls for an
assessment of what is fair and reasonable in
cases of this nature.
16 I have heard nothing in the submissions
advanced on the present appeal to persuade me
that this decision by the House was wrong and
ought to be revisited. On the contrary, that the
negligent doctor or, in most cases, the National
Health Service should pay all the costs of
bringing up the child seems to me a
disproportionate response to the doctor's wrong.
It would accord ill with the values society
attaches to human life and to parenthood. The
birth of a child should not be treated as
comparable to a parent suffering a personal
injury, with the cost of rearing the child being
treated as special damages akin to the financially
adverse consequences flowing from the onset of
a chronic medical condition.
14 Judges of course do not have, and do not
claim to have, any special insight into what
contemporary society regards as fair and
reasonable, although their legal expertise
enables them to promote a desirable degree of
consistency from one case or type of case to the
next, and to avoid other pitfalls. But, however
controversial and difficult the subject matter,
judges are required to decide the cases brought
before the courts. Where necessary, therefore,
they must form a view on what are the
requirements of fairness and reasonableness in
a novel type of case.
17 But this is not to say it is fair and reasonable
there should be no award at all except in respect
of stress and trauma and costs associated with the
pregnancy and the birth itself. An award of some
amount should be made to recognise that in
respect of birth of the child the parent has
suffered a legal wrong, a legal wrong having a
far-reaching effect on the lives of the parent and
any family she may already have. The amount of
such an award will inevitably have an arbitrary
character. I do not dissent from the sum of
£15,000 suggested by my noble and learned
friend, Lord Bingham of Cornhill, in this regard.
To this limited extent I agree that your Lordships'
House should add a gloss to the decision in
McFarlane v Tayside Health Board [2000] 2 AC
59.
15 In McFarlane v Tayside Health Board
[2000] 2 AC 59, your Lordships' House held
unanimously that a negligent doctor is not
required to meet the cost of bringing up a
healthy child born in these circumstances. The
language, and to some extent the legal
reasoning, employed by each of their Lordships
differed. But, however expressed, the underlying
perception of all their Lordships was that
fairness and reasonableness do not require that
the damages payable by a negligent doctor
18 Once it is decided that damages do not
include the cost of bringing up a healthy child,
87
anomalies such as those noted by Waller LJ in
the Court of Appeal in the present case become
inescapable if an exception is made when either
the child or the mother is disabled. The personal
circumstances where this problem arises will
vary so widely that what is fair and reasonable
in one set of family circumstances, including the
financial means of the family, may not seem so
in another. But awards of damages of this nature
cannot sensibly be made by courts on a
discretionary or means-tested basis. The
preferable approach is an award of a lump sum
of modest amount in all circumstances.
possible if an exception is created. That this is so
becomes even clearer if one considers the
grounds of legal policy which underpin
McFarlane as I have explained them.
38 In a powerful dissenting judgment in Rees v
Darlington Memorial Hospital NHS Trust [2003]
QB 20, Waller LJ explained why he regarded
such an exception as unacceptable. [Ed., Lord
Steyn’s quotations of Waller’s examples of
arbitrariness and perceived unfairness in a rule
that permitted a disabled parent to recovery but
denied recovery to an able bodied parent
omitted.]The examples given by Waller LJ, in
paragraphs 53 and 54, are telling. I would accept
that there is an element of arbitrariness involved
in holding that only the disabled mother of a
healthy and normal child can claim damages.
Since it is of prime importance that the law must
avoid arbitrariness this creates a serious
difficulty.
19 For these reasons, and also the reasons
given by Lord Bingham of Cornhill, I would
allow this appeal, and set aside the orders of the
Court of Appeal and of Stuart Brown QC sitting
as a deputy High Court judge. In response to the
preliminary issue I would declare that the
claimant is not entitled to recover any of the
costs of bringing up the child, Anthony, but she
is entitled to payment of £15,000.
39 On the other hand, there is great force in the
observations of Robert Walker LJ. He held, at p
32, para 41: "But these difficulties should not in
my view deter this court from allowing the
possibility of recovery (which is all it is, on the
preliminary issue) in circumstances which, as I
see it, are not covered by McFarlane's case and
are a legitimate extension of Parkinson's case
[2002] QB 266. Disabled persons are a category
of the public whom the law increasingly
recognises as requiring special consideration (the
Disability Discrimination Act 1995 is an
important landmark) and the developing law as
to disability should (as Hale LJ explained in
Parkinson's case, at p 293, para 91) avoid the sort
of definitional problems which Lord Hoffmann
referred to in Frost v Chief Constable of South
Yorkshire Police [1999] 2 AC 455, 510b."
LORD STEYN
.....
36 The position of a disabled mother who
gives birth to a healthy and normal child was not
considered in McFarlane. And to the best of my
knowledge the Law Lords did not have it in
mind at all. What the House would have said if
in McFarlane the claim was by a seriously
disabled mother, who had told the surgeon that
due to her incapacities she would be unable to
look after a child, is a matter of speculation. But
the House must now grapple with this difficult
case.
37 Unlike the position of the disabled child, it
is not possible to regard the disabled mother of
a healthy and normal child as unaffected by the
principle in McFarlane. On the contrary, an
award of damages in the present case is only
How is this tension between cogent arguments
pulling in opposite directions to be resolved? In
jurisprudential and positive law terms this is a
88
truly hard case. It is unrealistic to say that there
is only one right answer. But a decision must be
made, and that decision must represent the best
available choice and hopefully a decision
defensible as delivering justice. For reasons
which are apparent from this opinion it is
logically not straightforward to treat the present
case as simply an extension of Parkinson. On
the other hand, I consider (like Hale and Robert
Walker LJJ) that the law should give special
consideration to the serious disability of a
mother who had wanted to avoid having a child
by undergoing a sterilisation operation. I am
persuaded that the injustice of denying to such
a seriously disabled mother the limited remedy
of the extra costs caused by her disability
outweighs the considerations emphasised by
Waller LJ.
This underlines the heterodox nature of the
solution adopted.
46 Like Lord Hope I regard the idea of a
conventional award in the present case as
contrary to principle. It is a novel procedure for
judges to create such a remedy. There are limits
to permissible creativity for judges. In my view
the majority have strayed into forbidden territory.
It is also a backdoor evasion of the legal policy
enunciated in McFarlane. If such a rule is to be
created it must be done by Parliament. The fact
is, however, that it would be a hugely
controversial legislative measure. It may well be
that the Law Commissions and Parliament ought
in any event, to consider the impact of the
creation of a power to make a conventional
award in the cases under consideration for the
coherence of the tort system.
VII. A conventional award
47 I cannot support the proposal for creating
such a new rule.
40 Lord Bingham has explained why he
favours a conventional award of £15,000 in the
present case. His opinion makes clear that to
this extent he would depart from McFarlane in
the case of a healthy and normal child. He has
further observed that he would apply this rule,
without differentiation, to cases in which either
the child or the parent is (or claims to be)
disabled. This involves overruling the majority
of the Court of Appeal in the present case. It
also involves overruling the Court of Appeal
decision in Parkinson against which there was
no appeal. The other opinions in the present
case speak for themselves.
......
VIII. The conclusion and disposal
48 While I am troubled by the wholly
unparticularised nature of the claim I would
allow the claim of Ms Rees to be pursued. For
avoidance of doubt I add that the cases
mentioned by Waller LJ, at pp 34-35, paras 53
and 54 of his judgment, are on the wrong side of
the line drawn in McFarlane and I would not
extend the exception to such cases.
49 I would dismiss the appeal of the NHS
Hospital Trust.
45 No United Kingdom authority is cited for
the proposition that judges have the power to
create a remedy of awarding a conventional sum
in cases such as the present. There is none. It is
also noteworthy that in none of the decisions
from many foreign jurisdictions, with varying
results, is there any support for such a solution.
LORD HOPE OF CRAIGHEAD
50 My Lords, my noble and learned friend, Lord
Steyn, has summarised the facts of this case, and
I gratefully adopt his account of them. I cannot
improve upon his masterly analysis of the
decision of this House in McFarlane v Tayside
89
Health Board [2000] 2 AC 59 that the costs of
rearing a normal and healthy child were not
recoverable. I also agree with him, for all the
reasons that he has given, that it would be
wrong for the House now to depart from
McFarlane even if some of your Lordships had
been persuaded that they would have decided
the case differently.
.....
A conventional sum?
being calculated arithmetically: Kemp & Kemp,
The Quantum of Damages, vol 1, para 1-003.
The sum which it awards has been described by
Lord Denning MR in Ward v James [1966] 1 QB
273, 303 as "basically a conventional figure
derived from experience and from awards in
comparable cases": see also Wright v British
Railways Board [1983] 2 AC 773, 777d, per
Lord Diplock. The award is conventional in the
sense that there is no pecuniary guideline which
can point the way to a correct assessment: Lim
Poh Choo v Camden and Islington Area Health
Authority [1980] AC 174, 189g-h per Lord
Scarman. But financial loss does not present the
same problem. It is capable of assessment in
money. So it has never been the practice to resort
to a conventional sum as a means of
compensating the claimant for that part of the
loss that falls under the head of special damages.
70 I should like to add that I have not
overlooked Lord Millett's suggestion that the
proper outcome in all these cases would be to
award the parents a modest conventional sum
for the denial of their right to limit the size of
their family--or, as he now puts it, to
compensate them for the injury to their
autonomy. I was not attracted by this suggestion
when he made it in McFarlane, and I have to
confess, with respect, that I am not attracted by
it in this case either. I agree with Gleeson CJ's
observation in Cattanach v Melchior [2003]
HCA 38, para 23 that it would be more accurate
to say that parents have the freedom to choose,
and therefore to limit, the size of their family.
To describe this freedom as a right--or, as Lord
Millett now suggests, as the loss of an
opportunity which is the proper subject of
compensation by way of damages--seems to me
to beg many questions which are not answered
in his analysis. But that is not the only reason
for the difficulty which I have in accepting this
suggestion.
72 To take just one example, the distinction
between these two heads of loss has been
recognised by section 1 of the Damages
(Scotland) Act 1976, as amended by section 1 of
the Damages (Scotland) Act 1993, which defines
the rights of relatives of a deceased person in
Scots law. The relatives' claims for loss of
support and funeral expenses are dealt with in
section 1(3). Members of the deceased's
immediate family may then be awarded under
section 1(4), without prejudice to any claim
under section 1(3), such sum as the court thinks
just by way of compensation for distress and
anxiety, grief and sorrow and the loss of such
non-patrimonial benefit as the relative might
have been expected to derive from the deceased's
society and guidance if the deceased had not
died. This is the equivalent of an award of
damages for bereavement under section 1A of the
Fatal Accidents Act 1976, which was inserted by
section 3(1) of the Administration of Justice Act
1982, except that the amount of the award is left
to the court and not fixed, as it is in England and
Wales, by statutory instrument.
71 The award of a conventional sum is familiar
in the field of damages for personal injury.
Conventional sums are awarded as general
damages for typical injuries such as the loss of
a limb or an eye or for the bereavement that
results from the loss of a child or parent in the
case of a fatal accident. This is the means by
which the court arrives, as best it can, at a figure
for the damage suffered which is incapable of
90
73 The award of a conventional sum to parents
for the loss of the right, or the opportunity, to
limit the size of their family would perform a
similar function to the award of a conventional
sum under section 1(4). It would deal with that
part of the parents' claim that fell into the
category of general damages. But it would not
deal--nor, as Lord Millett has explained, would
it be designed to deal--with that part of the
claim resulting from the loss of the right that fell
into the category of special damages. The
splitting up of a claim of damages into these two
parts in order to allow recovery of one part and
deny recovery of the other part is a novel
concept and it seems to me, with respect, to be
contrary to principle. If damages are to be
awarded at all, the aim must be to put the
injured parties into the same position as far as
money will allow as if they had not sustained
the wrong for which they are being
compensated: Livingstone v Rawyards Coal Co
(1880) 5 App Cas 25, 39, per Lord Blackburn.
That rule would be broken if we were to assume
that the loss of the right to limit one's family
was capable of being compensated for by an
award of damages and then to say that the
parents' award was to be restricted by law to a
conventional sum to compensate them only for
their general damages. It would also be broken
if we were to say--contrary to my
assumption--that the conventional sum was
intended to give them something for their
financial loss also. It would deny them the
opportunity of attempting to establish the true
value of that part of their claim according to the
compensatory principle.
approach seems to me to depart from the
principle which has always guided the common
law in its approach to the assessment of damages.
He does not suggest that the award is intended to
be punitive. If it is not, and the case is not one for
an award that is purely nominal, what basis can
there be for it other than the compensatory
principle? Both Lord Millett and Lord Scott use
language which suggests that they are seeking to
arrive at a figure which would compensate the
parents for being deprived of the loss of
opportunity or of the benefits which they were
entitled to expect. Lord Nicholls does not use the
same language, but his brief treatment of the
issue leaves me in doubt as to the basis for it.
The lack of any consistent or coherent ratio in
support of the proposition in the speeches of the
majority is disturbing. It underlines Lord Steyn's
point that the examination of the issue at the oral
hearing was cursory and unaccompanied by
research. Like him, I cannot agree with the
description of the new rule by Lord Bingham and
Lord Nicholls as a "gloss " on the decision in
McFarlane.
75 Then there is the problem of arriving at an
appropriate figure for a conventional sum which
was not at risk of being seen by the parents as
derisory. The figure which Lord Millett
suggested in McFarlane seems to me to invite
that criticism. I doubt whether the larger figure
that is now being suggested removes this
difficulty. We are in uncharted waters, as there
are no previous awards for the loss of this right to
which we can look in order to discover the
parameters.
.....
74 Lord Bingham seeks to escape from this
problem by asserting that the conventional
award which he favours would not be, and
would not be intended to be, compensatory. It
would not be the product of calculation nor
would it be nominal, but would afford some
measure of recognition of the wrong done. This
76 Lord Bingham has given, as one of his
reasons for applying the new rule without
differentiation to cases whether either the child
or the parent is, or claims to be, disabled the
acute difficulty of the task of quantifying the
additional costs attributable to disability. As I
91
have already said, I agree with Robert Walker
LJ that care would be needed in sorting out what
costs are and are not so attributable. But to
describe the task as one of acute difficulty seems
to me to be an overstatement. Lord Bingham
then says that the difficulty is highlighted by the
inability of the respondent to give any realistic
indication of the additional costs she seeks to
recover. But I think that this may be quite unfair
to the respondent, as all that was being asked for
at this stage was an answer to the preliminary
issue whether the recovery of costs was a
possibility. We have no means of knowing
whether the additional costs in her case can or
cannot readily be identified, as this question was
not explored at first instance or in the Court of
Appeal nor was it focused as an issue in this
appeal.
77 I am left with the uneasy feeling that the
figure which is to be established by the new rule
will in many cases, and especially in this one,
fall well short of what would be needed to
satisfy Lord Millett's aim, which Lord Scott
adopts, of compensating the parents for the
wrong that has been done to them. The issue is,
as Lord Steyn says, hugely controversial and I
agree with him that its creation--which would
surely then have been the product of much more
study and research than has been given to its
creation in this case by the majority--ought to
have been left, preferably with the benefit of a
report by the Law Commissions, to Parliament.
Conclusion
healthy baby; the House did not consider the
position where the mother was disabled. In my
opinion where the mother is disabled it is not
unjust, unfair or unreasonable to award damages
for the extra costs of bringing up the child. In
considering whether damages should be awarded
there is, in my view, a clear distinction between
a disabled mother and a mother in normal health.
It is right, in my opinion, to recognise and give
effect to this distinction in laying down a
principle to guide courts of first instance
notwithstanding that a mother who is not
disabled may face the serious difficulties
described by Waller LJ. The fact that hard cases
can be pointed to very close to the line which
divides recovery from non-recovery does not
invalidate the principle itself.
98 Secondly, there are two ways of stating the
decision of the Court of Appeal in this case. It
can either be said that the decision creates an
exception to the principle established by
McFarlane, or it can be said that McFarlane
created an exception, in the case of the birth of a
healthy baby to healthy parents, to the principle
that where there is a breach of duty causing
physical harm, all the damages directly flowing
from that breach of duty can be recovered. As I
have stated, I think that the members of the
House recognised that under the general
principles applicable to the recovery of damages
for negligent breach of duty the McFarlane
parents would have been entitled to recover
damages. Therefore, whilst to some extent the
matter is one of terminology, I would hold that
McFarlane created an exception to the general
principles, that that exception does not apply to
a disabled child or to a disabled mother, and that
accordingly the McFarlane decision does not bar
the mother from recovering in this case.
78 I would allow the respondent's claim to
proceed. I would dismiss the appeal.
LORD HUTTON
.....
97 ..... I consider that the decision in
McFarlane was grounded on the principle that it
is not just, fair or reasonable to award damages
to healthy parents for the costs of bringing up a
99 Accordingly, for the reasons which I have
given, I would dismiss this appeal.
92
LORD MILLETT
not for the birth of the child, but for the denial of
an important aspect of their personal autonomy,
viz the right to limit the size of their family. This
is an important aspect of human dignity, which is
increasingly being regarded as an important
human right which should be protected by law.
The loss of this right is not an abstract or
theoretical one. As my noble and learned friend
Lord Bingham of Cornhill has pointed out, the
parents have lost the opportunity to live their
lives in the way that they wished and planned to
do. The loss of this opportunity, whether
characterised as a right or a freedom, is a proper
subject for compensation by way of damages.
100 My Lords, in McFarlane v Tayside Health
Board [2000] 2 AC 59 your Lordships were
called upon to consider for the first time the
extent to which damages are recoverable for the
birth of an unintended child following a
wrongful pregnancy. By this is meant a
pregnancy which is consequent upon a failed
sterilisation, whether it has been performed
negligently or the parents have been negligently
informed that it has been successful. The House
held that the parents could not recover the costs
of bringing up a normal, healthy child.
In Parkinson v St James and Seacroft University
Hospital NHS Trust [2002] QB 266, the Court
of Appeal held that the additional costs of
bringing up a disabled child were recoverable.
The question in the present case is whether the
additional costs of bringing up a normal, healthy
child which are attributable to the fact that one
of the parents is disabled are similarly
recoverable.
.....
124 I made this suggestion in McFarlane, but it
was not taken up by any one else. As I see it, it
was neither accepted nor rejected, and I do not
think it right to say that the point was decided.
The majority did not consider it at all, at least
expressly, perhaps because it was wrongly
thought to be an alternative to the award of
damages for the mother's pain and suffering. It
was not, for I would have awarded it to both
parents. In my opinion thepoint is still open for
consideration without the need to depart from the
decision in McFarlane.
122 ..... In my opinion, principle, common
justice and the coherence of the law alike
demand that the line be drawn between those
costs which are referable to the characteristics of
the child and those which are referable to the
characteristics of the parent. I agree with Waller
LJ that ordinary people would think it unfair
that a disabled person should recover the costs
of looking after a healthy child when a person
not suffering from disability who through no
fault of her own was no better able to look after
such a child could not. I can identify no legal
principle by which such a distinction could be
defended.
125 The award of a modest sum would not, of
course, go far towards the costs of bringing up a
child. It would not reflect the financial
consequences of the birth of a normal, healthy
child; but it would not be meant to. They are not
the proper subject of compensation for the
reasons stated in McFarlane. A modest award
would, however, adequately compensate for the
very different injury to the parents' autonomy;
moreover it would be available without proof of
financial loss, and so would not attract the
distaste or moral repugnance which was the
decisive factor in McFarlane. In that case I
suggested that the award should not exceed
£5,000 in a straightforward case. On reflection, I
am persuaded that the figure should be a purely
123 I still regard the proper outcome in all
these cases is to award the parents a modest
conventional sum by way of general damages,
93
conventional one which should not be
susceptible of increase or decrease by reference
to the circumstances of the particular case. I
agree with the figure of £15,000 which Lord
Bingham has suggested.
if competent advice had been given. But if the
defendant owes no contractual obligation to the
claimant and the case is brought in tort, the
claimant must be put in the position he would
have been in if no advice had been given at all.
.....
126 I would allow the appeal and substitute an
award of £15,000 as a conventional sum.
134 It is at this point that, as it seems to me, the
application of general principle becomes
difficult. It becomes difficult because the
consequence of the negligence is the birth of a
human being and because assessments about the
value or the burden of a particular human life are
impossible. These difficulties have to be
grappled with, and I will come back to them, but
before doing so I want to consider how the
damages issue would look if analogous
professional negligence had occurred in a context
that did not involve these difficulties.
LORD SCOTT OF FOSCOTE
.... 129 It is helpful, to me at least, to start with
a review of the general principles that apply to
damages. The basic rule of damages, whether in
contract or in tort, was expressed by Lord
Blackburn in Livingstone v Rawyards Coal Co
(1880) 5 App Cas 25. He said, at p 39, that
damages should be "that sum of money which
will put the party who has been injured, or who
has suffered, in the same position as he would
have been in if he had not sustained the wrong
for which he is now getting his compensation or
reparation."
Suppose the owner of a two year old colt decided
to have the colt gelded and engaged a veterinary
surgeon (a vet) to carry out the operation. The vet
operates on the colt and advises the owner that
the operation has been successful. In the belief
that that is so the owner allows the gelding, as he
believes the colt to have become, to graze in a
paddock with some mares. But the operation has
been negligently performed, the colt succeeds in
getting one of the mares in foal, the condition of
the mare is not discovered until it is too late to do
anything about it and in due time the mare gives
birth to a healthy foal. The mare is not damaged
by the experience but the owner sues the vet for
damages. Negligence is not in issue. For what
damages would the vet be liable? An account of
detriment and benefit would need to be drawn
up. Veterinary costs occasioned by the mare's
unwanted pregnancy and the birth of the foal
would be recoverable. But what else? Special
circumstances might, subject to remoteness rules,
justify special claims; but leave special claims
aside.
130 In applying this principle there is often,
however, a difference depending on whether the
claim is a contractual one or a claim in tort. In
general, where a claim is based on a breach of
contract, the claimant is entitled to the benefit of
the contract and entitled, therefore, to be placed
in the position, so far as money can do so, in
which he would have been if the contractual
obligation had been properly performed. But
where the claim is in tort, there being no
contract to the benefit of which the claimant is
entitled, the claimant is entitled to be placed in
the position in which he would have been if the
tortious act, the wrong, had not been committed.
The difference in approach is often important in
cases where the claim is based on negligent
advice or negligent misrepresentation. If the
defendant was under a contractual obligation to
give competent advice, the claimant is entitled
to be put in the position he would have been in
94
What about the costs of rearing the foal to
maturity? The proposition that the defendant vet
would be liable for such costs seems absurd. It
is instructive to ask oneself why that is so. It is
absurd, in my opinion, because the owner of the
foal does not have to keep it. Its unexpected and
originally unwanted arrival would present him
with a number of choices. He could have the
foal destroyed as soon as it was born. But this
would be an unlikely choice for the foal would
be likely to have some value and it would cost
very little to leave it with its dam until it could
be weaned. Or the owner could decide to keep
the foal until it could be weaned and then to sell
it. Or he could decide to keep it until, as a
yearling or a two year old, it had reached a little
more maturity and then sell it. Or he could try
and add value to it by breaking it in, schooling
it and then selling it. Or he could keep it for his
own use. Each of these choices, bar the first,
would have involved the owner in some expense
in rearing the foal. But the expense would be the
result of his choice to keep the foal. Moreover,
the xpense of rearing the foal would have to be
set against the value of the foal. The owner
could not claim as damages reimbursement of
the expenses without bringing into account the
benefit.
the originally unwanted but, once born, loved and
cherished baby and his or her parents and
siblings cannot be put into any monetary scale of
benefit and detriment.
136 Nonetheless it must be recognised that the
parents' costs and expenses in looking after and
providing for the originally unwanted baby until
his or her maturity do result from the decision of
the parent or parents to keep the child. If the
parents decided, for example, to place the child
with an adoption society with a view to adoption,
they would not incur those costs and expenses.
Nor would they incur them if, for whatever
reason, the mother had had her unwanted
pregnancy terminated.
Most parents, I am sure, would not regard their
decision to keep and rear their baby as
representing a choice. It would seem to them
inevitable that this is what they would have to do.
The owner of the unwanted foal, they would say,
has a true choice. There is no reason why he
should keep the foal and if he decides to do so he
must accept the adverse as well as the beneficial
consequences of doing so. But the choice, if that
is the right word, facing the parents of the
originally unwanted baby is not comparable. For
a mix of cultural, moral and religious reasons the
parents of every baby are expected to accept a
responsibility for the baby and its well being that
has no parallel in the case of the unwanted foal.
The law, indeed, reinforces these reasons with its
own expectations of and duties imposed on
parents in relation to the children born to them. It
is, in my opinion, reasonable for parents who
have produced an originally unwanted baby to
say that they regard themselves as having had no
choice but to keep the child as a member of their
family and raise him or her to the best of their
ability.
135 The inability of the owner of the unwanted
foal to claim from the negligent vet the cost of
rearing the foal seems to me to raise no
particular difficulty or issue of principle. The
difficulty produced by cases like McFarlane and
the present case is because the originally
unwanted progeny is a human being, not an
animal, and because, for very deeply ingrained
cultural and, for some, religious reasons, human
life, whether that of babies, children, adults in
the prime of life or the aged and whether normal
or associated with disability, is regarded by
society generally and by the law as uniquely
precious and as incapable of valuation in
monetary terms. And the relationship between
137 But this conclusion does not itself answer
the question: why should the negligent doctor be
95
liable for the economic consequences of the
parents' decision to keep and rear the child,
reasonable, praiseworthy and socially valuable
though that decision no doubt was? As to
causation, the doctor's negligence was
undoubtedly a causa sine qua non of the costs in
question and was a reasonably foreseeable
consequence of the pregnancy notwithstanding
that it resulted from an independent decision of
the parents to keep the child. And the pregnancy
was the outcome the avoidance of which had
been the reason for seeking the doctor's services.
These considerations suggest that the answer to
the question should favour the claimant.
finally, the placing of a money value on the net
detriment to the child's parents of having to rear
the child would, it seems to me, be inconsistent
with the status of the child as a valued and loved
member of the family. I regard these
considerations as having a weight that requires a
departure from the conclusion to which the
normal application of tortious damages rules
would lead.
139 In McFarlane somewhat different reasons
were given by different members of the
Appellate Committee for concluding that the
parents could not claim damages for the cost of
rearing their healthy and much loved baby. I am
not in disagreement with the reasons they
expressed and have reached the same conclusion.
In my opinion, however, it is important to
recognise that the conclusion is not that which
the normal application of established tortious
damages principles would lead to. It is an
exception based upon a recognition of the unique
nature of human life, a uniqueness that our
culture and society recognise and that the law,
too, should recognise. It seems to me to be an
acceptable irony that the conclusion is the same
conclusion as that which would have been
reached in the case of the unwanted foal, but
reached by an entirely different route.
138 But there are two further considerations
which seem to me to be of importance and, in
the end, determinative. First, there is no
escaping that it is a feature of these cases that
the expenses sought to be recovered from the
negligent doctor have been, or will be,
necessarily accepted by the parents of the child
as the price to be paid for having the child as a
member of their family. It has not been asserted
by any parent in any of the cases to which your
Lordships have been referred that the price was
not worth paying. The value to the parents and
the other family members of having the child as
a member is not capable of valuation, either at a
particular snapshot of chosen time or over the
period until the child reaches maturity.
140 If I am right in concluding that the
unanimous decision in McFarlane was correct
and that the decision was not reached by applying
normal principles of damages but by constructing
an exception to those principles based upon a
recognition of the uniqueness of every human
being and, therefore, of every baby whether
wanted or unwanted, the question then arises
whether the present case falls within that
exception.
Is it right to charge the defendant with the costs
and expenses of providing the parents with
something of unique value but incapable of
valuation? The account of detriment and benefit,
into which would go the costs of rearing the
child on one side and, at least, the child benefit
allowance on the other, would be incomplete
without anything to represent the value of what
was being acquired by the expenditure. The
impossibility of drawing up a balance fair to
both sides seems to me a strong argument why
no balance should be drawn up at all. And,
141 The only relevant factual difference
between McFarlane and the present case is that in
the present case the mother is blind. Her
96
blindness was the reason why she wanted a
sterilisation operation to be performed on her.
She doubted her ability to look after her baby if
she were to bear one. But, due to the doctor's
negligence, she did bear one and, on the footing
that McFarlane bars her recovery as damages of
the ordinary expenses of looking after her child,
she seeks damages to reimburse herself for the
extra costs she will incur on account of her
blindness.
peculiar to that particular case and I do not think
the mother's disability in the present case can
justify a departure from the basis on which
McFarlane was decided. I suspect that underlying
the majority decision in the Court of Appeal lies
the thought that McFarlane was wrong and a
desire to limit its effect as much as possible. In
my opinion, however, McFarlane was correctly
decided and the basis of the decision should be
applied in the present case.
.....
142 My Lords, in my opinion the mother's
visual disability does not take the case out of the
exception to normal principle established by
McFarlane. Her baby, too, is a healthy and much
loved baby. She has not said, and would not say,
that her baby's presence in her household is not
a joy and a delight. But it has caused her to incur
expenses and will, no doubt, continue for some
years to do so. However, all the features of
McFarlane that justify creating an exception
from normal principle are present, too, in this
case. The mother need not have kept her baby
but decided to do so. I do not imagine that she
ever felt that she had a real choice. There is no
doubt that her baby adds value to her life and
that the value is not capable of assessment in
monetary terms. A balance sheet of detriment
and benefit caused by the doctor's negligence
cannot be drawn up.
148 For the reasons I have given I would
allow this appeal. But, like my noble and
learned friends, Lord Bingham of Cornhill and
Lord Millett, I am not sure that the recovery by
the respondent of nothing for the frustration of
her expectation that her sterilisation operation
would safeguard her against conception
satisfies justice. She was owed a duty of care in
the carrying out of the operation. She was
entitled to the benefit of the doctor's contractual
obligation to his NHS employers to carry out
the operation with due care. It is open to the
court to put a monetary value on the expected
benefit of which she was, by the doctor's
negligence, deprived (cf Farley v Skinner
[2002] 2 AC 732). I would respectfully agree
with Lord Bingham's suggestion that she be
awarded £15,000. So I, too, while allowing the
appeal, would substitute an award of £15,000
as a conventional sum to compensate the
respondent for being deprived of the benefit
that she was entitled to expect.
143 The majority in the Court of Appeal
treated this case as justifying, on account of the
mother's blindness, an exception to McFarlane.
An exception to an exception is apt to produce
messy jurisprudence and for all the reasons so
cogently expressed by Waller LJ in his
dissenting judgment in the Court of Appeal, the
creation of an exception in the present case
would lead to further exceptions. The exception
that McFarlane constitutes is based on a
recognition of the uniqueness of a human being.
The principle on which McFarlane is based
cannot be limited to the particular circumstances
Appeal allowed. Preliminary issue answered in
favour of defendants. Claimant awarded
damages of £15,000.
97
Subtopic SEVEN
DEFENSES TO NEGLIGENCE
CAUSE OF ACTION
98
BUTTERFIELD
v.
FORRESTER
11 East. 59, 103 E.R. 926 (K.B. (C.A.) 1809)***
FROOM
v.
BUTCHER
[1976] Q.B. 286 (CA)
BAYLEY, J.
LORD DENNING M.R.
The facts
The plaintiff was proved to be riding as fast as
his horse could go, and this was through the
streets of Derby. If he had used ordinary care, he
must have seen the obstruction; so that the
accident appeared to happen entirely from his
own fault.
Mr. Harold Froom, the plaintiff, is the managing
director of a firm of contractors. He lives in
Hertfordshire and has a Jaguar motor car. On
November 19, 1972, he was driving home from
Southend with his wife beside him and his
daughter behind. The car was fitted with seat
belts for the front seats. But neither the plaintiff
nor his wife was wearing them. He gave his
reason:
"I do not personally like wearing seat belts. I
have seen so many accidents on the road when,
if seat belts are worn, then the driver would
never have got out of the vehicle that had been in
the smash and, secondly, with a man of my age
[he is 57] we do not have to go roaring round the
countryside, we just stick to our normal speed."
LORD ELLENBOROUGH, C.J.
A party is not to cast himself upon an
obstruction which has been made by the fault of
another, and avail himself of it, if he do not
himself use common and ordinary caution to be
in the right. In cases of persons riding upon
what is considered to be the wrong side of the
road, that would not authorise another purposely
to ride up against them. One person being in
fault will not dispense with another’s using
ordinary care for himself. Two things must
concur to support this action, an obstruction in
the road by the fault of the defendant, and no
want of ordinary care to avoid it on the part of
the plaintiff.
On this day he was driving along Gravel Lane,
Chigwell. He was going carefully on his near
side of the road at his normal speed of 30 to 35
miles an hour. There was a line of traffic coming
in the opposite direction. Then a car pulled out
to overtake. It was going fast on the wrong side.
It struck the plaintiff's car head-on. The driver,
the defendant, was afterwards convicted of
careless driving.
Per Curiam. Rule refused.
The plaintiff, his wife and daughter were all
injured. The plaintiff was forced up against the
steering column. He had a broken rib and bruises
on his chest. He had abrasions on his head. He
would probably have been saved from these
injuries if he had worn a seat belt. He also had a
broken finger, but the seat belt would not have
saved that. These injuries were not at all severe.
He was back at work next day. The judge
***
[Ed.— English Reporter, general
reporter of older English cases, King’s Bench
Court of Appeals decision; East’s reports.]
99
assessed his general damages at £450. Mrs.
Froom was also injured but the seat belt would
not have saved her from her injuries.
1945, which provides:
"When any person suffers damage as the
result partly of his own fault and partly of the
fault of any other person or persons, a claim in
respect of that damage shall not be defeated by
reason of the fault of the person suffering the
damage, but the damages recoverable in respect
thereof shall be reduced to such extent as the
court thinks just and equitable having regard to
the claimant's share in the responsibility for the
damage."
Section 4 provides:
"'fault' means negligence, breach of statutory
duty or other act or omission which gives rise to
a liability in tort or would, apart from this Act,
give rise to the defence of contributory
negligence."
The question that arises is whether the plaintiff's
damages are to be reduced because he was not
wearing a seat belt. The judge held they were
not. The defendant appeals to this court.
This is the first case to reach this court about
seat belts. But there have been a dozen or more
cases in the lower courts and they have disclosed
a remarkable conflict of opinion. Half of the
judges think that if a person does not wear a seat
belt he is guilty of contributory negligence and
his damages ought to be reduced. The other half
think that it is not contributory negligence and
they ought not to be reduced.
[Discussion of previous cases omitted]
Those provisions must be borne in mind as we
take our consideration further.
Contributory negligence
The cause of the damage
Negligence depends on a breach of duty,
whereas contributory negligence does not.
Negligence is a man's carelessness in breach of
duty to others. Contributory negligence is a
man's carelessness in looking after his own
safety. He is guilty of contributory negligence if
he ought reasonably to have foreseen that, if he
did not act as a reasonable prudent man, he
might be hurt himself: see Jones v. Livox
Quarries Ltd. [1952] 2 Q.B. 608. Before 1945 a
plaintiff, who was guilty of contributory
negligence, was disentitled from recovering
anything if his own negligence was one of the
substantial causes of the injury: see Swadling v.
Cooper[1931] A.C. 1. Since 1945 he is no
longer defeated altogether. He gets reduced
damages: see Davies v. Swan Motor Co.
(Swansea) Ltd. [1949] 2 K.B. 291.
In these seat belt cases, the injured plaintiff is in
no way to blame for the accident itself.
Sometimes he is an innocent passenger sitting
beside a negligent driver who goes off the road.
At other times he is an innocent driver of one car
which is run into by the bad driving of another
car which pulls out on to its wrong side of the
road. It may well be asked: why should the
injured plaintiff have his damages reduced? The
accident was solely caused by the negligent
driving of the defendant. Sometimes
outrageously bad driving. It should not lie in his
mouth to say: "You ought to have been wearing
a seat belt." That point of view was strongly
expressed in Smith v. Blackburn (Note) [1974]
R.T.R. 533, 536 by O'Connor J.:
"... the idea that the insurers of a grossly
negligent driver should be relieved in any degree
from paying what is proper compensation for
injuries is an idea that offends ordinary decency.
Until I am forced to do so by higher authority I
The present law is contained in section 1 (1) of
the Law Reform (Contributory Negligence) Act
100
will not so rule."
Seeing that it is compulsory to fit seat belts,
Parliament must have thought it sensible to wear
them. But it did not make it compulsory for
anyone to wear a seat belt. Everyone is free to
wear it or not, as he pleases. Free in this sense,
that if he does not wear it, he is free from any
penalty by the magistrates. Free in the sense that
everyone is free to run his head against a brick
wall, if he pleases. He can do it if he likes
without being punished by the law. But it is not
a sensible thing to do. If he does it, it is his own
fault: and he has only himself to thank for the
consequences.
I do not think that is the correct approach. The
question is not what was the cause of the
accident. It is rather what was the cause of the
damage. In most accidents on the road the bad
driving, which causes the accident, also causes
the ensuing damage. But in seat belt cases the
cause of the accident is one thing. The cause of
the damage is another. The accident is caused by
the bad driving. The damage is caused in part by
the bad driving of the defendant, and in part by
the failure of the plaintiff to wear a seat belt. If
the plaintiff was to blame in not wearing a seat
belt, the damage is in part the result of his own
fault. He must bear some share in the
responsibility for the damage: and his damages
fall to be reduced to such extent as the court
thinks just and equitable. In Admiralty the courts
used to look to the causes of the damage: see
The Margaret (1881) 6 P.D. 76. In a leading case
in this court, under the Act of 1945, we looked
to the cause of the damage: see Davies v. Swan
Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291,
326. In the crash helmet cases this court also
looked at the causes of the damage: see
O'Connell v. Jackson [1972] 1 Q.B. 270. So also
we should in seat belt cases.
Much material has been put before us about the
value of wearing a seat belt. It shows quite
plainly that everyone in the front seats of a car
should wear a seat belt. Not only on long trips,
but also on short ones. Not only in the town, but
also in the country. Not only when there is fog,
but also when it is clear. Not only by fast drivers,
but also by slow ones. Not only on motorways,
but also on side roads. On November 15, 1974,
the Minister of Transport said in the House of
Commons:
"In 1973, 41,000 people were killed or
seriously injured in the front seats of cars and
light vans. I estimate that a thousand of these
deaths and nearly 13,000 serious injuries could
have been avoided by the wearing of seat belts.
... In a frontal crash the car stops very rapidly,
but the occupants continue to move forward and
strike the part of the car in front of them,
frequently causing injuries to the head. Quite
often they are ejected through the windscreen.
Careful study of accident types and injuries led
to the estimate that the risk of death or injury is
reduced by 50 per cent. if a seat belt is worn."
The sensible practice
It is compulsory for every motor car to be fitted
with seat belts for the front seats. The Motor
Vehicles (Construction and Use) Regulations
1973 so provide. They apply to every motor car
registered since January 1, 1965. In regulation 17
(3) seat belts are called, in cumbrous language,
"body-restraining seat belts." A "seat belt" is
defined in regulation 17 (9) as
"a belt intended to be worn by a person in a
vehicle and designed to prevent or lessen injury
to its wearer in the event of an accident to the
vehicle. ..."
This material confirms the provision of the
Highway Code which contains this advice: "Fit
seats belts in your car and make sure they are
always used. " This advice has been in the
Highway Code since 1968, and should have been
101
known to the plaintiff at the time of his accident
in November 1972. Section 37 (5) of the Road
Traffic Act 1972 provides that a failure to
observe that provision does not render a person
liable to criminal proceedings of any kind, but it
can be relied upon in civil proceedings as
tending to establish or negative liability. Sir
George Baker P. in Freeborn v. Thomas (Note)
[1975] R.T.R. 16, 17 made a comment on the
provision about seat belts. He said:
"that says nothing about passengers, nor does
it say 'You must always wear a seat belt.' It is, if
anything, an exhortation to the driver or the
owner."
four times as great. Yet they believe it honestly
and firmly. On this account Nield J. thought they
should not bear any responsibility. He
recognised that such persons are in a minority,
but he thought that proper respect should be paid
to the minority view. He said [1974] 1 W.L.R.
1297, 1302:
" I do not feel that the courts are justified in
invading the freedom of choice of the motorist
by holding it to be negligence, lack of care or
fault, to act upon an opinion firmly and honestly
held and shared by many other sensible people."
I am afraid I do not agree. In determining
responsibility, the law eliminates the personal
equation. It takes no notice of the views of the
particular individual or of others like him. It
requires everyone to exercise all such
precautions as a man of ordinary prudence would
observe: see Vaughan v. Menlove (1837) 3 Bing.
N.C. 468 and Glasgow Corporation v. Muir
[1943] A.C. 448, 457 by Lord Macmillan.
Nowadays, when we have no juries to help us, it
is the duty of the judge to say what a man of
ordinary prudence would do. He should make up
his own mind, leaving it to the Court of Appeal
to correct him if he is wrong.
I think that the President construed the code too
narrowly. The Highway Code is a guide for all
persons who use the road. "Make sure they are
always used " is sound advice, not only for
drivers, but also for passengers.
The Government's view is also plain. During the
years 1972 to 1974 they spent ƒ 2 1/2 million in
advertisements telling people to wear seat belts.
Very recently a Bill was introduced into
Parliament seeking to make it compulsory. In
this respect England is following the example of
Australia, where it has been compulsory for the
last three or four years. The Bill here has been
delayed. So it will not be compulsory yet awhile.
But, meanwhile, I think the judges should say
plainly that it is the sensible practice for all
drivers and passengers in front seats to wear seat
belts whenever and wherever going by car. It is
a wise precaution which everyone should take.
(ii) The high risk argument. Other people take
the view that the risk of an accident is so remote
that it is not necessary to wear a seat belt on all
occasions: but only when there are
circumstances which carry a high risk, for
example, driving on a motorway in condition of
fog, ice or snow; or engaging in road racing
activities. This view was forcibly expressed by
Shaw J. in Challoner v. Williams [1974] R.T.R.
221; by O'Connor J. in Smith v. Blackburn
(Note) [1974] R.T.R. 533; and by Stocker J. in
Chapman v. Ward (Note) [1975] R.T.R. 7. I
cannot accept this view either. You never know
when a risk may arise. It often happens suddenly
and when least anticipated, when there is no time
to fasten the seat belt. Besides, it is easy to forget
The effect of failure to wear a seat belt
(i) Majority versus Minority. Quite a lot of
people, however, think differently about seat
belts. Some are like the plaintiff. They think that
they would be less likely to be injured if they
were thrown clear than if they were strapped in.
They would be wrong. The chances of injury are
102
when only done occasionally. But, done
regularly, it becomes automatic. Every time that
a car goes out on the road there is the risk of an
accident. Not that you yourself will be negligent.
But that someone else will be. That is a
possibility which a prudent man should, and
will, guard against. He should always, if he is
wise, wear a seat belt.
been prevented or lessened by wearing it.
The share of responsibility
Whenever there is an accident, the negligent
driver must bear by far the greater share of
responsibility. It was his negligence which
caused the accident. It also was a prime cause of
the whole of the damage. But in so far as the
damage might have been avoided or lessened by
wearing a seat belt, the injured person must bear
some share. But how much should this be? Is it
proper to inquire whether the driver was grossly
negligent or only slightly negligent? or whether
the failure to wear a seat belt was entirely
inexcusable or almost forgivable? If such an
inquiry could easily be undertaken, it might be as
well to do it. In Davies v. Swan Motor Co.
(Swansea) Ltd. [1949] 2 K.B. 291, 326, the court
said that consideration should be given not only
to the causative potency of a particular factor,
but also its blameworthiness. But we live in a
practical world. In most of these cases the
liability of the driver is admitted, the failure to
wear a seat belt is admitted, the only question is:
what damages should be payable? This question
should not be prolonged by an expensive inquiry
into the degree of blameworthiness on either
side, which would be hotly disputed. Suffice it to
assess a share of responsibility which will be just
and equitable in the great majority of cases.
(iii) Mere forgetfulness. Lastly, there are many
people who do not wear their seat belts, simply
through forgetfulness or inadvertence or
thoughtlessness. Their fault is far less serious
than that of the negligent driver who causes an
accident. Some judges have expressed
themselves strongly about this. In Freeborn v.
Thomas (Note) [1975] R.T.R. 16, 19, Sir George
Baker P. said:
"... looking as an ordinary mortal at the drivers
of cars, the vast majority do not wear their seat
belts. Must this court say that the unfortunate
plaintiff, having forgotten to put on the seat belt,
was negligent because she failed to do that
which so many others do not do? I think not and
I will not."
I am afraid I cannot share this view. The case for
wearing seat belts is so strong that I do not think
the law can admit forgetfulness as an excuse. If
it were, everyone would say: "Oh, I forgot." In
order to bring home the importance of wearing
seat belts, the law should say that a person who
fails to wear it must share some responsibility
for the damages.
Sometimes the evidence will show that the
failure made no difference. The damage would
have been the same, even if a seat belt had been
worn. In such case the damages should not be
reduced at all. At other times the evidence will
show that the failure made all the difference. The
damage would have been prevented altogether if
a seat belt had been worn. In such cases I would
suggest that the damages should be reduced by
25 per cent. But often enough the evidence will
only show that the failure made a considerable
difference. Some injuries to the head, for
Thus far I have spoken only of the ordinary run
of cases. There are, of course, exceptions. A man
who is unduly fat or a woman who is pregnant
may rightly be excused because, if there is an
accident, the strap across the abdomen may do
more harm than good. But, apart from such
cases, in the ordinary way a person who fails to
wear a seat belt should accept some share of
responsibility for the damage - if it could have
103
instance, would have been a good deal less
severe if a seat belt had been worn, but there
would still have been some injury to the head. In
such case I would suggest that the damages
attributable to the failure to wear a seat belt
should be reduced by 15 per cent.
HOFFMAN
v.
JONES
280 So.2d 431(Fla. 1973)
Supreme Court of Florida
ADKINS, Justice.
Conclusion
The question certified by the District Court of
Appeal is:
'Whether or not the Court should replace the
contributory negligence rule with the
principles of comparative negligence?'
Everyone knows, or ought to know, that when he
goes out in a car he should fasten the seat belt. It
is so well known that it goes without saying, not
only for the driver, but also the passenger. If
either the driver or the passenger fails to wear it
and an accident happens - and the injuries would
have been prevented or lessened if he had worn
it - then his damages should be reduced. Under
the Highway Code a driver may have a duty to
invite his passenger to fasten his seat belt: but
adult passengers possessed of their faculties
should not need telling what to do. If such
passengers do not fasten their seat belts, their
own lack of care for their own safety may be the
cause of their injuries. In the present case the
injuries to the head and chest would have been
prevented by the wearing of a seat belt and the
damages on that account might be reduced by 25
per cent. The finger would have been broken any
way and the damages for it not reduced at all.
Overall the judge suggested 20 per cent. and the
plaintiff has made no objection to it. So I would
not interfere. I would allow the appeal and
reduce the damages by ƒ100.
The District Court of Appeal answered the
certified question in the affirmative and reversed
the trial court in the case Sub judice for
following the precedent set down by this Court
in Louisville and Nashville Railroad Co. v.
Yniestra, 21 Fla. 700 (1886). This early case
specifically held the contributory negligence rule
to be the law of Florida, and it has uniformly
been followed by the
courts of the State ever since. . . . . .
All rules of the common law are designed for
application to new conditions and circumstances
as they may be developed by enlightened
commercial and business intercourse and are
intended to be vitalized by practical application
in advanced society. One of the most pressing
social problems facing us today is the
automobile accident problem, for the bulk of tort
litigation involves the dangerous instrumentality
known as the automobile. Our society must be
concerned with accident prevention and
compensation of victims of accidents. The
Legislature of Florida has made great progress in
legislation geared for accident prevention. The
prevention of accidents, of course, is much more
satisfying than the compensation of victims, but
we must recognize the problem of determining a
method of securing just and adequate
compensation of accident victims who have a
LAWTON L.J.
I agree.
SCARMAN L.J.
I agree.
104
good cause of action.
The demise of the absolute-bar theory of
contributory negligence has been urged by many
American scholars in the law of torts. It has
been abolished in almost every common law
nation in the world, including England--its
country of origin--and every one of the Canadian
Provinces.
Some form of comparative
negligence now exists in Austria, France,
Germany, Portugal, Switzerland, Italy, China,
Japan, Persia, Poland, Russia, Siam and Turkey.
Maloney, Supra, page 154.
The contemporary conditions must be met with
contemporary standards which are realistic and
better calculated to obtain justice among all of
the parties involved, based upon the
circumstances applying between them at the time
in question. The rule of contributory negligence
as a complete bar to recovery was imported into
the law by judges. Whatever may have been the
historical justification for it, today it is almost
universally regarded as unjust and inequitable to
vest an entire accidental loss on one of the
parties whose negligent conduct combined with
the negligence of the other party to produce the
loss. If fault is to remain the test of liability,
then the doctrine of comparative negligence
which involves apportionment of the loss among
those whose fault contributed to the occurrence
is more consistent with liability based on a fault
premise.
Also, our research reveals that sixteen states
have so far adopted some form of the
comparative negligence doctrine.
One reason for the abandonment of the
contributory negligence theory is that the initial
justification for establishing the complete
defense is no longer valid. It is generally
accepted that, historically, contributory
negligence was adopted 'to protect the essential
growth of industries, particularly transportation.'
Institute of Judicial Administration,
Comparative Negligence--1954 Supplement, at
page 2. Modern economic and social customs,
however, favor the individual, not industry.
We are, therefore, of the opinion that we do have
the power and authority to reexamine the
position we have taken in regard to contributory
negligence and to alter the rule we have adopted
previously in light of current 'social and
economic customs' and modern 'conceptions of
right and justice.'
We find that none of the justifications for
denying any recovery to a plaintiff, who has
contributed to his own injuries to any extent, has
any validity in this age.
Use of the terms 'contributory negligence' and
'comparative negligence' is slightly confusing.
The two theories now commonly known by these
terms both recognize that negligence of a
plaintiff may play a part in causing his injuries
and that the damages he is allowed to recover
should, therefore, be diminished to some extent.
The 'contributory negligence' theory, of course,
Completely bars recovery, while the
'comparative negligence' theory is that a plaintiff
is prevented from recovering only that
proportion of his damages for which he is
responsible.
Perhaps the best argument in favor of the
movement from contributory to comparative
negligence is that the latter is simply a more
equitable system of determining liability and a
more socially desirable method of loss
distribution. The injustice which occurs when a
plaintiff suffers severe injuries as the result of an
accident for which he is only slightly
responsible, and is thereby denied any damages,
is readily apparent. The rule of contributory
negligence is a harsh one which either places the
105
burden of a loss for which two are responsible
upon only one party or relegates to Lady Luck
the determination of the damages for which each
of two negligent parties will be liable. When the
negligence of more than one person contributes
to the occurrence of an accident, each should pay
the proportion of the total damages he has
caused the other party.
negligence. A primary function of a court is to
see that legal conflicts are equitably resolved. In
the field of tort law, the most equitable result
that can ever be reached by a court is the
equation of liability with fault. Comparative
negligence does this more completely than
contributory negligence, and we would be
shirking our duty if we did not adopt the better
doctrine.
In an effort to ameliorate the harshness of
contributory negligence, other doctrines have
evolved in tort law such as 'gross, willful, and
wanton' negligence, 'last clear chance' and the
application of absolute liability in certain
instances. Those who defend the doctrine of
contributory negligence argue that the rule is
also not as harsh in its practical effect as it is in
theory. This is so, they say, because juries tend
to disregard the instructions given by the trial
judge in an effort to afford some measure of
rough justice to the injured party. We agree with
Dean Maloney that,
'(T)here is something basically wrong with a
rule of law that is so contrary to the settled
convictions of the lay community that laymen
will almost always refuse to enforce it, even
when solemnly told to do so by a judge whose
instructions they have sworn to follow. . . .
'(T)he disrespect for law engendered by putting
our citizens in a position in which they feel it
is necessary to deliberately violate the law is
not something to be lightly brushed aside; and
it comes ill from the mouths of lawyers, who
as officers of the courts have sworn to uphold
the law, to defend the present system by
arguing that it works because jurors can be
trusted to disregard that very law.' 11
U.Fla.L.Rev. 135, pp. 151--152 (1958).
.....
Therefore, we now hold that a plaintiff in an
action based on negligence will no longer be
denied any recovery because of his contributory
negligence.
If it appears from the evidence that both plaintiff
and defendant were guilty of negligence which
was, in some degree, a legal cause of the injury
to the plaintiff, this does not defeat the plaintiff's
recovery entirely. The jury in assessing damages
would in that event award to the plaintiff such
damages as in the jury's judgment the negligence
of the defendant caused to the plaintiff. In other
words, the jury should apportion the negligence
of the plaintiff and the negligence of the
defendant; then, in reaching the amount due the
plaintiff, the jury should give the plaintiff only
such an amount proportioned with his
negligence and the negligence of the defendant.
See Florida Cent. & P.R. Co. v. Foxworth, 41
Fla. 1, 25 So. 338, 79 Am.St.Rep. 149 (1899).
This rule should not be construed so as to entitle
a person to recover for damage in a case where
the proof shows that the defendant could not by
the exercise of due care have prevented the
injury, or where the defendant's negligence was
not a legal cause of the damage. Stated
differently, there can be no apportionment of
negligence where the negligence of the
defendant is not directly a legal cause of the
result complained of by the plaintiff. A plaintiff
is barred from recovering damages for loss or
injury caused by the negligence of another only
Since we definitely consider the problem to be a
judicial one, we feel the time has come for this
Court to join what seems to be a trend toward
almost universal adoption of comparative
106
when the plaintiff's negligence is the sole legal
cause of the damage, or the negligence of the
plaintiff and some person or persons other than
the defendant or defendants was the sole legal
cause of the damage.
should be the difference between the two
verdicts. This is in keeping with the long
recognized principles of 'set off' in contract
litigation. The Court's primary responsibility is
to enter a judgment which reflects the true intent
of the jury, as expressed in its verdict or verdicts.
If plaintiff and defendant are both at fault, the
former may recover, but the amount of his
recovery may be only such proportion of the
entire damages plaintiff sustained as the
defendant's negligence bears to the combined
negligence of both the plaintiff and the
defendant. For example, where it is found that
the plaintiff's negligence is at least equal to that
of the defendant, the amount awarded to the
plaintiff should be reduced by one-half from
what it otherwise would have been.
In rare cases the net result of two such claims
will be that the party more responsible for an
accident will recover more than the party less
responsible. On the surface, this might seem
inequitable.
However, using an extreme
example, let us assume that a plaintiff is 80 per
cent responsible for an automobile accident and
suffers $20,000 in damages, and that the
defendant--20 per cent responsible--fortunately
suffers no damages. The liability of the
defendant in such a case should not depend upon
what damages he Suffered, but upon what
damages he Caused. If a jury found that this
defendant had been negligent and that his
negligence, in relation to that of the plaintiff,
was 20 per cent responsible for causing the
accident then he should pay 20 per cent of the
total damages, regardless of the fact that he has
been fortunate enough to not be damaged
personally.
.....
We decline herein to dissect and discuss all the
possible variations of comparative negligence
which have been adopted in other jurisdictions.
Countless law review commentaries and treatises
can be found which have covered almost every
conceivable mutation of the basic doctrine.
Suffice it to say that we consider the 'pure form'
of comparative negligence--as we have phrased
it above--to be the most equitable method of
allocating damages in negligence actions.
Petitioners in this cause, and various amicus
curiae who have fled briefs, have raised many
points which they claim we must consider in
adopting comparative negligence, such as the
effects of such a change on the concept of
'assumption of risk,' and no 'contribution'
between joint tortfeasors. We decline to
consider all those issues, however, for two
reasons. One reason is that we already have a
body of case law in this State dealing with
comparative negligence, under our earlier
railroad statute. Much of this case law will be
applicable under the comparative negligence rule
we are now adopting generally.
.....
In the usual situation where the negligence of the
plaintiff is at issue, as well as that of the
defendant, there will undoubtedly be a
counterclaim filed. The cross-plaintiff (just as
plaintiff in the main suit) guilty of some degree
of negligence would be entitled to a verdict
awarding him such damages as in the jury's
judgment were proportionate with his negligence
and the negligence of cross-defendant. This
could result in two verdicts--one for plaintiff and
one for cross-plaintiff. In such event the Court
should enter one judgment in favor of the party
receiving the larger verdict, the amount of which
107
We are fully confident that the trial court judges
of this State can adequately handle any problems
created by our change to a comparative
negligence rule as these problems arise. The
answers to many of the problems will be obvious
in light of the purposes for which we adopt the
rule stated above:
(1) To allow a jury to apportion fault as it sees
fit between negligent parties whose negligence
was part of the legal and proximate cause of
any loss or injury; and
(2) To apportion the total damages resulting
from the loss or injury according to the
proportionate fault of each party.
democracy in this country, and under which
doctrine the judiciary has no power to make
statutory law. . . . . .
In fine, the primary question is not whether or
not the law of contributory negligence should be
changed, but rather, who should do the changing.
Contributory negligence was recognized in the
common law as far back as A.D. 1606 and made
a part of the statute law of this State in A.D.
1829, and thus far not changed by statute. If
such a fundamental change is to be made in the
law, then such modification should be made by
the legislature where proposed change will be
considered by legislative committees in public
hearing where the general public may have an
opportunity to be heard and should not be made
by judicial fiat. Such an excursion into the field
of legislative jurisdiction weakens the concept of
separation of powers and our tripartite system of
government.
In accomplishing these purposes, the trial court
is authorized to require special verdicts to be
returned by the jury and to enter such judgment
or judgments as may truly reflect the intent of
the jury as expressed in any verdict or verdicts
which may be returned.
.....
For the foregoing reasons, I respectfully dissent.
ROBERTS, Justice (dissenting).
I must respectfully dissent from the majority
opinion in this cause. My primary concern is
whether this Court is empowered to reject and
replace the established doctrine of contributory
negligence by judicial decree.
KENNEDY
v.
PROVIDENCE HOCKEY CLUB, INC.
376 A.2d 329 (R.I. 1977)
Supreme Court of Rhode Island
The sovereign powers of this State are divided
into three coordinate branches of government-legislative, judicial and executive--by the
Constitution of Florida, Article II, Section 3.
Our Constitution specifically prohibits a person
belonging to one of such branches from
exercising any powers 'appertaining to either of
the other branches unless expressly provided
herein.' This Court has been diligent in
preserving and maintaining the doctrine of
separation of powers, which doctrine was
imbedded in both the state and federal
constitutions at the threshhold of constitutional
KELLEHER, Justice.
The plaintiffs, Mr. and Mrs. Curtis A. Kennedy,
Jr., brought this civil action against the
Providence Hockey Club, Inc. (the hockey club).
Mrs. Kennedy sought damages for injuries
received from a flying hockey puck which struck
her in the eye as she and her husband were
watching a game at Rhode Island Auditorium;
her husband sought consequential damages. The
complaint alleged that the hockey club
negligently failed to apprise Mrs. Kennedy of the
108
danger and to afford her a safe seat.
Additionally, the complaint charged a breach of
warranty with respect to an allegedly defective
seat.
Those were the only remaining seats.
On appeal the Kennedys argue that we should
abandon assumption of the risk as a distinct
defense to negligence actions, treat it like
contributory negligence, and deem it subsumed
by the comparative negligence statute, G.L. 1956
(1969 Reenactment) s 9-20-4, as amended by
P.L. 1972, ch. 18, s 1. [FN2] . . . . .
[The trial court ruled as a matter of law that Mrs.
Kennedy had assumed the risk of being struck by
a hockey puck and dismissed the action. The
plaintiffs appealed.]
The record discloses the following pertinent
facts. On January 25, 1970, Mrs. Kennedy, then
unmarried and known as Sylvia Forrest, attended
a Providence Reds hockey game with her fiance,
Curtis Kennedy, Jr., now her husband. The
couple sat in Section F North, Row A, which
was the fourth row up from the arena floor.
Protection for patrons seated in Section F North
consisted of a wooden "dasher" that rose to a
height of approximately 18 to 24 inches above
the ice plus a 5-foot sheet of 1/2 -inch-thick
plexiglass which was attached to the top of the
"dasher." This shield protected only those
patrons in the first three rows.
FN2. "9-20-4. Comparative negligence. In all
actions hereafter brought for personal injuries, or
where such injuries have resulted in death, or for
injury to property, the fact that the person
injured, or the owner of the property, or person
having control over the property may not have
been in the exercise of due care shall not bar a
recovery, but damages shall be diminished by
the finder of fact in proportion to the amount of
negligence attributable to the person injured, or
the owner of the property or the person having
control over the property."
Before addressing the issue presented, a brief
historical detour is in order. First, it goes without
saying that assumption of the risk by definition
means "voluntary." . . .
During the course of a face-off on the ice near
Section F North, the puck was lofted from the
ice and struck Mrs. Kennedy over the left eye.
She was treated in the first aid room at the
auditorium and thereafter she incurred
substantial medical expenses and loss of work
for several months.
Secondly, it has long been established in Rhode
Island that no distinction is made between the
doctrine of assumption of the risk and the maxim
volenti non fit injuria (he who consents cannot
receive an injury). Accordingly, the doctrine is
not limited to master-servant relationships, but
exists as a potential defense in all negligence
actions. Schiano v. McCarthy Freight System,
Inc., 75 R.I. 253, 65 A.2d 462 (1949). Our broad
interpretation of the rule is to be distinguished
from some jurisdictions where the doctrine and
the maxim have been separately applied, and
such distinction has caused unfortunate
misapplication of terms and concomitant
confusion. See, e. g. Lyons v. Redding Constr.
Co., 83 Wash.2d 86, 515 P.2d 821 (1973).
Prior to the injury, she had attended 30 or 40
games at the auditorium with her then-fiance and
she had seen many Boston Bruins games on
television. During those games she had seen
lofted pucks hit the plexiglass as well as go into
the crowd. Ordinarily, she and her fiance sat at
the end of the arena in seats most distant from
the ice surface because those seats were least
expensive, but because the couple were late in
purchasing their tickets for the January 25, 1970
game, they were sitting in Section F North.
109
Thirdly, and most recently, we have discussed at
length the difference between assumption of the
risk and contributory negligence. D'Andrea v.
Sears, Roebuck & Co., 109 R.I. 479, 287 A.2d
629 (1972). The defendant in that case argued
that assumption of the risk bars recovery where
a plaintiff either knew or should have known of
the risk he assumed. We rejected that contention,
however, and noted that "in deciding whether a
plaintiff knew of and understood the extent of
the risk he incurred, the standard is subjective
and is keyed to 'what the particular plaintiff in
fact sees, knows, understands and appreciates.' "
Id. at 487, 287 A.2d at 633. This subjective
standard is to be applied to assumption of the
risk cases and is to be distinguished from an
objective standard "which is concerned with how
in the particular case the hypothetical reasonable
man of ordinary prudence would have acted." Id.
(emphasis added). The objective criterion is to
be applied where contributory negligence is in
issue. Id. Thus, we have limited the application
of the assumption of the risk doctrine to those
situations where the claimant had actual
knowledge of the hazard. Having so defined and
limited the defense, it seems to us that our state
is spared the confusion which the Kennedys
claim reigns supreme in those jurisdictions
which recognize the doctrine in its full force.
negligence statutes have merged assumption of
the risk with contributory negligence and thus
freed plaintiffs subject to the former as well as
the latter defense from the harshness of the "allor-nothing" rule. . . . An examination of these
cases reveals that they are premised, at least in
part, on the postulate that assumption of the risk
and contributory negligence overlap to an extent.
So far as these doctrines overlap, courts have
deemed them the same for purposes of
comparative negligence statutes. However,
because we do not accept the premise that these
principles overlap, we reach a different
conclusion.
As we have defined assumption of the risk, the
concern is with knowingly encountering the
danger. This is to be contrasted with negligently
encountering a risk and falling victim, at one
time in our legal history, to the defense of
contributory negligence. It seems to us that one
who "sees, knows, understands and appreciates"
what he is doing, D'Andrea v. Sears, Roebuck &
Co., supra, is worlds apart from one who
unwittingly and unsuspectingly falls prey to
another's negligence. In the former instance the
plaintiff can be said to have consented to the
possibility of harm, whereas in the latter
situation he has failed to assess accurately his
situation and the ramifications of his own action.
With this in mind, we turn now to the question
before us: whether the doctrine of assumption of
the risk is to be construed as within the
intendment of s 9-20-4. If so, the foregoing
analysis would serve little purpose other than to
place various legal propositions in their
respective pigeonholes. However, for the reasons
which follow, we conclude that s 9-20-4 neither
diminishes the validity of assumption of the risk
as a defense to negligence actions nor makes it a
mere mitigating factor in assessing liability.
Where one knowingly accepts a dangerous
situation, he essentially absolves the defendant
of creating the risk or, put another way, the duty
the defendant owes the plaintiff is terminated.
For example, where a plaintiff traditionally
pleads negligence and a defendant responds with
contributory negligence, the plaintiff can still
plead last clear chance because the defendant,
despite the plaintiff's own negligence, still owes
a duty to him. But where a plaintiff pleads
negligence and a defendant pleads assumption of
the risk, that is the end of the chain, because
once the plaintiff accepts the risk, the defendant
At the outset we readily concede that other
jurisdictions dealing with comparative
110
no longer owes a duty to him.
portion of their logic is accurate, Young v. CocaCola Bottling Co., 109 R.I. 458, 287 A.2d 345
(1972); Ritter v. Narragansett Elec. Co., 109 R.I.
176, 283 A.2d 255 (1971), it avails them
nothing. Mrs. Kennedy's purchase of a ticket to
sit in Seat 4, Row A, of Section F North is
neither a transaction in goods supporting a
breach of warranty claim nor a "product" within
the meaning of products liability. Accordingly,
we find no error in the trial justice's grant of
summary judgment.
In our understanding, then, contributory
negligence and assumption of the risk do not
overlap; the key difference is, of course, the
exercise of one's free will in encountering the
risk. Negligence analysis, couched in reasonable
man hypotheses, has no place in the assumption
of the risk framework. When one acts
knowingly, it is immaterial whether he acts
reasonably. The postulate, then, that assumption
of the risk is merely a variant of contributory
fault, is not, to our minds, persuasive.
Accordingly, it is our determination that s 9-20-4
does not affect the validity of assumption of the
risk as a complete bar to recovery.
The plaintiffs' appeal is denied and dismissed,
and the judgment appealed from is affirmed.
Having determined that the doctrine is still
viable, we shall apply it to the facts at bar. While
assumption of the risk and contributory
negligence are generally issues for juries to
decide, we have held that where the facts suggest
only one reasonable inference, the trial justice
may properly treat the question as a matter of
law. See Garris v. Gloss, 111 R.I. 453, 457, 303
A.2d 765, 768 (1973). In the case before us Mrs.
Kennedy had attended numerous hockey games
and was familiar with the flying-puck syndrome.
The only reasonable inference suggesting itself
to us is that she knew there was a risk that the
puck would take flight and come to rest
somewhere in the crowd. Furthermore, the fact
that the only seats available to the affianced
couple were in Section F North does not make
the purchase of those seats any less voluntary.
Having voluntarily and knowingly encountered
the risk, she can be said to have assumed it.
The Kennedys next claim that even if there was
no question of fact in the assumption of the risk
issue, that doctrine is not a defense to their
breach of warranty and products liability claims.
Therefore, they say, there were material issues
which should have gone to the jury. While this
111
Subtopic EIGHT
OTHER THEORIES OF LIABILITY:
INTENTIONAL TORTS
DICKENS
v.
PURYEAR
276 S.E.2d 325 (N.C. 1981)
Supreme Court of North Carolina
EXUM, Justice.
Plaintiff's complaint is cast as a claim for
intentional infliction of mental distress. It was
112
filed more than one year but less than three years
after the incidents complained of occurred.
Defendants moved for summary judgment before
answer was due or filed. Much of the factual
showing at the hearing on summary judgment
related to assaults and batteries committed
against plaintiff by defendants. Defendants'
motions for summary judgment were allowed on
the ground that plaintiff's claim was for assault
and battery; therefore it was barred by the oneyear statute of limitations applicable to assault
and battery. G.S. 1-54(3).
defendant Ann Puryear who emerged from
beside a nearby building and, crying, stated that
she "didn't want to see that SOB." Ann Puryear
then left the scene. Thereafter Earl Puryear
pointed a pistol between plaintiff's eyes and
shouted "Ya'll come on out." Four men wearing
ski masks and armed with nightsticks then
approached from behind plaintiff and beat him
into semi-consciousness. They handcuffed
plaintiff to a piece of farm machinery and
resumed striking him with nightsticks.
Defendant Earl Puryear, while brandishing a
knife and cutting plaintiff's hair, threatened
plaintiff with castration. During four or five
interruptions of the beatings defendant Earl
Puryear and the others, within plaintiff's hearing,
discussed and took votes on whether plaintiff
should be killed or castrated. Finally, after some
two hours and the conclusion of a final
conference, the beatings ceased. Defendant Earl
Puryear told plaintiff to go home, pull his
telephone off the wall, pack his clothes, and
leave the state of North Carolina; otherwise he
would be killed. Plaintiff was then set free.[FN1]
Thus this appeal raises two questions. First,
whether defendants, by filing motions for
summary judgment before answer was due or
filed, properly raised the affirmative defense of
the statute of limitations. Second, whether
plaintiff's claim is barred by the one-year statute
of limitations applicable to assault and battery.
We hold that defendants properly raised the
limitations defense but that on its merits
plaintiff's claim is not altogether barred by the
one-year statute because plaintiff's factual
showing indicates plaintiff may be able to prove
a claim for intentional infliction of mental
distress a claim which is governed by the threeyear statute of limitations. G.S. 1- 52(5). We
further hold that summary judgment was,
nevertheless, appropriately entered as to the
femme defendant inasmuch as plaintiff has made
no showing sufficient to indicate he will be able
to prove a claim against her.
FN1. This same occurrence gave rise to
a criminal conviction of defendant Earl
Puryear for conspiracy to commit simple
assault. See State v. Puryear, 30
N.C.App. 719, 228 S.E.2d 536, appeal
dismissed, 291 N.C. 325, 230 S.E.2d 678
(1976).
Plaintiff filed his complaint on 31 March 1978.
It alleges that defendants on the occasion just
described intentionally inflicted mental distress
upon him. He further alleges that as a result of
defendants' acts plaintiff has suffered "severe
and permanent mental and emotional distress,
and physical injury to his nerves and nervous
system." He alleges that he is unable to sleep,
afraid to go out in the dark, afraid to meet
strangers, afraid he may be killed, suffering from
chronic diarrhea and a gum disorder, unable
The facts brought out at the hearing on summary
judgment may be briefly summarized: For a time
preceding the incidents in question plaintiff
Dickens, a thirty-one year old man, shared sex,
alcohol and marijuana with defendants' daughter,
a seventeen year old high school student. On 2
April 1975 defendants, husband and wife, lured
plaintiff into rural Johnston County, North
Carolina. Upon plaintiff's arrival defendant Earl
Puryear, after identifying himself, called out to
113
effectively to perform his job, and that he has
lost $1000 per month income.
statute, G.S. 1-54(3), applies to "libel, slander,
assault, battery, or false imprisonment." As we
go to some length in the opinion to demonstrate,
the tort of intentional infliction of mental
distress is none of these things. Thus the rule of
statutory construction embodied in the maxim,
expressio unius est exclusio alterius, meaning
the expression of one thing is the exclusion of
another, applies. See Appeal of Blue Bird Taxi
Co., 237 N.C. 373, 75 S.E.2d 156 (1953). No
statute of limitations addresses the tort of
intentional infliction of mental distress by name.
It must, therefore, be governed by the more
general three-year statute of limitations, G.S. 152(5), which applies to "any other injury to the
person or rights of another, not arising on
contract and not hereafter enumerated." Even if
we had substantial doubt about which statute of
limitations applies, and we do not, the rule
would be that the longer statute is to be selected.
...
[The defendants filed a motion for summary
judgment on the ground that the plaintiff’s action
was banned by the statute of limitation that
required that an action in assault and battery be
filed within one year from the date on which the
injury occurred.]
Judge Braswell, after
considering arguments of counsel, plaintiff's
complaint, plaintiff's deposition and evidence in
the criminal case arising out of this occurrence,
concluded that plaintiff's claim was barred by
G.S. 1-54(3), the one-year statute of limitations
applicable to assault and battery. On 29 March
1979 he granted summary judgment in favor of
both defendants.
We turn now to the merits of defendants'
motions for summary judgment. Defendants
contend, and the Court of Appeals agreed, that
this is an action grounded in assault and battery.
Although plaintiff pleads the tort of intentional
infliction of mental distress, the Court of
Appeals concluded that the complaint's factual
allegations and the factual showing at the
hearing on summary judgment support only a
claim for assault and battery. The claim was,
therefore, barred by the one-year period of
limitations applicable to assault and battery.
Plaintiff, on the other hand, argues that the
factual showing on the motion supports a claim
for intentional infliction of mental distress a
claim which is governed by the three-year period
of limitations.[FN8] At least, plaintiff argues, his
factual showing is such that it cannot be said as
a matter of law that he will be unable to prove
such a claim at trial. We agree with plaintiff's
position.
To resolve the question whether defendants are
entitled to summary judgment on the ground of
the statute of limitations we must examine both
the law applicable to the entry of summary
judgment and the law applicable to the torts of
assault and battery and intentional infliction of
mental distress. We think it better to begin with
a discussion of applicable tort law.
A
North Carolina follows common law principles
governing assault and battery. An assault is an
offer to show violence to another without
striking him, and a battery is the carrying of the
threat into effect by the infliction of a blow. . .
. The interest protected by the action for battery
is freedom from intentional and unpermitted
contact with one's person; the interest protected
by the action for assault is freedom from
apprehension of a harmful or offensive contact
with one's person. . . . The apprehension created
FN8. Although defendants argue that even the
tort of intentional infliction of mental distress is
governed by the one-year statute of limitations,
we are satisfied that it is not. The one-year
114
must be one of an immediate harmful or
offensive contact, as distinguished from contact
in the future. As noted in State v. Ingram, 237
N.C. 197, 201, 74 S.E.2d 532, 535 (1953), in
order to constitute an assault there must be:
"(A)n overt act or an attempt, or the
unequivocal appearance of an attempt, with
force and
violence, to do some immediate
physical injury to the person of another ....
....
"The display of force or menace of violence
must be such to cause the reasonable
apprehension of immediate bodily harm. Dahlin
v. Fraser, 206 Minn. 476 (288 N.W. 851)."
(Emphasis supplied.) . . .
pertinent part:
"a. Ordinarily mere words, unaccompanied by
some act apparently intended to carry the threat
into execution, do not put the other in
apprehension of an imminent bodily contact, and
so cannot make the actor liable for an assault
under the rule stated in s 21 (the section which
defines an assault). For this reason it is
commonly said in the decisions that mere words
do not constitute an assault, or that some overt
act is required. This is true even though the
mental discomfort caused by a threat of serious
future harm on the part of one who has the
apparent intention and ability to carry out his
threat may be far more emotionally disturbing
than many of the attempts to inflict minor bodily
contacts which are actionable as assaults. Any
remedy for words which are abusive or insulting,
or which create emotional distress by threats for
the future, is to be found under ss 46 and 47
(those sections dealing with the interest in
freedom from emotional distress).
Illustration:
1. A, known to be a resolute and desperate
character, threatens to waylay B on his way
home on a lonely road on a dark night. A is not
liable to B for an assault under the rule stated in
s 21. A may, however, be liable to B for the
infliction of severe emotional distress by
extreme and outrageous conduct, under the rule
stated in s 46." (Emphasis supplied.)
A mere threat, unaccompanied by an offer or
attempt to show violence, is not an assault. State
v. Daniel, 136 N.C. 571, 48 S.E. 544 (1904);
State v. Milsaps, 82 N.C. 549 (1880). The
damages recoverable for assault and battery
include those for plaintiff's mental disturbance as
well as for plaintiff's physical injury. . . .
Common law principles of assault and battery as
enunciated in North Carolina law are also found
in the Restatement (Second) of Torts (1965)
(hereinafter "the Restatement"). As noted in s
29(1) of the Restatement, "(t)o make the actor
liable for an assault he must put the other in
apprehension of an imminent contact."
(Emphasis supplied.) The comment to s 29(1)
states: "The apprehension created must be one of
imminent contact, as distinguished from any
contact in the future. 'Imminent' does not mean
immediate, in the sense of instantaneous contact
.... It means rather that there will be no
significant delay." Similarly, s 31 of the
Restatement provides that "(w)ords do not make
the actor liable for assault unless together with
other acts or circumstances they put the other in
reasonable apprehension of an imminent harmful
or offensive contact with his person." (Emphasis
supplied.) The comment to s 31 provides, in
Again, as noted by Prosser, s 10, p. 40, "(t)hreats
for the future ... are simply not present breaches
of the peace, and so never have fallen within the
narrow boundaries of (assault)." Thus threats for
the future are actionable, if at all, not as assaults
but as intentional inflictions of mental distress.
The tort of intentional infliction of mental
distress is recognized in North Carolina.
Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d
611 (1979). "(L) iability arises under this tort
when a defendant's 'conduct exceeds all bounds
115
usually tolerated by decent society' and the
conduct 'causes mental distress of a very serious
kind.' " Id. at 196, 254 S.E.2d at 622, quoting
Prosser, s 12, p. 56. In Stanback plaintiff alleged
that defendant breached a separation agreement
between the parties. She further alleged,
according to our opinion in Stanback, "that
defendant's conduct in breaching the contract
was 'wilful, malicious, calculated, deliberate and
purposeful' .... (and) that 'she has suffered great
mental anguish and anxiety ...' as a result of
defendant's conduct in breaching the agreement
.... (and) that defendant acted recklessly and
irresponsibly and 'with full knowledge of the
consequences which would result ....' " Id. at
198, 254 S.E.2d at 622-23. We held in Stanback
that these allegations were "sufficient to state a
claim for what has become essentially the tort of
intentional infliction of serious emotional
distress. Plaintiff has alleged that defendant
intentionally inflicted mental distress." Id. at
196, 254 S.E.2d at 621-22.
defendant's conduct. We noted in Stanback,
however, that "physical injury" had been given a
broad interpretation in some of our earlier cases,
e. g., Kimberly v. Howland, 143 N.C. 398, 40304, 55 S.E. 778, 780 (1906), where the Court
said,
"The nerves are as much a part of the physical
system as the limbs, and in some persons are
very delicately adjusted, and when 'out of tune'
cause excruciating agony. We think the general
principles of the law of torts support a right of
action for physical injuries resulting from
negligence, whether wilful or otherwise, none
the less strongly because the physical injury
consists of a wrecked nervous system instead of
lacerated limbs."
We held in Stanback that plaintiff's "allegation
that she suffered great mental anguish and
anxiety is sufficient to permit her to go to trial
upon the question of whether the great mental
anguish and anxiety (which she alleges) has
caused physical injury." Stanback v. Stanback,
supra, 297 N.C. at 199, 254 S.E.2d at 623. We
held, further, that plaintiff's allegation that
"defendant acted with full knowledge of the
consequences of his actions ... sufficiently
indicated that the harm she suffered was a
foreseeable result of his conduct." Id. at 198, 254
S.E.2d at 623.
The tort alluded to in Stanback is defined in the
Restatement s 46 as follows:
"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."
The holding in Stanback was in accord with the
Restatement definition of the tort of
intentional infliction of mental distress. We now
reaffirm this holding.
After revisiting Stanback in light of the earlier
authorities upon which it is based and
considering an instructive analysis of our cases
in the area by Professor and former Dean of the
University of North Carolina Law School,
Robert G. Byrd, we are satisfied that the dictum
in Stanback was not necessary to the holding and
in some respects actually conflicts with the
holding. We now disapprove it.
There is, however, troublesome dictum in
Stanback that plaintiff, to recover for this tort,
"must show some physical injury resulting from
the emotional disturbance caused by defendant's
alleged conduct" and that the harm she suffered
was a "foreseeable result." Id. at 198, 254 S.E.2d
at 623. Plaintiff in Stanback did not allege that
she had suffered any physical injury as a result of
If "physical injury" means something more than
emotional distress or damage to the nervous
system, it is simply not an element of the tort of
intentional infliction of mental distress. As
116
noted, plaintiff in Stanback never alleged that
she had suffered any physical injury, yet we held
that she had stated a claim for intentional
infliction of mental distress. In Wilson v.
Wilkins, 181 Ark. 137, 25 S.W.2d 428 (1930),
defendants came to the home of the plaintiff at
night and accused him of stealing hogs. They
told him that if he did not leave their community
within 10 days they "would put a rope around his
neck." Defendants' threats caused the plaintiff to
remove his family from the area. Plaintiff
testified that he was afraid they would kill him if
he did not leave and that he suffered great
mental agony and humiliation because he had
been accused of something of which he was not
guilty. In sustaining a jury verdict in favor of
plaintiff, the Arkansas Supreme Court rejected
defendants' contention that plaintiff was required
to show some physical injury before he could
recover. The Court said, 181 Ark. 139, 25
S.W.2d at 428:
"The (defendants) rely upon the rule ... that in
actions for negligence there can be no mental
suffering where there has been no physical
injury.
"The rule is well settled in this state, but it has
no application to willful and wanton wrongs
and those committed with the intention of
causing mental distress and injured feelings.
Mental suffering forms the proper element of
damages in actions for willful and wanton
wrongs and those committed with the intention
of causing mental distress."
recklessly ... in deliberate disregard of a high
degree of probability that the emotional distress
will follow" and the mental distress does in fact
result. Restatement s 46, Comment i, p. 77. "The
authorities seem to agree that if the tort is wilful
and not merely negligent, the wrong-doer is
liable for such physical injuries as may
proximately result, whether he could have
foreseen them or not." Kimberly v. Howland,
supra, 143 N.C. at 402, 55 S.E. at 780.
We are now satisfied that the dictum in Stanback
arose from our effort to conform the opinion to
language in some of our earlier cases the
holdings of which led ultimately to our
recognition in Stanback of the tort of intentional
infliction of mental distress.
The earliest of these cases is Kirby v. Jules
Chain Stores Corp., 210 N.C. 808, 188 S.E. 625
(1936). This case involved a bill collector who
used highhanded collection tactics against
plaintiff debtor. In an effort to collect the debt
defendant said to plaintiff, "By G , you are like
all the rest of the damn deadbeats. You wouldn't
pay when you could .... If you are so damn low
you won't pay, I guess when I get the sheriff and
bring him down here you will pay then."
Plaintiff, who was pregnant, became emotionally
distraught and her evidence tended to show that
her distress caused her child to be prematurely
stillborn. This Court sustained a verdict and
judgment for the plaintiff. The Court recognized
that earlier cases permitting recovery under such
circumstances required that there be a forcible
trespass. Without deciding whether a forcible
trespass existed in the case before it the Court
concluded that "(t)he gravamen of plaintiff's
cause of action is trespass to the person.
(Citation omitted.) This may result from an
injury either willfully or negligently inflicted."
210 N.C. at 810, 188 S.E. at 626. The Court said
further, 210 N.C. at 812, 813, 188 S.E. at 62728:
Similarly, the question of foreseeability does not
arise in the tort of intentional infliction of mental
distress. This tort imports an act which is done
with the intention of causing emotional distress
or with reckless indifference to the likelihood
that emotional distress may result. A defendant
is liable for this tort when he "desires to inflict
severe emotional distress ... (or) knows that such
distress is certain, or substantially certain, to
result from his conduct.... (or) where he acts
117
"It is no doubt correct to say that fright alone is
not actionable, Arthur v. Henry, (157 N.C.
438, 73 S.E. 211) supra, but it is faulty
pathology to assume that nervous disorders of
serious proportions may not flow from fear or
fright. Hickey v. Welch, 91 Mo.App., 4; 17
C.J., 838. Fear long continued wears away
one's reserve.
" 'As a general rule, damages for mere fright
are not recoverable; but they may be recovered
where there is some physical injury attending
the cause of the fright, or, in the absence of
physical injury, where the fright is of such
character as to produce some physical or
mental impairment directly and naturally
resulting from the wrongful act' Sutton, J., in
Candler v. Smith, 50 Ga.App., 667, 179 S.E.,
395.
"If it be actionable willfully or negligently to
frighten a team by blowing a whistle, Stewart
v. Lumber Co., (146 N.C. 47, 59 S.E. 545)
supra, or by beating a drum, Loubz v. Hafner,
(12 N.C. 185) supra, thereby causing a runaway and consequent damage, it is not
perceived upon what logical basis of
distinction the present action can be dismissed
as in case of nonsuit. Arthur v. Henry, supra.
Kirby, rightly or wrongly, has been read to
require some physical injury in addition to
emotional distress. See Prosser s 12, p. 59, n. 19.
frightening his children who were in the room
with plaintiff; held, plaintiff could recover for a
fractured left hip suffered when she fell as a
result of becoming emotionally upset at the
noise); Langford v. Shu, 258 N.C. 135, 128
S.E.2d 210 (1962) (plaintiff, defendant's next
door neighbor, frightened by defendant's
practical joke, a "mongoose box," stumbled
while fleeing the box, fell and tore a cartilage in
her knee; held, plaintiff could recover for
damages to her knee); Martin v. Spencer, 221
N.C. 28, 18 S.E.2d 703 (1942) (defendant
directed verbal abuse at plaintiff and engaged in
altercation with plaintiff's brother in a dispute
over a boundary; held, plaintiff could recover for
a miscarriage which, according to her evidence,
resulted from "fright occasioned by the conduct
of the defendant."); Sparks v. Products Corp.,
212 N.C. 211, 193 S.E. 31 (1937) (held, plaintiff
could recover for "shock and injury to her
nerves, resulting in loss of weight, nervousness,
periodical confinement in bed, and other
ailments" caused by defendant's blasting
operation which hurled a rock through the roof
of plaintiff's home).
Although these earlier cases, except for Sparks
v. Products Corp., did permit recovery under
circumstances similar to those to which the
modern tort of intentional infliction of mental
distress is directed, the cases did not actually
come to grips with the tort as it is now
recognized by Prosser and the Restatement and
as we recognized it in Stanback. These earlier
cases were concerned with a broader concept of
liability than the relatively narrow one now
known as intentional infliction of mental
distress. They were concerned with permitting
recovery for injury, physical and mental,
intentionally or negligently inflicted. The
opinion in Kirby consistently refers to injuries
which result from either wilful or negligent
conduct. Crews, which relied on Kirby, dealt
with intentional actions of a bill collector. The
Statements that "fright" alone is not actionable
and that the harm suffered must be a foreseeable
result of defendant's conduct appear in other
cases relied on in Stanback, all of which, in turn,
rely on Kirby. These are: Crews v. Finance Co.,
271 N.C. 684, 157 S.E.2d 381 (1967)
(highhanded debt collection efforts; held,
plaintiff could recover for resulting nervousness,
acute angina, and high blood pressure);
Slaughter v. Slaughter, 264 N.C. 732, 142
S.E.2d 683 (1965) (defendant, son of plaintiff,
exploded firecrackers outside his home where
plaintiff was a guest with the purpose of
118
opinion, however, relied on s 436 of the
Restatement. This section deals with negligent
infliction of mental distress which results in
physical harm. Compare Restatement s 46,
particularly Comment a, p. 72, with s 436. To
the extent, then, that these earlier cases required
some "physical injury" [FN10] apart from mere
mental or emotional distress and, in addition,
talked in terms of foreseeability, they did so in
the context of negligently inflicted injuries and
not in the context of the tort, as it is now
recognized, of intentional infliction of mental
distress. This Court in Williamson v. Bennett,
251 N.C. 498, 112 S.E.2d 48 (1960) denied
recovery **335 for a serious nervous disorder
unaccompanied by physical injury, allegedly
caused by defendant's negligent operation of an
automobile. Denial, however, was on the ground
that the connection between the relatively minor
accident and plaintiff's condition was too
tenuous and too "highly extraordinary" to permit
recovery. The Court noted, however, id. at 503,
112 S.E.2d at 51:
wilful, wanton or malicious conduct." (Emphasis
original.)
Stanback, then, should not be read as grafting
"physical injury" and
"foreseeability"
requirements on the tort of intentional infliction
of mental distress. Neither should it be read as
grafting the requirements of this tort on other
theories of recovery for mental and emotional
distress dealt with in our earlier cases. We leave
those theories where they lay before Stanback.
Stanback, in effect, was the first formal
recognition by this Court of the relatively recent
tort of intentional infliction of mental distress.
This tort, under the authorities already cited,
consists of: (1) extreme and outrageous conduct,
(2) which is intended to cause and does cause (3)
severe emotional distress to another. The tort
may also exist where defendant's actions indicate
a reckless indifference to the likelihood that they
will cause severe emotional distress. Recovery
may be had for the emotional distress so caused
and for any other bodily harm which proximately
results from the distress itself.
FN10. A strong argument can be made
that even these earlier decisions did not
intend to make "physical injury" an
essential element of the claims asserted.
When the Court said that "mere fright"
was not actionable it was probably
attempting to distinguish not between
physical injury and emotional
disturbance but rather between
momentary or minor fright and serious
emotional or nervous disorders. But see
Williamson v. Bennett, infra, in text.
.....
[The court also held that the evidence was not
sufficient to prove that defendant Ann Puryear
has conspired with the other defendants to
commit the tort of intentional infliction of
emotional distress upon the plaintiff.
Accordingly, the court dismissed the action
against her.]
"This cause involves mental distress and
invasion of emotional tranquility. It concerns
itself with fear and resultant neurasthenia
allegedly caused by ordinary negligence. In so
far as possible we shall avoid consideration of
those situations wherein fright, mental suffering
and nervous disorder result from intentional,
HIXSON
v.
SLOCUM.
161 S.W. 522 (KY 1913)
Court of Appeals of Kentucky
119
NUNN, J.
Hixson explains that he carried his right arm to
his side because his right hand was crippled. It
is not shown that Slocum knew this fact, and
therefore Slocum's statement is not without
plausibility that he feared Hixson was trying to
grab and hold him with his left hand, and with
his right use a knife on him, and which he
believes Hixson was carrying. Slocum admits
that when Hixson returned from the hotel he
addressed Hixson without Hixson having said
anything to him, and called him the vile named
as testified to by Hixson, but he takes issue with
Hixson as to the words spoken before Hixson
went into the hotel. He claims while in the
crowd, and finding himself standing in Hixson's
presence, he said to him, "Why can't we be
friends?" Hixson replied, "You are fighting
boose; you are drunk now." Slocum replied,
"Every time I speak to you Mr. Hixson, you
insult me." Then Hixson went into the hotel,
and returning, Slocum began the conversation by
saying, "Mr. Hixson, you always go out of your
way to insult people." Both agree that then
Hixson ordered him away, and that Slocum
called him the vile names which soon led to the
encounter.
Hixson sued to recover of Slocum damages for
assault and battery, and upon the trial in the
lower court, the jury returned a verdict in favor
of Slocum, the defendant.
The parties are elderly men living in the town of
Owenton; but on the day of the difficulty Slocum
had returned to town in a new automobile after
a visit to the country. The machine attracted
quite a crowd, and Slocum insists that the
presence of the machine and the crowd
immediately in front of Hixson's hotel was a
mere coincidence. Hixson maintains that it was
premeditated on the part of Slocum, so that
Slocum might come upon Hixson and provoke
him to a difficulty. Slocum admits that he had
had two drinks. The other evidence in the case
shows that he was either drunk, or considerably
under the influence of whisky. At all events,
these enemies of long standing were thus
brought together, and Hixson says that Slocum
broke the years of silence in these words
addressed to Hixson: "We are always fighting
each other." Hixson replied: "You are fighting
whisky," and turned back into his hotel. In a few
minutes he came out, and Slocum was still on
the sidewalk in front of the hotel, and seeing
Hixson on his hotel porch, Slocum spoke to him
with vile and vulgar epithets. Hixson came
down the steps from the hotel, and, according to
his evidence, when he came to the last step, he
reached for Slocum with his left hand, and held
his right arm extended down by his side.
Slocum then struck Hixson three times with
what Slocum terms a "little rattan cane."
Another witness testifies that, at the time Slocum
used the cane, Hixson was either on the last
steps of his hotel, or the sidewalk, he could not
say which. All of the other witnesses say that he
was off the step, and went to Slocum out on the
sidewalk.
It is not shown that Hixson suffered any physical
injury, and his whole complaint is that Slocum
brought on the difficulty by the provoking
language used, and his chief effort is to magnify
the effect of Slocum's words; while Slocum is
mainly concerned in minimizing the size of his
"little rattan cane," and the amount of whisky he
had imbibed that day. Ordinarily one in an
intoxicated condition is not a safe bearer of the
olive branch, and if he goes to his enemy to bury
the hatchet, he should be careful not to carry the
hatchet with him. Reasoning from these
propositions, Slocum was not at all discreet, if in
fact he was sincere, in his effort to make peace
with Hixson; but the action here is not to recover
damages for language used, or words spoken of,
or concerning Hixson, but for the assault and
120
battery committed upon him.
Appellant concedes that the instructions given by
the court correctly apply the law to the general
run of assault and battery cases, but insists that
the court erred in refusing to instruct the jury so
that they might believe the assault was begun
with the first passage of words, and that the
defendant was therefore the aggressor, and for
that reason he cannot justify assaulting Hixson
with the cane upon the grounds of self-defense.
But, as we have seen, words do not constitute
an assault, and therefore they cannot be the
beginning of one.
An actionable assault "is any attempt or offer
with force or violence, to do a corporal hurt to
another, whether from malice or wantonness,
with such circumstances as denote, at the time,
an intention to do it, coupled with the present
ability to carry such intention into effect." 3
Cyc. 1020. And the same book (pages 1021 and
1022) further correctly defines an assault and
battery "as an unlawful touching of the person of
another by the aggressor himself," and again "the
force or violence attempted or offered must be
physical, and no words of themselves can
constitute an assault." In the case of White v.
South Covington Ry. Co., 150 Ky. 684, 150 S.
W. 838, this court held: "An assault *** is not
excused *** by the fact that the passenger
assaulted had used grossly profane and abusive
language without provocation." Applying these
fundamental principles to the facts, it would
seem that the lower court was very liberal with
Hixson in suffering his case to go to the jury at
all.
Neither is appellant's contention sound that he
had a right to go upon the sidewalk and make or
force Slocum to leave it. The sidewalk belongs
to the public. If Slocum's conduct was
equivalent to a breach of the peace, he should
have been prosecuted for it, and the record
discloses the fact that he was. Appellant was not
justified in attempting to take the law in his own
hands.
While there is very little conflict of a material
kind in the testimony, such as there was, under
proper instructions of the court, the jury
considered, and in rendering a verdict for
Slocum, the appellee, we are unable to discover
that they erred.
The first encounter was a mere war of words,
and upon which no action can or is attempted to
be based. Slocum remained upon the sidewalk,
where he had a right to be. Although on the
second encounter Slocum began it by the use of
abusive language, still that did not justify Hixson
leaving his premises to come upon the sidewalk,
and grab, or attempt to grab, Slocum. Under
such circumstances the jury were warranted in
finding under the court's instructions that "the
defendant (Slocum) then and there believed or
had reasonable grounds to believe that the
plaintiff was about to inflict upon him great
bodily harm," and that in striking Hixson with
the cane, he used only such means or force at his
command as was necessary to resist the assault
of plaintiff, and he was thereby excusable on the
grounds of self-defense.
We therefore affirm the judgment of the lower
court.
SHACKETT
v.
BICKFORD
65 A.252 (N.H. 1906)
Supreme Court of New Hempshire.
BINGHAM, J.
121
The important question in this cases arises on
the defendant's exception to the charge of the
court to the jury. The action was deceit in the
sale of a horse, and the ground upon which the
trial proceeded was that the defendant knew his
representations were false. The court charged
the jury "that it was enough, upon the question
of the defendant's knowledge, if he knew or if he
suspected that the representations were not true."
In other words, that suspicion by the maker that
his representations are false is the legal
equivalent of knowledge of their falsity, and
fraudulent.
might be evidence of fraud, if the circumstances
indicated such recklessness or negligent
disregard for the truth as to be incompatible with
the idea of honesty, but that even gross
negligence, in the absence of dishonesty, did not
of itself amount to fraud; that, notwithstanding a
court or jury might find that the speaker had no
reasonable ground for believing his
representations were true, he may nevertheless
have honestly entertained such belief, and
consequently that fraud could not be predicated
upon such a finding.
Lord Herschell, who delivered the leading
judgment in the case, said (page 374): "I think
the authorities establish the following
propositions: First. In order to sustain an action
of deceit there must be proof of fraud, and
nothing short of that will suffice. Secondly.
Fraud is proved when it is shown that a false
representation has been made (1) knowingly or
(2) without belief in its truth, or (3) recklessly,
careless whether it be true or false. Although I
have treated the second and third as distinct
cases, I think the third is but an instance of the
second; for one who makes a statement under
such circumstances can have no real belief in the
truth of what he states. To prevent a false
statement being fraudulent, there must, I think,
always be an honest belief in its truth. And this
probably covers the whole ground; for one who
knowingly alleges that which is false has
obviously no such honest belief. Thirdly. If
fraud be proved, the motive of the person guilty
of it is immaterial. It matters not that there was
no intention to cheat or injure the person to
whom the statement was made."
In Angus v. Clifford (1891) 2 Ch. 449, 465, 466,
Lindley, L. J., in commenting upon this
statement of Lord Herschell, said: "You may
have *** a false statement made, but without the
matter being present to your mind, and made
carelessly; and, if that is the fact, that is not
fraud, but carelessness, for which an action will
What will constitute fraud in such an action has
recently been considered by the English courts.
The leading case upon the subject is Derry v.
Peek, 14 App. Cas. 337, decided in the House of
Lords in 1889. The complainant in that case
charged the defendants with knowingly making
false representations. It was found in the court
of first instance that the representations had been
honestly made, believing them to be true; and
the Court of Appeal (37 Ch. Div. 541) held that,
notwithstanding this fact, the representations
must be taken to be fraudulent because the
defendants had no reasonable ground for that
belief.
The question, therefore, which was presented for
the consideration of the House of Lords, when
the case came before that body in 14 App. Cas.
337, was whether a statement honestly made and
believed to be true should be treated as
fraudulent because those who made it had no
reasonable ground for entertaining that belief. In
the House of Lords the decision of the Court of
Appeal was reversed, and it was there held, in
conformity with the universally recognized rule,
that an action of deceit is based upon fraud; that
an action for negligent misrepresentation, as
distinguished from fraudulent misrepresentation,
could not be maintained; that want of reasonable
ground for believing a representation to be true
122
not lie. *** The passages about knowledge-knowingly making it, and making a statement
without believing its truth--are based upon the
supposition that the matter was really before the
mind of the person making the statement; and if
the evidence is that he never really intended to
mislead, that he did not see the effect, or dream
that the effect of what he was saying could
mislead, and that that particular part of what he
was saying was not present in his mind at all,
that, I should say, is proof of carelessness rather
than of fraud. I base my judgment *** on the
*** ground that *** an action of this kind cannot
be supported without proof of fraud, an intention
to deceive, and that it is not sufficient that there
is blundering carelessness, however gross, unless
there is willful recklessness, by which I mean
willfully shutting one's eyes, which is, of course,
fraud."
not knowing and not caring whether his
statement was true or false, the expression 'not
caring' had something to do with his not taking
care. But that expression did not mean not
taking care to find out whether the statement was
true or false. It meant not caring in the man's
own heart and conscience whether it was true or
false, and that would be wicked indifference and
recklessness."
It is apparent from the views expressed by the
judges in these cases that to establish fraud you
must prove a dishonest mental state or condition
of mind on the part of the speaker with reference
to the truthfulness of his statement; that when he
makes a statement of fact, intending it to be
relied upon, he of necessity affirms his belief in
its truth (Smith v. Chadwick, 9 App. Cas. 187,
203; Angus v. Clifford, supra, 470); that if his
statement was untrue and he knew it, or he made
it without belief in its truth, or with a conscious
indifference, not caring whether it was true or
false, the wickedness of his mind is manifest and
the fraudulent character of his act established.
Applying these principles to this case, it would
seem to follow that when the defendant, with a
view to effecting the sale, stated to the plaintiff
that the horse was safe and just what he wanted,
he thereby affirmed his belief in the truthfulness
of his statement, and, it being found that the
horse was vicious, and that the defendant
suspected that his statement was false, that his
want of belief or conscious disregard for the
truth or falsity of his statement was established;
for a person who suspects that his statement is
false does not entertain an honest belief that it is
true, or is consciously and wickedly indifferent
to its truth or falsity.
In Le Lievre v. Gould (1893) 1 Q. B. 491, 498,
Lord Esher, M. R., states: "A charge of fraud
*** against a man *** cannot be maintained in
any court unless it is shown that he had a wicked
mind. *** If a man tells a willful falsehood,
with the intention that it shall be acted upon by
the person to whom he tells it, his mind is
plainly wicked, and he must be said to be acting
fraudulently. Again, a man must be said to have
a fraudulent mind if he recklessly makes a
statement intending it to be acted upon, and not
caring whether it be true or false. I do not
hesitate to say that a man who thus acts must
have a wicked mind."
And Bowen, L. J., in the same case, says (pages
500, 501): "But his mind is wicked, not because
he is negligent, but because he is dishonest in
not caring about the truth of his statement. In
the first case it is the knowledge of the
falsehood, in the second it is the wicked
indifference, which constitutes the fraud. There
seems to have been some sort of an idea that ***
whether the man had made the representation,
The conclusion here reached is in harmony with
the decisions in this state and with the great
weight of authority elsewhere. . . . In Mahurin v.
Harding, [28 N.H. 128] the court approved a
charge to the jury that "if the affirmation [of the
123
defendants] was known, or believed, or
suspected by them to be false, and the event
proved that it was so, it should be deemed
fraudulent," and stated that the terms used to
describe the scienter were "expressions of
equivalent import." With this view we are
content. The defendant's motions for a nonsuit
and verdict were properly denied. The evidence
was sufficient to warrant the jury in finding that
the representations were fraudulent.
Subtopic NINE
OTHER THEORIES OF LIABILITY
124
As required by Washington statute, Pyrodyne
purchased a $1,000,000 insurance policy prior to
the fireworks show.
The policy provided
$1,000,000 coverage for each occurrence of
bodily injury or property damage liability.
Plaintiffs allege that Pyrodyne failed to carry out
a number of the other statutory and regulatory
requirements in preparing for and setting off the
fireworks. For example, they allege that
Pyrodyne failed to properly bury the mortar
tubes prior to detonation, failed to provide a
diagram of the display and surrounding
environment to the local government, failed to
provide crowd control monitors, and failed to
keep the invitees at the mandated safe distance.
KLEIN
v.
PYRODYNE CORPORATION
810 P.2d 917 (Wash. En Banc 1991)
Supreme Court of Washington,
En Banc.
GUY, Justice.
The plaintiffs in this case are persons injured
when an aerial shell at a public fireworks
exhibition went astray and exploded near them.
The defendant is the pyrotechnic company hired
to set up and discharge the fireworks. The issue
before this court is whether pyrotechnicians are
strictly liable for damages caused by fireworks
displays. We hold that they are.
During the fireworks display, one of the 5-inch
mortars was knocked into a horizontal position.
From this position a shell inside was ignited and
discharged.
The shell flew 500 feet in a
trajectory parallel to the earth and exploded near
the crowd of onlookers. Plaintiffs Danny and
Marion Klein were injured by the explosion.
Mr. Klein's clothing was set on fire, and he
suffered facial burns and serious injury to his
eyes.
Defendant Pyrodyne Corporation (Pyrodyne) is
a general contractor for aerial fireworks at public
fireworks displays. Pyrodyne contracted to
procure fireworks, to provide pyrotechnic
operators, and to display the fireworks at the
Western Washington State Fairgrounds in
Puyallup, Washington on July 4, 1987. All
operators of the fireworks display were Pyrodyne
employees acting within the scope of their
employment duties.
The parties provide conflicting explanations of
the cause of the improper horizontal discharge of
the shell. Pyrodyne argues that the accident was
caused by a 5-inch shell detonating in its above125
ground mortar tube without ever leaving the
ground. [FN1] Pyrodyne asserts that this
detonation caused another mortar tube to be
knocked over, ignited, and shot off horizontally.
In contrast, the Kleins contend that the
misdirected shell resulted because Pyrodyne's
employees improperly set up the display. They
further note that because all of the evidence
exploded, there is no means of proving the cause
of the misfire.
FIREWORKS DISPLAYS AS
ABNORMALLY DANGEROUS
ACTIVITIES
The Kleins contend that strict liability is the
appropriate standard to determine the culpability
of Pyrodyne because Pyrodyne was participating
in an abnormally dangerous activity. This court
has addressed liability for fireworks display
injuries on one prior occasion. In Callahan v.
Keystone Fireworks Mfg. Co., 72 Wash.2d 823,
435 P.2d 626 (1967), this court held that a
pyrotechnician could maintain a negligence suit
against the manufacturer of the defective
fireworks. The issue as to whether fireworks
displays are abnormally dangerous activities
subject to strict liability was not raised before the
court at that time, and hence remains open for
this court to decide.
FN1. Plaintiffs note that Pyrodyne's
argument is based upon an affidavit
made by Pyrodyne's President, Jerry
Elrod, who was not present at the
display.
The Kleins brought suit against Pyrodyne under
theories of products liability and strict liability.
[FN2] Pyrodyne filed a motion for summary
judgment, which the trial court granted as to the
products liability claim. The trial court denied
Pyrodyne's summary judgment motion regarding
the Kleins' strict liability claim, holding that
Pyrodyne was strictly liable without fault and
ordering summary judgment in favor of the
Kleins on the issue ofliability. Pyrodyne
appealed the order of partial summary judgment
to the Court of Appeals, which certified the case
to this court. Pyrodyne is appealing solely as to
the trial court's holding that strict liability is the
appropriate standard of liability for
pyrotechnicians. A strict liability claim against
pyrotechnicians for damages caused by
fireworks displays presents a case of first
impression in Washington.
The modern doctrine of strict liability for
abnormally dangerous activities derives from
Fletcher v. Rylands, 159 Eng.Rep. 737 (1865),
rev'd, 1 L.R.-Ex. 265, [1866] All E.R. 1, 6, aff'd
sub nom. Rylands v. Fletcher, 3 L.R.- H.L. 330,
[1868] All E.R. 1, 12, in which the defendant's
reservoir flooded mine shafts on the plaintiff's
adjoining land. Rylands v. Fletcher has come to
stand for the rule that "the defendant will be
liable when he damages another by a thing or
activity unduly dangerous and inappropriate to
the place where it is maintained, in the light of
the character of that place and its surroundings."
W. Keeton, *6 D. Dobbs, R. Keeton & D.
Owen, Prosser and Keeton on Torts § 78, at
547-48 (5th ed. 1984).
FN2. Defendants kept no record as to the
manufacturer of the aerial bombs used in
the July 4, 1987 display; thus, the
manufacturer was not identifiable.
The basic principle of Rylands v. Fletcher has
been accepted by the Restatement (**920
Second) of Torts (1977). See generally Prosser
and Keeton § 78, at 551 (explaining that the
relevant Restatement sections differ in some
respects from the Rylands doctrine). Section
519 of the Restatement provides that any party
ANALYSIS
I
126
carrying on an "abnormally dangerous activity"
is strictly liable for ensuing damages. The test
for what constitutes such an activity is stated in
section 520 of the Restatement.
Both
Restatement sections have been adopted by this
court, and determination of whether an activity
is an "abnormally dangerous activity" is a
question of law. . . .
because of the circumstances surrounding it, as
to justify the imposition of strict liability for
the harm that results from it, even though it is
carried on with all reasonable care.
Restatement (Second) of Torts § 520, comment
f (1977).
Examination of these factors
persuades us that fireworks displays are
abnormally dangerous activities justifying the
imposition of strict liability.
Section 520 of the Restatement lists six factors
that are to be considered in determining whether
an activity is "abnormally dangerous". The
factors are as follows:
(a) existence of a high degree of risk of some
harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it
will be great;
(c) inability to eliminate the risk by the
exercise of reasonable care;
(d) extent to which the activity is not a matter
of common usage;
(e) inappropriateness of the activity to the
place where it is carried on; and
(f) extent to which its value to the community
is outweighed by its dangerous attributes.
We find that the factors stated in clauses (a), (b),
and (c) are all present in the case of fireworks
displays. Any time a person ignites aerial shells
or rockets with the intention of sending them
aloft to explode in the presence of large crowds
of people, a high risk of serious personal injury
or property damage is created. That risk arises
because of the possibility that a shell or rocket
will malfunction or be misdirected.
Furthermore, no matter how much care
pyrotechnicians exercise, they cannot entirely
eliminate the high risk inherent in setting off
powerful explosives such as fireworks near
crowds.
Restatement (Second) of Torts § 520 (1977).
As we previously recognized in Langan v.
Valicopters, Inc., supra, 88 Wash.2d at 861-62,
567 P.2d 218 (citing Tent. Draft No. 10, 1964, of
comment (f) to section 520), the comments to
section 520 explain how these factors should be
evaluated:
Any one of them is not necessarily sufficient
of itself in a particular case, and ordinarily
several of them will be required for strict
liability. On the other hand, it is not necessary
that each of them be present, especially if
others weigh heavily.
Because of the
interplay of these various factors, it is not
possible to reduce abnormally dangerous
activities to any definition. The essential
question is whether the risk created is so
unusual, either because of its magnitude or
The dangerousness of fireworks displays is
evidenced by the elaborate scheme of
administrative regulations with which
pyrotechnicians must comply. Pyrotechnicians
must be licensed to conduct public displays of
special fireworks. . . . The necessity for such
regulations demonstrates the dangerousness of
fireworks displays.
Pyrodyne argues that if the regulations are
complied with, then the high degree of risk
otherwise inherent in the displays can be
eliminated. Although we recognize that the
high risk can be reduced, we do not agree that it
can be eliminated.
Setting off powerful
fireworks near large crowds remains a highly
risky activity even when the safety precautions
mandated by statutes and regulations are
127
followed. The Legislature appears to agree, for
it has declared that in order to obtain a license to
conduct a public fireworks display, a
pyrotechnician must first obtain a surety bond or
a certificate of insurance, the amount of which
must be at least $1,000,000 for each event.
[FN3] RCW 70.77.285, .295.
customarily carried on by the great mass of
mankind or by many people in the community."
Restatement (Second) of Torts § 520, comment
i (1977). As examples of activities that are not
matters of common usage, the Restatement
comments offer driving a tank, blasting, the
manufacture, storage, transportation, and use of
high explosives, and drilling for oil.
The
deciding characteristic is that few persons
engage in these activities. Likewise, relatively
few persons conduct public fireworks displays.
Therefore, presenting public fireworks displays
is not a matter of common usage.
FN3. The fact that the Legislature
requires a liability policy for an activity
does not in itself imply that the
Legislature views the activity as being
abnormally dangerous for purposes of
imposing strict liability. The fact that the
Legislature has mandated a $1,000,000
liability policy for pyrotechnicians,
however, does suggest that the
Legislature views public fireworks
displays as involving a high risk even
when the appropriate safety precautions
are taken.
Pyrodyne argues that the factor stated in clause
(d) is not met because fireworks are a common
way to celebrate the 4th of July. We reject this
argument. Although fireworks are frequently
and regularly enjoyed by the public, few persons
set off special fireworks displays. Indeed, the
general public is prohibited by statute from
making public fireworks displays insofar as
anyone wishing to do so must first obtain a
license. RCW 70.77.255.
The factors stated in clauses (a), (b), and (c)
together, and sometimes one of them alone,
express what is commonly meant by saying an
activity is ultrahazardous.
Restatement
(Second) of Torts § 520, comment h (1977). As
the Restatement explains, however, "[l]iability
for abnormally dangerous activities is not ... a
matter of these three factors alone, and those
stated in Clauses (d), (e), and (f) must still be
taken into account." Restatement (Second) of
Torts § 520, comment h (1977); see also New
Meadows Holding Co. v. Washington Water
Power Co., supra, 102 Wash.2d at 504, 687 P.2d
212 (Pearson, J., concurring) ("strict liability ...
may not be imposed absent the presence of at
least one of the factors stated in clauses (d), (e),
and (f)").
The factor stated in clause (e) requires analysis
of the appropriateness of the activity to the place
where it was carried on. In this case, the
fireworks display was conducted at the Puyallup
Fairgrounds. Although some locations--such as
over water--may be safer, the Puyallup
Fairgrounds is an appropriate place for a
fireworks show because the audience can be
seated at a reasonable distance from the display.
Therefore, the clause (e) factor is not present in
this case.
The factor stated in clause (f) requires analysis
of the extent to which the value of fireworks to
the community outweighs its dangerous
attributes. We do not find that this factor is
present here. This country has a long-standing
tradition of fireworks on the 4th of July. That
tradition suggests that we as a society have
The factor expressed in clause (d) concerns the
extent to which the activity is not a matter "of
common usage". The Restatement explains that
"[a]n activity is a matter of common usage if it is
128
decided that the value of fireworks on the day
celebrating our national independence and unity
outweighs the risks of injuries and damage.
although such considerations are not alone
sufficient to justify that conclusion. Most basic
is the question as to who should bear the loss
when an innocent person suffers injury through
the nonculpable but abnormally dangerous
activities of another. In the case of public
fireworks displays, fairness weighs in favor of
requiring the pyrotechnicians who present the
displays to bear the loss rather than the
unfortunate spectators who suffer the injuries.
In addition,
[t]he rule of strict liability rests not only upon
the ultimate idea of rectifying a wrong and
putting the burden where it should belong as a
matter of abstract justice, that is, upon the one
of the two innocent parties whose acts
instigated or made the harm possible, but it
also rests on problems of proof:
One of these common features is that the
person harmed would encounter a difficult
problem of proof if some other standard of
liability were applied. For example, the
disasters caused by those who engage in
abnormally dangerous or extra-hazardous
activities frequently destroy all evidence of
what in fact occurred, other than that the
activity was being carried on. Certainly this is
true with explosions of dynamite, large
quantities of gasoline, or other explosives.
In sum, we find that setting off public fireworks
displays satisfies four of the six conditions under
the Restatement test; that is, it is an activity that
is not "of common usage" and that presents an
ineliminably high risk of serious bodily injury or
property damage.
We therefore hold that
conducting public fireworks displays is an
abnormally dangerous activity justifying the
imposition of strict liability.
This conclusion is consistent with the results
reached in cases involving damages caused by
detonating dynamite. This court has recognized
that parties detonating dynamite are strictly
liable for the damages caused by such blasting.
. . . There are a number of similarities between
fireworks and dynamite. Both activities involve
licensed experts intentionally igniting for profit
explosives that have great potential for causing
damage. Moreover, after the explosion no
evidence remains as to the original explosive.
The notable difference between fireworks and
dynamite is that with fireworks the public is
invited to watch the display and with dynamite
the public is generally prohibited from being
near the blasting location. Because detonating
dynamite is subject to strict liability, and because
of the similarities between fireworks and
dynamite, strict liability is also an appropriate
standard for determining the standard of liability
for pyrotechnicians for any damages caused by
their fireworks displays.
Siegler v. Kuhlman, 81 Wash.2d 448, 455, 502
P.2d 1181 (1972), cert. denied, 411 U.S. 983, 93
S.Ct. 2275, 36 L.Ed.2d 959 (1973) (quoting
Peck, Negligence and Liability Without Fault in
Tort Law, 46 Wash.L.Rev. 225, 240 (1971)). In
the present case, all evidence was destroyed as
to what caused the misfire of the shell that
injured the Kleins. Therefore, the problem of
proof this case presents for the plaintiffs also
supports imposing strict liability on Pyrodyne.
.....
II
PUBLIC POLICY AND STRICT LIABILITY
FOR FIREWORKS DISPLAYS
Policy considerations also support imposing
strict liability on pyrotechnicians for damages
caused by their public fireworks displays,
III
STATUTORY STRICT LIABILITY FOR
129
FIREWORKS
may be suffered by the person bitten,
regardless of the former viciousness of such
dog or the owner's knowledge of such
viciousness.
As well as holding Pyrodyne strictly liable on the
basis that fireworks displays are abnormally
dangerous activities, we also hold that RCW
70.77.285 imposes statutory strict liability.
[FN4] The statute, which mandates insurance
coverage to pay for all damages resulting from
fireworks displays, establishes strict liability for
any ensuing injuries.
See Beeler v. Hickman, 50 Wash.App. 746, 75051, 750 P.2d 1282 (1988). The court in Beeler
held that the language of the statute clearly
established strict liability for the owner of the
dog.
Although RCW 70.77.285 does not
establish strict liability in the same language as
the dog bite statute, it nonetheless provides that
pyrotechnicians shall pay for all damages to
persons or property resulting from fireworks
displays.
FN4. RCW 70.77.285 states: "Except as
provided in RCW 70.77.355, the
applicant for a permit under RCW
70.77.260(2) for a public display of
fireworks shall include with the
application evidence of a bond issued by
an authorized surety company. The
bond shall be in the amount required by
RCW 70.77.295 and shall be conditioned
upon the applicant's payment of all
damages to persons or property resulting
from or caused by such public display of
fireworks, or any negligence on the part
of the applicant or its agents, servants,
employees, or subcontractors in the
presentation of the display. Instead of a
bond, the applicant may include a
certificate of insurance evidencing the
carrying of appropriate public liability
insurance in the amount required by
RCW 70.77.295 for the benefit of the
person named therein as assured, as
evidence of ability to respond in
damages.
The local fire official
receiving the application shall approve
the bond or insurance if it meets the
requirements of this section."
RCW 70.77.285 has been amended twice since
it was enacted in 1961. Laws of 1961, ch. 228,
§ 34, p. 2027; Laws of 1982, ch. 230, § 16, p.
976; Laws of 1984, ch. 249, § 15, p. 1253.
Neither amendment changed the original
disjunctive language mandating liability
insurance coverage for "all damages to persons
or property ... or any negligence on the part of
the applicant". The statutory language clearly
indicates that the Legislature intended
pyrotechnicians to carry insurance to cover any
damages incurred as a result of the fireworks
display. The rule of construction applied to the
disjunctive "or" mandates that by use of "or", a
failure to comply with any requirement in the
statute imposes liability.
1A C. Sands,
Sutherland Statutory Construction § 21.14, at
127 (4th ed. 1985). Thus, by utilizing the
disjunctive "or" the Legislature indicated that
damages will be owed for all injuries caused by
the fireworks display, regardless of whether they
resulted from the pyrotechnician's negligence.
[FN5]
An example of a statute which the appellate
court has held to be a strict liability statute is
RCW 16.08.040, which reads in part:
The owner of any dog which shall bite any
person ... shall be liable for such damages as
FN5. RCW 70.77.285 was enacted prior
to the Washington adoption of the strict
liability standard. The Restatement of
Torts regarding abnormally dangerous
130
activities was drafted in 1964. This
court first applied the strict liability
standard to abnormally dangerous
activities in Siegler v. Kuhlman, 81
Wash.2d 448, 502 P.2d 1181 (1972).
That case stated, however, that strict
liability was not a novel concept and that
it was at least as old as Fletcher v.
Rylands, supra at 453.
intervening or outside force that cuts off
Pyrodyne's liability.
In support of its position, Pyrodyne relies upon
Siegler v. Kuhlman, supra, and New Meadows
Holding Co. v. Washington Water Power Co.,
102 Wash.2d 495, 687 P.2d 212 (1984). In
Siegler, a young woman was killed in an
explosion when the car she was driving
encountered a pool of thousands of gallons of
gasoline spilled from a gasoline truck. This
court held that transporting gasoline in great
quantities along public highways and streets is
an abnormally dangerous activity that calls for
the application of strict liability. Siegler, 81
Wash.2d at 459-60, 502 P.2d 1181. Justice
Rosellini concurred, but stated:
I think the opinion should make clear,
however, that the owner of the vehicle will be
held strictly liable only for damages caused
when the flammable or explosive substance is
allowed to escape without the apparent
intervention of any outside force beyond the
control of the manufacturer, the owner, or the
operator of the vehicle hauling it. I do not
think the majority means to suggest that if
another vehicle, negligently driven, collided
with the truck in question, the truck owner
would be held liable for the damage.
Furthermore, no part of a statute should be
deemed inoperative or superfluous unless it is
the result of obvious mistake or error. Cox v.
Helenius, 103 Wash.2d 383, 387-88, 693 P.2d
683 (1985); Newschwander v. Board of Trustees
of Wash. State Teachers Retirement Sys., 94
Wash.2d 701, 707, 620 P.2d 88 (1980). This
requires that every word, clause, and sentence of
a statute be given effect, if possible. Pursuant to
this requirement, both clauses of RCW
70.77.285 should be given effect. Therefore, it is
necessary to interpret the statute as mandating
coverage of all damages caused by fireworks
displays, regardless of whether those damages
were caused by negligence of the
pyrotechnicians.
IV
POSSIBLE NEGLIGENT MANUFACTURE
AS AN INTERVENING FORCE
Siegler, at 460, 502 P.2d 1181 (Rosellini, J.,
concurring). In New Meadows Holding Co., the
plaintiff was injured when he attempted to light
an oil stove and unwittingly ignited natural gas
leaking from a damaged gas line several blocks
away. The leak allegedly was caused several
years earlier when workers laying a telephone
cable damaged the gas line. This court held that
the transmission of natural gas through
underground lines is not an abnormally
dangerous activity justifying the imposition of
strict liability. New Meadows Holding Co., 102
Wash.2d at 503, 687 P.2d 212. In dicta, we also
stated that the rule of strict liability should not
Pyrodyne argues that even if there is strict
liability for fireworks, its liability under the facts
of this case is cut off by the manufacturer's
negligence, the existence of which we assume
for purposes of evaluating the propriety of the
trial court's summary judgment. According to
Pyrodyne, ashell detonated without leaving the
mortar box because it was negligently
manufactured.
This detonation, Pyrodyne
asserts, was what caused the misfire of the
second shell, which in turn resulted in the
Kleins' injuries. Pyrodyne reasons that the
manufacturer's negligence acted as an
131
apply where there is the intervention of an
outside force beyond the defendant's control, and
that the gas leak was caused by such an outside
force. New Meadows Holding Co., at 503, 687
P.2d 212.
Pyrodyne reasons that the shell
manufacturer's negligence in supplying a
defective shell, like the actions of the cablelaying workers who damaged the gas line in New
Meadows Holding Co., provided an outside
force beyond Pyrodyne's control, and that
therefore strict liability should not apply.
activity. Contrary to the implication Pyrodyne
would have us draw from the dicta in New
Meadows Holding Co. and the Siegler
concurrence, we hold that a defendant may be
held strictly liable for injuries arising from an
abnormally dangerous activity even when those
injuries were in part caused by the intervening
acts of a third person over whom the defendant
had no control.
A basic principle regarding the scope of legal
liability for strict liability is that the sequence of
events between the defendant's conduct and the
plaintiff's injury must have occurred without the
intervention of some unexpected, independent
cause:
The sequence of events must have been such
that it is not unfair to hold the defendant liable
therefor. Here we find the ordinary rules
governing legal causation quite adequate to
state the law. Thus, although accumulation of
water is extra-hazardous because its escape
involves a risk of serious damage to adjoining
property holders, nevertheless the escape must
occur in the ordinary course of nature, and if
some superseding cause occasions the escape
there is no liability.
We have such a
superseding cause where the escape is caused
by the act of God or by a vis major which
defendant is not bound as a reasonable man to
anticipate. Even the gnawing of a rat may be
such an unexpected independent cause as to
make it unjust to hold defendant liable. So,
also, if the escape of the water is brought
about by the intervening wrongful act of a
third person which was not foreseeable under
the circumstances, the defendant is relieved
from liability.
We note that the Restatement (Second) of Torts
takes a position contrary to that advocated by
Pyrodyne. Section 522 of the Restatement
provides that:
One carrying on an abnormally dangerous
activity is subject to strict liability for the
resulting harm although it is caused by the
unexpectable
(a) innocent, negligent or reckless conduct of
a third person ...
Restatement (Second) of Torts § 522 (1977).
The comment to section 522 explains that "[i]f
the risk [from an abnormally dangerous activity]
ripens into injury, it is immaterial that the harm
occurs through the unexpectable action of a
human being". Restatement (Second) of Torts
§ 522, comment a (1977).
Thus, on the one hand, Pyrodyne urges us to
adopt the view that any intervention by an
outside force beyond the defendant's control is
sufficient to relieve the defendant from strict
liability for an abnormally dangerous activity.
On the other hand, section 522 provides that no
negligent intervention by a third person will
relieve the defendant from strict liability for
abnormally dangerous activities. We reject both
positions. Contrary to section 522, we hold that
a third person's intervening acts of negligence
will sometimes provide a defense from liability
for those carrying on an abnormally dangerous
(Italics ours; citations omitted.)
Harper,
Liability Without Fault and Proximate Cause, 30
Mich.L.Rev. 1001, 1009-10 (1932); see also
Prosser and Keeton § 79, at 563-64.
Conversely, if the damage or injury to the
132
plaintiff was brought about in a manner that was
foreseeable under the circumstances, then the
defendant is not relieved from liability. See
Galbreath v. Engineering Constr. Corp., 149
Ind.App. 347, 273 N.E.2d 121, 56 A.L.R.3d
1002 (1971) (blasting is an extrahazardous
activity that gives rise to liability for all resulting
foreseeable injuries).
relation to the extraordinary risk created by
conducting a public fireworks display.
Therefore, even if such negligence may properly
be regarded as an intervening cause, an issue we
need not decide, it cannot function to relieve
Pyrodyne from liability. [FN7] This is not to say,
however, that in a proper case a defendant in a
strict liability action could not pursue a claim
against a third party and enforce a right of
contribution to an extent proportionate to that
party's fault.
We hold that intervening acts of third persons
serve to relieve the defendant from strict liability
for abnormally dangerous activities only if those
acts were unforeseeable in relation to the
extraordinary risk created by the activity. Cf.
Herberg v. Swartz, 89 Wash.2d 916, 578 P.2d 17
(1978) (intervening but foreseeable acts of third
persons are no defense to liability in negligence);
Restatement (Second) of Torts § 447 (1977)
(same). The rationale for this rule is that it
encourages those who conduct abnormally
dangerous activities to anticipate and take
precautions against the possible negligence of
third persons.
Where the third person's
negligence is beyond the actor's control, this
rule, unlike the Siegler dicta, nonetheless
imposes strict liability if the third person
negligence was reasonably foreseeable. Such a
result allocates the economic burden of injuries
arising from the forseeable negligence of third
persons to the party best able to plan for it and to
bear it--the actor carrying on the abnormally
dangerous activity. [FN6]
FN7. An intervening cause may be
defined as a force that actively operates
to produce harm to another after the
actor's act or omission has been
committed. See Restatement (Second)
of Torts § 441(1) (1977) (defining
"intervening cause" in negligence
context). The manufacturer's alleged
negligence occurred prior to Pyrodyne's
fireworks display, but it actively
operated to produce harm only after the
aerial shells had been ignited.
CONCLUSION
We hold that Pyrodyne Corporation is strictly
liable for all damages suffered as a result of the
July 1987 fireworks display.
Detonating
fireworks displays constitutes an abnormally
dangerous activity warranting strict liability.
Public policy also supports this conclusion. . .
. . . This establishes the standard of strict liability
for pyrotechnicians. Therefore, we affirm the
decision of the trial court.
FN6. By this analysis we do not license
the imposition of negligence concepts
onto the law of strict liability. We
merely recognize a limited defense to
liability for abnormally dangerous
activities where the injury resulted from
the unforeseeable intervention of a third
person.
GREENMAN
v.
YUBA POWER PRODUCTS, INC.
377 P.2d 897 (Cal. 1963)
In the present case, negligence on the part of the
fireworks manufacturer is readily foreseeable in
Supreme Court of California, In Bank.
133
TRAYNOR, Justice.
Plaintiff introduced substantial evidence that his
injuries were caused by defective design and
construction of the Shopsmith. His expert
witnesses testified that inadequate set screws
were used to hold parts of the machine together
so that normal vibration caused the tailstock of
the lathe to move away from the piece of wood
being turned permitting it to fly out of the lathe.
They also testified that there were other more
positive ways of fastening the parts of the
machine together, the use of which would have
prevented the accident. The jury could therefore
reasonably have concluded that the manufacturer
negligently constructed the Shopsmith. The jury
could also reasonably have concluded that
statements in the manufacturer's brochure were
untrue, that they constituted express warranties,
[FN1] and that plaintiff's injuries were caused by
their breach.
Plaintiff brought this action for damages against
the retailer and the manufacturer of a Shopsmith,
a combination power tool that could be used as
a saw, drill, and wood lathe. He saw a
Shopsmith demonstrated by the retailer and
studied a brochure prepared by the manufacturer.
He decided he wanted a Shopsmith for his home
workshop, and his wife bought and gave him one
for Christmas in 1955. In 1957 he bought the
necessary attachments to use the Shopsmith as a
lathe for turning a large piece of wood he wished
to make into a chalice. After he had worked on
the piece of wood several times without
difficulty, it suddenly flew out of the machine
and struck him on the forehead, inflicting serious
injuries. About ten and a half months later, he
gave the retailer and the manufacturer written
notice of claimed breaches of warranties and
filed a complaint against them alleging such
breaches and negligence.
FN1. In this respect the trial court
limited the jury to a consideration of two
statements in the manufacturer's
brochure. (1) 'WHEN SHOPSMITH IS
IN HORRIZONTAL POSITION Rugged
construction of frame provides rigid
support from end to end. Heavy
centerless-ground steel tubing insurers
perfect alignment of components.' (2)
'SHOPSMITH maintains its accuracy
because every component has positive
locks that hold adjustments through
rough or precision work.'
After a trial before a jury, the court ruled that
there was no evidence that the retailer was
negligent or had breached any express warranty
and that the manufacturer was not liable for the
breach of any implied warranty. Accordingly, it
submitted to the jury only the cause of action
alleging breach of implied warranties against the
retailer and the causes of action alleging
negligence and breach of express warranties
against the manufacturer. The jury returned a
verdict for the retailer against plaintiff and for
plaintiff against the manufacturer in the amount
of $65,000. The trial court denied the
manufacturer's motion for a new trial and
entered judgment on the verdict. The
manufacturer and plaintiff appeal. Plaintiff seeks
a reversal of the part of the judgment in favor of
the retailer, however, only in the event that the
part of the judgment against the manufacturer is
reversed.
The manufacturer contends, however, that
plaintiff did not give it notice of breach of
warranty within a reasonable time and that
therefore his cause of action for breach of
warranty is barred by section 1769 of the Civil
Code. Since it cannot be determined whether the
verdict against it was based on the negligence or
warranty cause of action or both, the
manufacturer concludes that the error in
presenting the warranty cause of action to the
134
jury was prejudicial.
damages. As applied to personal injuries, and
notice to a remote seller, it becomes a boobytrap for the unwary. The injured consumer is
seldom 'steeped in the business practice which
justifies the rule,' (James, Product Liability, 34
Texas L.Rev. 44, 192, 197) and at least until he
has had legal advice it will not occur to him to
give notice to one with whom he has had no
dealings.' (Prosser, Strict Liability to the
Consumer, 69 Yale L.J. 1099, 1130, footnotes
omitted.) It is true that in Jones v. Burgermeister
Brewing Corp., 198 Cal.App.2d 198, 202-203,
18 Cal.Rptr. 311; Perry v. Thrifty Drug Co., 186
Cal.App.2d 410, 411 ,9 Cal.Rptr. 50; Arata v.
Tonegato, 152 Cal.App.2d 837, 841, 314 P.2d
130, and Maecherlein v. Sealy Mattress Co., 155
Cal.App.2d 275, 278, 302 P.2d 331, the court
assumed that notice of breach of warranty must
be given in an action by a consumer against a
manufacturer. Since in those cases, however, the
court did not consider the question whether a
distinction exists between a warranty based on a
contract between the parties and one imposed on
a manufacturer not in privity with the consumer,
the decisions are not authority for rejecting the
rule of the La Hue and Chapman cases, supra.
(Peterson v. Lamb Rubber Co., 54 Cal.2d 339,
343, 5 Cal.Rptr. 863, 353 P.2d 575; People v.
Banks, 53 Cal.2d 370, 389, 1 Cal.Rptr. 669, 348
P.2d 102.) We conclude, therefore, the even if
plaintiff did not give timely notice of breach of
warranty to the manufacturer, his cause of action
based on the representations contained in the
brochure was not barred.
Section 1769 of the Civil Code provides: 'In the
absence of express or implied agreement of the
parties, acceptance of the goods by the buyer
shall not discharge the seller from liability in
damages or other legal remedy for breach of any
promise or warranty in the contract to sell or the
sale. But, if, after acceptance of the goods, the
buyer fails to give notice to the seller of the
breach of any promise or warranty within a
reasonable time after the buyer knows, or ought
to know of such breach, the seller shall not be
liable therefor.'
Like other provisions of the uniform sales act
(Civ.Code, ss 1721-1800), section 1769 deals
with the rights of the parties to a contract of sale
or a sale. It does not provide that notice must be
given of the breach of a warranty that arises
independently of a contract of sale between the
parties. Such warranties are not imposed by the
sales act, but are the product of common-law
decisions that have recognized them in a variety
of situations. . . . . . It is true that in many of
these situations the court has invoked the sales
act definitions of warranties (Civ.Code, ss 1732,
1735) in defining the defendant's liability, but it
has done so, not because the statutes so required,
but because they provided appropriate standards
for the court to adopt under the circumstances
presented. . . .
The notice requirement of section 1769,
however, is not an appropriate one for the court
to adopt in actions by injured consumers against
manufacturers with whom they have not dealt.
(La Hue v. Coca-Cola Bottling, 50 Wash.2d 645,
314 P.2d 421, 422; Chapman v. Brown, D.C.,
198 F.Supp. 78, 85, affd. Brown v. Chapman, 9
Cir., 304 F.2d 149.) 'As between the immediate
parties to the sale (the notice requirement) is a
sound commercial rule, designed to protect the
seller against unduly delayed claims for
Moreover, to impose strict liability on the
manufacturer under the circumstances of this
case, it was not necessary for plaintiff to
establish an express warranty as defined in
section 1732 of the Civil Code. [FN2] A
manufacturer is strictly liable in tort when an
article he places on the market, knowing that it
is to be used without inspection for defects,
proves to have a defect that causes injury to a
135
human being. Recognized first in the case of
unwholesome food products, such liability has
now been extended to a variety of other products
that create as great or greater hazards if
defective. . . . . .
injured persons who are powerless to protect
themselves. Sales warranties serve this purpose
fitfully at best. (See Prosser, Strict Liability to
the Consumer, 69 Yale L.J. 1099, 1124-1134.) In
the present case, for example, plaintiff was able
to plead and prove an express warranty only
because he read and relied on the representations
of the Shopsmith's ruggedness contained in the
manufacturer's brochure. Implicit in the
machine's presence on the market, however, was
a representation that it would safely do the jobs
for which it was built. Under these
circumstances, it should not be controlling
whether plaintiff selected the machine because
of the statements in the brochure, or because of
the machine's own appearance of excellence that
belied the defect lurking beneath the surface, or
because he merely assumed that it would safely
do the jobs it was built to do. It should not be
controlling whether the details of the sales from
manufacturer to retailer and from retailer to
plaintiff's wife were such that one or more of the
implied warranties of the sales act arose.
(Civ.Code, s 1735.) 'The remedies of injured
consumers ought not to be made to depend upon
the intricacies of the law of sales.' (Ketterer v.
Armour & Co., D.C., 200 F. 322, 323; Klein v.
Duchess Sandwich which Co., 14 Cal.2d 272,
282, 93 P.2d 799.) To establish the
manufacturer's liability it was sufficient that
plaintiff proved that he was injured while using
the Shopsmith in a way it was intended to be
used as a result of a defect in design and
manufacture of which plaintiff was not aware
that made the Shopsmith unsafe for its intended
use.
FN2. Any affirmation of fact or any
promise by the seller relating to the
goods is an express warranty if the
natural tendency of such affirmation or
promise is to induce the buyer to
purchase the goods, and if the buyer
purchases the goods relying thereon. No
affirmation of the value of the goods, nor
any statement purporting to be a
statement of the seller's opinion only
shall be construed as a warranty.'
Although in these cases strict liability has
usually been based on the theory of an express or
implied warranty running from the manufacturer
to the plaintiff, the abandonment of the
requirement of a contract between them, the
recognition that the liability is not assumed by
agreement but imposed by law . . . , and the
refusal to permit the manufacturer to define the
scope of its own responsibility for defective
products . . . make clear that the liability is not
one governed by the law of contract warranties
but by the law of strict liability in tort.
Accordingly, rules defining and governing
warranties that were developed to meet the needs
of commercial transactions cannot properly be
invoked to govern the manufacturer's liability to
those injured by their defective products unless
those rules also serve the purposes for which
such liability is imposed.
The manufacturer contends that the trial court
erred in refusing to give three instructions
requested by it. It appears from the record,
however, that the substance of two of the
requested instructions was adequately covered
by the instructions given and that the third
instruction was not supported by the evidence.
We need not recanvass the reasons for imposing
strict liability on the manufacturer. . . . . . The
purpose of such liability is to insure that the
costs of injuries resulting from defective
products are borne by the manufacturers that put
such products on the market rather than by the
136
The judgment is affirmed.
This is an action for damages for a trespass on
real property, brought by Tena Sleep, as plaintiff,
against J. L. Morrill, as defendant. The trial
resulted in a verdict and judgment in favor of
defendant, from which plaintiff appeals.
Note
The most widely adopted statement of product
strict liability is Restatement of the Law
Second, Torts § 402A. Special Liability Of
Seller Of Product For Physical Harm To User
Or Consumer:
(1) One who sells any product in a defective
condition unreasonably dangerous to the user
or consumer or to his property is subject to
liability for physical harm thereby caused to
the ultimate user or consumer, or to his
property, if
(a) the seller is engaged in the business of
selling such a product, and
(b) it is expected to and does reach the user or
consumer without substantial change in the
condition in which it is sold.
(2) The rule stated in Subsection (1) applies
although
(a) the seller has exercised all possible care in
the preparation and sale of his product, and
(b) the user or consumer has not bought the
product from or entered into any contractual
relation with the seller.
Plaintiff is the owner of the north one-half of the
northeast one-quarter of section ten, township
twenty-six south of range thirteen west of the
Willamette Meridian, in Coos county, Oregon.
In 1949, defendant purchased a tract of land
adjoining that of plaintiff, and immediately
commenced to clear it of brush and trees. In the
process of clearing his land, defendant caused to
be deposited upon the lands of plaintiff five
fallen trees, together with some tree limbs and
other debris. This invasion of plaintiff's property
by defendant was against plaintiff's will and
without her consent, and is the trespass involved
in this litigation.
Upon the trial, the defendant, as a witness,
admitted the trespass. There was no evidence to
the contrary. Defendant also admitted that it
would cost approximately $25 to clear plaintiff's
land of the material he had deposited thereon.
The estimates of other witnesses as to the cost of
removing this material varied from $20 to $600.
Plaintiff in her complaint demand compensatory
damages in the sum of $500 and punitive
damages in the sum of $1,000.
[Although this statement has been been
superseded by the Restatement of the Law
Third, Torts: Products Liability, most
American courts continue to apply the
principles of 403A.]
After both parties had rested on the trial, and
before the court instructed the jury, plaintiff
moved as follows:
'Plaintiff at this time would move for a
directed verdict to the effect that the jury only
consider damages for the plaintiff and must
find a verdict for the plaintiff.
'The court: That is a matter for instructions
which I will now give to the jury.'
SLEEP
v.
MORRILL.
260 P.2D 487 (Or. 1953)
Supreme Court of Oregon.
TOOZE, Justice.
The court instructed the jury as follows:
'So far as this case is concerned at this time,
137
even though it is denied in the answer, it is
admitted by the testimony of the defendant
himself and by his attorney in argument that
there was a trespass, so it is a further question
then for you to determine whether or not that
trespass was actionable or not, in other words
whether damage resulted from it or not, so in
reality that is the only question left, whether or
not there was any damage.
In Treadgold v. Willard, 81 Or. 658, 669, 160 P.
803, 807, we said:
'When a cause is finally submitted, if it appears
from the evidence received that one of the
parties is entitled, as a matter of law, to a
particular finding of fact, it is incumbent upon
the court when so requested to direct a verdict
to that effect. * * *'
It is well settled that every unauthorized entry on
the land of another is a trespass, even if no
damage is done. Huber v. Portland Gas & Coke
Co., 128 Or. 363, 366, 274 P. 509; Kesterson v.
California-Oregon Power Co., 114 Or. 22, 31,
228 P. 1092.
***
'Now we come to the question of damage in
this case, if any. In order or return a verdict
for the plaintiff in this case you would have to
assess damage in some amount. You couldn't
bring in a verdict for the plaintiff for no
damages, you would have to assess some
amount of damages, if you find that there was
damage.
In 63 C.J. 1035, Trespass, § 225, the following
rules are stated:
'Every trespass gives a right to at least nominal
damages, even though the act was a benefit to
plaintiff. One whose property rights have been
invaded by a tortious act can without proof of
any amount of damages recover a nominal
amount for the purpose of vindicating his
right.'
***
'Juror: Could I ask a question, if we find no
damages, I don't understand the verdict?
'The Court: You couldn't return a verdict for
the plaintiff for no damages. If you find that
there has been a trespass and no damages, you
would have to find a verdict for the defendant,
under the conditions, if that is the finding. Of
course it is up to you what you would find.'
(Italics ours.)
Although the amount or items of damages will
not be presumed, but must be established by
proof, nevertheless, where the evidence shows
the violation or infringement of a legal right, the
law will presume damages sufficient to sustain
an action, which damages may be only nominal
and not capable of exact measurement.
Plaintiff saved the following exception:
'I except to the instruction of no verdict for the
plaintiff in the event that they find no damage.'
In 25 C.J.S. Damages, § 9, p. 466 it is said:
'Although the law presumes damage from the
infringement of a legal right, * * *, the amount
of damage so presumed is only nominal; * * *,
where a legal wrong is established but there is
no evidence as to actual damages, nominal
damages are properly awarded. In other
words, where plaintiff establishes a cause of
action but fails to show any damage, he may
recover nominal damages.'
Under defendant's own admissions and the
undisputed evidence in the case, plaintiff was
entitled to a verdict in her favor. The only
question in dispute was the amount of the
damage. The motion made by the plaintiff upon
completion of the testimony was a clear request
to the court for a peremptory instruction to that
effect. Such an instruction should have been
given.
138
trespass. No contention is made that plaintiff's
lands were benefited in any way by the deposit
thereon of the material in question, as was the
case where earth had been placed upon plaintiff's
property, as mentioned in the quotation from 26
R.C.L., supra. The cost of removing the trees
and debris from plaintiff's premises was a proper
measure of the damages she sustained because of
the trespass. By his own testimony, defendant
fixed the cost of such removal in the sum of $25.
The lowest estimate of such cost, made by one of
defendant's witnesses, was the sum of $20.
Also see 15 Am.Jur. 395, Damages, § 8.
The rules stated in 26 R.C.L. 971, § 48, are
applicable to the instant case. It is there stated:
'The law conclusively presumes damage in
every case of trespass. Hence, the plaintiff in
an action of trespass is always entitled to some
damages, if trespass be shown, even though
they may be merely nominal. This is true even
though the plaintiff was benefited by the act of
the defendant. Hence, it is error for the court
to instruct the jury that if they believe no
injury or damage was done by the trespass of
the defendants, they should render a verdict in
favor of the latter. All damages of which an
injurious act was the efficient cause, and for
which the plaintiff is entitled to recover in any
form, may be recovered in an action of
trespass, although in point of time the damage
did not result till some time after the act was
committed. Any circumstance attending the
commission of the trespass may be given in
evidence with a view of affecting the damages,
save where the circumstances within
themselves constitute an independent cause of
action. The damages should be such as will
put the plaintiff in the same situation he would
have been in if the injury alleged had not been
committed; but in an action for placing earth
on the plaintiff's lot, he cannot recover as
damages what it would cost to remove the
earth, if the lot *133 was in fact benefited
thereby, and this question is for the jury to
determine, with reference to the use for which
the plaintiff intended the lot.' (Italics ours.)
In the light of defendant's own admissions and
the undisputed evidence in the case, plaintiff was
entitled to a judgment in her favor in a sum of at
least $20. The evidence conclusively established
actual damages as the result of defendant's
wrongful acts, and this is not a case involving
nominal damages only.
The trial court erred in instructing the jury that it
might return a verdict for the defendant in the
event no damage was found because (1) the
evidence conclusively showed some actual
damage, and (2) in any event, plaintiff was
entitled to nominal damages. Defendant was not
entitled to a verdict in any view of the evidence.
The judgment is reversed.
FAIRVIEW FARMS, INC.
v.
REYNOLDS METALS COMPANY
176 F.Supp. 178 (D. Oregon1959)
United States District Court D. Oregon.
Also see 52 Am.Jur. 872, Trespass, § 47.
EAST, District Judge.
It seems clear from the evidence in this case that
plaintiff's property received no permanent injury
from defendant's tortious acts. It appears that the
removal of the trees and other debris would
eliminate the entire damage caused by the
The plaintiff, Fairview Farms, Inc., an Oregon
corporation (Fairview), instituted these
proceedings against the defendant, Reynolds
139
Metals Company, a Delaware corporation
(Reynolds), . . . . .
cows. Said fluorides do not injuriously affect the
quality of the milk so produced and do not
injuriously affect its palatability or
wholesomeness for human consumption.
.....
The trial of the cause was had by the Court
without a jury, and continued for a total of 41
trial days.
.....
Theories of Trespass and of Nuisance.
Fairview, during all pertinent times, has and
does operate a dairy farm upon the hereinafter
mentioned tracts of land northwest of Troutdale,
Multnomah County, Oregon. Reynolds operates
an aluminum reduction plant immediately east of
said dairy farm. In this action Fairview contends
that its dairy cows have been injured and the
production of milk decreased as a result of
consuming forage grown on said dairy farm
upon which have settled fluorides emitted from
said plant.
Fairview insists that its case against Reynolds
for knowingly to allow the gaseous, liquid and
solid fluorides to emanate and escape from its
plant and become deposited upon its lands with
alleged resulting damage to its lands and herd
forage thereon, with the resulting damage to its
herd and loss of milk production from April 1,
1947, to December 31, 1955, rests in trespass. A
six-year statute of limitations applies to actions
in trespass in Oregon. [FN1]
Reynolds rests on the proposition that the
escaping fluorides and settling on Fairview's
lands was not of sufficient quantity to injure
Fairview's lands or its dairy cow herd foraging
thereon, or, if any damage was done it was de
minimus. Reynolds also contends payment and
satisfaction for all damage actually done.
Further, Reynolds insists that if, in fact, damage
was caused to Fairview's lands and herd, then it
became liable only under the theory of nuisance,
and contends that Fairview's action is barred by
Oregon's two-year statute of limitations on
actions upon alleged nuisance. [FN3]
Fairview also contends that the fume control
system installed by Reynolds is not sufficient to
control the emanation of gases, liquids and
solids containing flourides from said plant.
Fairview further contends that, unless the
emanation of the said gases, liquids and solids
containing fluorides is controlled, the trespass
which is now occurring in respect of Fairview's
farm will become permanent with a resulting
depreciation in value, and in addition to alleged
damages Fairview seeks a permanent injunction
against Reynolds restraining the operation of
said plant.
This Court previously held that during
comparable times Reynolds' operation of the
Troutdale plant was not an 'ultra hazardous
activity from which absolute liability stems';
however, whether or not Reynolds was negligent
towards neighboring farm landowners in
allowing flourine particulates to escape from its
plant, with resulting alleged injury to persons,
was a question of fact for a jury in an action
based upon alleged negligence. . . . .
These contentions are denied by Reynolds.
.....
Fluorides of the types emitted from the plant
operated by Reynolds, if deposited in sufficient
quantities upon Fairview's hay, grasses, feed and
forage crops, would render the same unfit for use
as dairy cow food, and if ingested in sufficient
quantities, are capable of causing damage to the
140
Basis of Liability.
Fairview's cause well-founded in trespass.
From the evidence adduced and for the reasons
to be pointed out, this Court is satisfied that
Reynolds' conduct in operating its plant when it
well knew flourides were escaping therefrom
and settling upon Fairview's lands in quantities
then deemed to render forage thereon unsafe for
dairy cow consumption, and in turn causing
damage to the said forage for which it paid
compensation, constituted an intentional tort on
Reynolds' part. This conclusion of an intentional
tort on the part of Reynolds presents two
fundamental questions:
'The action for private nuisance originated in the
assize of nuisance which dates back to as early
as the Twelfth Century. This action was
complementary to the assize of novel disseisin.
While the assize of novel disseisin was an action
for redressing interference with the seisin of
land, the assize of nuisance provided redress
where the injury was not a disseisin, as where
there was no entry on the plaintiff's land but was
an indirect damage to the land or an interference
with its use and enjoyment. The assize of novel
disseisin was directed to secure an undisturbed
possession; the assize of nuisance to secure its
free enjoyment.' American Law Institute
Restatement of Torts 1939, Division Ten, Ch.
40, Introductory note, p. 218.
(1) The basis of liability, if any; and
(2) The amount and character of damage
resulting from the tortious act, if any, and the
remedies, if any, therefor.
The historical distinction between trespass and
nuisance concerned a court's ability to ascertain
if some direct invasion was in fact made. Such
an invasion could only be sustained under a
trespass theory if the Court could see some
physical intrusion by tangible matter. Intangible
subjects such as odors and gases were thus not
historically considered trespasses, but were
classified as nuisances.
.....
A review of the Oregon Supreme Court's cases
involving trespass or nuisance injury to lands
does not give this Court a simple or satisfying
answer to the problem here presented. As the
Oregon Supreme Court has never been faced
with a situation as here involved, this Court must
anticipate what that Court would hold if
confronted with a controversy such as that
presented herein.
'* * * we will * * * not decide the point 'upon
authority alone, divorced from reason or public
policy.'' East St. Johns Shingle Co. v. City of
Portland, 195 Or. 505, 514, 246 P.2d 554, 558;
Amphitheaters, Inc. v. Portland Meadows, 184
Or. 336, 361, 198 P.2d 847, 5 A.L.R.2d 690.
Taking the above classic textbook explanation of
trespass, we find that a person may commit a
trespass by casting a grain of sand upon another's
land. This is supported in Oregon by Sleep v.
Morrill, 199 Or. 128, 260 P.2d 487, where a
small amount of limbs and brush were deposited
upon another's land and the plaintiff was
successful in recovering damages on the theory
of trespass. Once the courts found an invasion, at
least nominal damages were awarded, even if no
actual damage was done or even if the act
constituted a benefit to the person whose land
had been invaded by an unauthorized entry.
With this admonition this Court considers
In Oregon there appear to be only three reported
The Oregon Supreme Court, in two recent wellreasoned nuisance decisions, has stated:
141
cases (Sec 7(a)) where the court was faced with
a physical intrusion by air-borne matter. Upon
these three cases Reynolds asserts that the law in
Oregon stands for the proposition that the
settling of industrial solids and liquids on the
property of another does not result in a trespass.
The first of these cases, Amphitheaters, Inc. v.
Portland Meadows, supra, stands only for the
proposition that under the given facts of that
case the casting of light is neither a trespass nor
a nuisance. The two other Oregon cases cited by
Reynolds involved wind-borne ashes, cinders,
shavings, sawdust and smoke. . . . In neither of
these cases does it appear that the cause of action
was based upon trespass, but each case
affirmatively indicates that the moving party
relief solely upon the theory of nuisance. The
two torts are not mutually exclusive, and a
finding of a nuisance does not preclude the
existence of a trespass. State ex rel. Rudd v.
Ringold, 102 Or. 401, 202 P. 734, 735, contains
dicta to the contrary, [FN6] but that cause
involved a mandamus proceeding brought to
enforce a fire ordinance dealing with a public
nuisance and in no way involved a trespass.
holding of this Court, but a reading of those
cases leaves this Court with the impression that
the foreign jurisdiction was looking past the
initial question of whether there was in fact a
trespass and was concerned with balancing the
equities to determine the existence or
nonexistence of a trespass. That line of cases
this Court rejects, and holds that air-borne
liquids and solids deposited upon the Fairview
lands constituted a trespass. As early as 1911 the
Oregon Court recognized our changing society
and noted:
'Old things have passed away to a certain extent
and many changes have taken place in * * *
civilized life.' Templeton v. Williams, 59 Or.
160, 164, 116 P. 1062, 1063, 35 L.R.A.,N.S.,
468.
One of these changes is scientific development
which today allows the court, with the aid of
scientific detecting methods, to determine the
existence of a physical entry of tangible matter,
which in turn gives rise to a cause of action in
trespass under the Oregon Court's holding that
every unauthorized entry upon land of another
constitutes actionable trespass. Kesterson v.
California-Oregon Power Co., 114 Or. 22, 228
P. 1092.
Adams v. City of Toledo, 163 Or. 185, 96 P.2d
1078, is likewise an action based on nuisance,
with no claim or assertion of trespass having
been made. This Court is satisfied that if the
question were presented to the Oregon Supreme
Court today, it would find that nuisance and
trespass are not mutually exclusive torts.
The Oregon Supreme Court, in dealing with a
'blasting case,' reported in Bedell v. Goulter,
199 Or. 344, at page 362, 261 P.2d 842, at page
850, and speaking through Mr. Justice Lusk,
advises:
Decisions in other states have found that in the
case of air-borne matter physically intruding
upon the plaintiff's property the cause of action
rests in nuisance, not trespass. See Annotation
54 A.L.R.2d 764. Many of these cases are
distinguishable on the basis that plaintiff failed
to prove that any solid matter was deposited on
his land, while in others there is no indication
that the theory of trespass was presented to the
court. A few cases hold directly contra to the
'But logic, we are told by eminent authority, is
not 'the life of the law'. Basic to the problem is
'an adjustment of conflicting interests', Exner v.
Sherman Power Const. Co., 2 Cir., 54 F.2d 510,
80 A.L.R. 686, of the right of the blaster, on the
one hand, to pursue a lawful occupation and the
right of an owner of land, on the other, to its
peaceful enjoyment and possession.'– and further
142
(199 Or. at page 361, 261 P.2d at page 850)
plaintiff, and, therefore, in the commission of the
wrongful act by the defendant there was no entry
upon the plaintiff's land. We have found in this
instance a physical entry upon Fairview's lands,
and this factor distinguishes the instant case
from Norwood.
'* * * there is slight difficulty in holding that one
who engages in blasting operations which set in
motion vibrations and concussions of the earth
and air which reach to another's land-- no matter
how far distant-- and shatter his dwelling,
commits a trespass no less than one who
accomplishes the same result by the propulsion
of rocks or other material.'
Along the same rationale of Norwood is the
recent District of Washington case of Arvidson
v. Reynolds Metals Co., 125 F.Supp. 481.
Arvidson is similar factually to the instant case
in that the plaintiffs sought damages and
injunctive relief against Reynolds Metals Co. for
alleged escapement from its plant and
subsequent deposit of fluorine upon plaintiffs'
lands, with a resulting damage to cattle.
Judgment Boldt, hearing Arvidson
May I paraphrase Justice Luck as follows (199
Or. at page 363, 261 P.2d at page 850):
'This Court's conclusion that plaintiff's case rests
in trespass, though it may not have the support of
('the majority of') all of the Courts of this
country, are, I think, consonant with the trend of
present day judicial thinking and with modern
concepts of justice.'
'* * * reached the following basic conclusions on
the factual issues of the case: Plaintiffs have not
sustained the burden of producing a
preponderance of credible evidence to establish
(a) fluorine content in the forage on their lands
in amounts above nontoxic limits; * * * (c) that
plaintiffs' lands or cattle sustained fluorine
damage in particulars and amounts that can be
determined with reasonable or any certainty.'
(125 F.Supp. 486)
While the admitted escaping gaseous liquids and
solid fluorides escaping from Reynolds' plant
may not have been seen by the human eye, yet
they could be fairly accurately measured and
weighed in pounds and tons, and through
scientific laboratory tests the resulting toxic
flourine foreign matter contamination, as
distinguished from a systemic injury to
Fairview's forage, could be determined in parts
per million.
This language advises us that there was no entry
upon the plaintiff's lands. Reynolds cites the
Arvidson case as authority that the instant action
sounds in nuisance rather than trespass, and
Judge Boldt advises us that such is the law in the
State of Washington, through the following
language:
Reynolds cites Norwood v. Eastern Oregon Land
Co., 139 Or. 25, 5 P.2d 1057, 7 P.2d 996, which
it contends stands for the proposition that an
injury is a trespass only when it is immediately
and directly occasioned by, and is not merely a
consequence resulting from, the act complained
of.
'A review of the Washington cases cited in the
limitation decision, and in particular Suter v.
Wenatchee Water Power Co., supra (35 Wash. 1,
76 P. 298), leaves this court in no doubt but that
the Washington Supreme Court regards claims
of the nature of those presented in these cases as
being based on common law trespass on the case
In the Norwood case the defendant diverted
irrigation water to which the plaintiff was
entitled. The wrongful diversion occurred some
three to four miles distant from the lands of the
143
as distinguished from trespass quare clausum
fregit. The Suter case has been cited and quoted
many times by the Washington Supreme Court
without a single instance of deviation from the
language and rationale of that case in so far as
the elements distinguishing trespass from an
action on the case are concerned.'
continuing through December 31, 1955, is not
barred.
.....
Denial of Injunctive Relief.
This Court is of the opinion that throughout the
claim period Reynolds' acts and conduct
constituted a daily repeating trespass; however,
it does not appear from the evidence that an
award of compensatory damages for past
trespasses and any future trespasses will not
make Fairview whole. Furthermore, it does not
appear from the evidence that the heretofore
committed acts and conduct of Reynolds were
reasonably certain to be repeated, or that
Fairview would thereby be irreparably injured.
As pointed out in the agreed facts, Reynolds
progressively through the claim period improved
its fluorine control system throughout its plant,
as the ultimate approximate cost of
$2,139,185.00. Adopting the language of Judge
Boldt in the Arvidson case (125 F.Supp. 483):
Such is the law in the State of Washington, but
it is not controlling in the State of Oregon.
.....
It appears from a preponderance of the evidence
in this case that the direct resulting consequence
of Reynolds' trespass was physical damage and
injury to Fairview's dairy cow herd and its loss
of milk production.
The liability of the defendant can best be
illustrated by the New York case of Van Alstyne
v. Rochester Telephone Corp., 163 Misc. 258,
296 N.Y.S. 726. In that cause the defendant, in
repairing a telephone cable, dropped small
fragments of lead upon the plaintiff's land, which
the plaintiff's dogs ate. As a result of this
metallic diet, the plaintiff's dogs subsequently
died of lead poisoning, and the defendant was
held liable for their demise on the theory of
trespass. Following the general rule in the case
of tort-feasors, a trespasser is responsible for all
injurious consequences flowing from his trespass
which are the natural and proximate result of the
trespasser's tortious conduct. It matters not that
the injury complained of is removed in time
from the tortious invasion.
52 Am.Jur.,
Trespass, §§ 47, et seq.
'Whether the measures taken by defendant to
minimize the escape of fluorides from its plants
are the maximum possible consistent with
practical operating requirements is yet to be
determined, but apparently American industry
has not yet developed anything better.'-this Court is of the opinion that the injunctive
relief prayed for by Fairview should be denied.
Counsel for Fairview is requested to submit
within 30 days from the date hereof proposed
findings, conclusions and decree and judgment
in conformity herewith, also providing for a
finding of lump-sum compensatory general
damages in $------ amount for damage and injury
to Fairview's dairy cow herd as a whole, and said
herd's loss of milk production. Fairview is
granted costs of this action, taxed and fixed.
Controlling Statute of Limitations.
Since this Court has found that Fairview's cause
rests firmly in trespass and not in nuisance, ORS
12.080, supra (six years), controls, and,
therefore, Fairview's action for the entire claim
period commencing April 1, 1947, and
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FN1. ORS 12.080:
'Within six years. * * *
(3) An action for waste or trespass upon
real property; or
(4) An action for taking, detaining or
injuring personal property, including an
action for the specific recovery thereof;
shall be commenced within six years.
(Amended by 1957 c. 374 § 3)'
FN3. ORS 12.110:
'Within two years; * * * (1) An action for
assault, battery, false imprisonment, for
criminal conversation, or for any injury
to the person or rights of another, not
arising on contract, and not especially
enumerated in this chapter, shall be
commenced within two years; * * *'
FN6. 'A private nuisance is anything
done to the hurt, annoyance, or detriment
of the lands or hereditaments of another,
and not amounting to a trespass.'
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