Piatt, Torts, Fall 2014

TORTS
INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY
I.

Intent
A. Specific Intent actors goal in acting is to bring about the consequences of his conduct
B. General Intent actor knows with substantial certainty that the consequences will result
1. Garrat v. Dailey Five year old boy pulled out the chair. His age was only
relevant to establishing likely degree of knowledge based on his experience and
understanding.
2. Knowledge of grave risk not enough. Must be knowledge to a substantial
certainty
C. Actor need not intend injury
1. If you push someone and they fall and break their arm, even though you didnt
intend to break their arm, you still intended to push them
2. Spivey v. Battaglia A friendly, unsolicited hug by caused to suffer partial
facial paralysis. One is deemed to intend that which is substantially certain to
follow from his actions but need not intend to cause actual injury or harm
D. Mistake of good faith or fact does not negate intent
1. Ranson v. Kitner - While hunting for wolves, s came across 's dog and killed
it. Parties are liable for damages caused by their own mistaken understanding
of the facts, regardless of whether they have acted in good faith.
E. Mental incapacity does not negate intent
1. was employed as a caregiver for , a mentally ill woman. caused a loud
disturbance and told she would kill her if she entered her room. entered the
room anyway, was physically attacked by , and sued for assault and battery.
The insane are liable for their torts to the same extent as the sane, except for
certain torts requiring malice of which they are incapable.
F. Lack of malice or motive does not negate intent (joking)
G. Transferred intent If intends to commit one tort but his act results in another, the
intent of the first tort transfers to the second (applies to Battery, Assault, False
Imprisonment, Trespass to Land, Trespass to Chattels)
1. Talmage v. Smith discovered several boys playing on top of sheds on his
property. demanded that they get down and most complied quickly, but and
a few others remained on the roofs. threw a stick in the direction of a few
boys (assault) on one of the roofs, but the stick missed those boys and struck
and injured (battery). A 's intent to cause physical contact with one party can
be considered intent to commit battery against a second party when
unreasonable force is used because the has no right to commit such an act.
2. Tort to tort (consider person to person to be mistake)

II.

Battery
A. Prima facie case
1. Intent
2. to commit a volitional act
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3. to cause contact
4. that is harmful or offensive to s person
B. Contact - is liable for direct and indirect contact
1. It is sufficient to set in motion a force that brings about harmful or offensive
contact
C. Harmful or offensive
1. Reasonable person standard would the act be considered harmful or offensive
by a reasonable person of ordinary sensibilities.
2. Crowded world theory
a. Wallace v. Rosen A student's parent was standing at the top of a staircase
in a school talking to her daughter and some of her daughter's friends.
During the conversation, a fire alarm went off and while the students were
evacuating, the parent fell down the stairs. The parent alleged that a
teacher pushed her down the stairs. In a crowded world, a certain amount
of personal contact is inevitable and must be accepted. Absent expression
to the contrary, consent is assumed to all those ordinary contacts which are
customary and reasonably necessary to the common intercourse of life,
such as a tap on the shoulder to attract attention, a friendly grasp of the
arm, or a casual jostling to make a passage.
3. s person anything connected to is viewed as part of the s person
a. Fisher v. Carrousel Motor Hotel, Inc. At a professional conference held
in 's hotel, one of 's employees seized a plate from the 's hand,
shouting that a "Negro could not be served in the club". 's employee did
not make physical contact with , but the event was witnessed by many of
's colleagues. sought actual and punitive damages for assault and
battery. A may recover for battery even when not physically touched so
long as the committed an unwanted an intentional invasion of the 's
person.
i. The Court distills battery as a tort concerned primarily with
personal dignity, not merely personal space. However, the Court
repeatedly refers to offenses to "the person", implying that some
nexus with physical contact must be present in cases of battery.
D. Actual damages not required
1. does not have to prove actual damages to sustain a prima facie case.
2. can recover nominal damages even though he suffered no severe actual
damage
3. In a majority of jurisdictions, punitive damages may be recovered where acted
with malice
Assault
A. Prima facie case
1. Intent
2. to create apprehension
3. of an imminent harmful or offensive contact
4. where the victim is reasonably placed in apprehension of such a contact ( must
have apparent ability to effectuate the harm)
B. The harm is the apprehension itself
1. I de S et ux. v. W de S W de S went to the home of s I de S and M de S at
night to purchase wine. Upon finding the door closed, beat the door with a
hatchet until M de S stuck her head outside and told him to stop. W de S swung
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the hatchet toward M de S but did not strike her, and sued for assault. Assault
may be found and damages awarded in the absence of physical contact.
2. Apprehension must be reasonable
a. Courts will not protect a against exaggerated fear of contact (unless
knows of unreasonable fear and uses it to put in apprehension).
b. Reasonable person test applies
C. Apprehension must be of imminent contact
1. Mere words not enough words do not create apprehension of immediate
contact
a. Word accompanied by an overt act, such as shaking fist, may be sufficient
overt act required
b. Im going to strangle you not assault it is if said while extracting a rope
from pocket though
2. A conditional threat can be sufficient bullies would be able to impose their
will on others by threat of force, yet incur no liability (if you dont go to bed
with me, Ill throw you out the window.)
3. Words can negate an assault by making apprehension unreasonable If I
werent such a nice guy, Id beat you up.
D. Apparent ability (as opposed to actual ability) to act is sufficient to make apprehension
reasonable
1. Western Union Telegraph Co. v. Hill 's employee routinely provided repairs
to the clock located in 's business. On one occasion when 's wife requested
that he repair the clock, 's employee allegedly offered to fix the clock in
exchange for sexual favors and unsuccessfully reached out to grab her. When
sued for assault, denied the allegations and argued the physical evidence
showed he could not have reached 's wife. For assault to occur, there must be
an intentional and unlawful offer or attempt to touch another's person in a
harmful or offensive manner such that it creates a well-founded apprehension of
imminent battery. One accused of assault must also appear to have the present
ability to commit the battery if not prevented.
E. No Requirement of damages
1. It is not necessary to prove actual damages to sustain a prima facie case for
assault
2. If the case is otherwise made out, can recover nominal damages
3. Most states allow punitive damages where s actions have been malicious
False Imprisonment
A. Prima facie case
1. An act or omission to act
2. intended
3. to confine or restrain the to a bounded area with no egress
4. against s will
5. where is conscious of confinement (in most jurisdictions) or harmed by it
B. Big Town Nursing Home, Inc. v. Newman was checked into 's nursing home at the
behest of his nephew. Upon checking in, the admission papers indicated that s presence
was strictly voluntary and he could leave at any time. However, when attempted to
leave on numerous occasions, he was restrained, punished, denied privileges, and moved
to a wing of the home for drug addicts and the insane. False imprisonment is one person's
direct restraint of another's physical liberty in the absence of sufficient legal justification.
C. Awareness of imprisonment
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1. Parvi v. City of Kingston infra D-2-a

D. What is a bounded area
1. Where s freedom of movement is limited in all directions without reasonable
means of escape
2. Where is stranded in a remote area with no way home
a. Parvi v. City of Kingston Police officers for the City of Kingston took
custody of , who was intoxicated, and drove him outside the city limits
instead of arresting him. After he was deposited on a golf course, found
himself on the New York Thruway, where he was struck by a car and
injured. Although he had little or no recollection of the entire evening,
sued for false imprisonment.
b. Consciousness of confinement is a necessary element of false
imprisonment, but recollection of that consciousness is not. It is thus
possible to maintain a cause of action for false imprisonment despite
lacking any recollection of confinement.
E. Sufficient methods of confinement or restraint
1. Physical barriers
2. Physical force
a. Against
b. Against s family
c. Against s property
i. remains in building because her purse is confiscated. She could
have left but it would have necessitated leaving her purse. False
imprisonment could result if purse was wrongfully withheld.
3. Direct threats of force
4. Indirect threats of force acts or words that reasonably imply that the will use
force against , her family, or her personal property
5. Failure to provide means of escape
a. Whittaker v. Sanford and her husband were members of a religious
group headed by and based in Tel Aviv. decided she would like to
leave the group and return to the United States, in response to which
offered transportation via his yacht and assured her she would not be
detained. Upon arrival, refused to grant her use of a boat to reach the
shore, and she remained on board against her will except for brief,
supervised excursions until she finally obtained release through a writ of
habeas corpus. Physical as opposed to moral restraint is required for false
imprisonment, but this does not mean actual physical force must be used.
Refusing to provide one with the means to overcome a physical barrier can
constitute restraint such as can give rise to a claim for false imprisonment.
's free movement existed and refused to remove it. In this case, the fact
that caused the impediment to exist and controlled the means to remove
it meant that his refusal to do so constituted false imprisonment.
6. Invalid use of legal authority
a. Enright v. Groves , a police officer spied a dog running without a leash
in violation of city's local ordinance. After determining the dog
belonged to , the officer located and demanded her driver's license,
which refused to give. The officer told he would arrest her if she didn't
turn over her license, and when she failed to do so he placed her under
arrest, after which she was convicted of violating the leash ordinance. In
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an action for false imprisonment involving police officers, the defense will
often be raised that was ultimately convicted of a crime. This case makes
it clear, however, that the conviction must mirror the basis of the arrest.
Probable cause to believe that one crime has been committed does not
provide blanket authority for an officer to arrest someone for any other
crime.
b. False arrests arrests for a criminal offense without a warrant is unlawful
and may constitute false imprisonment
F. Insufficient forms of confinement or restraint
1. Moral pressure
a. Hardy v. LaBelle's Distributing Co. An employee of informed that ,
a recently hired temporary employee at 's jewelry department, had stolen
a watch. The store manager invited into his office, claiming she was
being given a tour as a new employee. The manager closed the door
behind him, and was ultimately questioned in the room for 20 to 45
minutes by the manager, at least one uniformed police officer, and others.
The Court found that was not unlawfully restrained against her will
because she would have entered the office voluntarily, never asked or
attempted to leave, and was never told she could not leave. admitted
that she would have entered the manager's office even had she not been
lured there to prove her innocence.
2. Future threats
G. No need to resist under no obligation to resist physical force or to test a threat of
physical force
H. Time of confinement is immaterial except as to the extent of damages
I. Actual damages not required
1. does not have to prove actual damages to sustain a prima facie case.
2. can recover nominal damages even though he suffered no severe actual
damage
3. In a majority of jurisdictions, punitive damages may be recovered where acted
with malice
Intentional Infliction of Emotional Distress
A. Prima facie case
1. Extreme and outrageous conduct
2. Intended
3. to cause to suffer severe emotional distress
4. where suffers severe emotional distress (required damage)
B. Some courts reluctant to recognize IIED because it is difficult to prove severe emotional
distress
C. Extreme and outrageous conduct
1. Extreme business conduct
2. Misuse of authority actual or apparent
3. Knowledge of peculiar susceptibility
a. See Harris v. Jones, infra F-1 might have been a factor if could have
proved his damages
4. Liability for IIED limited by requiring proof of outrageous conduct
a. Conduct that transcends all bounds of decency tolerated by society
b. Slocum v. Food Fair Stores of Florida was a customer in 's store and
asked an employee the price of an item. The employee insulted her by
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responding that "[i]f you want to know the price, you'll have to find out
the best way you can" because "you stink to me". , taken aback by the
comment upon her bodily odor, brought suit for intentional infliction of
emotional distress, and the trial court dismissed for failure to state a cause
of action. Mere expressions of insults or general abuse are not actionable
unless it can be shown that they were intended to bring about severe
emotional distress. Only such conduct as exceeds all bounds permissible
in society can give rise to an independent claim for intentional infliction of
emotional distress. The conduct complained of must be substantially
certain to result in severe emotional distress. Mere insults or general abuse
do not rise to the requisite level of outrageousness to allow for recovery
for infliction of severe emotional distress.
5. Common carriers and innkeepers owe special duties to their patrons that will be
a basis for liability even when the act is something less than extreme and
outrageous
6. State Rubbish Collectors Ass'n v. Siliznoff , a non-member of association,
collected garbage from a company claimed was within its domain. 's agent
allegedly demanded that surrender the money derived from the collection or
suffer physical consequences, in response to which attended 's meeting and
signed notes promising to pay. sued to force payment of the notes, and
argued they were unenforceable and counter-sued for intentional infliction of
mental distress. There exists a cause of action for intentional infliction of
emotional distress for serious threats of physical violence whether or not such
threats technically rise to the level of assault. When one acts outrageously,
intends to cause such distress and does so, he is liable for the emotional distress
and the bodily harm resulting therefore.
D. Intent for IIED includes reckless disregard of a high probability that that emotional
distress will result.
E. Causation requirements in bystander cases when causes severe, physical harm to a
third person and the suffers emotional distress because of relationship to injured person,
elements of intent and causation are hard to prove. To establish these elements, must
show:
1. was present when the injury occurred
2. was a close relative of injured person
3. knew that was present and a close relative of the injured person
4. Taylor v. Vallelunga Gerlach alleges s physically attacked him and
Taylor, Gerlach's daughter, alleges she witnessed the attack. Gerlach sued for
damages stemming from his physical injuries while Taylor sued for the
emotional distress she suffered from witnessing the attack. For one to recover
for emotional distress when she has experienced no physical injury, she must
establish that the intentionally caused her to suffer from severe emotional
distress.
F. Actual damages required nominal damages will not suffice but it is not necessary to
prove physical injuries to recover. Must prove severe emotional distress beyond what a
reasonable person could be expected to endure. Punitive damages are allowable where
s conduct was improperly motivated.
1. Harris v. Jones was 's supervisor at a factory, and was aware that
suffered from a speech impediment causing him to stutter. frequently mocked
and his condition on the job, causing him to feel distress. sued for
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intentional infliction of emotional distress. In addition to clearly setting forth

the elements of intentional infliction of emotional distress, the Court places a
heavy burden upon the to demonstrate the causation and severity of that
distress.
Trespass to Land
A. Prima facie case
1. An intended
2. act of physical invasion of s real property
a. enters land in possession of another
b. remains on the land
c. fails to remove from the land a thing which he is under a duty to remove
3. violating s right of exclusive possession of his property
a. actual possession
b. right of possession
B. Intent to enter the land is required
1. Intent to trespass is not required
2. Mistake is not a defense
C. need not enter land flooding s property, throwing rocks onto it, or chasing a third
person onto it is sufficient
D. Trespass or nuisance
1. Nuisance deprives of enjoyment of the property
2. Trespass deprives of possessory rights
3. Bradley v. American Smelting and Refining Co. American Smelting and
Refining Co. operated a smelter near the Bradley's property. As a result of its
operations, 's smelter caused various gases and particulate matter,
imperceptible to the naked eye, to be deposited upon 's property. sued to
recover for trespass and nuisance. Trespass is the interference of one's right to
exclusive possession of land, while nuisance is the interference with one's right
to exclusive use and enjoyment of land. Accordingly, particles that quickly
dissipate may give rise to a nuisance action while particles that are deposited
and do not pass away may give rise to an action in trespass. However, the prior
rule that any trespass whatsoever entitles a landowner to nominal or punitive
damages is no longer appropriate or workable in these circumstances. Actual
damages must now be proven to sustain a trespass claim.
E. If lawful right of entry expires and remains on s property, or an object remains where
has a duty to remove that thing, it is a trespass
1. Rogers v. Board of Road Comrs for Kent County - Pursuant to a license,
placed a snow fence and posts upon 's husband's property with the
understanding that it would be removed at the end of winter. did not remove
the fence at the end of winter, and s husband was killed by an accident
involving the fence's continued presence on his property. sued for trespass and
negligence. When one consents to the presence of a structure or chattel on his
property and that structure or chattel is not removed after the consent is revoked
or terminated, he may recover for damages resulting from its continued
presence.
F. Land includes the surface, the subsurface below the property, and the airspace above the
property to the height or depth can make beneficial use of it

VII.

1. Herrin v. Sutherland - , while hunting, fired his shotgun at birds flying over 's
land. sued for trespass, claiming damages of $10. Interference with the
airspace over one's property can give rise to an action for trespass.
G. An action for trespass can be maintained by anyone in actual or constructive possession
1. Need not be the actual owner
2. A lessee can bring a trespass cause of action
H. No requirement of damages
1. Damage is presumed, actual injury to the land is not an essential element.
a. Dougherty v. Stepp entered 's land to perform a survey, but did not
mark trees or cut timber. sued for trespass. The trial court instructed the
jury that no trespass had occurred and the jury found for . Every
unauthorized entry upon another's land qualifies as a trespass, regardless
of the degree of damage done in the process. This case demonstrates the
distinction between liability and damages in tort. Although the Court
acknowledges that the actual damages suffered by the were probably
minimal, this has no bearing upon whether a trespass was committed in
the first place. The Court also noted that the law infers some damage
results from such a wrong, and will grant it once liability is proven.
2. Washington exception accumulating particulate matter must cause actual
damage. See Bradley v. American Smelting and Refining Co., supra D-3
Trespass to Chattels
A. Prima facie case
1. An act that interferes with s right of possession in the chattel
2. Intent to perform the act
3. Where the chattel is damaged in terms of quality or value or the is deprived of
possession for a substantial length of time
B. Act by
1. Intermeddling directly damaging the s chattels
a. Denting s car
b. Injuring s dog
2. Dispossession dispossessing of his lawful right of possession
C. Intent does not have to intend the trespass. Intent to commit the act that interferes
with the chattel is sufficient
D. Anyone with possession or the immediate right to possession may maintain an action for
trespass to chattels
E. Actual damages required
1. Nominal damages not awarded for trespass to chattels in the absence of any
actual damages, an action will not lie.
2. Loss of possession itself is deemed an actual harm
3. Glidded v. Szybiak - A dog owned by s bit , a four year-old girl. sued to
recover for her personal injuries. s contended that was guilty in committing a
trespass by meddling with the dog and thus not entitled to recover. In order to
prove a case of trespass to chattels, there must be damage to the chattel, the
owner must be deprived of use of the chattel for a substantial period of time, or
bodily harm must result from the trespass.
4. Compuserve, Inc. v. Cyber Promotions, Inc. Despite 's request that they
cease to do so, s continually distributed unsolicited e-mail advertisements to
the subscribers of . Although implemented measures to filter out s'
unsolicited messages, s reconfigured their messages so as to circumvent these
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measures and reach the intended targets. sought to enjoin s from continuing
in its efforts to send such unsolicited messages to its subscribers. Electronic
signals sent via a computer are sufficiently tangible to form the basis of a cause
of action for trespass to chattels, and interference therewith can be actionable.
The preliminary injunction was granted. Dispossession is only one example of
an occasion in which trespass to chattels has occurred. Such a trespass may also
be found when the chattel is damaged or devalued, the possessor is deprived of
its use for a substantial period of time, or bodily harm results from the
interference with the chattel. This case again addresses the extent of
interference with chattels that must exist in order to be actionable. The Court
rejected s' argument that a must show actual dispossession of the chattel to
find for a . Rather, any actionable interference can give rise to a claim and, as
this case demonstrates, an injunction.
VIII. Conversion
A. Prima facie case
1. An act to interfere with s right of possession in the chattel
2. that is serious enough to completely of very substantially deprive of
possessory rights
3. and warrants that pay the full value of the chattel
4. Intent to perform the act
5. Pearson v.Dodd Staffers of a United States Senator, repeatedly entered his
office and removed various documents. They made copies of the documents and
distributed the copies to , who published their contents. The originals were
returned to 's office. Conversion is the intentional exercise of control or
dominion over a chattel that interferes with another's rights to control it with
sufficient severity that the party exercising such control may fairly be required
to pay for its full value.
B. Acts of conversion
1. Wrongful acquisition theft, embezzlement
2. Wrongful transfer selling, misdelivering, pledging
3. Wrongful detention refusing to return to owner
4. Substantially changing
5. Severely damaging or destroying
6. Misusing the chattel
C. Mere intent to perform the act is required, even if conduct is innocent
1. Purchaser of chattel may be liable if chattel was stolen from true owner (in
some jurisdiction possession is insufficient, must demand return and must
refuse for to be liable)
2. Accidental conduct insufficient accidental damage to chattel is not conversion
unless was using the chattel without permission. Actor may be liable for
negligence for accidental damage.
D. The longer the withholding period and more extensive the use of chattel during this time,
the more likely it is that it is conversion
E. Damages fair market value of the chattel at the time and place of conversion. Once
chattel is converted, is under no obligation to take it back even if wishes to return it.
1. Returning the chattel does not bar recovery, only reduces damages.
2. If the returned chattel is in the same condition, has not been altered, and the
owner has suffered no special damage through being deprived or possession,
recovery may be reduced to nominal damage
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PRIVILEGES DEFENSES TO THE INTENTIONAL TORTS

IX.

Consent
A. A is not liable for an otherwise tortious act if the consented to the s act
1. Express consent express consent exists where has expressly shown a
willingness to submit to s conduct
a. Consent by mistake where consents by mistake, consent is still a valid
defense unless caused the mistake or knows of the mistake and takes
advantage of it
b. Consent induced by fraud if the expressly given consent has been
induced by fraud, the consent is generally not a defense. The fraud must
go to an essential matter; if the fraud is with respect to a collateral matter,
the consent remains an effective defense
i. De May v. Roberts Roberts had requested that De May, a
doctor, visit her house for medical purposes. He arrived along with
a second person, Scattergood, who was not a doctor. allowed
both into her home and voiced no objection to Scattergood's
presence, but later sued for deceit. Consent given under false
pretenses is not valid consent and will not operate as a defense to a
subsequent action.
c. Consent obtained by duress may be held invalid threats of future action
or future economic deprivation do not constitute legal duress sufficient to
invalidate the express intent
2. Implied consent s consent may also be implied in a given case
a. Apparent consent consent that a reasonable person would infer from the
s conduct, thus somebody who voluntarily engages in a contact sport
impliedly consents to the normal contacts inherent in playing it
i. O'Brien v. Cunard S.S. Co. - was given a vaccination while
aboard on of 's steamships. suffered blistering and ulceration
thereafter, and alleged this was due to the vaccination. had
presented herself to 's surgeon in the quarantine area and did not
object when he indicated his intention to vaccinate her.
Nevertheless, she sued for assault and negligence. The trial court
directed a verdict for on the basis of consent. When consent is
used as a defense to an assault action, the totality of the
circumstances must be considered, but only overt acts and outward
manifestations may demonstrate such consent or lack thereof.
ii. Hackbart v. Cincinnati Bengals, Inc. - was injured by one of 's
players in a professional football game. 's player intentionally
struck , but was not found to have intended to injure him. Neither
of the two complained to officials at the time of the injury, but
later sued to collect for his personal injuries. The trial court took
judicial notice of the violent nature of professional football and
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found that the only remedies available to would be those

administered within the game. Even in an inherently violent
situation such as a game of professional football, it is possible for
one to go beyond its customs and so be liable for injuries in tort.
there is a question of scope to such consent, and the mere
understanding of a sport's generally violent nature does not
extinguish all rights to recover for truly egregious conduct that is
beyond the pale even of what professional football commonly
entails.
b. Apparent consent inferred from usage and custom a person is presumed
to consent to the ordinary contacts of daily life
c. Consent implied by law where action is necessary to save someones life
or some other important interest in personal property: consent will be
implied in an emergency situation where is incapable of consenting and
a reasonable person would conclude that contact is necessary to prevent
death emergency surgery where is unconscious after a car accident
3. Capacity required incompetents, intoxicated persons, and very young children
are incapable of consent to tortious conduct. Consent of parent or guardian
necessary to constitute a defense.
4. Criminal acts
a. Majority view is that a person cannot consent to a criminal act for
purposes of tort liability
b. Minority and Restatement view consent to a criminal act as a valid defense
in a civil action for an intentional tort.
c. Modern trend is to differentiate between criminal acts that are breaches of
the peace (consent to a street fight not a defense) and not a breach of peace
(consent to an act of prostitution is a defense)
d. Consent invalid where law seeks to protect members of victims class
consent not a defense to statutory rape
e. Exceeding given consent if goes beyond the act consented to and does
something substantially different, he is liable consent to tonsillectomy is
not consent to appendectomy
i. Mohr v. Williams was performing an operation upon 's right
ear when he decided that the condition was not so serious as to
warrant the operation. While remained under anesthetic,
discovered a more serious condition in her left ear. Without
awakening her to receive consent, he performed the operation on
the left ear. While implied consent for a surgeon or doctor to
operate in emergency, life-threatening situations may exist; the
consent to perform one operation does not automatically operate as
consent to perform other, similar operations.
Self Defense
A. When a person has reasonable grounds to believe that he is being, or is about to be,
attacked, he may use such force as is reasonably necessary for protection against the
potential injury
B. Is self defense available as a defense?
1. The actor must have a reasonable belief as to the other parties actions apparent
necessity, not actual necessity, is sufficient
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XII.

2. Self defense is limited to preventing a tort one may never use force in
retaliation where there is no longer threat of injury
3. Retreat is not necessary a substantial majority of courts hold that one need not
attempt to escape but may stand his ground and even use deadly force if it is
required to prevent death or serious bodily harm to self
a. A growing modern trend would impose a duty to retreat before using
deadly force where this can be done safely unless the person is in her own
home
4. Self defense not available to aggressor the initial aggressor is not privileged to
defend himself against the other partys reasonable use of force in self defense;
however, if the other party uses deadly force against an aggressor who had only
used non-deadly force, the aggressor may defend himself with deadly force
C. One may only use that force that reasonably appears to be necessary to prevent the harm if more force than necessary is used, the actor loses the privilege of self defense
D. Extends to third party if in the course of reasonably defending himself, one accidentally
injures a bystander, he is protected by self defense
Defense of Others
A. The actor is privileged to defend a third person under the same conditions and by the
same means as those under and by which he is privileged to defend himself if the actor
reasonably believes that
1. The circumstances are as such as to give the third person a privilege of self
defense
2. His intervention is necessary for the protection of the third person
B. Courts have not agreed as to the effect of mistake but reasonable belief that intervention
is necessary
3. Majority view is that the actor only needs a reasonable belief that the person
being aided would have the right of self defense even if the person was the
initial aggressor, the actor is not liable
4. Minority holds that the intermeddler takes the risk that the person he is
defending would not be privileged to defend himself in the same manner
Defense of others is not a valid defense when there is a reasonable mistake by
as to the belief that the person is privileged to self defense
C. The defender, assuming he is justified, may use as much force as he could have used in
self defense if the injury were threatened to him
Defense of Property
A. One may use reasonable force to prevent the commission of a tort against her property
B. Request to desist usually required (must precede the use of force unless I is clear that the
request would be futile or dangerous
C. Reasonable mistake is allowed as to the property owners right to use force in defense of
property where the mistake involves whether an intrusion has occurred or whether a
request to desist is required; however property owner is liable for mistakenly using force
against a privileged entrant unless the entrant intentionally or negligently caused the
mistake (e.g., by refusing to tell property owner the reason for the intrusion)
D. Defense of property is limited to preventing the commission of a tort. If has been
dispossessed and commission of the tort is complete, she may not use force to recapture it
unless there is hot pursuit (the tort is viewed as still in progress if there is hot pursuit)
E. Superseded by other privileges necessity, right of reentry, right to enter to recapture
chattels
12

F. One may use reasonable force, but not force to cause death or bodily harm, or indirect
deadly force such as a spring gun or vicious dog.
1. Katko v. Briney - broke into and entered a farmhouse owned but not occupied
by for the purposes of theft. was injured in the process by a "spring gun"
trap had set to thwart intruders. Although "no trespass" signs were posted on
the property, no warning about the trap was posted. No privilege exists to use
force intended or likely to cause death or great bodily harm to prevent trespass
to land or chattels unless the trespass threatens death or great bodily harm to the
occupier or user of the land or chattel.
XIII. Recovery of Property
A. Where anothers possession began lawfully (e.g. a conditional sale), only peaceful means
can be used to recover the chattel; force may only be used in hot pursuit of one who has
obtained possession wrongfully (theft)
1. A demand to return the chattel must precede use of force unless clearly futile or
dangerous
2. The recovery may only be from the tortfeasor or a third person who knows or
should know that the chattels were tortiously obtained. Cannot use force to
recapture from an innocent party
3. Hodgeden v. Hubbard purchased a stove from s on credit and took it away.
s quickly discovered that 's credit information was false and immediately set
out to overtake him and recover the stove. s ultimately retook the stove by
force, and sued for assault and battery. One has a right to retake property that
is rightfully his so long as it can be done without unnecessary violence to the
person and without creating a breach of the peace. The stove was passed to
under false pretenses, leaving all rights to its possession with s. s therefore
were privileged to retake the property if this could be accomplished without
unnecessary violence or breach of the peace. Only if s used unnecessary
violence or breached the peace were they liable to .
B. Reasonable force, not including force sufficient to cause death or serious injury, may be
used to recapture chattels
XIV. Shopkeepers Privilege
A. Shopkeepers may have a privilege to reasonably detain individuals who they reasonably
believe to be in possession of shoplifted goods
1. There must be reasonable belief as to the fact of theft
2. The detention must be conducted in a reasonable manner and only non-deadly
force can be used
3. The detention must be only for a reasonable period of time and only for
investigation
B. Bonkowski v. Arlan's Department Store had left department store after shopping.
Reinhardt, a security guard working for the store approached her in the parking lot and
asked to see the contents of her purse. He determined that, despite reports of another
witness, had not stolen anything and returned to the store. There exists a privilege for
merchants or shopkeepers to detain those whom they reasonably believe to have
unlawfully taken chattels for a reasonable investigation and thereby avoid liability for
false imprisonment.
XV. Necessity
A. A person may interfere with the real or personal property of another where the
interference is reasonably and apparently necessary to avoid threatened injury from a
13

natural or other force and where threatened injury is substantially more serious than the
invasion that is undertaken to avert it.
1. Public necessity where the act is for the public good, the defense is absolute
a. Surocco v. Geary - , the Alcalde of San Francisco, destroyed s house in
an attempt to halt the progression of a fire in the city. s sued to recover
for the damages sustained by the destruction. Otherwise tortious acts may
be rendered non-tortious when necessity dictates that they be undertaken
for the greater interests of society.
2. Private necessity where the act is soley to benefit any person or to protect any
property from destruction or serious injury the defense is qualified and actor
must pay for damage he causes
a. Vincent v. Lake Erie Transp. Co. 's steamship was moored to 's dock
to unload cargo. A massive storm prevented the arrival of tugboats to
remove the steamship after the unloading. Rather than cast the ship adrift,
's employees kept the boat moored to the dock, which resulted in
damage. One who takes actions to protect his property that result in
damage to another's property is required to compensate for those damages,
even when the actions taken were necessary to prevent the destruction of
his own property.
XVI. Authority of Law
A. Privilege of arrest
1. Carries the privilege to enter anothers land to effect the arrest
2. Actor may still be liable for subsequent misconduct, e.g., failing to bring the
arrested party before a magistrate, unduly detaining him in jail
3. One who makes an arrest under mistaken belief that it is privileged may be
liable for false imprisonment
4. Either officer or citizen can make an arrest without a warrant to prevent a felony
or breach of peace in his presence
XVII. Discipline a parent or teacher may use reasonable force in disciplining children, taking into
account the age and sex of the child and the seriousness of the behavior
XVIII. Justification
A. Sindle v. New York Transit Authority was a passenger on a school bus owned by
transit authority and driven by Mooney. Students aboard the bus were behaving rather
disobediently and causing damage to the bus despite 's admonitions. Ultimately,
bypassed the usual stops and took the and a few other students to a police station.
Reasonable restraint or detention undertaken with the aim of preventing another from
inflicting personal injury or damaging property is not unlawful. One is justified in
restraining or detaining another in a manner reasonable under the circumstances to
prevent personal injury or damage to property, and evidence regarding such justification
should not have been excluded in evaluating this claim of false imprisonment.
1. A parent, guardian, or teacher entrusted with care of a child is justified in using
that physical force reasonably necessary for discipline or the child's own
welfare.
2. It is the 's burden to plead and prove justification.

NEGLIGENCE
14

XIX. Prima Facie Case

A. The existence of a duty on the part of the to conform to a specific standard of
conduct for the protection of the against an unreasonable risk of injury
B. Breach of that duty by the
C. That the breach of duty by the was the actual and proximate cause of s injuries
D. Damages to the s person or property
E. A Negligence Formula The reasonable person acts with care and caution to protect
foreseeable s from foreseeable harm
1. Lubitz v. Wells Wells, Sr. left a gold club lying in his yard. His son, Wells,
Jr. and his friend, , were playing in the yard when Wells, Jr. discovered the
club. Wells, Jr. picked up the club and swung it, striking the in the face and
injuring her. A golf club is not so inherently dangerous that leaving it lying in a
yard can constitute negligence. Something greater than the realization that some
possible injury could result from leaving an item on the ground is required to
sustain a negligence claim. For the discarding of such an item to give rise to
negligence, it must be obviously or intrinsically dangerous.
2. Blyth v. Birmingham Waterworks Co. s had installed water mains along the
street with hydrants located at various points. One of the hydrants across from
's house developed a leak as a result of exceedingly cold temperatures and
caused water damage to the house. sued for negligence. Negligence is the
failure to do something a person of ordinary prudence would do or the taking of
an action that a person of ordinary prudence would not take. A mere accident
that is not occasioned by the failure to take such an action or the taking of such
an action does not qualify as negligence.
3. Gulf Refining Co. v. Williams was injured after a gasoline container
delivered by exploded while he was trying to remove its cap. The explosion
occurred as a result of a spark caused by worn threads on the cap. sued to
recover for his personal injuries. Foreseeability of a harm is the existence of
such a likelihood of damage so as to induce action to take care against it on the
part of a reasonably prudent person. The state of the gasoline container, as was
known to , was such that a reasonable person should have anticipated that its
disrepair could cause an explosion and thus should have taken care to safeguard
against such a result. 's failure to do so subjected it to liability. This case
attempts to define the concept of foreseeability. As the Court explains, such
foreseeability as can give rise to negligence can be found when there exists
sufficient likelihood of damage to induce a reasonably prudent person to take
care against it.
4. Chicago B. & Q.R. Co. v. Krayenbuhl owned and operated railroad
equipment. had guidelines requiring that dangerous railroad equipment
remain locked when not in use, but these guidelines were frequently ignored.
When the came upon such equipment owned by the , it was unlocked and the
was injured while playing on it. Trial resulted in a verdict for the , and the
appealed. With respect to dangerous instrumentalities, the character, location,
and utility of the instrumentality as well as the ease of making it safer must be
taken into account in determining what degree of precaution is necessary so as
not to be negligent. When, under all relevant circumstances, one fails to take
such precautions as would one of reasonable prudence, he has acted negligently
and is liable for the damages resulting from that negligence. In this case, the use
of a lock to prevent public access to the equipment is such a minimal restriction
15

upon the equipment's utility that the failure to keep such a lock in place likely
amounted to negligence. The Court tackles the difficult issue of the appropriate
standard of care with respect to inherently dangerous but necessary
instrumentalities of business. The Court determines that the appropriate
approach is to analyze the character, location, and utility of the instrumentality
as well as the ease of making it safer. One is negligent when, under all relevant
circumstances, he has failed to take such precautions, as would one of
reasonable prudence.
5. Davison v. Snohomish County s suffered from damages after the car they
were driving went off the road as they made a turn. s sued for the resulting
damages, arguing that the road was not sufficiently maintained so as to prevent
the accident or at least diminish the damages. While municipalities are required
to maintain roads for public use, there are limitations to the extent of safety that
can be provided to all roads. For elevated causeways or viaducts, municipalities
are required only to take such measures as are reasonable to prevent against
injury. Absolute safety cannot be guaranteed. The Court acknowledges that
municipalities have certain duties with respect to road maintenance. The Court
further acknowledges that some roads can be rendered quite safe by the
expenditure of additional money. The Court points out, however, that for cases
such as this, in which only a certain degree of safety can reasonably be attained,
a municipality is not negligent for failing to somehow make these roads safer.
XX. The Judge Learned Hand Formula
A. B > P*L
1. Where B = burden the burden of adequate precautions against injury
2. L = loss the gravity of the resulting injury
3. P = probability the probability of injury
4. When the burden of taking precaution against injury is less than the
probability of injury multiplied by the gravity of the injury
B. Hand postulates that the reasonable person balances these three factors in this method
C. This is how Hand balances these factors in reaching a decision
D. United States v. Carroll Towing Co. A tugboat working for caused the mooring lines
of a ship carrying cargo owned by the United States to shift. Nobody was aboard the ship
or the tugboat to stop the lines from shifting. The ship ultimately sunk as a result, and the
cargo was lost. The United States sought compensation for the lost cargo. The trial court
divided the damages between the Conner Company and . In the event that a ship breaks
its moorings, its owner's duty is a function of 1) the probability that the ship will break
away; 2) the gravity of the injury resulting; and 3) the burden of necessary precautions.
This case introduces Learned Hand's tripartite test for analyzing negligence. The Court
explained that liability for negligence in such cases is dependent upon whether the burden
of taking adequate precautions is less than the likelihood that an injury will occur
multiplied by its gravity. When the burden is less than that product, negligence has been
committed.
XXI. Duty - The Standard of Care
A. A general duty of care is imposed on all human activity. When a person engages in an
activity, he is under a legal duty to act as an ordinary, prudent, reasonable person, and
take precautions against creating unreasonable risk of injury to other persons. No duty is
imposed on a person to take precautions against events that cannot be reasonably
foreseen.
B. The Reasonable Person
16

1. s conduct is measured against the reasonable, ordinary, prudent person. The

reasonable person has certain characteristics, measured by an objective standard
under relevant personal circumstances.
a. No allowance is made for the circumstance that a person lacks good
judgment, is hasty, awkward, or perennially oafish; if so the careless
would be able to endanger others with impunity.
i. Vaughan v. Menlove was warned that his haystacks posed a
substantial risk of igniting and damaging 's cottages. He
disregarded these warnings and kept the hay in place. The hay did
ignite and damage 's cottages, and brought suit for negligence.
The trial court instructed the jury that the issue was whether the
fire was occasioned by gross negligence, and explained that was
bound to act as a reasonable man would have under the
circumstances. The jury found for , but obtained a ruling on the
ground that the jury should have been instructed to find negligence
only if it found had not acted to the best of his own judgment.
This ruling was incorrect. The standard for negligence is an
objective one. One has behaved negligently if he has acted in a
way contrary to how a reasonably prudent person would have acted
under similar circumstances. This case rejects the argument that a
's particular sensibilities or weaknesses should be taken into
account in evaluating negligence claims. Rather, one must look
only to whether one has acted as would a reasonably prudent
person under similar circumstances.
b. Average Mental Ability individual mental handicaps are not considered
i. Low IQ not an excuse
ii. Insanity is no defense (except sudden onset of mental illness)
Breunig v. American Family Ins. Co. The , Breunig (), was
injured in a car accident when Erma Veith (Ms. Veith), the ,
American Family Ins. Co.'s () insured, drove her car into the 's
truck after suffering a schizophrenic attack. It is unjust to hold a
person to a reasonable person standard in evaluating their
negligence when a mental illness comes on suddenly and without
forewarning causing injury to another. Although generally insanity
is not a defense to negligence, when the insanity is unforeseen and
unavoidable, it is unjust to hold a person responsible for the
conduct that caused the injury.
c. Same Knowledge as Average Member of Community
i. Members of the community are expected to know that fire is hot;
individual shortcomings not considered
ii. s with superior knowledge are required to use that knowledge
d. Physical Characteristics the reasonable person has the same physical
characteristics as the .
i. Roberts v. State of Louisiana The , Roberts, fell and broke his
hip when a blind man bumped him into. The handicapped are held
to a reasonable standard of care for a person with their disability,
the handicap is considered part of the circumstances.
2. Delair v. McAdoo attempted to pass as they were driving in their cars. 's
tire exploded as they were alongside one another, causing a collision. sued
17

for negligence. The Court rules that those driving automobiles are required to
take certain precautions to maintain them. When a reasonable inspection would
disclose a dangerous condition in an automobile, a party is charged with that
knowledge and is guilty of negligence when he ignores it and drives in spite of
it.
3. Trimarco v. Klein suffered severe injuries when the glass of a bathtub he was
in shattered. s owned the building in which the incident occurred, and had
used ordinary glass for the bathtub enclosure despite the common practice of
using shatterproof glass in such cases. sued for his personal injuries. When
custom and practice have removed certain dangers, the custom may be used as
evidence that one has failed to act as is required under the circumstances. This
case demonstrates that custom and practice can be important in evaluating the
appropriate standard of acre in negligence cases. However, even after such
custom and practice are established, adherence or non-adherence thereto is not
conclusive proof of liability or innocence.
4. Standard of Care in an Emergency Situation
a. The existence of an emergency, presenting little time for reflection, may
be considered as among the circumstances under which acted (but not if
the emergency is of the s own making).
b. Cordas v. Peerless Transportation Co. A taxi driver working for the ,
Peerless Transportation Co. (), jumped from his taxi while it was running
to escape an armed highwayman who was being pursued by his victim.
The car, now driverless, ran up onto a sidewalk and injured the , Cordas
(), a pedestrian. Reasonable and prudent action is based on the set of
circumstances under which the actions took place. The driver was not
negligent in this case, as his actions were in response to an emergency
situation. Negligence is defined as the failure to exercise that care and
caution which a reasonable and prudent person ordinarily would exercise
under like conditions or circumstances. In an emergency situation, the law
does not hold a person to the same standards as if he had opportunity for
deliberate action. The circumstances dictate what is or is not prudent
action.
C. Children are required to conform to the standard of care of a child of like age, education,
intelligence, and experience. They are held to the standard of an adult if engaging in an
adult activity.
1. Robinson v. Lindsay The , an eleven-year-old girl, lost the use of her thumb
as a result of a snowmobile accident. The driver of the snowmobile was a
thirteen-year-old boy. When a child causes injury by engaging in dangerous or
adult conduct, they are held to an adult standard of care. Courts have
traditionally given children a flexible standard of care to determine their
negligence. Children are expected to exercise the degree of care and discretion
that is reasonable of a child of their particular age. The standard looks at the age
of the child, intelligence, maturity, training and experience. But there are some
circumstances where it is appropriate to apply an adult standard. When
operating a motorized vehicle, or taking part in a dangerous activity, children
should be held to an adult standard of care because this will discourage them
from engaging in the activity. When a child operates a motorized vehicle, he
should be held to an adult standard of care because the chances of injury and
accident are increased.
18

D. Professionals
1. A person who is a professional or has special skills (e.g., doctor, lawyer,
airplane mechanic, etc.) is required to possess and exercise the knowledge and
skill of a member of the profession or occupation in good standing in similar
communities.
a. Heath v. Swift Wings, Inc. Pilot error caused an airplane crash, killing the
pilot and the passengers. The pilot and his passengers all died as a result
of the crash. According to the widow of the passenger, the pilot spent a
long time loading and reloading the small aircraft prior to take off. There
was evidence that the plane was not properly balanced. At trial, an expert
testified that in his opinion the pilot should have used flaps to aid in the
takeoff and should have made a controlled landing shortly after takeoff. In
the expert's opinion, had the pilot taken these measures, the crash would
have been avoided. The jury found there was no pilot error after receiving
a jury instruction containing a definition of negligence that focused on the
's own experience and training. A professional standard of care is not a
subjective standard, it is an objective standard predicated on the rules and
guidelines of the profession. The jury instructions in this case imposed a
subjective standard by asking the jury to decide if the pilot acted in a
reasonably prudent manner given the pilot's own particular experience and
training. Instead, the pilot's actions are to be measured by an industry
standard that is applicable to all pilots. By using an objective standard the
court avoids imposing a different standard of care for each case.
b. Hodges v. Carter The , Hodges ), is suing the s, his former attorneys
(s), alleging that they negligently prosecuted his insurance claims against
out of state insurance companies when the attorneys failed to properly
serve the complaints. An attorney is not liable for an error of judgement
or for a mistake made on a point of law, when that point of law has not
been settled by the highest court in the jurisdiction. An attorney is liable
for loss to the client that results from a lack of knowledge or skill that
would ordinarily be possessed by others in the profession, failure to use
reasonable care and diligence and failure to exercise good faith. Because
the s followed a custom that had been in place in North Carolina
regarding service of process for twenty years and because the s had
obtained a judicial declaration from the Superior Courts that the
Commissioner's acceptance of service subjected the insurance companies
to the court's jurisdiction, they did not act negligently in prosecuting the
's case.
2. The professional must also use such superior judgment, skill and knowledge as
he actually possesses. A specialist might be held liable where a general
practitioner would not
3. Malpractice
a. Local standard or national standard
i. Boyce v. Brown Ms. Boyce sought the services of the , a
medical doctor, to reduce a fracture of her ankle. The performed
the operation, using a metal screw to keep the bones in place.
Seven years latter, the Ms. Boyce returned to the complaining of
pain in her ankle. The examined the ankle and wrapped it before
sending her home. For the next two years, the ankle continued to
19

worsen and Ms. Boyce eventually saw a second doctor who

surgically removed the screw, offering Ms. Boyce a full recovery.
The sued the for malpractice, claiming he was negligent in not
removing the screw when Ms. Boyce returned to his office seven
years after surgery. At trial, the second doctor testified to the
condition of Ms. Boyce's ankle at the time she was seen by him,
but could not say if the acted outside the scope of proper medical
standards when the was seen two years prior. Medical doctors
are required to possess the degree of skill and learning possessed
by an average member of the medical profession in good standing
in the community in which they practice and apply that skill and
knowledge with reasonable care. To be liable for malpractice, a
doctor must have used a treatment that the medical community
where the doctor practices forbids, or have neglected to do
something that community standards would require. To
successfully allege malpractice, a must offer expert testimony on
the community standards of medical care. In this case, because the
expert testimony could not establish that the acted outside of the
community medical standards when the Ms. Boyce returned seven
years after surgery, the cannot be found guilty of malpractice.
ii. Morrison v. MacNamara The patient was given test for a
urinary tract infection. The test was administered while the was
standing. The had an adverse reaction to the test and fell, hitting
his head. The Patient suffered permanent loss of his senses of smell
and taste as a result of his fall. At trial, the provided expert
testimony from a doctor practicing in Michigan. The doctor stated
that the test is always performed while the patient is sitting or
prone. The trial court refused to allow the testimony and held that
the expert testimony for medical malpractice cases must come
from a doctor who practices in the community where the
malpractice is alleged, in this case Washington D.C. A national
standard of care is a more modern method for measuring whether a
doctor has committed negligence. The locality rule developed to
protect rural doctors who lacked means of transportation and
communication by which they could acquire the same set of skills
as urban doctors. But the policy behind the locality rule does not
hold true of doctors in the District of Columbia and the disparity
between doctors in urban and rural areas has mostly been
eliminated. Furthermore, due to the uniformity of the proficiency
certifications that are required by national boards, a national
standard is more practical.
b. Duty to Disclose Risks of Treatment a physician has a duty to provide a
patient with enough information about risks to enable the patient to make
an informed consent to the treatment.
i. Scott v. Bradford After suffering from complications of surgery,
the , Mss. Scott (), seeks recovery from the doctor alleging he
failed to inform her of the risks. To establish a breach of duty of
informed consent, a patient must establish they would not have
elected treatment had they been made aware of the risks. To
20

sustain a cause of action in a theory of informed consent, a patient

must show that: the physician failed to inform the patient of a
material risk the patient, if informed, would not have elected the
treatment the risks that were not disclosed resulted in injury to
the patient. In a departure from the rule established in an earlier
case, the court reasoned that if the patient can show they would not
have elected the procedure had they been properly informed, then a
malpractice case against the doctor can be maintained. The former
rule established an objective standard for informed consent that
required the patient to establish that a reasonable person in their
position would have refused treatment. The court elects to follow a
subjective standard in this case to maintain a patient's right of selfdetermination.
ii. No need to disclose risks that ought to be known by everyone or
are already known by the patient
iii. Not required to disclose information that would be detrimental to
total care information that would alarm an emotionally upset or
apprehensive patient
iv. Not required to disclose in an emergency burden on physician
as an affirmative defense
v. Moore v. The Regents of the University of California The ,
Moore (), alleges financial injury when cells removed from his
spleen were used to create commercial genetic products. The
principles of informed consent extend to disclosing unrelated
interests of the physician because that information is material to
the patients decision. Consent consists of three principles. First, an
adult has the right to exercise control over his body. Second, a
patient's consent to treatment must be informed to be effective.
Third, a physician has a fiduciary duty to disclose all information
that is material to the patient's decision. Normally, the duty
requires the physician to inform the patient of the risks involved in
medical care, however, the principles of informed consent are
broad enough to require physicians to disclose their personal
interests. The scope of informed consent is guided by the patients
need to have all information material to their decision.
E. Automobile Driver to Guest duty is one of ordinary care
F. Rule of Law and Statutes Borrowing standards of care: Violation of statute as
negligence
1. Pokora v. Wabash Ry. Co. After coming to a stop at a train crossing where the
intersection with the road was obscured, the , Pakora's () truck, was hit by an
oncoming train. Standards of prudent conduct should be cautiously framed
when the rule of law is imposed. There is no duty to get out of the vehicle to
inspect the intersection after the driver both stopped and looked and listened for
an oncoming train. Requiring a driver to stop at an uncontrolled or obscured
intersection is practical and prudent. But to form a rule of law that states the
driver has a duty to exit the vehicle and inspect the intersection is both
impractical and possibly dangerous. It is not the role of the judiciary to
determine what is prudent behavior in extraordinary circumstances. That is for
the jury to decide.
21

2. Relevant statutes can be imported as the standard of care by a judge the statute
is relevant if it is meant to protect persons like the from the type of harm that
actually occurred the judge does not have to import the statute
a. Violation of the imported statute can be held as Negligence Per Se,
because a reasonable person would not violate the law
i. Osborne v. McMasters A clerk working in the 's drug store sold
an unlabeled bottle of poison to the , Osborne's () wife. Not
knowing that the drug was poisonous, the 's wife took the drug
and died. By statute the clerk was required to label the drug as
poison and by failing to do so, he broke the law. If a person
neglects to perform a duty imposed by either statute or common
law and that law is designed for the protection of others, then the
evidence of the act or omission constitutes negligence per se.
ii. Stachniewicz v. Mar-Cam Corp. The suffered severe head
injuries when he was injured during a barroom brawl. The
assailants had been at the bar drinking for over two hours when the
fight erupted. A state statute forbids people from giving alcoholic
beverages to anyone visibly drunk. A state licensing regulation
forbids licensed bar owners from permitting disorderly conduct or
visibly intoxicated persons upon the licensed premises. The trial
court held that the 's violations of both the statute and the
regulation did not constitute negligence per se. The violation of
the statute was not negligence per se. The violation of the
regulation is negligence per se. The statute makes it illegal to give
an alcoholic beverage to someone already intoxicated. It is
impossible to determine whether the injury sustained was the result
of the drink given after intoxication occurred, or if the injuries
would have occurred without that drink. The regulation, on the
other hand, is drafted to prevent injuries and abuses associated
with the types of disturbances connected with bars and
intoxication. Because the was within the class of persons the
regulation sought to protect and because the injuries he sustained
were of the type of harm the regulation sought to avoid, the
violation of the regulation can be used as evidence of negligence
per se.
iii. Ney v. Yellow Cab Co. A cab driver, working for the , left his
cab parked with the ignition running and the car unlocked. A thief
stole the vehicle and while fleeing the scene, struck and damaged
the 's car. By leaving the car running and unlocked on the street,
the 's driver violated a section of the Uniform Traffic Act. The
statute is a public safety measure meant to protect the public from
the foreseeable harm caused by leaving an unlocked, running car,
unattended. A violation of that statute is evidence of negligence per
se. Dissent. The legislative intent was to prevent injury caused by
an unattended vehicle that is not properly secured from moving on
its own and doing damage. The statue is not an antitheft statute. It
is recognized that one can leave a vehicle unattended temporarily
and not be negligent as long as one takes proper precautions to
secure the car from uncontrolled movement. If that car is then set
22

in motion by the willful and negligent act of a third party, then it is

the third party's negligence that is the proximate cause of the injury
resulting.
iv. Perry v. S.N. and S.N. The s allege that the s were negligent
per se because they failed to report the 's sexual and physical
abuse of the 's children to child welfare agencies as required by
the Family Code. The s, friends of the alleged child abuser and
day care operator, allegedly witnessed the abuse of the s and other
children, but said nothing to authorities. In failing to report, they
violated the Family Code. The code requires a person to file a
police report if they have reason to believe that a child's physical
or mental health is at risk due to abuse. Although the 's children
are within the class of persons the legislation is intended to protect
and the harm they suffered is of the type the legislation intended to
prevent, the s here are not negligent per se for their violation of
the Family Code. To sustain a cause of action for negligence per
se, the must owe the a pre-existing duty of care in common law
of which the violation of legislation is evidence of the negligence.
In this case, the duty extends solely from the Family Code and
there is no preexisting duty at common law between these s and
the s. To hold a person liable for a duty that is only imposed by
legislation would create a new type of tort liability
b. Presumption of Negligence is presumed negligent but can rebut with
evidence that a reasonable person would have acted as he did
i. Incapacity
ii. Lack of knowledge of the need to comply (drivers tail light goes
out when he is driving and hasnt had a chance to discover that it is
out)
iii. Inability to comply (blizzard makes it impossible for railroad to
comply with statute requiring that its fences be kept clear of snow)
iv. Emergency (driver crosses center line to avoid hitting a child)
v. Compliance poses greater risk than violation - Zeni v. Anderson
The was hit by the 's car while walking to work one winter
morning. The , instead of using the sidewalk, was walking along a
well-used pedestrian snow path with her back to oncoming traffic.
The , having defrosted her windows and scraped them that
morning, was traveling within the speed limit down the busy street
when she hit the with her car. There was testimony at trial that
the 's windows were clouded over and that the snow path that the
used was safer than the sidewalk on cold icy days. By using the
snow path instead of the sidewalk, was in violation of a state
statute, which required the use of sidewalks where provided and
where they are not, pedestrians must walk on the side of the road
facing oncoming traffic. The violation of a statute creates a
rebuttable presumption of negligence, which can be overcome by
providing an adequate excuse as to why the statue was ignored.
Violation of a statute creates a rebuttable presumption of
negligence, which can be overcome by showing that there was an
adequate excuse or reason for such action under the circumstances
23

of the case. The court declines to attach contributory liability to the

because it was shown at trial that using the sidewalk would put
the in danger of falling.
c. Evidence of Negligence The jury may consider violation of a statute as
evidence, along with all other evidence, that was negligent
i. Martin v. Herzog The 's husband was killed as a result of a
collision between the buggy he was driving and the 's car. The
decedent was driving the buggy at night without lights on in
violation of a criminal statute. The purpose of the statue was to
protect travelers on the roads at night. The fact that the violated
this statue is negligence in itself and cannot be ignored as a
contributing factor in the accident. The decedent's negligent failure
to use lamps or lights on his buggy must be considered as a cause
of the accident in light of the fact that the accident took place after
sunset on a dark road. The trier of fact must consider the decedent's
negligence.
G. Affirmative duties to act General rule is that there is no duty to act for the benefit of
others
1. Assumption of duty to act by acting - , under no duty to aid who has been
injured, picks her up and carries her into a room. He leaves her there
unattended for seven hours and her condition is worsened. has breached his
duty.
2. Good Samaritan statutes
3. Peril due to s conduct one whose conduct places another in position of peril
is under a duty to use reasonable care to aid or assist that person
4. Special relationship
a. Parent-child
b. employer-employee
XXII. Duty of Care Special Circumstances
A. Privity of Contract
1. Nonfeasance when there is only the promise and the breach, only the contract
action will lie, and no tort action can be maintained
a. Exceptions public utility, common carrier undertaking serving the public
is liable when it fails to do so even in absence of a contract - who makes
a contract with no intent to perform-tort action for deceit for fraud or
misrepresentation
b. Winterbottom v. Wright The , Mr. Wright (), contracted with the
Postmaster General to keep coaches in working order. The failed to
uphold his duty and the , Mr. Winterbottom (), was injured as a result. A
cannot bring tort claims against a for nonfeasance that resulted from a
contract which was not privy to. The is not privy to the contract
entered into between the and the Postmaster General. Just as the
cannot sue on the contract, he cannot sue in tort claiming that owes a
duty to him. Not containing the right to recover to those who enter into
the contract would open up an endless and unstoppable allowance for suit.
Although the took on a duty to maintain the carriages, he undertook no
duty towards the . The may be without remedy, but this cannot
influence the decision. This case was universally interpreted as applying
24

to any negligence, including misfeasance. It was later pointed out that the
case actually only involved nonfeasance.
c. H.R. Moch Co. v. Rensselaer Water Co. The entered into a contract
with the city of Rensselaer to supply water for a number of years. While
the contract was in force 's warehouse caught fire. The was notified of
the fire, but according to the complaint, failed to supply a sufficient
quantity of water with adequate pressure to extinguish the fire. It was also
claimed that was equipped to do so and had agreed in contract with the
city that it would. The brought suit as one for the breach of a statutory
duty. The made a motion in the nature of a demurrer to dismiss the
complaint, which was denied at Special Term. The Appellate Division
reversed by a divided court. A 's failure to act is not actionable under
tort law unless the has a duty to act as to the . The Court's discussion
hinges on the difference between an act and an omission in tort law. An act
of negligence is generally actionable so long as a duty of care is present
and damages occur. A failure to act, or an omission, is rarely actionable in
tort law.
2. Misfeasance when misperforms the contract, the possibility of recovery in
tort is greatly augmented
3. MacPherson v. Buick Motor Co. The brought a negligence suit against the
for injuries sustained after he was thrown from his car when the wheel
collapsed. had sold the automobile to a retail dealer, who in turn sold it to .
The wheel, which was sold to by another manufacturer, was made of
defective wood. Evidence suggested that the defect could have been discovered
through reasonable inspection, but no inspection occurred. If a product is
reasonably expected to be dangerous if negligently made and the product is
known to be used by those other than the original purchaser in the normal
course of business, a duty of care exists. One line of cases has suggested that
manufacturers owe a duty of care to ultimate purchasers only when the product
is inherently dangerous. Other cases have suggested a duty of care is owed to
foreseeable users if the product is likely to cause injury if negligently made. In
order for a duty of care to arise in relation to ultimate purchasers, two criteria
are necessary. First, the nature of the product must be such that it is likely to
place life and limb in danger if negligently made. This knowledge of danger
must be probable, not merely possible. Second, there must be knowledge that in
the usual course of events, the danger will be shared by people other than the
buyer. This may be inferred from the nature of the transaction and the proximity
or remoteness of the relation. In the present case, the manufacturer of a finished
product placed this product on the market to be used without inspection by its
customers. If the manufacturer was negligent and the danger could be foreseen,
a liability will follow. Judge Cardozo, writing for the majority, also stated that
the need for caution increases with the probability of danger.
4. Clagett v. Dacy The Appellants were the high bidders for property at a
foreclosure sale, but both times the Appellees conducting the sale failed to
follow proper procedure. Due to this, the sale was set aside. The debtor
eventually discharged the loan and Appellants lost the opportunity to acquire the
property. They sued the Appellees to recover the loss that resulted from their
inability to resell the property at a profit. The action claimed that the Appellees
owed the Appellants a duty to use care and diligence and to conduct the sale
25

properly and carefully. The trial court sustained the Appellees' demurrer without
leave, concluding that no such duty existed. A must be in privity with an
attorney or be a third-party beneficiary to a contract in order to maintain an
action for professional negligence. These actions appear to be based solely on
contract and do not permit third parties to sue attorneys on a pure negligence
theory. One reason is the judicially imposed limitations upon who attorneys may
represent. Taking into account the fact that attorneys generally may not
represent adverse parties, it would be illogical to assume that duties or
obligations inherent in the attorney-client relationship are extended to third
parties who an attorney would be unable or unlikely to represent. In the present
case, the Appellees could not lawfully represent both the mortgagee and the
bidders. Therefore, a duty of care will not be extended to the bidders. This court
holds that no duty of care and diligence exists from which an action for
damages may be maintained.
B. Failure to act Only when a special relationship exists between the and the injured
party, is a failure to act by the considered an actionable tort.
1. Hegel v. Langsam A Chicago University (the University) failed to look after
one of its students and the student began using drugs and associating with
criminals. The parents sued the university for failing to maintain order on
campus and contributing to the delinquency of a minor. A university is under no
duty to act in order to ensure that its students are behaving appropriately.
2. L.S. Ayres & Co. v. Hicks The , (Hicks), a six-year-old boy, fell and got his
fingers caught in an escalator at the , L.S. Ayres & Co.'s () store.
unreasonably delayed in stopping the escalator, aggravating the injury. Under
the common law, certain special relationships give rise to a duty to assist or
rescue injured individuals. In this case, the was an invitee and he received the
initial injury using an instrumentality under the control of the . This is a
sufficient relationship to place a duty upon the . The duty did not arise,
however, until after the original injury occurred. Therefore, cannot be charged
with its prevention, but only its failure to exercise reasonable care to avoid
aggravation of the injury. The jury should have been limited in assessing
damages to the injuries that were the proximate result of the 's actionable
negligence.
3. J.S. and M.S. v. R.T.H. A neighbor sexually abused two young girls and
admitted to the abuse. As part of a tort action, the parents of the girls brought
suit against the wife of the abuser, claiming that her negligence was a cause of
the abuse. The wife answered by claiming that she owed no duty to the girls and
if she did her actions were not a proximate cause of their injuries. A spouse
owes a duty to prevent sexual abuse by his or her spouse if they have actual
knowledge or a special reason to know that the spouse is likely to abuse or is
abusing an identifiable victim. Failure to act on this duty is a proximate cause of
the minor's injuries. The imposition of a duty is a question of fairness and
public policy. The court must balance several related factors, including the
foreseeability and severity of the underlying risk of harm, the opportunity and
ability to exercise care to prevent the harm, the relationships among the parties
and the societal interest in the proposed solution. Foreseeability is based on 's
knowledge of the risk of injury, and may be either actual or constructive. The
Court must also take into consideration the s' interest in a stable marital
relationship, supported in the common law doctrine of interspousal immunity.
26

Even granting this consideration, it is clear that society and the Legislature have
mandated that the protection of children from sexual abuse outweighs any
marital interest. The Legislature's imposition of N.J.S.A. 9:6-8.10, requiring any
person who has cause to believe that a child has been subject to abuse to report
such abuse; and "Megan's Law," N.J.S.A. 2C:7-1 to -11, requiring notification
and registration requirements for sex offenders, exemplify this mandate. Based
on these considerations, the Court finds that there is a compelling basis for the
imposition of a duty on a wife whose husband poses a threat of sexually abusing
children. The Court holds that if a spouse has actual knowledge or special
reason to know of a likelihood of her spouse engaging in sexual abuse against a
particular person, this spouse has a duty to take reasonable steps to prevent or
warn of the harm. Additionally, a breach of this duty constitutes a proximate
cause of the resulting injury.
4. Tarasoff v. Regents of University of California Mr. Poddar was a patient of Dr.
Lawrence Moore (Dr. Moore), at Cowell Memorial Hospital of the University of
California. Dr. Moore was one of the four s. During one of their sessions, Mr.
Poddar informed Dr. Moore that he intended to kill Tatiana because she turned
down his romantic advances. Dr. Moore had the campus police detain Mr.
Poddar, but he was released shortly thereafter. Despite a disagreement between
the psychiatrists at the hospital, no further action was taken to detain Mr.
Poddar. Two months later, Mr. Poddar shot and repeatedly stabbed Tatiana,
killing her. The s brought a wrongful death suit against the s who failed to
detain Mr. Poddar. The court rejected the contention that s could be liable for
this inaction because California Government Code Section 856 provided tort
immunity with regard to these decisions. s also claimed s should be liable for
Tatiana's death because they failed to warn her or them about Mr. Poddar's
threat. Once a therapist determines or should have determined that the patient
poses a serious danger of violence, he bears a duty to exercise reasonable care to
protect the foreseeable victim of the danger. s contend that they owed no duty
of care to Tatiana or her parents and were free to act in careless disregard of
Tatiana's life and safety. Although well established in common law that one
person has no duty to control the conduct of another or to warn those
endangered by this conduct, certain exceptions are judicially made for s that
stand in some special relationship to either person. 's pleadings assert a special
relation between Mr. Poddar and s, that which arises between a patient and his
doctor or psychiatrist. California decisions have previously recognized a duty
in such cases when the doctor stood in a special relationship to both the patient
and the victim. However, based on this court's view and other jurisdictions,
there is no reason to limit the duty to such situations. s contend that the
imposition of a duty to third persons is unfair because therapists cannot
accurately predict whether or not a patient will resort to violence. The Court
states that a therapist need not have perfect performance, but rather only needs
to exercise the "reasonable degree of skill, knowledge, and care ordinarily
possessed and exercised by members of that professional specialty under similar
circumstances." Based on this, the Court's view is that once a therapist does
determine or should have determined the patient poses a serious danger of
violence, he bears a duty to exercise reasonable care to protect the foreseeable
victim of that danger. s also argue that such a duty would impede the free and
open communication essential to psychotherapy. They claim that the giving of a
27

warning would constitute a breach of trust. However, the public interest of

safety from violent assault must be weighed against this. The Legislature in
Evidence Code section 1024 has held there is no doctor-client privilege if the
doctor believes the patient is dangerous to the person or property of another.
This Court agrees with this balancing test. The "reasonable degree of skill,
knowledge and care ordinarily possessed" standard is the same as that generally
applied to malpractice cases for professionals.
C. Pure economic loss privity has been vanquished but liability for pure economic losses
not consequent upon injury to person or property are generally restricted.
1. State of Louisiana ex rel. Guste v. M/V Testbank On the evening of July 22,
1980, the M/V Sea Daniel, an inbound bulk carrier, and the M/V Testbank, an
outbound container ship, collided on the Mississippi River. Containers aboard
the Testbank were damaged and lost overboard. During the wreck, hydrobromic
acid and pentachlorophenol (PCP), were released into the environment. The
Coast Guard closed the outlet until August 10, 1980 and all fishing, shrimping
and related activities were temporarily suspended. Numerous lawsuits
representing the affected parties were filed and consolidated before the same
judge in the Eastern District of Louisiana. s moved for summary judgment on
all claims for economic loss unaccompanied by physical damage to property.
The district court granted the summary judgment and on appeal a panel of this
court affirmed. Judge Wisdom specially concurred urging reexamination en
banc, with which the court agreed. The majority rule does not allow recovery
for economic loss, unless physical damage to property occurs.
D. Negligent Infliction of Emotional Distress
1. Daley v. LaCroix On July 16, 1963 the was driving near the s farm when
his vehicle left the highway, traveled 63 feet in the air, and sheared off a utility
pole. Several high voltage lines snapped, striking the electrical lines leading into
s house and causing a great electrical explosion. The s claimed, in addition
to property damage, that Estelle Daley suffered traumatic neurosis, emotional
disturbance and nervous upset and that Timothy Daley suffered emotional
disturbance and nervousness as a result of the explosion. The Court of Appeals
affirmed the trial court's grant of a directed verdict on the ground that Michigan
law denies recovery for negligently caused emotional disturbance absent a
showing of physical impact. Michigan courts now recognize an action for
negligently caused emotional disturbance regardless of a showing of physical
impact.
2. Thing v. La Chusa The , Maria Thing's () son was struck by an automobile
and injured. did not witness the accident, but arrived at the scene shortly
thereafter. sued the , James La Chusa (), for negligent infliction of
emotional distress. The California Supreme Court has ruled that a must be
present when an injury occurs and be closely related to the injured party to
recover damages for a claim of negligent infliction of emotional distress. In the
present case, was not present at the scene of the accident, therefore, she cannot
establish a right to recover for her emotional distress.
3. A may recover damages for emotional distress caused by observing the
negligently inflicted injury of a third person only if:
a. The is closely related to the victim
b. The is present at the scene at the time the injury occurs and is then aware
of the injury being caused to the victim
28

c. As a result suffers serious emotional distress beyond which would be

expected of a disinterested witness
E. Unborn Children
1. Endresz v. Friedberg Mrs. Endresz was seven months pregnant when she was
injured in an automobile accident with Friedberg, causing her twins to be
delivered stillborn. The s, members of the Endresz family (), sued the ,
Friedberg (), for among other things, the wrongful death of each child. New
York does not allow a cause of action for the wrongful death of unborn children.
In wrongful death suits for unborn children, the proof of pecuniary injury is
extremely vague. To allow for such recovery would permit a windfall because
the mother may sue for her suffering as a result of the stillbirth and the father
may sue for loss of her services and consortium. Today a majority of states
allow a civil claim for the wrongful death of an unborn child.
2. Procanik by Procanik v. Cillo The , Peter Procanik (), was born with
multiple birth defects, the result of his mother's German Measles that the s,
Dr. Cillo and other doctors (s), negligently failed to diagnose. sued s
claiming general damages for emotional distress and for an impaired childhood
because the s negligently deprived his parents of the choice of terminating the
pregnancy. also claims special damages for the extraordinary medical
expenses he will incur. An infant may recover special damages for the
extraordinary medical expenses he will incur, but may not recover general
damages for emotional distress or for an impaired childhood. In the present
case, analysis of the action begins with whether the s owed a duty to the . The
s do not deny such a duty and the Court finds that one exists. The Court also
assumes the s were negligent in treating the mother and that the negligence
deprived the parents of the choice of terminating the pregnancy. Policy
considerations have led this court to decline to recognize any cause of action for
an infant's wrongful life. The problem is that the claims not that he should not
have been born with defects, but rather that he should not have been born at all.
This Court finds that there is no rational way to compare a lack of existence
with the pain and suffering of 's impaired existence in order to all recovery for
his emotional distress or diminished childhood. However, this Court does find
that recovery of the cost of extraordinary medical expenses is recoverable by
either the parents or the infant, but not both. The infant can wait until his
majority to recover medical expenses. Unlike wrongful death suits for unborn
child, few jurisdictions allow actions for wrongful life
XXIII. Standard of Care Owed by Owners and/or Occupiers of Land
A. Duty of possessor to those off the property
1. Natural conditions generally no duty to protect those outside the premises
from natural conditions on the land (an exception exists for decaying trees next
to sidewalks or streets in urban areas)
a. Taylor v. Olsen The , Mrs. Taylor (), was injured when her car collided
with a tree that had fallen across the road. The tree had fallen from the
property of the , Marion Olsen (). The trial court directed a verdict for
. The standard of care a landowner owes in relation to roadside trees is
reasonable care to prevent an unreasonable risk of harm. Except in
extreme circumstances, the Court holds that the standard of care a
landowner owes in relation to roadside trees is reasonable care to prevent
an unreasonable risk of harm. In the present case, was using the land for
29

logging purposes and had logged trees adjacent to the tree in question.
There was no surface evidence on the tree to suggest that it was decayed.
There was no evidence to suggest that chopping or drilling into the trunk
would have been an expected way to examine a standing tree. Therefore, it
was not error for the court to direct a verdict for the . Most courts hold
that there is no duty on the landowner to protect persons outside the
property in regard to most land conditions that arise in the state of nature.
2. Artificial conditions generally no duty except
a. A landowner is liable for damage caused by unreasonably dangerous
artificial conditions or structures abutting adjacent land
i. Salevan v. Wilmington Park, Inc. The owned land, which was
rented as a ballpark and facilities. The brought suit against for
personal injuries he sustained when struck in the back by a
baseball while walking past the 's ballpark. Because of the
inherent nature of baseball, a landowner must take reasonable
precautions to protect the traveling public, with reasonableness
depending on the facts and circumstances of each particular case.
The in this case did take some precautions, such as erecting a
ten-foot fence to keep balls within the park. Nonetheless, two or
three balls per game on average left the park and entered the area
where was walking when he was injured. When a landowner
alters the condition of his land, it becomes artificial and the owner
must exercise reasonable care for the protection of those outside
the premises.
b. A landowner has a duty to take due precautions to protect persons passing
by from dangerous conditions, e.g., erecting a barricade to prevent people
from falling into an excavation at the edge of the property
3. Conduct of persons on the property duty to exercise reasonable care with
respect to own activities on the land and to control the conduct of others on his
property so as to avoid unreasonable risk of harm to others outside of the
property
B. Duty of possessor to those on the premises
1. Trespassers one who comes on the land without permission or privilege
a. Duty to undiscovered trespassers no duty to an undiscovered trespasser
nor to inspect to ascertain if persons are coming on to his property.
i. Sheehan v. St. Paul & Duluth Ry. Co. The , Sheehan (), was
trespassing upon the , St. Paul & Duluth Ry. Co.'s () railway,
when 's foot became stuck. 's train crew did not see until it
was too late to stop the train and was injured. Railroad
companies are under a constant and strict duty of care to
individuals at railway crossings, but are not bound to any act or
service in anticipation of trespassers at other points along the track.
The obligation of the railroad company to a trespasser arises at the
moment of the trespasser's discovery and is a duty to make all
reasonable efforts to avert injury. The 's train crew made
sufficient efforts to avert injury in the present case.
b. Duty to discovered trespassers ordinary care to warn the trespasser of, or
make safe, artificial conditions known to the landowner that involve risk
of death or serious bodily harm no duty for natural conditions
30

c. Duty to anticipated trespassers is same as discovered trespassers where

landowner knows or should reasonably know of the presence of
trespassers, e.g., kids cut through property on the way to the fishing pond
(a no trespassing sign may make an anticipated trespasser an undiscovered
trespasser)
d. Infant trespassers Attractive Nuisance doctrine
i. Dangerous condition of which owner is or should be aware
ii. Owner knows or should know that young persons frequent the
vicinity of the dangerous condition
iii. The condition is likely to cause injury, i.e., dangerous because of
the childs inability to appreciate the risk
iv. Expense of remedy is slight compared to magnitude of the
risk(B<P*L)
v. Most jurisdictions have revised attractive nuisance doctrine to just
examine foreseeability of harm to the child. Attraction is only
important to indicate that the trespass should have been anticipated
e. People with easement or license to property do not have landowner status
and must exercise reasonable care to protect trespassers, e.g. if the power
company has easement to run wires on Bobs land and injures an
undiscovered trespasser, they are liable
2. Licensees one who enters the land with the owners permission for his own
purpose
a. Duty to warn the licensee of a dangerous condition known to the owner
that creates unreasonable risk of harm to the licensee and that the licensee
is unlikely to discover
i. Barmore v. Elmore The , Barmore (), visited the home of the
s, Thomas Elmore Sr. (Thomas Sr.), Esther Elmore and Thomas
Elmore Jr. (Thomas Jr.) (s), to discuss business of the Masonic
Lodge. During the visit, was attacked and stabbed by Thomas
Elmore Jr. filed suit against the s, claiming they were negligent
in failing to protect him from a dangerous condition on their
premises. Social guests are considered licensees. Premises owners
have a duty to warn licensees of hidden dangers unknown to the
licensee, but known to the owner. Because is a licensee, s' only
duty was to warn him of hidden dangers unknown to of which s
had knowledge. Although s knew that their son had a prior
history of mental problems, he had committed no violent acts in
ten years. Based on the evidence, it is clear that Thomas Sr. and
Esther Elmore did not know or have reason to know of the
possibility that Thomas Jr. would commit a criminal act toward .
b. No duty to inspect for defects nor repair known defects
c. Social guests are licensees
d. Duty to exercise reasonable care in the conduct of active operations for the
protection of licensee known to be on the property
3. Invitees one who enters land in response to an express or implied invitation
from the landowner for the business interest of the landowner (or held open to
public)
a. Campbell v. Weathers The , Campbell (), entered the business of the
, Weathers () and without purchasing any items, used the restroom.
31

b.

c.

d.

e.

was injured when he stepped into an open trap door on the way to the
restroom. sues for negligence. If an individual enters a store with the
intention of then, or at some other time, doing business with that store, he
is an invitee. The Court was quick to point out that if an individual were to
enter a place of business solely on a personal errand or to advance his own
interests he would not be considered an invitee.
Privileged Entrants
i. Purpose of possessor garbage collector, mail carrier
ii. Under normal circumstances during business hours census
takers, health inspectors
iii. Firefighters Rule police and firefighters treated as licensees not
invitees
Scope of invitation a person loses status as invitee if she exceeds the
scope of the invitation
i. Whelan v. Van Natta The entered 's grocery store and
purchased some cigarettes. then asked if he could have a box
for his son. , busy at the counter, told to go into the backroom
to retrieve a box for himself. went into the backroom, which was
unlit at the time. While searching for a box, fell into an unseen
stair well and was injured. A land possessor is only subject to the
liability of another as an invitee for harm sustained while he is on
the land within the scope of his invitation. An invitee can also
become a trespasser if the owner of the land does not consent to
the individual remaining on the land, or if the individual enters a
part of the property that he was not permitted to enter upon.
Landowner owes an invitee a general duty to use reasonable and ordinary
care in keeping the property reasonably safe for the benefit of the invitee
duty to warn and to make reasonable inspections and, thereafter, make
them safe
i. Warning may suffice requirement to make safe is generally
satisfied if a reasonable warning exists
ii. Duty to warn does not exist where danger is so obvious that the
invitee should reasonably have been aware of it
A strong minority of states has abolished the distinction between licensee
and invitee and apply the reasonable person standard Some states have
gone further and eliminated trespasser category as well
i. Rowland v. Christian was a social guest at 's apartment.
used 's bathroom, where he was injured when a cracked handle
on the water faucet broke and severed tendons and nerves in his
right hand. Evidence showed that had known the handle was
cracked for two weeks, but failed to inform of its condition.
appeals from a summary judgment for the . California abolishes
the traditional classifications of trespassers, licensees and invitees
and instead applies ordinary principles of negligence in these
cases. In the dissenters view, it was not proper for the majority to
overturn a long standing, well supported rule without the
instruction of the Legislature. The previous rules provided stability
and predictability and supplied a reasonable and workable
approach. The new approach will require decisions on a case-by32

case basis and could open the door to potentially unlimited

liability. There is considerable agreement amongst modern courts
that the general negligence standard should be applied to all
persons invited or permitted on the premises. However, there is
less agreement regarding the treatment of trespassers.
4. Lessor and Lessee tort liability is an incident of occupation and control
lessee must maintain leased portions to avoid unreasonable risk of harm, lessor
must maintain common areas
a. Borders v. Roseberry The was the landlord of a single-family house.
At this house, water dripped from the roof onto the front steps of the
house, where the water froze on the front steps. The was a social guest at
the house when he slipped and fell on the accumulated ice, injuring
himself. knew of the condition in question, but had failed to remedy it.
Traditionally, the law has placed the burden of maintaining the premises
on the lessee tenant. This rule has resulted from the view that when land is
leased to a tenant, the lessee acquires an estate in the land and the lessor
retains only a reversionary interest. Therefore, a landlord generally has no
liability in regard to either the tenant or to others entering the land for
defective conditions thereon. This general rule of non-liability is subject
to the following six exceptions: (1) Undisclosed dangerous conditions
known to lessor and unknown to lessee; (2) Conditions dangerous to
persons outside the premises; (3) Premises leased for admission to the
public; (4) Parts of land retained in lessor's control which lessee is entitled
to use; (5) Where the lessor contracts to repair; (6) Negligence by the
lessor in making repairs. This Court finds that none of the above cited
exceptions existed in the present case. contends that the law should be
changed to make the landlord liable for injuries resulting from a defective
condition on the leased premises where the landlord has knowledge of that
condition. This Court does not believe that a departure from the
established rules of law is justified. The Court's description of landlord
non-liability and the exceptions thereto represents an accurate picture of
the law in most states.
b. Kline v. 1500 Massachusetts Ave. Apartment Corp. The , Kline () a
lessee of , 1500 Massachusetts Ave. Apartment Corp. (), was assaulted
and robbed in a common hallway of 's apartment. was on notice that
assaults were occurring in the hallway, but nonetheless stopped employing
a doorman. sued for injuries sustained. Landlords have a duty to take
steps to protect tenants from foreseeable criminal acts committed by third
parties in common areas of landlord's property. The Court was quick to
point out that the landlord is not the insurer of the safety of his tenants, but
only has the duty to take those measures within his power, which can
reasonably expected to mitigate the risk of intruders.
c. Lessor is required to give warning to lessee of existing defects of which
the lessor is aware or has reason to know, and which he knows the lessee
is not likely to discover on reasonable inspection
d. Lessor, under no obligation to make repairs, is liable for repairs he
undertakes voluntarily and does so negligently failing to cure the defect
e. If lessor leases premises knowing that lessee will admit the public, lessor
is subject to liability for unreasonably dangerous conditions existing at the
33

time he transfers possession where the nature and length of the lease and
nature of the defect indicate tenant will not repair (renting of a convention
hall) liability continues until condition is corrected warning to lessee not
sufficient
f. Pagelsdorf v. Safeco Ins. Co. of America was injured when tenant's
balcony rail collapsed while she was helping tenant move. sued landlord
for landlord's failure to repair the balcony. Judgment was entered for
landlord based on a landlord's general immunity to liability from tenants
and visitors. Under Wisconsin law, a landlord owes to his tenant or anyone
on the premises with the tenant's consent a duty to exercise ordinary care.
This court previously abolished the distinction between licensees and
invitees [Antoniewicz v. Reszcynski, 70 Wis.2d 836, 854-55, 236 N.W.2d
1, 10 (1975)]. However, the landlord is generally not liable to tenants
unless one of the exceptions applies and no exception applies in this case.
Following the traditional rule, the would not be entitled to an instruction
that owed Mrs. Pagelsdorf a duty of ordinary care. The Court believes
that public policy calls for abandonment of the previous rule and adoption
of a standard that landlords are under a duty to exercise ordinary care in
the maintenance of the premises. The policies discussed in Antoniewicz
support, in the present case, the Court's decision to abandon the landlord's
cloak of immunity to tenants and visitors. The modern day apartment lease
is viewed as a contract rather than a conveyance. The Court has implied a
warranty of habitability in such contracts. It would be anomalous to apply
a warranty of habitability to landlords, yet immunize them from liability
from injuries resulting from a failure to comply with such a warranty. An
implied warranty of habitability requires a lessor to deliver the premises to
the lessee in a habitable condition. Generally, the only recourse for a
landlord's failure to comply with this warranty is a right to withhold rent
until repairs are made.
XXIV. Breach of Duty Proof of Negligence
A. It must be shown in fact what happened
B. It must be shown from these facts that acted unreasonably
C. Circumstantial evidence
1. Goddard v. Boston & Maine R.R. Co. The , Wilfred H. Goddard (the ""),
brought suit against the , Boston & Maine Railroad Co. (the ""), after falling
on a banana peel lying on one of the 's railroad platforms. The fell right after
disembarking from the train. A railroad is not liable for negligence, if the
negligent action may have been perpetrated by a passenger of the railroad. "The
banana skin upon which the stepped and which caused him to slip may have
been dropped within a minute by one of the persons who was leaving the train."
This case offers an early discussion about negligence.
2. Anjou v. Boston Elevated Railway Co. The , a passenger on the 's railway,
injured herself when she slipped and fell on a banana peel. The had been
following behind one of the railroad's uniformed workers when she slipped. The
banana peal was described as black, dry and gritty and appeared as if it had been
trampled on. Circumstantial evidence can be used to establish proof of
negligence. The was negligent in not removing the banana peal. Because the
appearance of the banana peal suggested that it had been on the ground for some
time, it could be inferred that the peal had been seen and could have been
34

3.

4.

5.

6.

removed by one of the employees of the railway. This fact distinguishes this
case from Goddard, as there is evidence upon which to base a conclusion that
the peal was not dropped a moment before the 's fall by another passenger.
Here, the railway employees had time to pick up the hazard and they did not.
Joye v. Great Atlantic and Pacific Tea Co. The was injured when he slipped
and fell on a banana peal in the 's store. The banana peal was brown and sticky
with bits of dirt and sand on it. The floor around the peal was also dirty. If there
is no evidence to establish that the had notice of the hazard, then the cannot
prove negligence. The evidence presented shows that the floor was not swept
for up to thirty-five minutes. Also, by the condition of the banana, there was no
way to determine how long it had been on the floor. Without evidence that the
store had, or should have had notice of the hazard, the cannot prove
negligence.
Ortega v. Kmart Corp. While shopping at one of the , Kmart Corp.'s store
(the ""), the , Richard M. Ortega (the ""), slipped on a puddle of milk on a
floor near a refrigerator. The suffered a substantial knee injury, including torn
ligaments. The sued the for his injuries. During his testimony, the could
not remember much about the milk or how long it was on the floor for.
Although he did not know how long the milk was on the floor, the argued that
the had not inspected the floor in a reasonable amount of time prior to the
accident. A Kmart employee testified that the milk would have probably been
mopped up within 15-30 minutes, but it could have been on the floor for up to 2
hours. The jury awarded the $47,200 in damages. "s may demonstrate the
storekeeper had constructive notice of the dangerous condition if they can show
that the site had not been inspected within a reasonable period of time so that a
person exercising due care would have discovered and corrected the hazard."
Jasko v. F.W. Woolworth Co. The was injured when she slipped and fell on a
slice of pizza in the 's store. The pizza was sold over the counter to patrons
shopping in the store. The area around the pizza counter was tiled. When the
engages in a business that is prone to hazardous mishaps, then the nature of the
business serves to put the business on notice of possible injuries. The store's
method for selling slices of pizza created a foreseeable risk of danger. The slices
were sold on wax paper to standing patrons and therefore it was foreseeable that
food would drop on the floor. It was also foreseeable that if there were food on
the floor it would be hazardous. No further evidence is needed to show notice to
the storeowner because the risk that someone might slip is a recognized danger
under these circumstances.
H.E. Butt Groc. Co. v. Resendez The Respondent, Maria Resendez (the
"Respondent"), was shopping in one of the Petitioner, H.E. Butt Groc. Co.'s (the
"Petitioner" or "HEB") grocery stores, when she slipped near certain displays of
grapes. The Respondent sued the Petitioner alleging that the grape displays
posed an unreasonable risk of harm that caused her injuries. The trial court ruled
in favor of the Respondent, and the Court of Appeals affirmed. The Petitioner
supermarket had two grape displays, one for sale and one for sampling. Each
display had a three inch railing and there were floor mats around the display
tables. The bowl of grapes for sampling sat on ice and was level. "Can mere
display of produce for customer sampling constitute an unreasonable risk of
harm to customers?" Yes, but not here. The court observed that to recover, the
Respondent must prove "that (1) HEB had actual or constructive knowledge of a
35

condition on the premises, (2) the condition posed an unreasonable risk of harm,
(3) HEB did not exercise reasonable care to reduce or to eliminate the risk, and
(4) HEBs failure to use such care proximately caused her injuries." The court
observed that unlike [Corbin v. Safeway Stores, Inc.], no evidence was
presented demonstrating that the "display created an unreasonable risk of
customers falling on grapes." In [Corbin], there was more evidence than just a
display. The grapes were displayed "in a slanted bin over a linoleum tile floor
with no protective floor mat--that created an unreasonable risk of customer falls
from grapes falling on the floor." Negligence will not be found unless a
condition posed an unreasonable risk of harm. "As a matter of law, [ ] the mere
fact that a store has a customer sampling display cannot, without more, be
evidence of a condition on the premises that poses an unreasonable risk of
harm."
D. Res Ipsa Loquiter (the thing speaks for itself)
1. The fact that a particular injury occurred may itself establish that a breach of
duty owed
a. Byrne v. Boadle The was injured when a barrel of flour fell out of the 's
shop window and knocked him down. Res Ipsa Loquitur means the thing
speaks for itself. The fact that some types of accidents occur, proves
negligent cause with no more evidence needed. Because the barrel was in
the custody of the , who owned the shop from which the barrel was being
lowered out of, he is the responsible party for the manner in which the
barrel was lowered. Barrels don't just fall out of shop windows by
themselves so the fact that the accident took place is enough to show
negligence.
2. must establish that the accident causing his injury is the type that would not
normally occur unless someone was negligent inference of negligence
a. McDougald v. Perry The , McDougald (), was injured when the spare
tire flew off of the , Perry's () trailer and hit the 's windshield. Res
Ipsa Loquitur applies to rare occurrences where the accident itself is
evidence upon which to base an inference of negligence. The mere fact
that the accident occurred does not always warrant the application of the
doctrine. But in rare instances the fact that the accident occurred, along
with a showing of an immediate precipitating cause, permits the inference
of negligence. In this case, the spare tire would not have come loose had
the exercised reasonable care when inspecting his vehicle and therefore
Res Ipsa Loquitur applies and the is liable
3. must establish that the negligence is attributable to the by showing that the
instrumentality that caused the injury was in the exclusive control of the
a. Larson v. St. Francis Hotel The was walking along the sidewalk
outside of the 's hotel when she was struck and knocked unconscious by
an armchair. It is assumed that the armchair came from one of the hotel
room windows. Res Ipsa Loquitur does not apply unless the object that
caused the accident is under the exclusive control of the and under
ordinary circumstances using ordinary care, the accident would not have
happened.
b. Res Ipsa Loquiter may generally not be used to establish a prima facie
case where more than one person was in control of the instrumentality but
36

would be available where a particular had control over the site of an

injury
i. Ybarra v. Spangard The , Ybarra (), a patient of the s, various
doctors (s), underwent an appendectomy and woke from the
anesthesia with arm and shoulder pain. The pain worsened over the
next several days and spread down his arm. The condition
worsened until the suffered paralysis and atrophy in the muscles
around his shoulder. The doctrine of Res Ipsa Loquitur is best
applied in a situation like this where the has no way of knowing
which or which instrument injured him. Like the woman walking
down the street who is struck by an object falling from a building,
the in this case, having been unconscious during the injury, can
have no knowledge of who or what injured him. The fact that he
has the injury speaks for itself that negligence occurred. In a case
where there are multiple s, some of whom may or may not share
liability, the burden falls to them to sort out who bore the
responsibility for the negligence since the can have no way of
knowing.
4. must also establish that the injury was not attributable to him, but may do so
by his own testimony
5. Res Ipsa Loquiter, where proven, establishes a prima facie case no directed
verdict for
6. If the s evidence overcomes the inference permitted by Res Ipsa Loquiter,
then the jury may find for
a. Sullivan v. Crabtree Mr. and Mrs. Sullivan, the s' (s), adult son was
killed when the truck he was a passenger in went off a steep embankment
and crushed him. The , Crabtree (), was driving the truck at the time
and testified that there could have been several reasons that the truck went
off the road and down the embankment, including brake malfunction. The
day was clear and sunny, but there was loose gravel and broken pavement
on the road. The determination of what procedural effect the application
of the doctrine of Res Ipsa Loquitur has is done on a case-by-case basis. A
defense to the doctrine requires that reasonable evidence be shown that the
accident was not caused by the 's negligence. The weight of this burden
on the depends on the strength of the inference that the circumstances
create. The doctrine of Res Ipsa Loquitur creates a burden on the to
show a reasonable explanation for the injury. The strength of that burden
depends on the facts of each case and the strength of the inference created.
XXV. Causation in Fact
A. Sine Qua Non without which not Before s conduct can be considered a proximate
cause of s injury, it must first be a cause in fact (actual cause)
1. Gentry v. Douglas Hereford Ranch, Inc. The , John Gentry (), brought this
action on behalf of his wife, who was shot in the head when a rifle accidentally
went off when its owner slipped. The s were the Douglas Hereford Ranch, Inc
(Douglas Hereford Ranch) and Bacon (Bacon) an employee of the ranch (s).
Causation requires proof of proximate cause and cause in fact for liability to
attach. Because there was no way for either the or the s to say whether a
condition of the porch stairs caused the fall that lead to the accident, Douglass
37

Hereford Ranch cannot be found liable for the 's injury. The evidence does not
establish that the condition of the porch step was a cause in fact of the 's injury.
2. But For test an act or omission to act is the cause in fact of an injury when
the injury would not have occurred but for the act
a. The but for test applies to concurrent causes where several acts combine to
cause the injury, but none of the acts standing alone would have been
sufficient.
b. Kramer Service, Inc. v. Wilkins The , Wilkins (), received a cut on his
forehead due to the negligence of the , Kramer Service, Inc. (). The cut
did not heal and developed into skin cancer. The seeks damages for the
resultant cancer. It is not enough that negligence and injury occur at the
same time, there must be a causal link between them. The possibility of an
injury occurring as a result of negligence is also not enough of a link. In
cases where the subject matter is beyond the experience or observation of
laymen, courts must depend on medical testimony to determine whether
the causal link has a substantial enough foundation to find liability. The
jury must be allowed to consider the expert testimony when deciding
whether to award damages for the 's cancer in addition to his original
injury.
3. When the but for test is inadequate the courts may rely on other tests
a. Joint causes substantial factor test
i. Where several factors concur to bring about an injury and any
one alone would have been sufficient to cause the injury it is
sufficient if s conduct was a substantial factor in causing the
injury
ii. Perkins v. Texas and New Orleans Railroad Co. The 's husband
was killed in a collision between the car he was a passenger in and
a freight train operated by the , New Orleans Railroad Co. At the
intersection of the road and rail crossing where the accident
occurred, a large warehouse obstructed the view of both the car's
driver and the train's engineer and brakeman. The train's engineer
and brakeman were aware of the obstruction and while
approaching the intersection rang the train's bell and whistle and
put its headlights on. The intersection also had warning signals to
warn drivers of approaching trains. These signals were operating at
the time of the accident. Of the three railway employees in the
forward engine of the train only two, the brakeman and a fireman
saw the car emerge from the intersection. The third, the engineer
did not see the car due to the obstructed view, but applied the
emergency brakes when his companions alerted him to the
presence of the car. At the time of the accident the train was
between 30 to 60 feet from the car. Both parties have conceded that
the driver of the car, who was also killed, was negligent in driving
upon the train track with the signal lights on. The parties have also
conceded that the train was traveling at 37 miles per hour when the
self-imposed speed limit for the intersection was 25 miles per hour.
The 's negligence must be a substantial factor in the cause of the
harm for liability to attach. The train's speed was not a substantial
factor in the cause of the accident.
38

iii. Reynolds v. Texas & Pac. Ry. Co. The , Reynolds (), was
injured when she fell down an unlit stairway while exiting the ,
Texas & Pac. Ry. Co.'s (s) train. If the 's negligence is of a
character naturally leading to the character of the injury, then
causation is established. While it is possible that the might have
fallen had she exited the train during the daylight, the possibility is
not sufficient to divest the of liability for its negligence. The 's
negligence was of a character naturally leading to the character of
the 's injury and therefore causation is established.
iv. Hill v. Edmonds The Hill, (), was injured when the car he was
riding in collided with a tractor left in the road without its lights
on. When two separate acts of negligence produce a single harm,
each tortfeasor is wholly responsible for the harm even though his
act alone may not have caused it.
b. Alternative causes approach
i. Burden of proof shifts to - a problem of causation exists where
two or more persons have been negligent, but uncertainty exists as
to which one caused s injury. must prove that the injury was
caused by one of them (with uncertainty as to which one). The
burden of proof then shifts to s and each must show that his
negligence is not the actual cause
ii. Anderson v. Minneapolis, St. P. & S.St. M. R.R. Co. A forest fire
resulted in the destruction of the , Anderson's (), property. The
fire had two origins, one cause was due to the negligence of the ,
Minneapolis, St. P. & S. St. M.R.R. Co. (), the other cause was
unknown. The jury instructions directed the jury to determine that
if they found the fire set by the 's train to be materially or
substantially responsible for the 's damage, either alone, or in
connection with the other fire, then the is liable. The 's argued,
based on [Cook v. Minneapolis, St. P. & S.S.M. Ry. Co., 74 N.W.
561], the jury should have been instructed that if they found the
unknown fire was of more superior force, then the would not be
liable since the fire it was responsible for would not have caused
the damage to 's property, but for the negligence of someone else.
The court rejected this argument reasoning that the Cook case
makes sense if you have two fires from known origins because the
result is joint and several liability. However, Cook does not work
in cases where the other fire is from an unknown source because it
leaves the with no possible recovery.
iii. Summers v. Tice was injured when he was shot in the eye
during a hunting expedition. Two s negligently shot in his
direction at the same time. The should not be deprived of his
recovery from negligent s just because he cannot know which
actually shot him. Because both of the s were negligent and both
were wrongdoers, then it is their burden to absolve themselves if
they can. If the rule were that the must choose one or the other
tortfeasor and that tortfeasor escaped liability by pointing to the
second tortfeasor, then second tortfeasor can do the same and leave
the without recovery.
39

iv. Applied in enterprise liability cases: Sindell v. Abbott

Laboratories The 's mother took synthetic estrogen while
pregnant with the . As a result of receiving the drug in-utero, the
developed cancer as an adult. The drug was manufactured by the
s, five drug companies (s) and by about 195 other companies
not named in the suit. The s together produced 90% of the drug.
The is unable to identify which company produced the actual
drug her mother took. This case is unlike others in which the is
unaware of the identity of the tortfeasor. First, there is a large
number of possible tortfeasors, the majority of which are not
named s. Second, the industry responsible for the production of
this drug is large, so holding all of the manufacturers responsible
becomes impractical. There are strong policy reasons for
fashioning liability to the s. First, the was innocent of any
wrongdoing and has no way of knowing which of the drug
manufactures caused her injury. Second, the manufacturers of such
drugs should be culpable for producing a drug that has harmful
effects to future generations. Third, the manufactures are in a better
position to bear the cost of such harm and they are in the best
position to discover and guard against future harm. If the joins a
substantial share of the manufactures into the lawsuit, the chances
of the actual tortfeasor escaping liability is greatly reduced. To
determine damages, each manufacturer's liability will depend on
the share it had in the market for the drug unless that can show
that it could not have made the product that 's mother ingested. In
this way, each manufacturer is liable for an equivalent portion of
the injury as to its share of the defective drug it manufactured.
4. Cause of Reduced Chance of Survival
a. Herskovits v. Group Health Cooperative of Puget Sound Due to the ,
Group Health Cooperative of Puget Sound's (), failure to promptly
diagnose the decedent's lung cancer, the decedents chances of surviving
went from 39% to 25%. The in this matter, Edith Herskovits (), is the
decedent's estates personal representative. Once the demonstrates that
the 's negligence caused a decrease in chance of survival, there is
sufficient information to determine whether the negligence was a
substantial factor in the resultant harm. The court notes that a reduction in
the opportunity to recover due to negligence does not mean that the jury
must award full damages to the 's estate, but rather only award damages
based on premature death i.e. lost wages.
5. Expert Testimony to show Causation
a. Daubert v. Merrell Dow Pharmaceuticals, Inc. The s, Daubert and
other minors (s), suffered limb reduction birth defects. They claim the
defects were caused when their mothers ingested drugs manufactured by
the , Merrell Dow Pharmaceuticals, Inc. (), while they were pregnant.
To be admissible, expert scientific testimony that is derived from research
done for the purpose of litigation must show that the conclusions were
reached after following recognized scientific methods of research.
b. Daubert test - Federal Rule of Evidence 702 (Rule 702) is now the
standard for admitting expert scientific testimony. Under Rule 702, there
40

are several factors to consider when determining whether expert testimony

is admissible:
i. Whether the theory is generally accepted in the scientific
community;
ii. Whether the theory/method has been subjected to peer review and
publication;
iii. Whether the theory/method has been tested or can be tested;
iv. Whether the potential or known rate of error is acceptable.
c. Fry is a common law test asking if expert testimony is accepted within
scientific community
XXVI. Proximate Cause (Legal Cause) Questions of cause and effect create potentially limitless
liability so courts must draw a line to sever the liability of a tortfeasor at a reasonable place in
a chain of events. Otherwise, a tortfeasor could theoretically claim the injury would not have
happened if the had not been born at all. To limit a potentially limitless chain of causes, we
must look to the proximate cause of the injury and draw arbitrary lines to limit liability.
A. General rule of proximate cause is that is liable for all harmful results that are the
normal incidents of and within the increased risk caused by his acts. If one of the reasons
that make s act negligent is a greater risk of a particular harm and that harm results,
is generally liable. Test based on foreseeability
1. Ryan v. New York Central R.R. Co. A woodshed on the 's property caught on
fire from one of the 's rail engines. The fire spread and consumed the 's
property. Several other properties were also destroyed and valiant efforts were
made to save the homes. The building that catches fire due to the 's
negligence, is a foreseeable consequence. But the spread of the fire to other
properties is not necessarily a proximate result since that result depends on
several accidental occurrences. Circumstances such as the degree of heat, the
weather and the materials used to construct the adjoining properties are all
contributors to the result. None of these circumstances are under the control of
the . Therefore, the burning of the 's property is a remote result of the 's
negligence and liability does not attach.
B. Direct cause a direct cause case is one where the facts present an uninterrupted chain of
events no external intervening force
1. Foreseeable harm results liable (unusual manner in which the injury
occurred is irrelevant)
a. In re Arbitration Between Polemis and Furness, Withy & Co., Ltd. The
owners of a vessel chartered its use to the Appellants for the purposes of
carrying, among other things, petrol to Casablanca. While unloading the
cargo in Casablanca, a wooden plank fell into the hold containing the
petrol and caused an explosion. The fire completely destroyed the vessel.
The owners, charging the chatterers with negligence, claimed the value of
the vessel from the charterers. The charterers responded that the fire was a
remote consequence of their actions, so they are not responsible. The case
was referred to arbitration and the arbitrators found that the fire was
caused when the wooden plank hit metal and caused a spark. The
arbitrators agreed with the charterers that the spark was an unforeseen
consequence of the original negligence and therefore the destruction of the
vessel was a remote consequence. The only damage the charterers should
be liable for is the approximate damage done to the vessel by the falling
wooden plank, not the damage done by the fire. The owners sought
41

review. The finding that the spark was too remote to confer liability on
the charterers was based on the contention of the charterers that the fire
was an unforeseen consequence of the falling wooden plank. The actual
anticipations of the negligent party are irrelevant when considering
whether the resulting damage is remote. In this case, the fire was a direct
result of the negligent act and therefore the charterers are liable for the
fire. That damage that might result when a wooden plank falls while
discharging cargo is a foreseeable consequence of the negligence,
whatever that damage might be. The exact way in which damage or injury
results need not be foreseen for liability to attach, the fact that the
negligent act caused the result is enough. The fire was a foreseeable
consequence of the negligence.
2. Unforeseeable harm results not liable (if s conduct creates a risk of harm,
but an entirely different and totally unforeseeable harm results, most courts hold
that is not liable for that harm)
a. Overseas Tankship v. Morts Dock & Engineering Co., Ltd. "Wagon Mound
No. 1" The , Morts Dock & Engineering Co., Ltd. (), operated a dock
in the Port of Sydney. The s were the owners of the vessel Wagon Mound
(s). Wagon Mound was moored 600 feet from the 's wharf when, due
the 's negligence, she discharged furnace oil into the bay causing minor
injury to the 's property. However, the oil was ignited when molten metal
dropped from the wharf and came into contact with cotton waste floating
on the water's surface. The fire seriously damaged the wharf and two ships
docked there. The injury to 's property, though a direct result of the 's
negligence, was an unforeseeable consequence and liability does not
attach. The natural consequences rule is overruled and reasonable
foreseeability test is adopted.
b. Overseas Tankship Ltd. V. Miller Steamship Co. "Wagon Mound No. 2"
If a party did nothing to prevent the injury, he is liable for the foreseeable
consequences of his actions, even if the consequences are remote.
C. Indirect cause An indirect cause case is one where the facts indicate that a force came
into motion after the time of s negligent act and combined with the negligent act to
cause injury to . Where intervening forces are present
1. Foreseeable results caused by foreseeable intervening forces liable
a. Dependent intervening forces normal responses or reactions to the
situation created by s negligent act; almost always foreseeable
i. Subsequent medical malpractice
ii. Negligent rescuers
iii. Efforts to protect person or property
iv. Reaction forces where s actions cause someone to react,
liability attaches to for any harm inflicted by reactor
v. Subsequent disease original tortfeasor liable for disease caused
by the weakened condition in which has placed
vi. Subsequent Accident as a result of s negligence, breaks leg.
She later falls walking on crutches and breaks other leg - liable
b. Independent intervening forces independent actions rather than natural
responses or reactions; may be foreseeable where s negligence increased
risk that these forces would cause harm to
42

i. Derdiarian v. Felix Contracting Corp. The was severely burned

while working as a subcontractor on street repairs. The accident
occurred when the driver of an automobile traveling down the
street where was working suffered an epileptic seizure and hit the
causing him to fly through the air. When the landed, liquid
enamel was splattered on his face and body. The became
engulfed in flames. The was negligent in not properly protecting
the worksite where the was working. It is a naturally foreseeable
consequence that a car might enter the worksite and injure a
worker. The precise nature of the injury need not be foreseeable.
The fact that a car could enter the unprotected worksite is a natural,
normal and foreseeable risk created by the 's failure to protect the
site.
ii. Negligent acts of third persons - negligently blocked a sidewalk,
forcing to walk in road where he is hit by a negligently driven
car. is liable to
iii. Watson v. Kentucky & Indiana Bridge & R.R. Co. The
railroad's tank car filled with gasoline derailed and spilled its
contents into the street where the was a bystander. A third party
struck a match igniting the gasoline vapor and causing the
explosion, which injured the . There was conflicting testimony at
trial over whether the third party started the fire while lighting a
cigar, or whether he dropped the match with the intention of
igniting the gas. If an intervening act is merely unforeseeable it
does not sever the liability of the primary negligent party.
However, if the intervening act is so unexpected or extraordinary
that the primary tortfeasor could not and ought not to have
anticipated it, then liability is severed. If the third party
inadvertently lit the match, then the negligence of the is a
proximate cause of the 's injury because it is reasonably
foreseeable that someone might light a cigar on the street. In this
instance the explosion could not have occurred without the
gasoline first having been spilled. If the act of the third party was
intentional and done with the purpose of lighting the gasoline, then
the is not liable because the could not have foreseen that
someone would maliciously light a match with the purpose of
causing an explosion. Because such an act is not reasonably
foreseeable, the had no way to guard against it.
iv. Criminal acts and intentional torts of third persons - , a parking
attendant, negligently left keys in s car allowing it to be stolen.
is liable to
v. Acts of God - a roofer negligently left a hammer on s roof.
is struck by the hammer when wind blows it off the roof. is
liable to
c. Foreseeable results caused by unforeseeable intervening forces - usually
liable because his conduct still threatens a result of a particular kind of
harm that will injure the . Result then produced unforeseen intervening
force greater weight to forseeability of results than foreseeability of
intervening causes
43

i. An unforeseeable crime or unforeseeable intentional tort of a third

party will be deemed a superseding force and cut s liability
ii. If failed to clean residue out of an oil barge, leaving it full of
explosive gas, an explosion is foreseeable. If an unforeseen
lightning bolt strikes and the barge explodes is liable. If an
arsonist lit the gas, is most likely not liable
iii. Yun v. Ford Motor Co. The was driving her van when the spare
tire came loose from its holding and came off of the van. The and
her father Chang, who was a passenger, stopped the van when they
heard the tire come off. Chang got out and crossed the highway to
retrieve the tire and other parts of the support bracket. On his way
back to the van Chang was hit by a car and killed. Proximate
cause is any cause that in the continuous sequence, unbroken by an
intervening cause, produces the resultant injury and without which
injury would not have occurred. The defect in the spare tire did
not cause Chang's injuries, the injury occurred after he recklessly
crossed the highway. The spare tire created circumstances upon
which the subsequent intervening negligence occurred, but there
was no proximate cause between the defect in the product and the
injury. The manufacture of the spare tire holder is also not
responsible for the decedent's injuries. The facts show that the
and Chang had the opportunity to fix the holder thirty days before
the accident occurred. As a matter of public policy, the court can
decide the issue of proximate cause, which is usually reserved for
the trier of fact, when the injury is so extraordinary that it cannot
be an expected result. This is such a case as the harm caused to the
is so unexpected.
iv. Fuller v. Preis The decedent, Dr. Lewis, was in good health
physically and mentally before he suffered head injuries as a result
of a collision with the . After the collision, the decedent suffered
epileptic seizures and unconsciousness. Eventually Dr. Lewis took
his own life. An intentional intervening act like suicide does not
sever the causal relationship with the primary tortfeasor, when it is
shown that the decedent was incapable of resisting the impulse to
kill themselves as a result of the tortfeasor. If the act of suicide is a
foreseeable result of the 's negligence, then the may be liable
for the suicide even though suicide is an intentional act. To be held
liable, the evidence must show that the decedent was incapable of
resisting an impulse to destroy themselves due to the negligent act.
d. Unforeseeable results caused by foreseeable intervening forces - not
liable
e. Unforeseeable results caused by unforeseeable intervening forces - not
liable
2. is liable for unforeseeable extent or severity of harm accident caused by s
negligence causes s foreseeable concussion and unforeseeable relapse of a
mental illness. liable for both
a. Bartolone v. Jeckovich The was injured as a result of a four-car pileup
caused by the 's negligence. Although the 's initial injuries were
relatively minor, whiplash and lower back pain, the incapacity resulted in
44

aggravating a pre-existing paranoid schizophrenic condition, which has

completely debilitated the 's life. The evidence demonstrates that the
lead a normal active life before suffering minor physical injuries in the car
accident. Expert medical testimony explained how the injuries lead the
to exhibit schizophrenic behaviors. The must take the as they find him.
The must demonstrate a predisposition to the resultant psychological
illness and in this case he did. The must take the as he finds him and
maybe liable for aggravating pre-existing illnesses.
3. Palsgraph v. Long Island R.R. Co. A railway guard employed by the , the
Long Island R.R. Co. (), caused a man to drop a package of fireworks upon the
tracks. The fireworks caused an explosion and the force of the explosion caused
a scale at the other end of the station to fall on the , Ms. Palsgraph () and
injure her. The "orbit" of the duty here is the "orbit" of foreseeability. The 's
guard was negligent when he dislodged the package from the man carrying the
fireworks. It was not foreseeable that this act could cause injury to the , who
was several feet away from the initial injury. The guard owed no duty of care to
the people on the platform generally, and could not have known the nature of
the contents of the package. The harm to the was the unforeseeable result of
harm caused to another person. Furthermore, by dislodging the package from
the man's arms, the guard could not have expected the harm to carry a risk to
people standing several feet away on the platform. The cannot predicate her
injury upon the wrong done to someone else. The duty the owed is defined by
the risk reasonably perceived. The reasonable person would not perceive that
the risk created by dislodging a package while attempting to help a passenger
onto a train would carry with it a duty to persons several feet away.
D. Rescue Doctrine
1. The rescue doctrine allows an injured rescuer to sue the party that caused the
danger. The tortfeasor owes a duty to the rescuer that is similar to the duty they
owed to the party injured in the first place. The doctrine also negates the
presumption that the rescuer assumes risk of injury when undertaking a
dangerous rescue as long as the rescuer does not act recklessly.
2. The rescue doctrine requires that:
a. The acted negligently towards the person rescued and the negligence
caused the danger to the rescuer
b. The danger was imminent
c. A reasonably prudent person would have concluded that the danger existed
d. The rescuer acted with reasonable care.
3. McCoy v. American Suzuki Motor Corp. The was struck by a car while
offering assistance at the scene of a car accident. The was following behind
the driver of a Suzuki motor vehicle when it crashed. A state trooper arrived at
the scene soon after and asked the to put flares on the road, which the did.
After the accident scene and the injured parties were removed, the headed
back to his car along the shoulder of the road carrying a lit flare in his roadside
hand. He was then struck from behind by a passing car. The state trooper had
pulled away and left the scene when the hit and run occurred. The sued
various s including the driver and the passenger of the Suzuki, the State for the
negligence of the trooper and American Suzuki Motor Company along with its
parent Suzuki Motor Company (s). The rescue doctrine may apply in products
liability cases.
45

E. Public Policy
1. Kelly v. Gwinnell Zak provided Gwinnell with alcoholic beverages and then
allowed him to drive home. Gwinnell was involved in a head on collision with
Kelly on his way home. Kelly sued Gwinnell and Zak for negligence. The trial
court granted Zak's motion for summary judgment. Social hosts who allow
guests to become intoxicated and then drive, may be liable for injuries caused
by the guest's negligent drunk driving. Tortfeasors are generally held liable for
injuries that occur in the ordinary course of events from their negligence if the
negligence was a substantial factor in bringing about the injuries. Zak provided
his guest with liquor, knowing the guest would be driving later. Viewing the
facts most favorably for the (in light of the summary judgment motion) it is
reasonable to conclude that Zak continued to serve Gwinnell after he was
becoming visibly drunk. A reasonable person in Zak's position could foresee
that unless he stopped providing Gwinnell with alcoholic beverages, Gwinnell
was likely to injure someone while operating his car. The remaining question is
if this Court should impose a duty to prevent such a risk. Although imposing a
duty may interfere with accepted standards of social behavior, this Court
believes that the just compensation of drunk driving victims along with its
deterrent effect outweigh the opposing policy considerations. Dissent: This type
of liability imposition is best left up to the legislature. Unlike commercial
licensees who serve alcoholic beverages, average social hosts have less
knowledge in determining levels of intoxication, don't always serve guests
directly have no insurance to spread the cost of liability. Additionally, it is not
clear from the majority's decision to what length a host must go to prevent an
intoxicated guest from driving. The majority's decision to impose a duty on
social hosts was based both on fairness and policy considerations.
2. Enright v. Eli Lilly & Co. 's grandmother took a prescription pill called DES
intended to prevent miscarriage during pregnancy. 's grandmother gave birth to
Patricia Enright, who alleges she developed abnormalities of her reproductive
system due to exposure to DES. These abnormalities allegedly resulted in the
premature birth of , who suffers from cerebral palsy and other disabilities
attributed to her premature birth. 's claims were dismissed by the trial court.
The appellate court affirmed the dismissal of the negligence, breach of warranty,
and fraud causes of action, but reinstated the strict liability count. Causes of
action are not recognized for children who have injuries which were caused by a
preconception tort committed against the mother. Due to the widespread tragic
effects of DES, the legislature has removed legal barriers to tort recovery.
Instead of the usual tolling of the statute of limitations for exposure to toxic
substances when the exposure occurs, the legislature changed the law to allow
the limitations period to begin to run upon discovery of the injury. Additionally,
the legislature has allowed for liability to be imposed upon DES manufacturers
in proportion to their share of the national DES market when s find it
impossible to identify the manufacturer of the drug that caused her injuries. In
the present case, the Court is asked to recognize a cause of action not available
in other contexts simply because this is a DES case. Previous cases have
determined that causes of action do not lie in favor of children for injuries
suffered as a result of a preconception tort committed against the mother [Albala
v. New York, 54 N.Y.2d 269, 429 N.E.2d 786]. This Court does not believe that
the public interest in providing a remedy for those injured by DES is stronger
46

than the public interest in providing remedies for those injured by other means.
also argues that previous decisions involved negligence cases and that a
different result might be obtained under a strict products liability theory. This
Court finds that public policy considerations counsel against allowing such
causes of action. First, these causes of action could not be confined without
drawing artificial boundaries, as the effects of DES exposure may extend for
generations. More importantly, such extensive liability might hinder the creation
and availability of important prescription drugs. Part of the reasoning for not
allowing tort actions through multiple generations is the issue of foreseeability.
While a reasonable person could foresee that injuries would occur to those
directly exposed to DES, it is more difficult to foresee that injuries would occur
to multiple later generations.
XXVII. Defenses to Negligence
A. Contributory Negligence complete bar to recovery
1. Standard of care required is the same as that for ordinary negligence
a. Butterfield v. Forrester The , Butterfield (), was injured when he rode
his horse into an obstruction placed into the road by the , Forrester (). A
witness said that if had not been riding hard, he would have been able to
see and avoid the obstruction. The 's failure to exercise reasonable and
ordinary care in this case is a complete bar to recovery from the ,
initializing the concept of contributory negligence.
2. Rescuers not contributorily negligent unless reckless under the circumstances
3. It may be contributorily negligent not to remove oneself from danger, e.g.
remaining in the car with a drunk driver
4. Violation of statute by
5. When s negligence arise from violation of a statute designed to protect this
class of from this class of harm, generally cannot be held contributory
negligent
6. Not a defense to intentional torts
7. Last Clear Chance doctrine allows to recover despite contributory negligence
(s rebuttal against contributory negligence defense) the person with the last
clear chance to avoid an accident but fails to do so is liable
a. Davies v. Mann The , Davies (), had his ass illegally tethered along a
public highway. The , Mann (), came along the path at a quick pace and
ran down the ass, killing it. The judge instructed the jury that if the
proximate cause of the injury was due to the lack of proper conduct of the
, an action is maintainable. If the had an opportunity to avoid the
accident after the no longer had such an opportunity, and the
improperly did not avoid the accident, he is liable. This initiated the last
clear chance doctrine.
8. Where employee is cont. neg. it is imputed to the employer when suing a third
person
9. Cont. neg. not imputed from one spouse to the other when suing a third person
10. Not imputed from parent/guardian to child or child to parent/guardian
11. Cont. neg. not imputed from driver to auto owner
12. Alabama, Maryland, North Carolina, and Virginia, plus the District of Columbia
remain contributory negligence districts
B. Comparative Negligence liability allocated between and to allow for partial
recovery
47

1. McIntyre v. Balentine The , Harry McIntyre () and the , Clifford Balentine

(), were involved in a car accident, with both parties being partially
responsible. The jury found for the based on the contributory negligence
doctrine. appealed and requested that the court adopt comparative negligence.
Tennessee adopts modified comparative negligence, allowing s to recover so
long as their negligence does not exceed the negligence of the . The common
law doctrine of contributory negligence has been traced to Butterfield v.
Forrester. The contributory negligence bar to recovery may have developed as
on outgrowth of issue pleading, where questions posed had to be answered yes
or no, leaving common law courts to award all or nothing. Tennessee has
followed the general rule of barring recovery for contributory negligence,
allowing for exceptions for intentional conduct, gross negligence, actions falling
under the last clear chance doctrine, or when 's negligence is remote. Based on
the general acceptance of comparative fault throughout the nation, the Court
abandoned the unjust doctrine of contributory negligence and adopts a system of
comparative fault. Two basic forms of comparative fault are used throughout
the nation, pure and modified comparative fault. Under the pure form,
damages are reduced in proportion to the amount of negligence attributed to the
. The modified form is the same as pure, except s recover only if 's
negligence either does not exceed does not exceed 50%, or is less than 49% of
's negligence. This Court adopts the modified form of comparative fault in an
effort not to fully abandon the state's fault-based tort system. Therefore, so long
as 's negligence remains less than 's the may recover. To provide guidance
to the trial courts, the court also held that the doctrines of remote and
contributory negligence are obsolete, as well as the doctrine of joint and several
liability. Also, in the case of multiple tortfeasors, s may recover as long as 's
fault is less than the combined fault of tortfeasors. Only four states continue to
apply the common law doctrine that contributory negligence as a complete bar
to recovery.
2. Pure Comparative even if was 80% at fault, he can still recover 20% of the
damages from
3. Modified Comparative
a. Modified #1 = s negligence is not greater than s (not greater than 50%
b. Modified #2 = s negligence is less than s (not greater than 49%)
4. Last clear chance doctrine no used in most comparative negligence jurisdictions
5. Most comparative jurisdictions have abolished implied assumption of risk but
retain express assumption of risk.
C. Assumption of risk may be denied recovery if he assumed the risk of any damage
caused by the s acted must have known the risk and voluntarily assumed it it is
irrelevant that the s choice is unreasonable
1. Implied knowledge may be implied where the risk is one that the average
person would clearly appreciate, e.g. being hit with a foul ball at a ballgame
a. Rush v. Commercial Realty Co. was a tenant of the . The rented
premises had a detached privy for the use of two houses. went to the
privy and fell through the floor or through a trap door therein. fell nine
feet into the accumulation at the bottom and had to be removed with the
use of a ladder. appeals the trial court verdict, claiming that it erred in
refusing a nonsuit and erred in refusing to direct a verdict for the .
Implied assumption of the risk is applicable only when a voluntarily
48

encounters a known risk. Assumption of the risk requires actual

knowledge of a particular risk, appreciation of its magnitude and
voluntarily encountering the risk.
b. Some risks cannot be assumed
i. Common carriers and public utilities cannot limit liability for
personal injury by a disclaimer on a ticket, posted sign, etc.
ii. When a statute is enacted to protect a class, members of that class
will not be deemed to have assumed any risk
iii. Risk cannot be assumed under fraud, force or emergency
2. Express assumption of risk exculpatory clauses in contracts
a. Seigneur v, National Fitness Institute, Inc. A member of a health club
was injured during a consultation with a trainer. The health club contract
included an exculpatory clause. "In Maryland, unambiguous exculpatory
clauses are generally held to be valid in the absence of legislation to the
contrary."
b. Three exceptions to the general rule that exculpatory clauses are
enforceable.
i. When the party protected by the clause intentionally causes harm
or engages in acts of reckless, wanton, or gross negligence
ii. When the bargaining power of one party to the contract is so
grossly unequal so as to put that party at the mercy of the other's
negligence
iii. When the transaction involves the public interest."
c. No defense to intentional torts
3. Blackburn v. Dorta Three cases where consolidated by the Supreme Court of
Florida to determine if the doctrine of implied assumption of the risk was viable
as an absolute bar to recovery subsequent to adoption of comparative
negligence. The concept of comparative negligence eliminates the need for the
affirmative defense of implied assumption of the risk.
a. Several categories of assumption of the risk have developed, including (i)
distinctions between express and implied; (ii) between primary and
secondary and (iii) between strict and implied. This Court's determination
deals with implied assumption of the risk.
b. Primary assumption of the risk occurs when the is not negligent, either
because he owed no duty to the or because he did not breach a duty
owed. The concept grew out of the master-servant relationship. This
terminology is subsumed in the principle of negligence itself. Thus there is
no useful purpose in retaining it.
c. Secondary assumption of the risk is an affirmative defense to an
established breach of duty owed by the to the . This defense can be
further divided into strict and qualified assumption of the risk. Strict
secondary assumption of the risk involves conduct, which is reasonable,
but nonetheless bars recovery. The court found nothing in either case law
or justice to validate this rule under the modern comparative negligence
scheme.
d. Qualified secondary assumption of the risk is conduct that is unreasonable
and bars recovery. Such conduct can just as easily be characterized as
contributory negligence. This Court holds that the principles of
49

comparative negligence will be applied in any case where the defense of

implied assumption of the risk is asserted.
e. Express assumption of the risk is a contractual obligation such as a release
signed by a . This Court expressed no opinions on the subject.
D. Statute of Limitations
1. Teeters v. Currey On June 6, 1970 the underwent surgery at the advice of her
doctor to prevent future pregnancy. On March 9, 1973, delivered a premature
child, with severe complications. initiated a malpractice suit, alleging that the
's previous surgery was negligently performed. This suit was initiated over
three years after the operation, but approximately eleven months after
discovering the pregnancy. The pleaded the statute of limitations in his
answer. Under Tennessee law, the statute of limitations in medical malpractice
actions begins to run when the discovers, or reasonably should have
discovered the negligent injury.
a. The purpose of statutes of limitations is to promote stability and to avoid
the burdens of defending stale claims. In recognition of these goals, the
courts have traditionally held that an action begins to accrue immediately
upon the infliction or occurrence of injury, regardless of a failure by the
to discover his cause of action.
b. In response to the results of this harsh rule, a majority of American states
have adopted the discovery doctrine. Under this doctrine, the statute does
not begin to run until the negligent injury is, or should have been
discovered. The court adopts the discovery rule for cases involving the
negligent performance of surgical procedures, so that the statute of
limitations commences to run when the patient discovers, or in the
exercise of reasonable care and diligence for his own health and welfare,
should have discovered the resulting injury.
E. Immunities
1. Families
a. Freehe v. Freehe The , Clifford Freehe (), was injured on a negligently
maintained tractor owned by the , Hazel Knoblauch (), his wife. had
no interest in the tractor or the farming operation. brought suit,
claimed interspousal immunity. The Supreme Court of Washington
abandoned the interspousal immunity rule, allowing spouses to bring suit
against one another in tort.
i. Interspousal immunity is a common law rule. It is based on the
unity of husband and wife, whereby a wife essentially became the
chattel of her husband upon marriage. This does not comport with
modern reality and therefore is not a valid premise to continue to
allow interspousal tort immunity.
ii. A second reason for interspousal immunity is the theory that tort
suits would destroy the peace and tranquility of the home.
However, this court believes that if a state of peace and tranquility
exists, either no action will be commenced or the spouses will
allow the action to continue only as long as their personal harmony
is not in jeopardy.
iii. A third reason is that the injured spouse can resort to criminal and
divorce laws. However, these alternatives fail to compensate for
the damage done. It has also been argued that allowing such
50

litigation would flood the courts with matrimonial disputes. This

has not proved to be true in other States disallowing interspousal
immunity. also argues that disallowing interspousal immunity
would encourage collusion and fraud due to liability insurance.
However, the courts will not immunize tortfeasors from liability in
a whole class of cases due to the possibility of fraud.
iv. Finally, argues that any change in interspousal immunity is a
matter for the legislature. Since the rule was not made or
sanctioned by the legislature, this Court feels free to intervene in
the matter. Therefore, the rule of interspousal immunity is
abandoned.
v. Interspousal immunity has been abandoned in a majority of states
today.
b. Renko v. McLean The suffered serious injuries when her biological
mother, the drove the car both women were in into the back of another
car. was seventeen at the time. filed suit for negligent operation of a
motor vehicle after her eighteenth birthday. Her mother filed a motion to
dismiss based on parent-child immunity and the trial court entered
judgment in favor of . The parent-child immunity doctrine disallows
suits between children and parents for torts occurring during the child's
minority.
i. Although the parent-child immunity doctrine has not been
abolished to the same extent as the interspousal immunity doctrine,
many courts allow for exceptions when the policies supporting it
are inapplicable.
2. Charities
a. Abernathy v. Sisters of St. Mary's - The , Abernathy (), allegedly
sustained injuries when the , Sisters of St Mary's (), employee
negligently failed to assist him as he moved from his bed to the bathroom.
brought suit and the trial court granted 's motion for summary
judgment based on the doctrine of immunity for charitable organizations.
The reasons for the common law rule of immunity for nongovernmental
charitable organizations are no longer applicable, therefore the Supreme
Court of Missouri abolished the rule. The doctrine of immunity for
charitable organizations arose from the belief that it was better for the
individual to suffer than for society to be deprived of the benefits of the
charity. But today charities are big business, with most carrying insurance
to pay for torts. To continue to allow immunity is not only unjust to the
injured, but tends to breed neglect and irresponsibility.
3. Employer worker compensation statutes allow employees to recover for work
related injuries without having to prove fault. As an alternative to the tort
system, the statutes confer immunity from tort liability on employers and
employees cannot file suit on their employers even if they were negligent
4. State and Local Government
a. Ayala v. Philadelphia Board of Public Education The Appellants,
William Ayala and William Ayala Jr. (William Jr.) (Appellants), brought
suit to recover damages after William Jr.'s arm was injured in a shredding
machine during class. The Appellee, Philadelphia Board of Education
(Appellee), asserted governmental immunity, and the Superior Court
51

affirmed the defense. The defense of governmental immunity is no longer

applicable in Pennsylvania. The doctrine of governmental immunity has
its historical roots in English law. The theory of respondeat superior
created problems with government employees, as the courts routinely
denied relief because the King, as employer, could commit no torts. This
rule is unjust as applied to modern American law, applying the burden of
damages on the single individual who suffers the injury, rather than
distributing the damages among the entire community constituting the
government. In jurisdictions where governmental immunity is still
applicable, a number of courts have held that the state's authorization of a
municipal corporation to purchase liability insurance serves as an implied
waiver of immunity.
b. Riss v. New York The , Linda Riss (), was continuously harassed by a
jilted lover, who eventually paid someone to throw lye in 's face,
seriously injuring her. asked for protection from the police on multiple
occasions, but received little or no help. Police authorities are not liable
for failing to provide special protection to individuals threatened with
harm. Unlike the present case, if police authorities undertake
responsibilities to specific individuals and expose them to risks without
adequate protection, tort actions are allowed.
c. Delong v. Erie County Emilia DeLong (Ms. DeLong) called 911 and in
response to her report of an intruder was assured that help was on the way.
Police were directed to an incorrect address and Ms. DeLong was stabbed
to death. After Ms. Delong's death, the Respondents, Dennis S. DeLong,
Individually and as Administrator of the Estate of DeLong (Respondents),
brought suit. When a municipality voluntarily assumes a duty and
negligently performs the duty, the municipality may be held liable if its
conduct somehow increased the risk to . In contrast to the facts in Riss v.
City of New York, in the present case Respondent voluntarily assumed a
duty and its failure to act with reasonable care increased the risk to Ms.
Delong.
5. The United States
a. Deuser v. Vecera National Park Rangers were working a fair held on the
grounds of the Jefferson National Expansion Memorial in St. Louis.
Rangers Mr. Vecera and Edward Bridges observed Mr. Deuser grabbing
women on the buttocks. The rangers warned Mr. Deuser and then arrested
him when he urinated in public. The rangers attempted to turn Mr. Deuser
over to the St. Louis police, but they were unable to process Mr. Deuser's
arrest due to their workload. The rangers decided to release Mr. Deuser
away from the fair in a parking lot. Mr. Deuser was left without money or
transportation. At some time he was killed by a motorist after wandering
onto an interstate highway. At the time of Ms. Deuser's death, his blood
alcohol content was 0.214. The Appellants brought this wrongful death
action against the Appellees under the FTCA based on the allegedly
negligent acts of the park rangers. The trial court judge dismissed the case.
Did the action of the park rangers fall under the discretionary function
exception to the FTCA, so as to disallow a civil suit against the United
States? Yes. Judgment affirmed. In enacting the FTCA, Congress chose to
waive the sovereign immunity enjoyed by the United States and give
52

consent to be sued for damages caused by the negligent or wrongful act or

omission of any employee of the United States acting within the scope of
their employment. However, under the discretionary function exception,
the government is shielded from civil liability for claims based on the
exercise of a discretionary function whether or not the discretion involved
is abused. Under the SOP, the process for arrests is precise and
mandatory. When the rangers first arrested Mr. Deuser, the SOP was
followed. After that it was not followed, but releasing Mr. Deuser
terminated the arrest. The court concluded that terminating an arrest is
similar to the decision involved in making an arrest. Due to the infinite
number of possible scenarios, decisions of this kind must be within the
discretion and judgment of officers. Claims in tort against the Federal
Government are a major source of litigation today.
XXVIII. Damages
A. Damage is an essential element of negligence actual harm or injury; unlike intentional
torts, damage in negligence is not presumed; some proof of harm must be offered,
therefore, nominal damages are not available
B. Damages recoverable in the action
1. Personal injury is to be compensated for all his damages, past, present and
prospective, both special and general medical expenses, lost earnings, pain
and suffering including emotional distress, compensation for impaired future
earning capacity, loss of function or appearance, loss of enjoyment of life
a. Foreseeability is irrelevant not necessary to foresee the extent of the
harm a tortfeasor takes the victim as he finds them.
b. Anderson v. Sears, Roebuck & Co , a young child, was severely burned
during a house fire caused by the s' negligent manufacture of a heater.
The jury awarded $2,000,000 in compensatory damages and the s
moved for remittitur. Under the maximum recovery rule, a court will
overrule a jury's determination of damages only if the damages exceed the
maximum amount the jury could reasonably find based upon all of the
evidence. A motion for remittitur is a request for the court to lower the
damages levied against a . If granted, the may generally either accept
the remittitur or request a new trial.
c. Richardson v. Chapman The s were the driver of a car, Keva
Richardson (Richardson) and the passenger, Ann McGregor (McGregor)
(s). The car was stuck by a semi-trailer driven by the , Chapman, an
employee of Tandem/Carrier (s). A directed verdict was entered on
behalf of s in regard to liability. s appeal the jury's assessment of
damages. Courts may order a remittitur of damages when a jury's
assessment of damages is excessive based on the evidence. The majority
is hesitant to substitute its' opinion for that of the trier of fact in
determining damages. Because the determination of damages is a question
for the trier of fact, the court will only issue a remittitur if the damages
shock the judicial conscious.
2. Property damage reasonable cost of repair or fair market value at the time of
the accident
3. Punitive damages in most jurisdictions if s conduct was wanton and willful,
reckless, or malicious
53

a. Cheatham v. Pohle The Appellant, Doris Cheatham (the "Appellant"),

and the Appellee, Michael Pohle (the "Appellee"), were divorced in 1994.
After the divorce, the Appellee retained certain nude pictures of the
Appellant and other pictures of the two parties engaged in a consensual
sexual act. The Appellee distributed certain of the nude photographs to 60
persons in the small community in which they both lived and worked. The
Appellee added certain personal information about the Appellant on the
pictures. The Appellant brought suit alleging invasion of privacy and
intentional infliction of emotional distress. A jury awarded the Appellant
$100,000 in compensatory damages and $100,000 in punitive damages.
Indiana's statute authorizing an award of punitive damages was Indiana
Code section 34-51-3-6. One provision of the statute required 75% of any
punitive damage award be paid to the Indiana state treasury, to be
deposited in a fund for violent crime victims. The Appellant argued that
the portion of section 34-51-3-6 requiring 75% of punitive damages be
paid to the treasurer, violated the Takings Clause in the United States
Constitution ("Constitution") and the Indiana State Constitution. The
portion of the punitive damage statute, requiring 75% of a punitive
damage award be placed in a fund, does not work a taking. This case
makes it clear that punitive damages are not the property of whom they are
awarded, unless the state legislature makes such a determination.
b. State Farm Mutual Automobile Insurance Co. v. Campbell While driving
with his wife, Curtis Campbell ("Mr. Campbell") (collectively referred to
as the "Campbells") attempted to pass six vans on a two-lane highway. By
doing so, however, Mr. Campbell was driving on the wrong side of the
highway. An accident ensued, and one individual was killed and another
permanently disabled. Mr. Campbell and his wife were unscathed. It was
determined that Mr. Campbell's unsafe pass caused the accident.
Nonetheless, the Petitioner, Mr. Campbell's insurer, State Farm Mutual
Automobile Insurance Co. (the "Petitioner"), contested liability and
declined offers to settle with the estate of the deceased and with the
permanently injured individual. The Campbells' policy limit was $50,000.
The Petitioner assured the Campbells that "their assets were safe, that they
had no liability for the accident, that [State Farm] would represent their
interests, and that they did not need to procure separate counsel." The
case eventually went to trial, and a jury found that Mr. Campbell was
100% at fault and a judgment of $185,849 was entered against him.
Initially, the Petitioner refused to pay the excess $135,849 above the
policy limits. Additionally, State Farm would not post a bond to allow Mr.
Campbell to appeal the verdict. The Campbells retained their own counsel
for the appeal. The estate of the deceased and the individual that was
incapacitated, agreed not to satisfy their claims against Mr. Campbell, it he
were to bring a "bad faith action against State Farm and to be represented
by Slusher's and Ospital's attorneys." Slusher and Ospital were the
representatives of the deceased and the incapacitated victims of the
accident. In 1989, the Utah Supreme Court denied Mr. Campbell and his
wife's appeal, and State Farm satisfied the entire judgment. Despite the
outcome of the appeal, Mr. Campbell and his wife filed suit against the
Petitioner, alleging "bad faith, fraud, and intentional infliction of
54

emotional distress." The jury awarded the Campbell's $2.6 million in

compensatory damages and $145 million in punitive damages. The trial
court reduced the compensatory award to $1 million and the punitive
award to $25 million. The Utah Supreme court reinstated the punitive
award. the $145 million dollar punitive damage award was excessive. The
court first recognized there are procedural and substantive constitutional
limitations on compensatory and punitive damages awards. Specifically
"[t]he Due Process Clause of the Fourteenth Amendment prohibits the
imposition of grossly excessive or arbitrary punishments on a tortfeasor."
Based on [BMW v. Gore], courts are instructed to examine three
"guideposts" when construing the validity of a punitive damage award:
"(1) the degree of reprehensibility of the 's misconduct; (2) the disparity
between the actual or potential harm suffered by the and the punitive
damages award; and (3) the difference between the punitive damages
awarded by the jury and the civil penalties authorized or imposed in
comparable cases." The court discussed each in turn. The court first
discussed the "reprehensibility of the 's misconduct," which it says is the
most important of the guideposts. Reprehensibility is judged "by
considering whether: the harm caused was physical as opposed to
economic; the tortious conduct evinced an indifference to or a reckless
disregard of the health or safety of others; the target of the conduct had
financial vulnerability; the conduct involved repeated actions or was an
isolated incident; and the harm was the result of intentional malice,
trickery, or deceit, or mere accident." The court then criticized the Utah
Supreme Court's condemning of the Petitioner "for its nationwide policies
rather than for the conduct directed toward the Campbells." Further, the
majority recognized the Utah Supreme court "awarded punitive damages
to punish and deter conduct that bore no relation to the Campbells' harm."
The court also found that the punitive damage award could not be upheld
under the guise that State Farm was a recidivist. The court then construed
the second guidepost and refused to "impose a bright-line ratio, which a
punitive damages award cannot exceed." However, the majority
recognized "[o]ur jurisprudence and the principles it has now established
demonstrate, however, that, in practice, few awards exceeding a singledigit ratio between punitive and compensatory damages, to a significant
degree, will satisfy due process." Moreover, "[i]n the context of this case,
we have no doubt that there is a presumption against an award that has a
145- to-1 ratio." The court recognized that the $1 million compensatory
award was complete compensation, especially since the damages in the
case before it were entirely economic and not physical. The third and final
guidepost concerned the "the disparity between the punitive damages
award and the 'civil penalties authorized or imposed in comparable cases.
The court observed, "The most relevant civil sanction under Utah state law
for the wrong done to the Campbells appears to be a $10,000 fine for an
act of fraud, an amount dwarfed by the $145 million punitive damages
award." The court refused to look at criminal penalties in making their
assessment.
4. Nonrecoverable in negligence actions
a. Attorneys fees
55

b. Interest from date of damage in personal injury actions

C. Duty to mitigate damages must take reasonable steps to preserve and safeguard
property or seek appropriate treatment to effect cure or healing and prevent aggravation.
Failure to mitigate precludes recovery of any additional damages caused by aggravation
1. Zimmerman v. Ausland was injured during an automobile accident caused by
the negligence of . obtained a jury verdict for $7,500, including damages for
permanent injury based on torn semilunar cartilage in her knee. The jury found
that she would no longer be able to engage in the strenuous physical education
activities she had previously engaged in during her work as a substitute teacher.
In order to recover for permanent injuries, a has a duty to mitigate those
damages by submitting to treatment that would cure the damages if a reasonable
person would do so under the same circumstances. The duty to mitigate is not a
true duty, but actually a rule that does not allow recovery of damages the
could have avoided. The Court concludes that the evidence supporting 's
contention that was required to submit to surgery were not so clear and
convincing to make it proper for this Court to decide those questions as a matter
of law.
D. Collateral source rule damages are not reduced by reason of benefits received by from
other sources such as health insurance or sick pay
1. Montgomery Ward & Co., Inc. v. Anderson The Appellee was injured while
shopping at the Appellant's store. Appellee was sent by Appellant to the UAMS
hospital to be treated. Appellee had reached an agreement with UAMS that
UAMS would discount her bill by fifty percent. Appellant moved in limine to
prohibit appellee from presenting the total amount billed by UAMS as proof of
her medical expenses, asking that her evidence be limited to the actual amount
that she was responsible to pay. Appellee claimed that the collateral source rule
would prohibit Appellant from introducing evidence of the discount. The trial
court denied the motion in limine. The collateral source rule prevents the
introduction of evidence of payments received by an injured party from sources
collateral to the wrongdoer. The Court pointed out four situations in which the
collateral source rule is inapplicable: (1) to rebut 's testimony that he was
compelled by financial necessity to return to work prematurely or forego
additional medical care; (2) to show that the had attributed his condition to
some other cause, such as sickness; (3) to impeach 's testimony that he had
paid his medical expenses himself; (4) to show that the actually continued to
work instead of being out of work.
XXIX. Joint Tortfeasors (3 Possibilities: Look up)
A. Joint and Several Liability when two or more tortious acts combine to proximately
cause an indivisible injury, each tortfeasor is jointly and severally liable each is liable to
the for the entire damage, but if the actions are separate, s injuries are divisible, and it
is possible to identify the portion of injuries caused by each , then each is only liable for
the identifiable portion.
1. Tortfeasors acting in concert When two or more tortfeasors act by agreement
and injure a , then each are jointly and severally liable even if the injury is
divisible and one could identify what damage the tortfeasor has done alone
a. Bierczynski v. Rogers Bierczynski and Race were involved in an
automobile race. Race crashed his car into a vehicle driven by Cecil and
Susan Rogers. Susan Rogers sued both Bierczynski and Race under a
negligence theory. The jury found both liable. Bierczynski appealed based
56

b.

c.

d.

e.

on the fact that he was not involved in the accident. When two or more
individuals are wrongdoers acting in concert and their actions injure a
third party, all may be liable for concurrent negligence, regardless of
which of the individuals directly caused the injury. Because both s are at
fault and they have concert of action, Bierczynski is negligent even though
his car did not come into contact with the s.
Coney v. J.L.G. Industries, Inc. A wrongful death action was brought by
the , Coney on behalf of Clifford Jasper (). Jasper died operating a
hydraulic aerial work platform manufactured by the . The action was
based on strict products liability. argued that Jasper had committed
contributory negligence and that his employer had also contributed to 's
injuries through negligence. Joint and several liability is still applicable
when contributory negligence is replaced by comparative negligence.
Most jurisdictions have retained joint and several liability with the
adoption of comparative negligence. There are several reasons for this
approach. The ability to apportion fault on a comparable basis does not
cause an indivisible injury to become divisible. When a is not guilty of
any negligence, he would be forced to bear a portion of the loss if one of
the tortfeasors is unable to pay his share of damages. When a is partially
negligent, his negligence relates only to a lack of due care for his own
safety in comparison to the 's lack of due care for the safety of others.
Only the 's action is tortuous. Finally, elimination of joint and several
liability would have a deleterious effect on the ability of a to obtain
adequate compensation. Based on these observations, the Court concludes
that comparative fault does not eliminate joint and several liability.
Bartlett v. New Mexico Welding Supply, Inc. The , Jean Bartlett (),
sued the , new Mexico Welding Supply, Inc. (), for damages that
occurred during a car accident. The jury found that was 30% responsible
for the damages, with another unknown driver being 70% responsible.
moved that the full judgment should be entered against . applied for an
interlocutory appeal. Under New Mexico comparative negligence law,
joint and several liability is not applicable to force one concurrent
tortfeasor to pay the entire amount of damages. This case represents a
different approach to determining damages in a comparative negligence
case involving multiple tortfeasors. In jurisdictions that retain joint and
several liability, s that pay more than their fair portion may recover from
other joint tortfeasors on either a pro-rata or comparative-fault basis.
Michie v. Great Lakes Steel Division, Nat'l Steel Corp. The Appellees,
thirty-seven people (Appellees), filed a complaint against the Appellants,
three corporations (Appellants), claiming that pollutants emitted by
Appellants represent a nuisance. Each Appellee individually claims
damages ranging from $11,000 to $35,000 from all three corporations
jointly and severally. However, there is no assertion of joint action or
conspiracy against the Appellants. Appellants appealed a denied motion to
dismiss based on the claim that each Appellee individually failed to meet
the $10,000 amount in controversy requirement set forth in 28 U.S.C.A
1332 (1970). Under Michigan law, multiple s may be found jointly and
severally liable when injuries cannot effectively be apportioned between
s.
57

B. Satisfaction and Release

1. Satisfaction if a recovers full payment from one either by settlement or
payment of a judgment, there is satisfaction and she may not recover any further
against any other tortfeasor. Until there is satisfaction, she may proceed against
other jointly liable parties.
a. Bundt v. Embro The s, five passengers injured in a two car accident
(s), brought a negligence action against s for an automobile accident.
The s were the drivers of the two cars and a contractor repairing the
highway obstructing a stop sign (s). s moved to amend their answers to
add the defense of discharge and satisfaction because s recovered a
judgment against the state for the same injuries. The defense of discharge
and satisfaction provides that multiple judgments cannot be satisfied
against multiple s for the same tort. Joint and several liability allows for
one who has been injured by the joint wrong of several parties to recover
against any or all of the parties. However, while there may be several suits
and recoveries, there can only be one satisfaction. This is based on the fact
that the consequences of the wrongful act are indivisible, limiting injured
individuals to a single satisfaction. The defense of discharge and
satisfaction prevents double recovery from a single injury. While states are
immune as sovereign at common law, states are free to waive this
immunity and grant courts jurisdiction to determine claims against it.
2. A release is a surrender of s cause of action. At common law, release of one
releases them all. Most jurisdictions rejects that and, rather, reduce the claim
against the others by the amount stipulated in the agreement or the consideration
paid, whichever is greater
a. Cox v. Pearl Investment Co. The s, Mr. and Mrs. Fox (s) sued the ,
Pearl Investment Company, () for injuries sustained when Mrs. Cox fell
on property owned by . At trial, it was shown that the tenant of the
property had paid the s in exchange for a covenant not to sue. The trial
court found in favor of the on a summary judgment motion based on the
covenant not to sue. The court will look to the intent of the parties to the
contract when determining if a covenant not to sue releases all tortfeasors
who may have liability. Under traditional contract law, the manifest intent
of the parties to a contract should be given effect. A covenant that releases
one party from suit, but expressly reserves the right to sue others should
not be treated otherwise. The danger of double compensation should not
be an excuse for barring claims against joint tortfeasors. Under a covenant
not to sue the right to sue is retained, but there is an agreement not to
enforce it. If the sues, the has a counterclaim for breach of covenant.
b. Elbaor v. Smith The suffered serious injuries as a result of an
automobile accident and required significant medical attention. She was
treated at various times by Dr. Syrquin, Dr. Elbaor, Dr. Stephens and Dr.
Gatmaitan. filed medical malpractice claims against the s, all four
above doctors, D/FW Medical Center, and Arlington Community Hospital
(ACH), (s) due to a fused ankle that resulted from treatment. Prior to
trial, settled and dismissed her claim against D/FW Medical Center and
non-suited her claim against Dr. Gatmaitan. She also entered into "Mary
Carter" settlement agreements with Dr. Syrquin, Dr. Stephens and ACH.
The agreements provided that they would pay a total of $425,010,
58

remain as s, participate in the trial, and be paid back all or a portion of

the settlement money out of the recovery against Dr. Elbaor. Dr. Elbaor
requested the agreements be voided, or the settling s be dismissed from
trial. The trial court denied the requests and proceeded with trial. The jury
awarded damages in the amount of $2,253,237, allocating responsibility
between Dr. Elbaor (88%) and Dr. Syrquin (12%). The trial court entered
judgment against Dr. Elbaor for $1,872,848. The Court of Appeals
affirmed. The Texas Supreme Court has voided the validity of Mary Carter
agreements based on public policy considerations. Mary Carter
agreements are agreements where a enters into a settlement agreement
with one and goes to trial against the remaining s. The settling
remains a party and guarantees the a minimum payment, which may
later be offset by an excess judgment recovered at trial. These agreements
create an incentive for the settling to assist the in receiving a sizably
recovery. This Court believes that the negative effects of Mary Carter
agreements outweigh any potential benefits. They create a false sense of
adversity between and one co-, with the parties actually being allied.
They also pressure the settling to contribute discovery material,
peremptory challenges, trial tactics and supportive witness examination.
Remedial measures cannot overcome these effects. Because the public
policy favoring fair trials outweighs that of favoring partial settlements,
the Court declared Mary Carter agreements void as violative of sound
public policy. Dissent: The trial court went to great lengths to ensure that
the agreements were not hidden from the jury and did not unduly favor the
. As long as two parties to the trial remain antagonistic, the adversarial
process should still effectively result in discovery of the truth. The
dissent's opinion represents the majority view in the United States, with
most jurisdictions allowing for Mary Carter agreements.
C. Contribution and Indemnity
1. Contribution if one is required to pay more than his share of damages, he
has a claim against the other jointly liable parties for the excess
a. Knell v. Feltman This case involves a car accident. The s, Evelyn
Langland (Mrs. Langland) and her husband (s), were guest passengers in
a car driven by Kenneth Knell. The car they were riding in collided with a
taxicab owned by the , Ralph Feltman (Feltman) and operated by his
employee. Mrs. Langland was seriously injured in the accident. The s
sued the to recover damages. The filed a third-party complaint against
Knell, claiming the accident was caused by his sole or contributing
negligence. The jury found both the and Knell negligent. The court
awarded judgment in favor of s against the for $11,500, and upon
payment, judgment in favor of against Knell for $5,750. Knell appeals,
claiming that the right of contribution exists only between tortfeasors
liable in common to the and his liability to the s was not established by
the judgment because the s did not include him in the suit. As long as
concurrent tortfeasors are not intentional wrongdoers, contribution will be
enforced regardless of whether or not a joint judgment is entered against
them. A substantial majority of states now permit contribution among
joint tortfeasors, either by statute or judicial decision.
b. Methods of apportionment
59

i. Comparative contribution imposed in proportion to relative fault

if one is insolvent at fault parties make up their share pro rata
in pure comparative if a is insolvent is not able to recover that
portion
ii. A minority of jurisdictions apportion by equal share regardless of
respective degrees of fault
iii. Bruckman v. Pena The , Mr. Pena (), was injured in a car
collision, aggravating injuries caused in an earlier collision with
the , Mr. Bruckman (). The trial court instructed the jury that
would be liable for all damages if the jury was unable to apportion
the injuries between the two collisions. seeks a reversal based on
the instruction. The trial court instructed the jury that it is their
duty to apportion the injuries aggravated by the second collision
from those caused by the second collision. Additionally, the court
instructed that if apportionment was not possible, the s are liable
for the entire disability. While the first instruction is a correct
statement of law, the second is not. The burden of proof is on the
to establish that damages were proximately caused by the
negligence of the . The court's instruction would place the burden
on the defense to prove that damages could be apportioned. This is
an incorrect application of the law. The is still liable for
aggravation of injuries caused in the first collision, in addition to
those original injuries.
c. If the tortfeasor from whom contribution is sought has a defense that
would bar liability, such as intra-family tort immunity, he is not liable for
contribution
i. Yellow Cab Co. of D.C., Inc. v. Dreslin A taxicab owned by the
Appellant and an automobile driven by the Appellee collided.
Appellee's wife and others in his car were injured. They sued
Appellant for the resulting damages. Appellee joined in the suit,
claiming loss of consortium and medical expenses for Mrs. Dreslin
and damages to his automobile. Appellant claimed contributory
negligence against Appellee and cross-claimed against him for
damages to the taxicab and contribution for sums recovered by
other s. The jury determined that the collision was caused by
concurrent negligence, with judgments being entered in favor of all
s except Appellee. A declaratory judgment was also entered
allowing Appellant contribution against Appellee for several
judgments except for that of his wife. Yellow cab appealed this
decision. In order to receive contribution, joint liability must be
present. The common law rule that husband and wife cannot bring
tortious claims against one another is based on public policy
considerations of preserving "domestic peace and felicity."
d. Contribution is not allowed in favor of those who committed intentional
torts
2. Indemnity shifting the entire loss between or among tortfeasors
a. Slocum v. Donahue The s, the Slocums (s) filed a civil action against
the s, Robert F. Donahue and Dolores J. Donahue (s), for negligence
resulting in the vehicular death of their son. The Donahues filed a third60

party complaint against Ford Motor Company (Ford) claiming Ford was
negligent in the car design and requesting contribution or indemnification.
The trial court denied the third-party complaint on summary judgment.
Indemnification is only allowed when the is vicariously or derivatively
liable for the wrongful act of another. Contribution is not allowed under
this statute when a settlement agreement is reached in good faith. The
right to indemnity allows someone without fault who is compelled by law
to defend himself to recover from the wrongdoer the entire amount of loss.
The right to indemnity is allowed only when the indemnitee is vicariously
or derivatively liable for the wrongful act of another. Robert Donahue was
found negligent in this case and his liability is not vicarious. Therefore, he
is not entitled to indemnification by Ford.
b. Right to indemnity by contract
c. Vicarious liability
d. Strict products liability
e. Strict products liability supplier has a right of indemnification against
previous suppliers in the supply chain
3. Comparative contribution majority of jurisdictions have adopted a
comparative contribution system based on relative fault
4. Dillon v. Twin State Gas & Electric Co. This action is for negligently causing
the death of 's intestate, a 14 year old boy. The maintained electrical wires
over a public bridge. The decedent and friends often played on the bridge during
the day. On one such occasion, the decedent lost his balance while sitting on a
horizontal girder and instinctively grabbed a hanging wire. The wire was not
insulated against contact and electrocuted the decedent. The claims exception
for a denial of its motion for a directed verdict based on damages. A jury must
determine if damages are available when a decedent is killed by the negligence
of , but decedent would have died or been seriously injured regardless of the
negligence.
XXX. Survival and Wrongful Death
A. Survival of Tort Actions at common law a tort action abated at the death of the
tortfeasor or . Most states have changed this with survival statutes. Victims cause of
action survives to permit recovery for damages from time of injury to death
1. Intangible personal interest causes of action defamation, malicious
prosecution expire at s death
a. Murphy v. Martin Oil Co. The 's husband was injured in a fire on the
's premises. 's husband survived for nine days, then died from his
injuries. brought suit under both the Wrongful Death Statute and the
Survival Statute. The trial court dismissed the Survival Statute Claim. The
appellate court allowed the claim in part. Both parties appealed to the
State Supreme Court. Damages for loss of property, loss of wages and the
pain and suffering of a decedent are allowed under survival statutes when
the decedent later dies from injuries which created the cause of action.
Actions under the Illinois Wrongful Death Act are limited to recovery of
pecuniary losses from loss of support to the surviving spouse or next of
kin. Professor Prosser has noted that the majority of jurisdictions now
allow an action for personal injuries in addition to an action under
wrongful death statutes [Prosser, Handbook of the Law of Torts 4th ed. at
901 (1971)]. This Court believes that decisions that allow an action for
61

fatal injuries in addition to wrongful death are preferable to the Court's

previous holdings. Therefore, previous holdings are overruled and actions
Actions under the Illinois Wrongful Death Act are limited to recovery of
pecuniary losses from loss of support to the surviving spouse or next of
kin. Professor Prosser has noted that the majority of jurisdictions now
allow an action for personal injuries in addition to an action under
wrongful death statutes [Prosser, Handbook of the Law of Torts 4th ed. at
901 (1971)]. This Court believes that decisions that allow an action for
fatal injuries in addition to wrongful death are preferable to the Court's
previous holdings. Therefore, previous holdings are overruled and actions
B. Wrongful death every state has now enacted some form of wrongful death act
1. In some jurisdictions the personal representative brings the suit in others it is the
spouse or next of kin
2. Measure of recovery is for the pecuniary injury resulting to the next of kin or
spouse loss of support, loss of consortium, etc. no recovery for pain and
suffering of decedent (would be sought in survival suit brought on behalf of
decedent)
a. Selders v. Armentrout - Three children, aged 15, 13, and 9, were killed in
an automobile accident due to the negligent conduct of the s. The s
contended that the measure of damages is limited to pecuniary loss, while
s asserted that the loss of society, comfort, and companionship of the
children are compensable elements of damage, along with evidence of
amounts invested in nurture, education, and maintenance. The trial court
instructed the jury that the damages allowed included only the monetary
value of the contributions and services, which the parents could
reasonably have expected to receive from the children less the reasonable
cost to the parents of supporting the children. Under Nebraska law, the
loss of society, comfort and companionship are recoverable for a child's
death in a wrongful death suit. Pecuniary loss statutes that have the trier
of fact determine the monetary contribution that the decedent would have
made during his lifetime to are known as loss-to-survivors statutes.
However, a growing number of states have followed the principle case,
allowing recovery for loss of companionship or consortium.
b. Even though loss of support from children and the elderly are very small,
most states still allow recovery
c. Creditors of the decedent have no claim against the amount awarded
3. Defenses against deceased recovery only allowed if decedent could have
recovered if he had lived his contributory negligence would reduce wrongful
death recovery in comparative states
4. Defenses against beneficiary do not bar the action, but that beneficiary receives
nothing and his damages are not to be included by the jury in the award total
5. Moragne v. States Marine Lines, Inc. Edward Moragne, a longshoreman, was
killed while working on a vessel in navigable waters. The Petitioner, the
deceased's widow (Petitioner), brought a wrongful death suit in state court
against the Respondent, States Marine Lines, Inc., (Respondent), the owner of
the vessel. The Supreme Court took this case to determine if it's decision in The
Harrisburg, 119 U.S. 199 (1886), that maritime law does not afford a cause of
action for wrongful death, is still acceptable law. The Supreme Court overturns
it's previous holding in The Harrisburg and allows for a wrongful death action in
62

maritime law. The Supreme Court overturns it's previous holding in The
Harrisburg and allows for a wrongful death action in maritime law.
XXXI. Vicarious Liability
A. Respondeat Superior
1. Bussard v. Minimed, Inc. The , Minimed, Inc. (the ""), hired a pest control
company to rid its facility of fleas. The pest control company came one night.
The next morning, one of the 's employees, Irma Hernandez ("Ms.
Hernandez"), felt ill and left work early. Prior to leaving, Ms. Hernandez told
one of her supervisors she felt ok to drive. Nine other workers went home early
that day after complaining they felt ill. On the way home, Ms. Hernandez rear
ended the , Barbara Bussard (the ""). When the police arrived, Ms Hernandez
complained she felt dizzy and lightheaded before the accident. The brought
suit against Ms. Hernandez, alleging negligent driving, and against the ,
alleging vicarious liability pursuant to the respondeat superior doctrine. As to
the vicarious liability cause of action, the alleged that Ms. Hernandez was
acting within the scope of her employment when driving home with pesticide
exposure. The trial court granted the summary judgment according to the
"going-and-coming" rule. The 'going-and-coming rule' refers to how courts have
not construed the scope of the respondeat superior doctrine to reach an
employee's daily commute. "Under the doctrine of respondeat superior, an
employer is ordinarily liable for the injuries its employees cause others in the
course of their work. Respondeat superior imposes liability whether or not the
employer was itself negligent, and whether or not the employer had control of
the employee. The doctrine's animating principle is that a business should
absorb the costs its undertakings impose on others." The respondeat superior
doctrine "requires that the employee be acting within the course of her
employment, which case law defines expansively." Accordingly, "acts necessary
to the comfort, convenience, health, and welfare of the employee while at work,
though strictly personal and not acts of service, do not take the employee
outside the scope of employment." Additionally, "where the employee is
combining his own business with that of his employer, or attending to both at
substantially the same time, no nice inquiry will be made as to which business
he was actually engaged in at the time of injury, unless it clearly appears that
neither directly nor indirectly could he have been serving his employer." ' An
employer can be found liable for both its employees negligence and willful and
malicious torts.
2. O'Shea v. Welch The , John Welch (the ""), managed an Osco store. The
was driving to the Osco District office to deliver football tickets obtained from a
vendor, for distribution to Osco managers. While driving to the District office,
the made a decision to pull over to a service station, and while turning into the
service station, he hit the , O'Shea (the ""). The sued the for negligence
and Osco for vicarious liability. The District Court found that no jury could
conclude that the was acting within the scope of his employment. The factors
courts examine when "determining whether an employee has embarked on a
slight or substantial deviation" include "(1) the employee's intent; (2) the
nature, time, and place of the deviation; (3) the time consumed in the deviation;
(4) the work for which the employee was hired; (5) the incidental acts
reasonably expected by the employer; and (6) the freedom allowed the
63

employee in performing his job responsibilities." This case illustrates how

difficult it is to determine the scope of an individual's employment.
B. Independent Contractors
1. Murrell v. Goertz Goertz made a monthly collection for the delivery of
Appellee's newspaper at the Appellant's home. Appellant questioned Goertz
regarding damage done to his screen caused by the carrier throwing the
newspaper into it. An argument began and Appellant slapped Goertz, who then
struck the Appellant, injuring him. Appellant claimed that Goertz was a servant
of Appellee either by agreement between the co-s or by Appellee creating that
belief in Appellant. Both Appellee and Goertz denied that Goertz was Appellee's
servant. Those who employ independent contractors are not liable under the
doctrine of respondeat superior. Independent contractors do their work on their
own time, under no one's direction, but their own.
2. Maloney v. Rath The collided with the car of the . The accident was caused
by brake failure. Three months earlier the had her brakes overhauled by Peter
Evanchik (Mr. Evanchik), a mechanic. The trial court determined that Mr.
Evanchik's negligent repair effort was the cause of the accident and rendered
judgment if favor of . appealed. Generally when an activity carries the risk
of death or serious bodily injury on cannot avoid liability for negligent
maintenance by delegating the maintenance to an independent contractor.
Another common duty that is generally considered nondelegable is a hospital's
duty to provide emergency room care.
C. Joint Enterprise
1. Popejoy v. Steinle - Ms. Steinle, accompanied by her daughter and niece, were
traveling to Douglas, Wyoming to buy a calf for the daughter to raise on their
ranch. During the trip, the truck Ms. Steinle was driving collided with a vehicle
driven by Mr. Popejoy. Ms. Steinle was killed in the accident and Mr. Popejoy
suffered injuries diagnosed as a muscle strain. Approximately fifteen months
later, Mr. Popejoy underwent two neurosurgeries to fuse cervical vertebrae in
response to continued pain in his neck and back. Mr. Popejoy unsuccessfully
tried to reopen Ms. Steinle's estate, which had been probated and closed a year
earlier. s then filed a creditor's claim against the estate of Ms. Steinle's
husband, William Steinle (Mr. Steinle), whom had died in the interim. After this
claim was rejected, s filed a claim against the s, claiming that Mr. and Mrs.
Steinle were engaged in a joint venture when Ms. Steinle embarked on her
business trip to pick up the daughter's calf. An interest in profit is necessary in
order to impose vicarious liability on a party based on a joint venture theory.
The terms joint venture and joint enterprise may be used interchangeably in
situations such as the facts at hand. The burden of establishing the existence of a
joint venture is upon the party asserting that the relationship exists. The
Restatement of Torts [Restatement (Second) of Torts 491 comment c at 548
(1965)] establishes four elements of a joint venture as: "(1) an agreement,
express or implied, among the members of the group; (2) a common purpose to
be carried out by the group; (3) a community or pecuniary interest in that
purpose, among the members; and (4) an equal right to voice in the direction of
the enterprise, which gives a right of equal control." A joint enterprise or
venture allows for vicarious liability to imposed on parties to the venture based
upon theories of agency.
D. Bailments
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1. Shuck v. Means An automobile owned by Hertz, leased to Codling and driven

by Means, struck an automobile in which the Shuck was a passenger. Means
was uninsured and the parties stipulated that he had been negligent. Under the
Minnesota Safety Responsibility Act (the Act), when an owner gives permission
to another to drive his car, who in turn gives permission to a third party, the
owner will be liable for accidents caused by the third person. Under the Act
[Minn.St.1965, 170.54], an owner-consent statute was enacted establishing
liability in the owner of a vehicle for accidents caused by another driving the
vehicle with the owners' express or implied consent. The purpose of the Act was
to give injured persons more assurance of recovery and to encourage owners to
purchase appropriate liability insurance. The need for owner-consent statutes
has lessened because of "omnibus clauses" in standard automobile liability
insurance clauses, providing that the insurance applies to anyone using the
automobile with the permission of the owner.
E. Imputed Contributory Negligence
1. Smalich v. Westfall A car driven by the , Felix Rush Westfall (), was
involved in an accident. The owner of and a passenger in the vehicle driven by
was killed in the accident. The s, Marco Smalich, Executor of the Estate of
Julia Smalich (), the deceased and other family members brought suit. The trial
court determined that recovery could not be allowed because the contributory
negligence of the must be imputed to the owner. This Court determines that
contributory negligence will not be imputed to the owner-passenger of a car,
when the owner-passenger is the . Only a master-servant or joint enterprise
relationship should justify the imputation of contributory negligence on a car
passenger. In the ordinary situation, it is clear that the passenger has no control
over the physical acts of the driver. It seems more reasonable to assume that a
mutual understanding exists between an owner-passenger and driver that driver
will use ordinary care and skill in driving, while remaining subject to the
commands of the owner-passenger in regard to things such as destination.
XXXII. Strict Liability
A. Liability for Animals
1. Trespassing animals owner is strictly liable for damage done by trespass of his
animals (excluding household pets) as long as it was reasonably foreseeable
2. Personal injuries
a. Strict liability for injuries caused by wild animals as long as did nothing
voluntarily or consciously to bring about the injury
b. Not strictly liable for domesticated animals unless there is knowledge of
dangerous propensities some states have dog bite statutes that attach
strict liability
3. Landowner strictly liable to invitees and licensees except for the public duty
exception, e.g., public zookeeper has a public duty to keep the animals therefore
negligence must be shown
4. Trespassers must prove negligence
a. Intentional use of vicious guard dogs if he knows dog is likely to cause
serious bodily harm, landowner may be liable because he does not have
the right to use deadly force
B. Abnormally Dangerous Activities activities that involve a substantial risk of harm to
person or property no matter how much care is exercised
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1. Rylands v. Fletcher s were the owners of a mill. They constructed a reservoir

on the land of Lord Wilton nearby. was under lease from Lord Wilton to work
coal mines on land close to, but not adjoining the reservoir. The s employed a
competent engineer and contractors to plan and construct the reservoir. Old
mine workings laid beneath the reservoir, but s were under no personal fault in
its construction. Within a few days of final construction, one of the old mine
shafts gave way and burst downward, letting water into the 's mine. When a
non-natural use of land is made, the is absolutely responsible for damages
occurring to others due to the non-natural use.
2. Miller v. Civil Constructors, Inc. The , Gerald Miller (the ""), was shot
during firearm practice by a stray bullet. The alleged that the s, Civil
Constructors, Inc. (the "s"), "were strictly liable for injuries to arising from
purportedly 'ultrahazardous' activity for which s were legally responsible
either because of their control of the premises or their discharge of firearms."
The factors courts examine when analyzing whether an activity is
ultrahazardous include: the "(a) existence of a high degree of risk of some
harm to the person, land or chattels of others; (b) likelihood that the harm that
results from it will be great; (c) inability to eliminate the risk by the exercise of
reasonable care; (d) extent to which the activity is not a matter of common
usage; (e) inappropriateness of the activity to the place where it is carried on;
and (f) extent to which its value to the community is outweighed by its
dangerous attributes." If an activity is deemed ultrahazardous, strict liability is
imposed and the elements of negligence need not be proven
3. Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. The , American
Cyanamid Co. () manufactured a dangerous chemical, which was spilled
during transportation. The , Indiana Harbor Belt R.R. Co. () sued the ,
claiming that the transportation of the chemical was an abnormally dangerous
activity. The determination of whether an activity is abnormally dangerous
depends on the application of several factors, including if accidents cannot be
prevented by the exercise of ordinary due care.
C. Limitations on Strict Liability
1. Foster v. Preston Mill Co. The conducted blasting operations that frightened
a mother mink owned by the and caused the mink to kill her kittens. brought
an action against claiming that was absolutely liable. The trial court found
for on the theory that once received notice of the effect its blasting
operations were having on the mink, it was absolutely liable for all damages
thereafter sustained. When strict liability is applicable, it will be confined to the
consequences, which lie within the extraordinary risk created by the abnormally
dangerous activity. Although blasting is generally considered an abnormally
dangerous activity, courts generally will not apply strict liability to
hypersensitive reactions to these activities.
2. Golden v. Amory The s owned a hydroelectric plant. A hurricane caused the
river on which the plant was located to overflow and damage the real estate of
the several s. s brought suit claiming that negligence in the maintenance of
the Alden Street dike on the part of s resulted in the damage to 's real estate.
s are not responsible under strict liability theories when the damage caused
was an unanticipated act of God. Because s were unable to anticipate the
damages, it would be against policy to hold them liable even under strict
liability because nothing could have further prevented the damages.
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3. Sandy v. Bushey The , Sandy (), was injured when he was kicked by the ,
Bushey's (), horse. knew that the horse had vicious propensities.
Contributory negligence is not a bar to recovery for an action in strict liability.

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