TORTS MASTER OUTLINE: NEGLIGENCE AND UNINTENTIONAL TORTS
A. INTRODUCTION TO NEGLIGENCE AND THE REASONABLE PERSON STANDARD
a. Four elements of neg.
i. A duty owed P by D
ii. A breach of that duty/failure to take due/reasonable care
iii. Causation
iv. Harm/damages
b. One can be referred to as negligent without actually being held liable for the tort of neg..
c. R2d: Unless the actor is a child, the standard of conduct to which he must conform to
avoid being negligent is that of a reasonable person under similar circumstances
i. Differs according to age, dis/ability or intelligence.
d. Contributory neg. (CN): a plaintiff is not barred from recovery because of CN like it used
to be. Enforced when P could have avoided/reduced the injury from an accident through
the use of due care and failed to do so. In this instance, damages are reduced, but not
eliminated, for P.
e. Comparative fault: allows juries to balance neg. of P and D to apportion liability.
f. R2d: Actor must use reasonable qualities and faculties, but also superior qualities and
faculties he may have.
g. Cases: Mental Abilities and States
i. William v. Hays (NL): D ship captain took medicine after navigating through a
storm to sleep due to exhaustion. Ship eventually crashed after medicated D
refused help. P, part owner of ship, sued for damage done. NL for D, because
impossibility is an excuse in law, and there is no obligation to perform impossible
things, as in the case where one is overcome by physical and mental exhaustion.
ii. Vaughn v. Menlove (L): D built a chimney through his haystacks that destroyed
P’s property, even after P warned him of the fire hazard. D argued NL because he
was dumb. L for D, because the standard to be applied is that of the reasonable
person.
iii. Lynch v. Rosenthal (L): P was mentally disabled and worked on D’s farm. P got
too close to a corn-husking machine and was injured. P sued D for neglect in
failing to warn him; P sued for contributory neg.. L for D, because if someone is
mentally incapable of understanding a danger and a second party, understanding
his possession of such debility, does not caution him as to the danger, the D can be
found liable for neg..
iv. Weirs v. Jones County (NL): D condemned a bridge and posted signs saying it
wasn’t safe. P could not read English, drove over the bridge with his horses and
wagon and the bridge collapsed. P sued D for lost property. NL for D, because a P
cannot claim some standard of care to be applied to him that can’t be applied to
people in general. Unreasonable to post signs in every language.
v. Friedman v. State (L/ no CN): P, an Orthodox Jew, got stuck on ski lift with a man
after dark. To avoid religious shame, she jumped and was seriously injured. L for
D and no CN for P, because there exists torture of the mind as well as of the body
and will can be as much affected by that as by the fear of force. P’s damages,
however, were reduced.
vi. Fredericks v. Castora (NL): P hit by D, a truck driver, claiming L because D was a
professional and should be held to a higher standard. NL for D, because the
standard of care is what may be reasonably required or expected under the
circumstances. Taking experience into account would make the standard useless.
h. Cases: Physical Infirmities
i. Kerr v. Connecticut Co. (NL/CN): P was a deaf man walking close to a trolley
line. The trolley operator rang his gong, but P could not here. The trolley operator
slammed on his brakes but could not avoid hitting him and P died. NL for D,
because when someone has a disability, he is required to exercise care for his own
safety which a reasonably prudent under similar circumstances would exercise. P
was found CN for not taking due care.
ii. Davis v. Feinstein (L/no CN): P, a blind man, was walking down the sidewalk
using his tap cane, but fell into D’s open cellar. P sued D, and D argued CN. L for
D, no CN for P, because P took due care by using his cane.
i. Cases: Age
i. Purtle v. Shelton (NL): The 17-year-old D was hunting with his friend and
accidentally shot him and P sued for neg.. NL for D, because standard of
care/reasonable person is different for minors; if a minor is to be held to an adult
standard of care, he must be engaging in an activity normally engaged in only by
adults; kids under 16 can hunt.
ii. Roberts v. Ring: 7 year-old P was struck by 77 year-old D in his car when P darted
into street. D was hard of sight and hearing. P sued for neg.. L for D. Again,
standard is that of a reasonable/prudent person under the circumstances. D knew
he was impaired, yet drove anyway.
iii. Dellwo v. Pearson (L): 12-year-old D drove across P’s fishing line, causing the
rod to break and a piece to injure P’s eye. L for D, because in the operation of an
automobile, plane or powerboat, minors are held to the same standard as adults.
B. RISKS AND PRECAUTIONS
a. Hand Formula = cost/benefit analysis: B<PL. Likely liability if B is less than PL.
i. P = probability of an accident occurring if precautions were not taken
ii. L= injury/loss that would result if the accident were to occur
iii. B= burden/cost of the untaken precaution P claims D should have used.
b. Hand Formula is difficult to apply, but is nonetheless claimed to be a compelling
description of what judges and juries do regardless of whether they notice it.
c. Exception: when it is unreasonable to make a cost-benefit analysis due to a stressful
situation. For example, when exposure to neg. is for the purpose of saving life, it is not
wrongful and therefore not negligent unless such as to be regarded as either rash or
reckless (Eckert, where P died saving child from being hit by a train). It is a processbased determination, not an outcome-based one.
d. While only some cases are Hand Formula cases, many others fall into a category of
lapses in care where D fails to take a precaution that everyone agrees is required by
reasonable prudence (“compliance errors”)
C. CUSTOM
a. When you’re talking about custom, you’re talking about breach.
b. Problems with Custom:
i. Usually cheap for the industry but expensive for everyone else
ii. What is custom? It’s nebulous and difficult to define.
c. Custom is not an automatic defense to neg.. Custom informs reasonableness, but does not
define it.
d. A way to think about custom: whether it’s being used as a sword or a shield.
e. Cases:
i. The T.J. Hooper (L): P sued D for un-seaworthiness (maritime equivalent of neg.)
lost coal barges in storm because D didn’t have working radios onboard to warn of
storm. D argued no industry standard for working radios. L for D, because
reasonable prudence is common prudence, and D should have had working radios.
ii. Ellis v. Louisville & Nashville Ry (NL): P sued D for neg. because he got an
illness allegedly from breathing in dust while working for D. D argued NL
because it was not industry standard to supply masks. People charged with duty
can rely on sufficient common use for the purpose and has been safely used in a
variety of conditions which demonstrates its fitness for the purpose.
iii. MacDougall v. PA Power & Light Co. (L): P was a plumber doing work on a roof
while raining and bumped his head on D’s fuse box near the roof. The current
knocked him out and he fell, sustaining various injuries. L for D. The standard of
due care is as a prudent person would use. Customary or usual conduct or methods
to not determine L. There should be a warning or something to let people know
it’s dangerous if they are likely to come near it. “Reason does not have to wait on
usage; the latter must wait on reason.”
iv. Yodi Yachts, Inc v. National Marine, Inc. (L): Really complicated facts… main
takeaway is that when a party has no contractual relationship with a third party,
the standard of care should be higher than the industry standard, because the
market will regulate contractually bound/industry related parties. Court-found
liability will force change toward third parties.
v. Wal-Mart v. Wright (NL): P slipped at D store and sued for neg.. Jury instruction
was to consider D’s safety manual to determine standard of care to be applied. D
argued that was a subjective standard rather than objective standard of
ordinary/reasonable care. NL for D, because instruction should have applied
objective standard of ordinary care rather than D’s customs.
f. Cases: Custom and medical malpractice
1. Medical malpractice is an unusual area of tort law where compliance with
custom is decisive rather than just evidentiary.
2. Most courts use a national standard of care, with some allowances if D had
below-average resources/training available.
3. Differing standards:
a. Similar locality rule: when standard it is that of persons engaged in
similar practice in similar localities, giving consideration to
geographical location, size and character of the community.
b. Professionalism standard: what is customary among skilled
practitioners of good standing would do under similar circumstances.
When it’s an issue of disclosure, courts will ask whether the
physician disclosed all “material risks” (not rare or obvious).
c. Prudent patient standard: what the physician should disclose to a
reasonable patient in order that the patient might make an informed
decision.
ii. Brune v. Belinkoff (L): D was administering anesthesia to P 50 miles from
Boston, where customary amount of anesthesia was less than that administered by
D. 11 hours after, P tried to get out of her hospital bed and fell. P sued D for
administering too much anesthesia. L for D, as court in Mass. did away with
locality rule.
iii. Gambill v. Stroud (NL): D was P’s surgeon and had to abort surgery because of
complications with anesthesia. P suffered injuries and sued D. NL for D, because
the standard is not limited to that of a particular locality. Court applied “similar
locality” rule. Docs in small towns are not comparable to those in larger medical
centers/communities.
iv. Johnson v. Wills Memorial Hospital & Nursing Home (NL): P’s husband was
patient at D. He was irritable and behaving strangely, so he was returned to his
room and sedated. D stationed an orderly outside his room, but he escaped through
the window. He was found hours later having died of exposure. NL for D, because
of similar locality rule. Protection of patients is not a medical function of a
hospital, but a service provided. The ability of a rural hospital to provide such
service is limited by its location and resources.
v. Largey v. Rothman (L): P consented to biopsy of her breast for cancer, but
surgeon also excised her lymph nodes without her consent or knowledge of the
risks. She later developed a rare condition caused by the excision and sued D for
battery and neg.. L for D, as court chose to apply “prudent patient” rather than
“professional” standard. The scope of disclosure should not be limited to the whim
of the medical community; “professional” standard should be important only
where pure medical judgment is involved.
vi. Newton v. Porter (NL): P sued D for battery from puncturing her small intestine
while she was getting her tubes tied. NL for D, because to be able to sue for
battery, P must prove D intentionally punctured her small intestine.
g. Case: Custom and Legal Malpractice
i. Cook v. Irion (NL): Main thing is that an attorney practicing in a vastly different
locality from a second would not be qualified to second guess the judgment of the
second. In this case, D and P’s expert were from different counties, but the
“relevant community” is usually the state as a whole.
D. NEG. PER SE: CRIMINAL STATUTES AND JUDGE-MADE RULES
a. Neg. per se (NPS) is when the court determines that D has violated some sort of rule,
either statutory or judge-made, and that the violation establishes D’s neg. as a matter of
law.
b. Neg. per se is also talking about breach.
c. When an actor neither knows nor should know of any required compliance with
legislation or regulation, his violation will ordinarily be excused.
d. In that same vein, legislative intent is critical when attempting to determine whether a
provision of criminal code creates civil liability.
e. Cases: Statutes
i. Martin v. Herzog (L): P was driving buggy on the road and was hit by P. P’s
husband was killed. P asserted NPS because D didn’t stay on his side of the road
according to law. D asserted NPS because P’s buggy didn’t have a light according
to law. NPS for P and D, because they both violated safeguards prescribed by law.
ii. Tedla v. Ellman (L/ NL): Ps were walking on the side of the road and D hit one of
them and killed him. P sued, but D argued P was walking on the wrong side of the
road in violation of statute. P argued that side had lighter traffic and was thus
safer. NL for P, L for D, because strict observance of statute can defeat its
purpose, like telling Ps to walk on the side of the road that was actually more
dangerous; not what legislature intended by statute.
iii. Tingle v. Chicago (NL): D’s train hit P’s cow and killed it. Trains weren’t
supposed to run on Sunday, so P sued under NPS. NL for D, because even if train
killed cow, it was not the proximal cause of any neg. from the operation of the
train.
iv. Sunday hat (L): P and D were squirrel hunting and P accidentally shot D. P sued D
under NPS because it was illegal to shoot guns on Sunday. L for D, because he
violated the law, regardless of whether P was going to also.
v. Selger v. Steven Brothers (NL): P slipped on poop on sidewalk in front of D’s
shop. P sued for NPS because of city ordinance requiring landlords to keep
sidewalks clean. NL for D, because duty to keep sidewalk clean owed to city, not
to travelling public. NPS better against owner of dog because of pooper scooper
law, but owner is unknown.
vi. Sparkman v. Maxwell (NL): P and D got in a car accident because D turned left on
red arrow. This was the first red arrow installed in the state, so D did not know
what it meant. NL for D, because she did not know nor should have been expected
to know about the new signal.
vii. Vessely v. Sager (L): D owned a lodge where he served a man too many drinks.
Man drove drunk and hit P. P sued D under NPS, citing a statute which prohibited
bartenders from serving drunken people. L for D, because intent of legislature was
to protect the people from accidents like the one that occurred. Legislature later
amended law that would keep bartenders like P from being held civilly liable.
viii. Brown v. Shyne (NL): P went to D chiropractor. D paralyzed P in adjustment. P
sued for NPS because D didn’t have a license to practice, which violated state law.
NL for D, because license does not confer skill or immunity to injury if
practitioner fails to use due care. Court interpreted legislative intent as providing
against risk of injury by an unskilled practitioner, regardless of licensure. Dissent
said licensing is entire point; it vets people, and D should be liable because he
practiced un-vetted.
f. Cases: Judge-made rules
i. Baltimore & Ohio RR v. Goodman (L): P was driving his truck towards tracks
obscured by a house and did not know D’s train was coming. He went to cross
tracks and was struck and killed by the train. L for P, because he didn’t “stop, look
and listen.” A reasonable man should know to check tracks before he crosses
them. Even though reasonableness is usually set by jury, this was a matter of
standard of conduct, which should be laid down by the courts.
ii. Pokora v. Wabash Ry (NL): P was about to cross tracks. Railcars blocked his
view, so he stopped to listen for a horn or whistle. Hearing none, he went to cross
but was hit by D’s train. L for D, no CN for P, because he exercised due care. It
would be dangerous for P to stop and check again.
iii. Theisen v. Milwaukee Auto Insurance Co. (L): P was injured when D’s insured
fell asleep driving and crashed. L for D, because D’s insured was negligent
because he should have known better than to drive exhausted.
iv. Blaak v. Davidson (L): D was driving his truck when a dust from newly-plowed
fields obstructed his view. He slowed to 5-10 mph, but ended up rear-ending P’s
car going 2-3 mph. NL for D, because a rule requiring drivers to stop when their
vision is obscured would be too rigid to cope with the numerous plausible
situations. “One size fits all” standards don’t usually work. Jury should determine
what would have been reasonable under the circumstances.
E. RES IPSA LOQUITUR
a. Means “the thing speaks for itself” in Latin.
b. Elements of res ipsa:
i. There was an accident…
ii. …and the thing/instrumentality that caused it was at the time of and prior thereto
under the exclusive control and management of D.
1. Not applicable in cases where there is divided responsibility where the
accident may have been attributable to one of several causes
2. Rule of exclusive control is not limited to the actual physical control, but
applies to the right of control of the instrumentality which causes the injury
iii. The accident was such that in the ordinary course of events, D using ordinary care,
the accident would not have happened.
c. The fact-finder may infer that D has been negligent when the accident causing P’s
physical harm is of a type that ordinarily happens as a result of neg. by a class of actors of
which D is a relevant member.
d. Sometimes it is not easy or even possible for P to ID the untaken precaution
i. That’s kind of the point, though, because D has access to information while P does
not. Res ipsa forces D to cough up information.
e. Other times, the accident seems obviously to be the result of D’s neg., as the accident
probably wouldn’t have happened unless someone had been negligent.
f. Res ipsa is a conflict of facts: the jury decides who is right in this case. It allows the jury
to consider things which it ordinarily wouldn’t have.
g. Two important rationales:
i. The accident very likely resulted from the negligence
ii. The parties did not have the same access to evidence bearing on how the accident
occurred
h. Procedural consequences:
i. Res ipsa typically permits, but does not require, a jury to find D neg. on the basis
of nothing more than the accident and its circumstances
ii. If P relies on res ipsa, D is free to submit evidence to rebut presumption created by
the doctrine
i. Cases:
i. Byrne v. Boadle (L): P was hit by barrel of flour that allegedly fell from D’s
window. D had hoist for lowering barrels. No witnesses saw it fall, but saw it hit
P. L for D, because even if no evidence of neg., barrel was in custody of D, even if
servants were lifting it. D must provide facts to disprove prima facie evidence.
ii. Combustion Engineering Co. v. Hunsberger (NL): P was a working next to where
D was working on a shaft. While hammering, D’s wedge fell down that shaft and
hit P. NL for D, because sometimes things just happen. Also, if it cannot be
supposed that an injury is the result of neg. every time it occurs, can’t be presumed
to itself result from neg.
iii. Larson v. St. Francis Hotel (NL): On V-J Day, P was walking by D hotel and was
hit by a falling armchair. No evidence of where chair came from. NL for D,
because D did not have exclusive control of instrument that caused accident;
guests had partial control. Unreasonable to have hotel police every room/ outside
scope of ordinary care expected of D.
iv. Connolly v. Nicollet Hotel (L): P was walking passed D hotel when hit in the eye
by “mud-like substance.” Only place it could have come from was hotel, which
was housing a convention whose attendees had wrecked the hotel. D had provided
them with free alcohol. L fro D, because D controlled the instrumentality that led
to the accident.
v. Brauner v. Peterson (NL): P his D’s cow on highway and P sued without evidence
of how cow escaped. NL for D, because the occurrence of the events must be of a
vi.
vii.
viii.
ix.
x.
xi.
kind not ordinarily occurring in the absence of negligence for the application of
res ipsa.
Guthrie v. Powell (L): P was in D’s store where D kept livestock on 2nd floor. A
steer fell through the roof and onto P. Maybe L for P; held D could be sued under
res ipsa.
Wilson v. Stillwill (NL): D did surgery on P’s arm. It later got infected and
became paralyzed. P sued D under res ipsa. NL for D, because just because
infection occurred does not prove negligence.
Judson v. Giant Powder Co (L): P owned facilities leased to D for producing
dynamite and they blew up. L for D, because if an accident occurs that does not
occur in the ordinary course of things, it affords reasonable evidence that the
accident arose from want of care. Even with the real cause of the explosion being
unexplained, it is probable that is was occasioned by a lack of proper care.
1. You asked Lance about this and he said that today, this case would more
likely be considered under the doctrine of Strict Liability because the
probability of an accident could not be completely eliminated, even with
the exercise of due care.
Haasman v. Pacific Alaska Air Express (L): P’s decedents died in crash of D’s
plane. There were no adverse weather conditions. L for D, because even when D
and P are both ignorant, res ipsa can still be applied. Also, when D’s neg. through
act or omission exists in the causal chain which caused P’s injury, and because of
this P cannot know or prove neg., res ipsa is applicable. Plus, the court didn’t want
to immunize an entire industry.
Walston v. Lambertsen (NL): P’s decedent was a crewmember on D’s boat when
it sank. Conditions were clear, and the cause was unknown. P sued under res ipsa,
because boat had large live tank installed that may have contributed to the sinking.
NL for D, because it could not have been the tank that caused the sinking. “The
sea itself contains many hazards.”
Ybarra v. Spangard (L): D performed appendectomy on P. After procedure, P
lost feeling in his arm and the muscles atrophied. D and other co-Ds at the hospital
continued to treat him, but P got worse. P was unconscious during procedure and
could not name one D. P sued them under res ipsa. L for Ds, because the control at
one time or another of one or more of the various agencies or instrumentalities
which might have harmed P was in the hands of every D, his employees or
servants. Every D in whose custody P was placed was bound to exercise ordinary
care to see no unnecessary harm befell him and would be liable for failure.
1. Public policy: accepting D’s argument would rarely leave an injured P with
compensation when injured while unconscious.
2. This is a case of information forcing: if all are sued, one of them is more
likely to talk under the pressure of a lawsuit. Someone should know what
happened to P.
xii. Wolf v. American Tract Society (NL): D’s were 2 of 19 contractors working on a
building from which a brick fell that hit P. No evidence of who dropped it. NL for
Ds, because it did not make sense to hold 2 contractors liable who had no control
over one another, and when any of the 17 other contractors could be responsible.
xiii. Bond v. Otis Elevator Co. (L): P was in Ds elevator when it went into free fall.
She sued D and owner of the building under res ipsa. There was K between two
Ds for maintenance of the elevator. Neither knew what happened. L for both Ds,
because even when two entities are in control of the instrumentality, res ipsa can
be applied when one or several parties are in joint, contractual total control over
that instrumentality.
xiv. Actiesselskabet Ingrid v. Central R. Company of NJ (NL): P owned ship destroyed
when dynamite on D’s railcars exploded while being loaded onto another ship. P
sued D, owner of ship dynamite was being loaded onto, and the owner of the
dynamite under res ipsa. NL for D’s because the accident could have been caused
by any of them, or the act of outsiders. Not enough exclusive control.
F. DUTIES ARISING FROM AFFIRMATIVE ACTS
a. Where P is injured by careless D, but is denied recovery because D is said to have owed
P no duty of care. No duty, no breach, regardless of harm. Duties must be established;
they are not automatic.
b. Affirmative acts are ones which create risks for others/ conduct that creates a risk of
physical harm to others
i. This is the most common sort of duty
1. Because this duty is so pervasive, it may be more helpful to consider a “no
duty” rule because of exceptions
ii. Example: driving a car, performing a medical operation
c. A D cannot ordinarily be held liable for simply doing nothing, even if that failure causes
harm to P. A D who does nothing has no duty of care to others.
i. Doing nothing is sometimes called “nonfeasance,” for which the law imposes no
liability.
ii. This is opposed to “misfeasance,” or affirmative acts done carelessly, for which
defendants may be held liable.
iii. The distinction between action and inaction is sometimes hard to define
d. If an actor performs an act and then realizes/should realize it has created an unreasonable
risk of causing physical harm to another, he is under a duty to exercise reasonable care to
prevent the risk from taking effect.
e. If the actor knows or has reason to know that by his conduct he has caused bodily harm to
another as to make the other helpless and in danger of further harm, he is under a duty to
exercise reasonable care to prevent further harm.
f. Cases:
i. Yania v. Bigan (NL): D cut large trenches to remove overburden from coal
mining that had a 16-18 ft embankment filled with 8-10 feet of water. P was
helping D start pump to get water out. To help, P jumped into trench, but drowned.
ii.
iii.
iv.
v.
vi.
vii.
P’s wife sued D for wrongful death, asserting D had urged/taunted P to jump,
didn’t warn him of risk, and didn’t jump in to rescue him. NL for D, because P
was not a child but an adult, and a reasonable adult should have understood the
danger/been unaffected by any taunts. Also, P owned coal mining operation
adjacent to D, so he should have understood the risk. D had moral obligation to
save P, not a legal one.
Weirum v. RKO Radio General, Inc. (L): D radio station sponsored a contest
where DJ would drive around and first person to find him would win a prize. Two
teenagers were racing to DJ on the highway and caused a wreck that killed P. P’s
family sued D and teens. L for D, because if an actor, like D, commits an
affirmative act that creates an undue risk of harm, he owes a duty of care to those
who stand a risk of being harmed because of them.
Globe Malleable Iron & Steel Co. v. New York Cent & HRR Co. (L): P’s factory
was on fire, and while firemen tried to reach it, D’s freight train blocked the RR
crossings as it moved forward, rather than stopping. L for D, because while trains
usually have right of way, that is suspended in the event of emergency. It is
negligent to exercise right of way when it increase public hazard.
Soldano v. O’Daniels (L): D owned saloon and in across from one another. A
patron left saloon for inn and told bartender someone had been threatened, asking
him to call the cops or let him with their phone. Bartender denied both requests,
and the man who was threatened was shot and killed. His son, P, sued the owner.
L for D, because use of a telephone in a public portion of a business should not be
refused for legitimate emergency call. Public policy = encouraging people to
report crimes; defense of life and limb.
Stangle v. Fireman’s Fund Insurance Co. (NL): Ps ring was stolen in D’s office
building and P asked to use receptionist’s phone to call police. She refused and the
thief got away. NL for D, because phone was private. There is also a distinction
between preservation of life and preservation of property.
Ocotillo West Joint Venture v. Superior Court (NL): Z and E were drinking at P’s
golf course. As they were leaving, P’s employee noticed Z was drunk and took his
keys so he wouldn’t drive drunk. E said he would drive Z, but gave Z his keys
back. Z then got into a fatal car accident. Z’s family sued P, who impleaded E. NL
for P, L for E, because when someone takes charge of someone who is
helpless/can’t take care of themselves and leaves them worse off, they are liable
for that harm.
Cuppy v. Bunch (NL): W and his friend D had been drinking while fishing. On the
way back to town, D slept while his friend W drove. W woke D with difficulty. W
asked D if he was okay, D said no, but didn’t want to leave his car. D followed W,
but D hit P’s car. P sued both. NL for friend W, because there is no duty to control
the conduct of a third person as to prevent him from causing physical harm to
another unless there is a special relation. W could not control D.
G. DUTIES ARISING FROM OCCCUPATION OF LAND
a. Duties to Trespassers:
i. A possessor of land is not liable to trespassers for physical harm caused by his
failure to exercise reasonable care to put the land in a condition reasonably safe for
them/carry on his activities so as not to endanger them.
ii. If a possessor of land knows or should know that trespassers constantly intrude
upon a limited area of his land he is subject to liability for their death or bodily
harm if he does not act with reasonable care for their safety (“beaten path” rule).
iii. A possessor of land who maintains a dangerous artificial condition and does not
warn trespassers of it is subject to liability if the possessor knows or has reason to
know of their presence/proximity to the danger and the condition is such that he
has reason to believe the trespasser won’t discover it or appreciate the danger.
iv. With regard to trespassing children: a possessor of land is subject to liability for
physical harm to trespassing children caused by an artificial condition upon the
land when
1. The place where the condition exists is one upon which the possessor
knows or should know children are likely to trespass
2. The condition is one the possessor knows or should know will involve an
unreasonable risk of death or serious injury to children
3. And the children, because of their youth, do not discover the condition or
realize the risk involved with the dangerous condition.
4. The burden of eliminating the danger is not as important as the life and
limb of the trespassing child
5. The possessor fails to exercise reasonable care to eliminate the danger or
otherwise protect the child
v. Cases:
1. Haskins v. Grybko (NL): D was out one night hunting woodchucks. He
heard rustling nearby and shot at it. Turns out he shot his P’s intestate. NL
for D, because P’s intestate, and D owed him no duty of care.
2. Herrick v. Wixom (L): P snuck into D’s circus and got struck in the eye
with a firework during the show. L for D, because when a trespasser is
discovered by the owner of land, the owner is liable for injury because
when audience was made up and P’s presence was known.
3. Cleveland Electric Illuminating Co. v. Van Benshoten (NL): D’s workers
built an outhouse over sewer. P used Ds’ outhouse without consent. P tried
to light cigarette and ignited gas from sewer. NL for D, because Ds were
unaware of P, Ds didn’t do anything to hurt P, and Ds didn’t owe P a duty
of care.
4. Ehret v. Village of Scarsdale (L): P’s intestate trespassed in D’s vacant
property. D had built a water pipe that encased a gas pipe under the public
street and houses. The pipe sprung a leak and suffocated P. L for D,
because they created a “pool of danger,” as they had constructed an object
in a public area in a manner which created danger to person or property
nearby; anyone (i.e. the public) can recover because it was built
under/around public land.
5. Keffe v. Milwaukee (L): 7-year-old P got his leg stuck in D’s railroad
turntable and had to have it amputated. Turntable was unfenced and rotated
easily. L for D, because knew that kids trespassed there frequently and
didn’t do anything to protect them.
6. Ryan v. Towar (NL): Kids broke into D’s pump house by breaking a hole
in the wall to play with the water wheel. One kid got stuck between the
wheel and the put and was injured. NL for D, because the children created
the dangerous condition by busting in, which was unforeseeable to D.
Judge also said kids suck, basically. (Fact)
b. Duties to Licensees
i. A licensee is a person who is privileged to enter or remain on land only by virtue
of the possessor’s consent (i.e. social guests).
ii. A possessor of land is subject to liability for physical harm caused to licensees by
a condition on the land if, but only if:
1. The possessor knows or should know of a dangerous condition that
unreasonably poses a risk to the licensees and that they will not
discover/realize the danger (“actual knowledge” standard)
2. He fails to exercise reasonable care to make the condition safe or warn the
licensees of it
3. The licensees do not know or have reason to know of the dangerous
condition and the risk involved
iii. Cases:
1. Davies v. McDowell National Bank (NL): P went to D’s intestate’s home
and found him unconscious. They called a doctor who revived him, and Ps
stayed with him. A cop came by later and found D’s intestate and one of the
Ps dead, the other P unconscious. D’s intestate’s damper was rusted shut so
the CO fumes couldn’t escape. NL for D, because D did not have actual
knowledge that the damper was rusted shut and Ps were licensees.
2. Lordi v. Spiotta (L): D invited P to his summer house. P went downstairs to
light natural gas heater to take a bath. Later, D went to turn it off, thought
he had, but he hadn’t. Gas accumulated, and D asked P to light the heater
again. When P struck the match, there was an explosion that killed his son.
L for D. Even though they were licensees, D negligently created the
dangerous condition which created the harm and reasonably should have
reasonably known something like this would occur and warned P.
c. Duties to Invitees
i. An invitee is either a public invitee or a business visitor.
ii. A public invitee is a person who is invited to enter or remain on land the purpose
for which the land is open to the public (library, park).
iii. A business visitor is someone who is invited to enter or remain on land for the
purpose of directly or indirectly conducting business with the owner of the land.
1. If the invitee goes outside the area of his invitation, he becomes a trespasser
or a licensee.
iv. A possessor of land may be subject to liability for injury caused to his invitees by
a condition on the land if, but only if:
1. He knows or by exercising reasonable care should discover the condition
and realize it poses a threat to invitees
2. He should expect they won’t discover/realize the danger on their own,
and…
3. The possessor fails to exercise reasonable care to protect them from the
danger
v. Cases:
1. City of Boca Raton v. Mattef (NL): D was to hire P’s decedent to paint the
town’s name on a water tower. The contract was never drawn up, but P
went to work anyway and ended up falling of the water tower ladder to his
death. NL for D, because there was no employment contract, to P’s
decedent was basically a volunteer, which is basically meant he was a
licensee such that D could not be held liable because D did not willfully or
wantonly harm P.
2. Jacobsma v. Goldberg’s Fashion Forum (L): P was in D’s store with his
wife when manager yelled “Stop, thief!” and pointed to a man near P. Thief
tried to flee, but P grabbed him and fell, dislocating his shoulder in the
struggle but forced thief to drop stolen property. L for D, because P was
invitee when he entered the store, and when manager called out, he was
inviting someone to help, which P did. Also, D had reason to know of
danger as thief had tried to shoplift three days earlier.
3. Rowland v. Christian: California case that abolished the distinction between
trespassers, licensees and invitees in favor of a uniform standard of care, as
reasonable people do not ordinarily vary their conduct depending on those
classifications. This only applies in California and JDs that have adopted
that standard, which does not include Georgia.
4. Carter v. Kinney (NL): P was a member of a Bible study that met at D’s
home. While walking into the house, he slipped on a patch of ice in D’s
driveway and broke his leg. NL for D, because P was not an invitee as his
presence afforded D not material benefit. MO court disagreed with CA and
chose to maintain the distinctions.
H. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
a. D is liable for ED if:
i. D places another in immediate danger of bodily harm and the ED results from that
danger
ii. Occurs in the course of specific activities, undertakings, or relationships in which
neg. conduct is especially likely to cause serious (key word) ED.
b. Distinctions between NIED and IIED
i. NIED is an unsettled matter of law while IIED is.
ii. NIED creates difficult cases where D’s negligence causes distress for P without
any physical harm, save for physical ailments caused by the distress itself
iii. Three common fact patterns that tend to be most common and important:
1. Near miss cases: where D acts negligently toward P, narrowly avoids
causing physical harm, yet put P in great fear. Or when D commits some
negligent act by telling P a terrible but mistaken piece of news.
2. Bystander cases: not the direct victim, but a horrified witness of harm
negligently inflicted upon another
a. Bystanders can recover depending on:
i. How close the bystander was to the accident
ii. Whether the bystander actually saw it occur
iii. How closely related the bystander is to the victim
b. An actor who negligently causes serious bodily injury to a third
person is subject to liability for serious ED thereby caused to a
person who:
i. Perceived the event contemporaneously, and
ii. The third party was a close family member of the person
suffering the bodily injury
3. Fear of disease cases: where D negligently gives P fear of contracting a
disease
a. Percent chance of getting disease to recover is generally 51%
iv. There are varying tests applied by different JDs for NIED:
1. “Immediate zone of physical risk” test (Robb)
2. “Impact” test, requiring actual physical contact
3. Some JDs require neither, just that the ED was a foreseeable result of D’s
conduct and that P satisfy the jury that ED was serious
4. Some JDs only allow recovery where negligent act breaches a pre-existing
duty owed by D to P.
c. Cases:
i. Robb v. PA Railroad Co (L): P’s car got stuck in a rut D railroad allowed to form
in front of a RR crossing. P tried for several minutes to get her car out, but D’s
train was bearing down on her. She jumped out of her car with seconds to spare.
The train hit and demolished her car. P sued for NIED because of fright that
caused her problems nursing her child and at her job. L for D, because while P was
not physically impacted, her injuries were proximal result of being in the
“immediate zone of physical danger” caused by D’s negligence. Court chose not
to apply “impact” rule, which requires the physical contact.
ii. Lawson v. Management Activities, Inc. (NL): D’s jet crashed near P’s Honda
dealership. Employees saw the plane go into a dive and feared it would crash into
them. They sued for NIED. NL for D, because no injuries or genuine ED
sustained; they were just scared, and there’s a big difference between ED and just
being scared.
iii. Quill v. Trans World Airlines (L): P was passenger on D airline. During flight,
plane went into uncontrolled tailspin and pilots recovered control five seconds
before it would have crashed. No injuries, but P thought he was going to die. P’s
job was impacted by the experience, as his business required him to take about 60
flights a year. Afterwards, P was physically impacted every time he flew. L for D.
iv. Johnson v. Jamaica Hospital (NL): Ps were parents of girl born and later abducted
from D hospital. The child was not found until 4 months later. Ps sued D for ED
suffered in interim, alleging it was because of D’s neg. NL for D, as majority held
hospital did not have duty to parents because they were only temporary caretakers.
Dissent disagreed, saying it was ridiculous to not find D negligent for not
protecting the parents’ right of custody.
v. Perry-Rogers v. Obasaju (L): P underwent in vitro fertilization at D’s clinic and D
mistakenly implanted P’s embryo into another woman. Once the child was born,
that woman refused to relinquish the baby and it took Ps 4 months to force her to.
Ps sued clinic for NIED. L for D, because D breached duty to P and P produced
sufficient evidence to guarantee the genuineness of their claim. Court also held it
was foreseeable that such negligence would cause severe ED for Ps.
vi. Potter v. Firestone Tire and Rubber Co. (NL): Ps lived next to landfill into which
D dumped toxic industrial waste, despite being told not to. The carcinogenic
chemicals seeped into plaintiff’s wells and contaminated their water. P sued D for
NIED for instilling fear they might develop cancer. NL for D, because their risk of
getting cancer was only 30% (ONLY!?), and that people are exposed to
carcinogens every day. Public policy = allowing claims like that to succeed would
create costs from litigation from an unrestricted class, which would be passed on
to the consumer.
vii. Marzolf v. Stone: You didn’t finish the reading for this week…
I. STRICT LIABILITY
a. There is a big difference between liability for negligence and strict liability:
i. With negligence, you are somehow blameworthy and it involves reasonable care
ii. With strict liability, you can be liable without fault because you owe a duty of
absolute care rather than reasonable care
b. Owners of ferocious beasts are strictly liable for damage their animals cause to others.
They are liable regardless of what measures they took to prevent the harm from
occurring.
c. The common law draws a distinction between animals presumed tame (domitae naturae =
species domesticated by man; mensuetae naturae = species tame by nature) and ferae
naturae, wild animals.
i. If the animal is wild, the owner generally will be held strictly liable for the damage
the animal causes.
ii. When the animal is of a domesticated type, it is presumed tame and the owner is
held strictly liable if he is aware that the particular animal in question already had
shown a propensity to cause the sort of harm inflicted on P.
d. Cases: Liability for animals
i. Behrens v Bertram Mills Circus (L): Ps were midgets in D’s circus. While at their
booth, their manager’s dog started barking at elephants being lead into the tent by
their trainers. This frightened the elephants and they chased after the dog,
trampling the booth and injuring Ps. L for D, because elephants are considered
ferae naturae, so keepers are under absolute duty to confine/control them and are
liable for injuries sustained if that control is lost; there is a difference between loss
of control and accidental acts, like if the elephant lost its balance (NL).
ii. Earl v. Van Alstine (NL): D kept beehives in his yard which was bordered by a
public highway. P was driving his horses by it and the bees attacked the horses,
killing one and injuring the other. P sued under strict liability. NL for D, because
bees were considered domesticated, and that had been the first attack by the bees,
so keeper had no reason to know they would.
iii. Candler v. Smith (L): Upon leaving her house, P found baboon in her car that
escaped from D’s zoo. She turned to go back into her house and the baboon
charged at her and she narrowly escaped. The baboon returned to her car,
destroying her purse and its contents, which included money and other valuables.
L for D, because a baboon is a wild animal, so the zoo is responsible for any
damage it caused.
iv. Smith v. Pelah: Case in which court ruled an owner of a domesticated animal, like
a dog, is not responsible for the injury it creates unless he has reason to know the
animal has performed an injurious act in the past. An animal has one free bite
before the owner is put on notice (“one bite” rule). However, many states don’t
follow this rule and many more state legislatures have animal control laws that
create liability regardless.
v. Banks v. Maxwell (L): P was gored by D’s bull, but bull had never gored anyone
before. NL for D, because bull’s are considered domesticated and D had no reason
to know it would do that (I think that’s stupid, but whatever…)
vi. Bostock-Farari Amusements v. Brocksmith (NL): P was driving his buggy down
the road when he came across a bear being lead by his keeper. The bear was
chained and just walking next to the keeper. P’s horse was frightened and P
crashed. NL for D, because the bear was just chillin and was under its keeper’s
complete control. While the injury may have been caused by the bear, it was not
caused by its vicious propensity.
vii. Baker v. Snell (L): Not much here just that if an owner knows its dog is vicious,
despite a third party losing control, the owner is still liable.
viii. Opelt v. Al G. Barnes Co. (NL): P was a boy at D’s zoo looking at caged animals.
There were guard ropes between the boy and the cages, but he climbed beyond
them and got scratched by D’s jaguar. NL for D, because P was injured solely
because he put himself in harm’s way. D had the animal under control.
e. Cases: the Rylands cases (first 5 are English cases)
i. Rylands v. Fletcher (SL): D hired contractors to build a reservoir on their land.
During their work, they discovered old mining tunnels that belonged to P. They
filled the reservoir anyway and flooded P’s tunnels. P sued D, because contractors
had gone out of business. SL for D, because if D brings something on his land that
is likely to do mischief if it escapes, he must keep it in at his peril, because if it
escapes and does damage, he is strictly liable for the consequences of its escape.
ii. Crowhurst v. The Burial Ground of the Parish of Amersham (L): D planted a yew
tree next to railing dividing the cemetery from P’s field. The tree grew over the
railing; P’s horse ate the leaves and died. SL for D, because he brought something
on his land that could do mischief, a poisonous tree, and it did do mischief, so the
rule from Rylands applies.
iii. Rickards v. Lothian (NSL): P was tenant in D’s commercial building. A trespasser
came in, clogged all the drains and left the water running, the water from which
damaged P’s stock, so he sued D. NSL for D, because it did not come into Rylands
rule. There must be some special use bringing with it increased danger to others
and not be an ordinary use of the land or such use as is proper for the general
benefit of the community. It would be unreasonable for the law to regard those
who install and maintain running water to do so at their own peril.
iv. Musgrove v. Pandelis (SL): P was tenant above garage where D stored his car he
used as a chauffeur. D really only knew how to drive. He turned the car on to work
on it and it exploded causing a fire that caught P’s apartment on fire. SL for D,
because bringing a combustible thing onto the property fit into the rule from
Rylands.
v. Balfour v. Barty-King (SL): P and D lived in same building. D hired a contractor
to unfreeze pipe. Contractor did so with a blowtorch near flammable insulation
and caught the house on fire. SL for D, because using the blowtorch was a
dangerous practice which another prudent worker would not have done.
vi. Losee v. Buchanan (NSL): A boiler in D’s factory exploded and pieces from it
flew and damaged P’s property. NSL for D, because, according to the American
court, no one can be made liable for injuries to the person or property of another
without some fault or negligence on his part, not necessarily strict liability.
vii. Turner v. Big Lake Oil Co. (NSL): Salt water overflowed from an artificial pond
Ds used in operating oil wells, causing damage to P’s pasture. NSL for D, because
of differing circumstances between England and Texas regarding Rylands.
England is covered in water; Texas is not, therefore water storage is necessary for
just about everything. Also, D had been granted use of land for mining oil, and salt
water is a part of that, so storing it was incident and necessary to the right to
produce oil.
viii. Lubin v. Iowa City (SL): D would leave its water pipes in the ground and only fix
them when they burst, even as each pipe reached the end of its estimated life. SL
for D, because Iowa had adopted Rylands, and D made the water mains, ordinarily
not dangerous, dangerous because D let them become inherently dangerous by
leaving them to rupture, which damaged P’s property.
J. ABNORMALLY DANGEROUS ACTIVITIES
a. This is the most important branch of strict liability.
b. May be understood as descending from Rylands particularly if the case emphasizes the
“non-natural” mismatch between the risks created by D’s activity and the place where the
activity is being carried out.
c. One who carries on abnormally dangerous activity is liable for harm resulting there from
even if he has exercised care to prevent the harm.
i. This strict liability is limited to the kind of harm whose possibility makes the
activity abnormally dangerous.
d. Factors that determine if an activity is abnormally dangerous:
i. Existence of a high degree of risk of some harm to others
ii. Likelihood that the resulting harm would be great
iii. Inability to eliminate risk by the exercise of reasonable care
iv. Extent to which the activity is not common
v. Inappropriateness of the activity to the place where it is carried out
vi. Extent to which its value to the community is outweighed by its dangerous
attributes
e. Cases:
i. Indian Harbor Belt Ry. Co. v. American Cyanamid Co. (NSL): D loaded 20K
gallons of chemical onto a railcar leased from North American Car Co. After it
arrived in Chicago, the car sprung a leak in the rail yard and the houses around it
had to be evacuated because the chemical was flammable, toxic and potentially
carcinogenic. The line had to take decontamination measures that cost them almost
$1 million. P asserted SL because transportation of so much of the chemical
through the city was an abnormally dangerous activity. NSL for D, because it
wasn’t a good case for SL, but for classic negligence because ultra-hazardousness
or abnormal dangerousness, at law, is a property of activities, not of substances.
The relevant activity is the transportation and not the chemical itself. Leak could
have been mitigated by due care, so negligence is a better regime.
ii. Siegler v. Kuhlman (SL): D’s driver was hauling gas on highway. He performed
all safety checks, but his tanker came loose and the leak was ignited by P and it
killed her. SL for D, because regardless of taking due care, D could not eliminate
risk of great injury because of gasoline being dangerous in all quantities, large or
small.
iii. Klein v. Pyrodyne Corp. (SL): D’s fireworks exploded in such a way that Ps were
injured. SL for D because exploding fireworks is an abnormally dangerous activity
and there’s no way to completely eliminate possibility of injuring someone when
igniting rockets around large crowds.
iv. Miller v. Civil Constructors, Inc. (NSL): P was struck by bullet that ricocheted
from the defendant’s firing range and sued under SL claiming firing guns was an
ultra-hazardous activity. NSL for D, because for an activity to be ultra-hazardous
such that D is SL for resulting damage, the risk of harm CANNOT be eliminated
by use of reasonable care. The thing itself must be inherently dangerous, and an
activity that is uncommon and of little use. Risk of injury from guns can be
virtually eliminated through use of reasonable care, harm from their misuse is not
inherent in their nature, shooting guns is of common usage, and target practice is
of some social good, because it allows people to reduce risk of injury.
v. Madsen v. East Jordan Irrigation Co. (NSL): P owned a mink farm, and while D
was using explosives to make repairs to his canal, P’s mink mothers got excited
and killed 230 of their young. NSL for D, because it was not the explosion that
caused the deaths of the mink babies, but the mothers. There was a break in the
proximal chain.