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.