Torts
8-25-09
Albert
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Torts are wrongful acts or omissions for which an injured party can sue and recover damages
Three categories of torts: intentional torts, negligence, and strict liability
Intent is the threshold element in an intentional tort suit  plaintiff must prove that the
defendant intended to do the harm (acting with intent)
Most tort cases, intent is not questioned
Garratt v. Dailey
- There was no evidence of intent to injure
- Trial court dismissed the case because there was found to be no intent to injure
- Appealable issue arises from the language and definition of “intent”  intent to injure is not
necessary, the focus is intent to do the act, that is the sufficient condition
Spivey v. Battaglia
- Is this negligence or assault/battery?
- In this state, there is an SOL different for negligence and assault/battery
- If there was no intent, then a negligence case and SOL would apply
- If there was intent, it would be assault and battery case
Ranson v. Kitner
- Trespass to chattel (tort)
- May have been a mistake, but killing a dog is a reasonably foreseen consequence
- He didn’t mean to kill that dog, but he did intend the actual act of killing (this satisfies intent)
McGuire v. Almy
- One question can an insane person possess intent? Yes.
- Tort suits are victim-focused.
- D’s statement showed her intent to act.
Talmage v. Smith
- Defendant regardless of the actual victim, intended to hit someone
- Transferred intent
- Intent was the same without respect to the recipient of the harm
Torts
8-26-09
Albert
* Battery is the intentional contact in a rude or angry manner, with another party
* Assault is the creation of apprehension of a contact or the threat of battery (comes before battery)
* The “apprehension” is the actual harm
BATTERY
Wallace v. Rosen
- Contact was inevitable
Fisher
- Any extension of the person can still be subject to battery, or harmful or offensive conduct
ASSAULT
Western Union v. Hill
- Plaintiff’s wife had reason to be apprehensive due to Sapp’s proposition to her
- It was not a threat of danger or harm, but a threat of offensive or unwarranted contact
- The court decides that this was a factual issue for the jury, case is remanded (but not on this
basis)
FALSE IMPRISONMENT
Big Town Nursing Home v. Newman
- False imprisonment is the direct restraint of one person of the physical liberty of another
without adequate legal justification
- Plaintiff was restrained and locked up in Wing 3(alcoholics, mentally disturbed, uncontrollable,
etc.) several times before he was indefinitely locked away in that wing, taped to a restraint
chair, was there 51 days
- If one exit of a room or a building is locked with plaintiff inside, but another reasonable means
of exit is left open, there is no imprisonment. Davis v. Boozer (1926)
Parvi v. City of Kingston
- Must have consciousness of confinement in order to claim false imprisonment
- Plaintiff was taken to an abandoned golf course by the police, wandered off onto the NY
highway and was struck by a car and sustained severe injuries, Plaintiff cannot recall the events
of the night
- Restatement of Torts states that there is no liability for intentionally confining another unless
the person physically restrained knows of the confinement or is harmed by it
- Court says it was a question for a jury to decide whether Parvi had consciousness of the events,
determine his credibility
- Just because there was alcohol, does not mean Parvi had absolutely no sense of what was going
on
- This case involves leaving a person in a place that could cause them harm, involuntarily
- Dissent: Parvi did not make his case. Had no recollection of the events, can’t establish a prima
facie case based on the events surrounding the case.
Torts
Albert
8-31-09
- Torts as a cause of action was created to protect people’s rights
- Fairly new causes of action
False imprisonment
- Justifications for false imprisonment: defense of property (i.e. shoplifting)
Parvi v. City of Kingston
- There was a fight between two brothers behind an alley, plaintiff was along with them as well,
all three were showing the effects of alcohol according to the police
- The police took the plaintiff to an abandoned golf course , he wandered off the golf course and
was injured in a car accident
- There was a question of consciousness and realization of the actual arrest and confinement
- Trial court dismissed the case
- The court felt that Parvi was conscious of his confinement at the time it was taking place
- The court of appeals said it was a question for the jury to decide and determine the credibility of
the witnesses and Parvi individually
Hardy v. LaBelle’s Distributing Co.
- LaBelle hired Plaintiff as a temp, another employee complained that Plaintiff had stolen
something from the store
- The manager took that information, and told Plaintiff one morning that new employees had to
take a tour of the store; on this “tour”, the manager locked Plaintiff in a room with numerous
managers
- Hardy took a lie detector test to prove her innocence
- Plaintiff alleges she was wrongfully detained
- Elements of false imprisonment: restraint of an individual against his will and the unlawfulness
of such restraint; the individual may be restrained by acts or merely by words which he fears to
disregard
- There is evidence that Hardy was not held unlawfully and even wanted to stay and defend
herself against the allegations
- Affirmed the district court’s decision
Enright v. Groves (False arrest)
- Defendants are appealing a district court judgment
- Groves an officer in Ft. Collins, CO
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The officer approached Enright’s vehicle, asked for Enright’s license and Enright refused to
produce her license
Groves physically grabbed Enright and took her to the police station
Groves says he had probable cause to arrest Enright and the use of force was permissible
False arrest arises when one is taken into custody by a person who claims but does not have
proper legal authority (W. Prosser, Torts)
Court did not find that he had probable cause, a conviction for a crime for which one is arrested
is a defense to false imprisonment
There is no statute that requires the production of drivers license when asked (unless in
connection with the operation of an automobile)
Groves demand was unlawful, judgment of the district court was affirmed
Whittaker v. Sandford
- Plaintiff was detained on a yacht for a month, for refusal to re-join a religious sect
- Plaintiff finally got release with the help of the sheriff
- Plaintiff had the simplest form of unlawful imprisonment
- Impassable sea is the physical barrier, the refusal of a boat is also a key in the unlawful
imprisonment
- There were no reasonable means of escape
- The restraint was coercive, not just physical
- Even though there was an agreement in place, Defendant had a duty to follow through on the
agreement; the agreement implied that Plaintiff was to go ashore
- It was reasonable for the jury to come to its conclusion; it was a wrongful denial of Plaintiff’s
personal rights
- Judgment affirmed
Intentional infliction of emotional distress
- Emotional distress is assault
- Physical manifestation of emotional distress is always sufficient to make a claim for intentional
infliction of emotional distress
State Rubbish Collectors Ass’n v. Siliznoff
- Defendant was alleged to have collected wages outside of his local union
- The union/association asked him to turn over those wages in “notes”
- Silizinoff was the original plaintiff, and brought a claim due to assaults and duress from the
association
- He won damages at the district court level, both general and special damages
- Silizinoff was threatened by an inspector of the Association
- The association forced him to join and pay dues; Siliznoff says he got sick from being afraid of
the association’s threats
- The appellants argue that there was no immediate threat of physical harm, so no assault was
inflicted upon Siliznoff
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Court affirmed the judgment
When an individual intentionally subjects another to the mental suffering incident to serious
threats to his physical well-being, whether or not the threats are made under such
circumstances as to constitute assault
Distress can be so intense as to be reasonably foreseen to cause harm, or believed that harm
might result; if someone intentionally subjected another person to such distress and bodily
harm resulted, that person would be liable
Even if it the person did not intend the harm, could still be held liable, if they should have
foreseen the harm
The jury has its own personal experience, and can make reasonable inferences on the harm
emotional distress can cause
Slocum v. Food Fair Stores of Florida
- Plaintiff appeals, case was originally dismissed for failure to state a claim for which damages
could be awarded
- The initial claim involved the plaintiff being harassed at the defendant’s store allegedly causing a
heart attack
- Issue: does such a claim of deliberate disturbance of emotional distress state an independent
cause of action of tort?
- Holding: No.
- Court’s reasoning includes that: “The unwarranted intrusion must be calculated to cause sever
emotional distress to a person of ordinary sensibilities”
Harris v. Jones
- Harris was the subject of harassment from his supervisor at GM Motors, due to his speech
impediment (stuttering)
- Harris alleged increased nervousness and an increase of the physical handicap
- Jury awarded damages to Harris; was reversed on appeal (Md Ct of Special Appeals)
- Notes the four elements of intentional infliction of emotional distress:
(1) The conduct must be intentional or reckless;
(2) The conduct must be extreme and outrageous;
(3) There must be a causal connection between the wrongful conduct and the emotional
distress; and
(4) The emotional distress must be severe.
- The court says that the conduct must be beyond the bounds “usually tolerated by decent
society”
- Court says that there was no sufficient evidence to satisfy the fourth element (he was not
severely disabled by the conduct)
- Judgment affirmed
Torts
Albert
9-1-09
Slocum v. Food Fair Stores of Florida (cont.)
- This case turns upon the elements of outrageousness of conduct
- Issue: Was defendant’s conduct so outrageous as to be an intentional infliction of emotional
distress?
- Holding: No.
- Rationale: There was no special relationship between Slocum and the defendant. Common
carriers (hotel, non-competitive public utility) owe a higher duty. “The existence of a special
relationship…supports a right and correlative duty of courtesy beyond that legally required in
general mercantile or personal relationships.”
Taylor v. Vallelunga (“bystander case”)
- Plaintiff’s daughter was present when her father was beaten by defendant, makes a claim for
intentional infliction of emotional distress (caused her fright and distress)
- Can a bystander recover from this cause of action? When the offender did not know that person
was there.
- Holding: No.
- Rationale: Defendant was not aware of Plaintiff’s daughter being present, he was intentionally
inflicting emotional distress upon her. The intentionally act was not focused upon Taylor. “An
intention to cause severe emotional distress exists when the act is done for the purpose of
causing the distress or with knowledge on the part of the actor that severe emotional distress is
substantially certain to be produced by his conduct.”
Trespass to Land
Dougherty v. Stepp
- Defendant walked onto plaintiff’s land with a surveyor, plaintiff brought a claim for damages for
trespass.
- Issue: did the jury err in finding for the defendant that he committed no trespass to land?
- Holding: Yes.
- Rationale: Every unauthorized and unlawful entry is a trespass. Have violated the owner’s right
to exclusive possession of land.
Bradley v. American Smelting and Refining Co.
- Plaintiff lives 4 miles away from this defendant, brought a claim for trespass and nuisance (right
to use and enjoy your land) due to deposits of chemicals from the factory on their land
- Environmental trespass and nuisance are both actionable interferences with the possession of
land
- Issue: Can environmental trespass to land and nuisance be brought in one cause of action?
- Holding: Yes.
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Rationale: If all of the elements are present for both trespass and nuisance, yes they can be
brought at the same time. If Plaintiff can show damages resulted from the environmental
trespass to land, Plaintiff is entitled to damages. If there is a lingering dissipation of the
particulate matter, then that is a trespass; if it passes away, it can be considered a nuisance.
Herrin v. Sutherland
- Defendant was hunting and discharged his shotgun over the property of Plaintiff
- Air space over the property extends as far as reasonable use of the land and air, does not extend
into navigable air space
- Issue: Did defendant commit trespass to land and therefore violate their right to exclusive use of
their land, by shooting over the plaintiff’s property?
- Holding: Yes.
- Rationale: Defendant interfered with the quiet, undisturbed, peaceful enjoyment of the
plaintiff. Plaintiff’s land does extend into the airspace above the property. Can at least sue for
nominal damages.
- Result: judgment affirmed.
Rogers v. Board of Road Com’rs for Kent County
- Plaintiff made an agreement with the county to have a snow fence on their property but to have
the posts removed once the season was over
- The County failed to remove one anchor post after one season, Plaintiff was mowing and was
injured by the post, Plaintiff died from the resulting injuries
- District court ruled that it was an action of negligence and dismissed, plaintiff appeals
- Issue: was the failure to remove the post by the defendant a trespass to land?
- Holding: Yes.
- Rationale: The defendant exceeded their permission for use of the land. They failed to remove
the post after the consent was terminated.
- Result: Judgment reversed and case remanded.
Glidden v. Szybiak
- 4 yr old girl gets on the back of Syzbiak’s dog plays with its ears, and dog bites little girl on her
nose and sustains injuries
- This case sets forth the elements of trespass to chattel
- The differentiation is that there does not have to be harm in the case of trespass to land
- District court found that the 4yr old was not aware of her actions and could not have known
that she was guilty of negligence or any other tort
- Issue: Did Plaintiff commit the tort of trespass to chattel?
- Holding: No.
- Rationale: At trial no evidence was present that there was harm to the chattel, so that element
of trespass to chattel was not satisfied, plaintiff cannot be held liable for trespass.
- Result: Judgment against Syzbiak.
CompuServe, Inc. v. Cyber Promotions, Inc. (protection of cyberspace)
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CompuServe provides email service to consumers and told defendant that it was not permitted
to send unsolicited emails and asked them to terminate this action; CompuServe has attempted
to block this conduct technologically, and had failed
There was a use of or intermeddling with the chattel
Caused a tremendous burden on CompuServe’s business and equipment
Harmed CompuServe’s business reputation
CompuServe had a legally protected interest
Torts
Albert
9-2-09
Conversion
- If info is copied, it is only conversion if the info is a commodity
- Where the intermeddling falls short of the complete or very substantial deprivation of
possessory rights in the property, the tort committed is not conversion, but the lessor wrong of
trespass to chattels
- A judgment for conversion can be obtained with only nominal damages, whereas liability for
trespass to chattels exists only on a showing of actual damage to the property interfered with
- Ideas or information are not subject to legal protection(there are exceptions, such as
commodities)
- The elements for conversion to have taken place are listed on pg. 86
The measure of damages for conversion is the value of the property converted
Pearson v. Dodd
- Plaintiffs had taken documents from the previous employer’s office, and gave the material to a
third party (Anderson) who wrote articles gleaned from that information
- Plaintiffs were found guilty of conversion at the district court level
- Issue: Did the district court err in granting summary judgment on the issue of conversion?
- Issue (2): Was the copying of information protected by the law of property?
- Holding: Yes.
- Holding (2): No.
- Rationale: Conversion involves a defendant treating goods as if they were his own. Conversion
is an intention exercise of dominion or control over a chattel which so seriously interferes with
the right of another to control it that the actor may justly be required to pay the other the full
value of the chattel; Appellee(Dodd) was not substantially deprived of the use of his property
because it was returned undamaged
- Result: Judgment reversed, plaintiffs were not guilty of conversion.
Privileges: Consent
Defenses to liability = privileges
* If the person consents to the tort, the actor is privileged to do it and cannot be held liable
O’Brien v. Cunard S.S. Co.
- Supreme Judicial Court of Massachusetts
- Plaintiff is bringing a claim for negligent vaccination by the Defendant; claims to have suffered
ulcerations and blistering at the site of the vaccination; also alleged assault by an on-board
surgeon
- Plaintiff held up her arm to be vaccinated, never said that she did not want to be vaccinated,
only stated that she had been vaccinated previously with no mark being left [on her arm]
- Trial court directed a verdict for the defendant, plaintiff appeals
- Issue: Was there any evidence that the surgeon used force upon the plaintiff against her will?
- Holding: No.
- Rationale: Plaintiff indicated by her conduct that she was not opposed to the vaccination. No
indication was made to the surgeon that she did not wish to obtain a card; the surgeon’s
conduct was lawful given the circumstances
Hackbart v. Cincinnati Bengals, Inc.
- Dale Hackbart received an injury from Charles Clark (a player from the Cincy Bengals) during a
football game
- The trial court ruled that professional football is essentially violent in nature and that there are
available sanctions in that arena, no need for legal remedies
- Issue: Whether an intentional infliction of injury by a player to an opposing player in a
professional football game can constitute a tort?
- Holding: Yes.
- Rationale: Plaintiff had a right to have a jury make the assessment that his rights had/had not
been violated because the trial court improperly expanded its analysis to include issues of social
policy
- Result: Judgment reversed and remanded.
Mohr v. Williams
- Plaintiff consulted with an ear specialist about her right ear; talked with physician and
consented to surgery on her right ear; upon operation the doctor did not find a significant
condition with the right ear, but did with the left ear, and decided to operate on the left ear
- Plaintiff brought an action for battery
- Jury found for Plaintiff, trial judge denies defendant’s motion for judgment notwithstanding the
verdict, the trial judge granted a new trial on the basis of damages being excessive, plaintiff and
defendant appeal
- Defendant alleges that the family physician was present and he had knowledge of the left ear
condition
- Issue: Did the district court err in granting a new trial on the basis of excessive damages? Did
plaintiff have to give consent for the operation?
- Holding: No/Yes
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Rationale: The doctor was acting in good faith, but it cannot be assumed that the plaintiff would
consent to any changes. The question of whether it was unauthorized was for the jury to
decide. In civil cases, it is only necessary to show that the action was wrongful or unlawful or the
result of negligence.
Result: Order for new trial affirmed.
De May v. Roberts
- De May brought Scattergood (who was not trained in medicine) into the room while she was in
childbirth, Plaintiff thought Scattergood was a medical professional, she gave consent for him to
be in the room, but it was not informed consent
- Issue: Was there consent given by Roberts?
- Holding: No.
- Rationale: To be valid, consent must be informed. It has to be based on the validity of the facts
surrounding the consent.
Torts
Albert
9-15-09
Negligence
* The issue surrounds what the reasonable and prudent person would do
* the standard of care = the care that would be rendered by the reasonable person
* avoidance of injury to others by carelessness
* setting the standard of care is typically set by statute
* the reasonable person is “a model of propriety and common sense, a person of sound judgment who
acts at all times with ordinary prudence…”
* In deciding whether conduct was appropriate, the reasonable person considers the foreseeable risks
of injury that the conduct will impose on others; also, considers the extent of the risks posed by their
conduct; and considers the likelihood of a risk actually causing harm
Vaughan v. Menlove
- Menlove built a hay rick on the boundary of his land, the hay rick could have potentially ignited
and caused damage to the plaintiff’s cottages
- The hay rick did ignite, and caused damage to the cottages
- Plaintiff brought suit for damages caused, alleging defendant’s negligence
- Issue:
- Rationale:
- Result: Judgment reversed.
Delair v. Mcadoo
Trimarco v. Klein(shower glass door)
- Plaintiff alleges that Defendant was negligent in not replacing a shower door
- Plaintiff originally recovered $240k in damages at time of jury trial
- Plaintiff provided expert testimony that since the 1950s common practice was to use
shatterproof glazing materials for bathroom enclosures
- Issue: Did plaintiff meet his burden of proof to make his case? Does industry practice set the
standard of care?
- Holding: No.
- Rationale: Defendant had no duty to replace the enclosure, just because of standard industry
practices. “…when proof of an accepted practice is accompanied by evidence that the
defendant conformed to it, this may establish due care…when proof of a customary practice is
coupled with a showing that it was ignored, and that this departure was a proximate cause of
the accident, it may serve to establish liability.”
- Result: Judgment reversed.
Cordas v. Peerless Transportation Co. (unmanned cab causes injuries)
- Cab driver jumped out of cab because man with gun scared him
- Plaintiff sued cab company for negligence and resulting injuries(minor)
- Issue: Was cab driver negligent?
- Holding: No.
- Rationale: “Common legal acceptation is the failure to exercise that care and caution which a
reasonable and prudent person ordinarily would exercise under like condition or
circumstances.” Reasonable care is not required in emergency situations.
- Result: Judgment for defendant.
Roberts v. State of Louisiana
- Roberts fell down after being bumped by a blind concession worker in a post office
- Roberts alleged two theories of liability: respondeat superior and negligent failure to supervise
- Plaintiff argues that defendant failed to use his cane
- Defendant was familiar with the hallway
- Trial court dismissed plaintiff’s claim
- Issue: Was the handicapped person negligent?
- Holding: No.
- Rationale: Handicapped persons are held to the standard of care of what a reasonable person
(with that disability) would do. Not unfamiliar for blind people to rely on other techniques when
moving around in a familiar setting.
- Result: Judgment affirmed.
Robinson v. Lindsay (snowmobile severs fingers)
- Plaintiff’s finger was severed while being pulled on an innertube behind a snowmobile
- Issue: whether a minor operating a snowmobile is to be held to an adult standard of care
- Holding: Yes.
- Rationale: A child is held only to the exercise of such degree of care and discretion as is
reasonably to be expected from children of his age; however, “when the activity a child engages
in is inherently dangerous, as is the operation of powerful mechanized vehicles, the child should
be held to an adult standard of care (pg. 162).”
- Result: Order granting a new trial affirmed.
Breunig v. American Family Ins. Co. (thought God was driving her car)
- Plaintiff brought suit against defendant driver/ins. Carrier for injuries incurred from a car
accident
- Jury returned verdict for plaintiff, defendant appealed
- Defendant was adjudges as suffering from an insane delusion which impaired her ability to
operate her vehicle in an ordinarily prudent manner
- Psychiatrist stated she suffered from schizophrenia
- Rationale: Liability depends on the kind and nature of the insanity. The effect of the mental
illness must be such as to affect the person’s ability to understand and appreciate the duty
which comes along with driving their vehicle. There are guidelines to holding an insane person
liable (pg. 166). However, there was evidence of defendant’s previous conduct and
hallucinations, this was sufficient to hold her to an ordinary standard of care.
- Result: Judgment (for plaintiff) affirmed.
* Typically there are no allowances made for mental illness
Professional standard of care
* held to a higher standard of care
Heath v. Swift Wings, Inc. (entire family dies in plane crash)
- Court of Appeals of North Carolina 1979
- The estate of the wife and son brought the action against the husband’s estate and the owner of
the airplane
- Jury returned a verdict against the Plaintiff; Plaintiff appealed
- Issue: Was the jury instruction given about negligence given in error.
- Holding: Yes.
- Rationale: The standard of care required is the conduct of the reasonably prudent man under
the same or similar circumstances. The trial court improperly introduced a subjective standard
of care into the definition of negligence (mentioned the ordinary prudent pilot). A specialist
within a profession may be held to a standard of care greater than that required of the general
practitioner…”the professional standard remains an objective standard.” The jury instructions
concerning the “ordinary pilot” were misleading, did not allow the jury to apply a minimum
standard generally applicable to all pilots.
- Result: New trial ordered.
Torts
Albert
9-16-09
Professional standard of care (cont.)
* Must have an expert to testify as to the standard of care and how it was breached; unless, the duty of
breach was obvious to a lay juror
* Exercise of best judgment and use of due care are two other elements used when evaluating the
standard of care
Hodges v. Carter
- A negligence lawsuit brought by Hodges against previous attorneys who were handling a fire
insurance claim
- Hodges’ store was destroyed by fire
- The attorneys filed 4 actions against 4 insurers, served the lawsuits by mail as opposed to having
it served personally on the insurance commissioner
- Insurers argued that the insurance commissioner did not have authority to accept service
- Hodges’ alleges the defendants failed to have process properly served, and sue out alias
summonses at the time the insurers filed their motions to dismiss
- Issue: Were the attorneys negligent?
- Holding: No.
- Rationale: When an attorney engages in the practice of law, it is implied that (1) he possesses
the requisite degree of learning, skill, and ability necessary to the practice of his profession and
which others similarly situated ordinarily possess; (2) he will exert his best judgment in the
prosecution of the litigation entrusted to him; (3) he will exercise reasonable and ordinary care
and diligence in the use of his skill and in the application of his knowledge to his client’s cause.
Plaintiff failed to bring sufficient evidence to prove that defendants breached any duty. The
attorneys were following a custom of mailing the summons to the insurance commissioner.
- Result: Judgment affirmed.
* In an attorney malpractice suit, the plaintiff must show that but for the attorney’s negligence the
client would have been successful in prosecuting or defending the claims
* A mistake does not reach a violation of the standard of care
Torts
Albert
9-22-09
Rules of Law
3 ways to decide the standard of care
* A jury decides after evidence and trial
* A judge may decide as a matter of law what a reasonable and prudent person would have done (in a
negligence matter)
* A state legislature or administrative agencies can set a standard of care
Pokora v. Wabash Ry. Co.
- US Supreme Court, 1934
- Plaintiff was driving a truck, approached railroad tracks, got out of his vehicle to look and listen
for a train, did not see anything, proceeded across the track and was hit by a passenger train
- Trial court directed a verdict for the defendant under the theory of contributory negligence
- Plaintiff appeals to COA, judgment affirmed
- Issue: Whether the trial court erred in granted a directed verdict on the issue of contributory
negligence?
- Holding: Yes.
- Rationale: Whether Plaintiff’s failure to get out and survey the scene as he was crossing the
tracks constituted negligence, was a question for the jury to decide. In default of the guide of
customary conduct, what is suitable for the traveler caught in a mesh where the ordinary
safeguards fail him is for the judgment of a jury.
Osborne v. McMasters
- Supreme Court of MN, 1889
- Plaintiff on behalf of its decedent sued McMasters for a death that resulted from use of poison
sold without a label by one of his employees
- The statute required the poison to be labeled as a “Poison”
- Rationale: Where there is a statute requiring a person to do a specific duty, if they fail to do that
duty, then that is negligence and they are liable for the injuries as a result of that neglect.
Violation of the statute was conclusive evidence of negligence. “All that the statute does is to
establish a fixed standard by which the fact of negligence may be determined (p. 205).”
Stachniewicz v. Mar-Cam Corp.
- Supreme Court of Oregon, 1971
- An individual was a part of a bar fight and sustained injuries by other customers, sues the
operator of the bar for personal injuries
- Jury finds for defendant, plaintiff appeals
- Issue: Whether the violations of Oregon regulations constituted negligence as a matter of law?
- Holding: Yes.
- Rationale: A violation of a statute or regulation constitutes negligence as a matter of law when
the violation results in injury to a member of the class of persons intended to be protected by
the legislation and when the harm is of the kind which the statute or regulation was enacted to
prevent.
- Result: Judgment reversed.
Ney v. Yellow Cab Co.
- Illinois Supreme Court, 1954
- There was an unattended cab, the cab was stolen and hit the plaintiff’s vehicle
- Plaintiff alleges the defendant violates the Uniform Traffic Act
- The appellate court affirmed the trial court’s judgment against the Defendant
- Defendant alleges that this was a traffic regulation not a statutory antitheft measure
- Plaintiff alleges the UTA was a safety measure for the benefit of the public
- Issue: Is the violation of the statute the proximate cause of the injury?
- Holding: Yes.
- Rationale: Violation of the statute is prima facie evidence of negligence (per se).
Torts
Albert
9-23-09
Negligence: Violation of Statute
Perry v. S.N. and S.N.
- Texas Supreme Court, 1998
- Suit arising out of abuse of children at a daycare center
- Plaintiff alleged that defendant witnessed the abuse and failed to report it
- Defendant alleged plaintiffs failed to state a cause of action
- Issue: Whether the plaintiffs may maintain a cause of action for negligence per se based on the
Family Code? Is it appropriate for the Court to impose tort liability?
- Holding: No.
- Rationale: All persons have a duty to obey the criminal law, but not an equivalent duty in tort.
The statute criminalizes only the knowingly failure to report, the negligence to do so does not
create tort liability. Abuse and non-reporting have different legal consequences, as expressed by
the legislature.
- Result: Judgment reversed, plaintiffs take nothing.
Effect of Statute
Martin v. Herzog
- Court of Appeals of New York, 1920
- Buggy was traveling on the highway, was hit by another driver, husband was killed
- Defendant driver alleged the decedent was driving with no lights
- There was an admitted violation of driving with no lights
- Rationale: Violation of not using statutory signals is negligence. There is a causal connection due
to the plaintiff’s negligence.
- Result: Judgment affirmed.
Zeni v. Anderson
- Supreme Court of Michigan, 1976
- Plaintiff was hit by a car while walking in the street
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Statute clearly stated pedestrians needed to use sidewalks
Defendant alleged contributory negligence in violation of the statute
Rationale: If there is sufficient excuse or justification, there is ordinarily no violation of statute
and the statutory standard is inapplicable. Liability without fault is not truly negligence. The
statute itself provides a guideline for the jury, for a violation will not occur when it is
impracticable to use the sidewalk…the statute provides not only a legislative standard of care
which may be accepted by the court, a legislatively mandated excuse.
Result: Court of Appeals reversed, trial court affirmed.
* The legal effect of violation of statute creates a presumption of negligence, which a party can rebut
with evidence of excuse or justification (this is in a small number of states)
Torts
Albert
9-28-09
Proof of Negligence
* in most cases, negligence is proven by testimonial evidence
* Physical evidence is typically successful in proving negligence
* Circumstantial evidence creates an inference of negligence
- How long was the banana peel there?
- Did the defendant have adequate notice of the condition?
Court and Jury: Circumstantial Evidence
Slip and fall food cases
Goddard v. Boston & Maine R.R. Co.
- Supreme Judicial Court of Massachusetts, 1901
- Goddard sued B&M railroad for personal injuries received by falling on a banana skin that was
lying on a platform
- The trial court directed a verdict for defendant
- Plaintiff appealed
- Issue: Was B&M negligent?
- Holding: No.
- Rationale: The banana peel could have been dropped within a minute of Goddard falling (by
another passenger).
Anjou v. Boston Elevated Railway Co.
- Supreme Judicial Court of Massachusetts, 1911
- Anjou brought a claim for personal injuries when walking along a narrow platform she slipped
on a banana peel
- The banana was described as dry, gritty, trampled, flattened down
-
-
Issue: Was there negligence on the part of Boston Railway?
Holding: Yes.
Rationale: From the appearance of the banana, it can be reasonably inferred that the banana
was there for a significant period of time. It should have been seen by the employees if they
were reasonably careful in performing their duty. Obligation remains with the defendant to
keep its station reasonably safe.
Result: Judgment for the plaintiff.
Joye v. Great Atlantic and Pacific Tea Co.
- Joye slipped and fell on banana peel in a supermarket
- Plainitff won at the trial court level, defendant appealed
- Issue: Was GAPT negligent?
- Holding: No.
- Rationale: There was no evidence that the banana was on the floor for any significant period of
time.
- Result: Judgment reversed.
Ortega v. Kmart Corp.
- Supreme Court of California, 2001
- Ortega slipped on a puddle of milk and sustained injuries to his knee
- Plaintiff sued Kmart for personal injuries
- Plaintiff alleged that he had evidence that Kmart had not inspected the floor prior to his fall
- Plaintiff won at the trial court level
- Issue: Was there negligence on the part of Kmart?
- Holding: Yes.
- Rationale:
- Result: COA judgment affirmed.
Jasko v. F.W. Woolworth Co.
- Supreme Court of Colorado, 1972
- Plaintiff was injured after slipping on a piece of pizza that was on the floor
- Plaintiff did not allege that the defendant dropped the floor around the time of her fall, but did
allege that it was part and parcel of their business to have these kind of incidents
- Judgment was found for the defendant
- Issue: Was there negligence on the part of Woolworth?
- Holding: Yes.
- Rationale: The dangerous condition was created by the business’s method of sale. There was a
reasonable probability that food would drop on the floor.
- Result: COA ruling reversed, cause remanded for new trial.
H.E. Butt Groc. Co. v. Resendez
-
Res Ipsa Loquitor
* Not favorable to plaintiffs, all you would get a reasonable inference
* Use it when you don’t have anything else, when the instrumentality that causes the harm is in the
exclusive control of the defendant, and the harm would not have happened but for some negligence
* Burden of proof is extremely high on the plaintiff
* “The thing speaks for itself”
Byrne v. Boadle
- Court of Exchequer, 1863
- Plaintiff was walking in front of the defendant’s shop and a barrel of flour fell upon him from a
window
- Trial court ruled there was no evidence for the jury
- There was no evidence connected the defendant or his servants
- Rationale: The mere fact of the occurrence is evidence of negligence. “the fact of its falling is
prima facie evidence of negligence, and plaintiff is not bound to show that it could not fall
without negligence”
- Result: Verdict entered for the Plaintiff.
McDougald v. Perry
- Supreme Court of Florida, 1998
- Perry’s spare tire from his tractor-trailer came off and collided with Plaintiff’s windshield
- Jury found for McDougald using a res ipsa locquitur instruction
- On appeal, COA reversed and gave instructions for a directed verdict
- Rationale: The accident would not have happened but for the negligence on the part of the
person who controls the instrumentality. Res ipsa locquitur is a rule of evidence.
Larson v. St. Francis Hotel
- District Court of Appeal of California, 1948
- Plaintiff was walking on the sidewalk and was struck on the head by a chair and knocked
unconscious
- No exclusive control of the chair by the hotel
Ybarra v. Spangard
- Supreme Court of California, 1944
- Plaintiff developed parathesis to his arm (as a result of anesthesia) during an unrelated surgery
- Plaintiff suit was dismissed at the trial court level
- Issue: Is res ipsa locquitur applicable?
- Holding: Yes.
- Rationale: The defendant is called upon to explain the unusual result. Any defendant who
negligently injured him, and any defendant charged with his care who so neglected him as to
allow injury to occur, would be liable. Defendants argued that plaintiff had to know who was
negligent in order to use res ipsa locquitur, the court did not agree stating “If we accept the
-
contention of defendants herein, there will rarely be any compensation for patients injured
while unconscious.” Where a plaintiff receives unusual injuries while unconscious and in the
course of medical treatment, all those defendants who had any control over his body or the
instrumentalities which might have caused the injuries may properly be called upon to meet the
inference of negligence.
Result: Judgment reversed.
Sullivan v. Crabtree
- Court of Appeals of Tennessee, 1953
- Plaintiff suing because their adult son died in a truck that swerved off the road
- Suit was brought against the owner of the truck and the driver
- Owner was originally dismissed, trial went forward against the driver, the driver won a
judgment, and plaintiff appealed
- Plaintiff alleged in the absence of outright facts proving negligence, defendant driver could still
be held liable for negligence under res ipsa locquitur; also alleged there was no evidence for a
defense verdict
- Issue:
- Holding:
- Rationale: Res ipsa locquitur means that the facts of the occurrence evidence negligence; the
circumstances unexplained justify an inference of negligence. There was a case to be made for
the jury to decide; it was for the jury to decide which inference was more probable.
- Result: Judgment affirmed.
Torts
Albert
10-05-09
Causation in Fact – Proof of Causation
* There are two different forms of causation: causation in fact and proximate cause/legal causation
* The “But for…” test – the defendant’s conduct is a cause of the event if the event would not have
occurred but for that conduct; conversely, the defendant’s conduct is not a cause of the event if the
event would have occurred without it
Sine Qua Non – without which it is not
Perkins v. Texas and New Orleans Ry. Co.
- Supreme Court of LA, 1962
- Action arising from a car collision with a train
- Plaintiff won at the trial court and appellate level
- There was an obstruction in view of the railroad car; however, the operators of the train were
aware of the obstruction
-
-
Both occupants in the vehicle were killed
The train was traveling at 37 mph, beyond the required speed limit of 25 mph
Appellate court found that the train operators were negligent in operating the train 12 miles
faster than the speed limit
Plaintiff argued that if the defendants were traveling at a slower speed the accident “might not”
have happened  this does not meet the standard of negligence
Issue: Whether the excessive speed of the train was a cause in fact of the fatal collision?
Holding: Can’t collect damages in a negligence suit without proving that the negligence is a
cause in fact of the harm for which recovery is sought (Does not need to be the sole cause, only
a substantial factor). The accident would have happened irrespective of the speed of the train,
and thus the excessive speed was not a substantial factor.
Rationale:
Result: COA judgment reversed, plaintiff’s suit dismissed.
Reynolds v. Texas & Pac. Ry. Co.
- Court of Appeals of LA, 1885
- Plaintiff fell down a stairway (with unlighted steps) and sustained injuries
- Plaintiff was a larger woman who was hurried along to catch a train
- At the trial court level, plaintiff was awarded damages of $2000
- Issue: Was defendant negligent?
- Holding: Yes.
- Rationale: Where the negligence of the defendant greatly multiplies the chances of accident to
the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it
might have happened without the negligence is not sufficient to break the chain of cause and
effect between the negligence and the injury. There is a connection between the accident and
the alleged negligence.
- Result: Judgment affirmed.
Gentry v. Douglas Hereford Ranch, Inc.
- Supreme Court of MT, 1998
- Defendant was on a ranch with a rifle on his shoulder, he stumbled and accidentally shot Gentry
in the head, Gentry died a few weeks later
- Gentry’s husband brought a wrongful death action against Bacon (D), ranch company, and a
cattle company that leased part of the ranch
- Gentry alleged Bacon was negligent in handling the rifle, and the cattle company and ranch
company were negligent in the maintenance of some deck stairs
- Trial court found for the defendants, plaintiff appealed
- Defendants presented evidence within their motion for summary judgment that Bacon was
unable to attribute his fall to the condition of the stairs; and that he had fallen on the same
steps prior to the incident
- Issue: Did trial court err in finding no negligence on the part of the defendants?
- Holding: No.
-
-
Rationale: Negligence actions have four elements that need to be proved: (1) existence of a
duty, (2) breach of the duty, (3) causation, and (4) damages. Failing to prove any of the
elements means that there is no negligence. Plaintiff was unable to prove that the conditions
of the ranch contributed to Bacon’s fall.
Result: Judgment of the district court affirmed.
Kramer Service, Inc. v. Wilkins
- Supreme Court of MS, 1939
- Plaintiff was injured while staying in the defendant’s hotel, by a piece of glass. Injury was
present 3 years after the incident, skin cancer did also develop
- There was medical testimony that the resulting cancer could have been from the incident, but
the chances were 1 out of 100; no causal connection
- Issue:
- Holding:
- Rationale: It is not enough that negligence of one person and injury to another coexisted, but
the injury must have been caused by the negligence. Possibilities do not sustain a verdict. The
jury are laymen, and must depend upon the testimony of specialists (in this case, undisputed
medical testimony).
- Result: Affirmed as to liability, reversed and remanded on the issue of the amount of damages.
Herskovits v. Group Health Cooperative of Puget Sound
- Supreme Court of Washington, 1983
Plaintiff’s decedent had only a 50% chance of survival upon presentation to the doctor; it was
stipulated that the doctor negligently failed to diagnose decedent’s cancer and it proximately
caused a 14% reduction in the decedent’s life expectancy
- Issue: Whether there can be an action for professional negligence when the Plaintiff cannot
show or prove that with timely diagnosis and treatment, the decedent probably would have
lived to normal life expectancy? Whether a patient with less than a 50% chance of survival has a
cause of action against the hospital and its employees if they are negligent in diagnosing a lung
cancer which reduces his chances of survival by 14%?
- Holding:
- Rationale: Used Hamil (a PA supreme court case) in its analysis, which stated that a plaintiff may
demonstrate that the defendant’s acts or omissions have increased the risk of harm to another
and that such evidence furnishes a basis for the jury to make a determination as to whether
such increased risk was in turn a substantial factor in bringing about the resultant harm. The
medical evidence showing a reduction in chance of survival was sufficient to allow the case to go
to a jury.
- Result: Judgment reversed and plaintiff’s action reinstated.
Daubert v. Merrell Dow Pharmaceuticals
- US COA, 9th Cir. 1995
-
Two minors brought suit for birth defects that may have been caused as a result of a morning
sickness medication produced by Dow, and taken by their mothers
- Issue: Whether certain expert scientific testimony is admissible to prove that Benedectin caused
the plaintiff’s birth defects?
- Holding:
- Rationale: Causation can be proved even when we don’t know precisely how the damage
occurred, if there is sufficiently compelling proof that the agent must have caused the damage
somehow. Scientific evidence is admissible if it is based on a technique generally accepted
within the scientific community. Must determine whether the testimony reflects “scientific
knowledge”, findings derived by scientific method, and whether the work product amounts to
good science.  Daubert test
- Result: District Court affirmed.
* If someone is testifying as to scientific knowledge in a causation case, that testimony has to be reliable
Concurrent Causes
Hill v. Edmonds
- Supreme Court of NY, App. Division, 1966
- Plaintiff collided with the defendant’s tractor that was left in the middle of the road
- Trial court dismissed plaintiff’s claim, stating she was negligent.
- Rationale: The accident could not have happened had not the truck owner allowed his unlighted
tractor to stand in the middle of the highway. Where separate acts of negligence combine to
produce directly a single injury each tortfeasor is responsible for the entire result, even though
their individual act might not have caused it.
- Result: Complaint reinstated, new trial granted.
Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co.
- Supreme Court of MN, 1920
- Initial fire was caused by an engine of the railroad company
- The case arises from a fire that caused damage to Plaintiff’s property
- The original fire joined with a fire of unknown origin and burned over the property
- Rationale: Irrespective of whether the first fire was or was not a material factor in the
destruction of property, there is liability (on the part of the negligent person)
- Result: Order affirmed.
Problems in Determining Which Party Caused the Harm
Summers v. Tice
- Supreme Court of California, 1948
- Plaintiff was shot while hunting; there was a quail and two of the defendants shot at it and in
the plaintiff’s direction
- At the trial court level, judgment was found for the Plaintiff
-
-
Rationale: (When part of a hunting party…) Both parties are liable for the injury suffered by the
third party, although the negligence of only one of them could have caused the injury. The
innocent party should not be deprived of redress.
Result: Judgment affirmed.
Sindell v. Abbott Laboratories
- Supreme Court of California, 1980
- Plaintiff’s mother ingested a drug that was marketed by the defendants, Plaintiff was born and
as an adult has developed cancer as a result of exposure to the drug; couldn’t identify the actual
manufacturer of the drug
- Case was dismissed at the trial court level, said no concert of action among the defendants and
all defendants were not present before the court
- Issue: Can a plaintiff hold liable for her injuries a maker of a drug produced from an identical
formula?
- Holding: Yes.
- Rationale: Their conduct in marketing a drug the effects of which are delayed for many years
played a significant role in creating the unavailability of proof.
- Result: Judgment reversed.
* This case involves causation involving mathematical probability
Torts
Albert
10-06-09
Proximate or Legal Cause
QUESTION: the difference b/w prox cause and cause in fact is that one involves foreseeability and the
other involves the “but for” test?
* Is a limitation on recovery
* If the plaintiff’s injury is beyond the type of harm to be expected from the defendant’s conduct,
plaintiff will likely lose
* Whether a particular type of injury to the plaintiff is foreseeable, the defendant is liable for the injury
sustained, even though it is more serious than might have been anticipated
* An injury does not have to be likely or probable in order to be foreseeable in proximate cause analysis
Atlantic Coast Line R. Co. v. Daniels
- Court of Appeals of GA, 1911
- Courts deal with cause in a limited way, and consider what is practical and within the scope of
ordinary human understanding
Ryan v. New York Central R.R. Co.
- Court of Appeals of NY, 1866
-
Defendant set its own woodshed on fire, plaintiffs house caught fire as a result
Issue: Is the owner of the first building liable to the second owner for the damage sustained by
such burning?
- Holding:
- Rationale: A person is liable for their own acts, and the proximate results of his own acts. The
action cannot be sustained for the reasons that the damages incurred are not the immediate
but the remote result of the negligence of the defendants. The immediate result was the
destruction of his own woodshed, beyond that, other damages were remote.
- Result: Judgment affirmed.
* Plaintiff’s harm cannot be viewed as too remote from the negligent act
Defendant sets
its woodshed on
fire
Sparks from fire
set the plaintiffs
house on fire
Other houses
catch fire,
plaintiff sues
Bartolone v. Jeckovich
- Supreme Court of NY, 1984
- Plaintiff was in a car collision and as a result manifested a psychotic condition that may have
been pre-existing
- Defendant doctor said he was malingering
- Jury awarded damages, and the verdict was set aside saying that the jury could not have
reached its conclusion
- Rationale: The jury could have found an aggravation of pre-existing illness. The Defendant’s
argument is not plausible because the condition would not have manifested itself but for the
accident.
- Result: Order reversed, jury verdict reinstated.
* Take your plaintiffs as you find them - responsible for aggravation of pre-existing condition
In re Arbitration Between Polemis and Furness, Withy & Co., Ltd.
- Court of Appeal, 1921
- A board came off the vessel and hit the hold where there was fuel stored, caused an explosion
and destroyed the vessel
- The arbitrator decided that a spark ignited the fuel, and the spark was caused by the falling
board, and the spark came into contact with something in the hold, and that the causing of the
spark could not reasonably have been anticipated from the falling of the board
-
Rationale: It was immaterial that the causing of the spark by the falling of the plank could not
have been reasonably anticipated. Given the breach of duty which constitutes the negligence,
the anticipations of the person whose negligent act has produced the damage appear irrelevant.
The fact that the results and damages were unexpected, does not relieve the negligent person
from the damage which his negligent act directly caused.
- Result: Appeal dismissed.
* If the plaintiff’s harm is within the circle of reasonable foreseeability, it can be proximately caused by
the defendant’s negligence.
* A defendant is liable if the conduct is a direct cause of the plaintiff’s injury, as opposed to a remote
cause
Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engineering Co., Ltd. “Wagon Mound No. 1”
- Privy Council, 1961
- There was an oil spill at plaintiff’s wharf at a time prior to the incident, there was a fire that was
ignited in the wharf by plaintiff’s employees, plaintiff brought an action for damages against the
person who spilled the oil
- Trial court found for plaintiff, on appeal it was reversed
- Rationale: A man must be responsible for the probable consequences of a negligent act. It is
vain to isolate the liability from its content. “Liability for fire is foreseeability of injury by fire”
- Result: Action for damages caused by negligence dismissed.
* Defendant should still be liable even if there are intervening causes
* If the defendant should have anticipated a particular risk at the time he acted, and he negligently
failed to avert that risk, he would be liable if that risk caused the plaintiff’s harm
“ “ Wagon Mound No. 2
- Privy Council, 1966
- Same facts
- This case was brought by the ship owners
- Elaborated more on the issue of foreseeability
- Rationale: Some risk of fire was foreseeable. It is not reasonable to neglect such a risk, unless
there was a valid reason for doing so. The ship’s engineer should have known the associated
risks.
- Result: Appeal of the ship owners allowed.
Palsgraf v. Long Island R.R. Co.
- Court of Appeals NY, 1928
- Majority opinion written by Justice Cardozo
- Conductors were hurriedly helping a man board a train, the main dropped a package that had
firecrackers in it, the firecrackers exploded and injured Ms. Palsgraf
- Defendant claimed that there was only foreseeable risk of injury to the passenger and his
package, not to Plaintiff
-
Rationale: The Court held that the duty to avoid injuring others extends only to those risks the
actor should anticipate from her negligent act. The defendants owed no duty to Ms. Palsgraf (to
avoid the injury) only to the passenger they were helping. Risk to an unforeseeable plaintiff is
not recoverable. “A plaintiff must show a wrong to herself, i.e. a violation of her own right, and
not merely a wrong to someone else, nor conduct wrongful because unsocial, but not a wrong
to anyone.” There is risk and risk to others within the range of apprehension…
QUESTION: Would Ms. Palsgraf have had a claim against the man who owned the fireworks?
Torts
Albert
10-7-09
Proximate or Legal Cause (cont.)
Unforeseeable Consequences
Yun v. Ford Motor Co.
- Superior Court of New Jersey, 1994
- A spare tire and other part (spare tire assembly) had loosened from Yun’s van and slid across
lanes of traffic, Chang (Yun’s father) went across the lanes and was hit by an oncoming vehicle
- Ford did not manufacture the assembly, Universal did
- Plaintiff appeals MSJ that was granted to defendants
- The appellate court says that plaintiff must prove that the alleged defect in the spare tire
bracket assembly proximately caused the injuries sustained by Chang
- Rationale: Proximate cause is a standard for limiting liability for the consequences of an act. The
question is to figure out whether Chang’s conduct was reasonably foreseeable or highly
extraordinary. Chang’s actions were viewed (by the Court) as extraordinarily dangerous. The
van was safe to drive and Chang’s actions were not necessary; the alleged defect did not injure
Chang, his recklessness did. Also, the decision not to repair the defect upon notice by Kim’s
service station, was an intervening superseding cause of Chang’s injuries.
- Result: MSJ order affirmed.
Intervening Causes
Derdiarian v. Felix Contracting Corp.
- New York Court of Appeals, 1980
- An employee suffered a seizure and his equipment ran into plaintiff causing significant injuries
- Plaintiff alleged the contracting company failed to take adequate measures to insure the safety
of workers on the excavation site
- Issue: Whether the intervening act is a normal or foreseeable consequence of the situation
created by the defendant’s negligence?
- Holding:
-
-
Rationale: Where the acts of a third person intervene between the defendant’s conduct and the
plaintiff’s injury, the causal connection is not automatically severed. A jury could have found
that Felix failed to protect the excavation site. Even if the third party was negligent and even
reckless, Felix does not escape liability. An intervening act may not serve as a superseding
cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is
the very same risk which renders the actor negligent.
Result: Appellate Division opinion affirmed.
*If the third party act is so far removed from the defendant’s conduct, it can be considered a
superseding cause, and severs the causal connection link to the original defendant
* In order for an intervening cause to be a superseding cause - a person must foresee the normal
consequences of his conduct, but is not responsible for extraordinarily negligent intervening acts of third
persons. Restatement § 477
Watson v. Kentucky & Indiana Bridge & R.R. Co.
- Court of Appeals of Kentucky, 1910
- A train car full of gasoline derailed(due to negligence) and caused gas to seep onto the street,
Plaintiff lit a match and was injured as a result of an ignited fire
- There was testimony that Duerr intentionally lit the fire
- Trial court directed a verdict against plaintiff
- Issue: Was that act (lighting the match) merely a contributing cause or the efficient, and
therefore proximate cause of appellant’s injuries? Did trial court err in directing a verdict against
plaintiff?
- Holding: Yes.
- Rationale: It was a question for the jury to decide whether Duerr acted maliciously and with
intent in causing the explosion. The lighting of the match did not product the explosion by itself
(“without the assistance and contribution resulting from the preliminary negligence, pg. 330).
The mere fact that the concurrent cause or intervening act was unforeseen will not relieve the
defendant guilty of the primary negligence from liability, but it was so extraordinary or so
unanticipated that he will not be liable, and certainly not bound to anticipate the criminal accts
of others by which damage is inflicted and hence is not liable therefore.
- Result: Judgment reversed, cause remanded for new trial.
* Intervening criminal third party acts do not extinguish the preliminary defendant’s liability
* Today, criminal conduct no longer automatically interrupts the causal link (it may have still been
foreseeable)
Fuller v. Preis
- New York Court of Appeals, 1974
- Wrongful death action
-
-
Plaintiff’s decedent committed suicide about 7 months after a car collision wherein he believed
he was uninjured, suffered a closed head injury
Plaintiff suffered from seizures, lost his medical practice, was unable to recognize his wife, etc.
His wife heard him mutter “I must do it” then a gunshot, plaintiff died the next day
Estate brought a claim citing that the car collision was a proximate cause to the suicide
Jury awarded $200k, appellate division set aside the verdict and dismissed the complaint
Issue: Whether plaintiff’s evidence of cause of suicide was sufficient to withstand dismissal of
the complaint?
Holding: Yes.
Rationale: Plaintiff’s decedent was incapable of resisting the impulse to destroy himself. There
was no remoteness between the links preceding the suicide. It was foreseeable that someone
could injure himself in a car accident, and have a head injury follow.
Result: Order of the Appellate Division reversed, new trial granted.
Torts
Albert
10-12-09
* Polemis stood for the proposition that you do not have to see the exact result/harm, but you have to
or should see some risk of harm to others as a result of your conduct
* In these cases, defendant will argue the result was too remote while plaintiffs will argue the result was
within the circle of reasonable foreseeability; the jury will draw the line
* Activity wherein which you are engaging, either there is foreseeability of harm or there is not
Intervening Causes
McCoy v. American Suzuki Motor Corp.
- Supreme Court of Washington, 1998
- McCoy was helping the state trooper with a car accident, and was hit by a vehicle
- McCoy sued Suzuki for a defective vehicle
- There was evidence of the Suzuki passenger grabbing the wheel, and the vehicle was fishtailing
- Suzuki moved for MSJ, it was granted
- Issue: Does the rescue doctrine apply in product liability actions? Must Plaintiff show proximate
causation under the rescue doctrine? Did Suzuki proximately cause McCoy’s injuries?
- Holding: Yes/Yes/Maybe
- Rationale: The rescue doctrine allows the plaintiff to sue the person who necessitated the
rescue. These elements (the rescuer must establish) set forth on pg. 339.
- Result: Case remanded.
Public Policy
Kelly v. Gwinnell
- Supreme Court of New Jersey, 1984
- Gwinnell was in a head-on collision with Kelly, after having consumed alcoholic beverages
- Zak was not held liable for their guest getting intoxicated
- Issue: Whether a social host who enables an adult guest at his home to become drunk is liable
to the victim of an automobile accident caused by the drunken driving of the guest
- Holding: Yes
- Rationale: When negligent conduct creates such a risk, setting off foreseeable consequences
that lead to plaintiff’s injury, the conduct is deemed the proximate cause of the injury. It was
reasonable to think Gwinnell could cause harm to someone in his severely intoxicated state.
The court held that a host who serves liquor to an adult social guest knowing both that the guest
is intoxicated and that he will thereafter be operating a motor vehicle is liable for injuries
inflicted on a third party as a result of the negligent operation of motor vehicle by the adult
guest when such negligence is caused by intoxication. Public policy considerations outweigh any
defense.
- Result: Reversed MSJ and case remanded.
Enright v. Eli Lilly & Co.
- Court of Appeals of New York, 1991
- Plaintiff ingested a medicine that was supposed to prevent miscarriages, ended up suffering
several miscarriages and finally birthed a baby(prematurely) that had abnormalities
- Enright’s claims were dismissed at the trial court level
- The legislature had noticed the effects of the drug, and removed barriers to tort recovery in
claims against DES manufacturers
- Rationale: Liability can be imposed upon DES manufacturers in accordance with their share of
the national DES market, notwithstanding the plaintiff’s inability to identify the manufacturer
particularly at fault for her injuries. The court refused to recognize a cause of action for the
child as a result of the product defect. Liability is limited to those who ingested the drug or
were exposed to it in utero services. The manufacturers remain amenable to suit by all those
injured by exposure to their product, a class whose size is commensurate with the risk created.
- Result: Cause of action dismissed.
* Proximate cause was applicable in a strict liability products liability claim as opposed to a negligence
action
* A case about remoteness and space of time(a lapse in time and distance)
* Generational lapse in time
SYNTHESIS of the chapter
* Two approaches to proximate cause: hindsight/direct causation OR foreseeability
* Examples from pg. 356-57:
(a) Yes, foreseeable
(b) Yes, foreseeable
(c) Yes, foreseeable
(d) Maybe
(g) Not foreseeable
(i) Not foreseeable
Joint Tortfeasors
Liability and Joinder of Defendants
Bierczynski v. Rogers
- Supreme Court of Delaware, 1968
- Plaintiffs were hit by motorists were drag racing
- A jury found the defendant B to be negligent and that the Rogers’ injuries were proximately
caused by the negligence
- Defendant B did not come into contact with the plaintiff’s vehicle but was engaged in racing the
other defendant (Race)
- The violation of the traffic statute was negligence per se in most states, not in Delaware (no
statute)
- The Court has considered the racing as negligence
- Rationale: Those who engage in racing do so at their own peril, are liable for injury or damage
sustained by a third person as a result thereof, regardless of which of the racing cars directly
inflicted the injury or damage. Each party is liable for resulting harm.
- Result: No error, judgments affirmed.
* Defendant B was liable because he “acted in concert” with the other defendant by racing on the
highway
* By law, plaintiffs are not required to join multiple defendants in the same action
* Joint and several liability mean that each of several tortfeasors is liable jointly with the others for the
amount of the judgment against them, and that each is also individually liable for the full amount - The
plaintiff can collect from any of them
Coney v. J.L.G. Industries, Inc.
- Supreme Court of Illinois, 1983
- Wrongful death action
- Jasper (Coney is the admin of the estate) died while operating a platform manufactured by the
defendant
- Issue: Whether the doctrine of comparative negligence or fault is applicable to actions or claims
seeking recovery under products liability or strict liability in tort theories?
- Holding: Yes.
- Rationale: A concurrent tortfeasor is liable for the whole of an indivisible injury when his
negligence is a proximate cause of that damage. The court adopted the theory of comparative
negligence as opposed to contributory negligence; the latter would bar recovery completely for
Plaintiff.
*Even though the tortfeasor may have only been the cause of 10% of plaintiff’s damages, they are held
liable for 100% of the damages under the theory of joint and several liability
* If all tortfeasors are insured, there is no need for joint and several liability
Torts
Albert
10-14-09
Joint Tortfeasors (cont.)
* In theory, comparative negligence should have the same result as a case drawn on the theory of joint
and several liability (pg. 369, note 2)
* Under joint and several liability, the plaintiff can collect (all of their claimed damages) from one or
more tortfeasors and leave it to that defendant to seek contribution or bear the loss alone; under
several liability, the tortfeasor only pays his apportioned share
Bartlett v. New Mexico Welding Supply, Inc.
- Court of Appeals, New Mexico, 1982
- There was a 3-car accident, with the leading defendant’s car being unknown, and the named
defendant having rear-ended the plaintiff’s car
- Plaintiff sued defendant alleging negligence
- Defendant contended the other tortfeasor caused the entire damage
- Verdict for the plaintiffs at the trial court level, district court ordered new trial, defendant filed
for interlocutory appeal
- Issue: Whether in a comparative negligence case, a concurrent tortfeasor is liable for the entire
damage caused by concurrent tortfeasors?
- Holding: No.
- Rationale: Joint and several liability means that either of two persons whose concurrent
negligence contributed to cause plaintiffs’ injury and damage may be held liable for the entire
amount of the damage caused by them. The mere fact that it may be possible to assign some
percentage figure to the relative culpability of one negligent defendant as compared to another
does not in any way suggest that each defendant’s negligence is not a proximate cause of the
entire indivisible injury (CALIFORNIA LAW  this is rejected by the New Mexico court,
considered “obsolete” pg. 368). A plaintiff does not have to be favored when considering joint
and several liability.
- Result: Order granting new trial reversed. Cause remanded.
Torts
Albert
10-20-09
Satisfaction and Release
Bundt v. Embro
-
Supreme Court of NY, Queens County, 1965
It was negligence action involving 5 plaintiffs, who had gotten into a car accident
They also sued a contractor of the state (NY) and obtained a judgment
Defendants moved to amend their answer to include an affirmative defense of discharge and
satisfaction
- Rationale: One who has been injured by the joint wrong of several parties may recover his
damages against either or all, but although there may be several suits and recoveries but there
can only be one satisfaction.
- Result: Leave to amend granted.
* Plaintiff may bring separate actions against defendants liable for the same damage, and may take each
to judgment, as long as he only collects one
Cox v. Pearl Investment Co.
-
Supreme Court of Colorado, 1969
Rationale: Where a contract has the effect of releasing one joint tortfeasor but expressly
reserves the right to sue others who may be liable, it should not in law be treated otherwise.
- Result: Judgment reversed and cause remanded.
* Satisfaction is receiving full compensation for the injury, based either on the plaintiff’s valuation of the
case (settlement) or the jury’s verdict - A plaintiff may receive only one satisfaction for an injury
* Satisfaction is acceptance of full compensation for the injury
* A release is a surrender of the plaintiff’s claim, which may be for only partial compensation or be fore
no compensation at all
Elbaor v. Smith
-
Supreme Court of Texas, 1992
This case involved a Mary Carter settlement agreement and whether it was constitutional under
the TX constitution
The jury was told about the agreement in advance (judge instructed them)
-
Rationale: There was collusion in the presentation of evidence. Presents a sham of adversity
between the plaintiff and one co-defendant, while the parties are actually allied for the purpose
of securing a substantial judgment for the plaintiff
- Result: Court finds this unconstitutional
* Public policy favoring fair trials outweighs our public policy favoring partial settlements
Contribution and Indemnity
* When a defendant is subject to pay an entire amount of damages, they have a right to seek
contribution from another tortfeasor (comparative fault changed the notion of contribution)  only
arises in situations of vicarious liability and joint and several liability jurisdictions
* Contribution will be less than 100%
Knell v. Feltman
-
US COA, D.C. 1949
Plaintiffs(Langland) were injured in a taxi owned by Feltman, the taxi was hit by Knell
Feltman sued Knell alleging contributory negligence
Issue: Is Feltman to be denied contribution because the Langlands neither asked nor obtained a
judgment against Knell?
- Holding: No.
- Rationale: The right to seek contribution belongs to the tortfeasor who has been forced to pay,
and the existence of the right cannot logically depend upon a selection of defendants made by
the plaintiff. When a tort is committed by the concurrent negligence of two or more persons
who are not intentional wrongdoers, contribution should be enforced; that a joint judgment
against such tortfeasors is not a prerequisite to contribution between them, it is immaterial
whether they were, or any of them was, personally negligent
- Result: Judgment of Feltman ($5,750 against Knell) affirmed.
* Employer has a right of contribution from the employee
Yellow Cab Co. of D.C., Inc. v. Dreslin
-
US COA, D.C., 1950
Plaintiff receives a judgment, husband was a tortfeasor and cab company was a tortfeasor
Cab company sues the husband for contribution
Rationale: The right to contribution arises from a joint liability and Dreslin (husband) was not
liable in tort to his wife. Neither husband nor wife is liable for tortious acts by one against the
other. (Spousal immunity)
Slocum v. Donahue
-
Court of Appeals, Massachusetts, 1998
Plaintiffs sued Donahue for negligence and gross negligence (killed an 18 month old child), and
Ford for breach of warranties of merchantability and fitness for a particular use (Floor mat
prevented defendant from braking)
- Ford settled with the plaintiffs prior to trial for $150k in exchange for release of any claim
- Ford then moved for summary judgment, saying the settlement agreement was given in good
faith
- Result: Judgment granting summary judgment affirmed.
* Indemnification is the legal right of one party to be reimbursed completely, the party seeking
indemnification must be vicariously liable (someone else is negligent with whom you have a relationship
i.e. employer/employee) and have a contractual right to be reimbursed
Torts
Albert
10-27-09
Apportionment of Damages
* Injuries obtained from the same incident with multiple tortfeasors are divisible
* Subsequent accidents will only hold the tortfeasor liable for exacerbations of previous injuries
Bruckman v. Pena
-
Colorado Court of Appeals, 1971
Plaintiff (Pena) was injured in a car collision with Bruckman in 1964; he was then injured a
second time in a car collision in 1965, aggravating his first injuries
Plaintiff only named Bruckman and owner of Bruckman’s truck in his 1965 action
A jury found for Pena and awarded $50k in damages
Issue: Did the trial court err in its instructions to the jury?
Holding: Yes.
Rationale: The instructions given by the court permit the plaintiff to recover damages against
the defendants for injuries which the plaintiff received subsequent to any ac t of negligence on
the part of the defendants and from causes for which the defendants were in no way
responsible. Places the burden of proof on defendants to show that plaintiff’s injuries were
separate and distinct and can be apportioned damages.
-
Result: Judgment reversed, cause remanded on this issue of damages only.
Michie v. Great Lakes Steel Division, Nat’l Steel Corp.
-
-
US COA, 6th Cir., 1974
37 plaintiffs filed an action against three corporations for alleged pollutants being carried onto
their property damaging them and persons
Issue: Under the law of the state of Michigan, may multiple defendants whose independent
actions of allegedly discharging pollutants into the ambient air thereby allegedly creating a
nuisance, be jointly and severally liable to multiple plaintiffs for numerous individual injuries
which plaintiffs claim to have sustained as a result of said actions, where said pollutants mix in
the air so that their separate effects in creating the individual injuries are impossible to analyze?
Holding: Yes.
Rationale: Where the negligence of two or more persons concur in producing a single, indivisible
injury, then such persons are jointly and severally liable, although there was no concerted action
Result: Judgment affirmed.
Dillon v. Twin State Gas & Electric Co.
-
Supreme Court of NH, 1932
A young boy was killed when he grabbed an active wire that was on a bridge
Issue: To decide whether the child would have been severely injured regardless of being
electrocuted
Rationale: To constitute actionable negligence there must be damage, and damage is limited to
those elements the statute prescribes.
Torts
Albert
10-28-09
Owners and Occupiers of Land
* These cases involve people who are injured off someone’s property, and while on someone’s property
* The duty that is owed by a landowner (to a person on the premises) is established by the status of that
person (trespasser, business invitee, licensees)
Taylor v. Olsen
-
Supreme Court of Oregon, 1978
Plaintiff was injured when she a hit a tree that was in the road; the tree was located on
defendant’s property
The trial court directed verdicts for the defendant(the adjoining landowner)
-
Rationale: The question is not so much whether defendant had some responsibility to give his
attention to the safety of this tree left behind by his logging operations as, rather, how far that
responsibility extends.
- Result: Directed verdict affirmed.
* General rule: no landowner liability (to persons outside the premises) for conditions that arise in the
state of nature; there is an exception in the case of trees because it is reasonably foreseeable that the
tree could cause harm to someone on or off the premises
Salevan v. Wilmington Park, Inc.
-
-
Superior Court of Delaware, 1950
Plaintiff was walking by a baseball stadium and was struck in the back by a baseball
Rationale: The landowner is to take reasonable precautions for the protection of the traveling
public. The defendant knew or should have known that baseballs did travel outside the park and
into the public highway.
Result: Judgment should be entered for the plaintiff.
Sheehan v. St. Paul & Duluth Ry. Co.
US COA, 7th Cir. 1896
Plaintiff was walking on the defendant’s railroad track, his foot got caught and he was unable to
free it and had his foot ran over by an oncoming train
- The trial court directed a verdict for the defendant stating that there was no wrongdoing on
their part
- Plaintiff appealed
- Rationale: Plaintiff was a trespasser, and if the railroad harmed the plaintiff in a wanton and
reckless way then they may be subject to liability and damages. Only need to exercise some
degree of care when the danger becomes apparent. Due to the unauthorized act, the risk and all
positive duty of care for his safety rests with the trespasser.
- Result: Judgment affirmed.
* If there is a “well-worn path”, then there is foreseeability as to trespassers
-
Barmore v. Elmore
-
Appellate court of Illinois, 2nd District, 1980
Plaintiff was on the defendant’s property to discuss Masonic business, was threatened by the
defendant’s son, and while trying to leave the property was stabbed by defendant’s son
Plaintiff contended that the defendant failed to protect him from a dangerous condition (the
son who had a mental illness)
Issue: Whether the plaintiff had the status of an invitee or of a licensee at the time he visited the
premises of the defendants?
Holding: He was a licensee, the son was not a known danger.
-
-
Rationale: An invitee is considered someone who enters the land in furtherance of the owner’s
business. A licensee is a social guest who enters the premises of the owner by permission, but
for the licensee’s own purposes. Owners are obligated to warn of known dangers and not to act
willfully and wantonly toward the licensee. It had been 10 years since the son’s last violent
episode and it was not of the nature of the alleged attack.
Result: Judgment affirmed.
Torts
Albert
11-2-09
Owners and Occupiers of Land (cont.)
* Posting a sign does not relieve liability in all cases, because it is not taking all reasonable steps to
prevent injuries
Invitees
Campbell v. Weathers
-
Supreme Court of KS, 1941
Defendant operated a lunch counter and cigar stand, the plaintiff was a frequent visitor to the
stand, but on the date of the accident he loitered and did not purchase anything
- Plaintiff went to use the bathroom, even though it was not specifically designated for public use,
and was injured
- Issue: Was plaintiff considered to be an invitee?
- Holding: Yes.
- Rationale: An invitee is one who is either expressly or impliedly invited onto the premises of
another in connection with the business carried on by that other. If one goes into a store with a
view of then, or at some other time, doing some business with the store, he is an invitee. If it
appears that a person had no intention of presently or in the future becoming a customer he
could not be held to be an invitee, as there would be no basis for any thought of mutual benefit.
- Result: Order sustaining the demurrer of the lessee is reversed.
* Those who enter premises upon business which concerns the occupier acquire the name of “invitees.”
Whelan v. Van Natta
-
Court of Appeals of KY, 1964
-
Plaintiff came into defendant’s grocery store and purchased cigarettes, then asked the
defendant for a box and was directed to the backroom of the store
- Plaintiff fell in an unseen stairwell and was injured
- Defendant did not warn plaintiff of the stairwell and did not know if the room was lit earlier that
day
- At the trial court level, judgment was for the defendant
- Trial court said that the plaintiff was a licensee and defendant owed no duty to provide a safe
place
- Issue: Did the status of appellant change from invitee to licensee after he made his purchase
and went into the storage room to obtain the box?
- Holding: Yes.
- Rationale: The possessor of land is subject to liability to another as an invitee only for harm
sustained while he is on the land within the scope of his invitation. Thus an invitee ceases to be
an invitee after the expiration of a reasonable time within which to accomplish the purpose for
which he is invited to enter, or to remain. Whether the business invitee has gone beyond the
scope of their invitation, depends on the owner’s consent.
- Result: Judgment affirmed.
* The scope of duty owed by an occupant to an invitee is one of reasonable care in all the
circumstances. Even though the danger is known to the plaintiff, the defendant may be found to be
negligent if it is not too difficult to eliminate the danger and he should reasonably anticipate that the
plaintiff might still be injured by it.
Persons outside the established categories
Children
* Restatement of Torts §339 governs trespassing children and attractive nuisances  no longer referred
to as “attractive nuisance” in common law
- 5 elements to be met, pg. 499
Persons privileged to enter irrespective of landowner’s consent
* Entitled to reasonable care at all times
* Can be classified as either invitees or licensees
Rejection or Merging of Categories
Rowland v. Christian
-
-
Supreme Court of California, 1968
Plaintiff Rowland was a social guest(licensee) and went to use the bathroom and the faucet
broke and injured her hand
Defendant knew about the condition, had alerted management 2 weeks prior, but did not
advise Rowland of the condition
Rationale: The status categories are not always sufficient in assessing the immunity of the
possessor of land. The court approaches the case on the ordinary principles of negligence 
rejects the common law categorizations. A man’s life or limb does not become less worthy of
protections by the law nor a loss less worthy of compensation under the law because he has
come upon the land of another without permission or with permission but without a business
purpose.
Result: Judgment reversed.
Dissent: Says this would open the door for potential unlimited liability.
Lessor and Lessee
* Lessee as the person in possession of the land having the burden of maintaining the premises in a
reasonably safe condition to protect persons who come upon the land (the tenant initially has this
burden)
* Governed (not mandatory) by Restatement §358 and §379
Borders v. Roseberry
-
Supreme Court of KS, 1975
Rationale: The relationship of landlord and tenant is not in itself sufficient to make the landlord
liable for the tortious acts of the tenant. The general rule is that landlords are not liable to third
parties.
Pagelsdorf v. Safeco Ins. Co. of America
-
Supreme Court of WI, 1979
Plaintiff leaned against a railing on a balcony and fell; the railing had dryrot and should have
been replaced
The trial court instructed the jury in terms of plaintiff being a licensee and owed no duty of care
Issue: Did the trial court err in its instruction to the jury?
Holding: Yes.
Rationale: The court held that a landlord must exercise ordinary care toward his tenant and
others on the premises with permission.
Result: Judgment reversed and cause remanded.
* Wisconsin rejects the general rule of landlord nonliability, subject to general principles of ordinary
negligence
Kline v. 1500 Massachusetts Ave. Apartment Corp.
-
-
-
US COA, D.C. circuit, 1970
Plaintiff was assaulted and robbed in the common hallway of the lessor’s apartment building
The entrances to the building were unguarded, even though the landlord was aware of an
increasing amount of assaults, larcenies, and robberies of tenants in the common hallways of
the building
The district court held that the landlord held no duty to the plaintiff-tenant
Issue: Whether a duty should be placed on a landlord to take steps to protect tenants from
foreseeable criminal acts committed by third parties?
Holding: Yes, there is a duty.
Rationale: The duty is the landlord’s because by his control of the areas of common use and
common danger he is the only party who has the power to make the necessary repairs or to
provide the necessary protection. Even though the 3rd party committing the criminal act is a
superseding cause of the harm, there are public policy issues at stake. The landlord is more than
a bystander in relation to the tenant, should have minimized predictable risks. The court does
not hold that the landlord is an insurer of the safety of his tenants. His duty is to take those
measures of protection which are within his power and capacity to take, and which can
reasonably be expected to mitigate the risk of intruders assaulting and robbing tenants. Can
pass on the costs of extra steps to the tenants.
Result: Reversed and remanded for determination of damages.
Torts
Albert
11-09-09
Physical Harm to Property
Punitive Damages
Cheatham v. Pohle
-
Supreme Court of Indiana, 2003
-
-
-
Cheatham was married to the defendant and divorced; defendant distributed explicit
photographs around the community and plaintiff sued for invasion of privacy and intentional
infliction of emotional distress
Plaintiff was awarded $100,000 compensatory and $100,000 punitive damages
Plaintiff alleged that the Indiana statute providing that 75% of a punitive damage award be paid
to a state fund, was unconstitutional under IN state law and federal law
Rationale: The legislature is free to institute or eliminate punitive damage awards. No person
has a vested interest or property right in any rule of common law. Because punitive damages do
not function to compensate the plaintiff, the plaintiff has no right or entitlement to an award of
punitive damages in any amount.
Result: Judgment of the trial court affirmed.
State Farm Mutual Automobile Ins. Co. v. Campbell
-
-
-
-
USSC, 2003
Campbell was a driver who was passing several cars when an accident was caused (that did not
involve Campbell) which killed one person and permanently disabled another driver
Campbell was adjudged as causing the accident; State Farm refused to pay the policy limits and
denied liability to both injured parties; State Farm insisted on taking the case to trial and
assured the Campbells that they would have no liability, their assets were safe, and they did not
need to hire a personal attorney
At trial, Campbell was found liable and a verdict was entered for $185,849
Campbell then filed a claim against State Farm for bad faith, fraud, and intentional infliction of
emotional distress
Evidence was admitted that State Farm was running a national, corporate scheme to cap policy
payouts, and this was offered as evidence to show that State Farm was acting intentionally and
egregiously toward the Campbells
Jury awarded $145 million punies and $2.6 million compensatory; judge reduced to $25 million
punies and $1 million compensatory
Utah Supreme Court reinstated the jury’s original verdict relying on the State Farm corporate
scheme evidence
Issue: Whether an award of $145 million in punitive damages, where full compensatory
damages are only $1 million are excessive and in violation of the due process clause of the 14th
amendment?
Holding: Yes, the punitive damage award was excessive.
Rationale: There is a test for punitive damages established under BMW of North America, Inc. v.
Gore. (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity
between the actual or potential harm suffered by the plaintiff and the punitive damages award;
and(3) the difference between the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases. A defendant’s dissimilar acts, independent from
the acts upon which liability was premised, may not serve as the basis for punitive damages. A
defendant should be punished for the conduct that harmed the plaintiff, not for being an
-
unsavory individual or business. The award was a arbitrary and irrational deprivation of
plaintiff’s property.
Result: Judgment reversed, case remanded.
* Gore test
- Degree of reprehensibility elements
Whether the harm caused was physical as opposed to economic
Whether the tortious conduct evinced an indifference to or a reckless disregard of the health
and safety of others
Whether the target of the conduct had financial vulnerability
Whether the conduct involved repeated actions or was an isolated incident
The harm was the result of intentional malice, trickery, or deceit, or mere accident
Torts
Albert
11-17-09
Wrongful Death and Survival
* Wrongful death actions are brought by the estate of the decedent; but for the conduct of the
defendant the decedent would not have died
* The measure of damages in a wrongful death action is statutory; in all states, the measure of damages
include loss of accumulation to the estate (what the person would have received had they lived) take
what they would have earned from the cost of living
* Some states allow loss of consortium claims - loss of affection, companionship, society, love, comfort
*Survival suits are NOT wrongful death actions
* They are suits brought on behalf of the decedent for injuries the decedent had received between the
injury and the time they died
* Brought by the estate
* Most of the time the two actions become joined
Defenses
Contributory Negligence
Butterfield v. Forrester
-
Defendant was doing repairs on his house, put a pole across the road, and plaintiff was speeding
down the hill and got hit and was injured
Established the theory of contributory negligence
-
A defendant may allege contributory negligence if the plaintiff does not use common and
ordinary care and becomes injured
“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”
There must be two elements met: A negligent act on the part of defendant and no want of
ordinary care to avoid the negligence on the part of the plaintiff
Davies v. Mann
-
The defendant was speeding and let his wagon his a donkey on the road, the plaintiff had
improperly let his donkey be on the road
Rationale: the defendant should have exercised proper care to avoid injuring the animal, but did
not; defendant had the “last clear chance” to avoid the accident
Comparative Negligence
McIntyre v. Balentine
-
Supreme Court of TN, 1992
Adopted the theory of modified form comparative negligence
No longer joint and several liability
Assumption of Risk
Seigneur v. National Fitness Institute
-
Court of Special Appeals of MD, 2000
Plaintiff signed a gym agreement that contained an exculpatory clause, she was injured; claimed
the contract was voidable because of it being a contract of adhesion
Assumption of risk is lumped in with comparative fault
If a plaintiff knew of some risk of what they were doing, and voluntarily chose to assume that
risk, that goes to whether they were themselves were negligent (EXPRESS)
Goes to how much the jury should assign to plaintiff for their negligence
Rush v. Commercial Realty Co.
-
Supreme Court of NJ, 1929
Plaintiff had to use the restroom in an adjacent house and fell through a faulty trap door
Defendant asserted that plaintiff assumed the risk because she had the occasion to use that
same restroom
Rationale: It was a question for the jury to decide whether the plaintiff knew about the
condition. The court did not find that plaintiff assumed the risk.