BATTERY
Vosburg v. Putney (1)
Issue: Can the defendant be held liable for assault and battery if there was no intent to harm?
Facts of the Case
 Defendant kicked plaintiff in the shin while in a classroom setting
 The teacher had called the class to order
 The kick was light enough that there was no immediate injury
 Kick aggravated a prior injury, leg had to be amputated
Holding: Defendant is liable even though there was no intent to harm, because the act was unlawful in the setting described
(there was no implied license)
Reasoning: If an intended act is unlawful, the intention to commit it is necessarily unlawful as well
 The kick was unlawful, because it violated classroom decorum
 Case could have been decided differently if boys had been rough-housing on the playground
 The wrongdoer is liable for damages to an injured party, even if the damages were unforeseen
Knight v. Jewett (3)
Knight and Jewett were playing touch football, Jewett knocked over Knight during a play and stepped on her little finger, which
later had to be amputated. Trial court granted summary judgment to plaintiff because there was no intent to harm. CA
Supreme Court affirmed.
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A requisite element of assault and battery is intent
Different from Vosburg v. Putney because Jewett did not intend to step on her hand
White v. University of Idaho (4)
Professor Neher tapped on one of his music student’s backs to demonstrate a piano technique. This touch generated
unexpectedly harmful injuries. The student said the touch surprised her and she would not have consented to it, although
Neher intended no harm. Was this a battery?
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“An act which is not done with the intention [to harm] does not make the actor liable to the other for a mere offensive
contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be
negligent or reckless if the risk threatened bodily harm”
This WAS a battery, because conduct was “offensive” (questionable…)
Garret v. Daly
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Defendant was a 5 year old boy visiting two adult women
o They boy pulled a chair out from under one of the women
o The woman tried to sit down, then fell and injured herself
Woman sued boy
o Court said boy didn’t have any desire for her to hit the floor
o Appeals court said that as long as he knew with substantial certainty that she would make contact with the
floor, he was liable
Lessons
o You can cause a battery without touching the plaintiff
o You don’t need intent to cause contact, there only needs to be substantial certainty that contact will occur
Polmatier v. Russ (5)
Russ shot and killed his father-in-law with a shotgun, was prosecuted and found not guilty by reason of insanity. The father-inlaw’s wife brought a civil suit for wrongful death and won… just because the defendant was insane does not mean he cannot be
held liable for his wrongdoing in a civil suit.
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Legal reasoning is that if insane people are not held liable for their actions they may not be as well taken care of
(“secures more efficient custody and guardianship of their persons”)… it’s an issue of public policy
The act of an insane person is not considered involuntary (like a muscle spasm)… it may be irrational, but it is still
voluntary
Laidlaw v. Sage (6)
A man entered Sage’s office with a bomb in a bag. Through a note, he told Sage that he was going to detonate the bomb.
Knowing that he was in imminent danger, Sage physically moved his unassuming clerk in front of his own body to shield him.
The bomb exploded, injuring the clerk and leaving Sage unharmed. The clerk sued Sage for battery and lost, because Sage was
only protecting himself in an extraordinary situation.
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Self preservation is the first law of nature
Things we do under extreme duress are not always considered voluntary
Keel v. Hainline (8)
Children in a classroom were involved in horseplay while their teacher was absent. Boys were throwing erasers across the
room and one hit a girl, resulting in the loss of her eye. The girl was at her desk and was not involved in the horseplay. The jury
found in favor of her against all defendants – including the boy at whom the eraser was actually thrown (Keel). Since throwing
erasers in a classroom was found to be wrongful, the intention of the act was immaterial. The actual assailant and anyone
found to be aiding, encouraging, promoting or instigating the conduct are both responsible.
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Example of transferred intent… liability imposed on Keel for his secondary role in the event
If A attempts to commit battery against B but mistakenly hits C, C can sue A for battery… A intentions towards B are
combined with the harmful contact with C to create a battery
Throwing erasers was unlawful/dangerous activity
Knight v. Jewett
Contact A (a push) caused Contact B (stepping on finger), but Contact A was not unlawful… Initial intended contact has to be
tortious/unlawful
Manning v. Grimsley (10)
Grimsley, a player for the Orioles, was warming up in the bullpen one night when Red Sox fans started heckling him. He gave
them dirty looks and they continued to heckle. Grimsley eventually warmed up like he was going to pitch the ball, but the ball
flew into the stands at the hecklers. It hit an injured a man who may or may not have been a heckler. The man sued, the trial
court gave a directed verdict to the defendant, but the court of appeals remanded the case for a new trial. They believed the
jury could have reasonably inferred that Grimsley intended to throw the ball in the direction of the hecklers and cause them
imminent apprehension of being hit.
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A person is subject to liability to another for battery if they are intending to cause a third person to have an imminent
apprehension of a harmful body contact and ends up harming the other
Policy of “absolute civil liability” to anyone injured as a result of a harmful contact directed either at him or a third
person
Bennight v. Western Auto Supply
Manager forced an employee to work in the warehouse, knowing that there were bats living there, and employee was afraid of
bats
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Manager did not intend for his worker (Bennight) to come in contact with bats, BUT…
o He intended that she work in the warehouse, and he knew that the warehouse was unsafe
o He knew with substantial certainty that apprehension would occur
Therefore, Bennight had a cause of action for battery
o Manager had assault intent and battery conduct
Why do we need the assault intent in Bennight?
o There was no intent for battery, so you need the assault in order for the intent to transfer to prove the battery
Langford v. Shu: Langford could subjectively but reasonably apprehend a contact
Tuberville v. Savage
This was the old-time case where one man said he would beat another man up if the judge wasn’t in town… Tuberville could
not have reasonably apprehend a contact, because the words Savage used made it clear that he would NOT act
CONSENT
Mohr v. Williams (16)
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Legal Rule
o There are two situations where implied consent suffices in the medical context:
 An emergency, OR,
 If, in the course of performing the surgery, an immediately life-threatening condition is discovered
Legal Question/Issue:
o When a plaintiff gives express consent to surgery, has she impliedly consented to further surgery that the
doctor considers more pressing, without there being an emergency?
Holding:
o When a plaintiff gives express consent to surgery, she does NOT give implied consent to alternative surgery,
barring an emergency
Grabowski v. Quigley (19)
Grabowski slipped and fell on a patch of ice. He consented to surgery, but later found out that the surgery had been performed
largely not by his own doctor, Quigley, but a colleague named Bailes. Dr. Quigley was out of the area when he learned that
Grabowski had been put to sleep and was ready for surgery, so he had another physician start the procedure rather than
reawakening him. Grabowski alleged that the doctors were liable for battery because the surgery was not performed by a
doctor to whom Grabowski gave consent. The court agreed, stating that unless in cases of emergency, the consent of the
patient is a prerequisite to the procedure.
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Consent was not given to Bailes or Quigley to perform the surgery in the manner it occurred
Sufficient to establish a cause of action for battery
Brzoska v. Olson (20)
Raymond Owens, a dentist in Wilmington, tested positive for HIV, developed AIDS, and continued to practice nearly until his
death from the disease. He was exhibiting lesions, weakness and memory loss. A group of his patients brought suit after his
death, because Owens had “misrepresented his heath” to them and allegedly put them at risk of contracting aids. Court ruled
that there reasonableness of a plaintiff’s fear of AIDS should be measured by whether or not there was a channel of infection or
actual exposure, which there was not.
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The offensive character of a contact in a battery case is assessed by a “reasonableness” standard… plaintiff’s fear
objectively unreasonable
A battery consists of a touching of a substantially different nature and character than that which the patient consented
No liability… Consent is not violated when the patient is touched in exactly the way he or she consented
Cohen v. Smith (21)
Plaintiff admitted to hospital to give birth. She told the hospital that her religious beliefs forbade her from being seen naked by
a man other than her husband. She gave birth by C-section and a male nurse saw and touched her while her clothes were off.
She sued hospital for battery; the court upheld the claim.
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She had not consented to being seen or touched by a man – in fact, she explicitly denied consent
We must respect minority religious or cultural views
Werth v. Taylor (22)
Plaintiff was a Jehovah’s Witness who did not believe in blood transfusions. After she gave birth she began to experience
uncontrollable bleeding. Her doctor believed that without a blood transfusion, she would die. The doctors knew that the
woman was a Jehovah’s Witness and she had signed a form titled “Refusal to Permit Blood Transfusion.” The doctor had a
conversation with her husband in which he stated “I don’t want her to have blood, but I don’t want her to die.” She recovered,
but filed a claim for battery. Court dismissed.
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Law implies the consent of an unconscious patient to medical procedures needed to preserve the patient’s life
Consent is implied when an emergency procedure is required
Prior refusals (signing of the form) had not been made when her life was actually hanging in the balance
Her refusals were not “contemporaneous or informed”
Neal v. Neal (24)
Plaintiff discovered her husband was having an affair and sued for battery, claiming that she would not have consented to
intercourse during the time the affair was occurring if she had known about it. Therefore, her consent was fraudulently
induced.
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“To accept that the consent, or lack thereof, must be measured only by those facts which are known to the parties at
the time of the alleged battery would effectively destroy any exception for consent induced by fraud or deceit”
There was a “substantial mistake” as to the nature of the contact that plaintiff only realized after the fact
Hart v. Geysel (25)
Two men engaged in an illegal prize fight. Cartwright died from injuries he received in the fight and his estate sued for
damages, although Cartwright had consented to the fight. The court dismissed the case, because consent was granted, and the
activity was criminal, so nobody should be rewarded as a result of the outcome.
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“Clearly if a plaintiff has consented to being struck by another in the course of a brawl, his right to the control of his
person and to determine by whom and how it shall be touched”
McNeil v. Mullin (25)
Plaintiffs exchanged hostile words while driving horse-drawn buggies. Each dismounted and a fight ensued. Plaintiff sued
defendant to recover for injuries he suffered in the brawl. Neither party could claim to have acted in self-defense. The
plaintiff’s consent to fight was not a good defense against his claim.
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The court admits that it doesn’t like to allow damages to be recovered after a brawl, but legally it must
Consent rendered void, each party must suffer consequences of the conduct
“If the men fight, the state will punish them”… “Consent to an assault is no justification”
Hollerund v. Malamis (28)
Hollerund was drinking at a bar in Malamis’ bar. He then engaged in an arm wrestling match with the bartender and injured
his fingers. Court argued that he had a valid claim, based on the fact that his intoxication rendered consent ineffective
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“If the plaintiff, owing to his state of intoxication, was incapable of expressing a rational will and the defendant had
knowledge of this state, the consent was ineffective.”
TRESPASS
Desnick v. American Broadcasting Companies, Inc. (29)
Issue: Did defendants commit a trespass by concealing their true identities and motives for entering plaintiff’s property?
Facts:
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ABC employees posed as patients and requested eye examinations at Desnick Eye Center and secretly videotaped the
procedures
The recordings were used on an episode of Prime Time Live that was highly critical of Dr. Desnick
Dr. Desnick would not have consented to their presence if he had known their identities and motives
Analysis:
 There is no journalist’s privilege to trespass
 There is no implied consent when express consent is procured by a misrepresentation or misleading omission
 However, some cases allow for consent to be effective even though it was procured by fraud
o For instance, a restaurant critic concealing his identity when ordering a meal, or a browser in a shop full of
things he cannot afford to buy
 Distinction has to do with the interests the tort of trespass seeks to protect
o Trespass protects inviolability of a person’s property
o Here, the activities of the offices were not disrupted
Conclusion:
 This was not a trespass
 “The entry was not invasive in the sense of infringing the kind of interest of the plaintiffs that the law of trespass
protects; it was not an interference with the ownership or possession of land”
 The activities of the office were not disrupted, no embarrassingly intimate details of anybody’s life were publicized,
there was no theft, no disruption of decorum, no invasion of a person’s private space…
Desnick v. American Broadcasting Company
 Facts
o ABC employees posed as patients and requested eye examinations at Desnick Eye Center and secretly
videotaped the procedures
o The recordings were used on an episode of Prime Time Live that was highly critical of Dr. Desnick
o Dr. Desnick would not have consented to their presence if he had known their identities and motives
 Outcome
o Reporters were not liable for trespass
 Legal Rule
o When the fraud invades the interest that the tort is meant to protect, then fraud will vitiate consent
o Trespass is meant to protect the property interests of the person; Desnick’s property was not particularly
violated here
 The activities of the office were not disrupted
 Patient privacy was not violated
 This was a business open to the public
 The alleged trespass had social value (investigation of this sort may be of some social value, so we
don’t want to deter it)
 Court’s holding
o No trespass occurs when a person enters a business open to the public under the pretense of seeking its
services, but engages in undercover investigative journalism without disrupting the business’ activities
Pegg v. Gray (33)
Plaintiff owned a farm with cattle, defendant owned an adjacent farm where he kept a team of fox-hunting dogs. During
hunting season he would loose the dogs, and they would chase foxes onto plaintiff’s property, causing cattle to stampede and
break fences. Court found in favor of the plaintiff. Normally a roaming dog would not make its master liable for trespass, but
the standard is different where a pack of dogs is released and the owner knows that they will likely go on another’s property in
pursuit of game.
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In the absence of permission to hunt, the owner of hunting dogs is liable for trespass if his dogs pursue game on
another’s property
The defendant knew the dogs would go on the property
Malouf v. Dallas Athletic Club (34)
The plaintiffs lived next to the defendant’s golf course, and golf balls hit their parked vehicle on multiple occasions. Court ruled
for the defendant, because there was no evidence that either the defendant or the owner intended to commit an act which
violated a property right. The fact that the ball could veer in direction of the plaintiff’s property is merely an unintended
consequence of the game.
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Appellants failed to demonstrate that the defendants intentionally cause the golf balls to damage plaintiff’s property,
therefore there was no trespass
It is possible, however, that the plaintiff could have a claim for negligence
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“Except when the actor in engaged in an abnormally dangerous activity, an unintentional or non-negligent entry on
land [owned by the plaintiff] does not subject the actor to liability… even though the entry causes hard to the
possessor or to a thing [owned by the possessor]” – Restatements
Van Alstyne v. Rochester Telephone Corp. (36)
Defendant is a telephone company who entered plaintiff’s home to repair a wire. In the process of doing the repair they left
behind lead droppings, which were consumed by the plaintiff’s valuable hunting dogs. The dogs died of lead poisoning. The
defendant was found liable for trespass because they left behind the drippings.
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“It is not the be presumed… that the defendant had an express right to cast unnecessarily, or to leave in any event,
articles or substances upon the premises. Lacking such an express right, the law gives him none”
“The defendant, by depositing lead on the plaintiff’s premises, became an intruder”… “no intrusion is so trifling as to
be overlooked”
Defedants had consent to enter the home, but not to leave anything behind
OUTRAGE
Roberts v. Saylor (73)
Plaintiff tried to bring a malpractice suit against a doctor and asked another doctor (defendant) for help. Defendant got very
angry at the plaintiff for claiming malpractice, saying that he “despised people” for causing doctors such trouble. Later plaintiff
had surgery, saw the defendant before entering the operating room, and he said “I don’t like you” in a hostile manner. She
claimed to be very upset and scared to go into surgery. Court found for defendant.
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“Liability does not arise from mere insults, indignities, threats, annoyances, petty expressions or other trivialities.”
“The law should not intervene when someone’s feelings are merely hurt”
Greer v. Medders (74)
Greer underwent surgery, her attending physician went on vacation during her recovery, and another physician (Medders)
was assigned to her. MEdders did not visit Greer for several days and Greer called his office to complain. He got extremely
angry, yelled and cursed at him not to call his office, and insulted Greer’s wife, causing her to cry. Greer later experienced
uncontrollable shaking and needed psychiatric treatment. Court found for the plaintiff.
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Situation was especially wrong because Greer was recovering in the hospital at the time
Statements were “sufficiently abusive” to qualify as intentional infliction of emotional distress
Muratore v. M/S Scotia Prince (75)
Muratore was a passenger on a cruise ship. Two of the cruise employees tried to take her picture, she told them she didn’t
want her picture taken and turned away. They took a picture of her from behind, made a lewd comment, and posted it with a
picture of a gorilla superimposed on top of it. They continued trying to take her picture throughout the trip, causing her to stay
in her room much of the time. Court found in favor of the plaintiff and awarded $5,000 in damages.
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Employee’s conduct was definitely intentional and certain to cause distress, because she had specifically told them not
to take her picture
The conduct was “outrageous” especially given the plaintiff’s’ particular sensitivities
Emotional distress must be severe, but the severity can be inferred from the outrageous nature of the conduct alone
Pemberton v. Bethlehem Steel Corp. (76)
Pemberton was a union official representing employees of Bethlehem Steel Corp. BSC hired a private investigator to follow
Pemberton, found out that he was having an affair, anonymously sent evidence to his wife, and circulated his 15-year-old mug
shot to employees. The court found in favor of the defendant, on the basis that Pemberton showed no significant distress his
personality made him ill suited to recover damages.
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The court must consider not only the conduct itself but also the personality of the individual to whom the misconduct
is directed
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He was a “rough-and-tumble” laborer; evidence of the affair was true
Conduct had some social value (like investigative reporting)
Murray v. Schlosser
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Liability for radio show making fun of brides
Legal reasoning
o There was an intent to injure
o There is no social value to this type of negative speech
o Context is important… it’s particularly mean to make fun of a bride on her wedding day, when she’s trying to
look as good as possible!
Feltmeier v. Feltmeier (handout)
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Question
o Can a pattern of ongoing and serious but intermittent domestic abuse within a marriage qualify as intentional
infliction of emotional distress?
Facts of the case
o Over the course of 11 years of marriage, the wife endured at least 45 counts of abuse
o She sued husband for intentional infliction of emotional distress
Outcome
o The husband was liable
o Even within the context of a marriage, the conduct was extreme
o We should have liability in a marital context when the benefits of having liability are greater than the
consequences of not having it
PRIVATE NECESSITY
Ploof v. Putnam (97)
Defendant owned an island with a dock. Plaintiff was sailing in the area when suddenly a violent storm arose, so he moored his
boat to the defendant’s dock to protect his property and his safety. Defendant’s servant unmoored the boat, causing it to be
destroyed in the storm, and plaintiff’s wife and children were thrown into the sea and hurt. Court held that defendant was
responsible for neglecting to allow plaintiff to moor his boat.
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Necessity can justify entries that would otherwise be deemed trespasses
An entry to save goods about to be destroyed by water/fire is not trespass
One may sacrifice another’s property if there are lives at stake
Borough of Southwark v. Williams
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Why did the court deny the necessity privilege to the homeless man?
o Concern that this could open the door to rampant squatting
o “If homelessness were once admitted as a defense to trespass, no one’s house could be safe”
o There would be too much theft; nobody’s property would be safe
o Alternatives exist (homeless people can benefit from charity)
Concerns about distributional fairness
o There may be other people in line for housing, so it is unfair for homeless people to go outside the system and
simply appropriate property that another person could use more legitimately
o On the other hand, according to the facts in this case, the houses were uninhabited… Is it better to let them
stand empty?
PUBLIC NECESSITY
Mouse’s Case (106)
Mouse was a passenger on a barge when a storm arose. The barge and the passengers were in danger of being drowned unless
some things were removed from the boat. Mouse’s casket was through out of the boat by the defendant. Court found that it
was lawful for the defendant to have thrown out the casket, given that is was necessary to the survival of the ship and
passengers.
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However, Mouse could have a case against the ferryman for overloading the barge, or against the other people whose
articles had not been thrown out
If the boat had not been overloaded, then everyone would bear his own loss
Surocco v. Geary (107)
The defendant (the mayor of San Francisco) ordered the plaintiff’s property to be destroyed in an attempt to stop the progress
of a fire raging throughout the city. Court found in favor of the defendant, stating that it was necessary for him to destroy the
property to prevent the spread of the fire.
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In cases like this: “The private rights of the individual yield to the considerations of general convenience, and the
interests of society. Were it otherwise, one stubborn person might involve a whole city in ruin”
Defendant not liable for destruction of items within home either
Attempt to save belongings might have wasted time, caused more damage
Struve v. Droge (108)
The defendant, a landlord, saw smoke coming out of the plaintiff’s window. The plaintiff was out and did not answer the door,
so the landlord broke into his apartment, thinking there was a fire. This entry caused damage to plaintiff’s property. There
wasn’t actually a fire, but the court still found in favor of the defendant, because his entry was lawful and justifiable. Court of
appeals reversed, because there was no true necessity.
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Defendants such as the landlord are “bound at their peril” to decide whether there is truly a necessity
No necessity = no defense
NEGLIGENCE
Brown v. Kendall
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A defendant can be held liable if the act was unlawful OR if they are at fault
o In this case, the defendant was not at fault
o In cases of negligence, as long as the defendant exercised due care, there is no liability
When neither party is at fault, who should bear the costs of the harm??
o Argument for keeping the cost on the plaintiff
 If a defendant is exercising due care and can still be held liable, we may encounter problems of
over-deterrence
 People could be held liable for anything… we would be afraid to act at all!
Rylands v. Fletcher
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Facts of the case
o Defendants built a reservoir which then flooded neighbor’s property
o Lower court held for the defendant, higher court held for the plaintiff
Should strict liability apply in this circumstance?
o Even if the defendant is exercising due care, should strict liability apply when they are engaged in some ultrahazardous or extremely dangerous activity?
Court’s holding
o If you engage in an ultra-hazardous activity, you are liable for all the damages that result, even if you exercise
due care
 If it wasn’t for the act, the damage would not have occurred
Rylands applies differently in different jurisdictions today
o For instance, it has been applied in nearly all cases involving blasting with dynamite, which is inherently an
extremely dangerous activity
 Due care doesn’t prevent accidents when dealing with such dangerous activities
Williams v. Hays (122)
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Facts of the case
o Hays steered a ship through a massive storm for over 48 hours with little food or sleep
The storm finally subsides, the captain takes quinine and falls asleep
When he wakes up, the ship is in trouble again, Hays refuses help and acts like a madman, the ship eventually
wrecks
o Hays later has no memory of the wreck
Question: Does the defendant’s insanity provide a defense from negligence?
Outcome – 2nd Court of Appeals
o Holds for the defendant
 The defendant did all that he reasonably could to save the ship, therefore he should not be held
liable… a reasonable person couldn’t have done any better
 So long as a reasonable person would have gone insane while applying the same efforts, the
exception to negligence for insanity applies
o
o
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Vaughan v. Menlove (125)
Defendant built a haystack near his neighbor’s property, the neighbor warned him it might be dangerous, and defendant built
a chimney in it. Regardless, the haystack caught on fire, destroying the plaintiff’s cottages. Court found for the plaintiff, saying
that the defendant did not exercise reasonable caution, and the defendant appealed, saying he should not be punished for
being less intelligent than others. Courts did not agree, and affirmed verdict for plaintiff.
 Defendant thought the rule should be that he acted honestly and to the best of his own judgment
 To use this standard would be like having no standard at all, “the degree of judgment belonging to each individual
being infinitely various”
Vaughan v. Menlove
1. Vaughan was held to the reasonable person standard, despite his argument that he was less intelligent than most
people
a. The reasonable person standard is objective
b. No matter if a defendant is stupid, foolish, etc., we still hold them to reasonable person standard
2. Restatement Rule: Unless an actor is a child, below-average mental capacity or other deficiencies doesn’t relieve them
from liability
Lynch v. Rosenthal (126)
Lynch was a 22 year old man with the intelligence of a 10 year old and very low IQ. He lived on a farm with the defendants.
One day he was helping out on the farm and fell into a corn picker, suffering serious injuries. After expert testimony about
plaintiff’s mental abilities, the court held that the defendant had been negligent in failing to warn him directly about the
danger.
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Plaintiff had the mental capacity to follow a direct warning, but not enough to see the danger himself
He was not contributorily negligent as a matter of law
Lynch v. Rosenthal
1. Facts of the case
a. Defendant told plaintiff to walk behind a dangerous corn husker, but did not tell him to avoid getting too close
b. The plaintiff had below-average mental ability
2. Outcome
a. The court held for the plaintiff
b. An ordinary person may not have needed an extra warning about the corn husker, but this person did
3. Why do we take this defendant’s mental deficiency into account, and not the defendant in Vaughan?
a. This defendant has a legitimate mental deficiency, not just sub-average intelligence
b. We want to encourage effective guardianship of people with mental deficiencies… we want to ensure that
their caretakers do not allow them to engage in risky activities
c. When mentally deficient people cause harm we are more likely to hold them liable than when they are
harmed
d. Here the defendant knew about the plaintiff’s condition, and should have known to warn him accordingly
Weirs v. Jones County (129)
The county determined one of its bridges was unsafe, condemned it, and posted signs reading “bridge unsafe” at the end.
Plaintiff, who could not read English, crossed the bridge. It collapsed, killing his horses and damaging his wagon. Jury found for
the county after receiving instructions that the plaintiff’s inability to read English was no excuse. Court affirmed verdict.
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All laws of the country required to be in English
Precautions taken by county were reasonably sufficient
Plaintiff can’t claim different standards apply to him than the average person
Weir v. Jones County
1. Facts of the case
a. A bridge was damaged and marked as such with a sign
b. A man who didn’t speak English and couldn’t read the sign went across the bridge, which collapsed, damaging
his wagon
2. Court’s holding
a. No liability for the plaintiff
i. The county exercised sufficient care
ii. It would be unreasonable for the county to have to post signs in every language
3. Why was the fact that plaintiff didn’t speak English not an excuse?
a. The plaintiff knew he didn’t speak English, it was his responsibility to take any extra precautions necessary
b. Also, we want to encourage people to learn English
c. The defendant didn’t have advance notice that the person didn’t speak English, so he couldn’t have known to
take extra caution
4. Was the plaintiff negligent?
a. Should the plaintiff have gone over the bridge if it was marked with a sign he couldn’t understand? What
would a reasonable person do?
i. He probably would be considered negligent
ii. Bridges are fairly dangerous… If you don’t know what dangers you might be facing, you are negligent
if you take the risk anyway
Friedman v. State (132)
An Orthodox girl and her male friend became trapped on a ski lift after the operator shut it down for the night without
realizing they were still riding. She ended up jumping 20-25 feet to the ground, suffering various injuries. She sued the state
which operated the ski resort, and state attempted to have the case dismissed on the grounds that she was contributorily
negligent. Court found in her favor.



The girl demonstrated “expectable hysteria” in the situation
She was also extremely religious, and her religion absolutely forbids her to spend the night with a man, which would
be an overwhelming moral sin… She essentially had no choice but to jump
Court of appeals upheld decision but reduced verdict to $20,000
Fredericks v. Castora (132)
Plaintiff was riding in a car hit by two trucks. The jury found that the truck drivers had not been negligent. Plaintiff appealed,
stating that the truck drivers should have been held to a higher standard of care, based on their experience and profession. The
court disagreed, affirming that all people should be held to the same standards.


Different standards of care would result in too much variation and would be extremely difficult to apply/implement
“There is only one degree of care in the law, and that is the standard of care which may reasonably be required or
expected under all the circumstances of a given situation”
Fredericks v. Castora
1.
2.
Truck drivers were NOT held to a higher standard of care
This doesn’t seem to match restatement rule… why?
a. Truck drivers don’t have as much special training as some other professionals (like doctors, for instance)
b. Everybody drives, so all drivers meet one basic standard of care
Purtle v. Shelton (134)
Kenneth Shelton was a 17-year-old boy who accidentally shot his 16-year-old hunting companion. Trial court found that both
boys were responsible, so the plaintiff recovered nothing (based on the state’s contributory negligence rule). On appeal
plaintiff claimed that the jury should have been told that defendant should have been held to an adult standard when
determining negligence, due to the dangerous nature of the activity. Court disagrees, saying that to be held to an adult
standard, the activity has to be something normally done only by adults, which is not the case with hunting.


A minor is held to an adult standard of care when he engages in an activity:
o Dangerous to others
o Normally engaged in only by adults
A statute extending an adult standard of care to minors hunting might be a good idea, but that is up to the legislature
to decide (court can’t make law)
Roberts v. Ring (137)
A seven-year-old boy was struck by a car driven by a 77 year old with limited sight/hearing. The trial court correctly
instructed the jury to make allowances for the youth of the plaintiff, but not the age and deficiencies of the old man. A seven
year old can’t be held to the same standards of self-protection as an adult, but an old man has a duty to know and correct for
his infirmities (or refrain from driving, if necessary).


“Defendant’s infirmities did not tend to relieve him from the charge of negligence… Such infirmities… presented only a
reason why defendant should refrain from operating an automobile”
“When one, by his acts or omissions causes injury to others, his negligence is to be judged by the standard of care
usually exercised by the ordinarily prudent normal man”
Dellwo v. Pearson (137)
12-year-old boy driving a boat ran across the plaintiff’s fishing line, breaking it and injuring her. Jury returned a verdict for the
defendant, Minnesota Supreme Court reversed and held for the plaintiff. They said minors operating motor vehicles should be
held to an adult standard of care, because otherwise they would be too much a hazard to the public.


The court already holds everyone to the same standard of care when driving, the same should extend to airplanes and
powerboats
People can’t tell if an approaching car or boat is operated by a minor, so they can’t protect themselves
Dunn v. Teti (139)
The defendant, a six year old, swung a stick and hit another six year old. The court found that he was too young to be capable
of negligence. They claim that a child is held to the measure of care that other minors of like age, experience, capacity and
development would ordinarily exercise under similar circumstances. The standard is applied in the following ways:



Minors under 7 conclusively presumed incapable of negligence
Minors between 7 and 14 are presumed incapable of negligence, but the resumption is rebuttable (especially as age
increases)
Minors over 14 are presumptively capable of negligence, with the burden on the minor to prove incapacity
Central Michigan Railroad case
1.
2.
3.
Facts of the case
a. 13 year old girl struck by a train and killed
Procedure
a. Parents sued the railroad, court found for the plaintiffs
b. Defendant appealed, claiming three errors
i. Not enough evidence
ii. Girl was contributorily negligent
iii. Jury instruction was wrong in that they were instructed that the law does not require the same
degree of care in a woman as in a man
Court’s holding
a. Was the jury instruction proper?
i. No, it was improper
b. Was there enough evidence to get to the jury on evidence?
i. Yes, there was enough evidence
c. Was the girl contributorily negligent, as a matter of law?
i. No, the question of negligence should go to the jury
4.
More on the jury instruction
a. The court said that you can sometimes take sex into account, but just because you are a woman does not mean
that you are held to a lower standard of care across the board
b. According to the court, women might be less careful than men in certain situations (such as when driving a
horse), and less careful in other situations
c. Will a jury instruction be erroneous just because it says the jury should apply the standard of a “reasonable
woman”?
i. It would not be erroneous as a matter of law, but the court advises using more general terms… they
don’t want the language to imply that women should have a lowered standard
Briese v. Maechtle
10 year old boys were playing at recess, the plaintiff was kneeling down playing with marbles, defendant was running around
while playing tag. Defendant knocked into the plaintiff and injured his eye… It was a total accident, and an injury that couldn’t
have been anticipated. A minor is responsible for his torts, but here he is not liable for damages because his act was lawful.
RISKS AND PRECAUTIONS
United State v. Carroll Towing
1.
2.
3.
4.
Why did the US sue Carroll Towing?
a. US had cargo on a barge that sank in the NY Harbor, they wanted to recover damages for their lost cargo
Procedural history
a. Connors Marine Co. owned the barge Anna C, rented it to the Pennsylvania Railroad, the rental included a
“bargee” (barge-tender)
b. Grace Line sent a tug (The Carroll), owned by the Carroll towing company, to another barge
c. While the tug was passing the Anna C, the tug crew untied and retied the Anna C’s rope lines wrong, and the
barge ended up sinking
d. The bargee had not been present at the time of the damage
Main issue
a. Was Connors negligent by not having the bargee on board at all times?
i. There is no general rule for whether the bargee is negligent for not being on board… it depends on
the circumstances
Hand Formula
a. The burden of the precaution should be less than the probability of the loss multiplied by the magnitude of
the loss
i. B < P x L
b. How to determine the costs in this case?
i. The burden of the bargee being on board is fairly low
ii. The probability that something could go wrong in this busy harbor is fairly high
iii. The magnitude of the loss of the barge is high
c. Since cost of the burden is low relative to the probability and magnitude of the loss, the company was
negligent
Adams v. Bullock
Defendant built a trolley line that was crossed by a bridge. One day a 12 year old boy walked across the bridge while swinging
a wire. The wire came in contact with the trolley line and electrocuted the boy. The court found no liability for the defendant,
because it would have been extremely difficult to prevent the injury from happening (it is impossible to insulate a trolley wire,
and you can’t just get rid of the trolley), and the accident was unlikely


Hand Formula analysis says burden is greater than probability x loss
B (very high) > Loss (high) x Probability (low)
Bolton v. Stone
Old English case where the court declared that a cricket club was not liable for damages to a woman who was struck by a ball
while standing outside of her house nearby. The hit was exceptional (normally hits didn’t breach the boundaries of the cricket
club), so probability of it happening again was low, and there would be few other precautions the club could have taken


One justice says that the difficulty of remedial measures (B) generally shouldn’t be taken into account
In this case B wasn’t necessary to find for the defendant; P was low enough to prove no negligence
Eckert v. Long Island RR Co.
A train was traveling quickly through a densely populated area. There was a 3 year old child sitting on the train tracks as the
train approached. Eckert rushed over to the tracks and saved the child, but was hit and killed in the process. The court found
that he was NOT contributorily negligent.



Eckert made the less costly choice according to the Hand formula
The probability that he would die was less than the 100% probability that the child would die if he didn’t do anything
We shouldn’t discourage heroic acts like this
The Margharita
Martinez was a seaman who fell overboard one day while on a long voyage. His leg was bitten off by a shark. There was no
doctor on board, but the crew decided to keep sailing without making a detour to seek medical attention. The rest of the trip
took 3 months. Martinez suffered a great deal, but he was treated after the voyage and his injuries were not much worse than
they had been before. The trial court awarded him $1500 for his suffering. The appeals court reversed, claiming that the
burden of a detour would have been too high, so the ship’s crew was no negligent


Burden would have included a long delay, extra wages for the crew, and the potentially getting lost
The plaintiff’s suffering was great, but the damage was done, no further injury resulted
1.
Hand analysis
a. B = Very high
i. Costs include the delay, wages and provisions for the crew, additional danger
b. L = Fairly high
i. Plaintiff’s pain and suffering
c. P = Very high
i. Plaintiff will definitely have to endure the pain and suffering
Davis v. Consolidated Rail Corp.
Davis was an inspector for the Trailer Train Co. He was performing inspections on a train that he thought was stationary/not
attached to a locomotive, when suddenly it started moving, severing his leg. He claimed that the train company was negligent
because the train had not blown its horn before moving, an employee who saw Davis earlier did not notify the train’s crew,
and the crew should have walked the length of the cars before starting the train. However, Davis also didn’t put up a blue flag
while doing his work, as was the custom/requirement. Negligence??
Davis v. Consolidated Rail Corp.
1.
2.
3.
Facts of the case
a. Train inspector is working under a train car
b. The train begins to move unexpectedly, injuring the plaintiff
c. Plaintiff didn’t put out a blue flag while working, as was the custom
Hand analysis
a. B = Some precautions are costly, others are not
i. Precautions would have included radioing the crew, checking under the cars, blowing the horn
ii. Radioing the crew or checking under the cars is costly
iii. Blowing the horn is easy/low burden
b. P = Relatively low
c. L = High (serious injuries resulted)
d. B < P x L
i. Blowing the horn (low burden) would have been an easy way to prevent the injury
Court found for the plaintiff
CUSTOM/MEDICAL MALPRACTICE
The T.J. Hooper (159)
Two tugboats were towing several coal barges, which were destroyed in a storm. Plaintiffs sued the tugboat company because
the tugboat’s radios, which would have allowed them to learn of and avoid the storm, were not working. The company claimed
that they could not be held negligent because it was not standard practice to carry radios. The trial court held for the plaintiff,
and the court of appeals affirmed.


The destruction of the ships was a direct consequence of the lack of radios, and custom was not a valid defense.
“There are precautions so imperative that even their universal disregard will not excuse their omission”
The T.J. Hooper
1.
2.
3.
4.
Facts of the case
a. Two tugboats were towing several coal barges
b. The barges got caught in the storm and were damaged
c. There were radios on the tugs that could have warned the crew of the storms, but the radios weren’t working
Procedural history
a. The barge owners sued the tug owners
b. Trial court found for the barge owners
c. Tugboat owners appealed
Legal reasoning (Court of Appeals)
a. The breach of the standard of care caused the damage
b. The court assesses whether the defendant was negligent by not having a working radio aboard, even if it was
not the custom to do so
i. Will the custom be determinative?
Court’s holding
a. Defendants were negligent for not having working radios
i. t doesn’t matter that it was not customary
ii. There are some precautions that are so important that even their universal disregard is not an excuse
b. B = Low (cost of radio), P = High, L = High
i. B < P x L
ii. Since the burden is low, the precaution should be taken
c. Custom may be considered when evaluating a standard of care was breached, but it is not determinative
i. This is because the custom may be different than what a reasonable person would do
Ellis v. Louisville & Nashville Ry. (160)
The plaintiff was responsible for maintaining a train mechanism that released sand onto train tracks. His job exposed him to
lots of dust, which he breathed in. Breathing so much dust caused him to contract silicosis. He sued for negligence, claiming
that the railroad company should have provided him with a mask. The company argued that it was not the normal practice to
provide masks to people doing this type of work. The trial court gave a directed verdict to the plaintiff, the court of appeals
affirmed.



“The test of negligence with respect to instrumentalities, methods, etc. is the ordinary usage and customs of mankind”
“Ordinarily, one is not considered negligent in respect of acts which conform to a common practice that has existed for
years without resulting in an injury”
How to distinguish from T.J. Hooper?
Ellis v. Louisville & Nashville Ry.
1. Railroad company held NOT liable for not giving an employee a mask
a. It was not custom to provide masks to this type of employee
b. “The test of negligence is the ordinary usage and customs of mankind”
c. This is a different outcome than the T.J. Hooper
i. Hooper = majority rule
ii. Ellis = minority rule
2. Why did this case rely on custom and Hooper did not?
a. Complying with custom here is in accord with what a reasonable person would do, or with what the Hand
formula would suggest
b. In the Hooper case, a reasonable person would have done differently than was the custom (reasonable person
would have required a radio)
c. Also, you can rely on custom when the custom has existed for years without resulting in injury
MacDougall v. Pennsylvania Power & Light (161)
Defendant manufactured a fuse box that carried an electric current when wet. The plaintiff, a plumber, was doing work on a
client’s roof when his head bumped the fuse box and he was electrocuted (it was raining at the time). Plaintiff sued, claiming it
was negligent of PP&L to install a fuse box so close to the roof. Defendant said it did not violate normal standards of the
business. Court held for the plaintiff.



“Usage becomes important only when the conduct in question is not inherently dangerous”
A harmless looking box that is actually very dangerous should not be put in a place where it can easily be touched, no
matter what standard business practices are… at least it should have a warning
“Customary methods or conduct” are not a conclusive/controlling test on negligence
Rodi Yachts, Inc. v. National Marine (162)
National Marine sent a barge to be unloaded at TDI’s dock. The barge slipped free from its moorings and crashed into another
dock and two boats, causing over $100,000 in damages. TDI claimed National Marine was negligent in tying the barge, National
Marine claimed TDI was negligent for failing to inspect the ropes. Custom should be the determining factor for liability here.


Customs of companies engaged in business with each other reflects the market determination of the best way to
minimize accidents
Focus of the inquiry should be each party’s compliance with and departure from customs
Brune v. Belinkoff (165)
Defendant gave an 8mg dose of anesthetic to a patient, as was the usual practice in the town where he practiced (New
Bedford). The woman responded badly to the medicine and claimed that she had been given too high a dose. The customary
dose in Boston was 5mg or less. The jury instructions included a “locality rule” – that the standard of care was measured
against others practicing in the same area. The court of appeals disagreed, stating that the locality rule should be abandoned as
it was no longer applicable in the modern context.



Medical advances mean that there is less need to differentiate between a country doctor and one in a big city
However, “it is permissible to consider the medical resources available to the physician as one circumstance in
determining the skill and care required”
Some allowances may be made, but the general rule should imply one national standard of care
Gambill v. Stroud (166)
Stroud was a surgeon in Arkansas; his patient suffered complications from anesthesia and ended up with severe injuries. The
jury was instructed with a locality rule and found for the defendant; plaintiff appealed. The AK Supreme Court affirmed the
decision, stating that we are not yet at a time when all medical practitioners are equal. It would be great if local doctors had as
many resources as those in big cities, but that is not the case. Doctors should be judged against those engaged in a similar
practice in similar localities.


Not “strict locality” – doctors aren’t ONLY to the standards of those in their communities, but to the standards of
those in similar communities
“The similarity of communities should depend not on population or area… but rather upon their similarity from the
standpoint of medical facilities, practices and advantages”
Johnson v. Wills Memorial Hospital (168)
Johnson was a patient who began acting strangely. He had to be forcibly returned to his room and sedated, and a nurse was
stationed outside his door to make sure he didn’t leave. He ultimately escaped through the window and was later found
outside, dead from overexposure to cold. The jury was instructed that the “standard of care applicable to the hospital was the
standard of care exercised in similar hospitals in similar communities.” Jury held for the defendant; verdict affirmed



“The ‘locality rule’ is appropriate in a case in which the adequacy of a hospital’s facilities or services is questioned”
“The protection of patients… is a service provided by a hospital… and the ability of a small rural hospital to provide
such a service is limited by its location and resources”
Medical CARE may be more of a national standard, whereas medical FACILITIES are held to a local standard
Cook v. Irion (169)
A woman slipped and fell on a sidewalk in El Paso. Her lawyer only decided to sue one of three possible defendants, and she
lost her case. She sued for legal malpractice, and her second attorney called an expert witness from Alpine, TX (220 miles from
El Paso) who testified that the first lawyer had not followed the standard of care of the general TX attorney. The trial court
held for the defendant, and the court of appeals affirmed, due to the weakness of the expert’s testimony


A lawyer from Alpine not qualified to say what a lawyer from El Paso should have done
El Paso and Alpine have very different populations, etc.
NEGLIGENCE PER SE
Martin v. Herzog (171)
Issue: Was the absence of light on the plaintiff’s car prima facie evidence of contributory negligence?
Facts of the case
1. Plaintiff and her husband were traveling in a buggy when they were struck by an automobile; the husband was killed
2. The automobile may have failed to stay on the right side of the road while coming around the bend where the accident
occurred
3. The lights on plaintiff’s buggy were off, despite it being dark/gloomy
Procedural history
1. Jury found for the plaintiff, no contributory negligence
a. They were instructed that they could consider the absence of lights if they wanted to, but it was not
conclusive evidence of negligence
2. Court of appeals remanded, ordering new jury instructions
Analysis
1. There was a statute calling for the use of lights
a. A willful disregard of the safeguards prescribed by law is to fall short of the standard of diligence to which all
must conform
2. The jury was not free to disregard the plaintiff’s violation of the statute
a. “The omission of these lights was a wrong, and, being wholly unexcused, was also a negligent wrong”
Conclusion
1. The jury should have been instructed that “the omission of the light was… prima facie evidence of contributory
negligence”
Martin v. Herzog
1. What was the jury instruction that was under issue?
a. “The fact that the plaintiff’s intestate [decedent] was driving without a light is not negligence in itself”
i. Is this a correct statement of the law?
2. Why was this instruction problematic?
a. The defendant wanted an instruction that not having a light was prima facie evidence of contributory
negligence
i. Meaning that if there is no other specific reason for NOT finding contributory negligence, the
negligence is proven
3. Court’s holding
a. Driving without a light is negligent per se
i. The jury shouldn’t relax the duty owed by the statute
ii. The statute was meant to protect against the very type of injury that occurred… if the plaintiff failed
to meet the standard of the statute, he is negligent
b. Issue of causation
i. To make a determination of contributory negligence, there must have been a breach of care AND that
breach must have been the cause of the harm
ii. Plaintiff claimed that there was no causation (no link between the lack of lights and the accident)
iii. Negligence per se only means that the issue of breach doesn’t go to the jury… the question of
causation would still have to go to the jury
Tedla v. Ellman (173)
Tedla and her brother were walking along a road in the dark when they were hit by a car, killing the brother. The pair were
violating a statute by walking on the right-hand side of the road, however at the time there was much less traffic on the right
side. The court of appeals found that they were NOT negligent as a matter of law, despite breaking the statute, because they
were exercising more caution by walking on the side with less traffic.


A law intended to prevent accidents should not be followed if following it will make accidents more likely to occur
“When the unusual occurs, strict observance may defeat the purpose of the rule and produce catastrophic results”
Tedla v. Ellman
1. Facts of the case
a. Brother and sister were walking along the side of the road
b. They were in violation of a statute that said pedestrians must walk on the left side of the line
c. A car hit and killed the brother
2. Court’s holding
a. The plaintiff was NOT contributorily negligent
i. They were in violation of the statute, but they were only walking on the right side of the road because
there was heavy traffic on the left side
ii. They were actually being safer by walking on the left
3. Two elements to determine whether there may be an exception to a standard set out in a criminal statute:
a. The reasonable approach goes against what is required by the statute
b. When the statute involves balances which options would be safer
i. Choosing between the right and left side of the road, for instance
Tingle v. Chicago (175)
The defendant’s train ran over the plaintiff’s cow on a Sunday. The train was in violation of a statute prohibiting train
operation on Sundays. The court held that there was NO negligence on the part of the train operator.


“As it is not claimed that the train was operated in a negligent manner, the proximate cause of the injury was not the
operation of the train”
The statute was not meant to prevent this kind of injury
Tingle v. Chicago
1. Facts of a case
a. Train runs over a cow on a Sunday
b. Trains weren’t allowed to run on a Sunday
2. Court’s holding
a. NOT negligence per se
b. Legislative intent did not mean to include this type of violation (the legislature didn’t make this rule for
reasons of public safety)
White v. Levarn (175)
Plaintiff and defendant were squirrel hunting, the defendant mistook the plaintiff’s hat for a squirrel and shot at it, injuring the
plaintiff. The plaintiff sued because hunting on Sundays was forbidden by law. The court held that the defendant WAS
negligent, because hunting was unlawful and the injury was related.

“The shooting which injured the plaintiff was therefore an unlawful act voluntarily done by the defendant”
Selger v. Steven Brothers (177)
A woman sued after she slipped and fell on dog poop in front of defendant’s store. The employees usually kept the sidewalk
clean, but they hadn’t had a chance to clean yet on the morning of the accident. Plaintiff claimed that they were in violation of a
statute that said all businesses must keep the sidewalk in front of their premises clean. The court held that the defendant could
NOT be held liable as a matter of law, because the statute wasn’t meant to protect against these types of injuries.

“The ordinances imposed a duty on defendant which was owed only to the city. The ordinances did not create a
standard of care owed to the traveling public”

The ordinance was about cleanliness and aesthetics, not public safety
Segler v. Steven Brothers
1. A person slipped and fell on dog poop in front of a store
2. The plaintiff claimed that the store was negligent per se for violating a statute requiring that all businesses must keep
their sidewalks clean
a. However, the duty owed was to the city, not to the plaintiff
b. The penalty for not cleaning up the sidewalk was fairly minor, therefore it doesn’t make sense to impose a
high level of civil liability
3. Would there be liability for the dog owner who left the poop?
a. Maybe not, because they violated the statute, but the statute wasn’t meant to protect the type of injury that
occurred (the statute was probably meant more for aesthetics than for safety)
b. Also, the fine doesn’t match the magnitude of the damages in a civil liability case ($200 fine vs. $400,000 in
damages)
Sparkman v. Maxwell (178)
Plaintiff was driving through an intersection and turned left at a red light, causing an accident. She claimed that she was not
negligent per se because she was confused by the traffic signals. The court held in her favor.


The lights were new and only installed on a trial basis
The plaintiff was not the first person to be confused by them
Vesely v. Sager (180)
The defendant was a bartender who served a man throughout the night. The man, who was drunk, later got into his car to
drive home and caused an accident. The plaintiff (the person injured in the accident) then sued the bartender, claiming that he
had violated a statute saying that “Every person who sells… any alcoholic beverage to any habitual or common drunkard or to
any obviously intoxicated person is guilty of a misdemeanor.” The court holds for the plaintiff, because the defendant belongs
to the class of people the statute sought to protect, and this is the very type of occurrence it sought to prevent


The court based their decision on their interpretation of legislative intent
However, after this decision to legislature modified the statute so that bartenders could not be held civilly liable in
similar cases
Vesley v. Sager
1. Facts of the case
a. A drunk man in a bar drove home and caused an accident
b. Bartender was charged with being in violation of a statute saying bartenders shouldn’t serve alcohol to
intoxicated people
2. Was the bartender negligent per se?
a. The type of injury was related to the persons protected by the statute
b. Is it really fair to hold the bartender accountable when the drunk man is the one who caused the accident?
3. Court holds that the bartender WAS negligent per se
a. After this decision the legislature changes the statute to get rid of civil liability for bartenders (or other people
who gave alcohol to the intoxicated person)
4. Deterrence perspective
a. It’s a more effective deterrent to put liability on the drunk person, because then they will be less likely to
engage in risky drinking
Brown v. Shyne (182)
The plaintiff went to a chiropractor who manipulated her back in such a way that caused numbness and eventual paralysis in
her arms. She claims that the doctor was negligent per se for practicing medicine without a license. The court ultimately held
that the doctor could not be held negligent per se on the licensing issue, he could only be held negligent if his treatment was
negligently rendered.


The statute meant to protect patients against injury from an unskilled or careless doctor, so if this doctor was neither
unskilled not careless there is no claim for negligence per se
There was a dissent claiming that this situation IS what the licensing laws were trying to protect against
Ross v. Hartman (184)
The defendant’s driver left a truck unlocked, with an unlocked gear shift and the keys in the ignition. Someone drove away in
the truck and ran over the plaintiff. The plaintiff claimed negligence per se because the defendant was in violation of a statute
saying that no person shall leave a vehicle unattended and unlocked/able to be put into motion.
Ross v. Hartman
1. Driver left his truck unlocked with keys in the ignition… negligence per se?
a. This is the type of conduct the statute seeks to protect
b. The precaution (keeping the car locked) was cheap and easy, so we feel comfortable assigning civil liability
2. Outcome = There WAS negligence per se
a. This is the majority view, but it’s not unanimous
Baltimore & Ohio RR v. Goodman (186)
Goodman was killed when his truck was hit by a train. He had slowed down before crossing the intersection, but didn’t have
time to get out of the way of the train. The court held that his failure to “stop, look and listen” constituted negligence as a
matter of law


“If he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk”
In his opinion, Holmes even said a person must get out of his car to stop and look if necessary
Pokora v. Wabash Ry. (187)
Pokora was struck by a train while driving across the tracks. He stopped, looked and listened, but he didn’t have a perfect line
of sight. The court held that he was NOT contributorily negligent as a matter of law; the issue should be decided by a jury.
Cardozo says that the holding in Baltimore v. Ohio was too strict


There may be times when “stop, look and listen” is unsafe or impossible
It is not really feasible to make everyone get out of their cars and “stop, look and listen” every time they encounter
railroad tracks
RES IPSA LOQUITOR
Blaak v. Davidson (189)
The defendant was driving a large truck on the highway when he encountered a severe dust storm. His visibility was
completely obscured so he reduced his speed to 5-10 mph. He hit the plaintiff’s car, but was NOT found to be negligent as a
matter of law. The court held that in cases where visibility is obscured by atmospheric conditions, the question of negligence
must be submitted to a jury.



“Seldom, if ever, are the facts and circumstances surrounding a collision the same”… therefore there should not be one
rule to determine negligence
It isn’t clear that stopping on the highway in such conditions would be safer than continuing ahead… in fact, stopping
could have been more dangerous
“Only in the most unusual and exceptional circumstances indicating clear fault and liability should the court hold
defendant negligent as a matter of law”
Byrne v. Boadle (192)
Issue: Can negligence be established even without evidence regarding how an accident occurred?
Facts of the case
1. The plaintiff was walking down the street when a barrel of flour fell on him
2. The flour came from a window on the defendant’s premises
3. The defendant had machinery in the window used for lowering barrels
4. There was no evidence of how the barrel actually fell
Rule: Negligence can be assumed, even without evidence, in cases where the accident very likely resulted from negligence and
the parties do not have the same access to evidence bearing on how the accident occurred
Analysis
1. “It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out”
2. The plaintiff had no way of knowing who or what caused the accident; this lack of knowledge should not prevent him
from recovering
3. The burden is on the defendant to rebut the presumption of negligence
Conclusion: Defendant was held negligent despite plaintiff’s lack of evidence
Byrne v. Boadle
1. Facts of the case
a. A barrel fell out of a window onto a plaintiff
b. There was no evidence of how or why the barrel fell
c. Should the defendant (owner of the barrel/premises) be held negligence?
2. Defendant’s argument
a. The falling barrel was not necessarily due to negligence, and there was no evidence to prove as such
3. Issue/Question
a. Can a case of negligence proceed even when there is no evidence of the defendant’s negligence?
4. Court’s holding
a. A claim of negligence can proceed even without evidence of defendant’s negligence when the type of injury
implies negligence and when the defendant is in control of whatever caused the injury
i. There are certain types of injuries that are much more likely to occur due to negligence; this is one of
those cases
ii. It is highly unlikely that the barrel would have fallen out of the window without some negligence
iii. The plaintiff has no way of knowing how the accident happened, so from a fairness standpoint, we
shouldn’t block the case from proceeding just because the plaintiff can’t prove negligence
iv. The barrel was in the defendant’s control (even if his workers were the one dealing with it, it was still
within his control), therefore he can be held negligent
Combustion Engineering Co. v. Hunsberger (193)
Hunsberger was working to repair a boiler room while defendants’ workers were building a 30ft tall shaft nearby. During the
course of their work a wedge slipped out of place and fell onto Hunsberger. The jury held for Hunsberger, but the court of
appeals reversed, saying that the evidence of negligence was insufficient. The mere falling of the wedge could not constitute
negligence because tools fall all the time.


“There must be some falling of small tools and other objects handled with ordinary care in the course of the work, and
therefore a particular fall cannot, of itself and without more, afford proof of evidence”
The defendant MAY HAVE acted negligently, but it can’t be assumed that there was negligence every time a tool falls
Combustion Engineering Co. v. Hunsberger
1. Facts: The defendant drops a wedge (a small tool) which hit the plaintiff
2. This is NOT a valid claim under the doctrine of res ipsa
a. This type of accident does not meet requirement #1… it is likely to happen even if the defendant exercises
due care
b. Tools are often dropped even without negligence
3. Why wasn’t the company required to take precautions to avoid this accident?
a. If the risk of loss was greater, we might have had greater expectations for the necessary precautions
i. If a cinder block had fallen instead of a small wedge, we might have expected there to be some type of
precaution
4. What if the person had been hit while walking down the street, instead of while working in the construction site?
a. Workers on a worksite are probably wearing hardhats; they’re more aware of the possible risks
b. People walking down the streets probably aren’t taking their own precautions, they may be unaware of the
risks, so the probability of harm is greater
c. Res ipsa doctrine would probably be more applicable in this case
5. Distinguishing Hunsberger and Byrne v. Boadle
a. Byrne was in public, Hunsberger happened within a construction site
b. A small wedge is normally much less dangerous than a barrel of flour
Larson v. St. Francis Hotel (195)
Plaintiff was talking on a sidewalk when an armchair fell onto her head. Nobody saw where exactly the chair came from, but
one could infer that it had came from the window of the St. Francis Hotel. It appeared that someone had thrown in out the
window in celebration of V-J Day. The court held for the defendant, because a hotel doesn’t have control over its furniture or
the conduct of its guests. The accident was probably due to a guest’s mistake, not negligence on the part of the hotel.


Test for res ipsa loquitor:
o There was an accident
o The thing or instrumentality which caused the accident was under the exclusive control and management of
the defendant
o The accident was such that in the ordinary course of events, the defendant using ordinary care, the accident
would not have happened
“When it appears that the injury was caused by one of two causes for one of which defendant is responsible but not
for the other, plaintiff must fail”
Connolly v. Nicollet Hotel (196)
A plaintiff was walking along the sidewalk next to a hotel when she was hit in the eye with a “mud-like substance.” At the time
there was a massive party going on inside the hotel during a convention. The hotel manager issued a memo to his staff the day
before the accident remarking at how out of hand the party had become, and said they just had to “turn the other cheek.”
Appeals court held for the plaintiff.


“Negligence may be inferred from all the facts and surrounding circumstances”… circumstantial evidence alone may
allow a finding of negligence
Dissent questioned what more could have reasonably done by the hotel… they had to give their guests a degree of
freedom
Connolly v. Nicollet Hotel
1. Plaintiff was hit by a mud-like substance coming from a hotel where a raucous party was going on
2. This WAS res ipsa
a. How was this case different than Larson?
i. In this case the hotel was aware of what was going on; therefore they could have taken some
precaution… the accident was preventable
ii. Because the defendant had notice of the behavior, they could have warned people passing by
b. Dissent agreed with Larson, saying that there was no precaution that the hotel could have reasonably taken
Brauner v. Peterson (197)
Plaintiff drove into defendant’s cow, which had strayed into the highway. The trial court found for the defendants because an
escaped cow does not imply negligence.


“With regard to res ipsa loquitor… the event must be of a kind not ordinarily occurring in the absence of someone’s
negligence”
“A cow can readily escape from perfectly adequate confines
Guthrie v. Powell (197)
Defendants bought and sold livestock at a county fair, a two-story building. Plaintiff was seated on the first floor of the building
when a 600lb cow fell through the ceiling and landed on top of her. The court held that res ipsa loquitur applied.

There was no reasonable conclusion for the cow falling through the ceiling apart from defendant’s negligence
Wilson v. Stillwell (198)
Stillwell was a surgeon who performed an operation on the defendant’s arm. Afterwards the arm became infected and later
paralyzed. The plaintiff attempted to bring a claim under res ipsa loquitur, because the hospital had a low post-operative
infection rate, therefore he reasoned that his infection must have been due to negligence. The court held for the defendant.

“There mere occurrence of a post-operative infection is not a situation which gives rise to an inference of negligence
when no more has been shown than the facts that an infection has occurred and an infection is rare”
Judson v. Giant Powder Co. (201)
There was an explosion at a dynamite factory in San Francisco that damaged the plaintiff’s home. The explosion killed all the
employees working at the time, so there were no witnesses to report exactly what happened. Defendants argued that plaintiff’s
assumed the risk of explosion when they sold the land to the company. The court rejected this argument because when they
sold the land, plaintiffs assumed due care would be exercised. The explosion carries with it a presumption of negligence based
on past experience.

If the dynamite had been handled correctly, an explosion would not have occurred, therefore we can assume
negligence
Haasman v. Pacific Alaska Air Express (204)
Plaintiff’s decedents were travelling on a plane from Alaska to Seattle. The plane completely vanished during the trip. The
plaintiffs sued the airline on the basis of res ipsa loquitur, the trial court held for the plaintiff. Because the plaintiff and
defendant have equal knowledge of what happened to the plane (aka, none), res ipsa loquitur shouldn’t apply. They say the
doctrine applies only when the defendant has more knowledge than the plaintiff. The court disagrees.


The defendant argues that res ipsa loquitur does not apply when there is equality of knowledge (the plaintiff and
defendant have equal knowledge of what caused the accident)
The court holds that res ipsa loquitur CAN apply in cases of “equality of ignorance” – when neither party knows what
caused the accident
Walston v. Lambertsen (205)
Plaintiff’s decedent was a crew member on a crab fishing boat. The boat sank without explanation on a clear day. Plaintiffs
sued the boat’s owners, saying the boat was unseaworthy because of a large crab tank on board, and also under res ipsa
loquitur. The court held for the defendants, because evidence of negligence was insufficient.



Vessel was not known to be unseaworthy at the time of departure
We can’t infer negligence absent proof that it was unseaworthy
“The sea itself contains many hazards, and an inference of liability of the ship-owner for the mysterious loss of his
vessel should not be lightly drawn”
Archibeque v. Homrich (206)
Perkins was on a long drive when he picked up a hitchhiker. He was found dead in his car, apparently after driving off a cliff.
The hitchhiker was in the driver’s seat and Perkins was in the passenger’s seat. Perkins’ estate sued the hitchiker’s estate for
negligence, based primarily on the fact that an investigator suggested that the driver may have fallen asleep at the wheel.
Court held for the defendant.


There were many other possible explanations for the crash – an insect could have gotten into the car and distracted
the driver, another vehicle could have run him off the road, etc.
However, there was evidence that there was negligence (skid marks on the road), so the court found that there WAS
res ipsa
Ybarra v. Spangard (208)
1.
2.
3.
Facts of the case
a. The plaintiff is operated on for appendicitis
b. After the operation he has problems with his arm, which eventually becomes paralyzed
c. The defendants include the several doctors involved in the care of the plaintiff over the course of the surgery
Procedural history
a. The trial court dismissed Ybarra’s claim
b. Plaintiff appealed the nonsuit judgment
i. The plaintiff claimed the res ipsa should apply
ii. Something happened to him while he was under the collective control of the defendants, and there
was probably negligence
c. Defendant’s argument
i. There were several defendants and instrumentalities
ii. There is no way to tell who or what was actually responsible
Issue/question
a.
4.
5.
6.
Can you proceed on a theory of res ipsa when there are multiple defendants and you don’t know who caused
the injury?
What are the concerns of applying res ipsa in medical circumstances?
a. Juries may have a hard time determining whether or not the injuries were due to negligence without expert
evidence
b. There are so many people involved in patient care – how do we know who was actually responsible?
Court’s holding
a. The injury was likely due to negligence
i. If you have an injury to a body part that was not being operated on, there was probably negligence
b. It doesn’t matter that there were many people involved, the plaintiff should still be able to recover
i. All the defendants owed the patient a duty of care
ii. All the defendants had the opportunity for negligence
iii. Remember that the court simply allows the case to proceed… in the end, not all of these defendants
may be found guilty
Reasoning – why does res ipsa apply here, even though it doesn’t quite meet the “defendant’s control” requirement?
a. The court wants the defendants to have to explain why they aren’t liable… the burden is on the defendant
b. If the court doesn’t let the case proceed, we might create a “pocket of immunity”
c. The court chooses between res ipsa (rebuttable) and strict liability (potentially even more unfair to the
defendants)
Bond v. Otis Elevator
1. Facts
a. Plaintiff sued elevator and building after sustatining injuries when her elevator went into free fall
2. Holding
a. The court applied res ipsa in this case
b. Because there is a joint relationship (between the elevator company and the building), we assume that each
party has information/evidence about the other’s liability, so the information-forcing element of res ipsa will
work well
Ingrid v. Central R.R. Co.
1.
2.
What is the difference between this case and the Bond case?
a. Information-forcing won’t work as well in this case, so res ipsa shouldn’t apply
b. Ingrid was an explosion case, so evidence was probably destroyed, meaning that defendants won’t be able to
rebut the assumption of negligence
If there is a circumstance where neither plaintiff nor defendant has information, AND we don’t know what was
actually under the defendant’s control, it would be unfair to apply res ipsa
DUTY: AFFIRMATIVE ACTS
Yania v. Bigan
1.
2.
Facts of the case
a. Bigan has a coal mine on his property
b. Yania and a third person go on to Bigan’s coal mine to do some business
c. While they’re there, Bigan apparently told Yania to jump into a deep pool of water, and he drowns
Did Bigan have a duty to rescue?
a. There is no general duty to rescue
b. However, if Bigan created the risk, did he then have a duty to rescue?
i. Yes, if Bigan was legally responsible for creating the risk, he had a duty to rescue
ii. BUT, in this case, this type of urging does NOT constitute legal responsibility
Globe Malleable Iron & Steel v. New York Cent. & H.R. R. Co.
1.
2.
3.
A railroad car kept getting in the way of fire trucks on their way to a fire
The court held that the train had a duty to get out of the way of the fire trucks
Reasoning
a. This occurred on public land
b. The railroad had been granted a license to use the public land, the least they can do is get out of the way to
allow for a rescue
c. There is less or no risk to the “rescuer” (here, the train that needed to get out of the way)
d.
Normally we don’t impose a duty on members of the public because we’re worried they won’t do a good job
rescuing, but this isn’t a concern when all we’re talking about is getting out of the way
Saldano v. O’Daniels
1.
2.
Facts of the case
a. Defendant refuses to allow the telephone in a bar to be used in order to stop a deadly assault
Court’s holding
a. The defendant should have let the plaintiff use the phone
i. This occurred in a public place, so there is no concern regarding the risk to the rescuer (there is no
duty to allow someone into your home to use the phone)
b. There can be a duty when:
i. The situation takes place in public
ii. There is no imminent harm to the rescuer
Stangle v. Fireman’s Fund Insurance Co.
1.
2.
3.
Facts of the case
a. A ring is stolen and the person it was stolen from wanted to use a phone in a store to call from help
Court’s holding
a. There was no duty for the defendant to allow the plaintiff to use the phone
Reasoning
a. Businesses might be overrun by similar requests for help, it could become a major burden
b. There may be danger of physical harm (a criminal could follow a victim into a business, for instance)
Hurley v. Eddingfield
1.
2.
3.
4.
5.
Issue: Does a doctor a duty to provide care for a seriously ill patient if there are no other doctors available?
Plaintiff’s argument
a. The decedent was dependent on the doctor
b. The doctor had no reason NOT to come to the patient’s aid
c. Because of the special relationship between doctor and patient, patients will inevitably rely on their doctors
Defendant’s argument
a. Doctors are not required to practice medicine in any particular case… it’s still up to him when to give care
Court’s holding
a. Doctors are not required to practice at any time
Difference between Hurley and O’Neill
a. In Hurley, the doctor tells the patient to come back later, and the court found that there WAS a duty
b. Professional advice (to leave and come back) was given, so the doctor was liable… it was reasonable for the
plaintiff to rely on the doctor’s advice
Erie Railroad v. Stewart
1.
2.
Facts of the case
a. Defendant railroad had a guard stationed at a railroad crossing
b. The guard couldn’t get out in time to warn the plaintiff that a train was coming; the plaintiff was hit by a train
and injured
c. Defendant claimed that it had no obligation to warn the plaintiff; they provided the guard voluntarily so they
shouldn’t be held liable
Was there a duty?
a. Was there reasonable reliance?
i. Yes, if there is normally a guard at a station, then people come to rely on that guard
SPECIAL RELATIONSHIPS
Trans-Packing Fishing and Packing Co
.
1. How is this case different than Yania?
a. There was a special relationship between the shipowner and his crew
b. Why does this special relationship create a duty, where it didn’t in Yania?
i. We don’t want a general duty to rescue because we’re concerned about Administrability and botched
rescues
ii. In the case of a special duty, the rescuer is automatically in a better position to offer care
iii. For instance, the captain of a ship has special resources (life rafts, etc.) to offer care in the context of
his work
United States v. Lawter
1.
2.
Did the rescue attempt induce reasonable reliance?
a. Yes, she didn’t call for help or anything else because she assumed she would be rescued by the Coast Guard
Was she worse off as a result of the rescue attempt?
a. As compared to no rescue, she wasn’t made any worse off
b. BUT, if the Coast Guard hadn’t attempted the rescue, she could have called for other help, and someone else
might have succesfully rescued her
Charles v. Seigfried
1.
2.
3.
No liability for the social host when a 16 year old drank heavily at a party and was killed in a car accident (majority
rule)
Court’s reasoning
a. Concern about the cause: who is actually causing the harm?
i. Both the person drinking and the social host are “but for” causes… But for either of their actions, the
harm would not have occurred
ii. Proximate cause is only the person drinking
iii. Fairness says we should on put liability on the proximate cause (person drinking the beverage)
b. There would be many adminsitrability issues with putting liability on the social host
Connection to seatbelt cases
a. It’s more appropriate to put liability on the person who caused the accident (proximate cause) rather than the
person who didn’t wear a seatbelt
Kelly v. Gwinnell
1.
2.
3.
There was liability for a social host whose drunken guest caused the death of a third party in an auto accident
(minority rule)
Reasoning
a. Costs of imposing liability are worth it because they help us curb drunk driving, which is a major problem
b. Incentives and social value
i. Spreading the losses (financial losses shouldn’t all be on the person injured or the person who caused
the accident, the should be spread among all potentially responsible parties)
c. This court says the social hosts’ actions were one of the relevant (aka proximate) causes of the accident
How to distinguish this case from Charles?
a. There was a third party injury in Kelly
b. The court in Charles is mainly focused on administrability, the court in Kelly is focused on incentives and
social value
Tarasoff v. Regents of the University of California
1.
2.
3.
4.
Facts of the case
a. Podar was a patient at the University of CA hospital, he told his psychiatrist that he was going to kill a woman
for rejecting him
b. He was committed but later released, and the doctors/psychiatrists failed to warn the woman (Tarasoff) of
any danger
c. Podar eventually killed Tarasoff; her parents sued
Plaintiff’s claims
a. Defendants had a duty to warn about the dangerous patient
b. This failure to warn was a proximate cause of Tarasoff’s death
Defendant’s response
a. The defendant claims that warning the plaintiff would have been a violation of privacy/patients’ rights
b. Their professional obligation would conflict with a legal duty to the plaintiff
Court’s holding
a. The general rule is that there is no duty to control conduct of another
b.
5.
However, there are exceptions to this general rule:
i. When there is a special relationship between the defendant and the person whose behavior needs to
be controlled (in this case, the doctor and the patient), the defendant also has a duty to the potential
victims of that person
ii. The doctor only must warn the person who will be directly affected by the patient’s conduct
c. The court ultimately says there IS a duty here
i. Possible counterargument is that it might be impossible for doctors to know which of their patients
are dangerous
How far does this duty extend?
a. Extends to some medical/mental health contexts
b. Hard to tell how this ruling has affected the practice
c. Generally, as long as doctors use a good faith effort in determining when it is appropriate to disclose, they
won’t be held liable
Kline v. 1500 Massachusetts Ave.
1.
Why did the court impose a duty on the landlord?
a. The landlord knew about the danger because of previous incidents
b. There used to be measures in place to prevent the harm
c. The landlord has a special relationship with his tenants
i. The landlord is in the best position to prevent this type of harm; he can do it more easily, effectively
and cheaply than tenants or the police
ii. The landlord is more likely to have knowledge of the danger
iii. A tenant has no way to prevent intruders from coming into the building, only the landlord can do that
Riss v. City of New York
1.
2.
3.
Plaintiff is injured (blinded and scarred) after repeatedly and unsuccessfully seeking help from the police
a. One of her former boyfriends threatened to kill or maim her, she asked for help but police refused to give her
protection
Majority opinion
a. There was no duty on the part of the police to help Linda
i. The police have limited resources, they can’t preemptively protect everyone
b. Institutional competence argument
i. The court shouldn’t interfere with another branch of government (police/executive)
c. Argument on increased crime
i. If the court held for the plaintiff, then if a person felt they needed protection they would have a right
to demand it… based on the large amount of crime in cities, this is not feasible
ii. The people who need the police’s help the most don’t have the resources to ask it… If the police were
made to be responsive to public requests, the people who could most easily make demands of the
police wouldn’t be the neediest ones
Dissent’s argument
a. We have standards of liability not only for compensatory, but because there is a normative effect and can
change the police’s behavior
b. Holding for the plaintiff could positively influence police behavior
Schuster v. City of New York
a.
b.
Facts of the case
a. Plaintiff was a police informant who was killed for providing information
b. He had previously received communication threatening his life, but the police didn’t offer protection
Court’s holding
a. The police DID have a duty to protect this informant
b. Reasoning
i. The police and the informant had a special relationship
ii. The police actively sought the help of the informant
iii. We want to encourage people to help the police
DUTIES OF LANDOWNERS
Herrick v. Wixom
1.
2.
Facts: A trespasser was sitting in the audience of a circus and was injured by a firecracker during the show
The court held there WAS a duty, even though the plaintiff was a trespasser
a. There is generally no duty towards trespassers UNLESS the defendant knew or had reason to know the
trespasser was there
i. You don’t need to know that the person was a trespasser, you just need to know that the person was
there
b. In this case, the show had started, the audience was assembled, the person “knew” that the trespasser was in
the audience
i. The circus performers knew that people were there, in this case the trespasser was just like the other
people in the crowd
ii. Also, the circus could probably assume that some people would sneak in without tickets
Davies v. McDowell National Bank
1.
2.
NO duty towards licensees
a. Defendant didn’t know/could not have known of the unsafe condition
A landowner has a duty towards licensees only if they know or should have known of the risk and failed to warn their
guests
a. The condition must also not be obvious to the licensee
b. The licensee has no duty to inspect the premises for dangers
Lordi v. Spiotta
1.
2.
There WAS duty towards the licensee
Reasoning
a. Defendant’s failure to properly shut off the gas was an affirmative act
b. You have to take care whenever you engage in a dangerous activity
City of Boca Raton v. Mattef
1.
2.
Facts of the case
a. The city gives Mattef tentative permission to paint a watertower in the town, but specifies that they need to
draw up a contract
b. Before the contract is signed, Mattef decides to paint the watertower
c. A rung on the watertower breaks and Mattef falls to his death
The court held that there was NO duty
a. Mattef was a volunteer, not an invitee
b. If the contract had been signed, then he might have been an invitee and the city might have owed him a duty
Jacobsma v. Goldberg’s Fashion Forum
1. The store owner DID have a duty to Jacobsma
a. Jacobsma was an invitee
b. He was asked by the manager to help apprehend the thief (by the manager yelling “stop, thief!”)
c. In the case of a store, we don’t expect an invitee to enter into an actual contract before being recognized as a
business visitor
i. Everyone who enters the store is assumed to be a business visitor… it’s not like Mattef, where a
contract was needed before he became an invitee
PURE ECONOMIC LOSS
Robins Dry Dock & Repair Co. v. Flint
1.
2.
Facts of the case
a. Plaintiffs chartered a steamboat, owners provided that the boat would be withdrawn from service every 6
months for cleaning
b. Owners hired Robins Co. to replace a part
c. Robins employee dropped the part, causing a delay in the repairs
d. Plaintiffs suffered losses because they couldn’t use it for two weeks
e. Plaintiff sued Robins for damages
Two contractual relationships
3.
4.
a. Plaintiff and owners of the boat (plaintiff chartered the boat)
b. Owners and defendant (Robins)
Procedural history
a. District court held for the plaintiff
b. Court of appeals affirmed
c. Supreme Court reversed
Legal reasoning
a. The injury was not to the plaintiff but to the owners of the boat
Madison Ave. Gourmet Foods, Inc. v. Finalndia Center, Inc.
1.
2.
3.
Facts of the case
a. Defendant is the owner of a large office building undergoing construction work, the construction leads to the
collapse of the building, which causes the streets to be closed and neighboring stores (including defendant’s
deli) lose business
Court’s holding
a. The defendant was NOT liable to the plaintiff, because the deli incurred only economic losses and was not
directly harmed
b. Reasoning
i. Where would we draw the line if we allow plaintiffs to collect for indirect economic damages such as
these?
ii. In this case there would have been so many potential plaintiffs
iii. The point of the economic loss doctrine is not that you can NEVER recover for economic losses, but
you must have ALSO incurred some injury or property damage
Distinction from Newlin v. New England Telephone
a. In Newlin the court allowed recovery, because the plaintiff’s mushrooms were destroyed (property damage)
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Robb v. Pennsylvania Railroad Co.
1.
2.
3.
Facts of the case
a. Plaintiff’s car was stuck on the railroad tracks
b. A train was approaching and the woman just barely escaped
c. The woman was terrified, the shock and stress had some physical manifestations (she was unable to
work/nurse her child/etc.)
Issue/Question
a. Can the plaintiff recover damages despite the lack of an actual bodily impact, when she was in the immediate
zone of danger due to defendant’s negligence and suffered physical harm caused by her severe emotional
distress?
i. However, this isn’t a case where we’re only dealing with emotional distress… there are
accompanying physical injuries
ii. At one point, the plaintiff was in the immediate zone of danger
Court’s holding
a. It doesn’t matter that there was no impact, the plaintiff’s claim is allowed to proceed
b. As long as the plaintiff was in the immediate zone of danger, they can recover for emotional distress even if
c. What is the point of the impact rule?
i. Concerns about subjectivity and fraudulent claims that are hard to disprove
ii. Fright doesn’t give rise to a cause of action, so neither should any injury resulting from it
1. The court disagrees, and says that physical injury itself is more important than where it
arises from
Marzolf v. Stone
1.
2.
Father comes upon an accident scene where his son was struck by the defendant
a. He didn’t see the accident happen, but he was physically present right after the accident
Court finds that there was liability
Gain v. Carroll Mill Co.
1.
Father saw an accident scene involving his son on TV
2.
Court finds that there was NO liability
a. This was different than Marzolf because there was more remove
Barnhill v. Davis
1.
2.
Son sees his mother get into a car accident, he believes she is seriously hurt even though she had only minor injuries
The court held that this case could go forward to trial
Barnes v. Geiger
1.
2.
Mother sees a car hit a pedestrian; the accident occurred near where her son was playing, and she feared that her son
had been the victim (he wasn’t)
The court held that she was NOT allowed to recover
BUT-FOR CAUSATION
New York Central Railroad v. Grimstad
1.
2.
3.
4.
5.
Facts of the case
a. Decedent was the captiain of a barge
b. Tugboat knocked into the barge, captain fell into the water
c. Decedent’s wife tried to find a life preserver to save him (he couldn’t swim), but she couldn’t get one in time
Alleged breach of duty
a. The boat owner should have had life preservers onboard
b. Where did the duty come from? Three possible sources…
i. Affirmative acts
1. The act of renting out a boat is probably enough to qualify as an affirmative act, creating a
duty
ii. Special relationship
1. Perhaps the captain was an employee of the boat owner, creating a special relationship
iii. Landowner
But-for causation
a. Traditional view: “more likely than not”
i. Is it more likely than not that the injury could have been prevented by the precaution
ii. In this case, we are not confident that it was more likely than
Court’s holding
a. The idea that the life preservers would have made a difference is too speculative, so plaintiff cannot recover
i. Insufficient evidence of but-for causation
What if the plaintiff alleged that the boat owner should have placed large nets along the side of the boat to catch
anyone who fell overboard?
a. This would probably not be a reasonable precaution
i. Failure to put up such nets would not be a breach because it was not the custom
ii. Nets might even cause other safety issues
Gardner v. National Bulk Carriers
1.
2.
3.
Facts of the case
a. Gardner fell overboard while working on a ship
b. Gardner was reported missing but the ship did not make any effort to search for him
Court found that there WAS liability for the ship owners
a. Seamen who fall overboard often survive many hours in the water
b. Turning back would have entailed no risk for the boat
c. However, the idea that the ship could have found and saved Gardner also seems speculative… how is this
different than Grimstad?
Explaining the reasoning
a. Fairness perspective
i. The ship owner in Gardner is more morally blameworthy than the ship owner in Grimstad… In
Gardner, the defendant was conscious of the problem and didn’t do anything about it
b. Avoiding pockets of immunity
c.
i. In cases like this, it is almost impossible to show that it is more likely than not that the precaution
would have prevented the injury… we don’t want to create a pocket of immunity, so we will use a
more flexible standard
Incentives perspective
i. We want to incentivize ship owners to prevent people from falling overboard, or for looking for
missing crew more thoroughly
ii. If there was no liability in this type of case, we would create an incentive for ship owners to avoid
looking for missing crew until they knew it would be too late
Haft v. Lone Palm Hotel
1.
2.
3.
4.
Facts of the case
a. Father and son drowned in a hotel pool
b. Hotel did not comply with a rule that said pools must provide either a lifeguard or a sign saying there was no
lifeguard
Plaintiff’s argument
a. Hotel breached its duty by failing to provide lifeguard or sign
Defendant’s argument
a. “More likely than not” standard was not met
b. A sign wouldn’t have made a difference… it was obvious there was no lifeguard present
Court’s holding
a. The court shifted the burden to the defendant to prove that a sign WOULDN’T have prevented an injury
b. The statute requiring signs was meant to prevent the very type of injury that occurred
c. A sign might make some difference… it makes people even more aware of the dangers of swimming, they may
think twice
Bernard v. Char
1.
2.
Facts of the case
a. Plaintiff chooses to get a tooth extraction rather than a root canal
b. He suffers an injury and sues, saying that he wasn’t properly informed of the risks of the extraction
Court’s holding
a. Court applies an objective standard
i. Knowing all the risks, would a reasonable person have consented to the surgery?
1. NO – the reasonable person would have chosen the root canal if he had known the risks of
extraction
ii. This objective standard is generally better for doctors
b. Here the plaintiff benefits from the objective standard, because he couldn’t actually afford the root canal
i. The reasonable person would have chosen the root canal, so Bernard prevails… even though he
didn’t have the money for that option
Zalazar v. Vecimak
1.
2.
Facts of the case
a. Plaintiff suffered injuries after a face lift
Court’s holding
a. Court applies a subjective standard
LOST CHANCE/STATISTICAL EVIDENCE
Herskovits v. Group Health Cooperative of Puget Sound
1.
2.
3.
Facts of the case
a. Defendant failed to make an early diagnosis of plaintiff’s lung cancer
b. Decedent first went to the doctor in 1974; he was diagnosed in 1975
c. The failure to diagnose in 1974 reduced plaintiff’s chance of surviving for 5 years from 39% to 25%
Procedural history
a. Trial court dismissed the action, plaintiff appealed
Issue/question
a. Can an estate maintain an action for professional negligence as a result of failure to timely diagnose lunch
cancer, where the estate can show probably reduction in statistical chance for survival, but cannot show
4.
and/or prove that with timely diagnosis and treatment, decedent probably would have lived to normal life
expectancy
i. Plaintiff can’t show that negligence more likely than not caused his death, but he can prove reduced
chances of survival
Court’s holding
a. The court holds for the plaintiff
i. They do NOT follow the traditional common law rule (“more likely than not” standard)
ii. The court is concerned that plaintiffs with a greater-than-50% chance of dying will never be able to
recover… this is unfair
b. However, the plaintiff is not entitled to full damages in this case
i. Using the “loss of a chance” rule is somewhat unfair to the defendant
ii. To mitigate this unfairness, the defendant can only be liable for an amount proportional to the
probability that the injury was caused by their negligence
Dumas v. Cooney
1.
Rejects the loss of a chance doctrine
a. “If the acts of the defendants did not actually cause plaintiff’s injury, then there is no rational justification for
requiring defendants to bear the cost of plaintiff’s damages”
MULTIPLE CAUSES/JOINT LIABILITY
Summers v. Tice
1.
2.
3.
Facts of the case
a. Plaintiff and two defendants were quail hunting, plaintiff was shot by one of the two defendants, but didn’t
know which
b. Both defendants fired their guns
c. Trial court held for the plaintiff, defendants appealed, claiming that the plaintiff had not proved causation
Elements of negligence
a. Did both defendants breach the standard of care?
i. According to the court, both wrongdoers were negligent towards the plaintiff
ii. However, technically, only the one who caused the injury was negligent
Court’s holding
a. Judgment affirmed: Each defendant is liable
i. Both defendants were negligent
ii. The burden of proof should be shifted to the defendants, because they are in a better position to
judge who fired the harmful shot than the plaintiff
iii. Doesn’t matter whether the defendants were acting independently or in concert
Sindell v. Abbott Laboratories
1.
2.
3.
4.
Facts of the case
a. This was a class action against drug companies who sold DES, a medicine that was marketed as preventing
miscarriages, but actually caused cancer in the daughters of the pregnant women
b. DES = 50,000 birth control pills
c. FDA approved on an experimental basis… companies who wanted to use it had to provide a warning, which
didn’t happen
How did defendants breach the standard of care?
a. They didn’t follow guidelines regarding warnings, etc
b. They misled people with their marketing
c. They should have known how dangerous the drug was
Can a plaintiff injured by a drugs administered to her mother during pregnancy, who knows the type of drug but
through no fault of her own not the manufacturer, hold liable another manufacturer of an identical drug?
a. Causation problem
i. Can’t meet standard common law rule, because she can’t identify who exactly caused the injury
b. Plaintiff argues that there should be causation under Summers theory
i. When you have a plaintiff who was injured by one of multiple defendants, and neither plaintiffs nor
defendants have access to knowledge, plaintiff can still recover
Court’s holding
a. The court does not allow the case to go forward on a Summers theory
b.
i. In Summers there was a 50% chance that one defendant was liable, whereas in this case the
probability is much less
Court applies a “market share” rule
i. Defendants are liable for an amount proportional to their market share
ii. Defendants sued must make up a substantial portion of the market share
PROXIMATE CAUSE: FORESEEABILITY
In re Polemis (351)
Polemis owned a ship which he chartered to the defendants. When the ship was in the defendant’s care, it arrived in Morocco
with a cargo of gasoline. Some of the gas leaked, and someone working for the defendant later sparked an explosion when he
negligently allowed a plank to fall. House of Lords awarded full damages to plaintiff




Falling of the plank was due to defendant’s servant’s negligence
Fire caused directly by falling of plank
Reasonable anticipation is “immaterial” if the damage was a direct result of the negligence
“Once the act is negligent, the fact that its exact operation was not foreseen is immaterial”
In re Polemis
1. Facts/procedure
a. Polemis owns a ship which he charters to defendants
b. Defendants carried a cargo of gasoline
c. Defendant’s employees were trying to get gas out of the ship’s hold
d. They put planks on the ship’s hold, one of these planks fell
e. The falling plank cause a spark that ignited an explosion
2. What was the negligent act?
a. Defendant’s employees allowed the plank to fall
b. It wasn’t foreseeable that the plank would cause the fire, but it was foreseeable that it could cause some
injury
3. Defendant’s argument
a. The fire itself was not foreseeable
b. The extent of the damages were not foreseeable
i. Defendant takes the plaintiff as he finds him
4. Issue/question
a. Defendant was negligence, and the negligence directly caused the harm, but the harm that resulted was not
foreseeable
b. If a defendant acts negligently and directly causes a harm that is not foreseeable, can they be held liable for
damages?
5. Holding
a. If a defendant negligently and directly causes a harm, they can be held liable for all damages, even if they
weren’t foreseeable
Overseas Tankship Ltd. V. Morts Dock/“The Wagon Mound” (354)
Defendants owned the S.S. Wagon Mound, and oil being pumped into the ship spilled into the bay. Two days later the oil caught
fire in plaintiff’s wharf. Trial judge found that the defendant couldn’t have reasonably been expected to know that oil was
capable of being set on fire once in the water. The court does not follow Polemis, and finds that the defendant was not liable
because he could not have reasonably foreseen the damages.




A defendant shouldn’t be held liable for unpredictable but direct damages, nor should he escape liability for
foreseeable but indirect damages
Polemis is illogical/unjust because it substitutes “direct” for “reasonably foreseeable” consequences
“The essential factor in determining liability is whether the damage is of such a kind as the reasonable man should
have foreseen”
“The liability for negligence… is based upon a general public sentiment of moral wrongdoing for which the offender
must pay”
Wagon Mound Case
1.
Facts of the case
2.
3.
4.
5.
6.
a. Defendants owned Wagon Mound ship, which was leaking oil
b. Defendants continued on its way without cleaning up the oil
c. Two days later the oil exploded in the plaintiff’s wharf
d. Defendant didn’t know and could not reasonably have known that oil could catch fire in the water
Procedure
a. Trial judge followed Polemis and held the defendant liable, because the damage was direct but not
foreseeable; defendant appealed
What was the negligence?
a. Spilling the oil without cleaning it up (the oil is unsightly, it can cause damage to wildlife and sea creatures)
Issue/question
a. Can the defendants be held liable for harm that was the direct result of their negligence if that harm was not
foreseeable
Legal Reasoning
a. The court does NOT rely on the Polemis test
i. It says the Polemis test is illogical and not in keeping with general torts standards
ii. It isn’t fair to hold people liable for causing harm that they didn’t foresee
b. They use a foreseeability test instead
i. We prefer a “foreseeable” test to a “natural and probable” test… there may be overlap, but when they
diverge we only want to hold defendants liable for foreseeable harm
ii. Foreseeability test will be easier to administer
c. Hindsight is 20/20… once we know that something happened, we tend to think of it as being predictable… we
are more likely to think something was “direct” after it already happens
Court’s holding
a. A defendant is not liable if its negligence directly causes a harm if the harm is not a foreseeable consequence
of the negligence
Petition of Kinsman Transit Co.
A steamboat was moored to a dock owned by the Continental Grain Company. Ice drifted towards the dock, caused the boat to
come loose from Continental’s “deadman,” then floated downstream and hit another ship, which came unmoored and drifted
into a drawbridge, which toppled a tower, and created a dam which the other ship, which flooded the surrounding area. Court
of appeals affirmed liability for Continental for negligently maintaining the deadman.



It was generally foreseeable that improper construction of a deadman could cause a ship to become unmoored and do
great damage
Follows from the idea that defendant takes the plaintiff as he finds him… even if the magnitude of the injury/damage
was greater than could have been reasonably anticipated
“Where the damages resulted from the same physical forces whose existence required the exercise of greater care
than was displayed… unforeseeability of the exact developments and of the extent of the loss will not limit liability”
Colonial Inn Motor Lodge v. Gay (360)
Defendant was backing up in a hotel parking lot. He hit a heating unit but thought it was just the wall, so he drove off. He had
actually severed a gas line; gas built up in the hotel and was ignited by a pilot light in the hotel’s laundry room. Trial judge gave
summary judgment to the defendant; court of appeals reversed and remanded.




Proximate cause is a jury question
There was some evidence that the car hit the unit with great force and therefore the explosion was not totally
unforeseeable
Even a slow-moving car is capable of causing significant harm
“It is not necessary that the extent of the harm or the exact manner in which it occurred could reasonably be foreseen.
A negligence plaintiff must take the plaintiff as he finds him” (eggshell skull rule)
Colonial Inn Motor Lodge v. Gay
1. Facts of the case
a. Man backed his car into a heating unit at a hotel, he didn’t think it was a big deal (thought he hit the brick
wall), but he actually damaged a gas line that later exploded
2. Pro-liability arguments
a. The harm was a direct result of the car hitting the heating unit, there was no intervening cause
b. It was foreseeable that a car could have caused some kind of significant damage
c. The noise from the crash should have prompted the driver to do something
3.
d. The dangerous force was the car
Anti-liability arguments
a. The harm was not foreseeable… The negligent act was backing into a brick wall; backing into a wall doesn’t
generally cause explosions
b. There may be different forces at work (the impact alone didn’t cause the explosion… must take into account
the gas, pilot light, etc.)
Central of Georgia Ry. v. Price (363)
Plaintiff was a passenger on defendant’s train, and the conductor neglected to let her off at Winchester, and accidentally
carried her on to Montezuma. Once in Montezuma she got a hotel and was given a kerosene lamp, which set fire to her room
overnight, and she injured her hands while trying to put it out. Jury found in her favor, but GA Supreme Court reversed.


It was the hotel’s negligence that caused the injury, not the conductor’s earlier negligence
“The negligence of the company in passing her station was not the natural and proximate cause of her injury. There
was the imposition of a separate, independent agency, - the negligence of the proprietor of the hotel, over whom the
railway company neither had nor exercised any control”
Central Georgia Railway Co. v. Price
1. Facts of the case
a. A woman is taken to the wrong railroad stop, and is subsequently injured in a fire at the hotel she must stay
in
b. No liability case
2. What are the foreseeable risks of going to the wrong railroad stop?
a. Extra travel expenses
b. Extra travel time
c. It was NOT foreseeable that there would be a fire in the hotel
INTERVENING CAUSES
Brauer v. NY Central RR
1.
2.
Defendant could be held liable for theft of property after an accident, because it was foreseeable despite the
intervening cause of the third party thieves
a. Also, defendant’s guards kept watch over the tracks but not defendant’s goods
Brauer dissent
a. There should be an unbroken line between cause and effect in order to prove proximate cause
i. In this case, the line between cause and effect is broken by the actions of the thieves
b. Dissent agrees that the foreseeability rule is an appropriate standard
i. As a matter of law, criminal acts are not foreseeable… we shouldn’t assume criminal behavior
Watson v. Kentucky & Indiana Bridge
1.
2.
3.
Facts of the case
a. Defendant’s railroad car was derailed, spilling gas
b. The gas was ignited by a match lit by a man, causing an explosion
Outcome
a. Liability depended on how Duerr came to start the dire
i. If he started the fire intentionally, the railroad could NOT be held liable
ii. If he started the fire unintentionally, the railroad COULD be held liable
Reasoning/Arguments
a. Foreseeability
i. It is fairly obvious that spilled gasoline creates a unique opportunity to start a fire
ii. Then again, people don’t go around setting gas on fire… that part is not foreseeable
iii. Also, the opportunity to cause the fire is not all that “unique”… anyone who wanted to start a fire
could easily do so on their own, they wouldn’t need the defendant’s negligence
b. Why does liability depend on a third party’s state of mind?
i. We care about exact developments in cases involving intervening causes, because they held us
determine the extent of foreseeability and opportunity
Village of Carterville v. Cook
i.
Facts of the case
a. Plaintiff is jostled off a sidewalk with no railing
b. No liability for defendant
i. It was foreseeable that someone could fall off the sidewalk, and that pedestrians could be jostled
ii. The lack of railing created a unique opportunity for the harm to occur, especially because the
sidewalk was raised
Alexander v. Town of New Castle
1.
2.
3.
Facts of the case
a. Defendant failed to enclose a pit that had been dug in one of its streets
b. The plaintiff was thrown into the pit by a third party
Arguments
a. This case is like Carterville, because in each case the town created an opportunity for third parties to cause
harm to passerby’s
b. On the other hand, in Carterville, it was foreseeable that someone might fall in the pit, but not that they might
be pushed into it
Outcome
a. No liability for the defendant, because the person who pushed the plaintiff in the pit was “clearly an
intervening as well as an independent human agency in the infliction of the injuries”
Scott v. Shepherd
1.
2.
Facts of the case
a. Defendant tosses a lighted firecracker into a crowd
b. Members of the crowd subsequently threw the firecracker away from themselves as it came to them
c. The firecracker eventually exploded in Scott’s face
Outcome
a. Liability for the initial firecracker-thrower
b. The intervening causes (the additional people throwing the firecracker away from them) were automatic…
the people were acting in self-preservation and couldn’t have done differently
The Roman Prince
1.
2.
Facts
a.
b.
c.
Defendant was on a sinking barge
Initially she tried to stay on the barge
Eventually she realized the barge was actually sinking/dangerous, so she tried to get off the boat, but tripped
on the way
Outcome
a. No liability for defendant barge owner
b. The woman might not have tripped if she had exited the boat in a timely manner
Thompson v. White
1.
2.
Clown’s performance on the side of the highway distracted a driver who caused a collision
The defendant was not a free agent, but was acting under the influence of clowns… the gas station that hired the
clowns was held liable
LIMITATION OF DUTY
Palsgraf v. Long Island R.R.
1.
2.
Cardozo thinks the question of the unforeseeable plaintiff should be addressed as a matter of duty
a. Duty is based on the foreseeability of harm to the plaintiff
b. The duty inquiry is a question of law for the judge
c. There was no duty in this case because Palsgraf was not in the immediate zone of danger
Andrews thinks everyone owes a duty to everyone else, but liability should be limited when there are unforeseeable
plaintiffs based on proximate cause
a. Factors to determine proximate cause
3.
4.
5.
i. It must be a but-for cause
ii. It must be foreseeable
iii. Harm must be a direct result
b. Proximate cause is a jury question
c. In this case he thinks the conductor’s negligence was the proximate cause of Palsgraf’s injuries, because it was
the but-for cause and it was sufficiently direct
Both Cardozo and Andrews make foreseeability a significant part of the determination as to whether an unexpected
plantiff can recover
Modern courts and scholars are still split on this question
a. Currently the majority of jurisdictions follow the duty standard
b. There seems to be a trend away from a duty standard and towards proximate cause (Andrews’ view)… this is
in the 3rd Restatement
What difference does it make whether we go with duty or proximate cause?
a. Cardozo would put the “unforeseeable plaintiff” under the limits of duty (along with purely economic loss or
emotional harm)
b. The biggest practical difference is whether a judge or a jury is deciding whether a plaintiff can recover
DAMAGES
United States v. Hatahley
1.
2.
3.
1.
Facts of the case
a. Plaintiff is a member of a Native American tribe who sued the government for taking their horses and
donkeys
b. The US position was based on a state statute allowing the government to take unbranded horses
c. First time Native Americans successfully sued the US for wrongdoing
d. Trial court found for the plaintiffs and awarded them $186,000
i. Each plaintiff given $3,500 for mental pain and suffering
ii. Value of each horse/donkey was set at $395
iii. Money was also given for diminution for the value of the herd
e. Plaintiffs claim that the animals were specially trained and shouldn’t be valued at their usual market value
Issue/Question
a. Losses include:
i. Specially trained horses and donkeys
ii. Loss of use (loss of transportation, thinning of the herd)
iii. Mental anguish
b. How should the seizure of specially trained work animals and the economic and emotional losses occasioned
thereby be assessed for an award of damages?
Court’s reasoning
a. How should the horses be valued?
i. For property, the basic standard is market value of the goods
ii. The claim that the animals were unique was not successful, because the animals could be retrained
or similar animals could have been obtained… if similar animals can’t be obtained, damages should
be the market value plus costs of retraining
b. For compensatory damages, the goal is to make whole
i. Is the outcome contradictory to this goal? It doesn’t take into account the high value the plaintiffs
place on their animals
c. How should the “loss of use” be valued?
i. The plaintiffs aren’t entitled to damages for loss of use for any time period after which they should
have reasonably replaced the animals
ii. How much of the thinning of the herd was actually due to defendant’s negligence, and how much
would have been lost anyway (because the animals were old, etc.)
iii. The lower court assigned a value to each animal… Appeals court says damages should be based on
lost profits, not intrinsic value of the animals
d. Mental anguish damages
i. The lower court gave one sum and divided it between the plaintiffs for their mental anguish
ii. Appeals court said that each plaintiff’s anguish should be determined individually
iii. Normally a plaintiff can’t recover for mental anguish based on property loss… but there are cultural
differences at play here
United States v. Hatahley
a.
b.
c.
d.
e.
f.
Plaintiffs was entitled to market value of horses and donkeys
If they couldn’t find similarly trained horses, they were entitled to the market value plus the estimated cost of
retraining
Plaintiffs were entitled to loss of use damages that occurred before the time when a reasonable person would
have replaced the animals
When calculating lost profits, court must take into account any money the plaintiffs had received when selling
their animals to thin the herd
i. Lost profits = What the plaintiffs could have sold the animals for on the market
Mental anguish
i. Unusual to award mental anguish damages for lost property
ii. Must be done on an individualized basis
Court imposes culturally specific notion of property
i. Administrability concerns say there needs to be one specific notion of property, even if it is
somewhat unfair
ii. Should we care about sentimental value of property lost when assessing damages?
Pescatore v. Pan Am: $9 mil lost wages/$5 mil lost society after young BP exec killed in plane crash
Landers v. Ghosh: $400,000 for lost wages/society after death of young, unemployed carpenter
Haddigan v. Harkins: $65k for lost services of a housewife killed in car acctident
Louisville & Nashville Ry. V. Creighton
1.
2.
Facts of the case
a. $10,500 award for lost earnings was given for the death of a four year old child (this was in 1889… about
$200,00 today)
Lost earnings for children
a. The general rule is that you can get whatever you can prove
b. If children are older it can be easy to prove potential future earnings, this loss becomes more speculative if
the child is younger
Beynon v. Montgomery Cablevision, Inc.
1.
2.
3.
4.
Facts of the case
a. A man got stuck in traffic and collided with a stopped tractor trailer; he died on impact
b. The family sought damages for pre-impact fright, for the time during which he was skidding towards the
tractor trailer and knew he wasn’t going to be able to stop in time/knew death was imminent
Outcome
a. The man won a $1 million jury verdict, which was later reduced to $300,000 due to a statutory cap on
damages
Dissent
a. Worried that there is no proof/evidence of decedent’s fright
Would he be able to collect damages for pre-impact fright had he lived?
a. Negligently inflicted fright is sometimes subject to the impact rule
b. In some jurisdictions plaintiff must have been in the zone of immediate danger and must have physical
manifestations of the fright
i. In this case, plaintiff was in the zone of danger, but we don’t know whether he would have any
physical consequences
Douglas v. Hustler Magazine
1.
2.
Facts of the case
a. Woman had nude photos of her published in Playboy (with consent)
b. The photos were later picked up by Hustler and published without the plaintiff’s consent
Outcome
a. She was awarded $300,000 by a jury
b. The appeals court called this amount “absurd” and ordered a new trial
Weller v. American Broadcasting
1.
2.
Facts of the case
a. An antiques dealer sold a valuable silver candelabra to a museum for $65,000
b. Television report suggested that this candelabra was stolen and the museum paid too much for it
c. The dealer claimed that he was humiliated and shrouded in suspicion… He suffered from worry,
sleeplessness, anger, loss of appetite and depression
Outcome
a. The jury awarded the plaintiff $1,000,000 for damage to his reputation and $1,000,000 for mental suffering
Daugherty v. Erie Ry. Co.
1.
2.
Facts of the case
a. Daugherty is severely disfigured in an accident
b. Even his friends couldn’t recognize him
c. He also lost his sense of taste and smell
Outcome
a. $5,000 verdict is determined to be too low
Hogan v. Santa Fe Ry.
1.
2.
Facts of the case
a. Woman injures her finger and loses the ability to play the violin
b. She was an expert violinist, her talent defined her
Outcome
a. The court said that she could not recover for this type of activity
b. However, this case was later overruled… plaintiffs CAN recover for hedonic damages
CONTRIBUTORY NEGLIGENCE/ASSUMPTION OF RISK
McIntyre v. Balrentine
1.
2.
3.
Facts
a. McIntyre was injured as a result of a car accident
b. Balentine was drunk, but McIntyre was speeding
Procedure
a. McIntyre sued Balentine
b. Jury found that they were equally at fault, so the court found in favor of Balentine
c. McIntyre appealed
Questions on appeal
a. May a plaintiff recover from a defendant for injuries caused in part by plaintiff’s negligence?
i. Administrability point in favor of contributory negligence: It’s binary, easy to figure out… we don’t
have a complicated question about how to apportion the fault
1. We might also get fewer suits under a contributory negligence scheme
ii. Argument in favor of comparative negligence: it wouldn’t be fair to let the defendant off the hook
entirely
b. The court uses a comparative scheme, and allows plaintiff collect an amount proportional to the defendant’s
negligence
Murphy v. Steeplechase Amusement Co.
1. Facts of the case
a. This case involves an attraction at an amusement park called “The Flopper,” a moving belt that people try to
stand on (and often lose their balance)
b. Plaintiff was injured when he fell while riding the Flopper and sued the amusement park for negligence
c. Before getting on the ride, plaintiff had watched other people on the ride and saw that they often fell
2. Procedure
a. Jury verdict for $5,000
b. Appeals court affirmed
c. Defendant appealed again
3. Issue/question
a. When a plaintiff who knowingly encounters a risk that cannot be avoided without fundamentally changing
the nature of the activity recover from an injury resulting from that risk materializing?
i. Part of what makes The Flopper fun is falling… you can’t get rid of that risk and keep the ride
4.
Plaintiff’s argument
a. The belt was out of order, because it jerked the plaintiff forward
i. Cardozo says there is no evidence that the belt was broken… it was meant to cause a jerk
ii. Falling was the very risk that the plaintiff undertook
1. However, just because you assume some risk does not mean that you accept any risk that
occurs
STRICT LIABILITY
Rylands v. Fletcher (review)
1.
2.
3.
4.
Facts of the case
a. Defendants hired contractors to build a reservoir, the water escaped and flooded the plaintiff’s mine
Why is there liability?
a. Significance of strict liability means that the defendant can be held liable even if the he was exercising due
care
b. But for the defendant’s act in bringing the dangerous thing on the land, no accident would have happened
i. It was the defendant’s responsibility to keep the water in
ii. Normally it isn’t enough that an act was the “but for” cause to establish negligence, but in this case it
was, because we want to change activity levels
Activity levels v. care levels
a. For some activities, even after taking appropriate care, there is still an unacceptable amount of risk
b. If you can’t adequately prevent the danger by changing the care level, you must prevent it by changing the
activity level
Court’s reasoning
a. The court uses examples
i. There is strict liability for damage caused by escaped cattle
ii. Escaped cattle are a known danger
b. Reciprocal risks v. non-reciprocal risks
i. If something is common it’s a reciprocal risk… we all share the benefit and the burden
ii. If something has social value it’s a reciprocal risk
c. Administrability, strict liability v. negligence
i. It’s easier to bring a strict liability claim, so there may be more lawsuits, but they’ll probably be
cheaper to administer
Losee v. Buchanan: NO STRICT LIABILITY when boiler exploded and pieces flew onto π’s property… Court wanted to protect
developing industries
Lubin v. Iowa City
1.
2.
Facts of the case
a. Defendant was using water pipes that typically last 100 years
b. The rupture occurred when the pipe had been in use for 80 years
c. The only way to check whether anything is wrong with the pipe is to expose the pipe, so it’s very hard to see if
something is wrong
Court applies strict liability
a. The pipes become hazardous when they aren’t checked
b. The court is less skeptical of strict liability than in Losee, because we don’t have the same concerns about
protecting developing industries
c. Reciprocity of the risk
i. The defendant is a city… it’s okay if they are held liable because the risk will be spread across society
Indiana Harbor Belt v. American Cyanamid
1.
2.
Facts of the case
a. American Cyanamid makes and ships a toxic chemical
b. They were loading the chemical on a railway car, and when the train was in a switching station (plaintiff
Indiana Harbor Railway) they realize that the chemical was leaking and the area had to be evacuated
c. The state required the switching station to take care of cleanup costs totaling $1 million, so they then sue
American Cyanamid
Issue
a.
3.
When a manufacturer ships a toxic and flammable chemical through a highly populous area, are they subject
to strict liability?
Reasoning
a. One reason for not applying strict liability is whether evidence is destroyed... similar to res ipsa
b. Applying factors from Restatement 520 (pg. 417)
i. Most important factor: Whether the risk involved can be addressed through using appropriate care
1. The accident here seems to be caused by carelessness, and this can be deterred adequately
through negligence… there’s no reason to move to strict liability
2. Plaintiff has not put forward evidence that a carefully maintained car will still be dangerous
3. Posner frames the issue narrowly… he is concerned about what it would mean for activity
levels if strict liability were imposed… it wouldn’t make sense to try to get at activity levels
through the manufacturer, because the manufacturer doesn’t control how it is shipped
4. Cost of precaution is really expensive
c. If you impose strict liability, you get at defendant’s activity level; if you impose a negligence standard you get
at plaintiff’s activity level
Ira Bushey v. United States
1.
2.
3.
Facts
a. Seaman is an employee of the Coast Guard
b. He returns to his post drunk and turns the wheels of a dry dock, causing flooding and damage to the dock
Procedure
a. Dock owner sues the Coast Guard and wins
b. Coast Guard appeals, says it shouldn’t be liable for the actions of its employees
Outcome
a. The Coast Guard IS vicariously liable
b. Traditional rule about scope of employment
i. The employee’s action must have been motivated for the purpose of the employer… not applicable
here
c. Why was the employer liable even though the facts didn’t meet the traditional motive test?
i. The action related in time and place to the employment
ii. The seaman came back to his place of work, and he is required to sleep there
Miller v. Reiman-Wuerth Co.
1.
2.
No liability for employer
How can we distinguish this from Bushey?
a. Didn’t occur in the place of business
b. Clearly occurred in the defendant’s personal time
c. Employers are not held liable the “frolics and detours” of their employees
Forster v. Red Top: LIABILITY when a bus driver fought with other drivers for “making him late”
Reina v. Metropolitan Dade: NO LIABILITY when a bus driver fought π after π gave him the finger
Escola v. Coca Cola
1.
2.
3.
4.
5.
Facts
a. A waitress was injured when a Coke bottle exploded in her hand
Holding
a. Manufacturer can be held liable under res ipsa
b. The harm occurred from overcharging or excessive pressure and was likely due to negligence
Evidence relied upon
a. It is common knowledge that an overcharge would not occur without negligence
b. Also relies on testimony of the engineer about testing of bottles… the test was nearly infallible for the bottle
tested, but not all bottles (only 1 in 600 bottles are tested)
What would employers defense be to the res ipsa claim?
a. The employer took due care and did everything they should have done to prevent the injury (however, this is
similar to the rationale for strict liability)
b. The burden of testing every bottle would be significant
Rationale for strict liability
a.
6.
7.
Deterrence
i. We want to encourage safety and security
ii. The best way to deter hazards is to put liability on the manufacturer, because they can guard against
hazards better than the public
b. Loss spreading
i. Loss would be overwhelming to an individual but insignificant for a manufacturer
Traynor’s concurring opinion
a. If you have a claim based on a manufacturing defect, all you have to show is the defect itself
i. All you need is that the product is different than the manufacturer intended, and that difference
caused harm
b. Changing relationship between merchant/consumer
i. Consumers used to be much more wary of products, but now the manufacturers are engaging in a lot
of branding and advertising so consumers trust them more
c. Administrability
i. Much of the history of products liability is based in warranty… if you sell someone a product, there is
an implied warranty that it doesn’t have defects
Traynor’s opinion is now the majority approach
a. Restatement says there should be products liability if a product is unreasonably dangerous (like if it has a
defect)
American Tobacco Co. v. Grinnell
1.
2.
3.
4.
5.
6.
7.
Facts of the case
a. Grinnell begins smoking in 1952, before warnings on packages
b. He died of lung cancer after 33
c. Filed a failure to warn products liability claim against the cigarette manufacturer
Plaintiff’s claims
a. Tobacco company failed to warn that cigarettes were dangerous and also that they were addictive
Defendant’s response
a. It was common knowledge that cigarettes were harmful and addictive
Rule for determining liability
a. A product is defective if it doesn’t contain a warning and the manufacturer knows that it is harmful
i. Would a warning have been required in the first place?
ii. Was the risk commonly known… did it necessitate a warning?
b. Standard for “knowledge”
i. The dangers must have been a matter of common knowledge when the party started using the
product
ii. Facts that are so well known to the community as to be beyond dispute
Issue/Question
a. Was the addictive nature of cigarettes so well known to the community that no warning was necessary?
Holding
a. The general harms of smoking were well known
b. The addictive quality of cigarettes was an additional risk and was not well known, so the failure to warn
renders the product unreasonably dangerous and therefore defective
Dissent
a. Addiction is just one of the harmful effects associated with smoking… the addiction risk is subsumed within
the general risk
b. Everyone knows that cigarettes are habit-forming (it’s obviously hard to quit)