The Law School Authority

Torts Case Briefs

A. Intent

GARRATT V. DAILEY (1955) Aug 18

Case Brief:

Cause of action: Liability of an infant (aged 5 years, 9 months) for battery.  Battery is the intentional infliction of a harmful bodily contact upon another.


Parties: Brian Dailey (the kid) and Ruth Garratt (related to sister Naomi whose house Brian was visiting)


Facts:  July 16, 1951…Brian Dailey (5 years, 9 months old) was visiting with Naomi.  Ruth was another guest.  Ruth (plaintiff) said she came out to the yard to talk with Naomi, and when she went to sit down, Brian pulled the chair from underneath her, causing her to fall, and sustain a fracture of her hip, and other injuries and damages. Naomi Garratt was the only one present who testified.  Ruth alleges Brian intentionally pulled the chair from underneath her.


Brian alleges he was moving the chair in order to first sit himself, but when he realized Ruth in fact wanted to sit there, he tried to aid Ruth in sitting down.  He claims his small size and lack of dexterity combined to make his reaction to the events too slow to move the chair in time for Ruth to sit.


Issue: Did Brian, age five, commit some wrongful act (battery) which made him responsible for plaintiff’s injuries? Is it possible a five year old would know what he was doing?


Holding: Find for the defendant until at such time more certainty can be determined whether Brian knew what he was doing when he pulled the chair from under Ruth.


Procedural History: Trial court initially ruled Brian did not intentionally try to harm Ruth when he pulled the chair out, and the case was dismissed.  Upon appeal, the Supreme Court of Washington remanded for clarification.  On remand, trial judge concluded it was necessary for him to more carefully consider the time sequence involved when Ruth sat in the chair.  It was later determined young Brian knew exactly what he was doing based on Ruth’s arthritic condition and her very slow ability to complete the process of sitting in a chair.  In this event, Ruth was awarded $11K, which was affirmed upon appeal.


Rule: Intent is the key to violation of a tort (like battery).  Age is not an issue, but knowledge of the overall circumstances involved in the situation is (character of actor’s intention).


Court’s Rationale: With no case of consent or privilege, the court looked to consider intent and its place in the law of battery.  Did Brian know what he was doing when he pulled the chair from underneath Ruth?


The court said “an act must be done for the purpose or with the intent of causing the plaintiff (Ruth) bodily contact with the ground”; only then would she have a rightful claim for damages.


The trial court said initially Brian proved he did not pull the chair out when Ruth was in the act of sitting in it.  It would have to be proven Brian knew with “substantial certainty” that the contact would result in injury.


But the Supreme Court of Washington decided there needed to be more clarification as to whether Brian’s knowledge was substantive enough to determine whether he knew he would indeed cause harm to Ruth.  Only then could the court rule for either damages or for a new trial.


(trial judge’s decision cleared much of these questions up and are located in the procedural history)


What is the cause of action?

Who are the parties?

What are the procedural facts?

What are the substantive facts?

Issues before the court (question the court had to answer)?

How does court resolve issue? (judgment/ruling)

Reasoning? How does it apply to the facts of the case?

Significance of this case?




Case Brief:

Cause of action: Action brought by appellee (Ranson) against appellants (Kitner) to recover losses from the death of their dog, which was shot during a hunting accident. Action of tort for battery.


Parties:  Ranson, the owner of the dog which died, and Kitner, a member of the party who shot the dog.


Facts: During a hunting trip, appellants (kitner) mistook Ranson’s dog for a wolf, as they claimed it beared a striking resemblance, and shot it.  The dog died as a result of the gunshot(s).


Issue:  How liable is a party for an action which causes harm to another party when there is no intention of causing harm to that particular party in question?


Holding:  In this case, the harm to the dog could have been avoided, despite appellants’ contention they had no idea it was indeed a dog.  They were held responsible and were instructed to pay $50 in damages to the appellee (Ranson).


Procedural History:  This case started out in trial court, where a decision was rendered in favor of the defendants, and the appeal went to Appellant Court of Illinois, where the decision here was upheld, but damages were awarded nonetheless.


Rule: Sometimes when there is no intention of injury to another party, the party still may be held responsible for damages if the injury to the other party was avoidable.


Court’s Rationale: The Appellate Court agreed with the trial court in its decision not to completely absolve Kitner for the death of Ranson’s dog, “notwithstanding they were acting in good faith.”


There was no evidence in the trial court to think a decision was wrongly made by the jury when it held Kitner responsible for the death of Ranson’s dog by mistake.






Case Brief:

Cause of action: Action of tort for assault and battery.


Parties:  McGuire was the person assigned to take care of the defendant Almy, who was insane (no extent of Almy’s insanity is mentioned in this case).


Facts: August, 1930…McGuire was employed by defendant to take care of her.  McGuire was on 24-hour duty.  On April 19, 1932, McGuire was staying in the next room over from Almy with a Miss Maroney, who was the maid.  In the next room was Almy had a very violent attack, one which resulted in her uttering to McGuire and Maroney if they came into her room she would kill them.  Both went in to see what Almy had done, and “thought it was best to take away the broken stuff away before she could do any harm to herself with it.”


McGuire and Maroney sent for a Mr. Emerton, who was Almy’s brother-in-law.  When he opened the door, Almy was there in the middle of the room with a low boy leg raised as if she were going to strike someone with it.  McGuire walked toward the center of the room with Emerton and Maroney watching from the doorway.  When McGuire went to take hold of Almy’s arm, she swung and hit McGuire on the head with the leg, causing injury.


Issue: Should the trial court judge have directed a verdict for the defendant? What extent is an insane person liable for torts?


Holding:  The plaintiff did not assume risk of being clubbed in the head by the defendant when she signed on to take care of Almy.  Despite the fact the defendant never had been known to attack another person before, the plaintiff here had reason to believe she could do harm to herself were she let to carry on the way she was in the room next door, which was part of her job (care giving).


Procedural History: Trial court held in favor of the defendant, as McGuire assumed the risk of injury upon entering the room after a threat.  Supreme Judicial Court of Massachusetts found in favor of the plaintiff.


Rule: When imposing liability for an insane person’s actions, the actual liability may fall onto the shoulders of those who are responsible for them and their safety and well-being.  Fault is not seen as a universal prerequisite in some cases for liability.


Court’s Rationale: Other courts have ruled generally insane people are liable for their torts.  As a general rule as well, there is no categorical distinction between intentional and negligent torts.  Similarly, there are no varying degrees of liability in ratio or proportion to the level of insanity of the defendant (as this might affect their ability to understand what they were doing or their intent).


As a general rule via other courts, it is recognized insane people are not liable for torts which require malice, which the insane are incapable.  In essence, civil liability in deliberating these cases, according to the Supreme Judicial Court of Massachusetts, may take a back seat to “essential justice”.  In cases involving the insane, malicious prosecution and defamation are torts more generally


Courts generally are timid at this time to figure out a person’s mental capacity or deficiencies, unlike the criminal field.


Torts should rest upon fault; intent here is not the issue, nor can it be in this situation.  The actions of the insane can mirror in some ways those actions of children, who might not have the intent necessary to be held liable for injury (Garratt).


Despite the fact there was ample warning of possible harm to the plaintiff, it was determined plaintiff never had any intention of dealing with violent physical attacks from her patient while on 24-hour duty.  Assuming risk in this case should not be considered as a matter of law in this instance.


(incidentally, the fact plaintiff cared for defendant for 14 months prior to the events of April 19, 1932 without an attack made her even less aware of the possibility of being hurt on the job)





1. Battery


Case Brief:

Style (name of case):  Cole v. Turner (1704)


Cause of action:  Trespass for assault and battery.  Battery in this case as one touching another in anger.  If 2 people meet in a narrow passage, and the two touch with no violence, there is no battery.  However, if they touch with violence involved, there is battery.  Any struggle resulting in someone getting hurt is also a battery.


Parties:  n/a


Substantive Facts (how’d they get to court):  n/a


Procedural Facts (what happened in court): n/a


Issue(s): n/a


Judge’s ruling: n/a


Court’s Rationale/Reasoning: n/a


Significance:  n/a






—An actor is subject to liability to another for battery if:

a) they act intending to cause a harmful or offensive contact with the person of the other or third person, or an imminent     apprehension of such a contact, and


b) a harmful contact with the person of the other directly or indirectly results



—An actor is subject to liability to another for battery if:

a) they act intending to cause a harmful or offensive contact with the person of the other or a third person, or an      imminent apprehension of such a contact


b) an offensive contact with the person of the other directly or indirectly results


— an act which is not done with the intention stated in (a) doesn’t 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.”







A. Assault


Case Brief:

Style (name of case):  Western Union Telegraph Co. v. Hill (1933)


Cause of action:  This case is based on a cause of action for damages for assault.


Parties:  Sapp is the party who was accused (Western Union) of the assault, and agent for the defendant.  Plaintiff’s wife was an employee of Hill.


Substantive Facts (how’d they get to court):  Sapp was to fix a clock in plaintiff’s office.  Plaintiff went into defendant’s office and asked to estimate when repair would start.  Defendant, still admittedly feeling the effects of 3 whisky drinks, reached for plaintiff, and said, “If you will come back here and let me love you and pet you, I will fix your clock.”  At the time defendant said statement, he reached for plaintiff’s left shoulder and arm area.  Plaintiff jumped back.


Desk where defendant tried to touch plaintiff  measured four feet and two inches high, reaching to about defendant’s armpits.


Procedural Facts (what happened in court):  Original judgment in favor of the plaintiff.  Defendant appeals.


Issue(s): Was there such an assault as will justify action for damages?


Judge’s ruling:  Trial court originally ruled in favor of plaintiff.  Judgment reversed on the basis Sapp didn’t act within the scope of his employment (but didn’t holdWestern Union responsible?).


Court’s Rationale/Reasoning: Every battery includes an assault, but not every assault includes battery.  For an actionable cause of assault, “…there must be an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented.”


It was ruled that despite the inability of Sapp to actually physically touch plaintiff, there would be a way for at least an attempt of a touch on the part of the defendant.


Significance: One may not have to touch someone to actually assault.










Case Brief:

Style (name of case):  Fisher v. Carrousel Motor Hotel (1967)


Cause of action: This is a cause of action for assault and battery.


Parties:  Fisher, the plaintiff, was employed by NASA, was attempting to eat at defendant’s hotel during professional conference


Substantive Facts (how’d they get to court): While in line for aforementioned luncheon, a hotel employee for defendant approached plaintiff, took his plate and informed (shouted at) him “negroes” could not eat there.  There was no touching involved, just words directed at plaintiff.  Plaintiff claims he was verbally assaulted by the words, causing embarrassment and humiliation in front of his colleagues.


Procedural Facts (what happened in court): Jury found in favor of the plaintiff for $400 damages actual, and $500 punitive.

Trial court set aside verdict and ruled for defendants.  Affirmed by Civil Court of Appeals, and appealed to Supreme Court of Texas.


Issue(s): Was there an assault under the rule of torts upon a statement from one person to a second person, resulting in emotional damages to the second person?  Was there also a battery upon the taking of plaintiff’s plate?


Judge’s ruling:  No question battery took place upon the taking of plaintiff’s plate.  Judgment reversed, and damages awarded to plaintiff, as well as costs for the lawsuit.


Court’s Rationale/Reasoning: The intentional snatching of an object from another person’s hands, the court ruled, “clearly” violated the second party’s private space.  Court found this to be equivalent to actual bodily contact with another.


In essence, the plate was a part of plaintiff’s body, and taking the plate was therefore assaulting part of his body.


Personal indignity, as the court calls it, is the benchmark for a battery, in regards to damages.  In this case, the actions were offensive and insulting.


Significance: It is not necessary to touch someone to commit the tort of battery.  As long as the act in question is done with the offensive or harmful intentions, there is a battery.  One need not also show physical damages to collect damages in such a case.  Also, an extension of the person’s private, personal space may be associated with personal property or property being used at the time a reasonable person would assume was theirs (a plate at a restaurant while they are eating, for instance)









I de S et ux v. W de S (1348)

Case Brief:

Style (name of case): I de S et ux v. W de S (1348)


Cause of action:  This is a cause of action for trespass and battery.


Parties:  I de S and his wife M, plaintiffs, contend W de S, defendant, assaulted her after trespassing.


Substantive Facts (how’d they get to court): Defendant entered plaintiff’s home (they said the door was shut) with a hatchet, in order to get wine.  Wife of plaintiff poked her head out of the door and told defendant to stop.  Plaintiff was not struck by hatchet and no injuries were sustained.


Procedural Facts (what happened in court):  Trial court (?) ruled in favor defendant, since there was no harm done, they believed there was no trespass.  Appealed to Court at the Asssizes and decision was reversed.


Issue(s):  Can an assault take place without actual physical harm to the second party?


Judge’s ruling:  Court at the Asssizes judge ruled there was an assault, because the wife of plaintiff was in harm’s way when defendant struck his hatchet to door.  Door of home was also harmed, but that is inconsequential except for damages.


Court’s Rationale/Reasoning:  If a person is in harm’s way for something potentially dangerous, like a man with a hatchet swinging to get into that person’s home, there is an assault.  Assault on a person’s home may be considered an extension of the person, especially since the part of the home in question contained the neck of the plaintiff’s wife, since he stuck her head outside to tell defendant to desist.  Plaintiff also could be considered assaulted verbally and emotionally through the frighteningly violent act of the defendant.


Significance: Again, one may recover damages from a non-physical assault.  Assault, irregardless of physical harm, is a n action upon another with an offensive or violent intent (ex: entering another’s home with a hatchet)









B. False Imprisonment


Case Brief:

Style (name of case): Big Town Nursing Home, Inc. v. Newman


Cause of action:  This is an appeal by previous defendant (Nursing Home)  from a judgment for plaintiff for actual and exemplary damages in a false improsonment case.


Parties:  Appellant Big Town Nursing Home contends they should not have to pay such excessive damages to appellee Newman for false imprisonment


Substantive Facts (how’d they get to court): Appellee (Newman) brought to Appellant’s (Nursing Home) against his own will.  Appellee 67, army vet with history of alcohol abuse, but no mental history.  Nephew took appellant to appellee’s place, and, upon signing papers, was admitted; papers provided appellee would not be placed in home against his own will.


Nevertheless, appellee tried to escape several times (5-6), each time brought back against his own will.  After first escape, appellee placed in “wing 3”, consisting of mental patients, drug dealers, and other uncontrollable people, according to appellee.  Appelle was locked in a room upon first escape, and place in restraint chair.  Appellee also claims he didn’t see house doctor for the first 10 days inside, and for another one week stretch after being placed in wing 3.


Appellee eventually escaped, caught a cab and got to a friend’s house.  He’d lost 30 pounds by the time he got to friend’s home.


Procedural Facts (what happened in court): Trial court found for the then plaintiff Newman of being falsely imprisoned and in addition awarded damages for actual and exemplary damages.


Issue(s): Was there a tort violation of false imprisonment, and if so, how are damages assessed?


Judge’s ruling:   Upon appeal, judgment affirmed in favor of appellee. Upon appeal though, the court offered appellant a remittitur, or a settlement, which they accepted.


Court’s Rationale/Reasoning: If a person is placed in a place against their own will (his escape demonstrated his not wanting to be there), there is a false imprisonment. Appellee signed papers saying he would not be kept against his own will in addition, which the appellant did not honor.


Appellee placed in a ward with people not resembling his mental or physical state at all, further exacerbating the essence of an imprisonment.  Such conditions caused a deterioration in physical state of being, as he lost 30 pounds.  Appellee also not taken care of properly, as he was not seen by house doctor for two long stretches at a time.


Significance: One does not necessarily have to be in a jail/prison to be imprisoned.  The will of the person is the key, and the circumstances surrounding the amount of control over the person’s will are factors as well.










Case Brief:

Style (name of case):  Parvi v. City of Kingston


Cause of action:  This is cause for false impisonment.


Parties:  Plaintiff Parvi struck by car, defendants City of Kingston escorted (some argument there) out of city limits where plaintiff was hit by car.


Substantive Facts (how’d they get to court): Police found 2 brothers arguing noisily in an alley.  Plaintiff was there as well.  All 3, according to police, showed “effects of alcohol”.  Plaintiff told police he had no place to go, so cops escorted him to outside city limits to abandoned golf course to “dry out”.  Plaintiff, upon waking up, wandered 350 feet or so onto a highway and was struck by a car, and severely injured.  Plaintiff claims he has no recollection of the night’s events.


Procedural Facts (what happened in court): Trial court dismissed the case; Appellate Division affirmed.  Reversed  in NY Court of Appeals


Issue(s): Was there a false imprisonment, and how does the consciousness of confinement play a factor when evaluating this tort?


Judge’s ruling:   Reversed in Court of Appeals.


Court’s Rationale/Reasoning: According to the restatement of torts, a person may not be considered falsely imprisoned unless they know of the confinement.  There is evidence to say plaintiff knew what was going on from testimony of police officer who had discussion with plaintiff concerning being dropped off at another point, in addition to speaking with officers in the car.  Parvi (plaintiff) responded to defendant’s request to get into the car as well.  All of these signs point to a knowing nature according to the Court, and thus reversed the decision.


Significance: False imprisonment is not just a dignitary tort where a person must know of the actual dignitary invasion. Damages may be awarded if the person is unaware of the dignitary invasion which led to harm of individual.










Case Brief:

Style (name of case): Hardy v. LaBelle’s Distributing Co. (1983)


Cause of action:  This is a cause of action for false imprisonment, in this case wrongful detainment.


Parties:  Hardy, plaintiff, was detained by store employees and police upon wrongful accusation of stealing a watch at the defendant’s store.


Substantive Facts (how’d they get to court): Hardy was hired as a temp by defendant.  Jackie Renner, an employee of the store, thought she saw hardy steal a watch from the store.  Hardy was approached by assistant store manager, who roused her into an office under false pretense of a store tour, and there were the store’s manager and a uniformed officer.


Hardy denied the accusation, and agreed to take a lie detector test in order to prove it.  Hardy passed test, and received an apology from all employees, but had an argument afterwards and left the store.


Procedural Facts (what happened in court): Lower court’s jury found there wasn’t ample evidence to support plaintiff’s contention of being detained against her own will.


Issue(s): Whether the evidence is sufficient to support lower court’s verdict, and whether district court erred in its instructions to the jury.


Judge’s ruling:   Affirmed.


Court’s Rationale/Reasoning: Two key issues to resolve upon the issue of false imprisonment: (1) the restrint of an individual against their will; and (2) the unlawfulness of such a restraint.


Hardy said two difference things: she felt compelled to stay in the office, but also wanted to stay to clarify the situation.  She didn;t ask to leave, nor was threatened for forced to stay there.  Hardy also said she would’ve followed assistant store manager under the truthful pretense of the crime, rather than the rouse of the tour.


Under both of these circumstances, the jury had no problem seeing plaintiff had the choice to leave and didn’t, thus no false detainment occured.


Significance: False imprisonment or forced detainment may be proven through the circumstances surrounding the situation.  These circumstances may be objective (from the view of an outsider looking at the situation), but also are based subjectively (a review of the person’s state of mind and actual ability to leave) to evaluate if this tort has been violated.










Case Brief:

Style (name of case): Enright v. Groves (1977)


Cause of action:  This case is a cause of action for false imprisonment and damages.


Parties:  Enright is the plaintiff, who was jailed; Groves is the officer who jailed plaintiff.  City of Fort Collins, CO is part of the case.


Procedural Facts (what happened in court): Judgment entered against defendant in trial court, and damages to the amount of $500 actual and $1000 exemplary on claim of false imprisonment.  Judgment affirmed in Colorado Court of Appeals.


Substantive Facts (how’d they get to court):  Officer Groves sees dog running down the street.  Officer sees dog run toward the Enright’s home.  The dog’s running wild violated the city’s “dog leash ordinance”.  Officer sees little boy in front of the house, who turns out to be son of the plaintiff.  Boy ordered to put the dog inside, and officer turned away.  Mother, who was seated in a parked car on the side of the street, approached officer and asked if she could help him.  Officer demanded Enright’s driver’s license.  She responds with her name and address.  Officer demands production of the license or a trip to jail.  She questions the ridiculousness of the situation, to which officer responds by taking plaintiff’s arm and escorting to his car, where she is taken to jail.


In jail, Enright charged with violation of above ordinance and bail was set.  Posted bail through friend and later convicted of ordinance violation.


Issue(s): Was there an intentional application of a harmful or offensive bodily contact which was unnecessarily done?


Judge’s ruling:   Judge affirms lower court decision, saying there was no just cause to compel a driver’s license and subsequent physical arrest.


Court’s Rationale/Reasoning: Despite appellant’s contention there was p/c to arrest Enright, the court disagreed.


Court defines false arrest as: when one person is taken into custody by a person who claims but doesn’t have legal authority.  A valid warrant or probable cause are both good defenses.  But there was neither in this case.  Probable cause is defined as facts and knowledge an officer has acquired which lead them to belive criminal activity has or is about to have taken place.


The facts of the case point out Enright was arrested more for not producing her driver’s license than violation of the dog ordinance.  She was not in the car, which would compel the arresting officer to ask for a driver’s license.


There was a also no attempt by defendant to explain why he was asking for her license, and Enright had already identified herself to Groves.  Therefore, there was no lawful order for a driver’s license and subsequent arrest.


Significance: An officer may not use the pretext of one false arrest to arrest someone on a completely unrelated different offense.










Case Brief:

Style (name of case): Whittaker v. Stanford (1912)


Cause of action:  This is a cause of action for the tort of false imprisonment, and damages resulting.


Parties:  Plaintiff is the wife of minister of religious sect in Israel; defendant is the sect’s leader.


Procedural Facts (what happened in court): Trial court found in favor of the plaintiff, and damages in the amount of $1100.  Jury found there was actual physical restraint involved.  Case appealed.


Substantive Facts (how’d they get to court): Plaintiff and husband were to go on a boat in the harbor.  Plaintiff feared she and her children would be held on the boat until they joined the religious sect which her husband and another passenger belonged.  His other passenger was the leader of this religious sect.  After being persuaded to get on boat, husband and this other passenger would not let her off the boat unless either (a) she joined the sect; or (b) if let off the boat, she would have to be under the accompaniment of the husband at all times.Plaintiff finally got on shore with the help of a writ from an officer and secured her children as well.


Issue(s): When a person has total restricted movement or at least under the cautious eye of another are they in a sense imprisoned?


Judge’s ruling:   Supreme Judicial of Maine affirmed decision.


Court’s Rationale/Reasoning: Again, the court goes to the definition of false imprisonment: when one person is taken into custody by a person who claims but doesn’t have legal authority.  The court also ruled there must be an instance of physical restraint, not just a moral influence (like the fact husband always deferred to the other party, or leader) to stay on the boat.


Court found there was in fact a sense of imprisonment, with the boat her only place to go, and it being essentially locked up while on the water away from land constituted even more of a physical presence (“barrier of the sea”).


Secondarily, the defense of the husband claiming he did nothing of the sort relating to imprisonment, as it was the leader of the sect’s doing.  The husband had a choice not to listen and follow his wife’s request to get off the boat.  His refusal constitutes an imprisonment which is under false pretenses (the original promise was to take her back ashore when she asked to be taken shore).


The boat is compared to the “key” in this case.  Only the husband and third party had control to allow the plaintiff off the ship.  When this request was denied, so began the false imprisonment.


Significance: Reduction of physical movement (staying at sea) or at least a duty under the circumstance (here to return to harbor) should be a factor in deciding whether a person was imprisoned against their own will.









1) Intentional Infliction of Mental Distress


Case Brief:

Style (name of case):  State Rubbish Collectors Association v. Siliznoff (1952)


Cause of action:  This is a cause of action for damages as a result of mental duress.


Parties:  Siliznoff, the defendant, was asked to pay notes to plaintiff, State Rubbish.


Procedural Facts (what happened in court):  Trial court jury ruled in favor of Siliznoff on original complaint and counterclaim.  Judgment against Association for $1250 and damages of $4K punitive.  Decision appealed and affirmed in Supreme Court of California.


Substantive Facts (how’d they get to court): Defendant claims he was threatened by plaintiff’s associates to pay up on certain notes.  Plaintiff collected trash for defendant’s place of business.  Defendant felt like he had no other choice but to sign notes over to plaintiff.  The threats consisted of bodily injury and severe damages to his business, so severe in fact, they might put him out of business.


Issue(s): Is a threat a tort violation of assault?  Does the time frame in which the threats are made matter at all?


Judge’s ruling:   Affirmed jury decision of the lower court in finding


Court’s Rationale/Reasoning: “The law should protect emotional and mental tranquility as such against serious and intentional invasions.”  The court finds there is ever increasing support of this statement, and finds in favor of the defendant for this reason, and others.


The court agreed in the jury’s finding (as juries represent a reasonable person’s standard) in which they thought the plaintiff was endeavored in very shady business practice by forcing a client to sign over money/notes to him.  Moreover, the threat of physical and financial damages to his body and business, respectively, caused the mental duress aforementioned.


Significance: Despite no appearance of physical harm, mental strain from the possibility or the threat of harm may be seen by the courts as a tort violation of intentional infliction of mental distress, and damages may be awarded from such a violation.










Case Brief:

Style (name of case): Slocum v. Food Fair Stores of Florida (1958)


Cause of action:  This is a cause of action for a tort violation of infliction of mental duress, via constant insults which appellant claims caused her health problems. Appellant also seeks damages.


Parties:  Slocum is the appellant whom is bringing the cause of action; Food Fair is the appellee and the owner of the store in which the cause of action occurred.


Procedural Facts (what happened in court): The case book doesn’t really say exactly the procedural posture, however we do know the original suit brought into court was dismissed for failure to state a cause of action.


Substantive Facts (how’d they get to court): Appellant was a customer at appellee’s store and was insulted constantly by store employee in this fashion, “if you want to know the price…you’ll have to find out the best way you can…you stink to me.”  Slocum claims the language was used in an abusive manner and caused her great mental and physical distress, resulting in an aggravation of her pre-existing heart disease.


Issue(s): Sub-issue: did the conduct here “…constitute an actionable invasion of a legally protected right?  Main issue: does such an assertion of constant berating/insulting to another resulting in the unbalance of one’s emotional and mental state represent an independent cause of action for a tort?


Judge’s ruling:  Florida Supreme Court affirms lower court’s decision and does not believe the cause of action to be appropriate.


Court’s Rationale/Reasoning:  The court follows a general rule from the Restatement of the general law of torts:


“one, who, without privilege to do so, intentionally causes severe emotional  distress to another, indicating that the prerequisite intention exists when the act is done for the purpose of causing the distress or with the knowledge…that severe emotional distress is substantially certain to be produced by such conduct.”


Court recognizes abusive language is an instance where such a tort may be committed.  However, the court also finds mere emotional distress is not enough.  There must be a violation so great as to cause a reasonable, objective person (objective standard) to believe this particular instance would be enough to cause someone great harm emotionally or physically.


The court further asserts there are situations where an insult such as the one described, over a period of time not unlike the appellant’s claim, could be asserted as a cause of action.  However, there must be more to the relationship than just a cashier/employee and customer; an employee of a ship, hotel or household servant would probably have more of a claim in such an instance.


Court admits there although there was gross negligence in the constant berating, and it was unconscionable, there wasn’t enough substantive relation from the action in question to the condition which appellant seeks damages for which would warrant such a ruling.


Significance: To show a cause of action for mental duress whereas to seek damages for a tort violation, there must be a correlative connection so substantive as to create a situation where an objective person would find there was indeed mental and physical duress resulting from such an instance.










Case Brief:

Style (name of case): Harris v. Jones (1977)


Cause of action:  The following is a cause of action for an incursion of mental distress by the defendant, who was criticized for his speech impediment several times weekly over a period of five months.


Parties:  Harris, the plaintiff, was an employee at GM; Harris, the defendant, was a fellow employee and supervisor of the plaintiff.


Procedural Facts (what happened in court):  The original trial court ruled in favor of the plaintiff and awarded him damages in the amount of $3500 compensatory and $15K punitive against Jones and GM.  The decision was reversed by the Court of Special Appeals.  Affirmed by Court of Appeals of Maryland.


Substantive Facts (how’d they get to court): Over five month period (March-August 1975), Harris claims he was ridiculed over his nervous condition, which resulted in stuttering.  Harris stuttered through his entire life, having difficulty with long words or sentences.  This caused him to shake his head up and down when trying to speak.


Harris claims he was teased at least 30 times a week over this period, which caused his performance at work to suffer, to the point he was relieved of his duty 10 or 12 times.  Harris testified he received medical care for six years prior to the period in question, and did receive treatment once during the 5 month period, for which he received pills.


Harris said other employees ridiculed his stuttering; Jones’ conduct made him more nervous, as he admitted to especially being nervous around “bosses”.  Harris also tried seeing his general manager about this problem, in addition his union rep, who upon speaking with Jones continued to mimic and mock Harris.  When Harris asked Jones for a transfer, Jones would not let him have one, calling him a “troublemaker”.


Issue(s): Was there enough of a consistent relationship and substantive proof Harris was in fact being harassed to the point of mental distress, and if so, what remedy does he have against his supervisor and employer?


Judge’s ruling:   Affirmed the decision of the appellate court, ruling the humiliation suffered was not bad enough to relate to it an award for damages.  Appellant was to pay for court costs as well.


Court’s Rationale/Reasoning: Under the second restatement of torts, outrageous conduct causing severe emotional distress is defined as:


1. One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.


(in essence, the rule means conduct must be such which society deems exceeding in the bounds of decency, which is calculated to cause damage)


The court, relying on precedent, found there are 4 major factors to this tort when determining damages:


1. The conduct must be intentional or reckless

2. The conduct must be extreme and outrageous

3. There must be causal connection between the wrongful conduct and the emotional distress

4. The emotional stress must be severe


The court found three of the four to be in accordance with Jones’ and GM’s behavior, but not the fourth.  While it is true Harris suffered some more problems while working with Jones and others during the five month period, its opinion was the stress was not severe enough to warrant damages.


The court added they just weren’t sure how, or to what degree, Harris’ speech impediment worsened during the five-month period.  In that, there was no way to deem Harris’ stress as severe, or measure it relative to anything (his previous condition may, in fact, have hurt him here).


Significance:  Despite the presence of emotional stress in a certain case, it must be proven beyond a reasonable doubt at least, the stress inflicted, was in fact severe in order to receive damages.










Case Brief:

Style (name of case):  Taylor v. Vallelunga (1959)


Cause of action:  The following is a cause of action for two counts.  First count is for battery (being struck on the head causing him injury); second count is for the daughter of the beaten man, who brings a cause of action for mental distress upon witnessing the beating of her father.  This is actually a cause to get the second cause brought back into the suit against appellees.


Parties:  Taylor, the appellant, is the daughter of the beating victim (Clifford Gerlach) and the one who is seeking damages for mental distress as a result of seeing the beating.  Vallelunga is the name of the party of the people who beat Taylor’s father.


Procedural Facts (what happened in court):  The lower court responded to a demurrer by defendants on the second count, which was sustained.  Judge gave plaintiff ten days to amend or have it thrown out, which it was.  The parties are in District Court of Appeal to appeal the judgment of dismissal.


Substantive Facts (how’d they get to court):  Plaintiff Gerlach was struck on the head and beaten by defendants.  Taylor, who had to watch the beating, claims distress inflicted from seeing the act take place.


Issue(s): May a person incur emotional damage from seeing another be beaten?  Is there in essence a transfer of intent involved (battery of one without the intent of distress which happened anyway) in such a situation which would warrant such a cause of action?  What are the parameters and remedies for such a cause of action?


Judge’s ruling:   District Court of Appeals affirms lower court’s ruling and dismisses second cause of action, ruling the defendants neither had intention to inflict stress upon Taylor, nor did they know severe emotional distress would be involved upon such an action.


Court’s Rationale/Reasoning:  For there indeed to be emotional distress inflicted upon another when there is a cause of action under certain circumstances, intentionally intends mental distress upon another, even if the threats are not carried out right then and there.


Here though, the court found no reason to believe this was the case.  The court also went to the restatement of torts for a stronger standard of mental distress, and found:

1. One who intentionally causes sever emotional distress to another is liable for such emotional distress and

2. For bodily harm resulting from it.


Seeing as there was no way the defendants could know the plaintiff’s daughter would be there, defendants are not guilty for any emotional distress inflicted upon her.  There was also no known purpose to the court the beating inflicted upon Taylor’s father was in fact for the purpose of causing mental distress to plaintiff.


Significance: An intentional act on another may not always result in a transfered intent to another party.









B. Trespass to Land


Case Brief:

Style (name of case): Dougherty v. Stepp (1835)


Cause of action:  The following is a cause of action for trespass to land.


Parties:  Dougherty is the owner of the land which was allegedly trespassed on; Stepp was the alleged trespasser.


Procedural Facts (what happened in court): Trial court ruled there was no trespass b/a there was no damage.  The Supreme Court of NC reversed and ordered a new trial.


Substantive Facts (how’d they get to court): Defendant entered onto plaintiff’s property and began surveying land with a crew like it was his.  Defendant did no marking of any trees or shrubs at the time he was on plaintiff’s land.


Issue(s): Despite the fact no physical damage was done to plaintiff’s property, was there a trespass to land? If so, how may damages be assessed?


Judge’s ruling:   Judgment was reversed and a new trial was ordered.


Court’s Rationale/Reasoning:  Court found although the damages may be arguable, there was no doubt defendant was on another’s land without permission, which is also unlawful, a trespass has occurred.  Therefore, there is no argument to at least the fact defendant violated the tort.  Again, damages may be a different story (all that depends on actual physical damage to the land, if any to grass treaded upon or shrubs disturbed).


Significance: Every unauthorized and therefore unlawful entry into the close of another is a trespass.  From every illegal entry, the law infers some damage.











Case Brief:

Style (name of case): Bradley v. American Smelting and Refining, Inc. (1985)


Cause of action:  The following is a cause of action for a trespass to land and damages therefrom the deposit of microscopic airborne metal pieces from defendant.  There is also an additional claim of nuisance from the particles being on the plaintiff’s property.


Parties:  Bradley, the plaintiff, has property 4 miles to the north of defendant’s smelter.


Procedural Facts (what happened in court): US District Court for Western District of Washington certified the case for the state’s Supreme Court after cross motions were filed in the trial court for summary judgment.  Summary judgment for plaintiff denied in Supreme Court.


Substantive Facts (how’d they get to court): Defendant has a smelting plant 4 miles north of plaintiff’s property.  Defendant’s property is emitting microscopic particles of metal over plaintiff’s property, in addition to other chemicals/gasses, which are undetectable to the human senses.  Plant has been on said property since 1890.


Issue(s): Does the deposit of microscopic and potentially dangerous metal and gas particles on another’s land?  How physical must the actual trespass be to be considered a trespass?


Judge’s ruling:   Supreme Court ruled since plaintiff could not substantively prove there was indeed a trespass on defendant’s part, the motion for summary judgment was denied, and directions were given to the District Court with this ruling.


Court’s Rationale/Reasoning: The court found historically (obviously), previous courts might not have believed such an argument b/c of its inability to see in a world without microscopes.  Now, the court has a relatively obscure but famous case for which to turn to as a precedent.


In Martin v. Reynolds Metals, Inc. (1959), the court ruled indeed there was a trespass on plaintiff’s land for the reason the actual deposit of “unseen things” caused his land to be unfit for the cattle he was trying to raise there.  Therefore, this court held trespass and nuisance are not inconsistent and their theories may apply concurrently, however for the injured party to proceed to court under these claims, both theories must be present for one to do so.


The actual standard for these separate torts is a comparison of interest invaded: actionable invasion of a possessor’s interest in the exclusive possession of land is a trespass.  An actionable invasion of a possessor’s interest in the use and enjoyment of his land is a nuisance.  So which ever interest is harmed is a benchmark for which tort is violated.


The plaintiff must be able to show substantive damage as a result of the trespass or nuisance, and since the plaintiff did not, there is no cause of action for either tort.


Significance: One must show actual physical proof of either trespass or nuisance, whether it be to the home, the land or anything associated with it, in order to provide a burden of proof in court.










Case Brief:

Style (name of case): Herrin v. Sutherland (1925)


Cause of action:  The following is a cause of action for trespass by killing foul while over another’s property.


Parties:  Herrin, the plaintiff, owns the land on which defendant, while hunting, killed a bird.


Procedural Facts (what happened in court): Defendant’s general demurrer overruled.  Judgment came for $1 for plaintiff, and so the parties come to the Supreme Court for a final answer.


Substantive Facts (how’d they get to court): Defendant, while on a game hunt for ducks and other birds, stodd on plaintiff’s land, repoeatedly fired a Winchester shotgun in the air and killed a water fowl in flight over plaintiff’s land.  Plaintiff seeks damages for $10.


Issue(s): Were damages appropriate in a situation where one kills an animal in flight over another’s property?  How much of a trespass in fact, was there?


Judge’s ruling:   Judgment of lower court affirmed.


Court’s Rationale/Reasoning: Blackstone ruled land went up into the air as well as in regards to the physical perimeter of the property itself.  Yet with the inventions of the airplane, balloon and other things which fly very high in the sky, how high is high enough?


Court held anything which is a reasonable range of the land (generally short range) would be considered a trespass if it indeed “interfered with the quiet, undisturbed, peaceful enjoyment of the plaintiff”.  Since, the shotgun fired was by common knowledge a short range weapon, the court found a technical trespass.  However, they only found a very minor one and held the proper amount was awarded in damages.


Significance: Suing for damages as a result of trespass requires a little more than the chance shooting of water foul over another’s property, unless the water foul in particular was property (chattle) of the owner’s.










Case Brief:

Style (name of case): Rogers v. Board of Road Com’rs for Kent County


Cause of action:  The following is a cause of action for trespass and damages as a result for the death of plaintiff’s husband.


Parties:  Rogers is the wife of the decedent, and the owner of the property on which the defendant placed a snow fence, which eventually resulted in the injury and eventual death of plaintiff’s husband.


Procedural Facts (what happened in court):  Original court dismissed the plaintiff’s cause of action, ruling the action was based on negligence, not trespass.  In addition, the court found government immunity existed and applied to the facts in plaintiff’s declaration in court.  Supreme Court of Michigan reversed the decision, and remanded.


Substantive Facts (how’d they get to court):  Defendant obtained a permit to place a snow fence in decedent’s field parallel to the roadway past decedent’s farm.  The placing of the fence came with the distinct understanding it and surrounding posts would be removed by defendant at the end of each winter season when the need for such an item no longer existed.


Defendant failed to remove an anchor post and plaintiff’s husband died as a result of injuries sustained when the bar of his mowing machine struck the post and threw him to the ground.


Issue(s): Was there a trespass by the failure to remove property which was previously agreed upon before it was placed there?


Judge’s ruling:   Court held the defendant was in fact trespassing by leaving a piece of property on the plaintiff’s land after the two parties agreed the defendant would remove the post.


Court’s Rationale/Reasoning:  The court found through the Rules of Torts under trespass:


“A trespass may be committed by the continued presence on the land of a structure, chattel or other thing which the actor or his predecessor in legal interest therein has placed thereon…with the consent of the person then in possession of the land, if the actor fails to remove it after the consent has been effectively terminated, or…if actor fails to remove it after the privilege has been terminated, (whether) by the accomplishment of its purpose or otherwise.


Therefore, defendant is responsible for failure to remove the post on the plaintiff’s property after there was expressed consent by both parties such a task would be completed upon the end of the winter season or once the snow fence no longer needed to be in place.  As a result, any damages resulting from such a failure to remove said property are the responsibility of the defendant, and the defendant only.


Significance:  Property left on another’s land after it should have been removed may be considered a trespass under the Rule of Torts, and such a trespass, if it indeed causes injury or worse, death, should result in damages awarded as a result.









C. Trespass to Chattels (Property)


Case Brief:

Style (name of case):  Glidden v. Szybiak (1949)


Cause of action:  The following is a cause of action for trespass to chattels (property) to recover for a dog bite from sustained by plaintiff.


Parties:  Glidden, the plaintiff (an infant of 4 years of age), was bitten by defendant’s dog, and wished to recover damages.


Procedural Facts (what happened in court):  The original court denied judgment after presentation of evidence, and added the little girl was too young to engage the animal in a negligent manner.


Substantive Facts (how’d they get to court): Plaintiff went up to neighbor, plaintiff encountered defendant’s neighborhood candy store to get something to eat.  On the porch of the store (defendant’s), plaintiff encountered a dog, and engaged in play.  Plaintiff further engaged in play by getting on top of the animal and pulling its ears.  Dog turned around and bit defendant on the nose, causing injuries which were repaired through the course of surgery and treatment.


Issue(s): Was there in fact a trespass to chattels on the part of the plaintiff, who initiated the play with the animal and associated injuries, which would negate any possible claims to recover monies spent on treatment for surgery and treatment?


Judge’s ruling:  Judge ruled defendant was liable to pay damages to plaintiff, as the defendant’s dog was not injured by the conduct of the plaintiff, and thus must pay damages for the resulting injuries to plaintiff.


Court’s Rationale/Reasoning: The court first looked at the rule of liability of the owner:

“any person to whom or whose property is damage may be occasioned by a dog not owned or kept by him shall be entitled to recover such damage of the person who owns or keeps the animal, or has it in possession, unless the damage was occasioned to him while he was engaged in the commission of trespass or other tort.”


Then the court looked at the definition to trespass to chattels:

“one who without consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in possession of another is liable to trespass to such a person if:

a) the chattel is impaired as to  its condition, quality or value, or

b) the possessor is deprived of the use of the chattel for a significant amount of time, or

c) bodily harm is caused to some person or thing in which the possessor has a legally protected interest.”


Since there was no claim to the dog as to its impariment or injury through the negligence of the little girl Elaine, therefore she can’t be held liable for trespass of the dog, and therefore her conduct didn’t constitute a trespass which will prevent her recovery under the statute.


Significance: Trespass requires actual harm/injury to another’s property, or a deprivation of its use for a significant amount of time.  Only in this situation would damages be worthy of being assessed.










Case Brief:

Style (name of case): CompuServe Inc. v . Cyber Promotions, Inc. (1997)


Cause of action: The following is a cause of action for trespass to chattels, involving an unauthorized sending of emails to customers to the plaintiff’s subscribers.


Parties:  CompuServe, the plaintiff is suing to disallow Cyber Promotions from advertising to its clients.


Procedural Facts (what happened in court): N/A.  All we know about is a request for an injunction against defendants.


Substantive Facts (how’d they get to court): Defendants send out what some might term as “junk email” to plaintiff’s clients, resulting in mass complaints.  Upon receipt of an order to desist from sending any more mass emails out to plaintiff’s clients and further security measures by plaintiff to protect its clients, defendants continued to send out more unauthorized emails.


Issue(s): Does an unsolicited email to subscribers of another service constitute a trespass to chattels?


Judge’s ruling:   Defendants are enjoined from sending out any more unsolicited emails to any of plaintiff’s clients.


Court’s Rationale/Reasoning: The court found under the definition of trespass to chattels, the condition and quality of CompuServe was impaired for a significant amount of time as a result of the unsolicited emails from defendant.  The testimony under sworn affidavit its costs and complaints went up as a result attests to the damage/impariment involved.


The fact defendants continued to trespass after being warned not to constitutes blatant disregard for plaintiff and its property, and further fulfills the burden of proof required for trespass to chattels.


Significance: Property may not just be land or animals or anything physical; property may be use of the air in a sense, as the internet is just that.









D. Conversion


Case Brief:

Style (name of case): Pearson v. Dodd (1969)


Cause of action:  The following is a cause of action for conversion.


Parties:  Pearson, the appellant, and plaintiff who had the unauthorized information taken from his office.  Dodd, the appellee and defendant, was the party who knew of the unauthorized taking of files from his office.


Procedural Facts (what happened in court):  District Court granted partial summary for appellee her, finding liability on a theory of conversion.  Same court denied partial summary judgment on the theory of invasion of privacy,  Both parties want an interlocutory appeal.  US Court of Appeals, District of Columbia ruled there was no cause of action for conversion on appellee’s part.


Substantive Facts (how’d they get to court): Defendants with the assistance of two members of the plaintiff’s staff, entered plaintiff’s office and removed documents and files, copied them off and returned them to the plaintiff’s office before the start of the next business day; the copies were handed over to defendant, with the full knowledge of what was going on and how the files and documents were obtained.  Defendants published information & materials from the unauthorized trip to the office.


Issue(s): Was the unauthorized taking, copying, and reporting of information from another’s office a tort violation of conversion against the appellant?


Judge’s ruling:   Court ruled in favor of the defendant, reversing the order of the previous court.


Court’s Rationale/Reasoning: Conversion was defined by the court through the restatement as:


“an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.”


The court added less serious offenses fell under the tort of trespass.  This is important, b/c the court finds this case of be more of a violation of trespass than conversion, and the damages from a case of trespass are measured by the amount of actual damages they cause form whatever interference takes place.  Furthermore, conversion damages are only nominal, whereas trespass damages may be a lot more, once of course the physical proof from the trespass is displayed.


The court finally came to one question:  did the information taken from plaintiff’s files fall under the law under a suit for conversion.  The court answered in the negative, b/c the property in question was not valuable monetarily, or not for sale, there was no conversion under the letter of the law.


Significance: When filing suit, know under which tort your party is more likely to fall under.  Conversion is more of a transfer of value from one person to another; this case fit more of a trespass violation to the court.









III. Privileges

A. Consent


Case Brief:

Style (name of case): O’Brien v. Cunard S.S. Co. (1891)


Cause of action:  The following is a cause of action for assault and negligently vaccinating the plaintiff.


Parties:  Plaintiff was a passenger on defendant’s steamship.


Procedural Facts (what happened in court): Trial court directed a verdict for defendant, despite her contention her medical problems were as a result of defendant’s vaccination of her.  Decision affirmed in Supreme Judicial Court of Massachusetts.


Substantive Facts (how’d they get to court): Plaintiff was on defendant’s ship on a cruise from Queenstown to Boston.  Surgeon, who was employed by defendant, was the party who vaccinated plaintiff.  Signs were posted all over the ship in different languages describing the following procedure and importance of the procedure described below.


When ship docked in port, about 200 women passengers were escorted down below.  In order to be able to walk off the ship, they needed to be vaccinated for small pox.  Each of the 200 women were lined up, asked to show if they had a small pox mark on their arm, and if they did, they were let off the ship.  If not, they were vaccinated.  Plaintiff was 15 feet away from this line and saw what was going on.


Doctor asked plaintiff to see her arm, and saw no mark.  Plaintiff told ship’s doctor she was vaccinated but the mark did not show.  Doctor told her it would be a good idea to get vaccinated.  Doctor looked at her arm, turned it over and vaccinated her.  Plaintiff did not move arm away or show any concern with this procedure.  Plaintiff took her certificate for vaccination and walked off the ship.


Issue(s): Did the surgeon use force against plaintiff’s will in committing the tort of (negligent) assault, or was there consent negating this claim?


Judge’s ruling:   Supreme Judicial Court of Massachusetts affirmed lower court’s decision.


Court’s Rationale/Reasoning: As far as the first count of this cause of action, the court determined it would first have to determine whether the surgeon’s actions, in relation to the surrounding circumstances, was lawful or unlawful.  Yet, if there was consent, defendant was justified in his act.


In order to determine consent, the court found they could only go by plaintiff’s “overt acts” and “manifestations of her feelings”.  Surrounding circumstances included a tightly-regulated quarantine regulation in Boston in dealing with emigrants to verify they are vaccinated from small-pox.  Only those persons who held a certificate to verify such a protection are permitted to land without being detained in quarantine.  The other option is vaccination by the port physician.


Signs were posted everywhere, so defendant had to assume plaintiff was well aware of the circumstances regarding possible vaccination upon docking.  Once in line for the vaccination, plaintiff’s behavior showed nothing which could be construed to mean protest to the shot.  Therefore, based on the surrounding circumstances and behavior of both the doctor and plaintiff, there was consent to the procedure and no unlawful act on defendant’s part.


Significance: Consent is more than just a “yes” or “affirmative” response to a question.  Consent is determined by both the surrounding circumstances of the situation and actions of the person in question.










Case Brief:

Style (name of case): Hackbart v. Cincinnati Bengals (1979)


Cause of action:  The following is a cause of action for battery (?)


Parties:  Broncos’ DB Dale Hackbart was the recipient of the injury, and Bengals’ offensive back Charles “Booby” Clark inflicted the hit.


Procedural Facts (what happened in court): Trial court found in favor of the plaintiff, ruling the hit by Clark was “acting out of anger and frustration, but without specific intent to injure…”.  Trial court added however, the game of professional football is a business and a particularly violent one at that, and if there were to be some form of punishment for a hit such as was administered by Clark, it would be done so by the league office.


Substantive Facts (how’d they get to court): At a football game, Clark “…stepped forward and struck a blow with his right forearm to the back of the knelling plaintiff’s neck with sufficient force to cause both players to fall down.”  Clark and Hackbart got up, and went to their respective sides after the play was over with and the ball had exchanged hands.  Clark later admitted he inflicted the hit out of frustration in the fact his team was losing.


Issue(s):  During the regular season, is an injury which is inflicted by one professional football player on an opposing player give rise to liability in tort where the injury was inflicted by a striking of an intentional blow during a game?


Judge’s ruling:   US Curt of Appeals reversed the decision and remanded for a new trial.


Court’s Rationale/Reasoning:  The court found despite the fact the trial court said the game of football was a game inherent in its violent nature, and such a hit was punishable by the league, there was further evidence to say otherwise.


All players who testified at trial knew what was going on and understood the illegal nature of the hit, and how vehemently against the hit the league office was towards such behavior.  The court cited this league rule, which clearly stated there were to be no blows of any kind to the head which were intentionally inflicted.


In such a situation as this, the court found it not to be possible to just let the hit go to the league office; the case should be

retried to figure out on the “assessment of his rights and whether they had been violated.”


Significance: A battery in a professional sport violent in nature may still be a battery in the course of tort law if the nature of such a battery is also clearly not tolerated by the professional sport’s authority.










Case Brief:

Style (name of case): Mohr v. Williams (1905)


Cause of action:  The following is a cause of action for battery.


Parties:  Mohr, the patient, was operated on by Dr. Williams, the defendant and ear specialist.


Procedural Facts (what happened in court): The trial court jury ruled in favor of the plaintiff for $14,322.50.  Trial judge denied defendant’s motion for a judgment notwithstanding the verdict, but did grant a retrial on the ground charges were excessive.  In Supreme Court of Minnesota to debate the matter of a retrial to lower the amount of damages.


Substantive Facts (how’d they get to court): Plaintiff went to consult defendant, an ear specialist, for a problem on her right ear, to which the defendant found a diseased condition.  Upon surgery, the doctor found the right ear to not require surgery, but the left ear at this time.  Doctor did not revive patient and performed the surgery on the other ear.  Despite the skillful performance of the surgery and the success of the surgery, plaintiff still brought a cause of action to the trial court.


Plaintiff testified she never had any trouble with the left ear before the surgery, only the right.  Plaintiff’s physician was also present during the surgery.


Issue(s): Was there an assault and battery of a patient by means of an unauthorized, yet successful surgery by her doctor?


Judge’s ruling:   The Supreme Court of Minnesota affirmed the ruling of the trial court.  Upon retrial for the amount of damages, the trial court lowered the amount of the award to just $39.


Court’s Rationale/Reasoning: The court points to common law in which a doctor must consult with their patient for consent before the doctor may operate on them.  There are exceptions:


1. In case of an emergency

2. Extent of rendering the patient unconscious

3. Nature of injuries were such as to require prompt medical attention

4. For the preservation of life or limb

5. If physician discovers a condition(s) not anticipated before the operation before commencing the operation, and which, if not removed, would endanger the life or health of the patient


In the above case, the court found to be no similarity to any one of the five exceptions to mandatory patient consented surgery.  Plaintiff said she never had any trouble with her left ear previously.  There was also no endangering factor to the disease found in plaintiff’s left ear.  Plaintiff’s doctor was present at the surgery, but not to help out and not to sign off on any extra procedures and such on plaintiff.


The last contention of the defendant was that if the left ear were as potentially dangerous as the condition in the right ear was thought to have been, there was no negligence on his part, and thus no battery.  Defendant claims if there was no display of intent or negligence, he should be relieved of any possible charge of battery.  The court did not agree.  It found despite the doctor’s good nature to help his patient, there was in fact a technical assault and battery of his patient.


The procedure was an unlawful since it was not authorized.

It was wrongful b/c it was of a violent/unpleasant nature, despite the absence of negligence.


However, this is unlike a criminal prosecution for assault and battery, b/c there’s no criminal intent here.  So, to figure out damages it must depend on the character and extent of the injury on her.  The intent to heal, plus the beneficial nature of the surgery should be taken into consideration, as well as the defendant’s good faith.


Significance: A battery under the technical term consists of an unauthorized act which was of an unpleasant nature.










Case Brief:

Style (name of case): De May v. Roberts (1881)


Cause of action:  The following is a cause of action for battery, as well as for damages as a result of deceit and the accompanying shame which resulted.


Parties:  De May is the defendant in this case, a doctor who performed the birthing of plaintiff’s baby.


Procedural Facts (what happened in court): No mention of what exactly happened in the trial courts, but we can assume through the simple fact this an appeal, there was a verdict in the plaintiff’s favor previous to this trial in Michigan’s Supreme Court.


Substantive Facts (how’d they get to court): Defendant was called over to plaintiff’s house to deliver their baby.  Defendant showed up with another party, Scattergood, who was asked to show up because it was raining outside, he was fatigued, and there was a lot of equipment to carry.  Upon showing up at plaintiff’s residence, defendant and his assistant were allowed inside by plaintiff’s husband under the premise he was “a friend who was there to carry things.”


When plaintiff begins the birthing process, defendant’s assistant laid his hands upon the plaintiff to comfort her.  There were no objections.  It was not disputed Scattergood acted, “by a sense of duty and kindness”.


Issue(s): Was there a battery action despite plaintiff’s consent to defendant’s assistant’s presence in the home during her birthing process?  Does the fact defendant’s assistant’s identity as a single man affect plaintiff’s consent, and result in deceit?


Judge’s ruling:   Michigan Supreme Court affirmed lower court’s ruling.


Court’s Rationale/Reasoning: Yes, it is true there was consent on the part of all parties all the way through the birthing of plaintiff’s child.  It is also true defendant’s assistant acted with the utmost care and consideration in regard to the plaintiff’s condition, and even helped in the process.  However, all of this was done under false pretenses.


In order for the causes of action not to be valid, there would have had to been an understanding on the part of the plaintiff the marital status and employment status of defendant’s assistant.  Were there a consent to these considerations, there would be no cause of action.  Since the sanctity and proximity of this procedure were violated by the presence of someone not trained in this profession, both the defendant and his assistant deceived the plaintiff, and the latter party here has a cause of action.


Significance: Battery may be inflicted if the party committing the tort was not forthright about their involvement and experience in a medical procedure.










Case Brief:

Style (name of case): Hart v. Geysel (1930)


Cause of action:  The following is a cause of action for wrongful death as a result of injuries inflicted in a prize fight.


Parties:  Hart is the administrator for the estate of decedent, Hamilton I. Cartwright; defendant is Cecil Geysel, who delivered the death blow to decedent’s head.


Procedural Facts (what happened in court): Each of the defendants interposed a demurrer, which was sustained.  Plaintiff refused to plead further and elected to stand upon the complaint.  A judgment was entered dismissing the action and now being appealed.


Substantive Facts (how’d they get to court): Cartwright and Geysel engaged in a prize fight in Seattle, during which Cartwright received a blow to the head, which caused him to die.


There is no evidence showing the “mutual combat” was done in anger, that there was malicious intent to injure, or that there was excessive force.


Issue(s): Is there a tort violation for wrongful death when both parties consent to an unlawful activity which could result in injury or even death?


Judge’s ruling:   The judgment of the lower court was affirmed.


Court’s Rationale/Reasoning: Under statutory law, prize fighting in Washington state is unlawful and is considered a gross misdemeanor.  Since the plaintiff engaged in the fight and consented to the fight, he or his administrator should not be entitled to claim damages as a result of injury or death.


However, this does not mean under any circumstances where there is consent to perform an act like abortion, and if that act goes wrong by the treating doctor, there may not be filed a claim for injuries as a result.


Significance: Positive law is municipal law.

Punishment for a crime might be the physical injuries suffered themselves; just because someone gets hurt doing something (illegal), doesn’t entitle them to injuries as a result of the illegal activity.









B. Self-defense

Topic Notes:

This privilege is normally covered in Crim Law, and is infrequent in tort law.  But there are ways in which this claim may fit into the picture:


1. Existence of privilege: anyone may use force to defend themselves from a threatened battery by another….it has always been an affirmative defense to be pleaded and proven by the defendant…on the prima facie case, plaintiff would have to show the use of force was unreasonable (and thus not privileged) to win…


Ex: a man and his family were locked up in their house and had already called the cops…guys were robbing owner’s pole barn, which was 100 feet and were running away when fired upon…no jury instruction for self-defense privilege


2. Retaliation:  The privilege is one of defense against threatened battery, not for retaliation.  When the battery is no longer threatened, the privilege ends. (thereafter the original victim themselves would be liable for battery


ex: man grabs a whip from another man and then hits him in the face (privilege ended when he grabbed the whip)


As an added kicker, a person who was the former attacker and now retreated or ceased the threat of battery may use the privilege of self-defense against the person initially threatened.


3. Reasonable belief:  Exists when the defendant reasonably believes that there is force necessary to protect themselves, even when there really is no need.  In this case, a reasonable act on the part of the actor will protect them.


A) two men are arguing on the street about one slandering the other…all of a sudden, one man who is known for shooting people, reaches for his pocket…other man hits him on the head with a cane and knocks him out…second man reasonably believed he was in harm’s way, although it may not have been so…second man gets off this time


b) bouncer throws out a guy at a dance who was intoxicated and hadn’t paid his entrance fee…another guy “B”, notifies bouncer the guy he threw out was “getting some bricks”…bouncer hears footsteps rapidly approaching when he goes to look for the guy he threw out, but the entry way is dimly lit…he hears the footsteps louder…when they get to him he knocked a totally different guy down the stairs…defendant was held not liable


4. Provocation:  almost every court has held insults, verbal threats or obscene language is not a privilege to self-defense.  It may increase punitive damages and also reduce compensatory damages.


However, if those words are accompanied by a actual threat reasonably warranting an apprehension of imminent bodily harm, one may be privileged to defend.


5. Amount of force:  the privilege is limited to the use of force which reasonably appears necessary for protection against a threatened battery.  Differences in age, size and strength are considerations.


Ex: a 5’6″, 135 lb. Man was permitted to ward off a 6’6” 230 lb. Athlete with a gunshot near his feet

Ex: a smaller 10-year-old was permitted to throw a broom at a larger 10-year-old to defend himself

*Ex: but a boy in a fight with another boy was not permitted to use a baseball to defend himself in a fight…


*in the event one uses a weapon to defend themselves, they must have reasonable apprehension of loss of life or great bodily injury…usually this burden is on the defendant


6. Retreat:  a defendant may stand their ground and use force short of that which cause bodily injury…retreat is not required in one’s home


7. Injury to a third party: If B, defending himself from A, unintentionally hits C.  “transferred intent” is carried over and defendant B is not held negligent in defending himself from A.  The emergency and necessity of the defense are also considered.


Defense of others

1. Nature of privilege: a privilege similar to that of self-defense is recognized for the defense of third parties…usually used when family members are defending one another…the question comes up in these cases whether the defendant used excessive force in such a case


ex: plaintiff, who previously made threats to others in the family…was shot outside their home, even though he only had a flashlight…defendant thought it was dynamite


2. Reasonable mistake:  a question courts differ over…the effect of a reasonable mistake as to the necessity for taking action….


Some courts hold the intervenor steps into the shoes of the person they are defending, and is privileged only when that person would be privileged to defend themselves…if it turns out he intervened to help out the aggressor, they are liable


Other courts hold the defendant is privileged to use reasonable force to defend another even when he is mistaken in his belief the intervention is necessary, so long as their mistake was reasonable



Case Brief:

Style (name of case): Katko v. Briney (1971)


Cause of action: The following is a cause of action for damages resulting from wounds caused by a 20-gauge shotgun set by defendants in a bedroom of an old farm house.


Parties:  Katko was the party injured by the shotgun blast; Briney was the family who installed a trap which hurt plaintiff.


Procedural History:  The jury of the original court ruled in favor of the plaintiff, and awarded damages in the amount of $20K actual, and $10K punitive.  Appealed by defendants after judgment notwithstanding the verdict was denied.


Facts: Actual property where shots were fired was several miles from the scene of the incident.  The home had not been used for quite some time, but was still the victim of several break-ins.  Trespass signs were placed on the land several years before the incident, nearest one being 35 feet from the house.  Windows and doors were boarded up in a similar effort to prevent trespassers.


Plaintiffs broke into defendants uninhabited home (for several years) and were looking for old bottles which they considered antiques.  Defendants set up a “shotgun trap” in the north bedroom, which was rigged from the doorknob to a bed.  The gun was aimed at a possible intruder’s legs.  No warning of the presence was posted.


Upon breaking into the house, defendant tried opening the north bedroom window, and was shot in the right leg above the ankle, which shattered most of his leg.  Plaintiff wound up spending 40 days in the hospital as a result.


Issue(s):  May an owner protect personal property in an unoccupied boarded-up farm house against trespassers and thieves capable of inflicting death or serious injury?


Court’s Rationale/Reasoning: Defendants rely primarily on a rule which states owners are primarily liable if they willfully or intentionally injure a trespasser by means of force which inflicts great bodily injury or takes a life, for the purpose of harming trespassers.  This rule does not accept the fact a person may be doing such a thing to protect themselves from trespassers, except to defend themselves from great bodily harm or death (a reasonable person standard).


There was in this case, an excessive amount of force necessary to protect defendant’s family from harm.  There seemed no intent for serious harm or death on the part of the plaintiff.  “the human life and limb…outweighs the interest of a possessor of land…” (unless stated for the exceptions listed above).


Therefore the installation of the shotgun trap, since it was desinged to inflict great bodily harm, turned out to hurt the defendants in this case.


Rule:  A person may not use excessive harm to defend themselves from harm, unless there is a reasonable chance the harm is grave.
















Case Brief:

Style (name of case): Hodgeden v. Hubbard (1846)


Cause of action:  The following is a cause of action for assault and battery against the defendants, after a struggle resulted from the taking and carrying away of a stove, as well as fraud for misrepresenting credit on the part of the plaintiff.


Parties:  Plaintiff is the taker of the stove and the party to which had to defend itself from the defendant in a knife fight incident.


Procedural Facts (what happened in court): Trial court found defendants used excessive force in trying to stop plaintiff, who was equally guilty of fraud.  Damages awarded in the amount of $1.


Substantive Facts (how’d they get to court):  Defendants almost discovered at once plaintiff misrepresented his credit, and went after him after he proceeded to take a stove from the defendant’s store.  Defendants overtook plaintiff after about 2 miles.  Two parties engaged in a struggle, in which there was violence used.  Plaintiff used a knife; he was then forcibly held by one of the defendants while the other of the defendants took control of the stove.


Issue(s):  Was there an inappropriate use of force by defendants in trying to reclaim a stove which was fraudulently taken from their store, or were they justified in their actions?


Judge’s ruling:   Decision of the lower court is reversed.


Court’s Rationale/Reasoning:   It is true the plaintiffs took the stove by illegal and criminal means (fraud), to which effect defendants had a right to take back what was their property.  However, it should have tried to have been done without the use of unnecessary violence or “without breach of the peace”.


In this case, it is unknown about how much force was used by the defendants in trying to get its stove back.  However, it is known once the plaintiff took out a knife, he became the aggressor in trying to protect his taking of the stove.  In such an instance, defendants were entitled to use such force to protect themselves from possible grave harm.


Significance: Once assault stops on one party, they may reverse roles and become the aggressor if they incite further breach of the peace by their actions.  In such cases as a knife or weapon being involved, the now retreating party may use necessary reasonable force to defend themselves.










Case Brief:

Style (name of case): Bonkowski v. Arlan’s Department Store (1968)


Cause of action:  The following is a cause of action for false arrest and slander against the defendant’s store.


Parties:  Plaintiff was stopped and questioned by an private police officer (Earl Reinhart) of the defendant’s store on a supposed theft.


Procedural Facts (what happened in court): This is an appeal from a jury verdict in favor of the plaintiff.


Substantive Facts (how’d they get to court): Plaintiffs were exiting said department store when they were stopped by Earl, a store employee, who told them they were being stopped on suspicion of larceny.  Earl demanded to see the contents of plaintiff’s wife’s purse, to which she eventually did upon the store’s cement step.  The resulting display produced items which were purchased at the store, along with accompanying receipts for the items in wife’s purse.  Earl returned back into the store upon satisfaction there was no substantive proof to the charge.


Plaintiff contends, that as a result of the stop by Earl, she has suffered numerous psychosomatic symptoms including headaches, nervousness, and depression.


Issue(s):  Was a store employee acting on unfounded charges when he stopped plaintiff at a store on suspicion of larceny charges?


Judge’s ruling:   The Court of Appeals of Michigan reversed and remanded for a new trial in accordance with court’s opinion.


Court’s Rationale/Reasoning:  The court found under tort law a person has a right to reasonably detain a person if they suspect another of stealing a chattel.    So, if Earl Reinhart reasonably believed Mrs. Bonkowski unlawfully took goods from the store, then he had a right to detain her an reasonable investigate.  Under such a privilege, Earl had a right afterwards to either detain the plaintiff, or to release her.  However, there never was mentioned an instance where a store employer could detain a shopper outside of the store, only inside.  This presented a new question for the court.


Upon discussing previous restatement law, the court found it to be acceptable to include the outer portion of the store the area in which a store employee may briefly and reasonably detain a shopper if they suspect them of a crime.  The reasoning for this is a store employee might not be able to determine if there is indeed a stop warranted until a further observation of the shopper’s behavior has been ascertained.


Upon this conclusion, the court remands the trial upon this new standard.  If they believed Earl had reasonably believed from his observations a stop was necessary, they should find in favor of the defendant, and rule no false arrest occurred.  The award of costs will wait until after this new trial.


Significance:  A store employee does not have to act inside his premises in order to stop a suspected thief; instead they may wait until the suspect has left the store in order to ascertain more possible behavior.











Case Brief:

Style (name of case): Surocco v. Geary (1853)


Cause of action:  The following is a cause of action to recover damages for blowing up and destroying the plaintiff’s home and property (trespass to chattels) on Christmas Eve, 1849.


Parties:  Surocco was the owner of the home and property to which defendant is accused of burning down.


Procedural Facts (what happened in court):  The lower court held in favor of the plaintiff; no damages were listed being awarded.  Defendant appeals the verdict under the Practice Act of 1850.


Substantive Facts (how’d they get to court):  Defendant justified he had authority as alcade (governor/warden) of San Francisco to burn the building down because it was a means to stopping a raging inferno which was plaguing the city.


Issue(s):  Whether the person who tears down or destroys the house of another, in good faith and apparent necessity during a huge fire to save the adjacent buildings and stopping the fire’s progress, can be held personally liable in an action by the owner of the property destroyed.


Judge’s ruling:   The court reversed the decision of the lower court, thus the defendant was acting under his authority.


Court’s Rationale/Reasoning:  Under common law, it is well established a person has the right to act as he did if necessary under the circumstances.  A house on fire, with the ability to communicate flames to other homes in the vicinity is a “nuisance”, and may be destroyed to further the concerns of the general public in the surrounding homes. Otherwise, one stalwart could in theory, destroy a whole city.


So, who is to judge on this necessity question and what is the way in which it is answered?  It must be answered based on the exigencies of the situation:  if there was indeed no need to tear a building down, the defendant was liable for trespass.  Through the evidence given to the court, it is clear to the court there was a necessity in blowing up the house, for it would have consumed itself anyway through the fire, and possibly others around it.


Significance:  Necessity is sometimes a trump to a tort violation, if it is done under the circumstances in a way which benefits society in a positive manner.











Case Brief:

Style (name of case): Vincent v. Lake Erie Transp. Co. (1910)


Cause of action:  The following is a cause of action for damages to a ship (trespass to chattels) which was docked in appellee’s dock.


Parties:  Appellant (Vincent) is the owner of the ship, which damaged appellee’s dock (Lake Erie Transp.)


Procedural Facts (what happened in court):  Original court found in favor of the plaintiffs and awarded damages in the amount of $500.  From an order demanding a new trial, defendant appeals.


Substantive Facts (how’d they get to court):  It was a dark and stormy night.  Not many ships could make their way in the port of Duluth (MN).  Not many tugs were available to help ships b/c of the nasty weather.  Plaintiff’s ship was battened down and docked with her cargo.  The storm actually began as the steamship Reynolds was unloading its supplies when the storm began.  Since there was no one to help, the crew had to stay with the ship.  The ship kept banging against the dock, which resulted in damages to the dock in the amount of $500.


During the storm, the crew replaced any lines which were destroyed through the course of the storm.  Appellant seeks to relieve them of costs for damages resulting from the storm.


Issue(s):  Was weather enough of a mitigating factor to use as a defense to a cause of action for trespass to chattels?  Is it, in a sense, damage to a third party? (trying to avoid the storm, appellant hit ship dock)


Judge’s ruling:   The Supreme Court of Minnesota affirmed the ruling of the lower court.


Court’s Rationale/Reasoning:  Appellant’s main contention was since it performed all the duties the crew of the ship performed all the necessary duties and were prudent in their decision making, they should not be held responsible for an act of nature.  This is how the appellant claims the jury should have been instructed.  However, it was not the fact an uncontrollable force created the damage; it was the nature in which the boat was docked.  The agreed upon testimony says the ship’s bow was laid in such a way it would strike the dock constantly.


If this were a situation where despite the crew’s control, a line broke and hit another ship, appellants could not be held responsible, for they took ordinary care of the boat, and something else caused it to damage another ship.  Here, the case is to the contrary; the crew should have found a safer and less damaging way to dock their ship. They elected to preserve the ship over the dock, and so they must pay for this decision.


Significance:  Even if one party does all they can in the face of danger, they still might be liable if damages occur to another party’s chattel if there is not due care in securing it from damaging others property.










C. Authority of Law, Arrest & Discipline

Topic Notes:

Authority of Law

If a defendant is duly commanded or authorized by law to do what he does, he is not liable for doing it…but how far does it go?

—> distinction made between (1) acts which call for administrative judgment, such as those of a prosecuting attorney in deciding whether to seek an indictment, or a school board dismissing a pupil, which are called “discretionary” or “quasi-judicial”;

and (2) those requiring less personal judgment, such as remitting a prisoner to jail or dipping sheep, which are called “ministerial” only.



taking someone into the custody of law


Arrest is an act which is considered “ministerial”…a warrant is held valid even if incorrect if the warrant is valid on its face

however, a false arrest may hold the officer liable for a civil action



One of the most important examples of this privilege is that given to a parent or one who is deemed to stand in the place of a parent…the scope of this privilege was rarely tested for many years b/c parents were held to be immune from suits by their children…but recently, courts have been moving away from immunity in the matter of intentional torts


other examples: officers over subordinates, and master of the ship over their crew



Case Brief:

Style (name of case): Sindle v. New York City Transit Authority (1973)


Cause of action:  The following is a cause of action for false imprisonment.


Parties:  Sindle is the party who joined with his father to bring the lawsuit after said son was brought  to the police station on the last day of school on defendant’s company bus.


Procedural Facts (what happened in court):  The trial court denied a motion to deny the motion to amend the charge and include a defense of justification to the claim of false imprisonment.


Substantive Facts (how’d they get to court): Kids getting rowdy and destructive on a school bus owned by defendant’s company.  Driver on at least one occasion chastised the students for being loud and destroying property.  On one of the latter stops on his tour, the driver let off some people, looked in the back to inspect the damage, and then notified everyone in the back they were going to the police station.  There is no evidence plaintiff was involved in this destructive behavior.


Issue(s): Was their justification on the part of the bus driver to imprison rowdy and disorderly students on his bus?


Judge’s ruling:   Because of the duty of a bus driver, the New York Court of Appeals reversed and remanded the decision for a new trial.


Court’s Rationale/Reasoning: Court found as a general law a person is entitled to restrain or detain reasonably under the circumstances for damage done to their property.  A school bus driver has a duty of care not only to the students, but to the bus as well; but above all else he has a duty to maintain the safety and protection of both.  Under these circumstances, the driver was correct is trying to assess the possible damage and take action to prevent further destruction.


Significance: If a person can reasonably show they were justified in taking the action they did to prevent something else, there is no liability on the part of the justified party.










IV. Negligence

Topic Notes:

NEGLIGENCE: Negligence is the omission to do something which a reasonable person, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable person would not do.


Elements of cause of action

negligence is the word used to describe the conduct of the person or company being evaluated…cause of action for negligence requires more than negligent conduct…it includes the following:


(1) A duty to use reasonable care.  This is an obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.


(2) a failure to conform to the required standard.  This is commonly called the breach of duty.  These 2 elements go to make up what the courts have usually called negligence; but the term frequently is applied to the second alone.  Thus it may be said that the defendant was negligent, but is not liable b/c he was under no duty to plaintiff to use reasonable care.


(3) A reasonably close causal connection between the conduct and the resulting injury, or causation, which involves a combination of 2 elements: causation in fact and legal or “proximate” causation.


(4) Actual loss or damage resulting to the interests of another.

—> pleading and proof of damage are essential part of the plaintiff’s case

(nominal damage to vindicate a technical right cannot be recovered in a negligence action if no actual damage occurred)


HOWEVER…if defendant’s risk-creating negligent conduct threatens but does not harm the plaintiff, he may be able to obtain an injunction & stop the activity as a “nuisance.”


another commonly used standard for negligence is conduct which falls below the standard of care established by law for the protection of others against the unreasonable risk of harm.


Contributory negligence: the defendant is claiming the plaintiff’s conduct was negligent and that the plaintiff’s negligent conduct also contributed to the cause of plaintiff’s injuries.



Case Brief:

Style (name of case): Lubitz v. Wells (1955)


Cause of action:  The following is a cause of action for negligence


Parties:  Lubitz is the party of the little girl who was hit in the jaw by a golf club lying around in defendant’s yard.


Procedural Facts (what happened in court): Demurrer challenges sufficiency of allegations in complaint to state a cause of action or to support a judgment in favor of the father.


Substantive Facts (how’d they get to court): Golf club lying around in backyard of defendant was used by defendant’s son to hurt his little playmate.  Defendant took a swing with the club and hit plaintiff in the jaw, where she sustained injuries.


Issue(s): Should a father be liable for negligence by way of leaving a piece of sporting equipment around where a child could wantonly use it to hurt another child?


Judge’s ruling:   Demurrer was sustained.


Court’s Rationale/Reasoning: Judge found it would be unreasonable to hold a golf club so inherently dangerous so as to rule negligence on the part of a person who left it out in a backyard.  In such a case, the father can’t be held liable.


Significance: An instrument left in a backyard which is not violent in nature may not be considered as a cause of action for negligence if it is used the way it is supposed to be used, or if used by someone who is too young to know they needed to give warning to another before using it.










Case Brief:

Style (name of case): Blyth v. Birmingham Waterworks Co. (1856)


Cause of action:  The following is a cause of action for negligence.


Parties:  Defendants installed water mains in the street.  Plaintiff had a fire plug spring a leak near his home.


Procedural Facts (what happened in court): Trial jury rendered a verdict in favor of the plaintiff.  Defendant appealed.


Substantive Facts (how’d they get to court): Defendants installed water mains in the street some 25 years ago, and worked well at the time.  The plug opposite plaintiff’s home sprung a leak during winter frost.  As a result, a large amount of water got into plaintiff’s home, causing damage.


Issue(s): Were defendants negligent by way of a natural disaster causing the installation of its product to malfunction and bring damage on a third party’s home?


Judge’s ruling:   Verdict entered for defendants.


Court’s Rationale/Reasoning: Negligence is the omission to do something which a reasonable person, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable person would not do.  Only if defendants did not do what an ordinary, reasonable person would have done, but they did not.  The system worked well 25 years ago, and an unforeseen act of weather which cannot be ascertained, should not be held against the defendants.


Significance: Negligence is based on a reasonable person standard, one in which not only are their actions judged, but their foresight to the future is judged as well.










Case Brief:

Style (name of case): Gulf Refining Co. v. Williams (1938)


Cause of action:  The following is a cause of action for injuries allegedly resulting from a defect in a gasoline container which caused a fire.


Parties:  Appellants are the party asking for reconsideration in the highest court in Mississippi and the company accused of negligence; appellee was burned by the fire.


Procedural Facts (what happened in court): Appellee recovered damages in a judgment for his severe burns as a result of the fire, and is now being appealed.


Substantive Facts (how’d they get to court): Appellee was employee of planter, who received drum of gasoline for use in farm tractors.  Appellee was engaged in operating a tractor.  Upon never using the gasoline container sold to appellee’s employer, a spark resulted from unrepair in the threads of the bung cap, which caused a fire to suddenly occur, which resulted in injuries to appellee.  Appellants argue the condition which resulted from the taking off a bung cap was so unnusual, they could not be held liable for its unpredictive nature (Blyth?).


Issue(s): Was appellant negligently liable for its malfunctioning bung hole cap on a gasoline container, which resulted in injury to appellee?


Judge’s ruling:   Affirmed the decision of the lower court.


Court’s Rationale/Reasoning: The court found there to be a common misinterpretation of the “unpredictive nature” element to negligence, which usually results in the person in question of negligence is found not responsible.  Probability in Blyth had to do with a situation where there was no way anyone could have predicted such an occurance (freezing conditions causing a failure in 25 year-old equipment), whereas in this case appellants recognized the possibility of an accident with the gasoline container present, albeit small.  Thus, there is a cause for negligence for the fact


Significance: Foreseeability is not the balance of probabilities, but the existence, in the situation at hand, of some real likelihood of some damage and the likelihood is of such apppreciable weight and moment as to induce, or which reasonably should induce, action to avoid it on the part of a person of a reasonably prudent mind.











Case Brief:

Style (name of case): United States v. Carroll Towing (1947)


Cause of action:  The following is a cause of action for libel in admiralty (negligence) for the sinking of United States’ property on the ship.


Parties:  United States is the owner of the shipment on the Anna C.  Carroll Towing is the owner of the tug who allegedly contributed to the sinking of the Anna C.


Procedural Facts (what happened in court):  The trial court divided the damages under the rule of admiralty, b/c it found Conners Co. Partly responsible for the loss of the cargo and barge in not having a custodian on board the barge at the time.


Substantive Facts (how’d they get to court): Anna C. owned by Conners Co., and was chartered to Pennsylvania Railroad Co., which loaded a shipment of flour belonging to the U.S.  Charter required the Conners Co. Provide a barge between the hours of 8a-4p.  Carroll was the owner of a tug whose servants negligently shifted Anna C’s mooring lines, causing her to break free from her pier.  After the Anna C. broke away she drifted up against a tanker, and its propeller hit the Anna C, causing the load to fall out and subsequently sink.


Issue(s): Which party is properly responsible and liable for a 3rd party’s property damage when a tug carrying the second party crashes into another boat?


Judge’s ruling:   Conners Co. was found partly responsible for the losses.


Court’s Rationale/Reasoning: Negligence was based on a 3-prong test for liability: (1) the probability the ship would break away; (2) the gravity of the resulting injury, if there is one; and (3) the burden of adequate precautions.  If probability were called “P”, the injury “L”, and the burden “B”, L=B<LP, basically, whether B<PL.


It was ruled a boat has a greater chance of falling victim to the above circumstances during storms or when the boat is in a crowded harbor.  This was not the case.  The court furthermore found certain times during the day a ship’s employee had the right to be ashore, basically during standard working hours.  The ship broke away at 2PM, and 21 hours previous to the time the bargee left the barge.


There needed to be a janitor on board with the bargee to make sure it did not hit another ship, which it did.  The court further ruled there were hours where a crew member should be around to make sure the ship was free from harm, Thus, it was a fair requirement that the owner of the barge should have someone else aboard during the working hours of daylight.


Significance: It is not in all cases a sufficient answer to a bargee’s absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her. (the equation should be well noted here as well I think).










Case Brief:

Style (name of case): Vaughan v. Menlove (1837)


Cause of action:  The following is a cause of action for negligence.


Parties:  Vaughan is the neighbor whose property was destroyed by a fire on defendant’s property.


Procedural Facts (what happened in court): Verdict found for the plaintiff, and a first rule for a new trial was obtained, under the ground the jury should’ve been instructed on a standard of ordinary prudence.


Substantive Facts (how’d they get to court): Defendant had a hay rick near the boundary of his land.  Defendant was told of the possibility the hay in the rick could ignite, and was also heard saying, “He would chance it.”  Defendant, in response to the worries of his neighbors, built a chimney through the rick.  However, the hay combusted nonetheless, and the fire spread to his neighbors’ homes as well, destroying them entirely.  Defendant denied he was negligent.


Issue(s): Should a man who tried to protect his property from conflagration and failed to, which resulted in the destruction of third party paroperties, be held to a standard or gross negligence or on a standard of ordinary prudence?


Judge’s ruling:   The court found the jury should have indeed considered the standard of ordinary prudence in retrying the case.


Court’s Rationale/Reasoning: Despite the fact defendant did not necessarily light the fire in question, he still is responsible for it because it is on his property.  But is he liable through gross negligence?  The court found the jury should have been instructed on the standard the courts have always adhered to: ordinary prudence on the part of the defendant.  Such a standard might make it easier for the jury to render an appropriate verdict.  Under such a standard they would have to answer the question: “did the defendant act honestly and bona fide to the best of his own judgment?


Significance: The care taken by a prudent man is the way most cases of destruction are handled (?).










Case Brief:

Style (name of case): Delair v. McAdoo (1936)


Cause of action:  The following is a cause of action for trespass and to recover damages to person and property from a result of car crash with another car.  Negligence is alleged on part of defendant.


Parties:  Defendant was the other driver in the automobile accident with plaintiff.


Procedural Facts (what happened in court): Trial jury found in favor of plaintiff for $7500.  The appellate level court granted a new trial on grounds the verdict was excessive, and refused judgment n.o.v.  This ruling is up for review.


Substantive Facts (how’d they get to court):  Accident occurred when defendant, going in the same direction as plaintiff, tried to pass him.  As the defendant tried to pass, his left rear tire blew out, causing him to swerve into plaintiff’s car.


Witness for plaintiff said the tire was worn through.  The repairman who replaced the said tire said, “he could see the breaker strip.”  The strip is part of the tread of the tire, which, if true, would be indicative of the plaintiff’s witness’ testimony.


Issue(s):  May negligence be assigned to a party as to the risk of danger, who is operating a vehicle universal in use under a given state of facts?


Judge’s ruling:   Order affirmed.


Court’s Rationale/Reasoning:  The court found cars are in regular use by everybody, which means most of their intricacies and elements are familiar to the general public as well.  Any individual could therefore see if a tire was worn to the tread and even the inside fabric, and thus could determine there is a greater probability for a blown tire than a person driving with more tread.  Such factors make it easier to assign negligence as to a person’s not changing a bald tire.


Significance: When a machine/device is in universal use, the manner in which negligence may be ascertained is easier to deduct.










Case Brief:

Style (name of case): Trimarco v. Klein (1982)


Cause of action:  The following is a cause of action for negligence for personal injuries the plaintiff.


Parties:  Trimarco was the owner of the shower glass door which broke and caused lacerations; defendant was the landlord of the apartment.


Procedural Facts (what happened in court): The trial court found in favor of the plaintiff of $240.  Appellate division reversed.


Substantive Facts (how’d they get to court):  Plaintiff claims he was getting out of his shower when the shatterproof glass broke and caused him to sustain severe lacerations.  Defendant did not replace the shower glass door.  Defendant testified safety glass in no longer accepted safety practice in the installation of shower doors.


Issue(s):  Should a landlord be bound by failure to maintain a shower glass door which broke and caused injuries to plaintiff?


Judge’s ruling:   Ordered reversed with costs and case remitted to Supreme Court.


Court’s Rationale/Reasoning: The court found despite the fact the door broke, they must find the defendant conformed to accepted practice, due care is established and consequently if this conformity is coupled with ignorance of that practice, negligence is established.  The court turned to a statute which bound landlords by custom to change the glass.  However, the court also found common use and practice need not be universal.  Only if the defendant truly exhibited negligence would he have been responsible, which was to be determined by the court in a new trial.


Significance:  Custom and use isn’t always the be-all, end-all when it comes to liability issues.










Case Brief:

Style (name of case): Cordas v. Peerless Transportation (1941)


Cause of action:  The following is a cause of action for


Parties:  The plaintiff were innocent bystanders on a public road who were hit by a cab under employment of the


Procedural Facts (what happened in court):


Substantive Facts (how’d they get to court): A man was forced at gunpoint to give up his possessions, but went to chase the perpetrators.  Perps separated in mid-chase, but the man went after the armed assailant.  Assailant went into plaintiff’s taxicab and pointed a gun at him, according to his testimony.  There was a threat from the assailant to kill the cabbie.  In the midst of panic, the cabbie stopped his car by applying the emergency brakes, and jumped out of the cab.  The cab kept moving and struck a woman and her son.


Issue(s): Was a cab driver negligent in that by trying to save his safety by jumping out of his cab, it kept on moving and struck innocent bystanders?  Does the public interest outweigh the personal interest of the defendant’s employee?


Judge’s ruling:   Judgment for defendant against plaintiffs dismissing the complaint.


Court’s Rationale/Reasoning: Nature was not considered by the court to be absolute or intrinsic, but is relevant by time, place and person.  To say the cab driver should be responsible because his cab hit people without looking at the surrounding circumstances would be to divert back to primal law, as the court called it.  Under the circumstances, the individual interest of the cab driver trying to halt a crime in progress, to which he was unwittingly thrown into, does outweigh the interests of the public.


Significance: One who is in an emergency situation, may exercise judgment to their own benefit without reasonably considering the consequences of their actions.  Negligence is not associated with cowardice.










Case Brief:

Style (name of case): Roberts v. State of Louisiana (1981)


Cause of action:  The following is a cause of action for damages as a result of a fall from a bump


Parties:  Roberts is the party who was bumped in a bureau of the US Post Office, or the state it was located.


Procedural Facts (what happened in court): The trial court ordered the plaintiff’s suit dismissed.


Substantive Facts (how’d they get to court): Man falls by result of being bumped into by a blind man who worked the concession stand ion the lobby of the Post Office.  The blind man, Burson, left the bathroom and bumped into the plaintiff, injuring his hip.  Plaintiff is 775 years old, is 5’6″ and weighed about 100 pounds.  Burson was 25 or 26, was approximately 6 feet tall, and weighed 165 pounds.


Issue(s): Is there negligence assigned to a disabled person who accidentally collided with another person.


Judge’s ruling:   Judgment affirmed.


Court’s Rationale/Reasoning:  The court determined standards of care in regards to negligence.  As to physical characteristics, the reasonable man may be said to be identical with the actor.  The conduct of the handicapped individual must be reasonable in light of his disability.  It is said a blind man must use a higher standard of care in regards to others, but in reality they must just take precautions a reasonable person would take.  The court reasoned it would be impossible to ascertain there was another person in the way of Burson, judging from his perspective, and thus there was no negligence on his part.


Significance: The standard of care for a handicapped individual is of a reasonable standard similar to that of a non-handicapped person.










Case Brief:

Style (name of case): Robinson v. (Anderson &) Lindsay (1979)


Cause of action:  The following is a cause of action for negligence on the part of a snowmobile’s owner.


Parties:  Robinson was the injured party in the complaint.  Lindsay was the owner of the snowmobile which Anderson drove.


Procedural Facts (what happened in court): The trial court ruled in favor of the owner of the snowmobile, and the trial court ordered a new trial.  The case is in Supreme Court to decide upon the motion.


Substantive Facts (how’d they get to court): Billy Anderson, 13 years old, driving a smowmobile belonging to defendant Lindsay, was pulling Kelly Robinson, 11.  Robinson severed her thumb when it got caught in the tow rope.  Thumb was reattached but is not working at time of trial.


Issue(s): Is a minor operating a snowmobile to be held to be an adult of standard care?


Judge’s ruling:   An order granting a new trial was affirmed.


Court’s Rationale/Reasoning: Traditionally, a flexible standard of care has been given to children.  Under some standards, a rationale was established.  “children are traditionally encouraged to pursue childhood activities without the same burdens and responsibilities with which adults must contend. ”  Children need the experience to understand what ordinary care would be, so the court adopted the standard of a reasonable child of the particular age which the incident was involved.  The standards may be established based on: intelligence, maturity, experience and training.


In regard to the question of the liability of a person 13 years old driving a motorized vehicle, the court found if a activity a child engages in is inherently dangerous, as in the operation of a motorized vehicles, the child should be held to an adult standard of care.  The court held such a decision would discourage inappropriate youth behavior.  The snowmobile requires adult care and competence, and accidents happen frequently each year.  At the time of the accident, the 13-year-old had been driving snowmobiles for a couple years, and was running the 30 HP device at speeds of 10-20 miles per hour.  Since the speeds of the machine though, could go as fast as 65 MPH, the defendant should be held to an dult standard of care.


Significance: When a child operates a machine generally used by adults, that is the standard of care for which they shoudl be held.










Case Brief:

Style (name of case): Breunig v. American Family Ins. (1970)


Cause of action:  The following is a cause of action for personal injuries received by plaintiff when his truck was struck by an automobile driven on the wrong side of the highway.  Action brought against Mrs. Veith’s insurance company. (Negligence)


Parties:  Breunig was the party of the truck which was hit; American Family Insurance is bring sued under Wisconsin law, which says plaintiffs may take direct action against a defendant’s insurance company.


Procedural Facts (what happened in court): Trial jury rendered verdict for plaintiff, and defendant appeals.


Substantive Facts (how’d they get to court): Mrs. Veith, while returning home, saw a white light on the back of the car in front of her.  She followed the light, and didn’t remember anything, except being thrown to the side of the road, and waking up on the side of the road and people talking.  The following is what happened.


As it turns out, Veith thought the light was form G-D, who was guiding her car over what was in reality, a truck which was in front of her.  Veith thought G-D was instructing her to apply the gas in order to accelerate and rise over the car, “like Batman”.  Unfortunately, she did not fly until after being struck by the oncoming truck.  Psychologist testified Veith suffered from “schizophrenic reaction, paranoid type, acute.”  Added this state was about Veith from the time she started to follow the car to the time her car was in the cornfield.


Issue(s): Does insanity preclude some forms of negligence?  (in this case, the question was also if the jury should have the question posed to them regarding insanity as a defense)


Judge’s ruling:   Judgment affirmed.


Court’s Rationale/Reasoning:  Not all types of insanity vitiate responsibility for negligent tort.  The question of liability depends on the nature of the insanity.  The effect of such a mental defect must affect a person’s ability to drive a car with ordinary care, or affect their ability to control a car in an ordinarily prudent manner. There must be also an absence of notice or forewarning this person may become suddenly subject to insanity or mental illness.


The policy basis of holding a permanently insane person liable for their tort is:

(1) where 1 of the 2 innocent persons must suffer a loss it should be borne by the one who occasioned it

(2) to induce those interested in the estate of this insane person (if they have one) to restrain them and control them

(3) the fear and insanity defense would lead to false claims of insanity to avoid liability


The court turned to what most other courts deal with —  pre-existing insanity of a permanent nature.  This was not dealt with by either party in trial court.  To answer the jury question, based on the surrounding circumstances, it was found to be plausible to leave the mental instability to be determined by the jury.


Significance: Sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting, should be treated alike and not under the general rule of insanity (no ruling on comparative or contributory negligence in this case).









Case Brief:

Style (name of case): Heath v. Swift Wings (1979)


Cause of action:  The following is a cause of action for negligence resulting from a plane crash which killed a family and friend were aboard.


Parties:  Heath is the estate of the son and wife which is suing the estate of the pilot of the plane (her husband) and the owner of the plane, Swift Wings.


Procedural Facts (what happened in court): Father and pilot was found not negligent in operation of the plane.  Case appealed b/c plaintiff didn’t want the jury instructed in a certain way.


Substantive Facts (how’d they get to court): All follows from testimony of Mrs. Smathers-Curry, the wife of the dead friend who rode along.  Pilot was loading and reloading the luggage on the plane to get more balance.  Pilot (father) also walked around the plane, for what the wife thought, was to check the tires.  The engine started fine, according to testimony, recalling no knocks or pings.  The plane did not officially take off until nearly reaching the end of the runway.  The plane then gained a small amount of altitude before leveling off and eventually falling.


Testimony from Bill Gough, a free-lance mechanical engineer, testified as well.  He said the plane should have used “wing flaps” in order to aid the take-off, and that also the pilot/husband should have tried to land the plane in the nearby cornfield if he were reasonably prudent and was experiencing mechanical difficulties.  All this would have ensured the survival of the parties.


Issue(s): Should a pilot’s estate and a plane owner be responsible for negligently causing a plane crash where seemingly everything went right according to testimony of an observing party, but where an expert says otherwise?


Judge’s ruling:  For prejudicial errors in the jury instruction, the case will be tried again.


Court’s Rationale/Reasoning: Courts have past recognized a person who engages in a particular skill must exercise with requisite degree of learning, skill, and ability of this skill with reasonable and ordinary care.  The person who operates a machine with a greater standard of care (ie: a plane), should also be held to a higher standard of care. In the case of Mr. Heath, his jury instruction was biased, in that it told the jury to consider a pilot with the experience of Fred Heath, as opposed to the standard for all pilots.  The instructions should have only been for the objective minimum standard of care to all pilots.


Significance: The standard of care for those who handle a higher level of care and responsibility in operating a machine should be held to that standard as a benchmark.










Case Brief:

Style (name of case): Hodges v. Carter (1954)


Cause of action:  The following is a cause of action to recover compensation for losses resulting from the alleged negligence of defendant, now dead, in prosecuting on behalf of plaintiff, certain actions on fire insurance policies.


Parties:  Carter and Topping, the deceased defendants, were at the time attorneys practicing in plaintiff’s town.  Plaintiff seeks to recover damages from an improperly executed suit.


Procedural Facts (what happened in court): Trial court ruled in favor of the defendant.


Substantive Facts (how’d they get to court): Plaintiff had 4 fire insurance policies, and each of them rejected his claims upon damage claim from a fire.  Defendants were hired to make sure these companies paid.  They filed 4 motions for action and sent them through to the State Insurance Commissioner’s Office.  Those 4 companies argued the commissioner was not allowed to accept service by the mail, and according to the law (which was ruled to be true), should have been personally served with the service. Defendants claimed good faith in observing the rules, just bad language in the rule which threw out their client’s claim.


Issue(s): Should a lawyer be held negligent for acting in good faith, but nonetheless in error, when he mistook a point of law which was never settled by the highest court?


Judge’s ruling:   Trial court’s ruling is affirmed.


Court’s Rationale/Reasoning: It is true a lawyer should be held to a standard of care in relation to their profession.  This is so long as they possess the requisite degree of skill, learning and ability to practice their profession; that they exert to the best of their abilities as other lawyers would; and they exercise reasonable and ordinary care and diligence in the use of this skill and in the application of knowledge to his client’s cause.


The plaintiff here failed to show the defendants acted negligently in their failure to deliver a settlement for the plaintiff.  Their good faith in the rule, coupled with their ordinary care, diligence and skill used in trying to take care of the matter negates any possibility of negligence on their parts.


Significance: No. A lawyer shouldn’t be held negligent when they act in good faith to deliver papers by the mails when the murky language of the law does not mention its wrongfulness in such action.  Professionals are not expected to know everything, just what an ordinary member of the profession does.










Case Brief:

Style (name of case): Boyce v. Brown (1938)


Cause of action:  The following is a cause of action for alleged malpractice on the part of the defendant.


Parties:  Boyce is the party who the alleged negligence occurred towards.  Brown is the medical professional who treated Boyce.


Procedural Facts (what happened in court): Trial jury gave an instructed verdict in favor of the defendant, on the basis there was no testimony or evidence he was guilty of incompetence, or malpractice.


Substantive Facts (how’d they get to court):


Issue(s): What was the medical treatment given to Boyce by Brown, and what was the medical standard required to conform to at the time of the injury, or was Brown negligent in his care of Boyce?


Judge’s ruling:   Judgment of Superior Court affirmed.


Court’s Rationale/Reasoning: The court outlined the six issues needed to be addressed by a potential plaintiff in a claim for negligence:

(1) license to practice medicine which is presumed to be to the degree of any learned member of this practice

(2) must do something their standard forbids before any claim can be made

(3) must be affirmative evidence of malpractice, and no speculation of it

(4) negligence must not be presumed, but affirmatively proven; not b/c a person died or became severely ill or injured is there negligence

(5) deviation on part of the doctor in relation to the standard of medical care in his community must be established by an expert

(6) different medical treatment recommended by experts must also show doctor’s original treatment deviated from standard of care of the community


Based on the criterion eluded to, the court found no evidence of negligence on the part of Brown.  There was a standard examination of the ankle previous to the original surgery.  Dr. Kent’s testimony also indicates there was no deviation from the standard of care from the community.  The method of uniting the ankle bone was also testified to as a standard procedure.


The whole brunt of plaintiff’s case rested primarily on the fact Brown failed to take an immediate x-ray of Boyce’s ankle. The court found this not to be representative of a lack of standard and ordinary care, as the Dr. Kent testified to.


Significance: The deviation of a doctor from the standard of ordinary care must be proven based on the preponderance of the evidence based on 6 elements, but most primarily if the doctor deviated from the commonly accepted ordinary standard of care for his community.










Case Brief:

Style (name of case): Morrison v. MacNamara (1979)


Cause of action:  The following is a cause of action for


Parties:  Morrison is the injured party as a result of a test/procedure performed in defendant MacNamara’s office.


Procedural Facts (what happened in court): Trial court refused to allow testimony from an expert from Michigan, who claimed the procedure should be done sitting down.  Trial court rejected this on basis the expert testimony should be from the same jurisdiction, not nation.  The trial court then ruled in favor of the appellees.


Substantive Facts (how’d they get to court): Plaintiff/appellant was being administered a test on his urethra in a nationally certified lab.  He fainted and upon falling back, hit his head on a metallic blood pressure stand in the office and on the floor, which caused him to have permanent loss of taste and smell.  Patient was standing at the time the test was given.  Plaintiff claims the test was administered incorrectly; plaintiff’s defense is the test was proper in character and procedure.


Issue(s): May expert testimony not in the same district be allowed to testify in order to establish a standard of care for a medical professional?


Judge’s ruling:  Court vacates judgment in favor of appellees and orders a new trial.


Court’s Rationale/Reasoning: The reasonable standard of care for communities (locality rule) might be a bit outdated here.  The standard of care for medical practice has been standardized throughout the years nationally.  Therefore, testimony from an expert somewhere else, but certified in the ordinary standard of care as his colleague has should be allowed to testify.  If Morrison took the test at a nationally certified lab as he did, the lab should fall under the ordinary standard of care under the national standard.  The Court of Appeals thought there was an improper jury instruction as to the kind of testimony which should have been used as opposed to balancing both sets of testimony in deliberation, which is what they should have done.


Significance: Held: at least to board certified physicians, hospitals, medical laboratories, and other health care providers, the standard of care should be measured by the national standard (this rule supercedes now the previous cases of community standards as the standard).










Case Brief:

Style (name of case): Scott v. Bradford (1979)


Cause of action:  The following is a cause of action for medical malpractice (negligence).


Parties:  Mrs. Scott is the plaintiff and patient of the defendant surgeon.


Procedural Facts (what happened in court): Judgment in favor of defendant in trial court, but plaintiff objected jury instructions.


Substantive Facts (how’d they get to court): Plaintiff was referred to defendant for a condition of tumors on her uterus.  Surgeon admitted Scott in the hospital where she signed a consent form and surgery proceeded for hysterectomy. Following surgery, Scott experienced problems with incontinence, to which she visited another physician who said she had a hole in her bladder which caused urine to spill into her vagina.  After three more corrective procedures through a urologist, plaintiff was all fixed up.


Plaintiff Scott claims she was never advised of the risks involved with the surgical procedure, and further attests she would’ve never went through with the surgery had she known the potential risk.


Issue(s):  Does the state of Oklahoma adhere to the doctrine of informed consent as the basis of an action for medical malpractice, and if so, were directions to jury adequate.


Judge’s ruling:   Court affirmed decision in favor of defendant.


Court’s Rationale/Reasoning: With no consent and treatment, there is a battery.  When there has been consent, it must be further investigated as to how much information the patient received as to the risks, treatment and alternatives regarding the procedure.  A lack of such information results in negligence, no matter the duty of care exercised by the physician.


A previous court suggested a doctor should not only suggest what they’re going to do, but whether they should do it or not.  True consent, as held in past courts, is the informed exercise of a choice (Canterbury).  However, when non-disclosure of a particular risk is open to debate, the issue is for the finder of facts (judge).  Such risks already known by the patient or risks which are common knowledge.  The burden is solely on the patient to show this cause of action as well.  There are 3 elements to lack of consent in a cause of action:


(1) duty to inform

(2) causation

(3) injury


This requires the plaintiff to show they (the patient) would have chosen no treatment or a different course of treatment had the alternatives and material risks be known to them (connection between plaintiff’s breach/duty to disclose material risks would have resulted in plaintiff not wanting to proceed with surgery).  Under this court, a new 3-point system was adopted to determine if consent was informed:


a) defendant physician failed to inform him adequately of a material risk before securing his consent to the proposed treatment

b) if he had been informed of the risks they would not have consented to the treatment

c) the adverse consequences that weren’t made known  did in fact occur and they were injured as a direct result of submitting to the treatment


The instructions to the jury were broad, but were applicable here.


Significance: Informed consent defined: consent to medical treatment, to be effective, should stem from an understanding decision based on adequate information about the treatment, the available alternatives, and the collateral risks.











Case Brief:

Style (name of case): Osborne v.McMasters (1889)


Cause of action:  The following is a cause of action for negligence resulting from the use of poison sold without a label by defendant’s clerk in the course of his employment.


Parties:  Osborne the administrator is suing the defendant employee of drug store.


Procedural Facts (what happened in court): Judgment for plaintiff, defendant appeals.


Substantive Facts (how’d they get to court): Defendant sold poison to plaintiff’s intestate without labeling the bottle “poison”.  Person died as a result.


Issue(s): Was it the professional duty for a drug store employee to properly label a bottle “poison”, or does a drug store employee’s duty fall solely under the reasonable person standard?


Judge’s ruling:   The Supreme Court of Minnesota affirmed the decision of the lower court.


Court’s Rationale/Reasoning: It was ruled a matter a duty for an employee of a drug store to take due care in making sure a bottle was labeled properly.  If a person is trained in a certain manner to be proficient in a particular skill, that is the minimum standard to which they are to be held.  A failure to such a minimal duty represents a breach of that duty, and a person guilty of such an action is negligent.  Drug store employee was trained and had the reasonable duty to know to properly label a bottle as “poison” if it was indeed poison.  Therefore, McMasters is liable for negligence is the death of Osborne.


Significance: The significance is once you are trained and certified or expert at a specific skill, you are held to that minimum standard.










Case Brief:

Style (name of case): Stachniewicz v. Mar-Can Corp. (1971)


Cause of action:  The following is a cause of action for a recovery of damages as a result of a bar room brawl, caused by the alleged negligence of feeding already drunk patrons more alcohol.


Parties:  Stachniewicz was the third party injured as a direct result of a bar room brawl between two other parties at defendant’s bar.


Procedural Facts (what happened in court): Trial court found in favor of the defendants, seeing no violation of the statute or that the regulation itself did not constitute negligence as a rule.


Substantive Facts (how’d they get to court): At a bar, third party injured as a result of a fight to which he was a bystander at an adjacent table to a group of native Americans at a booth.  Booth guy wanted to dance with a table patron’s wife b/c he was drunk.  Words exchanged between parties, to which bartender warned table folks to not start trouble with them.  Soon after, booth guys approached table and fight ensued.  Once the parties heard cop sirens, everyone ran, except for plaintiff who was knocked to the ground.


Plaintiff seeks damages for retrograde amnesia, remembering nothing of the events of the evening in question.  Customers in booth were drinking at bar for 2 1/2 hours previous to the fight in the bar.  Defendant claims the Oregon statute which is being brought up in court suggests nothing in the way of negligence on part of bar for refusing to serve the booth patrons.


Issue(s): Is it negligent for a bartender to continue serving drinks to customers who tend to get rowdy, despite regulatory law which stipulates against such behavior?


Judge’s ruling:   Judgment reversed, case remanded to new trial.


Court’s Rationale/Reasoning: The court found the regulation in question is what should be gleaned from in order to determine fault, if any, for the injuries inflicted by plaintiff.  It is difficult to say a third party is directly correlated with another party’s drinking, but there was regulatory law the court pointed to which possibly suggested a barkeep was responsible to prevent behavior by not feeding more alcohol to clients already well-intoxicated.


Since it was found the plaintiff fell into the category of people who should be protected by the regulation, he is entitled to civil damages as a result.  Plaintiff did not start the fight, although he was present, but was just an innocent bystander who happened to be at the wrong place at the wrong time.


Significance: When a regulation holds a party to refrain from a certain action, and such action is not refrained by the party who is to refrain, they are held negligently liable in the event injuries or harm occur to third parties damaged by the failure to act according to the regulation.









A. Effect of Statute


Case Brief:

Style (name of case): Martin v. Herzog (1920)


Cause of action: The following is a cause of action for damages for injuries resulting in a death (negligence).


Parties:  Plaintiff is the wife and the dead husband’s estate; the defendant is the party who drove the car in the opposite direction.


Procedural Facts (what happened in court): Trial jury found defendant responsible for the accident, and the victim blameless.  Appellate Division reversed, and ordered a new trial.


Substantive Facts (how’d they get to court): Plaintiff and her husband were driving in a buggy on 9/21/15, when they were struck by the defendant’s automobile, which was coming in he opposite direction.  Both were thrown to the ground and the man was killed.


The road on which the collision occurred makes a curve at the point of the accident.  The car was rounding this curve when it struck the buggy, “emerging from the gloom.” There is no evidence defendant was moving at an excessive speed.  There is also a charge against the intestate (no legal will made) of the husband, who was driving without lights at the time of the accident.  There is also no evidence of any defect in the plaintiff’s car.


The sole issue of the case deals with defendant’s driving.


Issue(s): Was a driver’s driving around a curve the sole cause of death of the plaintiff’s intestate, or were there other factors which contributed to his death?  Who should negligence be held against?


Judge’s ruling:   Appellate Division’s ruling affirmed, with judgment directed in favor of the defendant, along with court costs.


Court’s Rationale/Reasoning: Simply, the unexcused omission to drive without lights on directs sole blame on the plaintiff’s intestate.  Lights are intended for guidance, safety and are regulated to use in night driving.  Such an action might have “preserved life and limb.”


The jury in the trial court was allowed to treat the absence of using lights as either innocent or culpable.  The same policy would, in effect, allow safety devices in all aspects to not be used in situations where they are dictated to be used.  There is a duty one driver owes another at night, and not putting lights on was unexcused.


There must be a causal connection from the driving of the defendant to the plaintiff’s intestate’s death resulting from the accident.  Since there was no other evidence offered by the prosecution besides the omission of lights on the part of the plaintiff’s intestate, there must be only negligence on the decedent’s part.


Significance: The significance is there must be a causal connection between a negligent person and the actual cause of action involved in the suit for there to be a sufficient claim for negligence.



Case Brief:

Style (name of case): Zeni v. Anderson (1976)


Cause of action: The following is a cause of action for damages as a result of alleged negligent driving on the part of the defendant.


Parties:  Zeni is the plaintiff and injured party from accident; Anderson was the driver of the car which hit Zeni.


Procedural Facts (what happened in court): Trial court ruled in favor of defendant.  On appeal, reversed for plaintiff.


Substantive Facts (how’d they get to court):  Plaintiff took snowpath to work over the sidewalk with back to oncoming traffic.  Defendant driving within speed limit, used the defroster, and scraped her windshield.  Eyewitness testimony: defendant’s windshield clouded, defendant’s car too close to the curb and saw plaintiff would be hit.


Defendant’s car struck plaintiff on the right side, plaintiff flipped over fender and hood.  Witness tried to help plaintiff after accident.  Plaintiff suffered retrograde amnesia resulting from intra-cerebral subdural hematoma.  Plaintiff could only work on part-time basis.


Trial testimony:  common for nurses to use roadway to Health Center plaintiff was headed to.  Security officer said it was safer as well.  Plaintiff also was hurt on the sidewalk several days before.


Issue(s): May the defendant interpose a counterclaim of contributory negligence resulting from plaintiff’s use of a snowpath over a sidewalk to get to work, or does the accident itself provide a claim of negligence of defendant.


Judge’s ruling:   Appellate ruling affirmed, with costs for plaintiff.


Court’s Rationale/Reasoning:  The court found applicable case law in which this issue has come up.  In some circumstances, a “sudden emergency” should be positively unequivocal, strong and credible to interpose a claim of negligence.  There needs to be a sufficient excuse or justification in order to not have violated the statute in terms of the plaintiff.


Liability without fault is not true negligence.  Because these are criminal statutes, they are difficult in the eyes of the court to transfer them into a civil arena. However, there are the standard court methods in which a statute can be determined negligence per se or not.  This might be too strict.  If defendant is liable despite due care, there is strict liability.  Thus, this rule:


When the court adopts a penal statute as the standar of care in an action for negligence, violation of the statute establishes a prima facie case for negligence, with the determination to be made by a judge whether the party accused of violating the statute had an legally sufficient excuse.  If the judge determines there to be a sufficient excuse, the appropriate standard of care than becomes that established by common law.  Excuses are determined by the Restatement and by individual case circumstances.


In the current case, and since the question of whether the snowpath was appropriate to use over the sidewalk, the Supreme Court of Michigan ruled there was a proper instruction to the jury.  Thus, the statute provided not only the legislative standard of care for the court, but a legislatively mandated excuse for the plaintiff as well.


Significance: Excuse to be determined by the finder of fact through the statute, unless the defendant can interpose the claim through the same statute.


B. Proof of Negligence


Case Brief:

Style (name of case): Goddard v. Boston & Maine R.R. Co. (1901)


Cause of action: The following is a cause of action for personal injuries after slipping on a banana peel at defendant’s railway station.


Parties:  Goddard is the party who slipped on the peel, and the defendant is the railway station at which the injury occurred.


Procedural Facts (what happened in court): Verdict for defendant and plaintiff appeals.


Substantive Facts (how’d they get to court): Plaintiff was passenger at train station, and, after just arriving, was just about the length of the car, and slipped on the peel.  There were many passengers on the train that day on the platform.


Issue(s):  Was it within a train station’s duty to be responsible for a banana peel on its grounds in which a person slipped and fell?


Judge’s ruling:   Exceptions overruled, and affirmed for defendant.


Court’s Rationale/Reasoning: There are several different scenarios which could have caused the banana peel to be dropped on the train platform.  Within these parameters, there is no need to go further with an explanation.


Significance: If there are alternate scenarios to determining the possible means to which an action occurred, there is no cause of action(?).














Case Brief:

Style (name of case): Anjou v. Boston Elevated Railway Co. (1911)


Cause of action: The following is a cause of action for negligence.


Parties:  Plaintiff was passenger on one of defendant’s cars.


Procedural Facts (what happened in court): Original verdict directed for defendant, and was appealed.


Substantive Facts (how’d they get to court): Plaintiff was asking for directions from an employee of defendant’s company, and was following down a narrow platform when she slipped on a banana peel and fell.  Platform was described by other customers as, “dry, gritty…and trampled on a great deal.  It was one of the duties of the employees to check for refuse and remove it.


Issue(s): Was it the duty of the defendant to clear the train platforms and walkways of refuse and does such a duty, when resulting in injury to a customer, constitute negligence?


Judge’s ruling:   Judgment for plaintiff, with costs of $1250 awarded.


Court’s Rationale/Reasoning: The place where the banana peel was at the time of the accident suggests it could have been on the train platform for quite some time, and therefore could have been removed.  There was standard of care of a reasonable train worker to remove the banana peel in such circumstances, and a slip and fall as a result is such a result where a standard has fallen beneath.


Significance: N/A.














Case Brief:

Style (name of case): Joye v. Great Atlantic & Pacific Tea Co. (1968)


Cause of action: The following is a cause of action for damages as a result of a slip and fall; actual charge is negligence.


Parties:  Willard Joye slipped and fell in defendant’s establishment.


Procedural Facts (what happened in court): Trial jury ruled in favor of the plaintiff and awarded damages in the amount of $10K..


Substantive Facts (how’d they get to court): Plaintiff slipped and fell in defendant’s A&P Supermarket.


Issue(s): Was there sufficient notice of a banana being on the floor to sustain a claim of negligence on the part of defendants?


Judge’s ruling:   Reversed, notwithstanding verdict.


Court’s Rationale/Reasoning: On the whole, the court couldn’t find what they called, “constructive notice to defendant of a dangerous condition.”  There was no evidence of (1) A&P put the banana on the floor and (2) had actual notice of its presence.  Plaintiff offered no direct evidence of how long the banana was on the floor before the accident, besides showing the floor itself might not have been swept for 35 minutes.  The banana was dark brown and sticky, with dirt around it, and the jury couldn’t tell if the banana had been on the floor for “30 seconds or 3 days.”


Significance: There must be proof of an object on the ground for a while in order to sustain a negligence cause for a person who slips and falls on said object.



Case Brief:

Style (name of case): Jasko v. F.W. Woolworth Co. (1972)


Cause of action: The following is a cause of action for


Parties:  Jasko, the plaintiff, slipped and fell in defendant’s store.


Procedural Facts (what happened in court):


Substantive Facts (how’d they get to court):  Plaintiff was injured when she slipped on a  piece of pizza on the store’s terrazzo floor near the “pizza-hoagie” counter in defendant’s store.  Customers regularly stood and ate.  Defendant did not show the plaintiff dropped the pizza herself or by one of her employees, or that the defendant knew of its presence.  Plaintiff contends it was the manner in which the pizza was sold which created an unavoidable situation where someone could get hurt.


Issue(s):  Was there sufficient notice for defendant store to clean up a slice of pizza on the ground which plaintiff slipped and fell? (notice of specific condition)


Judge’s ruling:   Ruling of the Court of Appeals in reversed and remanded to trial court for new trial.


Court’s Rationale/Reasoning: Dangerous condition was created by the store, but the court found the store did recognize the danger.  By selling the food with wax paper underneath, there were adequate precautions taken to help prevent a dangerous condition.  In such a situation, notice of the particular item need not be shown on the defendant’s part.


Basic notice requirement comes from the notion a dangerous condition, when it occurs, is somewhat out of the ordinary.  In such a situation, the storekeeper is allowed a reasonable time, under the circumstances, to discover and correct the condition, unless it is the direct result of the store’s acts.  Yet when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, there is no logical basis for the requirement anymore.  At that point, actual or constructive notice of specific condition need not be proved.


Since the wax paper provided a situation where food could be spilled, any food on the floor would not be out of the ordinary.


Significance: The significance is one needs to help prevent the possibility of continuous accidents in order to qualify under the basic notice requirement.  Then notice requirement falls under situations which are out of the ordinary.


C. Res Ipsa Loquitur


Case Brief:

Style (name of case): Byrne v. Boadle (1863)


Cause of action: The following is a cause of action for negligence.


Parties:  Byrne was a guy walking down the street who got hit by the flour defendant threw from a window.


Procedural Facts (what happened in court): Plaintiff ruled not to have enough information, and plaintiff appealed.


Substantive Facts (how’d they get to court): Plaintiff was walking down the street and a barrel of flour fell on him from the window above.  There was no other evidence.


Issue(s): Without any proof, other than the accident happening, may a plaintiff have a prima facie case of negligence?


Judge’s ruling:   Affirmed.


Court’s Rationale/Reasoning: There was sufficient proof the instrument which caused the accident (flour) caused the accident.  Defendant was the supervisor of the lowering of this flour to the ground, and it was his responsibility.


Significance: Res ipsa loquitour is the condition when the mere event of something happening shows negligence.

(“the thing speaks for itself”)




Case Brief:

Style (name of case): McDougald v. Perry (1998)


Cause of action: The following is a cause of action for personal injuries as a result of negligence.


Parties:  McDougal was the injured party, and Perry was the driver of a truck where the tire fell out and crashed into plaintiff’s car.


Procedural Facts (what happened in court): Jury ruled a verdict in the plaintiff’s favor on instruction of res ipsa loquitor.  On appeal, court reversed and instructed jury to render verdict in respondent’s favor.  Said no res ipsa loquitor.


Substantive Facts (how’d they get to court): Plaintiff was driving behind defendant’s tractor-trailer.  As defendant drove over some railroad tracks, his spare tire (130 lbs.) came out of its angled cradle underneath the trailer, and came at plaintiff’s car, crushing his windshield.


The tire was also secured by a four to six foot long chain with one-inch links, which was wrapped around the tire.  Defendant testified he believed the chain was the same one which came with the truck in 1969.  The chain was also supposed to be attached by a latch by design, but was being held in by a nut and bolt.


Issue(s): Is plaintiff required to prove negligence beyond the facts of the accident and a display of damages?


Judge’s ruling:   Quashed the decision of below and remanded for a new trial, with directions the district court reinstate the trial court’s judgment as to respondent’s liability based upon the jury’s verdict and for further proceedings consistent with the district court’s decision on issues related to damages.


Court’s Rationale/Reasoning: Since tires falling out of their cradle isn’t something which happens all the time, it was ruled there should be no notice on the fact of the defendant.  It was further ruled, res ipsa loquitor described the result of the accident, and thus a negligence cause is supported by plaintiff.


Significance: No, under RIL the only thing needed to prove negligence is the accident itself.


1. Type of event – is it generally common?

2. Basis of conclusion – is this common to the community?



Case Brief:

Style (name of case): Ybarra v. Spangard (1944)


Cause of action: The following is a cause of action for damages as a result of improper treatment by physicians and nurses.


Parties:  Ybarra was the patient, Spagnard was the doctor performing the procedure.


Procedural Facts (what happened in court): From a judgment of non-suit (failure to prove a case), plaintiff appealed.


Substantive Facts (how’d they get to court): Plaintiff went into the hospital for an appendectomy.  When it came time for surgery, he was anesthesized and placed on what felt like to hard objects just below his neck.. Upon waking up from the surgery, plaintiff felt a pain in his right arm or shoulder, which got worse despite treatment, and turned out to be paralysis and atrophy.  Plaintiff was able to correct the problem somewhat with help of same doctors.


Plaintiff claims the post-surgery events themselves present a claim for negligence.  Defendants counterclaim any number of factors could have caused the injury, but it was not their fault.


Issue(s): Is an arm injury resulting from an appendectomy sufficient evidence to provide a prima facie case for negligence?


Judge’s ruling:   Reversed.


Court’s Rationale/Reasoning: First of all, plaintiff put his hands in the doctors, nurses and staff of defendant hospital for his procedure, and it was their duty to care for him.  They breached such a duty in the events following his procedure.


The fact plaintiff’s trip to the hospital for an appendectomy resulted in treatment for atrophy and paralysis in his right arm proved unusual by traditional and community standards, eliminating the notice requirement (if there was one).  The mere idea of such an injury resulting from such a procedure proves res ipsa loquitor, that the event speaks for itself.  The injury was not anywhere near where plaintiff was to be operated upon, unless there was negligence.


Significance: The significance is all persons in exclusive charge of caring for a defendant are liable for any unnecessary injuries which occur during that time.



Case Brief:

Style (name of case): Sullivan v. Crabtree (1953)


Cause of action: The following is a cause of action for damages resulting from the death of plaintiff’s son, who died as a passenger in a truck which went off the road.


Parties:  Sullivan is the party suing for the dead adult son, and Crabtree was the party driving the truck.


Procedural Facts (what happened in court): Trial verdict and judgment in driver’s favor.  Plaintiff appeals.


Substantive Facts (how’d they get to court): Sullivan, a guest in defendant’s truck, died as a result of injuries stemming from an incident where the truck went down an embankment and overturned.  Said road they were driving on was a paved first-class Federal-state highway, but coming down the mountain it had a lot of sharp turns and moderate grades.  Weather was dry and clear.  On approach of a curve, another truck passed Crabtree and that’s when his truck swerved off the road and down the embankment.


Defendant testified there was some loose gravel on the road, and that the pavement was broken a little on the right-hand side.    Plaintiff claims defendant owed a duty of care for the safety of his guest, and wanted to use res ipsa loquitor in light of this alleged breach of duty.


Issue(s): Was there, by the stating of the facts alone, enough evidence to make a prima facie case of negligence, or is more evidence required?


Judge’s ruling:   Assignments of error overruled and circuit court’s verdict affirmed.


Court’s Rationale/Reasoning: Just because the facts of the case describe the possibility of a res ipsa loquitor case of action, the jury may not be forced to render a verdict against defendant.  There still might be a shift of the burden to the defendant to prove there wasn’t simply negligence by the facts, that there were other factors which could have caused such an event to occur.


Such “reasonable evidence” depends on the particular facts of each case.  Here, the loss of control of the truck may have been due to the driver’s negligence, but there were other factors out there which were proven by a preponderance of the evidence the plaintiff’s son’s death might not have been from mere negligence on the defendant’s part.  At that point, the jury had the option of deciding which result they saw fit, and they chose no negligence.


Significance: The significance is res ipsa loquitor only infers negligence which the jury may draw or not as their judgment dictates.  It may also raise a presumption of negligence which requires the jury to find negligence if defendant does not produce evidence sufficient to rebut the presumption.  It may also shift the ultimate burden of proof to the defendant to show by a preponderance of the evidence the injury was not caused by their negligence.


V. Causation in Fact

A. More proof of causation

1. Sine qua non

Topic Notes:

Sine qua non: without which not; an indispensable requisite or condition




Case Brief:

Style (name of case): Perkins v. Texas & New Orleans Ry. Co. (1962)


Cause of action:  The following is a cause of action for damages for the death of her husband in collision of an automobile in which he was riding, with a train of the defendant’s railroad.


Parties:  Perkins the man who died in the accident, and the defendant R.R. Company, whose train was involved in the accident.


Procedural Facts (what happened in court): District Court awarded damages for plaintiff.  Court of Appeal affirmed.


Substantive Facts (how’d they get to court): Accident happened at 6:02 AM, just after daylight.  The train in the accident had 113 cars on it pulled by diesel engines. Plaintiff’s Dodge also had a guest passenger. A “house track” paralleled the main track to the north to serve the warehouse.  To the west of where the car was driving, a warehouse of 500 feet long “obstructed” the view of an automobile to the west of an automobile driver approaching the RR crossing form the north on Eddy Street.  This same house blocked the view of the train people approaching the crossing from the west.  The conductor and brakeman were familiar with the route and the house.


To warn the public when a train is coming, a signal was installed.  Signal had a red light and a ball.  Engineer, brakeman and fireman at forward engine of the train. Engineer on right of south side, unable to observe automobile approaching from the left of the engine.  When the train was at about 60 feet away, the train emerged from the house according to the fireman.  The brakeman estimated 30 or 40 feet away.  Both crewman shouted a warning to engineer who applied emergency brakes.


The train struck the car and traveled with an estimated 1250 feet…both car occupants were killed.  Speed of car when it was hit was estimated from 3-4 MPH to 20-25 MPH.


Plaintiff and defendant RR concede the car’s driver was negligent in driving his car upon the tracks, and this negligence was a proximate cause in the death of himself and passenger.


Issue(s): Was the violation of trainmen of the RR’s own speed regulations adopted in the interest of safety evidence of negligence?  Was this excessive speed of the train a cause in fact of the fatal collision?


Judge’s ruling:   Reversed, with costs to the plaintiff.


Court’s Rationale/Reasoning: Negligence is not actionable unless it is a cause in fact of the harm for which recovery is sought, but it doesn’t need to be the sole cause. Negligence is a cause in fact of the harm to another if it was a substantial factor in the bringing about of the collision if the collision would not have occurred without it.  If the collision would have occurred irrespective of such negligence, then it was not a substantial factor.


The factors are as follows: the speed of the train vs. the speed of the automobile.  The train was going at 37 MPH at time of said accident, but even if going at a regulated safe speed of 25 MPH, the car still would’ve been carried at the time of impact.  The car is now the question: would it have cleared the area and not gotten hit if the train was traveling at its mandated speed?


The court determined the speed of the car was very difficult to determine, based on testimony.  There was no reasonable inference of causation under the theory of the plaintiff.  With no evidence to support such a cause, there was a failure to discharge the burden of proving the defendant was cause in fact of the death of the defendant.


Significance: Negligence is not actionable unless it is a cause in fact of the harm for which recovery is sought, but it doesn’t need to be the sole cause.  Negligence is a cause in fact of the harm to another if it was a substantial factor in the bringing about of the action in question, if the action in question would not have occurred without it.


Sine qua non: without which not; an indispensable requisite or condition






A. Proof of causation


Case Brief:

Style (name of case): Herskovits v. Group Health Cooperative of Puget Sound (1983)


Cause of action:  The following is a cause of action for damages resulting from the death of plaintiff.


Parties:  Herskovits is the estate of the decedent.  Group Health is the party who took care of decedent.


Procedural Facts (what happened in court): The following is an appeal from the trial court’s motion to grant defendant’s motion for summary judgment.


Substantive Facts (how’d they get to court): Both counsel advised for the purposes of the appeal, we are to assume the respondent Group Health and Dr. Spencer negligently failed to diagnose plaintiff’s lung cancer on his first visit to the hospital and proximately caused a 14% reduction in his chances for survival.  Herskovits came in with a 50-50 shot to begin with.


Wife took her husband to the hospital for chest pains, and was treated negligently there.  She then took him to private physician, where he died.


Main medical witness testified if the hospital had used proper treatment, decedent would’ve had a 75% chance of recovery, and that the death was b/c of the hospital’s original treatment of decedent.


Issue(s): Whether an estate can maintain an action for professional negligence as a result of failure to timely diagnose lung cancer, where the estate can show probable reduction in statistical chance for survival but cannot show and/or prove that with timely diagnosis and treatment, decedent probably would have lived to normal life expectancy?


MORE SPECIFICALLY:  Does a patient with less than a 50% chance of survival have a cause/action against the hospital and its employees if they are negligent in diagnosing a lung cancer which reduces chances of survival by 14%?


Judge’s ruling:   Reverse trial court’s ruling and reinstate the cause of action.


Court’s Rationale/Reasoning: (1) duty; (2) breach; (3) causation; (4) damages.  Proof of causation requires cause in fact and proximate cause.


The court used the “but for” test in this case.  This requires proof of damages or death probably would not have occurred “but for” the negligent conduct of defendant.  In order that an actor is not completely insulated b/c of uncertainties as to the consequences of his negligent conduct, the restatement permits the issue to go to a jury on “less than a normal threshold of proof.”


Previous decision used in this court held once a plaintiff demonstrated the defendant’s acts or omissions have increased the risk of harm to another, such evidence furnishes a basis for the jury to make a determination as to whether such increased risk was in turn a substantial factor in bringing about the resultant harm.


Significance: Once percentages are brought into the jury, there is no danger of speculation on the part of the jury.


Cause in fact: the death

Proximate cause: the 50% chance minus the 14% expert said was lost due to the negligence of defendant









Case Brief:

Style (name of case): Gentry v. Douglas Hereford Ranch, Inc. (1998)


Cause of action:  The following is a cause of action for damages as a result of plaintiff’s wife’s death from gunshot wound to the head at defendant’s ranch.


Parties:  Plaintiff is widower of gunshot victim, and defendant is the gun owner, and the ranch where victim died.


Procedural Facts (what happened in court): District Court found defendants not negligent.  Appealed.


Substantive Facts (how’d they get to court): Two couples staying at a ranch.  Husband goes to get gun out of his car, and when he’s coming back into the cabin they were staying at, defendant stumbled.  The gun went off and shot other couple’s wife in the head.  She died a few weeks from the resulting injury.


Plaintiff claims the stairs caused the injury in question, while defendant ranch says shooter was not their employee and nothing they did contributed to woman’s death.


Issue(s):  Was the defendant ranch negligent for damages resulting from the death of ranch patron?


Judge’s ruling:   Negligence: (1) duty; (2) breach; (3) causation; (4) damages.


Court’s Rationale/Reasoning: For plaintiff to prove causation of defendant, there must be substantive proof either of action or of omission (causation), and proximate cause (the actual item/action causing the damage in question).  Here, the plaintiff must prove there was an act on the part of the defendant which resulted in the death of other couple’s wife, and there was a duty of defendant which was breached.


The plaintiff could not remember how or why he fell, and thus there is no breach of duty mentioned, and a proximate cause of the damage.


Significance: The significance is when a party wishes to prove causation, there must be cause in fact and proximate cause.










Case Brief:

Style (name of case): Reynolds v. Texas & Pac. Ry. Co. (1885)


Cause of action:  The following is a cause of action for damages as a result of a fall down some stairs at defendant’s store.


Parties:  Reynolds is the party who fell down the stairs of the defendant’s store.


Procedural Facts (what happened in court): Trial court (no jury) ruled in favor of plaintiff, as well as damages in the amount of $2K.


Substantive Facts (how’d they get to court): Plaintiff was a heavy-set woman of about 250 pounds.  She was coming out of the sitting room, which was claimed to be very bright, and upon leaving the room took a misstep and fell down the stairs and sustained injuries from her fall.


Plaintiff claims the lighting caused her fall.  Defendants maintain even if there was light outside (ex: broad daylight), it doesn’t change the fact she fell to begin with, and the step which caused the fall was of her doing, not the train station’s.


Issue(s): Was the station’s failure to light the stairwell or have a handrail the causes in fact of the woman’s falling down the stairs, and was the fall itself proximate to the lighting?


Judge’s ruling:   Judgment affirmed.


Court’s Rationale/Reasoning:  The court conceded the chance of falling in general could intervene in the causal chain of events.  However, when defendant’s actions greatly increase the chance of such a fall occurring, there is enough evidence to counter the causal chain.  Such action by defendant overrides any intervening act by plaintiff.


Significance: The significance is courts will usually under natural and ordinary events, consider the natural and ordinary course of events, and won’t indulge in “fanciful suppositions.”










Case Brief:

Style (name of case): Kramer Service, Inc. v. Wilkins (1939)


Cause of action:  The following is a cause of action for damages as a result of a piece of equipment striking plaintiff/appellee on the head, causing injury which was claimed to eventually lead to a cancerous diagnosis.


Parties:  Defendant/appellant is the hotel in which plaintiff/appellee hurt himself.


Procedural Facts (what happened in court): Jury verdict for plaintiff.  Defendant/appellant appeals.


Substantive Facts (how’d they get to court): Appellee was a guest in appellant’s hotel.  Upon opening the door one day, a piece of glass from a transom (window above a door) struck appellee in the head, causing injury.  Injury festered after 2 years, and after seeing a specialist, doctor identified a kind of cancer grew there, which was not yet fully treated at the time of the trial.


Appellee claims the window was responsible for the cancer.  Appellant claims the cancer or prolongation of the cancer shouldn’t have been taken into consideration by the jury, but it was anyway.


At trial, expert testimony of two doctors: one said there was a 1/100 chance of a causal link between the injury and the cancer; the other expert said there was no causal link whatsoever.  This expert went on to say if someone injured had cancer, everyone could have cancer.


Issue(s):  Should a resulting injury from a defective piece of equipment at defendant/appellant’s place of business be considered the cause in fact and proximate cause of appellee’s cancer?  If so, how far along the line of causation should damages be awarded?


Judge’s ruling:   Affirmed as to liability.  Reversed and remanded on issue of amount of damages in allowing recovery for cancer.


Court’s Rationale/Reasoning: The injury must have been caused by the negligence (the cancer must have been caused by the glass directly).  The mere possibility is not enough to sustain a verdict; there must be more of a foundation.  The  medical testimony in this case even showed there was really no chance to link cancer to the injury sustained by the piece of glass from the hotel door’s window.  The doctor’s testimony is expert, and such testimony would be the most concrete evidence as to link the injury to cancer. Since such a link was not made, there should not be a reliance of a resulting condition upon a previous injury.  Medical experts are advisory only, but they hold more weight than plaintiff’s claim in this case (medical opinion over layman).


Significance:  Post hoc ergo propter hoc:  after this, therefore, because of this (mistaken reliance upon temporal succession alone as enough to establish the presence of a causal relationship between 2 events.





Case Brief:

Style (name of case): Wilder v. Eberhart (1992)


Cause of action:  The following is a cause of action for damages as a result of after effects from stomach surgery for obesity.


Parties:  Wilder is the patient; Eberhart, the defendant, is the doctor who performed the procedure.


Procedural Facts (what happened in court): Jury verdict in favor of plaintiff, along with damages in the amount of $685K.


Substantive Facts (how’d they get to court): Plaintiff being treated for obesity, and had a stomach stapling procedure performed on her.  Post-surgery, several complications arose from tears in her lower esophagus.  Plaintiff’s expert witness testimony to the sole cause of the complications was mobilization of the esophagus during surgery. Defendant tried to put expert witnesses on the stand to try and mention the stabilization factor was one of many possibilities, but the judge would not allow them b/c their testimony was more along the lines of mere possibility and not probability.


Issue(s):  Was defense’s expert testimony properly excluded from testifying at trial?  Was there proximate cause and actual cause on part of defendant in terms of the surgery performed to the ensuing injuries, and thus negligence?


Judge’s ruling:   Judgment for plaintiff vacated and remanded.


Court’s Rationale/Reasoning: Burden remains with the plaintiff in malpractice cases.  Proximate cause between negligence and the injury must be established by expert testimony.  Defendant does not need to prove causation, merely evidence which discredits or rebuts plaintiff’s evidence.  Defendant need not prove another cause; they only have to convince the judge the injury was not the legal cause of the injury.


In proving such a case, defendant may prove there were other possibilities.  They are entitled to rebut plaintiff’s testimony, in this case in order to prove another cause. If 99/100 medical experts believed A, B, C, and D could all be possible causes of injury, and plaintiff’s witness testifies only to A, defense may rebut.  However, defense’s rebut may only be on basis of B, C, and D, not A.


Since defense was trying to show different causes, he was prejudiced against at trial, and there must be a new one.  (In this trial though, defense cannot attest to stabilization factor.)


Significance: Negligence: (1) duty; (2) breach; (3) causation; (4) damages.

The degree of certainty within proving other causes is non-existent.









B. Concurrent Causes


Case Brief:

Style (name of case): Hill v. Edmonds (1966)


Cause of action:  The following is a cause of action for negligence, and to recover damages for personal injury.


Parties:  Plaintiff was driver in passenger car which collided with defendant’s parked car.


Procedural Facts (what happened in court): Judgment in Supreme Court of NY which dismissed complaint at the close of plaintiff’s trial case.


Substantive Facts (how’d they get to court): It was a dark and stormy night.  Plaintiff was driving his car when he struck defendant’s truck from the rear.  Defendant did not have his lights on and the truck was parked in the middle of the street.  Defendant claims negligence on the part of plaintiff for failing to do anything upon seeing the car when it got to within four car lengths of the truck.


Plaintiff claimed at times she was as close as four car lengths, but at other times didn’t remember, except for waking up from her unconsciousness.


Issue(s): Which party is the negligent party when accidents occur at the same time?


Judge’s ruling:   Complaint against truck driver reinstated and new trial is to be had.


Court’s Rationale/Reasoning: The court assumes arguendo the driver of the car was negligent.  The accident itself would’ve never happened had the truck driver not parked his car in the middle of the street without his lights on.


Significance: Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result, even though their act may not have caused it.










Case Brief:

Style (name of case): Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co. (1920)


Cause of action:  The following is a cause of action for damages as a result of property lost from a fire.


Parties:  Anderson owned a house and property which was burned in a fire.  Defendants represent a company which allegedly started the other fire.


Procedural Facts (what happened in court): Plaintiff had a verdict.  Appeal is form an order denying a motion in the alternative for judgment N.O.V.


Substantive Facts (how’d they get to court):  Plaintiff had a house on land which was burned by a fire which combined another fire of unknown origin.  Plaintiff alleges defendant’s engine started the fire.  Defendant claims the fire was not of their responsibility.


Plaintiff takes exception to jury instruction:  if fire caused by material of defendant, they are liable.  If not caused by defendant, they are not liable.  If the fire which swept over the plaintiff’s land before alleged defendant’s started fire reached the property, there is no liability.  If both fires combined to make one big fire, there was liability on defendant’s part.


Issue(s): Was jury properly instructed if the first fire combined with another fire of unknown origin to burn plaintiff’s land, there was no liability on part of defendant?


Judge’s ruling:   Appeal affirmed.


Court’s Rationale/Reasoning: Yes.  The fire in question would have had to been started by defendant’s material in order for them to be liable.  If the fire combines with another fire of unknown origin, there is no liability.  If the fires in some way combine to strike a property at the same time, there is liability.  The question posed to the jury was the right one: if materials from defendant caused the fire which burned down plaintiff’s house, not did the defendant cause either of the two fires.


Significance: (1) duty; (2) breach; (3) causation; (4) damages.  In order to prove proximate cause, there must be proved cause in fact and proximate cause.









C. Problems in determining which party caused the harm


Case Brief:

Style (name of case): Summers v. Tice (1948)


Cause of action:  The following is a cause of action for for negligently shooting plaintiff while hunting.


Parties:  Tice and companion Simonson co-defendants against Summers, the injured party.


Procedural Facts (what happened in court): Judgments for plaintiff, appeals consolidated as per stipulation.


Substantive Facts (how’d they get to court): Plaintiff injured by one of two shots fired simultaneously by co-defendants who were hunting for quail.


Defendants argue they are not jointly and severally liable tortfeasors, and should not have the suit brought against them together.  They claim only one shot caused the injury, and there isn’t any evidence to show which defendant actually fired the injurious shot.


Issue(s):  May judgment against both defendants stand for negligence?


Judge’s ruling:   Judgment affirmed.


Court’s Rationale/Reasoning: (1) duty; (2) breach; (3) causation; (4) damages.

It’s been held when a group of persons are in a hunting party or engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured directly nearby, both shooters are liable for the injuries, although the negligence of only one of them could have actually caused the injury.


The burden of proof here shifts to defendants together to prove either both of them performed the act or both of them did not perform the act which caused the injury.  The burden should not, for the sake of logistics, shift to the plaintiff to have to prove which particular shot injured them, for plaintiff would be remediless.


Significance: The significance is if a court of law holds two joint simultaneous shooters separately liable, it would be like exonerating them, for there would be no way to prove an action against either one separately.


Thus, if two parties are determined to be simultaneously at fault, they may be held jointly and severally liable, so to avoid such a prosecutorial dilemma for plaintiff, and to render justice.  As far as damages go, the parties can work things out however they wish to after the parties are tried together.



Case Brief:

Style (name of case): Sindell v. Abbott Laboratories (1980)


Cause of action:  The following is a cause of action for damages as a result of a drug which produced cancerous side effects.


Parties:  Sindell is the party suing, and the adult who received the drug while in the womb.  Abbott s the company being held as majority party responsible.


Procedural Facts (what happened in court): Trial court dismissed the action.  Trial court said there should be no joint action against all marketers b/c not all parties were before the court, and there was no concert of action on their parts.


Substantive Facts (how’d they get to court): Plaintiff was not even born when her mother ingested DES (diethylstillbestrol), to prevent a miscarriage with plaintiff. Plaintiff now alleges she now has cancer  as a result.  DES is marketed by approximately 195 other companies, not joined as defendants.


Issue(s): May a plaintiff, injured as the result of a drug administered to her mother during pregnancy, who knows the type of drug but not the drug’s manufacturer, hold liable a certain drug maker for their liabilities?


Judge’s ruling:   Judgments reversed.


Court’s Rationale/Reasoning: (1) duty; (2) breach; (3) causation; (4) damages; Causation: cause in fact and proximate cause.


Besides the two theories rejected in trial court, a third, “industry-wide liability.  In such a case, several manufacturers control a risk by jointly following an industry standard with regard to everything from manufacturing to safety caps to labels, but through a trade organization.  The case which trial court referred to was of a few companies, and the trial court refused to apply this standard to a larger group effort.


The court could go in the direction of Summers and Hall, and hold all defendants involved responsible for damages.  The argument in Summers charging both co-defendants with the responsibility for one act is the way this court went.  They found the defendant, although they found an absence of causation due to the amount of time which passed from the time of the taking of the drug to the actual side-effects taking place.  This is unnecessary in this case b/c the time factor is exactly what the court is looking at.


Manufacturers are generally in the best position to held liable for their defects, after all it is their job to fix defects to begin with.  The customer is virtually remediless except for the drug manufacturer/marketer.  In this case, the plaintiff went with the marketer with the greatest share in the industry.  DES, by the numbers, represented the likeliest of all candidates to be the party who sold the drug to plaintiff’s mother.  This provides at least some causation on part of defendant, and the percentage of damages in which were awarded to plaintiff would depend on how much of the market share each marketer represented.


Significance: If all defendants jointly controlled the risk of harm, and the plaintiff could establish by a preponderance of the evidence that the product was manufactured by one defendant, the burden of proof as to causation would shift to all defendants, so long as it only applies to a small unit of producers. Where in this case there are some 200 manufacturers this doctrine does not apply.










VI. Proximate or Legal Cause


Case Brief:

Style (name of case): Atlantic Coast Line R. Co. V. Daniels (1911)


Significance: Proximate or legal cause: the wrong was a cause of the injury.  Was the wrongful act the proximate cause?


Must show antecedent to the injury a wrongful act of another person occurred, and that if this wrongful act had not occurred, the human injury would not have occurred (probability-wise).


A. Unforeseeable Consequences

RYAN V. N.Y. CENTRAL R.R. CO. (1866)

Case Brief:

Style (name of case): Ryan v. New York Central R.R. Co. (1866)


Cause of action:  The following is a cause of action for damages as a result of a house burning down, but not the original house, from a train spark.


Parties:  Ryan is the party whose home was burned down.  New York RR is the party who’s allegedly responsible for creating this massive fire.


Procedural Facts (what happened in court): Trial court nonsuited plaintiff.  Affirmed.


Substantive Facts (how’d they get to court): For either reasons of careless management or poorly maintained machinery, a spark from a train engine in Syracuse set fire to one of its woodsheds.  The fire spread to subsequent homes, including plaintiff’s.


Issue(s): Is the owner of a first building’s fire responsible for damages to other subsequent buildings from the same fire?


Judge’s ruling:   Affirmed.


Court’s Rationale/Reasoning: General rule: every person is liable for the consequences of their own acts.  They are liable for proximate results of their own acts, but not for remote damages.  The destruction of the original building was a natural result, but as for the other buildings, this was something which was out of defendant’s control (weather, heat, etc.), and thus waives this liability.


If everyone who had a neighbor do something which caused property damage to them unintentionally, there would be endless tort violations, which would be hard to judiciously control.  Such an action by this court prevents such en masse suits.


The remoteness of the damage forms the true rule on which the question should be answered, and prohibits recovery by plaintiff.


Significance: If the court held A’s fire made them responsible to everyone from B to Z, there would be an endless string of suits, in which no one could be guarded against.



Case Brief:

Style (name of case): Bartolone v. Jeckovich (1984)


Cause of action:  The following is a cause of action for physical and emotional damages resulting from an accident.


Parties:  Bartolone is the party hurt in the accident; Jeckovich was the party which hit plaintiff and caused the alleged damages.


Procedural Facts (what happened in court): Jury verdict for $500K.  Set aside on appeal.


Substantive Facts (how’d they get to court): Plaintiff involved in 4-automobile chain reaction accident in which plaintiff was treated for back and muscle strain for which he was treated with relaxants and was not hospitalized.  Subsequently, plaintiff suffered a psychotic breakdown from which he hasn’t recovered and aggravated a pre-existing condition which totally and permanently disabled him.


Plaintiff was a relatively happy guy, who had interests in art, painting and bodybuilding, but has lost all such interest since the accident.  Medical testimony at trial said the accident exacerbated a pre-existing psychotic condition which he was able to cope with pre-accident.  Defendant’s expert testified the accident had nothing to do with exacerbating the condition.


Issue(s):  Could an accident exacerbate a pre-existing condition, and may this exacerbation be brought forth in a cause of action for damages?


Judge’s ruling:   Reversed with costs.


Court’s Rationale/Reasoning: Plaintiff was a normal guy with regular interests until the accident occurred.  Plaintiff was also able to manage his pre-existing condition, but since the accident has been rendered depressed and socially withdrawn.  Precedent has shown there to be a history of finding in favor of the plaintiff in such situations where a pre-existing manageable condition was worsened by an unforeseeable act.


This case involves the same kind of situation, where a seemingly normal person with a manageable pre-existing “quiscent” psychotic illness, which was worsened by an accident. Plaintiff should not be denied remedy because of his pre-existing condition.  Such a situation must result in an award for plaintiff.

Significance: A defendant must take a plaintiff as he finds him and hence may be held liable in damages for aggravation of a preexisting illness.



Case Brief:

Style (name of case): In re Arbitration Between Polemis and Furness, Withy & Co., Ltd. (1917)


Cause of action:  The following is a cause of action for damages as a result of an explosion on a ship and subsequent sinking of ship, as well as the loss of cargo on the ship.


Parties:  Polemis & Furness was the party whose goods were on the ship and the owner of the ship; defendants are the charterers of the ship.


Procedural Facts (what happened in court): Arbitrator in court found in favor of the ship company and awarded damages from charterer to ship company.


Substantive Facts (how’d they get to court):  A ship containing benzine or petrol canisters was on a ship.  Upon its docking in Cassablanca, the crew unloaded some of the contents and a heavy plank fell into the hold where the canisters were held, and due to the fumes in the area a fire began.  Subsequent to the fire, the ship went down.


Plaintiffs trace the fire and subsequent sinking of ship and loss of goods from the actions taken by the chartering crew.  Defendants claim the fire was not of their doing; a board falling into a hold on a ship should not be an action which causes eventual damage to a ship.


Issue(s): Were the damages proximate to the fire started on the ship?


Judge’s ruling:  Arbiter’s decision affirmed.


Court’s Rationale/Reasoning: The falling plank was the direct cause of the fire.  The planks were a result of the crew trying to unload the canisters from the ship.  The crew was in the charge of the chartering company.  Thus there is a causal link.


As far as the negligence factor, it was the duty of the chartering crew to make sure the canisters got off safely.  It should be pretty obvious to the ordinary prudent person canisters of such a nature had the potential for dangerous consequences.  With such a link from the action to the nature of the canisters, there is a causal link from the unloading of the canisters to the fire and the subsequent sinking of the ship and loss of goods aboard.


Significance: The measure of damages for such a cause of action is the same as would be requested in a breach of contract suit.  If damages can be reasonably tied to the action which caused the accident, the party which brought on the accident is held responsible.  The cause was be of a natural and probable consequence of the act in question..




Case Brief:

Style (name of case): Palsgraf v. Long Island R.R. Co. (1928)


Cause of action:  The following is a cause of action for damages as a result of a minor explosion which caused a scale to fall on plaintiff.


Parties:  Plaintiff Palsgraf is the woman whom the scale fell on and caused the alleged subsequent damages; defendant railroad company is the party from whom plaintiff seeks damages.


Procedural Facts (what happened in court):  Trial court found in favor of plaintiff; defendant appeals.


Substantive Facts (how’d they get to court):  Two people were trying to get on a train, which was already on its way out of the station.  First person gets on with little trouble.  Second person, however, looks as if he was going to fall.  Defendant employees of railroad company attempt to help the gentleman get on the train, but in the process a package he was holding escapes his possession.  Package is wrapped in newspaper and does not have the look of fireworks, which is what the package turns out to be.


From the impact with the rail lines, the package exploded, and the subsequent shock from the explosion caused several scales on the other end of the platform to fall. Plaintiff struck by one of those scales and causes injury for which she sues.


Issue(s):  Was an unforeseen occurrence and subsequent injury the result of defendant’s negligent conduct when servant of railroad company attempted to help a patron on the train, and whose package caused the alleged chain of events?


Judge’s ruling:   Trial court ruling reversed with costs.


Court’s Rationale/Reasoning: Defendants never had any idea or reason to know the said package which exploded would contain fireworks.  Had there been any reason to know, there would have been a greater duty because the reasonable person under such circumstances would have an understanding of the potential harm.  When such a case is not warranted, there is generally no way to link such an innocent action to subsequent events.


If no hazard was apparent to the eye of the ordinary [actor], an act innocent and harmless, at least to outward seeming, with reference to the one harmed by the action, could not be taken to the action of a tort just because something happened to them which was wrong.  In addition, “In every instance, before negligence can be predicated of a given act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury.”


Significance: The significance is an unforeseen accident may be held in defendant’s charge if the proximate cause or legal cause may be linked to the initial negligent action of defendant.  Here, there was no negligence on the part of the defendant, who was trying to help a passenger stay aboard a train (which could have caused arguably a greater problem, should that person had fallen off), and their conduct should not be held to start a negligent-related chain of events.



Case Brief:

Style (name of case): Yun v. Ford Motor Co. (1994)


Cause of action:  The following is a cause of action for damages as a result of trying to retrieve a tire which came loose from plaintiff’s van.  The original suit was against the manufacturer, the Lindermans (who hit plaintiff), Universal, who installed the spare tire assembly, the company which changed the oil, and Castle, the dealer.  After summary judgment for defendants except Lindermans, the suit is just against Ford.


Parties:  Yun, the plaintiff is the hurt party seeking damages from several parties.  The suit is against the manufacturer, Ford.  (Yun estate settled with Lindermans)


Procedural Facts (what happened in court):  Summary judgment for defendants in trial court except for Lindermans, who settled.  Appealed summary judgment against manufacturer, Ford Motor Co.


Substantive Facts (how’d they get to court): Plaintiff was driving along the highway, when he heard a rattling noise from the back of the van.  Apparently, a spare tire cam loose and rolled through two lanes of traffic on the highway.  Plaintiff, a passenger in the van, got out to retrieve the tire from the road, and upon heading back to the car was struck by Lindermans.


The weather was rainy, the road was slick, and it was nighttime when the accident occurred.  Plaintiffs contend the resulting injuries are proximate in cause to the car’s manufacturer.


Issue(s): Was the defendant manufacturer negligent when a passenger in a car of the company’s manufacture was injured as a result of retrieving equipment which came off the car?


Judge’s ruling:   Affirmed summary judgment for defendant.


Court’s Rationale/Reasoning: For proximate cause to exist, “any cause which the natural and continuous sequence, unbroken by an efficient intervening cause, produced the result complained of and without which the result would not have occurred.”  Therefore, the court focused on whether plaintiff’s actions were extraordinary so as to break the line in causation.  If so, there is no liability on Ford.


The court found the spare tire assembly was not the proximate cause of the injury to plaintiff.  Assuming for argument’s sake the spare tire was a substantial factor in causing plaintiff’s injuries, the plaintiff’s highly extraordinary and dangerous actions (and illegal actions, making him negligent as well) crossing the highway twice with what they called “complete disregard for his own personal safety clearly constitute a superceding and intervening cause of his own injuries.


With such circumstances having taken place, it was decided by the court that the plaintiff himself caused his own injuries.  It was not even foreseeable for someone for the passenger of a car to get out and chase a tire which fell off the car in the middle of the highway after properly stopping on the side of the road (which was at least somewhat foreseeable).


Significance: Legal responsibility for the consequences of an act cannot be imposed without limit.  The events in this case transgress the judicial line beyond which liability should not be extended as a matter of fairness or policy.


Also, in cases as such, proximate cause is usually a matter for the jury, but since the circumstances were so unbelievable, the judge decided to handle this one on his own.



B. Intervening causes


Case Brief:

Style (name of case): Derdiarian v. Felix Contracting Group Corp. (1980)


Cause of action:  The following is a cause of action for damages as a result of injuries from a third party who hit plaintiff.


Parties:  Derdiarian was the injured party, and Felix was the party contracted to install an underground gas main.  Defendant is also the driver of the car which struck the plaintiff.


Procedural Facts (what happened in court):  Trial court ruled in favor of plaintiff, saying the defendant should have had 2 flagmen instead of one, as well as warning signs placed to advise motorists there was one lane of traffic ahead, as well as flagmen.


At trial, plaintiff’s theory was Felix had negligently failed to take adequate measures to insure safety of workers on the excavation site.  To support his argument, an expert of traffic safety testified.  He said it was usual and accepted behavior for contracting companies such as the defendant’s to erect a barrier around the excavation, which would protect workers from oncoming traffic.  In addition, there should have been two flagmen, and a sign according to the excavation/work being done.


Substantive Facts (how’d they get to court):  Defendant was again contracted to install an underground gas main, and had excavated a work site in the middle of the street. The defendant company had a flagman to warn motorists of the imminent change in amount of lanes from two to one.  Plaintiff was an employee of Felix, and was engaged in sealing a gas main.


Defendant driver had an epileptic seizure and lost consciousness, causing his car to careen into the work site and strike plaintiff with such force as to throw him into the air.  Gas splattered all over his face and body upon landing which was 400 degrees in temperature.  Plaintiff ignited into a fireball, but survived the accident.


Issue(s): Was the driver of the car striking plaintiff foreseeable under the circumstances, or was it so extraordinary there is no causal link, so that defendant company should not be held responsible?


Judge’s ruling:   Order of the appellate division should be affirmed with costs.


Court’s Rationale/Reasoning: An intervening act on the part of a third party may not serve as a superceding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent.  In other words, if the defendant company would have taken more adequate measures, they might have been insulted from such a cause of action, for they would have done everything reasonable to prevent such a situation from happening.


The court found it foreseeable that a driver, without such extra safeguards as were recommended by the plaintiff’s expert, could drive into the area where the plaintiff was struck and injured.  Such a barrier as suggested might have avoided such and accident and subsequent injury.


The driver hitting plaintiff was therefore not an intervening cause, and the defendant should have taken more measures to avoid such problems from happening.


Significance: Acts of a third party do not break the line of proximate causation.  If the third party’s act was extraordinary in the course of events, it was not foreseeable, and could not be held in defendant’s responsibility.  If the act was foreseen in a normal set of circumstances, liability would at least be held in part on the defendant’s part.



Case Brief:

Style (name of case): Watson v. Kentucky & Indiana Bridge & R.R. Co. (1910)


Cause of action:  The following is a cause of action for damages resulting from an explosion on a tank car to an innocent bystander.


Parties:  Watson is the injured party, and Kentucky & Indiana is the party being held responsible for the explosion and subsequent injuries to plaintiff.


Procedural Facts (what happened in court): Lower court found in favor of plaintiff (directed verdict).  Plaintiff appealed.


Substantive Facts (how’d they get to court): Through negligence of defendant railroad, a valve on a gasoline tank of a railroad car was leaking.  A man, who may or may not have said, “let’s set the damn thing on fire,” lit a match for his cigar, which resulting in the explosion which caused injuries to plaintiff.


Issue(s): Was the lighting of the match by the defendant’s employee a contributing cause to the explosion or the sole proximate cause of appellant’s injuries?


Judge’s ruling:   Judgment reversed and remanded for new trial b/c trial judge should not have taken the matter of proximate cause out of their hands.


Court’s Rationale/Reasoning: Since there was evidence to both prove wanton and reckless on the part of defendant and evidence asserting the action was a mere accident or negligent.  Since the judge and not the jury decided this, the case should be remanded.  But there should be guidelines for the lower court to follow on remand:


If the railroad company was the contributing factor of the accident, it would mean the lighting of a match was inadvertent or accidental, and there was no malice on the part of the man who lit his cigar.  If there were malice or intent on the part of the cigar smoking gentleman to indeed, “set the damn thing on fire,” then the railroad company could not be held liable for the accident.


In such cases it must be asked if a situation where leaking gas was in the air, if it could be anticipated a match would be lit in the time frame relative to the accident, and whether the match would be lit in the area of the leaking gas.  Either way, the striking match would have to be conceded to as probable under such circumstances; it is the motive of the match striker in question, and which should be decided further in the lower court.  If the striking of the match was for such malicious or reckless purposes, it would be more of an intervening and unforeseen act than if the match were struck by accident.


Significance: The mere fact that concurrent cause or intervening act was unforeseen will not relieve the defendant of guilt of the primary negligence from liability, but if the intervening agency is something so unexpected or extraordinary as that they could not or ought not to have anticipated it, they will not be liable, and a party is certainly not bound to anticipate the criminal acts of others by which damage is inflicted and hence is not liable.



Case Brief:

Style (name of case): McCoy v. American Suzuki Motor Corp. (1998)


Cause of action:  The following is a cause of action for damages as a result of injury from a rescue of company’s car.


Parties:  McCoy was the party injured in the accident; American Suzuki is the only party being considered among several which were initially sued by McCoy (the driver, the passenger, the State Highway Patrol).


Procedural Facts (what happened in court): Suzuki moved for summary judgment claiming the rescue doctrine didn’t apply to product liability actions, and that even if it did, McCoy couldn’t prove the accident was of Suzuki’s responsibility (proximate cause).  Trial court granted summary judgment for dismissal, finding that although product liability  could be the held part of the rescue doctrine, there was no proximate cause from the bike to the injuries to a rescuer.


On appeal, reversed, saying in addition to agreeing with trial court regarding product liability and rescue doctrine, that the injured rescuer need not prove proximate cause to his injuries, instead that driver proximately caused the danger and that the rescuer was injured while rescuing.


Substantive Facts (how’d they get to court): Plaintiff saw defendant’s product car swerve off the road, and stopped to render assistance.  Driver was seriously injured. Shortly thereafter, state trooper showed up and asked plaintiff to help by placing flares in the road, and even went as so far as to step out onto the road with a flare in hand and ward off traffic to the accident.


Almost two hours after the accident, injured driver and passenger were removed, scene was cleared.  Plaintiff started to walk back to his car with a lit flare in his roadside hand.  Trooper started to drive away when plaintiff was 3-4 car lengths from his car.  At that point, a hit and run driver struck plaintiff from behind on the roadway’s shoulder.


Issue(s): Under the rescue doctrine, was defendant motor company liable for injuries caused when after completing a rescuing of a driver and passenger in an automobile, he was struck and received subsequent injuries from a hit-and-run driver?


Judge’s ruling:   Court does not find Suzuki as remote from liability so as not to be completely held not liable for lack of causation.  Judgment to remand for trial consistent with this opinion.


Court’s Rationale/Reasoning: Rescue Doctrine — To achieve rescuer status one must demonstrate:

(1) the defendant was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued

(2) the peril of appearance of peril was imminent

(3) a reasonably prudent person would have concluded such peril or appearance of peril existed

(4) the rescuer acted with reasonable care in effectuating the rescue

(court agreed with lower courts’ findings; Suzuki did not object)


Does the rescue doctrine apply in product liability actions?

—> The rescue doctrine, as defendants contended, is not a common law remedy.  It says rescuers should be anticipated in such a situation as the case-at-bar, and those rescuers should not be barred from bringing suit from knowingly placing themselves in danger to rescue someone.  Thus, there should be no problem connecting this to product liability when they cause the initial danger which resulted in the rescue.


May plaintiff show proximate cause under the rescue doctrine?

—> No.  The plaintiff cannot be simply relieved by one thing leading to another, there must be proximity from the defendant’s negligence directly to the plaintiff.  A former case in the same arena didn’t prevail when plaintiffs of dead party in a helicopter crash tried to sue the auto maker of the car in which caused the crash which caused the decedent party from the crash to be airlifted.


Did Suzuki proximately cause McCoy’s injuries?

—> Probably not.  If Suzuki Samurai is found to be defective the jury could find it foreseeable that the Suzuki would roll and that an approaching car would cause injury to either those trapped inside the car or to a rescuer, depending upon the specific acts to be proved.  More proof is needed in order to find if defendant’s product was proximate to his injury, or at least testimony attesting to the proximity.


Significance: The significance is a rescuer must still provide proximate cause from the negligence in a product to their direct injuries.  Even such remote cases as above have been proven in the past.


C. Public Policy


Case Brief:

Style (name of case): Kelly v. Gwinnell (1984)


Cause of action:  The following is a cause of action for damages received in a head-on collision.


Parties:  This is a suit by plaintiff Kelly (injured party in accident) against co-defendants Gwinnell (driver) and his his employee (owner of car).  The defendants sue the Zaks in a third party action.  Suit amended to have only the Zaks family as the defendants.


Procedural Facts (what happened in court): Trial court summarily moved for judgment against plaintiff for damages to solely the Zaks’, holding as a matter of law a host is not negligent for an adult guest’s who becomes intoxicated at their home.  Appellate Division affirmed.


Substantive Facts (how’d they get to court): Defendant was at a friend’s house (Zaks) having a couple drinks(2-3 scotch on the rocks) when he was escorted to his car so he could go home.  On his way home, defendant was involved in a head-on collision with plaintiff, where she received serious injuries.


Issue(s): Under New Jersey law, is a social host who enables an adult guest at his home to become drunk liable to the victim of an automobile accident caused by the drunken driving of the guest?


Judge’s ruling:   Judgment reversed and remanded.


Court’s Rationale/Reasoning: Court found in such a case the facts must be weighed more in the plaintiff’s favor.  Hosts provided the liquor to their guests knowing he’d probably have to drive home.  A reasonable person in the Zaks’ position would foresee continuing to provide Gwinnell with alcohol he could hurt someone if he drove home.  As far as whether such actions create a duty exists for a court of law to impose such a duty on social hosts.  In this light, the court found they should be held responsible for third party injuries as a result of allowing a social guest to continue drinking alcohol when they know that guest will afterwards be operating a motor vehicle.  Part of this is for justice, and part of the reasoning is for social value in regard to tougher drunk driving laws and liquor laws all together.


Significance: Yes, a host may be held responsible for a guest’s subsequent actions as a driver under certain circumstances.


Dissenting:  The cost to every New Jersey citizen should be weighed before the result of this case should be reached, for the social host may not have enough insurance to cover such costs.  What force must a social host use to restrain parties from drinking at their home?  At what point should the host know their guest is too drunk to drive? There is a difference between the responsibility of a bartender, who does not drink on the job for business purposes, and a social host, who is drinking with their friends.



Case Brief:

Style (name of case): Enright v. Eli Lilly & Co. (1991)


Cause of action:  The following is a cause of action for negligence by proximate cause, breach of warranty and fraud, but reinstated the strict liability count, holding that the strong public policy in providing relief for DES victims justified recognizing a strict product liabilities cause of action.


Patricia’s claim for her own personal injuries, as well as her husband’s separate claim for loss of consortium was still pending.


Parties:  Plaintiff is granddaughter of a DES taker and her mother is the plaintiff in the suit.  Eli Lilly is one of the manufacturers of the drug


Procedural Facts (what happened in court): Karen’s claims were dismissed at trial and she appealed, in which was affirmed.  Again affirmed on appeal.


Substantive Facts (how’d they get to court):  Plaintiff’s mother took DES, and she claims the drug has caused her to have several miscarriages due to her in vitro and premature birth to her daughter.  She also claims the DES exposure caused her to give birth to a child which has cerebral palsy and other abnormalities.


Issue(s): Under the rules of negligence, was the ingestion of DES by plaintiff’s mother the legal cause for her personal injuries and the premature birth of her daughter who also has cerebral paulsy?


Judge’s ruling:   Ruling affirmed.


Court’s Rationale/Reasoning: Both legislature and the court has concern for the effect the drug has had on those who have taken it and their offspring as well.  But for the drug being taken, such problems would likely have not occurred.  In Albala, the court found the brain-damaged offspring of a mother whose uterus was perforated during the course of an abortion could not recognize a cause of action on behalf of the child.  This was b/c, the court said of, “the extension of traditional tort concepts beyond manageable grounds.”


However, the thought that public sentiment is growing on this issue for helping those who were hurt by the drug as opposed to medical malpractice is incorrect.  This is not a class which is favored over any others.


Furthermore, plaintiffs point to no specific factor which would advance their cause of action on the basis of a multi-generational cause of action, which the court feels no reason to change its stance from Albala.  In regard to the strict liability reinstatement, the plaintiff still falls short, as she fails to add anything other than to possibly promote safety on the part of the manufacturer — even though it may still hold great weight in a court of law.


For the same reason as Albala, the court could not reverse its opinion regarding this case.  There are too many imaginary lines to cross and expand upon.  Limiting the line of liability to those directly effected by the drug is a better policy than shifting the line of causation to later offspring.


As a matter of fact, public policy shows consumers want their prescription drugs, no matter the possible side-effects.


Significance: The significance is proximate or legal cause in regard to drug cases is applicable to the next generation of people effected by the drug, but not further generations.


1. By way of synthesis

Topic Notes:

By way of synthesis

Duty approach in Palsgraf and is used in cases of the unforeseeable plaintiff — certain types of damage may be held not to be the basis of recovery and negligence may not be held not to be directed to the plaintiff, but most of the courts have treated the question in the causation element.


Methods of courts explaining decisions

Broad scope of liability

Narrow scope of liability


Manner for explanations is to do justice with competing factors or policy elements


2 approaches:  (1) hindsight/direct causation, and (2) foreseeability


Foreseeability is seen as the more rational method b/c it fixes the nearest thing to a definite boundary of liability which is possible…but how far do you go with liability?


Problem: speeding truck…with all the foreseeability in mind, what could happen:


simpler to see

truck hits someone or truck hits another car(s)


a bit more out of the box

(a) truck narrowly misses a pregnant woman, who is induced into an early birth and subsequent miscarriage

(b) the collision of a truck with other car(s) causes a pile up in which another car, without notice, crashes into the pile up


still further out there, but true

(a) person truck hits goes to hospital and catches pneumonia and subsequently dies

(b) person who gets hurt has their watch stolen




Risk approach

Is the thing which caused the accident to happen encompassing of the risk encountered?

What was the risk created by defendant’s conduct


2. Shifting responsiblity

Topic Notes:

Shifting responsibility

When a 3rd person does not intervene upon defendant’s negligent action, defendant is liable.


Even if 3rd person/party does intervene but cannot make the situation right, the defendant is held liable in a majority of cases


BUT — if a 3rd party in a separate but related manner acts negligently where they or another party is injured or harmed, the 3rd person/party may be held liable and relive the negligence of the original defendant


VII. Joint Tortfeasors

A. Liability and joinder of defendants


Case Brief:

Style (name of case):  Bierczynski v. Rogers (1968)


Cause of action:  The following is a cause of action for damages as a result of an accident during an automobile race.


Parties:  Bierczynski is the remaining defendant who is left to sue on appeal of plaintiff Rogers original jury verdict at trial.  (Race did not appeal)


Procedural Facts (what happened in court):  Jury delivered special verdict in favor of plaintiff, saying both Race and Bierczynski were jointly and severally negligent for their actions in the race, despite only one party hitting the other car.


Substantive Facts (how’d they get to court): Bierczynski and Race were racing on a public road and down a hill side by side at twice the legal speed.  Race lost control of his car, which careened, and hit the plaintiff’s car at 70 MPH.  Bierczynski managed not to lose control of his car, staying in the proper lane at all times, and stopped short of the accident by several feet.


Issue(s): Under the law, is there joint negligence and several liability for damages when two parties engage in a car race on a public road?


Judge’s ruling:   Affirmed.


Court’s Rationale/Reasoning: First of all, both parties are negligent per se (speeding) and negligent in general, as the reasonably prudent person would not be expected to undertake such actions on a public road.  Second, it is generally accepted that those who engage in a race on public roads do so at their own risk, and are liable for all injuries suffered by third parties as a result of their negligence.


Past case law holds those who participate in such racing activity are acting in concert with each other, for if one person didn’t race, there would be no race.  Under such circumstances, both parties who engage in such activities are jointly and severally liable, even though one party might not be involved in the accident which happened as a result.


Significance: Yes.  Participation in a motor vehicle race on a public highway is an act of concurrent negligence imposing liability on each participant for any injury to a non-participant for any injury to a non-participant resulting from the race.


B. Satisfaction and release


Case Brief:

Style (name of case):  Bundt v. Embro (1965)


Cause of action:  The following is a cause of action for damages resulting from an automobile accident.  The suit is against the driver of the automobile, the contractor who was repairing the highway who had also obstructed a stop sign.


Parties:  Bundt is actually the defendants who are appealing to the Supreme Court of New York.  Plaintiff Embro is the injured party (one of five plaintiffs).


Procedural Facts (what happened in court): Defendants move here to amend their answers to interpose defense of discharge and satisfaction when the plaintiffs recovered for the same injuries against the State of New York.  Court of Claims original court of jurisdiction.


Substantive Facts (how’d they get to court): Plaintiffs were five passengers who were in a car accident which the plaintiffs claim was the responsibility of both the negligent driver, as well as the contractor (the State of New York) for negligently blocking a stop sign while in the middle of working on the area.


“New York already waived its immunity from liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article.”


Issue(s):  Under law of joint and several liability, when a verdict is reached for damages against one party out of two in a joint suit, may the plaintiff party recover from the other party or parties for the same damages?


Judge’s ruling:   Leave to amend is granted to the defendants.


Court’s Rationale/Reasoning: Essentially, New York acted as a company or individual party admitting sole negligence.  The court of claims was wrong in saying a joint tort action should not prevent a party from recovering from both parties the same damage award.  The court added since the state acted as the sole party responsible, it discharged the other party from any action against them as joint tortfeasors.  Both parties must be responsible for such action taken against them.  In essence, the judgment against the state proved the other party was not as negligent for the crash and injuries.


(but for the blocking of the sign, we would not have the accident or injuries; defendant drivers were negligent but not moreso than the contractor; they are the creator of the negligence)


Significance: No.  Recovery of damages from one party in full may not relieve the other party from negligence in a suit, but it does discharge them from forking over damages as a joint tortfeasor.  A plaintiff may recover damages from either or all only.



Case Brief:

Style (name of case): Cox v. Pearl Investment Co. (1969)


Cause of action:  The following is a cause of action for damages as the result of a fall on defendant’s property.


Parties:  Cox is the injured party suing; Pearl is the owner of the land on which plaintiff fell and sustained injuries.  Tenant of land, Goodwill Industries, already paid plaintiffs $2500 not to sue defendants, but proceeded to do so anyway in order to recover full damages for injuries sustained.


Procedural Facts (what happened in court): Original court ruled in favor of defendant, holding the waiver discharged joint tortfeasor Pearl from joint and several liability in an action.


Substantive Facts (how’d they get to court): Plaintiff fell on defendant’s property, of which Goodwill Enterprises was a tenant.  Goodwill paid plaintiffs $2500 not to proceed with suit against their landlords.  Plaintiffs contend they were not granted their just amount in damages in retrospect, while the defendant claims to have been released from liability from plaintiff’s signing of the waiver.


Issue(s): Under the law of joint tortfeasors and liability therein, does the signing of a waiver by plaintiffs not sue landlords release a co-defendant from an action when plaintiff’s accident occurred on defendant landlord’s and co-defendant business owner’s (leasee’s) property?


Judge’s ruling:   Reversed trial court decision and remanded the case back for an opinion consistent with the Supreme Court’s.


Court’s Rationale/Reasoning: Restatement of torts, section 885, states “a release will be construed as a covenant not to sue where the rights to proceed against the remaining tortfeasors is expressed reserved.”  It marks the importance of the express intent of contracting parties.  Under normal circumstances, a joint tortfeasor would be released from liability like in Bundt, but here the judgment would have essentially let the co-defendant landlord off without any liability, and the plaintiffs left without anything to hang their hat on, accept a small award.  Such action could not be tolerated by the court, and thus the reason for reversing the judgment of the lower court.


Significance: No.  Not when the waiver itself does not fully compensate the plaintiff(s) for injuries sustained and subsequent damages, if any.  This court made it clear they do not want people getting double award judgments, but when an aggrieved party is clearly getting shut out by another party for a waiver which was signed without knowledge of full damages, there must be remedy for plaintiff.



Case Brief:

Style (name of case): Elbaor v. Smith (1992)


Cause of action:  The following is a cause of action for damages as a result of medical malpractice.


Parties:  Elboar is the defendant/appellant doctor who is the remaining non-settled defendant pre-trial.  Smith is suing party and alleged victim of medical malpractice.


Procedural Facts (what happened in court): Court found in favor of plaintiff/appellee in trial. (88 percent defendant and 12 percent Synquin)


Substantive Facts (how’d they get to court): Plaintiff was allegedly the victim of medical malpractice on several accounts: at the original hospital D/FW and the doctor there, by the next hospital she was sent to, ACH, as well as three doctors: Synquin, Gatgaitan and defendant.  Everyone else settled pre-trial in a “Mary Carter Agreement,” and were promised upon a small settlement a chance to recoup some or all their losses depending upon the verdict rendered against remaining non-settling defendant.


Plaintiff contends the agreement is just fair business practice for both plaintiff and settled defendants, while defendant who was left without anyone else in his corner contends the agreement is violative of public policy, as well as of the judicial system.


Issue(s): Under law regarding joint and several liability of defendants at trial, does a settlement agreement between plaintiff and all but one of defendants promote an honest and fair trial according to both judiciary policy and public policy?


Judge’s ruling:   Reversed and remanded for new trial.


Court’s Rationale/Reasoning: These Mary Carter agreements are held by some courts to be fine under policy, but under these circumstances, there are problems.  Settled defendants’ attorneys trying to help the prosecutions at trial?  Sam attorneys changing their arguments and trying to assuage the guilt solely to remaining no-settled defendant?  Not in this court.


Such an opportunity for the defendants who already settled to make such a deal and then follow through in court the way they did is evidence such an agreement created an incentive of sorts for the settled parties to try and get their settled money back in part or in whole, depending on the agreement.


The jury and trial judge never get a fair assessment of the facts, testimony has the chance of being skewed, and is frankly against all public policy the trial court system is about.  This is also a further discouragement of litigation, unethical collusion and misleads the jury and cannot be tolerated in a court of law.


Significance: No.  These “Mary Carter Agreements” in which plaintiffs settle with one or more co-defendants pre-trial, with the co-defendants having the veto power against any other co-defendant(s) gives to much incentive for defendants to skew opinions and almost change their stories so as to change a potential verdict.


C. Contribution and indemnity


Case Brief:

Style (name of case): Knell v. Feltman (1949)


Cause of action:  The following is a cause of action for damages as a result of a car accident involving the servant of the party being sued.


Parties:  Knell is the injured party suing; Feltman is the owner of the automobile in which the accident ocurred.


Procedural Facts (what happened in court): Jury found both Felton’s servant and Knell were negligence, and the negligence of each contributed to the collision, and that plaintiff’s damages were $11,500.  The court then awarded judgment in favor of plaintiffs against Feltman for $11,500, and upon payment of this by Feltman, judgment in favor of Feltman against Knell for $5750.


Substantive Facts (how’d they get to court): Langland and her husband were passengers in a car owned and operated by Knell.  The car they were riding with collided with a taxi owned by defendant and operated by one of his employees, as a result of which Mrs. Langland was seriously injured.


The Langlands sued Feltman to recover damages.  After answering, Feltman filed a third party claim against Knell, for the accident was caused by the contributory or sole negligence of Knell.


Issue(s): Under the issue of contribution and indemnity, is the owner of something responsible when their servant causes the harm involved when a taxicab driver hits another car?


Under the same rules, is the other driver partly or solely liable for actions when they are allegedly contributory in nature?  In other words, is Feltman to be denied contribution b/c the Langlands neither asked nor obtained judgment against Knell?


Judge’s ruling:   Affirmed.


Court’s Rationale/Reasoning: It is not true that contribution may only be enforced only if both are judgment debtors of the plaintiff.  The right to seek contribution belongs to the injured tortfeasor, and this selection cannot be based upon who the plaintiff selects in their suit either.  If something like this were to happen, the system would be twisted on constantly a victim of collusion by parties who don’t want to sue their friends or business parties partners.  “When the parties are not intentional and willful wrongdoers, but are made so by legal inference or intendment, contribution may be enforced.”


There are situations where there is no contribution among joint tortfeasors, but this occurs only when the case deals with such denial of contribution between willful or intentional wrongdoers.  Here, the situation lends itself to two negligent, unintentional acts, which changes the standard of awarding damages.  When they are unintentional, contribution should thus be enforced.


Significance: Yes.  When a tort is committed by the concurrent negligence of 2 or more persons who are not intentional wrongdoers, contribution should be enforced.  That a joint judgment against tortfeasors is not a pre-requisite to contribution between them, and it is immaterial whether they were, or any of them was, personally negligent.



Case Brief:

Style (name of case): Yellow Cab Co. of D.C., Inc. v. Dreslin (1950)


Cause of action:  The following is a cause of action for contribution between tortfeasors where the judgment creditor is the wife of the tortfeasor against whom contribution was sought.


Parties:  Yellow Cab is the injuring party, suing to get contribution from defendant Dreslin.


Procedural Facts (what happened in court): Judgments were awarded in favor of plaintiffs except Dreslin.  In addition, a declatory judgment was entered against the cab company allowing it contribution for the accident from Dreslin.  This, however, was disallowed b/c, “the right to contribution arises from a joint liability.”, and as Dreslin was not liable towards his wife (in tort), there was no joint liability between him and the cab company as to her.


Substantive Facts (how’d they get to court): Cab of appellant driven by its agent, and a car, driven by appellee, Dreslin, collided.  Dreslin’s wife and other in his car were injured, and they sued the cab company for damages.  Dreslin joined with them, claiming loss for consortium, medical expenses for the Mrs. and damages to his car.


(so the mrs. was in the cab, while hubby was in the other car which hit the cab)


Cab co. claimed contributory negligence on the part of Dreslin, and cross-claimed him for damages to the cab and for contribution of sums recovered by plaintiffs against it.


Issue(s): Under tort law, may a contribution judgment be ruled in favor of a husband against a wife as a joint tort-feasor?


Judge’s ruling:   Affirmed.


Court’s Rationale/Reasoning: The rights of contribution arise out of a common liability.  The rule hinges on a doctrine so if someone is also responsible for injuries to another, they are brought in to contribute to the damages.  This gives the original party the right to bring in others to a suit so as to hold them liable for damages.


An injured party plaintiff in the suit from which a right of contribution develops must have had a cause of action against the party from whom contribution is sought.  Here, there was no liability by Dreslin to his wife, — no right to action against him and the Cab Co., hence nothing to which a right of contribution could attach.


Significance: A husband nor wife is not liable for tortious acts by one against the other (common law rule).



Case Brief:

Style (name of case): Slocum v. Donahue (1998)


Cause of action:  The following is a cause of action for release of civil liability in regard to damage settlement from an a car accident which killed plaintiff’s son.


Parties:  Slocums are the family suing for the damages; Donahue was the party driving the car which killed plaintiff’s son, although the car was negligently designed by Ford (who settled).


Procedural Facts (what happened in court): Ford settled, but judgment still awarded to Slocums against Donahue, who appeals, claiming collusion on the part of Ford and Slocums.


Substantive Facts (how’d they get to court): Donahue was backing out of his driveway, when the floor mat caused something in the car to accelerate and despite pressing the brakes on the car, it ran over the curb and struck plaintiff’s son, killing him.  It was also an uncontended fact defendant took a drink out of a bottle of vodka he kept under the seat.  Ford settled based on the floor mats causing interference with the vacuum booster which caused the brakes to fail.  Donahue claims he was promised he wouldn’t have to pay anything personally (his insurance company was ordered to pay $125K, and his family $25K personally), and that Ford colluded with Slocums so Donahue would have to pay.


Issue(s): Under the law of joint and several liability, was there collusion between 3rd party who settled with plaintiff or was the settlement just when the defendant was still subject to civil liability?


Judge’s ruling:   Affirmed.


Court’s Rationale/Reasoning: There needs to be evidence of collusion for there to be relief on the part of defendant in such a case where an out-of-court settlement by the auto manufacturer still leaves the other defendant, who was jointly and severally liable, to pay damages.  This would be evidenced by an extremely low figure or something along those lines.  But this is just a smaller issue.


In the case of indemnity, there would only be some if the joint-tortfeasor was not liable at all for damages.  The jury held Donahue civilly liable for his actions, and this was just.  If Ford would have remained in the suit, there would have been joint liability in much the same way.


Significance: The right to contribution, unlike the right to indemnity, is based on the shared fault of the joint tortfeasors.  Indemnity, on the other hand, allows someone who is without fault, compelled by operation of law to defend himself against the wrongful act of another, to recover form the wrongdoer the entire amount of his loss, including reasonable attorney’s fees.  Indemnity is permitted only when the would-be indemnitee does not join in the negligent act.


This right to indemnity is limited to those cases in which the would-be indemnitee is held derivatively or vicariously liable for the wrongful act of another.


*Indemnity: A legal exemption from liability for damages; or compensation for damage, loss, or injury suffered.


D. Apportion of damages


Case Brief:

Style (name of case): Bruckman v. Pena (1971)


Cause of action:  The following is a cause of action for damages for aggravated injuries resulting from a subsequent accident caused by the defendant.


Parties:  Bruckman is the injured party; Pena is driver of the car of the first accident (the owner of the truck, Armored Motors Services, is also in the suit).


Procedural Facts (what happened in court): Ruled against defendants, and said plaintiff could collect from 3rd party.  Defendants claim error in instruction to jury, in which the jury was told they could rule for plaintiff in collecting subsequent damages for an accident they already determined was previously their fault


Substantive Facts (how’d they get to court): Plaintiff received injured in first accident with defendant and the company which owned the truck.  After second accident, plaintiff’s injuries were aggravated, and he wanted to collect from the first party for their actions caused the situation in the first place.


Issue(s): Under the law of joint and several liability, is the defendant driver, who was the negligent actor in causing plaintiff’s original injuries, solely liable for the aggravation of injuries caused by a subsequent accident when it is not caused by the original actor and defendant?


Judge’s ruling:   Reversed and remanded.


Court’s Rationale/Reasoning: Plaintiffs cite Newbury case, in which a party was held totally responsible for non-traumatic injuries caused by a subsequent accident.  Here, the injuries were non-traumatic as well, but this cannot be.  It is one thing for a tortfeasor who injures another to be responsible for their injuries, but not for subsequent ones, no matter how they may or may not be apportioned in a court of law.


The court also rejected the theory of independent acts proximately causing the injury, in which damage could be apportioned to all tortfeasors.  Here, the rule is not applicable b/c the second injury or aggravation was attributable to an intervening cause without which the second injury or aggravation would not have occurred.


Significance: The general rule regarding collection for injuries proximate in cause to another, they must be proximate.  This means another injury (no matter how closely related in pain or injury) may not be charged to the first party on a second go-round, b/c it is the plaintiff’s responsibility to prove the proximate cause and not the defendant’s to assume liability.


VIII. Duty of care

Topic Notes:

Sometimes the defendant is no legal obligation toward the plaintiff to act with a duty of care of a reasonable person and is not liable even though their conduct falls short of that standard and the other is injured as a result.  This is also despite the danger is obvious and the risk is obviously unreasonable, considered merely as a risk.


A. Failure to act


Case Brief:

Style (name of case): Hegel v. Langsam (1971)


Cause of action:  The following is a cause of action for a school’s failure to act resulting in the degenerate state of plaintiff’s daughter and more reinstatement in the school.


Parties:  Hegels are the parents of the student who fell into the wrong crowd; defendant is the school which she attended.


Procedural Facts (what happened in court): Case dismissed; no cause of action. (summary judgment granted)


Substantive Facts (how’d they get to court): Student attended the defendant’s school, and while there fell into a crowd which she became associated with with criminals, to be seduced, to become a drug user and continuing absences which resulted in her being discharged to her parents.


Plaintiffs contend it was the school’s responsibility to make sure these events did not happen to their daughter.  Defendants argue with the defense a school is not a day care, and should not be held responsible for the actions of their students.


Issue(s): Under the duty of care, is there negligence based on a failure to act when a student in a learning institution falls into the wrong crowd and illegal behavior, causing the student to be discharged from the school and returned to her parents?


Judge’s ruling:   Summary judgment granted.


Court’s Rationale/Reasoning: The court said they know of no requirement of law which placed the responsibility of a university/learning institution to regulate the private lives of its students, to control their comings and goings and to supervise their associations.  Universities should not have to maintain “law and order” on their campuses to such an extent, as plaintiffs claim.


Significance: The significance is when a university sets forth some kind of guidelines and standards for its students, they are to abide by those standards on their own volition, and do not need the babysitting services of the university to make sure they are held to these standards.










L.S. AYRES & CO. V. HICKS (1942)

Case Brief:

Style (name of case): L.S. Ayres & Co. v. Hicks (1942)


Cause of action:  The following is a cause of action for damages as a result of an escalator accident.


Parties:  Ayres appeals the decision against them in the lower court; Hicks is the injured party who won in the lower court.


Procedural Facts (what happened in court): Judgment for plaintiff, and a new trial was denied.  Defendant appeals.


Substantive Facts (how’d they get to court): Appellee and her son were on an escalator in appellant’s department store.  Child got finger caught in the escalator, and because of an alleged unreasonable delay to stop the escalator, child’s injuries were further aggravated.


Issue(s): Under the duty of care regarding negligence, was there a failure to act quickly enough to stop an escalator which resulted in injuries to appellees’ son?


Judge’s ruling:   Judgment is reversed with directions to sustain the appellant’s motion for a new trial.


Court’s Rationale/Reasoning: There may be principles of social conduct so universally recognized as to be demanded they be observed as a legal duty, and the relationship of the parties may impose obligations that would not otherwise exist.  Thus, moral and humanitarian considerations may require one to render assistance to another who has and may have been injured as a result, even though the injury was not due to negligence on their part and may have been based on the negligence of the injured party.  Failure to act in such a manner may constitute actionable negligence if the injury is aggravated through a lack of due care.


In cases where a person was injured so badly as to be reverted to a state of helplessness, the court has sided with the injured.  Here the court can see acting in such a manner.  However, because the court was only supposed to deal with only the aggravation of the injuries, the decision is remanded so as to only deal with the assessment of such negligence.


Significance: Yes.  When a party fails to act in a manner which could help the injured party when they are injured state, a cause of negligence may be brought against the party.










B. Mental disturbance and resulting injury


Case Brief:

Style (name of case): Daley v. LaCroix (1970)


Cause of action:  The following is a cause of action for damages, both compensatory/actual and punitive, resulting from accident which caused power lines to smash into plaintiffs’ home.


Parties:  Daley is the damaged party; LaCroix is the party which ran off the road and caused the damages in question.


Procedural Facts (what happened in court): Court of Appeals affirmed trial court’s grant of directed verdict upon the fact Michigan law denies recovery for negligently caused emotional disturbance absent a showing of physical impact.


Substantive Facts (how’d they get to court): Defendants ran off the road, traveling 63 feet in the air, knocking down power lines in the process, which caused the downing of power poles onto plaintiffs’ home, causing severe damage after a huge electrical explosion.


Plaintiffs claim, in addition to property damage, extensive emotional damages as a result of the accident.  Mr. Daley claims emotional disturbance and nervousness as a result, while Mrs. Daley claims traumatic neurosis, emotional disturbance, and nervous upset from the accident.


Issue(s):  Under tort law, may a claim of emotional disturbance be included with actual damages, when a car runs off the road, causing a huge electrical explosion and subsequent damage to plaintiffs’ home?


Judge’s ruling:   Affirmed trial court’s granting of directed verdict.


Court’s Rationale/Reasoning: Early case law shows only injuries which are the direct consequence of a negligent act itself are able to be claimed in a cause of action. However, courts leading up to this case have began to repudiate the “requirement of impact” in negligent acts, for the fact that a particular act has occurred has suited the court as a sufficient guarantee.  This is how the court feels this decision should go as well.


However, the burden of proof is on the plaintiffs to show there was, in fact, emotional/nervous damage as a direct result of defendant’s negligent act.  Yet there was no expert or medical testimony at trial; only vague lay information was brought into the record.  And the only expert testimony brought in by plaintiffs claimed Mrs. Daley’s neurosis was with her since an early age, and was not a result of the accident which occurred.


From these facts, it is clear men of ordinary experience and judgment could be able to conclude, after sufficient testimony, that the Daleys emotional distress did not occur as a direct result of the negligent act of the defendant.


Significance: Yes, but not here.  A plaintiff must show actual physical manifestation of injury as a result and proximate to a particular negligent act by defendant.  The burden of proof is also on the plaintiff to show the physical manifestation of injury proximate to the act was naturally caused by the act itself.



Case Brief:

Style (name of case): Thing v. La Chusa (1989)


Cause of action:  The following is a cause of action for emotional damages suffered as a result of alleged defendant’s negligent behavior.


Parties:  Thing is the appellant party, who struck appellee/plaintiff’s son when his mother was not looking.


Procedural Facts (what happened in court): Both trial court granted defendant’s motion for summary judgment.  Court of Appeal reversed.


Substantive Facts (how’d they get to court): John Thing, age 8, was struck by car of defendant La Chusa.  Mother Maria was nearby, but neither saw nor heard the accident. Maria found out about the accident only after her daughter informed her of his being hit.  She rushed to the scene of the accident where she saw John lying there bloody and unconscious,.  Mom thought her son was dead, and the subsequent emotional and psychological distress is which she sued.


Issue(s): Did the Court of Appeal correctly hold that a mother who did not witness an accident in which an automobile struck and injured her child may recover damages from the negligent driver for the emotional distress she suffered when she arrived at the accident scene?


Judge’s ruling:   Judgment of Court of Appeal reversed.  Each party to bear their own costs for appeal.


Court’s Rationale/Reasoning: Court in Dillon  used a three prong test which helped delineate whether defendant should have reasonably foreseen the injury to plaintiff and her subsequent emotional distress:


(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was away from the scene.

(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.

(3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.


Thus, negligence cases permitting recovery of damages for emotional distress were limited in cases to where the victim themselves was injured and any subsequent injury to another was what they called “parasitic”, by being in the zone of the area in which harmed party was, causing them physical injury as a result.


But the Dillon  rule has been extended a bit, infer direct victims in such cases are those whose emotional distress is a reasonably foreseeable consequence of the conduct of the defendant, yet there was no guideline for foreseeability.  However, the court said there are times when the issue of foreseeability is clear enough, that it could be determined one way or the other if said plaintiff’s alleged injury could be foreseen by defendant.


Here, there was no presence at the scene on the part of plaintiff, nor did she even hear the accident.  She was also not aware of her son’s injury until she was informed by her daughter.  Thus, there is no way to establish a claim to recover on the basis or emotional distress suffered subsequent of learning of the accident.


Significance: No.  Mrs. Thing was neither at the scene of the accident, nor was it proven her mental disturbance was a direct result of the defendant’s negligent act (she also didn’t see or hear the act).  A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person, if, but only if, said plaintiff:


(1) is closely related to the injury victim

(2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim

(3) as a result, suffers serious emotional distress — a reaction which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.


IX. Owners & Occupiers of Land

A. Outside the premises


Case Brief:

Style (name of case): Taylor v. Olsen (1978)


Cause of action:  The following is a cause of action for




Procedural Facts (what happened in court):


Substantive Facts (how’d they get to court):




Judge’s ruling:


Court’s Rationale/Reasoning:


Significance: The significance is











Case Brief:

Style (name of case): Salevan v. Wilmington Park, Inc. (1950)


Cause of action:  The following is a cause of action for personal injuries received when struck in the head by a baseball while walking down the street, and past the ball park of the defendant.


Parties:  Salevan was struck in the back by the ball while passing by defendant’s ball field on 30th street.


Procedural Facts (what happened in court):


Substantive Facts (how’d they get to court):  Plaintiff was walking by defendant’s land where a ball field was located.  Plaintiff was hit on the head by a ball which came from this field.  On average, 16 to 18 balls go foul from inside the park into 30th street, and of them, 2-3 fouls come within the park over the 10 foot fence and into the area along 30th street through which plaintiff was passing through at the time of the accident.  Manager testified 68 games were played that season at that field.


Plaintiff contends the defendant has a duty as the landowner to exercise reasonable care by protecting those walking by.  Plaintiff further contends the defendant had notice of the passage of baseballs outside of its park and into 30th street to the danger of persons using the street, and the defendant’s failure to take such care was negligence.


Issue(s): Under tort law, was there a lack of due care on the part of defendant, who owned a ball field, when a foul ball left the yard and struck the plaintiff in the back?


Judge’s ruling:   Damages in the amount of $2500 to plaintiff for injuries.


Court’s Rationale/Reasoning:  Public has the right to free and unmolested use of the public highways, and abutting landowners may not use their land as to interfere with the rights of persons lawfully using the highways.  The inherent nature of the game requires the owner to take due care, but only those precautions which are involved in the inherent nature of the game are subject to such care.


Here, the defendant knew of the balls passing onto 30th street, but failed to do anything about it, at least sufficiently.  Therefore, the defendant is liable for lack of due care, or negligence.


Significance: Owners of outdoor facilities should be aware of the inherent dangers involved, and should take precautions to prevent them, if they can.  In such an event where a party is harmed by something the owner knowingly is aware of, they are negligent for failing to take due care.


B. On the premises

1. Trespassers


Case Brief:

Style (name of case): Sheehan v. St. Paul & Duluth Ry. Co. (1896)


Cause of action:  The following is a cause of action for damages for personal injury.


Parties:  Plaintiff is the injured party, while defendant’s train is the injuring party.


Procedural Facts (what happened in court):  Trial court directed ruling for defendant, holding upon the undisputed facts of the case, this injury did not occur through any wrongful action by defendant.


Substantive Facts (how’d they get to court):  Plaintiff was walking on defendant’s railroad track, when his foot slipped and became caught between the rail and a cattle guard.  He couldn’t either untie his shoe or get it out from the wedge it was in, and defendant’s train ran over his foot.


Defendant’s crew didn’t see plaintiff until the train was almost upon him and it was too late to stop.


Issue(s): Under tort law, was there a lack of due care on the part of defendant train company when they failed to stop in time to avoid running over a trespasser’s foot, which was caught in between the track and a cattle rail?


Judge’s ruling:  Judgment affirmed.


Court’s Rationale/Reasoning:  It should be noted the plaintiff was neither a traveler or employee of the railway, and was trespassing on the tracks at the time of his injury. The court found any person who takes this risk assumes all risks, rewards and possible injuries as a result of their actions.


The active or positive duty arises in favor of the public at a street crossing or other place at which it is presumable persons or teams may be met.  It is not material, for purposes of this case, whether the place is one for which a lawful right of passage exists, as it is a fact of notice to the company, arising out of its existence and the probability of its use, which imposes the positive duty to exercise care; the requirement of an extreme degree of care being superadded b/c of the hazards which attend the operation of the company.  The case of a trespasser on the track, in a place not open to travel, is clearly distinguishable in the absence of this notice to the company.


Significance: No.  There was no way such an injury could have been avoided judging by the events of both the accident and the time in which the defendant train had to stop to avoid the accident.  The factors involving the train itself are not in question here, as they are immaterial b/c no breach of positive duty is involved here.  Only those efforts of the engineer, brakeman and fireman in relation to plaintiff were in question, and were properly ruled upon.


2. Licensees


Case Brief:

Style (name of case): Barmore v. Elmore (1980)


Cause of action:  The following is a cause of action for damages as a result of defendant’s alleged negligence from failing to protect plaintiff from a dangerous condition upon their premises (their son, who had a history of mental illness).


Parties:  Barmore is the injured party; Elmore is the family whose son hurt the plaintiff.


Procedural Facts (what happened in court): Trial court directed verdict in favor of defendants.


Substantive Facts (how’d they get to court):  Parties were lodge members at defendant’s home discussing lodge business.


Defendant’s son, who had a history of mental illness, had delusions about plaintiff’s husband talking about him, and emerged from the kitchen with a steak knife, chased plaintiff out of the house and stabbed him continuously in the chest, despite defendant’s attempts to restrain his son before he left the house.  Defendant’s son had a previous history of such violent attacks, but not for at least 10 years.  Plaintiff has had a history of contact with defendant’s son.


Plaintiffs contend the defendants, as landowners, were negligent in failing to protect him from a dangerous condition upon their premises — namely their son who had a history of mental illness.  Defendant’s liability here is based in part on whether the plaintiff had the status of an invitee or of a licensee at the time he visited the premises of the defendants.


Plaintiff claims his status was as an invitee at the time of the incident.  There was evidence the defendant permitted lodge members to pay their dues at his house.


Issue(s):  Under tort liability, were defendants negligent for failure to warn plaintiff of their mentally ill son’s violent behavior which resulted in a stab wound to plaintiff’s chest despite defendant’s attempted restraint of their son, or were they not liable to plaintiff under the premise he was neither an invitee or licensee?


Judge’s ruling:   Judgment affirmed.


Court’s Rationale/Reasoning:  The duty owed by the owner of premises towards an invitee is greater than that towards an licensee.  A social guest as a licensee, generally must take the premises of his host as he finds them.  However, the owner of the premises has a duty to warn the licensee of any hidden dangers which are unknown to his guest, of which he, the owner, has knowledge, and to refrain from injuring his guest willfully or wantonly.  Towards an invitee, the owner of the premises has a duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee.  There may be circumstances by which this duty is extended to include the responsibility to protect the invitee from criminal attacks by third parties.


The plaintiff here is best categorized as a licensee — a social guest and thus the only duty owed to plaintiff by the defendants was to warn him of hidden dangers unknown to the plaintiff of which the defendants had knowledge.  There is no question defendants failed to warn plaintiff of impending danger, the court disagrees with plaintiff that the defendants had actual knowledge of previous attacks by their son towards plaintiff.  The added knowledge the plaintiff had contact with defendant’s son further strengthens defendant’s argument of the attack being random in nature.


Verdicts therefore should be directed N.O.V. entered “only in cases in which all the evidence, when viewed in its aspect most favorable to an opponent, so overwhelming favors movant that no contrary verdict based on that evidence could ever stand.”  The evidence here overwhelmingly established defendants didn’t know or have reason to know defendant’s son would act criminally towards plaintiff and no contrary evidence could stand.  Even though they knew their son had a couple incidents which could be classified as violent, they were 10 years or so ago, and thus there could be no liability


Significance: In order to be classified as an invitee it is sufficient that he go on the land in furtherance of the owner’s business.  It is not necessary that the invited person gain an advantage by his entry on the land.  A social guest is considered a licensee and has been defined as one who enters the premises of the owner by permission, but for the licensee’s own purposes.  Therefore, a social guest is a person who goes on another’s property for companionship, diversion, or entertainment.


3. Invitees


Case Brief:

Style (name of case): Campbell v. Weathers (1941)


Cause of action:  The following is a cause of action for damages as a result of a fall in defendant’s store.


Parties:  Campbell was the party who fell and was injured in defendant’s store.


Procedural Facts (what happened in court):  Trial court sustained defendant’s demurrer and plaintiff appealed.


Substantive Facts (how’d they get to court): Plaintiff loitered at defendant’s store, went around the back to use the bathroom, and fell through a trap door in a dark hallway.


Issue(s): (1) Was the plaintiff a trespasser, a licensee or an invitee? (2) Does the customer’s non-purchase of an item from defendant’s store before using the restroom preclude him from doing so?


Judge’s ruling:   On appeal, the order sustaining the demurrer of the lessee is reversed.


Court’s Rationale/Reasoning:  In order to be an invitee, a person must enter the other party’s place of business in furtherance of their business.  However, a person, such as the defendant is argued to be precluded from a cause of action b/c he neither furthered business or even attempted to do do.  Yet the court rationalized this inquiry by mentioning the fact all kinds of people go shopping and actually never buy anything (women, for example).  Such activity does not preclude them from eligibility to use the house toilet.  Based on such evidence, the defendant is responsible for plaintiff’s injury as an invitee.  The actual motive of plaintiff’s trip to the defendant’s toilet must be further heard in a court of law.


Significance: In order to be classified as an invitee it is sufficient that he go on the land in furtherance of the owner’s business.  It is not necessary that the invited person gain an advantage by his entry on the land.



Case Brief:

Style (name of case): Whelan v. Van Natta (1964)


Cause of action:  The following is a cause of action for damages as a result of a fall down some stairs at defendant’s store.


Parties:  Whelan is the injured party who fell at defendant’s place of business.


Procedural Facts (what happened in court): Judgment for defendant, and plaintiff appeals.  Trial court held the plaintiff was a licensee at the time of his fall, whom defendant did not owe any duty to provide a safe place, save and except to have abstained from doing any intentional or willful act endangering his safety or knowingly letting appellant run upon a hidden peril.


Substantive Facts (how’d they get to court):  Plaintiff was buying a pack of cigarettes at defendant’s store, and inquired about some for his son.  Defendant told plaintiff to go to the back room, where he would find some more.  Plaintiff went to the back room which was dark, and could not find the light.  While searching for the box, plaintiff fell into an unseen stair well, and was injured.


Defendant testified he didn’t warn plaintiff of the existence of the stair well, that the light in the room had been on that morning, and that he did not know whether it was still on when the plaintiff fell.  Plaintiff contends he entered the store on business with defendant and thus had the status of an invitee and still occupied this status when he fell.


Issue(s):  Under tort law, did the status of plaintiff change from licensee to invitee when he left the front counter area of the store to get a pack of cigarettes from a back room which the defendant told him to get, where plaintiff fell and sustained injuries?


Judge’s ruling:   Judgment affirmed.


Court’s Rationale/Reasoning:  According to the restatement, “[t]he possessor of land is subject to liability to another as an invitee only for harm sustained while he is on the land within the scope of his invitation.  Thus an invitee ceases to be an invitee after the expiration of a reasonable time within to accomplish the purpose for which they are invited to enter, or to remain.  Whether at the expiration of that time he becomes a trespasser or licensee depends upon whether the possessor does or does not consent to their remaining on the land.”


Similarly, visitors only have invitee status only when they are on the part of the land to which their invitation extends, and in determining such an area included within the invitation, the purpose for which the land is held open, or the particular business purpose for which the invitation is extended is of great importance.


Whelan here overstepped his boundaries when he went to the back area and is not responsible for the injuries to plaintiff.


Significance: If the invitee goes outside of the area of his invitation, they become a trespasser of licensee, depending upon whether he goes there without the consent of the possessor, or with such consent.  Thus, one who goes into a shop which occupies part of the building, the rest of which is used as the possessor’s residence, is a trespasser if they go to the residential part of the premises without the shopkeeper’s consent.  But they are a licensee if the shopkeeper permits them to go to the bathroom, or invites them to pay a social call.



Case Brief:

Style (name of case): Wilk v. Georges (1973)


Cause of action:  The following is a cause of action for damages resulting from a slip and fall on defendant’s premises.


Parties:  Plaintiff is the injured party; she fell on defendant’s premises.


Procedural Facts (what happened in court): Jury verdict for defendant and plaintiff appeals.


Substantive Facts (how’d they get to court): Defendant operates a garden supply store.  Plaintiff and her husband went to purchase a live Christmas tree and plaintiff slipped and fell on a plank walkway.  Defendant testified that he knew the bare planks were “slippery and dangerous” when wet, and for that reason he placed asphalt material on them. Defendant also testified he  placed a warning sign by the gate and and one on each side of the building.


The sign said: “please watch where you are going.  This is a nursery where plants grow.  There is 4 seasons: summer and winter, cold and hot, rain, icy spots.  Lower petals always falling on the floor, leaves always on the floor….we are dealing with nature and we are hoping for the best.  We are not responsible for anyone get hurt on the premises.”


Plaintiff and her husband testified they did not see the signs.  Plaintiff appeals based on an instruction which said only a mere warning of possible harm was enough. Defendant contends such an instruction was correct b/c it would satisfy a legal obligation to the plaintiff.  Defendant further contends they only had the duty to either correct the problem or notify others of the problem.


Issue(s): Under tort law, did defendant shop owe a duty of care to plaintiff more than the placing of a sign on the front gate and by each side, when plaintiff slipped and fell on defendant’s premises?


Judge’s ruling:   Judgment reversed and remanded.


Court’s Rationale/Reasoning:  The evidence in this case which the jury could have found that the defendant as a reasonable man should have anticipated an unreasonable risk or harm to plaintiff notwithstanding the posted signs.  The asphalt material was on most of the sidewalks b/c, as he testified, he knew the planks were slippery and dangerous when wet.  Both the bare planks and the asphalt cover were green in color, which could be misleading to one going up and down a walkway looking for a Christmas tree.  Under such circumstances, slipping and falling was foreseeable.


Significance: The significance is a defendant shopkeeper should realize the possibility of an unreasonable risk or harm to a potential plaintiff notwithstanding warnings/signs.  A jury instruction should know the unreasonable danger presented in certain situations and take the necessary precautions.


4. Persons outside the established categories

A. Children

Topic Notes:

Persons Outside the established categories – Children


Courts are reluctant to child trespassers or licensees the same limited-duty rules which would be applicable to adults.  Most courts have imposed a duty of landowners the duty to exercise a higher standard of care towards children.  The principal reason is to protect kids from injury.


Attractive Nuisance Doctrine:  the courts have decided when a landholder sets before young children a temptation that he has reason to believe that will lead them into danger, they must use ordinary care to protect them from harm.


Section 339 —  the question of what duty should be owed to child trespassers or licensees occupied considerable time and thought in the preparation of the first restatement…substituting “attractive nuisance” for “artificial conditions highly dangerous to trespassing children”:


“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:


(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk involved in intermeddling with it or in coming within the area made dangerous by it

(c) the children b/c of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children


The liability of risk must involve “an unreasonable risk of death or serious bodily harm to the children.”




“common hazards” on the ground that any child of sufficient age to be allowed at large by his parents, and so to be likely to trespass, can be expected as a matter of law to appreciate the danger and avoid it, or to at least make a reasonable and intelligent choice.


“the state of nature”: courts have relucted to place burden on landholder to protect children from these conditions



Special rules may provide added protection for them, thus there may be an obligation to inform a child licensee about a risk when there would be no duty with regard to an adult.


B. Persons privileged to enter irrespective of landowner’s consent

Topic Notes:

B. Persons privileged to enter irrespective of landowner’s consent

Public officials do not fit very well into any of the categories that the law has established for the classification of visitors.  They are not trespassers, since they are privileged to enter.  This privilege is independent of any permission, consent or license of the occupier; they would be privileged to enter and could insist upon doing so even if the landholder made an active objection.  They normally don’t come for any of the purposes for which the premises are held open to the public, and frequently they do not enter for any benefit of the occupier, or under circumstances which would justify any expectation that the place has been prepared to receive them.


Many courts have relucted to have struggled to place public officers and employees within the category of invitees



the same kinds of problems, with some additional complications, exist in regard to private individuals who come on the premises for self-protection or to rescue or aid someone.  They may be privileged as a matter of law to enter, regardless of the landowner’s consent.


5. Rejection of merging categories


Case Brief:

Style (name of case): Rowland v. Christian (1968)


Cause of action:  The following is a cause of action for damages as a result of an accident in defendant’s home.


Parties:  Rowland is the injured party, which occurred at defendant’s home.


Procedural Facts (what happened in court): Trial court summary judgment for defendant.  Plaintiff appeals.


Substantive Facts (how’d they get to court): Plaintiff was a social guest in defendant’s apartment.  He asked to use the restroom, and when he was in there he severed tendons and nerves in his right hand when a cracked handle of the cold water faucet broke.


Defendant had known for two weeks the handle was cracked and had complained to the super, but never said anything to the plaintiff as to the condition.


Issue(s):  Do the doctrines of invitee, licensee, or trespassers apply to an accident when a social guest hurts himself on a friend’s premises?


Judge’s ruling:   Judgment reversed.


Court’s Rationale/Reasoning: On reason for reversing judgment is the application of standards of care to landowners who owe a duty to their guests.  This is a standard of reasonable care.  Another fundamental reason is the modern application of such archaic common law, which goes to neither help guests, nor does it advance the law.  This does not mean there are immunities to such status and applicable standards of care.  Such factors the court will look to are the closeness of the relationship between the injury and the defendant’s conduct, the policy of preventing future harm, and the relationship to the classifications of trespasser, licensee and invitee and the existing rules of the community in each case.


Sometimes a relationship might not exist.  Thus, although the foreseeability of harm to an invitee would ordinarily seem greater than the foreseeability of harm to a trespasser, in particular a case the opposite may be true.  The same may be said of certainty to injury.  The burden to the defendant and consequences of the community of imposing a duty of care with resulting liability for breach may often be greater with respect to trespassers than with respect to invitees, but it by no means follows that this is true in every case.  In many situations, the burden will be the same.


Once the common law principles are stripped away, the defendant seemingly has no excuse for their actions.


Significance: A person is responsible/liable for injuries caused by their negligence for a breach of care.


X. Wrongful Death and Survival

A. Wrongful Death


Case Brief:

Style (name of case): Morgane v. States Marine Lines, Inc. (1970)


Cause of action:  The following is a cause of action for damages as a result of wrongful death.


Parties:  Morgane was the party suing for the estate of the deceased, who passed while working on the ship.


Procedural Facts (what happened in court): Trial court found in favor of defendant.


Substantive Facts (how’d they get to court): Complaint sets forth Edward Morgane, a longshoreman, was killed while working aboard the vessel Palmetto State in navigable waters within the state of Florida.  The claims were predicated upon both the negligence and the unseaworthiness of the vessel.


Issue(s): Whether the Harrisburg, which a court previously held that maritime law does not afford a cause of action for wrongful death, should any longer be regarded as acceptable law?


Judge’s ruling:   Reversed and remanded.


Court’s Rationale/Reasoning:  An action does lie under general maritime law for death caused by violation of maritime duties.  Congress has passed several acts which have permitted a claim under liability of a party which fails in its duty of care on the high seas.  Public policy is not against a recovery for wrongful death.


Significance: Where existing law imposes a primary duty, violations of which re compensable if they cause injury, nothing in ordinary notions of justice suggests that a violation should be nonactionable simply b/c it was serious enough to cause death.


English common law felony-merger doctrine:  No allowance for civil recovery for for an act which constituted both a tort and a felony.  The tort was treated as less important than the offense











Case Brief:

Style (name of case): Selders v. Armentrout (1973)


Cause of action:  The following is a cause of action for damages from the wrongful death of children.


Parties:  Selders is the party who’s suing for the three dead children against the defendant, whose negligent action caused their deaths.


Procedural Facts (what happened in court): N/A.


Substantive Facts (how’d they get to court): Three minor children were killed in an automobile accident due to the negligent conduct of defendants.  Defendants contend that the measure of damages is limited to pecuniary loss (money) and that the instructions to the jury correctly reflect the measure and elements of damage.  Plaintiffs assert that the loss of the society, comfort, and companionship of the children are proper and compensable elements of damage, and that evidence of amounts invested or expended for the nurture, education, and maintenance of the children before death is proper.


Issue(s): Whether the proper elements and measure of damages in a tort action in Nebraska for the wrongful death of a child were applied?


Judge’s ruling:   Judgment as to liability is affirmed, the judgment to damages is reversed and remanded.


Court’s Rationale/Reasoning:  Restatement has said loss for wrongful death may extend beyond contributions of food, shelter, money or property; and now there is a decided tendency to find that the society, care and attention of the deceased are services to the survivor with financial value, which may be compensated.  This has been true, for example, not only where a child has been deprived of a parent, but also where a parent has lost a child.


Such damages are on a speculative nature in essence, as it might have been had the child had not occurred.  But this is necessary, but they may in some cases be excessively restricted to the minor child, as opposed to an adult.


Courts nowadays, growing numbers of courts have extended the measure of damages to include the loss of society and companionship of the minor child, even under statutes limiting recovery to pecuniary loss or pecuniary value of services less the cost of support and maintenance, or similar limitations.  There is no need to treat the loss of a child more restrictively.


Significance: The measure of damages for the wrongful death of a minor child should be extended to include the loss of society, comfort, and companionship of the child.


B. Survival


Case Brief:

Style (name of case): Murphy v. Martin Oil Co. (1974)


Cause of action:  The following is a cause of action for negligently causing the death of plaintiff’s husband.  There are 2 causes of action: (1)under the Wrongful Death Statute; and (2) under the Survival Statute.


Parties:  Murphy is the party for the decedent and Martin Oil is the company whose premises decedent passed.


Procedural Facts (what happened in court): Trial court dismissed the second count.  The intermediate appellate court allowed the claim in part.


Substantive Facts (how’d they get to court): The husband was injured in a fire on defendant’s premises, survived for nine days, and then died from the sustained injuries.


Issue(s): Whether the plaintiff can recover for the loss of wages which her decedent would have earned during the interval between his injury and death?


Whether the plaintiff can recover for the destruction of the decedent’s personal property (clothing) at the time of the injury?


Whether the plaintiff can recover damages for conscious pain and suffering of the decedent from the time of his injuries to the time of death?


Judge’s ruling:   Judgment of appellate court is affirmed insofar as the action may be maintained by plaintiff for loss of property and loss of wages during the interval between injury and death.  The judgment is also reversed insofar as it held the plaintiff cannot maintain an action for her decedent’s pain and suffering.


Court’s Rationale/Reasoning: Recovery for pain and suffering is also becoming more widely accepted.  In addition to the actions which survive by the common law, the following also survive:

(1) acts of replevin;

(2) actions to recover damages for an injury to the person (except slander and libel);

(3) actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property;

(4) actions against officers for misfeasance, malfeasance or nonfeasance of themselves or their deputies;

(5) actions of fraud or deceit;

(6)an act relating to alcoholic liquors.”


Common law held if a person died from injuries by a tortious act, there could be no cause of action.  But now history and the law are advancing to where courts are accepting a recovery for death as a result of a tortious act.  Recovery for only for wrongful death is something the court called “an inadequate justice.”


Significance: There must be an action allowed for damages up to the time of death, as well as thereafter.


WRONGFUL DEATH STATUTE (Illinois): “whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the injured party to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.”




Case Brief:

Style (name of case): Winterstein v. Wilcom (1972)


Cause of action:  The following is a cause of action for damages as the result of an automobile crash on a speedway.


Parties:  Plaintiff in the complaint was the driver who injured himself during a crash at defendant’s motor speedway.


Procedural Facts (what happened in court):  Trial court dismissed plaintiff’s claim the release signed by him should be invalidated on the basis of public policy.  Plaintiffs appealed.


Substantive Facts (how’d they get to court):  Plaintiff crashed his car on a 36 inch long, one hundred pound cylinder head which was lying on the drag racetrack owned by defendant.  Plaintiff was participating in a speed contest at the time of the accident.  Plaintiff signed a waiver pre-competition which stated he understood the risks and unexpected dangers which may arise during such activities and he assumed all risks of injuries to his person and property which may be associated and sustained in connection with competition, in and about the premises.


The release further discharged the owners, operators, and sponsors of the said premises, of the activities, of the agents, etc, so on and so forth…and also to not sue for causes of action for injuries sustained by person and or property during plaintiff’s presence in the stated activities.


Plaintiffs concede the risk fell within the boundaries of the release, but should be voided b/c of public policy.


Issue(s):  Under tort law, does plaintiff’s conduct in regards to signing a release of liability before running on a racetrack preclude him from recovering for damages when he sustains injuries on the same racetrack?


Judge’s ruling:   Judgment affirmed with costs.


Court’s Rationale/Reasoning:  The public policy caveat to parties agreeing to forego liability claims is when one party holds the higher ground to the extent the other party is put at a disadvantage.  Nothing of this occurred, as Wilcom acted within its boundaries in the business relationship they had.  Although the court discussed increasing the scope of such exculpatory agreements (tending to clear from fault of guilt), but this case was not such an example of a business relationship where the scope would be increased.  Again, the agreement would have to be such that a reasonable person in Winterstein’s position would not have known of the provisions to fail for want of mutual consent.


In regards to the traditional view that where defendant’s negligence consists of the violation of a statute, the plaintiff may still assume the risk, there is a growing tendency to the contrary where a safety statute enacted for the protection of the public is violated.  This is b/c the public feels no private industry should be able force another party to waive such a right.  However, there was no violation on the part of Wilcom when Winsterstein decided to forego liability; there was no pressure economically, socially, or behaviorally to sign the release.


Release from such injuries when injured may come when the defendant has negligently, reckless, or wantonly hidden, lied or misled the other party into a false sense of security regarding their personal safety.  Here there was no such instance of any behavior, as the piece of debris on he track was an accident.


Significance: When a party signs a release for its safety from a particular event or occurrence and then gets hurt, the following factors are taken into advisement:  (1) was the party signing the release goaded or tricked or forced into doing so; (2) was there a lack of truth, knowledge or extent of potential danger known to the plaintiff at the time of the signing; (3) and if it wasn’t, was there a hiding of such truths or knowledge from plaintiff.


XI. Defenses

A. Plaintiff’s conduct

1. Contributory negligence


Case Brief:

Style (name of case): Butterfield v. Forrester (1809)


Cause of action:  The following is a cause of action for obstructing a highway, by means of which obstruction, the plaintiff, who was riding along the road, was thrown down with his horse and injured.


Parties:  Butterfield is the injured party, and Forrester is the party charged with the negligent obstruction.


Procedural Facts (what happened in court): Jury instruction at trial said a person riding with ordinary care could have seen the obstruction and avoided it, and if they were satisfied the rider was riding without due care they could find for the defendant, which they did.  Rule nisi prius motioned for by plaintiff based on this instruction.


Substantive Facts (how’d they get to court): Defendant, trying to make some repairs to his house, which was close to the road by the road side at one end of town, had put up a pole across this part of the road, a free passage being left by another branch or street in the same direction.  The plaintiff left a public house not far from where the place in question was at 8PM, when they were just beginning to light candles, but there was still enough light to see the obstruction from 100 yards away.


A witness, who proved this, said the plaintiff shouldn’t have ridden so hard so as not to see the obstruction and could have avoided it.  But the plaintiff was riding hard and fell due to some of this speed in addition to his horse.  There was no evidence of his being intoxicated.


Issue(s): Under tort law, was there a defense to negligently leaving an obstruction on the road in that the obstruction could be seen when taking ordinary care to the road when a rider on his horse fell after not seeing the obstruction.


Judge’s ruling:   Rule refused.


Court’s Rationale/Reasoning: In this situation, the obstruction was not forcing the plaintiff to ride in a negligent manner, like for example driving on the wrong side of the road.  Here, the obstruction was in plain view and could be avoided by ordinary means, if he were taking due care.  He didn’t by riding hard, and it is his fault.


Significance: When there is an obstruction in the road by fault of defendant and no need for ordinary care by plaintiff, a sustainable cause of negligence may be brought successfully.


2. Comparative negligence


Case Brief:

Style (name of case): McIntyre v. Balentine (1992)


Cause of action:  The following is a cause of action for personal injury.


Parties:  McIntyre is the injured party who was driving the pickup truck; defendant is the trucker who hit the plaintiff.


Procedural Facts (what happened in court): Trial jury found plaintiff and defendant equally at fault and rule in favor of defendant.  Court of Appeals affirmed, holding that comparative negligence is not the law in TN.


Substantive Facts (how’d they get to court):  Defendant was traveling south on hwy. 69, and plaintiff entered the hwy. Also traveling south form the truck stop parking lot. Shortly after plaintiff entered hwy., his pickup truck was struck by defendant’s peterbuilt tractor.  At trial, the parties disputed the chronology of the events immediately preceding the accident.


Both parties were drinking; plaintiff’s BAC was .17, and defendant was speeding.  Plaintiff brought a suit for negligence.  Defendants answered plaintiff was contributory negligent by way of his drinking before the accident.


Issue(s): Does the common law rule of contributory negligence apply to an accident when both parties are involved in a car accident?


Judge’s ruling:   Judgment of Court of Appeals in reversed in part and affirmed in part, costs equally to parties.


Court’s Rationale/Reasoning:   The common law rule stated a person being in fault will not dispense with another’s using ordinary care (Butterfield).  The courts here followed a rule that a plaintiff’s own negligence barred him from recovery from any negligence on defendant’s part, as there is no longer proximity to the defendant’s action.  However there are exceptions to an “all-or-nothing” type ruling:  when defendant’s conduct is intentional, when defendant’s conduct  is grossly negligent, where the defendant had “the last clear chance” with through the ordinary care could avoid a plaintiff’s injury, or where a plaintiff’s negligence is classified as “remote”.


Now the court is faced with a case where justice is at stake involving comparative negligence.  Litigants cannot be completely be denied the right to contribution for their injuries simply b/c of their own negligence.  So, the court will adopt a new standard.


In the purest form, plaintiff’s damages are reduced in proportion to the percentage negligence attributed to him; modified form plaintiffs recover as in pure jurisdictions, but only if the plaintiff’s negligence either (1) does not exceed 50 percent jurisdictions, or (2) is less than 49 percent jurisdictions the defendant’s negligence.


Here, the plaintiff and defendant were equally at fault, so this case is remanded to look further look into the percentages of award being awarded by the jury.


The doctrines of remote contributory negligence the last clear chance obsolete.  In cases of multiple tortfeasors, plaintiff will be entitled to recover so long as the plaintiff’s fault is less than the combined fault of all tortfeasors.  Doctrines of joint and several liability are obsolete; comparative negligence usually barred a negligent plaintiff from recovery, which is unjust.  Also, b/c a particular defendant will also be liable only for the percentage of a plaintiff’s damages occasioned by that defendant’s negligence, situations where a defendant has paid more than his share of a judgment will no longer arise.


Significance: So long as a plaintiff’s negligence remains less than the defendant’s negligence the plaintiff may recover; in such a case, plaintiff’s damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.


3. Assumption of risk – express

4. Assumption of risk – implied


Case Brief:

Style (name of case): Rush v. Commercial Realty Co. (1929)


Cause of action:  The following is a cause of action for damages as a result of a fall through a floor in a rented house.


Parties:  Plaintiffs were tenants of the defendant.


Procedural Facts (what happened in court): Trial court found in favor of plaintiffs, refusing to find a nonsuit for defendants, and then a verdict for defendant at trial. Defendant appeals on both the nonsuit and the directed verdict.  Plaintiff claims defendant failed to act by maintaining a safe area for which to live/lease.  Defendant claimed plaintiff assumed fault


Substantive Facts (how’d they get to court):  Plaintiffs signed an agreement to use both of defendant’s adjoining houses.  Mrs. Rush went inside to one of them and either fell through the floor or through the trap door, and that the risk was all on plaintiff.


Issue(s): Under tort law, was there a violation of an implied duty of care on behalf of a building’s landlord to his tenants when


Judge’s ruling:   Judgment affirmed, as there was no error in denying the motions to take the case from the jury when plaintiff sustained injuries after falling through the floor in a home she rented from the defendant?


Court’s Rationale/Reasoning: The landlord has a constant duty of care to maintain said building, as well as to ensure no defects would affect tenants.  This is, unless, there is some contributory negligence on the part of the plaintiff, which in this case there wasn’t.  This would also constitute an assumption of risk on the part of the plaintiff, which the court said did not occur either.

Significance: The owner of property under his control is subject to liability for failure to maintain and avoid a defective condition












Case Brief:

Style (name of case):  Blackburn v. Dorta (1977)


Cause of action:  The following is a cause of action for damages for comparative negligence regardless of an assumption of risk on plaintiff’s part in several cases.


Parties:  N/A.


Procedural Facts (what happened in court): N/A.


Substantive Facts (how’d they get to court): This is an explanation.


Issue(s): Is the doctrine of assumption of risk viable as an absolute bar to recovery subsequent to adoption of the rule of comparative negligence, or could they be consolidated by conflict certiorari jurisdiction?


Judge’s ruling:   (see holding)


Court’s Rationale/Reasoning: There are primary and secondary assumption of risk.  Primary is another another way of saying the defendant was not negligent, either b/c he owed no duty to the plaintiff anyway, or b/c he didn’t breach the duty owed.  Secondary assumption of risk is an affirmative defense to an established breach of a duty owed by the defendant to the plaintiff.  Primary assumption of risk came up under the master-servant doctrine of common law, where the master owes a duty of care to operate (whatever) with the degree of care of an ordinary prudent person under similar circumstances.


As far as secondary assumption of risk goes, there is a strict/pure category and there is qualified//unreasonable type.  Pure would bar a tenant from recovering damages for injuries sustained if he returned home to see his building on fire with an infant trapped and if he saved that infant b/c he voluntarily exposed himself to those injuries.


But now such analysis must be brushed aside if the tenant’s act is reasonable under the circumstances.  If, however, the tenant, decided he was going to rush in and save his favorite hat, then the conduct would be so unreasonable as to bar him from recovery.  No prudent man under the circumstances would do such a thing.


Significance: No.  The affirmative defense of implied assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence enunciated in Hoffman v. Jones shall apply in cases where such defense is asserted.  The apportionment of damages shall be able to occur under the theory of comparative negligence even when there is contributory negligence on the plaintiff’s part (they won’t be barred from recovery under this presumption anymore).


5. Statutes of limitations and repose


Case Brief:

Style (name of case): Teeters v. Currey (1974)


Cause of action:  The following is a cause of action for malpractice.


Parties:  Plaintiff/appellant is the mother who learned of the child, while the defendant is the doctor who delivered the child.


Procedural Facts (what happened in court):  Trial court dismissed.


Substantive Facts (how’d they get to court):  6/5/70, plaintiff gave birth to a child, and defendant was the attending surgeon.  Following delivery, b/c of medical conditions, defendant recommended she get her tubes tied, which she agreed to and recovery was uneventful.


12/6/72:  plaintiff was hospitalized at a hospital and attended by a second doctor who discovered she was pregnant and referred her to the appropriate doctor.


3/9/73:  plaintiff delivers a premature child with severe complications.  Tubal ligation again recommended and she acquiesced on 3/11/73.  Plaintiff sues 3 years, 5 months and 9 days after the operation but approximately 11 months after her pregnancy.


Plaintiff contends she should be able to recover under malpractice premise, while defendant contends she exceeded a one year statute of limitations for such lawsuits.


Issue(s): Under tort law regarding medical malpractice, does the statute of limitation begin to run from the date of the injury or from the date of the discovery of the injury when a mother gives birth to an abnormal child?


Judge’s ruling:   Reversed and remanded.  Appellee pays all costs incident to the appeal.


Court’s Rationale/Reasoning: Almost a half century ago the courts said the statute of limitations was the law, but under certain circumstances (like the ones we have here), a party could file suit beyond the statute of limitations.   But now the court wants to make sure they are under the right standard, so they look to other states.  They also want to make sure they are still promoting justice, while also preventing others from bringing about stale claims (but the ones which should not be brought if they are stale).


There is a “discovery doctrine” which is being adopted by some states to allow situations like the one described to be applicable when a party wants to bring about a suit past the statute of limitations.  28 states so far have adopted some form of this rule, and this court doesn’t want to be in the majority.


Thus, the time when the mother discovered when she was pregnant again will be the time when the timeline begins for the statute to start running, and her suit may be brought.


Significance: When suits are brought b/c of negligence of a particular party and this negligence is not discovered until after the statute of limitations has run out, then the suit will be allowed to stand.


In those cases where medical malpractice is asserted to have occurred through the negligent performance of surgical procedures, the cause of action accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury.



6. Immunities

Topic Notes:


Privilege avoids liability for tortious conduct only under particular circumstances, and b/s those circumstances make it just and reasonable that the liability should not be imposed.


An immunity on the other hand avoids liability in tort under all circumstances, within the limits of the immunity itself.  It is conferred, not b/c of the particular facts, but b/c of the status or position or relation of the favored defendant.  It does not deny the tort, but the resulting liability.  Immunity does not mean that conduct would amount to a tort on the part of other defendants is not still equally tortious in character, but merely that for the protection of the particular defendant, or of the interests that the defendant represents, absolution from liability is granted.


Now the biggest question these days is what is to be the scope of the duty owed by defendants who were previously immune from suit.


XII. Vicarious Liability

A. Respondeat Superior


Case Brief:

Style (name of case): Lundberg v. State (1969)


Cause of action:  The following is a cause of action for a reversal of damages as a result of an automobile accident.


Parties:  Claimant’s husband was killed by employee of the state of New York.


Procedural Facts (what happened in court): Settled with Sandilands for $20K and went to court with the state and was awarded damages in the amount of over $73K. Appealed.


Substantive Facts (how’d they get to court): Sandilands was trying to pass a car on a highway and got into a head-on collision with plaintiff’s husband, who died as a result of injuries sustained.  Sandilands was an employee of the state of NY.  There is no question the act which caused the death of plaintiff’s husband was the result of negligence.


The state apparently had agreed to pay Sandilands’ weekend travel expenses in the form of a mileage allowance.


Issue(s): Under tort law of vicarious liability, can a state as a party be held liable for negligence when its employee is responsible for the death of another through their actions?


Judge’s ruling:   Order of appellate division should be reversed and the claim against the defendant be dismissed.


Court’s Rationale/Reasoning:  First, Sandilands was not operating in a manner which would be acting in the scope of his employment.  Also the state didn’t have the power to control Sandiland’s activities after the close of work on Friday until the commencement of work on Monday, as he was free to do what he wanted, which means travel anywhere. Moreover, just b/c the state was paying for Sandiland’s mileage, there was no bestowment of control over it’s employer.  To say the employer should be responsible just because the mileage was paid by them would be unfair and outside the scope of respondeat superior.


Significance:  No.  Doctrine of respondeat superior: an employer will be liable for the negligence of an employee committed while the employee is acting under the scope of his employment.  An employee acts in the scope of his employment when they are doing something in furtherance of the duties they owe to their employer and where the employer is, or could be, exercising some control, directly or indirectly, over the employee’s activities.


As a general rule, an employee driving to and from work is not acting in the scope of their employment.



Case Brief:

Style (name of case):  Fruit v. Schreiner (1972)


Cause of action:  The following is a cause of action for damages against a driver and his employer as the result of an automobile accident.


Parties:  Fruit is the appealing party who crushed appellee’s legs when his car skidded of the road and struck him while on a business trip.


Procedural Facts (what happened in court): Trial court ruled in favor of defendant, finding him negligent and awarded him $635K.  Jury found Fruit was an employee acting within the scope and course of his employer at the time of the accident, under the doctrine of respondeat superior.


Substantive Facts (how’d they get to court):  Fruit is a life insurance salesman for Equitable Life.  He was required to attend a sales conference conducted by Equitable.   Convention was business and social and was encouraged “to mix freely” with out-of-state colleagues.  On second night, appellant drove to Waterfront Bar and Restaurant to meet some conventioneers and found none, so starting driving home at 2 AM.


While on his way home, Fruit’s car skidded  across a highway and struck a disabled vehicle.  Schreiner was standing in front of the vehicle and his legs were crushed in the impact.  Fruit argues appellant was acting under the scope and course of his employer, while appellant counters, saying his scope ended when he left the restaurant.


Issue(s):  Under tort law of respondeat superior, is appellant’s company responsible for an employer’s actions while on a 3-day business trip when while on the way back from meeting business colleagues at a bar, his car skidded off the road and struck appellee, crushing his legs?


Judge’s ruling:   On appeal, verdict affirmed.


Court’s Rationale/Reasoning:  Since the court was operating under the scope of vicarious liability, justification may not be found on theories involving the employer’s personal fault such as their failure to exercise proper control over the activities of his employees or their failure to take proper precautions in firing or hiring them. Lack of care on the employer’s part would subject him to direct liability w/o the necessity of involving respondeat superior.


The court really focuses on “scope of employment.”  But, the court has a hard time making a bright line rule regarding the area.  The acts of the employed need to justify that the employer bear the loss.  Employees’ acts sufficiently connected with the enterprise are in affect considered deeds of the enterprise itself.  Where through negligence such acts cause injury to others it is appropriate that the enterprise bear the loss incurred.  This will be a case by case analysis.


Here, Fruit’s employer, Equitable, made a contract with each employee to attend a sales conference.  Once at the conference, each employee was left to deal with transportation on their own terms, and many of the agents decided to drive their own cars.  Equitable even admitted the scope of the convention included social, as well as business engagements, and such engagements were not limited to the conference headquarters.


Based on such information, it is evident a fair-minded person exercising reasonable judgment could differ as to whether Fruit’s activities in returning from the restaurant to the convention headquarters were within the scope of his employment, and thus the jury verdict stands.


Significance: Doctrine of respondeat superior: an employer will be liable for the negligence of an employee committed while the employee is acting under the scope of his employment.  An employee acts in the scope of his employment when they are doing something in furtherance of the duties they owe to their employer and where the employer is, or could be, exercising some control, directly or indirectly, over the employee’s activities.


B. Independent contractors


Case Brief:

Style (name of case): Murrell v. Goertz (1979)


Cause of action:  The following is a cause of action for damages as the result of a battery claim.


Parties:  Goertz and co-defendant publisher Oklahoma Publishing Company are the parties who damages are sought against for a battery claim against Mrs. Murrell.


Procedural Facts (what happened in court):  Trial court summary judgment in favor of the defendant.


Substantive Facts (how’d they get to court):  Goertz, who was making monthly collections for the delivery of appellant’s newspaper, the Daily Oklahoman.  Appellant questioned Goertz concerning damage to her screen door caused by the paper boy hitting it with newspapers.  Argument ensues, culminating in appellant slapping Goertz, who in turn struck appellant.


Appellant alleges injury in the sum of $25K, and sues newspaper, saying Murrell was an employee of the newspaper.  Newspaper says Murrell was an independent contractor and not an employee.


Issue(s):  Under tort law of vicarious liability, is a newspaper responsible for a tortious action of a bill collector under the doctrine of respondeat superior when he batters a customer?


Judge’s ruling:   Court of Appeals affirmed.


Court’s Rationale/Reasoning:  The line of demarcation between an independent contractor and a servant/employee is not clearly drawn.  An independent contractor is one who engaged to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected with the performance of the service except as to the result thereof.  The parties agree the decisive test for determining whether a person is an employee or an independent contractor is the right to control the physical details of the work.


Appellant cites the high degree of control the newspaper has over Murrell, ranging from the route he goes through, standard policy of delivering papers, customers who were missed by the carrier called appellee to report it, customer complaints were lodged with appellee, and new subscribers called appellee to initiate service.


Appellee claims Goertz is an independent contractor, and was hired by Westbrook to collect, and was doing just that at the time of the incident.  The terms of the contract even state Murrell was an independent and not subject to supervision, dominion and control of appellee as to the manner and performance considering his job.  Through such evidence, it is clear appellee was an independent contractor, and not acting under the scope of the newspaper.


Significance: The parties agree the decisive test for determining whether a person is an employee or an independent contractor is the right to control the physical details of the work.


XIII. Strict Liability

A. Ainmals

Topic Notes:

Strict liability

Strict liability is when the defendant has to pay damages although the defendant neither intentionally acted nor failed to live up to the objective standard of reasonable care that traditionally has been at the root of negligence law.



The care and maintenance of animals is one of the first areas selected by courts for the strict imposition of strict liability.  Liability may be imposed on those who keep, possess, or harbor the animal, not just the owner.


Trespassing Animals

The owner of animals of a kind likely to roam and do damage is strictly liable for their trespasses.  The kind are limited (sheep, cattle, common fowl, hogs, goats, chickens, and even pigeons.  Dogs and cats not included.


“fencing out” statutes said when a party fenced in their animals, they were strictly liable when they escaped.


Wild animals

Under common law, owner or possessor of a nondomesticated animal was subject to strict liability if the animal injured anyone.


Some courts have applied a negligence standard with regard to the liability of persons who display wild animals to the public, although the standard of care is often raised to one of extreme caution.


Domestic animals

Common law rule is that a domestic animal such as a dog or cat is entitled to one bite, but the cases do not bear this out.  If the owner knows or has reason to know the animal they possess has a vicious propensity to harm another, they are strictly liable.  But the term vicious is not the test, it is instead whether the animal has “a dangerous propensity abnormal to its class.”


If the plaintiff is unable to prove that the owner knew or should have known of their animal’s nature, then strict liability does not apply and plaintiff must prove negligence in order to recover.  State statutes have effected this standard, by requiring some owners to get muzzles or leashes for their pets (negligence per se), or by putting up signs that say “BAD DOG” in a prominent place for notice to invitees.


B. Abnormally dangerous activities

RYLANDS V. FLETCHER (1865, 1866)

Case Brief:

Style (name of case):  Rylands v. Fletcher (1865, 1866)


Cause of action:  The following is a cause of action for damages from a flood to plaintiff’s mine.


Parties:  Defendants owners of a mill, which flooded plaintiff’s mine.


Procedural Facts (what happened in court): Original court of the exechequer 2-1 for defendant, holding the damage not not immediate but mediate or consequential.  Also held there was no nuisance, b/c defendants were doing a reasonable act, and that the same rule must apply to personal property, that there must be negligence on the part of the defendant to make him responsible.


Plaintiff brought error to the judge’s chamber.


Substantive Facts (how’d they get to court): Plaintiff owns several mines that are not on but adjoining defendant’s mill.  Defendant contracted to build a reservoir, and upon the engineering portion of the work discovered 5 what they thought were abandoned mine shafts.  Reservoir completed and partially filled with water, and the weight of the water collapsed under the mine below and flooded it.


Defendant claims they were acting reasonably under the circumstances, while plaintiff claims the actions taken were dangerous in nature.


Issue(s): Under tort law of strict liability, is a defendant mill held responsible for the damage below to plaintiff’s mine when there was no intent of doing so, and the defendant was under the impression the mines were not in use, when defendant’s reservoir collapsed under its weight and flooded plaintiff’s mine shaft?


Judge’s ruling:   On appeal, reversed and ruled in favor of plaintiff.


Court’s Rationale/Reasoning:  The plaintiff, though free from all blame on his part, must bear the loss, unless they can establish that is was the consequence of some default for which the defendants are responsible.  Here, the court finds the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there any thing likely to do mischief if it escapes, must keep at their peril, and if they do not do so, is prima facie liable for all damage which is the natural consequence of its escape.


The defendant does have the chance to shift the liability away from themselves, if they can prove the escape was due to plaintiff’s default or if it were through a greater or superior force, or even through an act of G-D.  This rule is based on principle, and here applies to the owner of the reservoir whose water had the potential to cause great damage if it escaped, and did when it flooded plaintiff’s mine.


Significance: Yes.  There is an obligation to those who bring on their land something while though harmless as it is there, could naturally do mischief if it escape out of their land.  Under such circumstances, they must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbors.  The duty is absolute in such instances, and this applies to beasts, water, filth or stenches.



Case Brief:

Style (name of case): Bridges v. The Kentucky Stone Co., Inc. (1981)


Cause of action:  The following is a cause of action for the death of plaintiff’s son and for damages to plaintiff and his other son.


Parties:  Bridges is the injured party, which occurred through the alleged negligence of defendant Webb and Kentucky Stone.


Procedural Facts (what happened in court): Trial court granted summary judgment to defendant.  Summary judgment reversed in Court of Appeals.


Substantive Facts (how’d they get to court): Dynamite exploded in the home of plaintiff, which killed one of plaintiff’s sons and injured plaintiff and his other son. Kentucky Stone named as co-defendant on the basis that it had “negligently kept and stored” dynamite and other ultra-hazardous explosives at its Tyrone plant, thereby permitting Webb to obtain the explosives ultimately used at the Bridge’s home in Johnson County.


Issue(s):  Under tort law of strict liability, is the defendant company responsible for its property when stolen and used at a later date when the property is dynamite and it is used to blow up and kill and/or injure plaintiff and his sons?


Judge’s ruling:   Judgment of Court of Appeals is vacated, and the judgment of the trial court is affirmed.


Court’s Rationale/Reasoning: The court was asked to find for plaintiffs based on the Yukon case, where the explosion of massive quantities of explosives were held against the defendants b/c the mere storage of such explosives were held ultra-dangerous.  This court rejects such a per se judgment, wanting to decide cases as such on a case-by-case basis.


Here, the damage was not in relation to the theft of the dynamite from defendant’s storage facility, but after it was taken and was three weeks after the theft and over 100 miles from the storage site.  The disappearance of the dynamite was reported to federal authorities within 24 hours of the theft, as regulated by federal law.


Under such circumstances, the facts before the court find Webb a superceding factor in the explosion, with Kentucky Stone not liable for the damages to plaintiff, or his sons.


Significance: No.  Ultra-dangerous activity is going to be judged on a case-by-case basis.  Ultrahazardous activity applies to an activity that necessarily involves a risk of serious harm to the persons, land or chattels of others which cannot be eliminated by the exercise of utmost care and is not a matter of common usage. (first restatement)


Abnormally dangerous activity is held as such by courts depending upon the nature of the location where the activity takes place.  (second restatement)


Courts have found strict liability for blasting if it is done in an urban/residential area.  Some courts say nature of location is important in determining whether activity is ultrahazardous, while others impose strict liability for use but not storage.  Sometimes strict liability applies by calling the activity a nuisance.



Case Brief:

Style (name of case): Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. (1990)


Cause of action:  The following is a cause of action for repayment of costs for cleanup damages assessed by lower court.


Parties:  DF is a manufacturer of a highly toxic and flammable chemical called acrylonitrile.  Indiana Harbor Belt, the plaintiff switching line, which was originally held responsible for the leak described below.


Procedural Facts (what happened in court): Trial court found that strict liability applied and granted summary judgment for PL.


Substantive Facts (how’d they get to court): DF is a manufacturer of acrylonitrile (chem. Hereafter), which is highly flammable (30 degrees F) and toxic.  Manufacturing plant in Louisiana loaded 20K worth of chem. onto railroad car leased from N. American Car Corporation.  The next day, a train of the Missouri R.R. picked up the car at their siding.  Final destination was a plant in Jersey served by Conrail rather than by Missouri Pacific.  Missouri train carried chem. to yard of PL, a small switching lien that has a contract w/Conrail to switch cars from other lines to south of Chicago.


When car got to south of Chicago, workers there noticed fluid gushing from the bottom of the car.  The lid on the outlet was broken.  After 2 hours, the line’s supervisor was able to stop the leak, but it was feared as much as 20K gallons of chem. had leaked.  Since the stuff didn’t need much heat to become flammable, residents were evacuated all up and down the line near the yard, which lasted a few hours.


When the evac. was over, about one-quarter of the tank had leaked, but concerns over contamination of land and soil led to an EPA order for PL to clean the area, which cost some $981,022.75, which it sought to recover in this suit.  2 counts to the suit: (1) DF transported the car negligently, and (2) the transport of chem. in bulk thru the Chicago metro-area is an abnormally dangerous activity, which should leave DF strictly liable to the switching line, who had to bear the burden of cost.


Issue(s): Under tort law of liability, was DF chemical company strictly liable for an allegedly abnormally dangerous activity to a railroad switching line who had to clean up the aftermath of a chemical leak from DF company?


Judge’s ruling:   Judgment is reversed and remanded (with award of costs in this court) on the plaintiff’s claim for negligence.


Court’s Rationale/Reasoning: If there was strict liability, it would have to fall under the kind that is described in restatement 520.  PL would like to see this treated as a similar case to the storage of dynamite and its use.  There has to be a high existence of some harm to others, the harm has to be great, there has to be an inability to eliminate the risk even by due care, it cannot be of common usage, the activity’s place where it is carried on is inappropriate, and its dangerous attributes outweigh its importance to the community.


PL contends the DF was negligent in its having the chemical go through a large metropolitan city.  But this is a flimsy argument according to the court.  Past case history shows the user of the chemical or object which is abnormally dangerous is usually held responsible for actions resulting in harm or inconvenience to others.  The storers are also usually held liable.  In this event, it could be any of the handlers of the chemical once it left the siding of DF’s factory.


As for the metropolitan city argument, the court finds this to be irrelevant as well.  What if the whole tank spilled?  Isn’t this the risk that this might happen even if everybody were carefully sufficient to warrant giving the shipper an incentive to explore other alternative routes?  Yet railroads work on a hub system, and much of the hubs in this country are in major metropolitan cities.  To try and find another way would cost prohibitive.


On the same note, it is unrealistic to think the shippers themselves will become savvy in the laying out of the safest possible routes to avoid harm to may other people. Based on these facts, it’s easy to see how the handlers of the chem. could be held liable, but not the manufacturers.


Significance: In determining whether an activity is abnormally dangerous so as to give rise to strict liability, a court will consider the (a) existence of a high degree of risk of some harm to the person, land or chattels of others;(b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. Restatement (Second) of Torts ¤ 520


C. Limitations on strict liability


Case Brief:

Style (name of case): Foster v. Preston Mill Co. (1954)


Cause of action:  The following is a cause of action for damages as a result of ultrahazardous activity taken on by DF.


Parties:  Foster owns a mink farm, and DF Preston Mill is a blasting operation.


Procedural Facts (what happened in court): Trial court without jury ruled for PL, based on fact DF was warned about the possibility of harm to PL’s minks, and are absolutely liable for harm after being notified.


Substantive Facts (how’d they get to court): PL operated a mink farm, which was 2.25 miles away from where DF was conducting its blasting operation.  DF warned PL such blasting would cause a noise which would cause the mink’s mothers to kill their offspring.  Blasting went on after the notice and the mothers killed their offspring.  PL holds DF liable as the result of such ultrahazardous activity.


Issue(s): Under tort law for liability, does the ultrahazardous activity of blasting dynamite 2.25 miles away from PL’s business hold them strictly/absolutely liable for any resulting damages when PL’s business is a mink raising business, and mother minks kill their offspring from DF’s activity?


Judge’s ruling:   Judgment reversed.


Court’s Rationale/Reasoning: There is a policy reason for limiting this, as the court doesn’t want to see everyone try to find some proximate cause for their harm, although it is important to hold those who engage in highly dangerous activity responsible for any direct harm they cause others.


Here, the risk due to some vibration or noise from DF’s blasting, is not one of the things which is protected by restatement 521-4.  The vibration is modest and is 2.25 miles away from where the DF was conducting its blasting.  Even the trial court found the blasting did not unreasonably interfere with the enjoyment of property by nearby landowners (except for PL).


Minks are also a highly nervous animal, and DF cannot be penalized just b/c of the disposition of some animal, when the real harm is to normal persons or chattels from the highly dangerous activity of DF.


Significance: One who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although utmost care is exercised to prevent the harm. Restatement 521-4.



Case Brief:

Style (name of case): Golden v. Amory (1952)


Cause of action:  The following is a cause of action for damages as the result of an overflowed dam.


Parties:  PL represents several parties whose property was damaged by the overflow.  DF Amory built the dam which overflowed.


Procedural Facts (what happened in court): Trial judge directed verdicts on both counts for DF.


Substantive Facts (how’d they get to court): DF owned a hydroelectric plant and built a dam, which overflowed and caused damage to several nearby properties after a hurricane.


Issue(s): Under tort law of liability, is a hydroelectric company and builder of a dam strictly liable for damages to nearby homes as the result of flooding when a hurricane caused the overflow to occur?


Judge’s ruling:   No error found in trial court’s verdict and affirmed, exceptions overruled.


Court’s Rationale/Reasoning: Here there can be no strict liability for DF’s.  The rule below does not apply when there is an act “from vis major or act of G-D.”  This was an act of G-D, and was not controllable by DF, nor was it able to be anticipated, which is why the rule cannot apply.


Significance: The rule from Rylands v. Fletcher applies here: “the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his own peril, and, if they do not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”











Case Brief:

Style (name of case): Sandy v. Bushey (1925)


Cause of action:  The following is a cause of action for damages as the result of PL being harmed by DF’s chattel.


Parties:  Sandy is the harmed party, while Bushey is the owner of the horse which hurt PL.


Procedural Facts (what happened in court): Verdict for PL at trial.  Appealed on motion to overturn.


Substantive Facts (how’d they get to court): PL turned his mare and colt on in the pasture of a neighbor; other horses occupied the pasture during the season, including DF’s colt.  While out on pasture to grain his mare, DF’s horse harmed PL kicked).  PL sues for damages under the fact DF had the knowledge of is horse’s propensity for violent attacks.  DF contends PL was contributorily negligent in his failing to exercise due care.


Issue(s): Under tort law of strict liability, is DF horse owner solely liable for harm to PL when PL was on another’s property?


Judge’s ruling:   Motion denied (affirmed in essence).


Court’s Rationale/Reasoning: Careful consideration of the facts showed DF’s horse had the propensity for violent attacks prior to the day of the harm to PL, and such propensities were told to the DF.  As far as the contributory negligence argument goes, it would win out here, but since this state doesn’t have this standard of liability on the books yet, it is not applicable.


The details of the attack, where the horse came on initially in a violent manner, and then attacked again after being shoed away by PL so he could feed his horse, show the horse not only had a propensity for violent attacks, but that he actually acted in such a manner at the time of the accident.


Significance: The common law says owners or keepers of domestic animals are not answerable for an injury done by them in a place where they have a right to be, unless the animals in fact, and to the owner’s knowledge, are vicious.  If however, a person keeps a vicious or dangerous animal which he knows is accustomed to attack and injure mankind, he assumes the obligation of an insurer against injury by such animal, and no measure of care in its keeping will excuse him.  PL has to only allege and prove the animal’s violent nature, the propensities for attacking others, and the scienter (knowledge).



XIV. Products Liability

Topic Notes:

Products liability

Umbrella term for the liability of a manufacturer, seller, or other supplier of chattels, to one with whom he is not in privity in K, who suffers physical harm caused by the chattel.  The liability may rest upon the supplier’s negligence or upon a warranty, or it may be based on strict liability in tort.  Strict liability theories have become the paramount basis of liability for manufacturers of products, although negligence and breach of warranty remain important as well.


Ask yourself these questions in such cases?


1. Why is a liability rule necessary to assure product safety?

2. Is the market a viable mechanism for weeding out unsafe products?

3. If the market fails, should product safety be assured by gov’t. regulation given the institutional advantage of gov’t in broad information gathering, cost-benefit evaluation, predictability and uniformity?

4. Should the questions be confined to ones of efficiency or should justice also be considered?




A. Development of theories of recovery


Case Brief:

Style (name of case): MacPherson v. Buick Motor Co. (1916)


Cause of action:  The following is a cause of action for damages as the result of negligence.


Parties:  MacPherson is the party who bought the Buick from a retail dealer, who got the car from the defendant.


Procedural Facts (what happened in court): From a judgment of the Appellate Division, affirming a judgment of the Supreme Court for the plaintiff, defendant appeals.


Substantive Facts (how’d they get to court): While driving aforementioned car, it suddenly collapsed and threw him out of the car and injured him.  One of the wheels was made out of defective wood, and its spokes crumbled into fragments.  The wheel  wasn’t made by defendant, it was bought from another manufacturer.


There is evidence that its defects could’ve been discovered by reasonable inspection and that the inspection was omitted.  There is no claim DF knew of the defect and willfully concealed it.  The charge is negligence.


Issue(s): Under tort law of product liability, did DF car company owe a duty of care and vigilance to any one but the immediate purchaser, when the PL’s car was not purchased directly from DF, but from a retail dealer?


Judge’s ruling:   Judgment affirmed, with costs.


Court’s Rationale/Reasoning: It is possible to use almost anything in a way that will make it dangerous if defective.  This is a question for the court and sometimes a jury. There must be a usual course of events the danger will be shared by others than the buyer.  Knowledge may be often inferred from the nature of the transaction.  But knowledge of the danger and of the use will not always be enough.


Proximity or remoteness of the relation is a factor to be considered.    If the manufacturer of the product creates a danger which is foreseeable, there is negligence on the part of the manufacturer.  If A leases a townhouse to B, and B’s guests are injured, A is not liable unless there is fraud or misconduct.  B would have the duty to remember to fix things.  But if A leases to B for the purpose of entertainment, the injury to the lessees is to be foreseen, and foresight of the consequences creates a duty.


Since the DF made the car, they were responsible for all parts of it.  They bought the tires from a reputable manufacturer and assumed the duty for anything which could reasonably be foreseen as would happen.  The obligation to inspect must vary with the nature of the thing to be inspected.  The more probable the danger, the greater the need of caution.


Significance:  Yes.  If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger.  Its nature gives warning of the consequences to be expected.  If to the element danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of K, the manufacturer of this thing of danger, not merely possible, but probable.


B. Warranties

1. Express warranties


Case Brief:

Style (name of case): Baxter v. Ford Motor Co. (1932)


Cause of action:  The following is a cause of action for damages as the result of a lost eye.




Procedural Facts (what happened in court):


Substantive Facts (how’d they get to court):


Issue(s): Under tort law, is evidence within a catalog regarding shatterproof glass of a windshield admissible in court to prove the express warranty of DF Ford when the aforementioned glass broke and injured PL’s eye?


Judge’s ruling:   Find for PL with damages.


Court’s Rationale/Reasoning: Manufacturers are said to be liable to consumers, even though the commodity was bought from a third person, for the advertisements or claims made by the original manufacturer.  The rule rests on the principle that the original act of delivering an article is wrong, when, b/c of a lack of those qualities which the manufacturer represented it as having, the absence of which could not be readily detected by the consumer, the article is not safe for the purposes for which the customer would ordinarily use it.


Significance: Yes.  The catalogues and printed material furnished by Ford for distribution and assistance in sales were improperly excluded from evidence, b/c they set forth representations by the manufacturer that the windshield of the car which Baxter bought contained the material advertised which would not shatter under certain circumstances described.  The representation made by Ford would not be easily detected by Baxter, and he had a right to rely upon those statements made by Ford.










2. Implied warranties


Case Brief:

Style (name of case): Henningsen v. Bloomfield Motors (1960)


Cause of action:  The following is a cause of action for damages as the result of a car being driven into a wall.




Procedural Facts (what happened in court): Verdicts for plaintiffs.


Substantive Facts (how’d they get to court):


Issue(s): Under tort law of products liability, is a fine print warranty signed by PL purchaser allowed to enjoin any claim for damages from a crash when the warranty is refused to be performed on only after 90 days or 4K miles (which ever came first), and when the PL product in question fails to work properly?


Judge’s ruling:   Affirmed.


Court’s Rationale/Reasoning: This all started with food and drugs, things which courts could easily say were undetectable by parties who used them.  Now, with the ever-expanding commercial market, other products are coming into play.  Privity between buyer and maker do not have to be enforced if there is no way they can detect what is wrong with the product before it happens.  The demands of social justice and a fair market economy suggest this to the court.  Generally, buyers sign K’s and take their chances, short of fraud or misrepresentation, bur cars are highly regulated and these contracts need to be looked at closer.


Warranties on their face help protect buyers.  The buyer usually has to take or leave the warranty, as they are standard parts of K’s.  But the means in which the auto industry is giving out these warranties give an unfair advantage to the purchaser here.  In order to promote the spirit of justice, the burden is to protect the ordinary man against the loss of important rights.  Thus, this warranty is invalid.


Significance: No.  The court held that under marketing conditions, when a manufacturer puts a new car into the stream of trade and promotes its purchase by the public, an implied warranty that it is reasonably suitable for use as such accompanies it into the hands of the ultimate purchaser.











C. Strict liability in tort


Case Brief:

Style (name of case): Greenman v. Yuba Power Products, Inc. (1963)


Cause of action:  The following is a cause of action for damages as the result of a faulty product.


Parties:  Greenman is the injured party, allegedly from DF’s manufactured and retailed product.


Procedural Facts (what happened in court): At trial, before jury, court ruled there was no evidence the retailer was negligent or had breached any express warranty, and DF manufacturer was not liable for the breach of any implied warranty.  Judge submitted to the jury the cause of action alleging breach of implied warranties against the retailer and the causes of action alleging negligence and breach of express warranties against the manufacturer.


Jury found for retailer against PL, and for PL against manufacturer in amount of $65K.  Trial court denied new trial for DF manufacturer.


Substantive Facts (how’d they get to court): Product is a Shopsmith, a combination power tool which could be used as a saw, drill and wood lathe.  PL decided he wanted a woodshop and bought the thing, after a demonstration and reading a brochure about it.  After several successful uses, he decided to buy the lathe attachment, except this time the thing flew out of control and hit PL in the head.  10.5 months later, PL gave written notice of bringing cause of action against DF.


At trial, PL introduced evidence of defective design by DF manufacturer  Experts testified inadequate screws were used to hold parts of the machine together so that normal vibration caused the lathe attachment to move away from the piece of wood being turned causing it to fly out out of the lathe.


Manufacturer contends the PL did not give it notice of breach of warranty within a reasonable amount of time and therefore the claim is barred from a claim, b/c it could not be determined if the jury charge was for either the product negligence or the breach of warranty, the charge was prejudicial.


Issue(s): Under tort law of warranties, is DF manufacturer strictly liable for damages to PL user for injuries incurred when a product fails to work as advertised?


Judge’s ruling:   Judgment affirmed.


Court’s Rationale/Reasoning: Section 1769 (the rule in question) says PL’s can get damages for injuries, but cannot do so if brought within an unreasonable amount of time after they know of the breach.  But here this is not an arm’s length transaction, as PL did not deal directly with DF manufacturer.  In such an instance, the agreement not to tortiously harm another is imposed by law.  The need to protect customers here is the most important thing about strict liability, not the “intricacies of the law of sales.”


Significance: Yes.  Even if PL didn’t give timely notice of breach of warranty to the manufacturer, his cause of action based on the representations contained in the brochure was not barred.  A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without human inspection for defects, proves to have a defect that causes injury to a human being.










D. Product Defects

Topic Notes:

Products Defects – Liability of commercial seller or distributor for harm caused by defective products

(a) One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.


§2 – Categories of Product Defect

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective b/c of inadequate instructions or warnings.  A product:


(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;

(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.

(c) is defective b/c of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or as a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.



1. Manufacturing defect


Case Brief:

Style (name of case): Rix v. General Motors Corp. (1986)


Cause of action:  The following is a cause of action for


Parties:  PL is the injured party who sues for damages from DF manufacturer of car which hit him.


Procedural Facts (what happened in court):


Substantive Facts (how’d they get to court): PL maintains he was injured by an unreasonably dangerous 1978 2-ton chassis-cab, which had been placed in the stream of commerce by GMC.  The pickup he was driving was hit from behind by the cab, which had been equipped with a water tank after sale by the GMC dealer.


Both parties stipulated the accident occurred b/c of brake failure.  Expert testimony from both parties established the fluids necessary to the baking system had escaped when a brake tube came out of a nut where it fastened to the top of the booster   unit.  Witnesses also testified that the brake tube came out of the nut either b/c the tube broke or was improperly flared.  PL contends there was a manufacturing defect with the brake design, and GMC’s knowledge of available technology coupled with the extensive use of the vehicle should have mandated a dual braking system, which would’ve provided extra braking power.


GMC agreed the brake tube was ineffective, but added the tube had been altered after it left the GMC assembly line, so the defective tube was not their responsibility (defect not present when it left the assembly line, but was introduced by someone else who later altered the product).  GMC further contended the single system was neither a design defect nor unreasonably dangerous, and that the accident would have occurred even if the truck had been equipped with a dual brake system.


Issue(s): Under tort law of products liability, did the court properly instruct the jury on strict liability when they charged them with holding the manufacturer responsible for injuries if they made the product in question?


Judge’s ruling:   Reversed and remanded for new trial.  (But instructions were okay.)


Court’s Rationale/Reasoning: Under a manufacturing defect theory, the essential question is whether the product was flawed or defective b/c it was not constructed correctly by the manufacturer.  In other words, a defectively manufactured product is flawed b/c it is misconstructed w/o regard to whether the intended design of the manufacturer was safe or not.  Such defects result from some mishap in the manufacturing process itself, improper workmanship, or b/c defective materials were used in construction.


Significance: If a product has a material defect in construction that causes a personal injury to the user, strict liability usually will be imposed.  PL’s problems with be in the are of factual proof, and PL also has to prove the product in question deviated from the seller’s design, not what specific conduct of the manufacturer led to the defect. PL only needed to prove the brakes failed as a result of a manufacturing defect in the tube (strict liability), not what assembly line actions led to that defect.


2. Design defect


Case Brief:

Style (name of case): Prentis v. Yale Mfg. Co. (1984)


Cause of action:  The following is a cause of action for injuries sustained in an accident involving the operation of a hand-operated forklift manufactured by DF.


Parties:  Prentis injured party; DF is product manufacturer.


Procedural Facts (what happened in court): Trial court instructed jury as to only negligent design, and not breach of warranty, and held in favor of plaintiff.  Court of Appeals reversed.


Substantive Facts (how’d they get to court): PL was using a stand-up forklift which was operating on low battery power and using it to lift an engine.  The battery experienced a power surge and injured plaintiff’s hip.


Issue(s): Under tort law of products liability, did trial court properly instruct the jury as to instruct only as to negligent design as opposed to breach of warranty as well?


Judge’s ruling:   Judgment of Court of Appeals is reversed, and judgment of trial court is reinstated.


Court’s Rationale/Reasoning: There is no reason to instruct on both the issues of breach of warranty, as well as negligent design, as the two standards require the same evidence, but the jury might be confused and award on breach of warranty without finding for negligent design.


The standard of liability for negligent design:  a manufacturer of a product made under a plan or design which makes it dangerous for uses for which it is manufactured is, subject to liability to others whom they should expect to use the product or to be endangered by its probable use from a physical harm caused by their failure to exercise reasonable care in the adoption of a safe plan or design.


A manufacturer has a duty to use reasonable care in designing their product and guard it against a foreseeable and unreasonable risk of injury and this may include misuse which might be reasonably anticipated. (focus not only manufacturer conduct but on the product)


Significance: No.  In a products liability action against a manufacturer, based upon defective design, the jury need only be instructed on a single unified theory of negligent design.













Case Brief:

Style (name of case): O’Brien v. Muskin Corp. (1983)


Cause of action:  The following is a cause of action for strict liability damages as a result for injuries resulting from an uninvited dive into a pool.


Parties:  O’Brien is the injured party, DF Muskin is the pool manufacturer.


Procedural Facts (what happened in court):   Trial court instructed the whole time as to strict liability, but then charged the jury to only rule on the warning.  Judgment for DF’s.  Reversed at Appellate Division and remanded back to trial court.


Substantive Facts (how’d they get to court): Neighbor bought a 20’x20’x4′ pool, with a vinyl outer liner, which was filled three and a half feet with water;  the pool also had a sign on the side one-half inch high which said “DO NOT DIVE.”  PL arrived uninvited and dove into the pool and hit his head on the bottom (not sure if he jumped from a rooftop or from the side), sustaining injuries for which he brings his cause of action.


At trial, experts for both sides testified as to the slippery nature of the vinyl liner.  One expert for PL said he didn’t know of nay pool which did not have a vinyl liner, but that above ground pools should not, even though no alternate material was available.  Muskin’s service manager testified the vinyl bottom could have been thicker and the embossing deeper.  A fair inference could be drawn that deeper embossing would have rendered the pool bottom less slippery.


Issue(s): Did the trial court properly charge the jury in regards to strict liability on part of DF manufacturer in regards to the warning sign?


Judge’s ruling:   Modified and affirmed judgment of Appellate Division reversing and remanding the matter for a new trial.


Court’s Rationale/Reasoning: The necessity to proving a defect in the product as part of PL’s prima facie case distinguishes strict from absolute liability, and thus prevents the manufacturer from also becoming the insurer of a product.


Fundamental to the determination of a products liability case, including one predicated on a defective design or inadequate warning, is the duty of the manufacturer to foreseeable users..  The duty includes warning foreseeable users of the risks inherent in the use of that product, and not placing defective products on the market. Manufacturers who breach those duties are responsible to all injured parties.  In design defect or failure-to-warn cases, the product has been manufactured as intended and cannot be “defective” by comparison to a set standard set by the manufacturer.


The court turns its attention to “risk-utility analysis,” a standard which compares the utility of the product with the risk of injury that it poses to the public.  Risk-utility analysis is appropriate when the product may function satisfactorily under one set of circumstances, yet b/c of its design present undue risk of injury to the user in another situation.  Some of these factors include:


(1)The usefulness and desirably of the product — its utility to the user and to the public as a whole.

(2) The safety aspects of the product — the likelihood that it will cause injury, and the probable seriousness of the injury.

(3) The availability of a substitute product which would meet the same need and not be as unsafe.

(4) The manufacturer’s ability to eliminate the unsafe character of the product w/o impairing its usefulness or making it too expensive to maintain its utility

(5) The user’s ability to avoid danger by exercise of care in the use of the product.

(6) The user’s anticipated awareness of the dangers inherent in the product and their avoidability, b/c of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.

(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.


There is another factor using state-of-the-art evidence at the time of the manufacture of the product.    But this doesn’t mean a product may be state-of-the-art but still fail the risk-utility equation.  The utility analysis also involves the relative need for that product (essential vs. luxury).


In a design-defect case, PL has BOP of both going forward with the evidence and of persuasion that the product contained a defect.  To establish a prima facie case, PL should show sufficient evidence on risk-utility to establish a defect (ex: showing above-ground pools were designed for recreational, not therapeutic reasons, and that with such design problems, the product was designed poorly/negligently).  This is why the court finds the need for a new trial.


Significance: No.  Risk-utility analysis should be used, as well as state-of-the-art analysis might be able to be used to ascertain if the product in question was manufactured properly.


As a general rule, PL has BOP of proving (1)the product was defective; (2)the defect existed when the product left the hands of the DF; and (3)the defect caused injury to a reasonably foreseeable user.  Proof the product was defective requires more than a mere showing the product caused the injury.


3. Warnings defect


Case Brief:

Style (name of case): Anderson v. Owens-Corning Fiberglas Corp. (1991)


Cause of action:  The following is a cause of action for damages as the result of contracting a disease.


Parties:  DF’s are manufacturers of products which contained asbestos; PL is harmed party.


Procedural Facts (what happened in court): Verdict for DF’s, and trial court granted new trial and the parties argued on appeal the admissibility of state of the art evidence in a failure to warn case.


Substantive Facts (how’d they get to court): PL filed cause of action claiming he contracted asbestosis and other lung ailments thru exposure to asbestos and other products while working as an electrician at the Long Beach Naval Shipyard from  1941 to 1976.  PL allegedly contracted the disease from being around the removal and installation products aboard shipyards.


Issue(s): Under the theory of products liability, may the defendant in a cause of action for failure to warn a risk of harm, present evidence of the state of the art, evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture or distribution?


Judge’s ruling:   Judgment of Court of Appeals is affirmed with directions that the matter be remanded to the trial court for proceedings in accord with our decision herein.


Court’s Rationale/Reasoning: The reason for strict liability is to make the manufacturer absolutely liable, rendering it virtual to the insurer of the product’s safe use.  PL alleges if the state of the art evidence is brought into play, it makes a strict liability case fall under more of a negligence standard.


But the standard is not to make the manufacturer the insurer.  How can the insurer tell everyone something when they don’t about it to begin with.  This is why the state of the art evidence needs to be brought in to show the DF did not know, and when they might have.  BOP is still on DF.  There has to be a limit on standards of recovery on PL’s part.


Significance: Yes.  Defendants, in the interest of keeping with the policy of strict liability, be able to present evidence in an instance to show knowability.  Such an inability would place undue foreseeability on the part of a manufacturer.  Evidence may be presented to show the DF  did not know of the particular risk or was knowable at the time of manufacture/distribution.


E. Proof


Case Brief:

Style (name of case): Friedman v. General Motors Corp. (1975)


Cause of action:  The following is a cause of action for damages as the result of a car going forward upon turning the ignition.


Parties:  Friedman is the injured PL, as he and 3 of his family members were injured in DF’s car.


Procedural Facts (what happened in court): Trial court granted GM’s motion for directed verdict on the ground that PL hadn’t proved that the vehicle was defective. Intermediate appellate court reversed.  .


Substantive Facts (how’d they get to court): PL put keys in the ignition for his 17-month old Oldsmobile while the gearshift selector was in drive; PL didn’t think the car would go forward, but it did.  In the commotion surrounding the jerking of the car forward, three of PL’s members of his family were hurt in the crash.


PL brings claim against manufacturer GM for the failure of the car to work properly.  To sustain their allegation against GM, PL’s were required to prove that the Oldsmobile Toronado was defective, and that the defect existed at the time the product left the factory, and that the DF was the direct and proximate cause of the accident and injuries.


Issue(s): Under tort law of strict product liability, may PL bring proof of a product’s defective nature when it brings a cause of action against DF manufacturer?


Judge’s ruling:   On further appeal, judgment affirmed.


Court’s Rationale/Reasoning: When circumstantial evidence establishes a prima facie case for liability, then the court will listen.  Here, the testimony of the retailer-dealer shows the linkages and adjustments existing at the time of the accident were the same ones that came off the assembly line, and was a defect created by GM and not by some third person after delivery.


The PL’s testimony could show, however, that the car should’ve always been started in park, and that but for his negligence, this defect would never have occurred. Furthermore, the gear shift indicator and tranny always worked fine before the accident, so when it indicated drive the day of the accident, it could have just been following orders (from the driver).


Eyewitness testimony puts the PL’s case over the top:  the tires accelerated at a rate of 30 MPH in 5 seconds immediately upon ignition, that the car’s tranny was in a forward position and was jammed, upon impact in the same position.  Additionally, the car should not have started unless it was in neutral or park.  Thus, on its face, there is a solid case of strict liability which could be brought forward in a court of law.


Significance: Yes.  A defect may be proven by circumstantial evidence, where a preponderance of that evidence establishes that the accident was caused by a defect and not other possibilities, although not all other possibilities need be eliminated.


Dissent: Any products liability case starts with proving negligence on the part of the manufacturer, and allowing an inference of a bunch of experts and eyewitness to prove there was a defect is out of the scope of the BOP.  PL merely establishes there was a defect, nothing more.


If this were res ipsa loquitor, the PL would have to prove (1) an assumption of negligence, which is rebuttable, but must be proven negligence is almost always the likely reason for the accident, (2) the DF had dominion and control over the instrumentality, and (3) damage.


F. Defenses

1. Plaintiff’s conduct

GM CORP. (1978)

Case Brief:

Style (name of case): Daly v. General Motors Corp. (1978)


Cause of action:  The following is a cause of action for damages to decedent as the result of an allegedly defective door latch.


Parties:  Daly is the party for the decedent; GM is the manufacturer of the Opel brand car in which the accident occurred.


Procedural Facts (what happened in court): Trial jury found in favor of the DF.


Substantive Facts (how’d they get to court): Decedent was the victim of an Opel brand automobile was thrown from his car; evidence at court he wasn’t using the shoulder harness system or had the door locked at the time of the accident, and that he was intoxicated.


Issue(s): Under tort law of product liability, does a driver’s own alleged negligent conduct (comparative negligence) which results in his death be interposed against a products liability claim by PL?


Judge’s ruling:   Judgment is reversed.


Court’s Rationale/Reasoning: Strict liability is not absolute liability, and under strict liability the manufacturer doesn’t become the insurer of anyone hurt in one of its products.  Thus the manufacturer is not held responsible when the damage is unforeseeable from their product.


It may also be said most forms of contributory negligence do not constitute a defense to a claim of strict liability, but PL’s negligence is a complete defense when it comprises assumption of risk.  There are 3 reasons why the court says comparative negligence will not be merged with strict liability, but they will be extended to them:


(1) so PL’s who are blatantly negligent might have their damages reduced (but can’t bar a claim for recovery)

(2) so DF manufacturers still have the incentive to make good products which keeps the heat on their liability

(3) so triers of fact are not left with a logistical quandry of assessing PL’s negligence vs. DF’s strict liability (but the court says jurors can make this distinction)


Significance: No. “We have sought to place the burden of loss on manufacturers rather than ‘injured persons who are powerless to protect themselves to protect themselves.'”



Case Brief:

Style (name of case): Ford Motors Co. v. Matthews (1974)


Cause of action:  The following is a cause of action for damages as the result of a tractor accident.


Parties:  Ford is the appealing party, who was the manufacturer of the tractor which decedent used; administratrix is suing.


Procedural Facts (what happened in court): Trial court sitting w/o jury found for PL.  Ford appeals.


Substantive Facts (how’d they get to court): Earnest Matthews was killed as a result of being run over by his tractor and dragged underneath a disc attachment.  It was alleged Matthews was standing beside his tractor when he started it, and the tractor was in gear at the time.  The Ford tractor in question was equipped with a starter safety switch which was designed to prevent the tractor from being started in gear.  PL claims the plunger connected with the safety switch was defective, and allowed the tractor to be started in gear.


Ford contends the product was used improperly by the decedent, which would be a bar on PL’s recovery.  They cite to restatement 402A as a bar to PL’s recovery.


Issue(s): Under tort law of product liability, may DF point to restatement 402A, regarding PL’s misuse of a product after it was in perfectly good shape out of the factory, as a defense to a strict liability case when decedent dies while using DF’s product?


Judge’s ruling:   Trial court’s damages were not excessive and affirmed.


Court’s Rationale/Reasoning: It is true the decedent may have been negligent in not making sure the tractor was in neutral, but for the starter switch malfunctioning, this accident could have been avoided.  Along this line of argument, there is no evidence decedent was never warned of such a danger, or knew of such a danger.  So, this was not a misuse of the tractor so as to relieve Ford of strict liability.


A manufacturer is not liable when the misuse is not foreseeable, but in this case, there was no unforeseeable misuse of the tractor.  It could be foreseen a careless operator might crank the engine without having the machine not be in gear beforehand.  So, even if decedent was negligent, it was a negligence which was reasonably foreseeable.


Significance: Yes, but not here.  The appellant does not apply b/c the DF’s product does have a defect in the starter switch to prevent the tractor from cranking in gear was the cause of the accident.


G. Defendants other than principal manufacturers,harm besides PL


Case Brief:

Style (name of case): Peterson v. Lou Bachrodt Chevrolet Co. (1975)


Cause of action:  The following is a cause of action for damages as the result of wrongful death based on product liability for a used car sold on DF’s lot.


Parties:  Peterson is the family who is suing for their dead daughter and injured son as the result of a car purchased at DF’s dealership (driver, the owners also in the suit).


Procedural Facts (what happened in court): Circuit court dismissed two counts of the complaint and this ruling is before the Supreme Court on appeal.


Substantive Facts (how’d they get to court): Peterson daughter, age 11, died, and Peterson son, age 8, was injured and had to have his leg amputated, when a car struck them. The car was a 1965 Chevrolet and was sold used in 1971 out of DF’s dealership.  It was alleged the car was defective when it left DF’s place of business.


It was alleged the springs of the left front wheel braking system were missing when the car left the lot, as well as one of the left rear brake shoes being nearly worn out, not to mention a part of the cylinder braking system in the left rear wheel was missing at the time of the sale.


Issue(s): Under tort law of strict liability, may a claim for wrongful death be based on product liability against a used auto dealer?


Judge’s ruling:   Decision of appellate court is reversed.  Appellate court reversed, circuit court affirmed.


Court’s Rationale/Reasoning: Previous case law shows the manufacturer can be held strictly liable from the condition of a product, that the condition was an unreasonably dangerous one and that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.  The courts have also held a wholesaler responsible when his product was defective when it passed through its doors unchecked.  But here, as in the case of a DF who is outside the line of the original producing and marketing chain.


Creating the imposition of strict liability is for those parties who have created the risk and who benefit the profit by placing said product in the stream of commerce. Wholesalers are in this scope, so they can apply the same pressure the courts do to manufacturers.  This is to provide a whole bunch of checks on down the line so as to prevent such injury/loss of human life from a defective product.


There is no allegation that the defects existed when the product left the control of the manufacturer.  Nor is there any allegation that the defects were created by the used car dealer.  If strict liability is imposed upon these facts, the used dealer would in essence become the insurer against defects which had come into existence after the chain of distribution was completed, and while the product was still under the control of one or more consumers.


Significance: No.  Many courts decline to impose strict liability on used car dealers, and sellers of other used products, except in cases of implied warranty or express warranty.

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