CASE (pg.)
FACTS
TOPIC
NOTES
INTENTIONAL TORTS
Vosburg v. Putney (4)
Garratt v. Dailey (7)
Whitsindee v. U. Idaho
(9)
Talmage v. Smith (9)
D kicked P’s leg at school
Battery; consent
Whether D intended to harm is irrelevant, as long as D intended the act.
Introduces “eggshell P rule:” will be liable for unforeseeable injuries. Makes
wrongful intent culpable - hinting at transferred intent justification.
5yr old D pulls out chair from
under P and P falls, breaking hip
Battery and age
Despite age, D had knowledge, with substantial certainty, of what would
happen. All can be liable for intentional torts.
D was P’s piano teacher and
tapped her back; P suffered
nerve damage
Battery; consent
D intended the act that caused the injuries. Court brushed aside Rest., not
worrying about incorporating requirement of offensive intent, and that he
neither intended to harm or offend her.
D threw stick at trespassing X
but hit P
Battery;
transferred intent
P’s right to “recover was made to depend upon an intention on the part of
the D to hit somebody, and to inflict an unwarranted injury upon someone.
Under these circumstances, the fact that the injury resulted to another than
was intended does not relieve the D from responsibility.” RST §18(1)
Dougherty v. Stepp (9)
Trespass:
Nominal Damages
The action for trespass to real property protects P’s interest in the exclusive
possession of land and its improvements. It doesn’t even require showing of
minimal harm so long as D enters P’s land on, above, or below the surface.
Every unauthorized, thus unlawful, entry into another’s close is trespass.
From every such entry against the will of the possessor the law infers some
damage, if no more, the treading down the grass or the herbage.
*Today only intentional trespass entitles the P to nominal damages.
Smith v. Smith (10)
Trespass
Eaves of D’s house overhung P’s land - sufficient for trespass.
Neiswonger (10)
Trespass
D’s airplane flew <500 ft. over P’s land - sufficient for trespass.
Brown v. Dellinger (10)
Two minor D’s ignited fire in
P’s garage.
Trespass
“Undoubtedly they did not intend for the fire to escape from the grill . . . and
burn and damage the garage, house and contents . . . However their acts of
igniting an unauthorized fire on P’s premises made them trespassers, and
they must be held civilly liable for the consequences which directly flowed
from their unauthorized acts of igniting the fire in question.”
Cleveland Park Club v.
Perry (10)
D put ball in P’s pool drain,
causing pool damage & closure
Trespass
“The intent controlling is the intent to complete the physical act and not the
intent to cause injurious consequences.” Kid exceeded bounds of consent.
clkko t cl 1
CASE (pg.)
Maye v. Tappan (11)
Mohr v. Williams (12)
FACTS
D dug up gold-bearing earth
from P’s land; both P and D
though it was D’s land but it
was P’s.
Dr. D operates on P’s wrong ear
Allore v. Flower Hosp.
(14)
TOPIC
NOTES
Trespass
Ps weren’t entitled to vindictive or exemplary damages, but could recover
only the damages they had actually sustained by being deprived of the gold
taken by Ds. The Ds took property belonging to Ps, and thus injured them;
the amount injured is made no greater nor less by the fact that the act was
done without any malicious intent. Ds entitled to recovery for their services.
Battery; consent
Intent is obvious; the whole case hinges on consent. D’s act amounted to a
technical battery. If circumstances didn’t justify surgery without P’s
consent, it was wrongful & unlawful. Everyone “has a right to complete
immunity of his person from physical interference of others, except
in...privilege; and any unlawful or unauthorized touching of another, except
it be in the spirit of pleasantry, constitutes an assault and battery.”
Battery; consent
Medical treatment is lawful under doctrine of implied consent if medical
emergency requires immediate action to preserve patient’s health or life.
Kennedy v. Parrott (16)
Dr. D operated on P for
appendectomy and took care of
cysts too
Battery; consent
P’s surgical consent is “general in nature and the surgeon may extend the
operation to remedy any...condition in the area of the original incision,
whenever he, in the exercise of sound professional judgment, determines
that correct surgical procedure dictates and requires such an extension...”
O’Brien v. Cunard (16)
P received unwanted vaccination
without voicing protest
Battery; Implied
consent
If P’s behavior indicated consent on her part, dr. was justified in his act,
whatever her unexpressed feelings were. In determining consent, he could
only be guided by overt acts and the manifestations of her feelings.
17-20
Hudson v. Craft (22)
Hart v. Geysel (25)
Substitute consent
D promotes fight b/t P and X
P’s husband killed in prizefight
Battery;
consent to illegal acts
Consent to illegal
acts & AOR
If legislative purpose in making D’s conduct a crime is to protect a class of
persons (includes P) against their own poor judgment, P’s consent will
generally be ineffective, even in jds not following majority rule that crimes
involving a breach of the peace render P’s consent ineffective.
“Volunteer suffers no wrong;” and AOR; “no action shall arise out of an
improper or immoral cause.” You can’t profit from illegal conduct.
Hackbart v. Bengals (25)
D elbowed P in football game
Athletics & consent
The D’s rule violation was an intentional one outside the scope of consent.
Turcotte v. Fell (27)
D violated track rules and hurt
jockey P; P sued in negligence
Athletic injuries &
consent
Few courts have allowed recovery for negligent / reckless rule violations;
they’re w/in “the known, apparent and foreseeable dangers of the sport.” No
consent regarding “flagrant infractions unrelated to the normal method of
playing the game and done without any competitive purpose.”
clkko t cl 2
CASE (pg.)
FACTS
TOPIC
NOTES
McGuire v. Almy (30)
Nurse P injured by insane D in
her charge
Insanity defense
Policies: 1. The person who occasioned the loss should bear it; 2. Induce
those interested in the estate to take due care; 3. Avoid fraud claims of
insanity. If the crazy intent includes the intent to commit the harm, that’s
enough. Since defenses hinge on “reasonable,” the insane have a problem!
Anicet v. Gant
P asylum worker injured by D
insane person in P’s care.
Insanity defense
Opposing McGuire. Here D was already in the safest place possible; society
had done all that it could to protect against D. Because D was confined,
we’re saying D isn’t responsible at this point; duty shifts to those monitoring
D. P consented by working there.
Insanity Defense
Insane person should be liable, since he is the one that occasioned the harm.
Seal v. Snow
Courvoisier (34)
Police officer P shot by D when
D thought P was attacker
Self-Defense
If D had reasonable (objective) belief (subjective) that P was endangering
his life with great bodily harm he was privileged to use same level of force.
Morris v. Platt (36)
D is attacked by X and Y, he
defends by shooting and hits P.
Self-Defense;
innocent bystander
If D is entitled to use reasonable force in self-defense against X, but injures
P, he is privileged against P assuming he didn’t act negligently.
Boston v. Muncy (37)
M’Ilvoy v. Cockran (38)
Bird v. Holbrook (40)
Self-defense;
Degree of force
Defense of Others
Many jds, and Roman law, said that if coming to defense of others, you’d
better be right, or be liable. Restatement says belief must only be reasonable.
C was tearing down M’s fence;
M wounded C severely
Defense of Property:
“Gentle Hands”
Where one enters the close without actual force, although his entry is a force
in law, “there must be a request to depart before the possessor can lay hands
upon him and turn him out.” “In defense of possession a wounding cannot
be justified.” Once force is used to break into the property, gentle hands
does not apply. Gentle hands and old first force level are now both
subsumed into our first level, judged by reasonable response standard.
D set spring gun to protect
walled garden w/valuable plants.
Defense of Property
D intended to injure P since only way to catch was to injure - intent was in
purpose (lack of sign; act: he loaded it), not knowledge. D wouldn’t have
been so privileged against trespasser if D had been there in person.
Defense of Property
Notice was a defense under consent theory. Not good law.
Defense of Property
Excessive force. Homeowner does not have privilege to use deadly force
against a mere trespasser. Casual trespassers (not here) must normally be
warned even before non-deadly force is used. Intent for battery is satisfied
by an intent to commit battery OR assault (as here w/gunshot).
Ilott
Brown v. Martinez
D entitled to use reasonable degree of force (fists) to prevent P’s attack,
even though D didn’t believe he was in danger of serious bodily harm.
P trespassed on D’s property and
D tried to scare off P+ by firing
gun; accidentally shot P.
clkko t cl 3
CASE (pg.)
FACTS
Katko v. Briney (44)
D used shotgun trap to protect
vacant shack
Kirby v. Foster (46)
P sues employer D for battery
while P was recovering funds to
which he has honest claim of
right.
TOPIC
NOTES
Defense of Property
Level of appropriate force. “The only time when such conduct of setting a
‘spring gun’ or like dangerous device is justified would be when the
trespasser was committing a felony of violence or a felony punishable by
death, or where the trespasser was endangering human life by his act.” Thus,
doesn’t matter what your intent was when you set it; matters who you catch.
Recapture of Chattels
Right of defense and recapture involves: 1. possession by owner; 2. a purely
wrongful taking, without claim of right. If one has entrusted property to
another who honestly though erroneously, claims it as his own, owner has no
right to retake it by personal force. P had no criminal intent - the money was
given to him voluntarily. *May be decided differently if court thinks owner
only parted with custody, not ownership, of $ - then reasonable force OK.
Possession only continues through hot pursuit.
48-49
Entry can never be peaceable if not consented to by the owner.
Ploof v. Putnam (50)
P moors boat on D’s dock in
storm. D’s servant releases boat;
P’s person & boat are damaged.
D responsible for damages - had
no right since P had privilege.
Necessity
Necessity will justify entries upon land and interferences with personal
property that would otherwise have been trespasses. This doctrine of
necessity applies with special force to the preservation of human life. One
assaulted and in peril of his life may run through the close of another to
escape from his assailant.
Vincent v. Lake Erie
(52)
D preserved their ship in a
storm, at expense of P’s dock
Necessity
Incomplete privilege and must pay damages for preserving boat at dock’s
expense.
Post v. Jones (57)
Necessity &
bilateral monopoly
E.g. US v. Caltex
(57-59)
Public Necessity
Salvor may not take advantage of his position, availing himself of another’s
calamities to make an unreasonable bargain via extortion.
Public necessity is complete privilege (D doesn’t have to pay damages)
where one acts reasonably and with good faith. Ex. Public officials and
destruction of some property to preserve others (like spreading fire).
I. de S. v. W. de S. (61)
D struck tavern door w/ hatchet
and tried to strike P’s wife
Emotional & Dignit.
Harms: Assault
Tuberville v. Savage
(62)
P said if no judges, he wouldn’t
take language from D; put his
hand on sword; D beat him up
Emotional &
Dignitary Harms:
Assault
Contrary to fact.
D pointed unloaded gun at P
Emotional &
Dignitary Harms:
Assault
Whether there is an assault depends on apprehensions created in mind of
person assaulted more than upon secret intentions of assaulter. Doesn’t
matter that gun was unloaded.
Allen v. Hannaford (62)
And thus it was noted that one may recover damages for assault.
clkko t cl 4
CASE (pg.)
FACTS
TOPIC
Assault
NOTES
Brooker v. Silverthorne
(64)
D threatened P on phone - he’d
break her neck if he were there.
Words did not amount to a threat; nothing expressed an intent to carry
through and it was contrary to fact.
Alcorn v. Mitchell (65)
D spat in P’s face
Offensive Battery
Juries may give vindictive damages where there are circumstances of malice,
wilfulness, wantonness, outrage and indignity attending the wrong.
Respublica v.
DeLonchamps (66)
D tapped P’s cane
Non-Harmful
Offensive Battery
The insult is more to be considered than the actual damage.
Bird v. Jones (67)
P tries to walk through public
highway closed by D for boat
race
False Imprisonment
Imprisonment is more than mere loss of power; it includes restraint within
some limits defined by an exterior power. Forcing a detour is not
imprisonment, regardless of whether D’s blocking was lawful.
Griffin v. Clark (70)
Ds put P’s suitcase in their car
False Imprisonment
Ds did jointly restrain P in her right of freedom of locomotion.
Herring v. Boyle (70)
D kept P at school, telling mom
to pay owed fees to get him.
False Imprisonment
P could not recover; failed to show he was subjected to any special
restrictions or that he was conscious of restraint or confinement.
False Imprisonment
A person could be imprisoned while drunk, asleep, or insane, and the
question of his mental state at the time of the imprisonment should go only
to the issue of damages, not to liability. Contrary to Herring.
P, 70, mistakenly detained for
shoplifting; D+1 ‘loomed up,’
grasped arm and said P better go
back. P suffered myocardial
infarct.
False Imprisonment
P had no choice. Any demonstration of physical power which, to all
appearances, can be avoided only by submission, operates as effectually to
constitute an imprisonment, if submitted to, as if any amount of force had
been exercised. If a man is restrained of his personal liberty by fear of a
personal difficulty, that amounts to false imprisonment.
D lied, telling P her husband
was injured. P suffered shock,
vomiting, weeks of suffering
IIED: Extreme and
Outrageous Conduct
D wilfully did an act calculated to cause physical harm to the P and wilful
injuria is in law malicious; therefore an intention to produce such an effect
must be imputed, since all but most indifferent would so suffer.
Meering v. Grahame
(71)
Coblyn v. Kennedy’s
(71)
Wilkinson v. Downton
(76)
Bouillon v. Laclede (77)
D had nasty exchanges with P’s
nurse and P overheard, suffering
chills from door, miscarriage, &
permanent health impairments.
80-81
Hustler v. Falwell (83)
F sued H for IIED relating to
parody article re: first time sex.
IIED: Parasitic
Damages
P is assured peaceful repose of home against unwarranted intrusion. Fright
and mental anguish are fine elements of damage if arising out of trespass
upon P’s person or possession and may be included in a suit for the trespass
if P chooses; or if physical injury results a cause of action arises from
trespass for compensation for that physical injury and its consequences, even
if not seeking compensation for the original wrong.
IIED
Strong arm/bill collect/outrageous prof. conduct/racial & sexual harassment
IIED &
public figures
First amendment protection for parodies, cartoons, satire. Might not be
considered truly outrageous.
clkko t cl 5
CASE (pg.)
FACTS
TOPIC
NOTES
STRICT LIABILITY
Baker v. Snell (639)
P’s dogwalker employee let it
off leash and sicced it on fellow
employee.
SL & Animals
If malice, master not liable. If one keeps an animal with ferocious nature, or
an animal from unferocious class, but which the owner knows is dangerous,
he must keep it secure at his peril. Whoever keeps an animal accustomed to
attack and bite mankind, with knowledge that it is so accustomed, is prima
facie liable, without any averment of negligence or lack of care. The gist of
the action is keeping the animal after knowledge of its mischievous
propensities. No defense unless victim brings on attack himself.
Spano v. Perini (647)
D blasted to construct NYC
bridge; shock waves injured P’s
property.
SL & Blasting;
UltraHazardous
Activity
Damages due to shock waves would be considered case in old system and
that required showing of negligence. Public policy promotes building;
question is not whether activity was liable, but who should pay. Involves a
substantial risk of harm and that shouldn’t be imposed w/o compensation.
Madsen v. East Jordan
Irrig Co. (659)
D blasting caused P’s minks to
eat young.
SL & Causality
The damages were too remote. Must be damages ordinarily resulting from
the activity: §519 says must be the kind of harm the possibility of which
makes the activity abnormally dangerous. §524 says no SL if harm would
not have resulted but for P’s abnormally sensitive activity.
Indiana Harbor Belt RR
v. Am. Cyanamid (660)
Toxic chemical leaked during
transportation.
SL & Abnormally
Dangerous Activity
Siegler v. Kuhlman
(667)
Transportation of gasoline on
highways.
Vogel v. GLEC (669)
Bamford v. Turnley
(677)
P’s cows hit with stray voltage
by D’s electricity. Ps alerted
them but let it continue for yrs.
Accident wasn’t due to inherent dangers; due to lack of care and thus would
be deterred by threat of liability for negligence. Should pick a liability
scheme that controls the class of accidents most effectively; not one that
leads to the deepest pocket. Shipping of this material isn’t that hazardous.
Gasoline usually isn’t that bad, but when transported takes on hazardous
characteristics. Accident involving it would lead to destruction of evidence,
thus negligence impractical.
Private Nuisance
Reqesting electricity doesn’t negate nuisance invasion element - they didn’t
request stray voltage. Jury may find that stray voltage may invade person’s
right to use and enjoyment, thus valid for nuisance. Although the invasion
was intentional, it doesn’t justify “intentional invasion nuisance” since they
didn’t intentionally impose excess stray voltage (and stopped once knew).
Private Nuisance:
Live and Let Live
“Live and Let Live Rule.” Acts necessary for the common and ordinary use
and occupation of land may be conveniently done, even if nuisance, without
cause of action, since neighbors impose these on each other for mutual
advantage - reciprocal nuisances not actionable without malice.
clkko t cl 6
CASE (pg.)
FACTS
Campbell v. Seaman
(679, 689)
Fountainebleau v. Eden
Roc (679)
Prah v. Maretti (682)
TOPIC
Locality Rule
NOTES
People in organized communities suffer some damage from each other and
are compensated by advantages of civilization. What is reasonable in a given
area will depend on the locality; what’s a nuisance in A may be OK in B.
D’s proposed addition will block
P’s pool in afternoon.
Private Nuisance
Ancient Lights rule repudiated. Property owners may put their property to
any reasonable and lawful use if not depriving neighbors of any enjoyment
or right recognized and protected by law; don’t have right to light and air.
Favors progress and building. It’s OK if spite/malice is only one element.
D’s proposed house will block
P’s solar panels
Private Nuisance
Opposes Fountainebleau. The access to sun is not aesthetic here, it’s for
progress in which society has a stake, a search for other energy sources.
Rationalized with the “reasonable use” nuisance standard –> can go to jury.
Private Nuisance
No reason, in principle, nuisance can’t apply to light and air. Here though, D
proposed to do no more than P had done years before. Reciprocity.
Tenn v. 889 Assoc.
(683)
Rogers v. Elliott (684)
D’s bellringing caused P’s
injuries after being asked to stop
Private Nuisance &
Extrasensitive Ps
One may use land if use is reasonable under circumstances. Measure noise
made based on offensiveness to average person, not to a peculiarly sensitive
one; otherwise character of business may change from legal to illegal based
on the people that move in. D is inhumane but not liable without malice.
Belmar Drive-In v. Ill.
Hwy (687)
D’s lights reduced value of P’s
theater.
Private Nuisance &
Extrasensitive Ps
Extrasensitivity regarding P’s activities and property damage, rather than P’s
condition or injuries.
Ensign v. Walls (688)
D dog breeder surrounded by
incoming residential Ps.
Private Nuisance
D alleges coming to the nuisance since she’d been there so long. Carrying on
a nuisance for years doesn’t entitle continuation once community changes that would be controlling all the land around you for all time. Allowing D to
stay will impose escalating nuisance as more people move in; she must
relocate and is compensated her property’s rise in value.
Bove v. Donner-Hanna
(691)
P builds house in industrial area
Private Nuisance
Coming to the nuisance. Moving into an area specifically zoned for industry
precludes cause of action when more industry arises.
Boomer v. Atl. Cement
(694)
Factory fumes injured P’s health
and lessened property value.
Private Nuisance &
Remedy
Establishing standards would involve lengthy investigations and
reevaluation as technology changes; buying rights is difficult with many Ps permanent damages are allowed where loss recoverable would be small
compared to cost of removal of the nuisance. Once paid, inhibits innovation
incentives. Contracting around property rights here: business more valuable
to D than homes are to Ps. Compensation should be loss in property value.
Dissent argues it’s the taking of property for private use.
clkko t cl 7
CASE (pg.)
FACTS
TOPIC
NOTES
Madison Ducktown
(701)
Ps sought to shut down
economically important D.
Private Nuisance &
Remedy
Balancing equities. D can’t change methods and can’t move anywhere else;
they would be deprived of all rights. More efficient to pay damages; the land
is more valuable to D which we know because they offer to buy it all.
Spur v Del E. Webb
(704)
D operated cattle feedlot and P
put housing development
Private Nuisance &
Remedy
Hard to reconcile w/Ensign - court is making P pay for D’s relocation via
purchased injunction. Difference is that here it’s one powerful P that
caused the sudden change in community makeup, imposing detriment on D.
Anonymous (706)
Public road was blocked to all
but especially affected P.
Public Nuisance
P compensated because his only entrance to his house was cutoff. A special
and particular injury to this P enabled private suit for public nuisance.
Public road closed to make
railway.
Public Nuisance
The harm suffered by P does not differ from that suffered by the public in
general. For private cause of action, P would need a particular, personal
affect on his person or property, not just a greater degree of same harm.
Smith v. City of Boston
(707)
STRICT LIABILITY AND NEGLIGENCE
The Thorns case (86)
D trimmed valuable thorns and
they fell on P’s land. D retrieved
them, trampling P’s land.
Trespass
Millen v. Fandrye (89)
D’s dog chased P’s trespassing
sheep off D’s land and beyond;
sheep suffered damages.
Trespass;
“Best Efforts”
It was lawful to chase the sheep off his own land and he made best efforts to
recall the dog; therefore trespass does not lie.
Tithe case (90)
D thought P’s corn was at risk
via wildlife so put corn in P’s
barn. Corn perished there.
Trespass;
Necessity
D had good intent but too bad. If corn had perished via beasts in field, P
would have had recovery against owners of beast, thus not lawful to move it.
Unlike fire or flood, since P would not have remedy.
Weaver v. Ward (92)
While skirmishing, D wounded
P accidentally and unwillfully.
Assault and Battery;
inevitable accident
No man shall be excused a trespass (trespass and case system) unless it is
judged he is utterly without fault (like if A uses B’s hand to slap C).
Smith v. Stone (93)
D says trespass was involuntary.
Trespass
It’s the trespass of the party that carried D upon P’s land; not D’s trespass.
Gibbons v. Pepper
(94, 135)
D called out warning to P; his
frightened horse still struck P.
Inevitable accident;
Battery
He who spurs the horse is guilty of the resultant battery. Animal could thus
be passive instrument of any third party inciting it.
Intersection collision.
Inevitable accident,
modern
Defense of unavoidable accident only worked when SL would be imposed
but for inevitable accident. Now neg. principles regarding standard of care.
Butigan v. Yellow Cab
(95)
D did not plead his best endeavor to hinder thorns falling on P’s land. In
addition to letting them fall, he then trespassed to pick them up, to his
advantage since they were valuable.
clkko t cl 8
CASE (pg.)
FACTS
TOPIC
NOTES
Scott v. Shepherd (98)
D threw lighted squib into
crowd; through chain of people,
it injured P’s eyes.
Trespass and Case;
Self-Defense
Nares: whether direct or indirect, violation of statute is a trespass.
Blackstone: No immediate injury passed from D to P, no action.
DeGrey: Injury was direct and immediate act of D. Indiscriminate
mischief was intended. Doer of unlawful act is doer of all that follows.
Intermediate people removing danger were justified; not free agents.
Guille v. Swan (102)
D balloon landed on P’s garden,
having called to P’s servant for
help, prompting nearby crowd to
trespass onto P’s land also.
Trespass and Case
D sought to limit his damages to that which he caused, not the crowd. “If the
act causes the immediate injury, whether it was intentional or unintentional,
trespass is the proper action to redress the wrong.” He was responsible for
foreseeing ordinary and natural curiosity and aid. Placing himself in the
situation voluntarily = direct request for crowd to follow.
Williams v. Holland
(104)
Watershed case est.relationship b/t trespass, case & neg. Negligence became
essential for recovery in highway cases for direct or consequential damages.
Stanley v. Fall (105)
In trespass, negligence issue originally came into lawsuit through back door
with “inevitable accident” defense. In case, P had to plead and prove neglig.,
even as D had to show himself free from fault in cases of direct harm.
Brown v. Kendall (106)
Rylands v., Fletcher
(111)
D was trying to break up
dogfight and hit advancing P.
D constructed reservoir on his
land above precariously emptied
mines. Water broke through and
flooded P’s land w/o fault.
Strict Liability &
Negligence;
Battery & Trespass
If D did a lawful act and unintentionally hit P, then unless it also appears to
jury’s satisfaction that D is chargeable with some fault, negligence,
carelessness, or want of prudence, P fails to sustain burden of proof, and
can’t recover. And so the burden of proving fault shifts to P.
Strict Liability
People have right to be free from foreign water on their land. Nuisance is
not in the reservoir but in the escaping water. One who for his own purposes
(see Carstairs for mutual purpose) brings and keeps on his lands anything
likely to do mischief if it escapes, must keep it at his peril, and is prima facie
answerable for all damage which is the natural consequence of its escape.
For the damage, however skillfully and carefully the accumulation was
made, the Ds were certainly responsible - regardless of due care. See
Nichols if due to act of God. Rylands makes exception if on public land.
Strict Liability
Storage of water in large cisterns is a natural use of the land in Texas, thus
Rylands is inapplicable.
Strict Liability
Question of “non-natural use.” In Rylands it referred to the opposite of manmade. This case reads non-natural as “unreasonable or inappropriate.”
Toilets are not only reasonable, but have become almost necessary. If
something is not inappropriate to place and time and has a high value to
society, it’s silly to impose strict liability.
30 states accept Rylands and 7
reject it. (127)
Turner v. Big Lake Oil
(126)
Rickards v. Lothian
(120)
D has lavatory in his business
building. Third party stuffed it
up and flooded P’s stock.
clkko t cl 9
CASE (pg.)
FACTS
TOPIC
Cambridge v. Eastern
(121)
D stored chemicals which leaked
through aquifer to P’s land.
Strict Liability
The storage of chemicals in substantial quantities is an almost classic nonnatural use and will be subject to imposition of strict liability. On appeal,
found that such harm was not foreseeable and Rylands rule should not be
exempt from general test of reasonable foresight.
P’s horses got spooked by train
and ran over D’s lamppost.
Strict Liability &
Negligence
Explicitly rejected Rylands. D was using ordinary care but it was his horses
that escaped and did damage against his will. Found for D.
Losee v. Buchanan (125)
D’s boiler exploded and fell on
P’s land, causing damage. D was
using due care.
Strict Liability &
Negligence
Doctrine of reciprocal risks. Becoming “a member of civilized society, I
am compelled to give up many of my natural rights, but I receive more than
a compensation from the surrender by every other man of the same rights.”
Powell v. Fall (127)
Sparks escaped from D’s
traction engine injuring P’s hay.
D had been using due care.
Strict Liability
Followed Rylands; brought in something unnatural, keeping it at his peril if
it escapes and does injury. It’s just that if a person uses a dangerous
machine, he should pay for the damage caused; if reward which he gains for
use of that machine will not pay for damage, it’s mischievous to the public
and ought to be suppressed. The loss ought not be borne by the community
or injured P. Question of economic justification and balance test of utility:
should this activity be taking place?
Strict Liability
Overruled by Powell. Because D operated the railroad under statutory
authorization, P had to show negligence to hold it liable for damages.
Brown v. Collins (123)
Vaughn v. Taff Vale Ry.
(129)
NOTES
Stone v. Bolton;
Bolton v, Stone (138)
P got hit by flying cricket ball
hit over wall of D club. Note
that P was walking on public
land when she was hit
(exception in Rylands for use
on public highway - would use
negligence analysis there
instead of SL).
Strict Liability &
Negligence
Intermediate court says since it had happened before, it was foreseeable & D
was under duty to prevent it. Appeals ct uses cost-benefit analysis: “test to
be applied here is whether the risk of damage to a person on the road was so
small that a reasonable man in [D’s position], considering the matter from
the point of view of safety, would have thought it right to refrain from
taking steps to prevent the danger.” Noted that a reasonable man considering
the matter from the point of view of safety shouldn’t disregard any risk
unless it is extremely small.
Rinaldo v. McGovern
(143)
Golf ball soared off golf course
and shattered P’s windshield as
P driving down public street.
Negligence
Can’t be held liable for poorly hit tee shot. No duty to warn people not in
line of sight who wouldn’t have heard anyway. P has to show golfer failed
to exercise due care w/proof of unreasonably inaccurate aim.
Hammontree v. Jenner
(148)
D suffered epileptic seizure,
crashing car through bicycle
shop wall, causing personal
injuries and damage.
Negligence &
defense
Trial ct. refused to give SL instructions. Imposing SL w/vehicles would
upset entire court system. Jury instruction was bad because didn’t allow for
drivers suddenly upset by condition they had no reason to anticipate or
prevent. This driver knew of the condition and took all reasonable care.
clkko t cl 10
CASE (pg.)
FACTS
TOPIC
NOTES
NEGLIGENCE
Vaughan v. Menlove
(155)
D placed hay rick too close to
P’s property and refused to fix
or move it despite warnings.
Reasonable Person
No excuse will be given for stupidity. D thinks it shouldn’t be negligence as
long as he acted to the best of his judgment. Precedent argument: objective
reasonable person standard has always been the rule and “there is no other
that would not be open to much greater uncertainties.” Allowing for D’s
stupidity would “afford no rule at all. Everyone “takes upon himself the duty
of so dealing with his own property as not to injure the property of others.”
Beaulieu v. Finglam
(159)
D’s servant set a fire in course
of duty but carelessly watched
it, destroying P’s property.
Liability for fire at
common law
I shall answer to my neighbor for each person who enters my house by my
leave or my knowledge, or is my guest through me or my servant. If a man
from outside my house and against my will starts a fire where my neighbor’s
house is burned I shall not be held bound to them.
Tuberville v. Stamp
(159)
D improvidently guarded a fire
in his field, burning P’s property
160-161
Roberts v. Ring
Negligence
At his peril he must make sure his negligence does not injure his neighbor,
even though the fire was used purposely in the field and not the house.
Guest Statutes
D (77) with defective sight and
hearing struck P (7) with his car.
Stevens v. Veenstra
(164)
Negligence &
Adjustments
Question of fact for jury regarding D’s negligence. Either he didn’t see P
because he negligently looked out, or saw P but negligently stopped late.
Regarding CN, boy held to standard of like boy of same age & maturity. No
adjustment for D’s age - thus SL, holding him to standard of average driver.
Negligence:
Adjustments for
Beginners & Experts
The use of a lower standard of care for beginners encourages them to
undertake activities that might not otherwise be attempted, but exacts that
subsidy from the people unfortunate enough to be hurt, not from the public.
Dellwo v. Pearson
(166, 168)
12 year old operating speedboat
Negligence:
Adjustment for age
Unfair to public to permit minor in the operation of a motor vehicle to
observe any other standards of care than those expected of all others.
Daniels v. Evans (165)
P drives motorcycle into D’s car
and dies.
Negligence:
Adjustments for age
Minors are entitled to be judged by standards commensurate with age,
experience and wisdom when engaged in age-appropriate activities.
Legislature seems to intend no age adjustment. Vehicles should not be
operated to the public hazard with less than an adult degree of care.
Breunig v.A.F.Insurance
(170)
D suffered an insane
hallucination, causing accident.
Negligence:
Insanity Adjustment
Insanity is a defense in intentional torts if it affects that person’s ability to
understand and appreciate the duty which rests upon him OR affects ability
to control car in ordinarily prudent manner. There also must be no
forewarning - like a sudden physical attack Jury could infer foreknowledge.
clkko t cl 11
CASE (pg.)
Fletcher v. Aberdeen
(173)
Lyons v. Midnight Sun
(175)
Robinson v. Pioche
(177)
FACTS
Blind P fell into D’s hole not
protected by barricades.
Speeding driver D runs into P’s
van when P pulls into lane and
kills P.
D co. left uncovered hole and
drunk P fell in.
Denver v. Peterson (177)
Blyth v. Birmingham
(179)
D’s pipes were iced shut and
exploded, causing damage to P’s
property. It took months to
determine the unforeseen cause.
Eckert v. LIRR (181)
Cooley v. Pub. Serv. Co.
(187)
TOPIC
Negligence:
Adjustment for Blind
Negligence:
Reasonable person
NOTES
Removal of barricade violated continuing duty to maintain sidewalk safety.
Public streets “are for the beggar on his crutches as well as the millionaire in
his limousine.” We won’t force the blind to see at their peril. They must
only exercise the degree of care which an ordinarily prudent person so
afflicted would exercise under the same circumstances.
D is not liable because he acted as a reasonable person would have in such
an emergency. The standard of care is always how a reasonable person
would act under the circumstances. Superfluous instruction was confusing.
Negligence
Can’t choose your P. All are entitled to a safe street. Intoxication can’t
excuse D’s gross negligence.
Negligence
The rich and the poor are held to the same standard of care.
Negligence:
Cost of knowledge
D did not fail to do something that a reasonable person would do. A
reasonable person would act with reference to average circumstances of the
temperature in ordinary years - not with unforeseen severities. No
reasonable man could have provided against this contingency. P was under
as much duty as D to remove the ice. Cost of knowledge!!!!
P jumped in front of D train to
save child. P died.
Negligence:
Cost-Benefit
Cost-benefit analysis. Weigh value of loss (child) with probability he’ll die
(high) against cost (risk of P dying). If P thinks he can save child, he should
if he can without incurring great danger to himself. It was his duty to do the
cost-benefit analysis and if his belief that he could save child was reasonable
he wasn’t negligent and contrib. neg. is off the table. Not a negligent
decision here unless rash or reckless. D was acting negligently: speeding, no
advance whistle and since it was running backward, no obstacle remover.
D’s power line broke, hit
telephone wires, causing loud
noise on P’s phone. P suffers
neurosis and physical injuries.
Negligence:
Cost-Benefit
P says occurrence, and thus injury, was foreseeable; negligence in failing to
take precautions. Court says the urged precaution would lessen likelihood of
danger to such Ps, but would disproportionately increase electrocution
danger to pedestrians. D’s duty of care to P is less than to those pedestrians can’t be to both since they’re in conflict, so pedestrians win. Shifting the
duty here would conflict with reason. Burden was on P to show
practicability of a device that would afford protection against her injury
without increasing risk to pedestrians - but then consider cost of knowledge.
clkko t cl 12
CASE (pg.)
U.S. v. Carroll Towing
(190)
FACTS
D barge broke away from group
and hit tanker. Question of
contributory neg. of the barge
Moison v. Loftus (192)
TOPIC
NOTES
Negligence:
Cost-Benefit
HAND FORM ULA! No actual numbers though. Owner’s duty a function
of three variables: probability of event, the gravity of resultant loss, and the
burden/cost of prevention. It is not always sufficient that a bargee has
attached barge to pier in his absence. It was a fair requirement to have a
bargee aboard - not necessarily THAT bargee, just A bargee.
Negligence;
Cost-Benefit
Hand clarifies his formula by admitting that it’s approximate; “all such
attempts are illusory, and, if serviceable at all, are so only to center attention
upon which one of the factors may be determinative in any given situation.”
Paris v. Stepney (192)
One-eyed P was not provided
with safety goggles by D
employer.
Negligence:
Cost-Benefit
Focus on the gravity of loss. For a normal man, the gravity of loss would be
nowhere near as high as for a one-eyed man. Although the risk of harm was
the same for both, the gravity of harm shifted the formula against D.
Andrews v. UAL (197)
Briefcase fell from overhead
compartment and injured P.
Negligence:
Cost-Benefit and
common carriers
P theory: injury was foreseeable and should’ve been prevented. Case turns
on whether hazard is serious enough to warrant more than a warning. Due to
heightened duty of common carrier, even “small risk of serious injury to
passengers may form the basis of liability if that risk could be eliminated
‘consistent with the character and mode of airline travel and the practical
operation of that business.’” Nets are not prohibitive and given UAL’s
awareness of hazard, maybe didn’t do enough. Jurors capable of deciding.
Kelley v. Manhattan Ry.
(199)
P slipped on snow accumulated
on stairs leading to D’s station
Negligence:
common carriers
Railroad didn’t owe P duty of utmost care. Utmost care is required toward
passengers because “neglect of duty in such a case is likely to result in great
bodily harm, and sometimes death, to those who are compelled to use that
means of conveyance” but here non-passenger was only approaching train.
Bethel v. NYTA (200)
P sat down on D bus seat and it
collapsed.
Negligence:
common carriers
Overturned Kelley. “not practicable for a court to fix and declare as a matter
of law . . . the degree of care that should be exercised under the conditions
and circumstances peculiar to any special case; that duty rests with the jury
to be performed under proper instructions from the court.” Reasons for
common carrier utmost care: perceived ultrahazardous nature of the
instrumentalities of public rapid transit; the passengers’ total dependency
upon carrier for precautions [level of knowledge].
clkko t cl 13
CASE (pg.)
FACTS
TOPIC
NOTES
Titus v. Bradford (201)
D railroad mis-secured car with
rounded bottom; it rocked and P
jumped off onto track and was
hit by next car. P died.
Custom
P theory: company was negligent in using standard cars on narrow gauge
road. Court fails to find negligence. This is a regular part of the business. P
fails to show the method here was dangerous or unusual. Even if dangerous,
not necessarily negligent. “Master is not bound to use newest and best
appliances” just those of ordinary character and reasonable safety. “Juries
must necessarily determine the responsibility of individual conduct, but they
cannot be allowed to set up a standard which shall, in effect, dictate the
customs or control the business of the community.” Challenged: following
custom impedes innovation - pushes old method to avoid negligence. (p.207)
Mayhew v. Sullivan
(204)
P employee fell into D’s bucket
hole in mine
Custom
P theory: carelessly & negligently made hole without rail, barrier, light or
notice. Experts and custom don’t matter - was wholly without ordinary
prudence. Custom and average have no place in definition of ordinary care.
The TJ Hooper (205)
TJ operator lost barges & cargo
in storm.
Custom
P theory: tugs should have reliable radios for reception of storm warnings.
Trial ct. said there was a duty since it was universal practice. Hand noted not
customary: employees had them for personal use but they weren’t furnished
or supervised by owners. An industry may not set its own tests and is subject
to ordinary care; “there are precautions so imperative that even their
universal disregard will not excuse their omission.” Negligence.
Lucy v. Perotti (210)
Insane P admitted to D hospital;
jumped through window & died.
Custom & Private
Rules of Conduct
Lama v. Borras (211)
Dr. D failed to prescribe
conservative treatment to P with
back problem.
Custom &
Medical Malpractice
P could admit D’s internal rules on standard of care. Jury could conclude
D’s failure to observe the standards it established for itself was negligence.
P theories: no conservative treatment, premature discharge, neg. surgery;
improper infection management. Jury could have concluded failure of
conservative treatment was negligent. P must establish relevant national
standard of care. Physicians are liable for harms associated with
foreseeable risks.
Kalsbeck; Hood (216)
Standard of Care
Dr. using modes possessed and used by reasonable and prudent drs. in
similar communities in like circumstances will not be liable.
Jones v. Chidester (216)
Two Schools of
Thought
Quantity v. quality? Two schools of thought provides a complete defense.
Must be a considerable number, recognized and respected in field, sufficient
to create second school. Publishing helps.
Hirahara v. Tanaka (217)
Dr. D put anesthesia in P that
blocked brain function. D cont’d
surgery after warning. P died.
Error in Judgment
It’s a breach of duty of care for dr. to make erroneous choice if he should
have had knowledge at the time that it was erroneous.
clkko t cl 14
CASE (pg.)
FACTS
TOPIC
NOTES
McBride v. U.S. (219)
Intern sent P patient home after
misreading EKG.
Standard of Care
Morlino v. Med. Ctr.
(219)
Dr. D prescribed Cipro to
pregnant woman P against PDR;
she lost her baby.
Custom
PDR is useful for standard of care when supported by experts. Alone, they
do not establish standard of care. Failure to adhere does not alone establish
negligence. Thus, it’s evidence, but isn’t dispositive either way.
Brune v. Belinkoff (220)
Dr. D administered excessive
anesthetic during childbirth and
P slipped and fell. This was
standard in this community.
Locality Rule
D agreed drs. must meet standard of community, but urged New Bedford
was that community. Court says time of locality rule is over - can take into
account resources available as one circumstance (thus helping true country
doctors) but dr. must meet care and skill of average qualified practitioner,
taking professional advances into account. Overruled Small v. Howard.
Locality Rule
For board-certified specialists, the local standard of care is equivalent to
the national standard. No reason to believe local deviates from national.
Buck v. St.Clair (222)
Helling v. Carey (223)
P consulted Dr. D for nine years
until he finally tested her, at 32,
for glaucoma using pressure test
not commonly used before 40.
Rejection of Custom
Meeks v. Marx (224)
No adjustment for interns. If hospital couldn’t reasonably expect them to
discern EKG subtleties, it shouldn’t permit them to analyze them alone.
Even though D’s experts said testing before 40 was unrequired by
professional standards, every person is entitled to timely detection of
glaucoma, especially since this is a simple test. No evidence the test couldn’t
have been timely given to P. For these facts, custom was negligent.
Concurrence said sounds like SL since dr. acted reasonably but still at fault.
Challenged Helling and said it was only valid for those unique facts.
Sullivan v. O’Connor
(225)
Dr. D messed up P’s nose plastic
surgery.
Contracting For Cure
Unlikely that drs. would make specific promises due to complexities and
uncertainties of medicine. Insist on proof that certain result was promised.
Clinkscales v. Carver
(244)
P goes through stop sign put up
under defective statute.
Negligence Per Se:
Defective Statutes
Reasonable driver should know public relies on their observance. Guilty of
negligence regardless of irregularity attending the authorization of the signs.
Hammond v. Intl
Harvester (245)
D made tractor not equipped
with roll-over protection.
Negligence Per Se:
Subsequent Statutes
P introduced subsequent regulations requiring ROPS. They provide “strong
support” that tractor didn’t possess every element necessary for safe use.
Osborne v. McMasters
(245)
Pharmacist clerk D sold
unlabelled poison to dead P.
Negligence Per Se;
Res Ipsa Loquitor
Sole object of statute is to guard against this injury. It was imposed for this
type of P’s benefit, designed to prevent this kind of injury. Duty here is
imposed by statute. Statute simply makes an act negligent that otherwise
wouldn’t be; provides evidence. Cause of action arises from common law.
Stimpson v. Wellington
(247)
D heavy truck broke P’s pipes
causing flooding.
Negligence Per Se;
Res Ipsa Loquitor
Even if negligence per se, P must show she falls within class of protected Ps;
often achieved when single statute serves multiple purposes. The statute may
have had other purposes here, which would have been contemplated upon
each permit application; failure to apply here pre-empted that analysis.
clkko t cl 15
CASE (pg.)
FACTS
TOPIC
Gorris v. Scott (248)
P’s sheep were washed
overboard off D’s ship. D hadn’t
penned them according to
statute.
Negligence Per Se;
Res Ipsa Loquitor
Statutory Purpose Doctrine. P must also show that the statute was designed
to prevent the type of injury that occurs. Here, there was a causal connection
between breach of statutory duty and P’s harm, but statute was enacted with
totally different injury in mind.
Kernan v. American
Dredging (248)
Open flame on deck, violating
CG regulation, ignited vapors.
Negligence Per Se
Broad reading of statute; refined distinctions will not apply in the context of
FELA.
Cort v. Ash (249)
Watershed case
Priv. rights of action
NOTES
No private action for damages for shareholders against corporate directors.
Martin v. Herzog (250)
P and D were driving without
lights, D hits P, alleges contrib.
Negligence Per Se;
Res Ipsa Loquitor
Both P and D were in violation of statute. Unless the violation (either D’s or
P’s) was a cause, it doesn’t matter. P’s was not contributing cause, D’s was.
Tedla v. Ellman (251)
P and deaf-mute brother violated
statute by walking with traffic,
got hit by D car. Q of contrib.
Negligence Per Se
Situation of importing a statute into the common law. The common law that
gave rise to statute had an exception and the exception will be implied into
statute because of legislative intent.
Brown v. Shyne (253)
Chiropractor D was practicing
without license and paralyzed P
Negligence Per Se
Violation was not proximate cause of injury and proof of violation is thus
irrelevant. No cause of action “where it has not appeared that private injury
has been caused by danger against which the statute was intended to afford
protection.” Breach of statute is evidence of negligence; also need causation.
Mattero v. Silverman
(256)
Negligence Per Se
Mere lack of license is not itself evidence of negligence, without some
causal connection between the injury and the failure to have the license.
Klanseck v. Anderson
(256)
Negligence Per Se
If there’s evidence raising issue of driver’s incompetence or inexperience as
cause of accident, jury may draw inference of negligence if unlicensed.
Ross v. Hartman (257)
D’s agent left keys in van; X
stole van and hit P.
Negligence Per Se
“If by creating the hazard which the ordinance was intended to avoid it
brings about the harm which the ordinance was intended to prevent, it is the
legal cause of the harm.” Unlocked car has as much risk of being stolen as
unlocked bike, but risk of injury is higher. D’s conduct is negligent because
it created risk of third person acting improperly. PP: The rule tends to make
streets safer by discouraging hazardous conduct which the ordinance forbids.
Richards v. Stanley
(259)
D left keys in car; X stole car
and hit P.
Negligence Per Se
Opposing Ross. P had no negligence. D’s duty to exercise reasonable care
did not encompass a duty to protect P from thief’s negligent driving.
Negligence Per Se
Opposing Ross. Denial that breach of ignition key statute is actionable
negligence. “Anti-theft rather than a safety measure.”
Meihost v. Meihost;
Kiste v. Red Cab (259)
clkko t cl 16
CASE (pg.)
FACTS
TOPIC
NOTES
Vesely v. Sager (261)
D bartender serves lots of liquor
to X knowing X had to drive. X
drove, veered and hit P. D
violated statute prohibiting sale
to obviously intoxicated.
Negligence Per Se
Overrules CL that said serving alcohol isn’t proximate cause; consumption
is. X doesn’t relieve D of liability if negligent act is reasonably foreseeable
to D at time D acts. Question of whether D owed duty to class of people of
which P is member. P is in the statute’s protected class and the injury was
one the statute was designed to prevent. (Overruled by legislation).
Edgar v. Kajet (264)
D employer gives booze to
employees at firm party.
Negligence Per Se
Court doesn’t extend liability, fearing slippery slope of where to draw the
line (social hosts, etc.).
Negligence Per Se
Because minors are regarded as incompetent, one doesn’t owe a duty to
another minor regarding furnishing or consumption of alcohol.
Kapres v. Heller (265)
B&O RR v. Goodman
(270)
D train hit P on tracks. D
defends with contrib.
Judge and Jury
(Holmes)
D not relieved from responsibility for own death; should get out and look. If
standard of conduct is clear it should be set down by courts; no Q for jury.
Pokora v. Wabash Ry.
(271)
D train hit P on tracks. D
defends with contrib.
Judge and Jury
(Cardozo)
Suitable conduct in unusual situations is for jury. Need caution in framing
standards of behavior that amount to rules of law when no background of
experience out of which the standards have emerged, since then they’re not
natural flow of behavior but artificial rules imposed from without.
(followed by RTT)
Byrne v. Boadle (281)
Flour lowered out of D’s
window fell and injured P.
Res Ipsa Loquitor
Barrel couldn’t roll out of warehouse without some negligence. It was in D’s
custody and he’s responsible for servants in control of it. Fact of it falling is
prima facie evidence of negligence; P doesn’t have to show it couldn’t fall
without negligence but D may show facts inconsistent with negligence.
Res Ipsa Loquitor
Where thing is shown to be under management of D or his servants, and the
accident is such as in the ordinary course of things does not happen if those
who have the management use proper care, it affords reasonable evidence, in
the absence of Ds’ explanation, that accident arose from want of care.
P passenger hurt when D
driver’s car went off road.
Res Ipsa Loquitor
Evidence could lead to other conclusions besides driver negligence. Guest
statute; guest assumed the risk of any defect not known to Ds.
Pfaffenbach v. White
Plains (285)
P passenger struck by D truck.
Res Ipsa Loquitor
Overrules Galbraith. Whenever car crosses line, prima facie case of
negligence. Also, P doesn’t assume risks as would owner or guest of D
vehicle and is unable to observe whether D exercised care.
Larson v. St.Francis
Hotel (286)
P hit by chair thrown out of D
window celebrating VJ Day.
Res Ipsa Loquitor
Hotel doesn’t have exclusive control of furniture: “mishap would quite as
likely be due to the fault of a guest or other person as to that of Ds.” More
modern view beyond ‘exclusive control’ requires P to show act was more
likely than not D’s negligence. Show proof negating other possibilities,
without necessity of conclusiveness.
Scott v. London (283)
Galbraith v. Busch (284)
clkko t cl 17
CASE (pg.)
FACTS
TOPIC
NOTES
Connolly v. Nicollet
Hotel (286)
P injured by falling object from
D hotel.
Res Ipsa Loquitor
Distinguished from Larson because this wasn’t surprise celebration. D had
ample notice of drunken revelry.
Newing v. Cheatham
(287)
P killed in crashed plane owned
and piloted by D.
Res Ipsa Loquitor
Rare case where circumstantial evidence was sufficient for P’s directed
verdict. Negligence in lack of fuel, drinking, fine visibility, etc. No contrib.
Boat disappears at sea.
Res Ipsa Loquitor
Too many possible hazards at sea: act of God, not res ipsa.
Colmenares v. Sun
Alliance (288)
P injured on escalator due to
handrail stopping while stairs
continued.
Res Ipsa Loquitor
Although escalator wasn’t in D’s exclusive control, there are some duties
that are non-delegable that you can’t contract away. Provides incentive to
hire responsible subcontractors that have something to lose by negligence.
Holzhauer v. Saks (292);
Victory Park (293)
P injured on stopped escalator.
Res Ipsa Loquitor
No exclusive control since other people’s actions could be responsible; also
applies for multiple Ds.
P injured in airplane crash.
Res Ipsa Loquitor
No RIL since P failed to join most recent repair-maker. Too few Ds.
P injured when chair in D’s
possession collapsed. P had been
using chair for 25 min so D
argued no exclusive control.
Res Ipsa Loquitor
“Mere possession of a chattel which injures [P] does not prevent RI case
where it is made clear he has done nothing abnormal and has used the thing
only for the purpose for which it was intended.” D had ownership and
possession and was obligated to maintain it in a reasonably safe condition.
Res Ipsa Loquitor
Assessing the probabilities of negligence; what “ordinarily does not occur in
the absence of negligence” really means.
Walston (286)
Winans (293)
Benedict v. Eppley Hotel
(295)
McDougald; McGonigal
(295 - 297)
Butterfield v. Forrester
(308)
P was riding horse too fast and
tripped over pole put in road.
Contributory
Negligence
Accident wouldn’t have occurred w/ P using ordinary care. A “person being
in fault will not dispense with another’s using ordinary care for himself.”
Derheim v. N. Fiorito
(325)
P struck by D in car accident, P
not wearing seat belt.
Contributory
Negligence
Here the contributive action occurred before D’s negligence. D “takes the P
as he finds him.” Battle of experts re: safety equipment would burden trials.
Shouldn’t be fair to mitigate damages if P not responsible for accident. WA
is not comparative neg. state and this would import a change in PP.
Spier v. Barker (328)
P struck by D in car accident, P
not wearing seat belt.
Contributory
Negligence
Opposes Derheim. Not CN since didn’t cause accident. Jury may consider
failure to use available seat belt in mitigating damages, but not for liability.
Relating “doctrine of avoidable consequences” (re: postaccident conduct)
since P has unique & ordinarily unavailable means for minimizing damages.
Dare v. Sobule (330)
P, not wearing helmet, injured in
motorcycle accident.
Contributory
Negligence
Echoes Derheim. Court excluded helmet defense to bar or diminish
damages. D should not diminish consequences of his negligence by failure
of injured party to anticipate D’s negligence. + Experts would delay process.
clkko t cl 18
CASE (pg.)
FACTS
TOPIC
NOTES
Fuller v. Ill. Cent. RR
(331)
P, 70, in wagon, was hit by D
speeding train that didn’t sound
early whistle or slow down.
Last Clear Chance
CN is no defense if the injury was done wantonly, willfully, or recklessly, or
with gross negligence. CN will not defeat action if it’s shown that D could
have avoided accident with exercise of reasonable care and prudence.
Davies v. Mann (332)
Dead donkey because of D’s
speeding wagon.
Last Clear Chance
D could have avoided the animal through use of proper care and is thus
liable for consequences of his negligence even if animal improperly there.
Kumkumian v. NYC
(334)
D subway ran over P. Tripping
mechanism went off thrice; P
could’ve been saved after first.
Last Clear Chance
Equipment wasn’t there to be ignored; gave them “the requisite knowledge
upon which a reasonably prudent man would act.” Jury was entitled to find
willful indifference rather than observational negligence. Didn’t do duty.
Mutually negligent ships collide.
Imputed Contrib.
Negligence
No imputed CN. Liability works up through employment ranks but not back
down to employees that weren’t negligent. Uniformly today, negligence of
driver will not be imputed to passenger in usual collision. Exception: driver
and passenger have relationship making passenger VL for driver’s torts.
Mills v. Armstrong
(336)
Dashiell v. KeauhouKona Co. (339)
P injured in golf cart partly
because of wife’s negligence.
Imputed Contrib.
Neg. & “Both Ways”
Marital relationship was not type of “partnership” joint enterprise liability
rule had in mind. P was blameless and shouldn’t be barred from recovery
because wife was driving, unless he had duty to control her driving.
Hartfield v. Roper (340)
Injured child P sued D, but P’s
parents contributorily negligent.
Imputed Contrib.
Negligence
Murphy v. Steeplechase
(346)
P went on ride he’d been
watching, fell off and broke his
knee cap.
Assumption of Risk
The jerk experienced was “the very hazard that was invited and foreseen.”
He, like athletes, took on inherent dangers that were obvious and necessary.
Would be different if unforeseen injury, or there had been many injuries
(showing it shouldn’t continue unchanged). Alternate theory of inadequate
padding needs investigation and would go to jury; unforeseen & unassumed.
P injured on D’s waterslide
Assumption of Risk
Sufficient evidence that the specific risk encountered was unknown and
unassumed; thus defeats summary judgment at the least.
Moulas v. PBC
Productions, Inc. (349)
P injured by flying puck and D’s
hockey game. P regularly went.
Assumption of Risk;
Spectators
Courts hold that spectators share the common knowledge of injury from
attending these events.
Marshall v. Ranne (351)
D’s mad boar bit P while P was
walking to car; P knew of boar.
Assumption of Risk:
Lesser of Two Evils
Contributory negligence not a defense in case of strict liability. The
assumption of risk was not voluntary (which would be a defense); it was
simply a choice between two evils.
Russo v. Range (348)
OVERRULED. A parent’s neglect will be deemed the infant’s and their
negligence will be imputed to him.
clkko t cl 19
CASE (pg.)
FACTS
TOPIC
NOTES
Bushey & Sons v. U.S.
(413)
D’s drunken sailor sinks P’s dry
dock by turning random valves.
Vicarious Liability
D says acts weren’t within scope of employment. Traditional test asks if it
was “at least in part to serve the master.” He negligently returned to ship to
serve D. Modern test says can’t disclaim accidents “characteristic of its
activities.” It was foreseeable D’s employees would do damage, negligently
or intentionally; risk should be borne by D, who enabled his access there.
Riley v. Standard Oil
(418)
D’s employee drove four blocks
off employer’s route for errand.
Frolic and Detour
Employee deviating from route set by employer will not necessarily be
excluded from VL. “No hard and fast rule” but small deviations included.
Lancaster v. Norfolk
(418)
P goosed on by supervisors.
Intentional Torts &
Vicarious Liability
When employee’s motive is personal and not in furtherance of employment,
employer not liable. Can alternately sue under direct negligence though.
Employers have a duty to supervise employees.
Charles v. Barratt (420)
P’s injuries a result of X who
worked for two Ds.
Borrowed Servant
Espouses traditional test that if employee is furthering ultimate employer’s
interest, there’s no inference of new relation to D2. Modern test holds both
employers responsible - uses “right of control” and “whose business” tests.
Fireman’s Fund v.
Turner (421)
Indemnification
Example of universally adopted theory that employer can sue negligent
employee to recoup losses for employee’s actions.
D did not have mutual right of conrol over vehicle operation because she
didn’t have equal right of control over it’s operation.
Heick v. Bacon (422)
D passenger in car with driver
involved in accident.
Joint Enterprise
NYCRR v. Grimstad
(435)
P’s husband fell off ship and
drowned; no life-saving equip.
Cause In Fact
There was no evidence that the equipment could have saved him - may have
been too late, too dark, etc. She could have raised other theories, but then
would have confronted contributory negligence, custom, or other problems.
Reyes v. Vantage (437)
P drowned when D ship didn’t
have required equipment.
Cause In Fact
No evidence that the lack of equipment would have made a difference, based
on guessed amount of time it would have taken to deploy.
Haft v. Lone Palm Hotel
(437)
P drowned when lifeguard
wasn’t on duty.
Cause In Fact
There was lack of evidence about what caused the drowning; that was D’s
fault because the lifeguard was missing; can’t benefit from their negligence.
D’s late diagnosis lowered P’s
chance of survival 39% –> 25%
Lost Chance
Court believes this reduction in chance for survival is sufficient evidence of
causation for jury to consider possibility that D’s failure was proximate
cause of death. Considers PP argument that to decide otherwise would be
release from liability for drs. when P has less than 50% chance of survival.
Fennell v. So. MD Hosp.
(457)
Lost Chance
Rejected the doctrine because overcompensates Ps and provides too high a
deterrence for Ds.
Holton v. Memorial
Hosp. (458)
Lost Chance
Embraced doctrine, fearing that otherwise, hospitals would have disincentive
to administer quality health care to critically ill patients.
Herskovits v. Group
Health Coop. (453)
clkko t cl 20
CASE (pg.)
Mauro v. Raymark Ind.
(460)
FACTS
TOPIC
NOTES
P had increased chance of
getting asbestosis.
Lost Chance
No recovery since he could sue when and if he gets it. But, can be
reimbursed for monitoring no matter what.
Kingston v. Chicago Ry.
(461)
D’s fire and unknown fire united
to destroy P’s property. Other
fire probably started by human;
either alone would have done
this damage.
Cause In Fact
A plaintiff does not have burden of discovering the origin of both fires in
order to recover for damages if the origin of one fire is found. D is liable. If
there’s more than one wrongdoer whose act of negligence combines with
another to result in injury, each is individually responsible for the damage as
a whole. Both are culpable and individual damages can’t be proven. §433A.
Summers v. Tice (467)
P and Ds were hunting. Ds shot
at quail and one of them shot P
in eye. Insufficient evidence to
determine which D was guilty of
the negligence causing injury.
Cause In Fact:
Alternative
Causation
They are jointly liable. Policy and justice demand that the burden shift to Ds
to absolve themselves. Ds under these circumstances are in a far better
position to offer evidence to determine which one caused the injury.
Alternative causation test shifts the burden of proof to Ds. This case
produced the same result as res ipsa loquitur does. Adopted in §433B(3).
Sindell v. Abbott
P got cancer because of drug
mother took during pregnancy.
Didn’t know which D company
made that one, so P sued all.
Cause In Fact:
Multiple Ds &
Alternative
Causation
P may hold all manufacturers liable if P can’t determine who’s responsible.
Between innocent P and negligent Ds, Ds should, and are better able to, bear
cost of injury and to discover and guard against product defects. Market
share liability factors: all Ds are potential tortfeasors; their products are
identical and share same defects (or fungible); through no fault of her own,
P can’t identify which D caused injury; and substantially all manufacturers
that created the defective drug during relevant time are named as Ds.
Daubert v. Merrell Dow
D’s drug taken by P’s mothers
allegedly caused foreshortened
limbs.
Products Liability
and Statistics
“Lies, damned lies, and statistics.” It looks like it has to be the drug’s fault,
but it’s a selective sample by crafty lawyers. The amount of occurrences
would have to be more than double nature’s for it to be “more likely than
not” that Bendectin was responsible for any given injury.
Polemis (497)
D dropped plank into ship hold;
spark caused loss of whole ship!
Proximate Cause
Tortfeasor is liable for all damages caused by negligent act if damage is
directly traceable to that act with no intervening causes. Modern law only
allows recovery for foreseeable damage, or absolute recovery to eggshell P.
Palsgraf v. LIRR (501)
D shoved X, who dropped
fireworks that exploded, causing
scales to fall on P, standing a bit
away.
Proximate Cause
A duty that is owed must be determined from the risk that can reasonably be
foreseen under circumstances. If no hazard is apparent to an eye of ordinary
vigilance, an act doesn’t become a tort because it was wrong with reference
to someone else. Dissent says everyone owes the world at large the duty of
refraining from acts that may unreasonably threaten safety of others. In
determining proximate cause the court must ask whether there was a natural
and continuous sequence between cause and effect. Here there was no
remoteness in time and little in space and injury in some form was probable.
They don’t address common carrier higher standard of care argument.
clkko t cl 21
CASE (pg.)
FACTS
TOPIC
NOTES
Wagon Mound #1 (517)
D carelessly discharge oil into
harbor. P’s worker dropped
molten metal from the wharf
igniting fire, ruining P’s dock.
Proximate Cause
Limiting Polemis. A man must be considered responsible for the probable
consequences of his acts that a reasonable man would foresee. The test for
liability for fire is foreseeability of injury by fire. Dismissed.
Wagon Mound #2 (523)
The P here was the owner of the
destroyed ships.
Proximate Cause
If a party has knowledge of a risk and has ability to take possible and
inconsequential measures to reasonably prevent it, and the magnitude of the
risk exceeds the utility of the conduct from not preventing the risk there’s
negligence and he’ll be liable for damages. Evidence shows the chief
engineer should have known that it was possible to ignite the oil on the
water. There was no justification for discharging the oil into the harbor and
it was the chief engineer's duty to stop the discharge immediately. For P.
Eggshell P
& Negligence
Although the disease was within her, it might not have otherwise blossomed
but for the accident and thus D was liable.
P speeding down street, hit by
D’s poorly maintained tree.
Proximate Cause
P’s speeding irrelevant; it’s not like the tree was there and slowness would
have allowed avoidance. It’s coincidence and could have easily happened to
someone else. Breach of statute not causally related to injury since it didn’t
increase the risk of being struck.
Cent. Of GA v. Price
(486)
P injured in fire at hotel she had
to stay at because of D’s neglig.
Proximate Cause
P’s harm too remote from RR’s negligence and totally unforeseeable. There
was an interposition of a separate agency over whom RR had no control.
Hines v. Garrett (1921)
D RR missed P’s stop, let her
off in dark to walk and P raped.
Proximate Cause
This harm was foreseeable and D had duty to P. The very negligence was
what exposed P to the act causing the injury, even though by third party.
Brower v. NYCHRR
(489)
P’s driver & wagon hit by D
train; contents of wagon stolen.
Driver was in shock and
couldn’t protect contents.
Proximate Cause
D argues the intervening actions of the thieves preclude their liability. Such
acts will not excuse first wrongdoer if they were foreseeable. Plus, D had
guards to protect their property and they should have realized P’s property
would be stolen without oversight.
Watson v. K&I RR
(491)
D’s negligence led to derailment
and gas spill. X lit match, with
malice, and a fire resulted.
Proximate Cause
Court left it to jury to determine malice; if malice then it’s a highly
unforeseeable intervening cause and D not liable - couldn’t have anticipated
or guarded against.
Wagner v. Intl Ry. (495)
P’s cousin fell out of D train
since D didn’t close doors. P got
out to look and was injured.
Rescue
Rescue is a foreseeable act and will be protected (PP). Question for the jury
about whether P was foolhardy or reasonable in his efforts. (Like Eckert).
Tortfeasor liable for foreseeable and reasonable rescue attempts.
Bigbee v. Pac. Tel.&Tel.
P trapped in phone booth placed
too close to road; hit by drunk
driver. Sued everyone.
Proximate Cause
Phone company negligent in placing the booth and maintaining the door. It
had happened before and was foreseeable and the intervening act of driver
irrelevant. Rest. §449.
Steinhauser v. Hertz
Corp. (524)
Berry v. Sugar
Notch (484)
P hit by D in accident;
preciptated schizophrenia.
clkko t cl 22
CASE (pg.)
FACTS
TOPIC
NOTES
Mitchell v. Rochester Ry
(530)
Carriage stopped such that P
was standing between horses’
heads. Fright and shock caused
fainting and miscarriage.
Emotional Distress
& Proximate Cause
There was no immediate personal injury to P. P cannot recover for the
mental distress P felt from D's negligence. There can be no recovery for
fright alone. There must be some reliable indicator for recovery for mental
distress - that indicator is actual physical injury.
Dillon v. Legg (534)
D killed kid with car. P mom
saw it but wasn’t that close, so
claim disallowed since she
wasn’t in “zone of danger.”
Emotional Distress
& Proximate Cause
One can recover for IED under negligence if witnessed negligent injury to a
close family member, even if not within the "zone of danger." How close
one is to an accident is irrelevant to distress felt by loss of a loved one.
Three factors to consider in actions like this: 1. how close to the scene, 2.
how closely the trauma felt is linked to the accident, 3. how close observer
was to victim. In this case, P was close enough to the accident to adequately
witness it, the accident was sole cause of P's stress, and victim was P's
daughter - damages to P. Dissent: Too many unanswered questions, incl.
how close one must be and how close the relationship must be.
Union Stock Yards v.
Chicago (387)
D partly responsible for
inspecting. P’s employee injured
after negligent inspection. P
paid damages, then sued D for
contribution.
Joint & Several
Liability
In order to allow contribution amongst several wrongdoers, a party may
obtain contribution only if the other wrongdoer is a principle wrongdoer.
We cannot label the railroad company liable simply on the fact that it was
the first in a line of wrongdoers who failed to perform their duty.
Yania v. Bigan (551)
P jumped off D’s wall into
water; P drowned and died.
Duty to Rescue
P was an adult in full possession of faculties. D was not at fault. D was not
responsible for placing P in that position and thus had no duty to rescue.
Montgomery v. Natl
Convoy (559)
D stalled on icy highway; turned
on lights but no flares. P came
over hill, didn’t see him, and hit
him.
Limits of Duty:
Duty to Rescue
D was negligent for failing to neutralize a dangerous condition he created.
He had duty to warn others. Liability exists if the omission of a duty owed
to another was the proximate cause of injury. Leaving lights on wasn’t
sufficient to prevent injury. D's inaction was negligent and willful.
Weirum v. RKO (607)
D offered radio contest prize to
person that got to location first.
X sped, running P off road and
killing him.
Limits of Duty:
Special Relationships
Graves v. WB
D was liable for creating unreasonable risk of harm, regardless of X’s
intervening act - this kind of behavior should have been anticipated. All are
required to use ordinary care to prevent others from being injured as a result
of their conduct. Primary consideration in determining duty is foreseeability
of the risk - a question of fact for jury. Record showed it was foreseeable the
promotion would cause third parties to race to the location. D relied on §315
stating that w/o special relationship, one is under no duty to control conduct
of third parties. However, the rule has no application if P's complaint is
based on an affirmative act by D that created an undue risk of harm.
Limits of Duty
clkko t cl 23