Comprehensive Case List 9/11 Fund (pg. 549) o After 9/11, Congress capped the liability that airlines and other defendants might face if sued by survivors or the families of victims -- no more than $6 billion could be collected o A victim compensation fund was also collected where aggrieved parties could apply for relief if they agreed not to sue the airlines, the WTC or other potential defendants Payments were made to nearly 5,560 claimants totaling more than $7 billion Ninety-four lawsuits were filed by people who opted out and all but four settled The fund compensated for lost earnings and for "non-economic" losses They used existing federal programs for public safety officers who were injured or killed as a model for the program o This is not an ordinary litigation There can not normally be comparisons for similar litigations, but in this case the victims are from the same incident and horizontal inequities in their awards would be too visible In order to avoid this inequity the awards were somewhat standardized to ensure equity This approach also fosters administrative efficiency Adams v. Bollack (227 N.Y. 208) (1919) (pg. 145) o Facts A boy walking along a bridge is swinging an 8-foot wire and it tangles with an adjacent trolley line and he is burned The jury finds for the plaintiff o Appellate court reversed The trolley has a duty to adopt all reasonable precautions to minimize the resulting perils and the court says that there is no evidence to show that this was ignored Only extraordinary circumstances would allow this to happen (probability is very low) The precautions that were taken were reasonable (wires could not be insulated) but the burden of removing the trolley lines and putting them underground is unreasonable In balance, there can be no liability Alami v. Volkswagen of America, Inc (766 N.E.2d 574) (N.Y. 2002) (pg. 586) o Facts 1
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Comprehensive Case List9/11 Fund (pg. 549)o After 9/11, Congress capped the liability that airlines and other defendants might face if sued by
survivors or the families of victims -- no more than $6 billion could be collectedo A victim compensation fund was also collected where aggrieved parties could apply for relief if
they agreed not to sue the airlines, the WTC or other potential defendants Payments were made to nearly 5,560 claimants totaling more than $7 billion Ninety-four lawsuits were filed by people who opted out and all but four settled The fund compensated for lost earnings and for "non-economic" losses
They used existing federal programs for public safety officers who were injured or killed as a model for the program
o This is not an ordinary litigation There can not normally be comparisons for similar litigations, but in this case the victims are
from the same incident and horizontal inequities in their awards would be too visible In order to avoid this inequity the awards were somewhat standardized to ensure
equity This approach also fosters administrative efficiency
Adams v. Bollack (227 N.Y. 208) (1919) (pg. 145)o Facts
A boy walking along a bridge is swinging an 8-foot wire and it tangles with an adjacent trolley line and he is burned
The jury finds for the plaintiffo Appellate court reversed
The trolley has a duty to adopt all reasonable precautions to minimize the resulting perils and the court says that there is no evidence to show that this was ignored
Only extraordinary circumstances would allow this to happen (probability is very low) The precautions that were taken were reasonable (wires could not be insulated) but
the burden of removing the trolley lines and putting them underground is unreasonable
In balance, there can be no liabilityAlami v. Volkswagen of America, Inc (766 N.E.2d 574) (N.Y. 2002) (pg. 586)o Facts
The plaintiff was drunk driving a Jetta when he hit a pole and was killed Plaintiff's wife sued the defendant claiming that the car's defective design led to her
husband's death Defendant sought summary judgment on the ground that the plaintiff's sued was barred by
the rationale in Manning The trial court granted summary judgment to the defendant on the basis of Manning
o The court of appeals reversed Comparative fault principles apply in this case (partial recovery) The rationale in Manning can only be applied to claims where the parties to the suit were
involved in the underlying criminal conduct The court held that if the manufacturer did defectively design the vehicle, it breached
a duty to any driver involved in a crash regardless of the initial cause The wife did not seek to profit from her husband's intoxication, she asked only that
the manufacturer honor its duty to produce a product that did not unreasonably enhance or aggravate a user's injuries
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Dissent The injury was the direct result of his unlawful activity (drunk driving) and that this
activity is just as bad as joy ridingAlexander v. Town of New Castle (17 N.E. 200) (Ind. 1888) (pg. 371)o Facts
A man was thrown into an open pit that had been dug in the defendant town's street The trial court found for the defendant and the plaintiff appealed
o Indiana Supreme Court affirmed The third party man was clearly an intervening force as well as an independent human
agency in the infliction of the injuriesAmerican Tobacco Co. v. Grinnell (951 S.W.2d 420) (Tex. 1997) (pg. 494)o Facts
A man smoked the defendant's cigarettes for about 33 years and developed lung cancer; he and then his estate sued for failure to warn on the defendants part about the risk of addiction to cigarettes and the risk of injury they presented
The trial court gave summary judgment to the defendants on all claims The court of appeals reversed
o Texas Supreme Court affirmed in part and reversed in part Ultimately summary judgment is not appropriate here and the facts need to be evaluated by
the jury The existence of a duty to warn of dangers or instruct as to the proper use of a product is a
question of law -- generally a manufacturer has a duty to warn if it knows or should know of the potential harm to a used because of the nature of its product
There is however, no duty to warn when the risks associated as within the ordinary knowledge common to the community
If the danger comes from only excessive use beyond the norm then the manufacturer does not have a duty to warn
Second restatements 402A comments i and j connote a general societal understanding of the risks inherent in a specific product or class of products
Common knowledge has been defined as encompassing those facts that are so well known to the community as to be beyond dispute (it needs to be factually true)
The defendant asserts this common knowledge defense The defendant must assert and show that when the plaintiff started smoking
that the risks were common knowledge Affirmed
The court concluded that the general health dangers attributable to cigarettes were commonly known as a matter of law by the community when the plaintiff began smoking
Reversed The court concluded that it could not say that the specific danger of nicotine addiction
was common knowledge when the plaintiff began smoking The defendants argue that the plaintiff was warned several times after he
started smoking that the product was addictive and he should stop but this is not found to be conclusive evidence that he would not have heeded the warning had it come before he started smoking at all
Rebuttable presumption for the plaintiff is given by law (it is presumed that the plaintiff would have heeded the warning but if the defendants
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can product evidence that rebuts that presumption then it will be dropped)
It is found in this case that it should be left to a jury to decide whether or not he would have heeded that warning (not enough evidence for summary judgment)
Dissent Stated he would affirm both claims be decided on summary judgment for the
defendant -- addiction should be considered one of the harmful effects (dangers attributable) to smoking
The court finds that addiction is a separate risk in itself but the dissent feels that the addiction and the risks of smoking are one in the same
Because nicotine is what makes tobacco good it needs to have the addictive quality to be good in its inherent nature
The plaintiff should only be entitled to damages because he was addicted, not because of any of the carcinogenic or other damaging qualities
Baker v. Snell (2 K.B. 825) (1908) (pg. 405)o Facts
The plaintiff worked for the defendant at his inn where he kept a dog he knew to be dangerous; one day another inn employee who was charged with chaining the dog outside let the dog go in the vicinity of plaintiff and she was bitten
The trial court held the defendant liable despite the employees intervening act because the owner of a savage animal is strictly liable for its actions
o House of lords affirmed The keeping of an inherently dangerous animal that is known to be dangerous is an
inherently wrongful act and therefore the defendant must be liable even though the immediate cause of the harm is a third-party
It was a wrongful act in itself to keep the savage animalBanks v. Maxwell (171 S.E. 70) (N.C. 1933) (pg. 402)o Facts
The plaintiff works for the defendant on his farm and is injured by his bull when he is told to drive it out of its pen
The trial court nonsuited the plaintiffo N.C. Supreme Court affirmed
A person injured by a domestic animal must show two things1. The animal inflicting the injury must be dangerous, vicious, mischievous or ferocious
or one termed in the law as possessing a vicious propensity2. The owner must have actual or constructive knowledge of the vicious propensity,
character and habits of the animal There is no evidence in this case that the bull had ever attacked a person, shown a desire to
do so or evidence that the owner knew the bull was dangerousBarnes v. Geiger (446 N.E.2d 78) (Mass. App. 1983) (pg. 302)o Facts
A mother witnesses an accident near an area where she knows her son is playing and for a few moments believes that it is her son who was involved in the accident; she dies of a vascular hemorrhage the next day
Woman's husband sues the defendant and claimed that his wife's death was the result of the stress she endured while thinking that her son was the one injured in the accident
The trial court gave summary judgment to the defendant
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o Court of appeals affirmed They court concluded that a fleeting moment of fear or excitement does not present a set of
circumstances against which a tortfeasor can fairly be asked to defend Though the mistake was reasonable, this would open up an expansive possibility of people
claiming to have mistakenly thought a victim was a relativeBarnhill v. Davis (300 N.W.2d 104) (Iowa 1981) (pg. 302)o Facts
The plaintiff was driving in his car and being followed in another car by his mother; his mother's car was involved in an accident from which she received no lasting or substantial injuries
The plaintiff sued for the suffering he endured as a result of worrying about his mother's health following the accident
The trial court gave summary judgment to the defendants o Supreme Court reversed and remanded for trial
It is reasonably foreseeable as a matter of law that a son who witnesses an accident involving his mother may suffer mental distress
Plaintiffs were midgets in a circus and were injured when a circus elephant was spooked by a small dog and trampled their booth
o The court finds for the plaintiff As a matter of law an elephant is an animal ferae naturae
There can be no distinctions for specific genres of animals or specific animals themselves
There needs to be a bright line rule to make these distinctions -- the legislature should enact a negligence standard to help deal with these cases
Currently the court is bound by precedent and cannot make fine tuned distinctions by particular origin or gender -- the rule would lose all effect if judges began to make subdivisions creating distinctions
The mens rea of an animal cannot be considered Animals of this sort are concluded to be dangerous whenever they get out of the
control of their handler There was a failure of control in this instance Even if the act by the animal is not savage and vicious the animals stuff must
always be under complete control of the defendant The defendants are liable for any damage while the animal is out of
control (strict liability) -- but if the animal is under control and causes damage then there is a question of negligence for a jury
Bell v. Campbell (434 S.W.2d 117) (Tex. 1968) (pg. 376)o Facts
The defendant pulled onto the highway without properly looking or yielding and was subsequently hit by another driver which caused the trailer of the second vehicle to overturn on the highway
Someone attempted to warn oncoming cars while others tried to move the trailer from the highway but a man ignored or missed the warnings and ran into the trailer, killing the people who were trying to move it
The decedent's sued the third man and also the two drivers in the initial crash
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o Negligent driving caused the initial accident and therefore increases the chances of the subsequent accident
But this case is different for two reason The plaintiff was a rescuer The driver of the third car was drunk
By the time that the third car struck the rescuers all the factors of the first collision had come to rest and therefore the second accident was a separate incident
The defendant was found not liable (this is an exception and many courts find the other way)
Benwell v. Dean (57 Cal. Rptr. 394) (Cal. App. 1967) (pg. 530)o Facts
The plaintiff brought suit for loss of support and loss of society after her husband's death The defendant was denied questioning the plaintiff about whether she had remarried The jury gave verdict to the plaintiff and the defendant appealed
o The court of appeals affirmed It is a common rule that the surviving spouse's remarriage (or possibility of remarriage) does
not affect the damages recoverable in an action for wrongful death The cause of action arises at the time of the decedent's death and the damages are
determinable as of that time It is too difficult to compare the prospective earnings, services and contributions of a
new spouse and a deceased spouse The court also referenced another case that determined that a spouse should not be
punished because she is mitigating her loss through a new relationship (compare this action to an insurance policy)
The defendant should not be able to benefit from this (deterrence) Berry v. Borough of Sugar Notch (43 A. 240) (Pa. 1899) (pg. 365)o Facts
The plaintiff was a trolley driver and one day when he was driving through the defendant's borough high winds caused a large tree to fall onto his trolley
The plaintiff claimed the tree was negligently maintained and the defendant claimed that the plaintiff was contributorily negligent for driving at an excessive speed
o Liability found The court found that the fact that the motorman was operating at a speed greater than that
permitted by an ordinance which allowed his employer to operate its cars on the borough's streets did not affect his right to recover
The court found that the speed at which the motorman was traveling did not contribute to the cause of the accident
The trolley speeding did not increase the probability that the tree would fall on the trolley car
If the defendant had hit the tree or the tree had fallen across the road then the speeding would have had a more direct effect
Defendant notary prepared a will that was to designate the entirety of an estate to the plaintiff but the defendant failed to have a witness present at the creation of the will, thus rendering it invalid
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Plaintiff sued the defendant and recovered the difference between the amount she would have received in the original will and the amount she was awarded when that will was invalidated
The defendant appealedo California Supreme Court affirmed
The defendant, despite not being in privity of contract, was under a duty to exercise due care to protect the plaintiff from harm and was therefore liable for damage to the plaintiff caused by his negligence
The defendant must have been aware from the terms of the will itself that if it was deemed invalid that plaintiff would suffer harm (knew the specific person who would be harmed)
The defendant's negligence in preparing the will directly led to the defendant's harm
The "end and aim" of the transaction was to provide to estate to the plaintiff
A man is driving a truck when a dust storm makes him lose all visibility and he must slow to 5-10 mph; the man hits the rear of another car traveling at 2-3 mph because of the same dust
Jury brought verdict for the defendant, the trial court entered judgment n.o.v. (notwithstanding the verdict) for the plaintiff and the defendant appealed
Judge over rules the verdict of the jury because the trial court views the juries decision as unreasonable
o The Washington Supreme Court reversed the n.o.v When the visibility of a driver of a vehicle is completely obscured by atmospheric conditions
the question of negligence should ordinarily be submitted to the jury for consideration in view of the facts and surrounding circumstances
Reject the rule holding a driver of a vehicle negligent as a matter of law for failure to stop when his vision is obscured because such a rule would be too rigid to cope with the numerous situations presenting new or additional factors and variable (i.e. dust, fog, danger of stopping at that time)
There is a safety trade-off justification in this case Bright-line rules v. flexible standards
There can be no bright-line rules for automobile cases because the facts can vary so widely from case to case
The jury should determine whether the defendant's failure to stop constitutes negligence under the general test of whether the defendant acted reasonably under the facts and circumstances
The plaintiff's son and another boy become stranded on a highway at night and call for assistance and are referred to the defendant company who dispatches a tow truck that is unable to locate the boys
A drunk driver causes an accident in the time when the tow truck is searching for the boys and the plaintiff's son is killed
The plaintiff sued the defendants but they moved to have the complaint dismissed on the grounds that the owed the plaintiff's son no duty
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o Duty exists and the defendant is liable The son reasonably relied on the idea that the tow truck would be providing assistance and
therefore took no further measures to help himself The tow was negligent in failing to attempt to reach the car "A defendant who entered upon a course of conduct affecting the interests of another
was regarded as assuming a duty to act and would be liable for negligent acts or omissions because one who undertakes to do an act must do it with care."
Bolton v. Stone (1 All ER 1078) (1951) (pg. 146)o Facts
A woman living next door to a cricket pitch (surrounded by a 7 foot wall) is hit by a ball that flies into her property and is injured
The defendants were awarded judgment o The court of appeals reversed and the House of Lords reversed again, holding that there must be
judgment for the defendant The probability of this happening is close to zero The cricket pitch has already taken a burden in creating a 7 foot wall around it
There is always a risk and it can not be eliminated (Lord Reed) Not necessary to take further precaution and impose further burden (Lord Radcliffe)
The plaintiff was driving a horse down the road when it was spooked by a bear being led across the road in restraints and the horse caused injury to the plaintiff
The jury brought verdict for the plaintiff and the defendant appealedo Court of appeals held for the defendant and ordered a new trial
The injuries to the plaintiff were not the result of any dangerous tendencies of the bear The horse can be spooked by any number of things and the bear was not in any
manner threateningBrauer v. N.Y. Central & H.R.R. Co. (103 A. 166) (N.J. App. 1918) (pg. 368)o Facts
The defendant's train collided with the plaintiff's wagon at a crossing and the plaintiff's horse was subsequently killed and his wagon destroyed
Unknown parties then stole the contents of the wagon The trial court entered judgment on a jury verdict for the plaintiff
o Court of appeals affirmed The controversy of the damages was whether the plaintiff could recover the costs of the
stolen items from the defendant The theft was both foreseeable and inevitable The theft and the other damage were joint torts because they happened
simultaneously and occurred concurrently with the defendant's negligence The negligence which caused the collision was the fault of the defendant
This event caused the plaintiff to no longer be able to protect his property which was then stolen
This occurrence was foreseeable because the defendant had two people guarding the contents of his train and therefore knew of the risk of theft
Dissent The collision created the opportunity for theft, but was not the proximate cause of it
The chain of events is not continuous Crime should not be presumed (considered foreseeable as a matter of law)
Plaintiff drove his car into the defendant's cow which had strayed onto the highway Plaintiff had no evidence of how the cow had escaped Trial court found for the defendant and dismissed the plaintiff's action
o Supreme Court affirmed The plaintiff's evidence of negligence was insufficient to support his claim
The cow could have escaped from perfectly good confines, therefore there may have been no negligence on the part of the defendant
Brooks v. Medtronic, Inc. (750 F.2d 1227) (4th Cir. 1984) (pg. 506)o Facts
The plaintiff had a heart attack and, on the advisement of his doctor, was equipped with a pacemaker made by the defendant company
The original pacemaker needed to be replaced because the lead would not properly operate The plaintiff sued the defendant claiming that the product was defective and that they had
failed to warn him of the risk of the lead coming loose It was undisputed at trial that dislodgment of a lead is a common risk when a pacemaker is
implanted and the defendant gave all doctors written warnings of this danger but the plaintiff's doctor never passed this warning onto him
The jury brought a verdict for the defendant based on instruction that the defendant had a duty to warn doctors of the risks associated with pacemaker leads; the plaintiff appealed and claimed that the jury should have been instructed that they had a duty to warn him as well
o Court of appeals affirmed Prescription drugs get a different approach for warnings than other products
Is the prescribing doctor has received adequate notice of possible complications then manufacturer has not duty to warn the consumer
The doctor acts as a "learned intermediary" between the manufacturer and the consumer because he is in the best position to understand the patient's needs and assess the risks and benefits of a particular course of treatment
The plaintiff contends that the exception for prescription drugs should not apply here because
All cardiac pacemaker patient face identical risks and do not rely on doctors to act as learned intermediaries
The manufacturer in this case often has the opportunity to contact its users prior to surgery
The court rejects these arguments under the assertion that doctors are in a better position to disclose risks and once a warning is given to a doctor the choice of treatment and the duty to disclose properly fall on the doctor
Broshman v. Western Air Lines (892 F.2d 730) (8th Cir. 1989) (pg. 237)o Facts
Plaintiff is injured when he is sitting aboard an airplane and another passenger attempting to load his luggage into the overhead compartment drops the luggage on him
Plaintiff sues the airline with the claim that a flight attendant should have been present to assist the other passenger and henceforth prevent the injury
Trial jury brought verdict for the plaintiff, trial court gave judgment n.o.v. to the defendanto Court of Appeals Reversed
An airline has a duty to supervise the entire boarding process until it is completed
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The plaintiff was injured when force's created by the airline's negligence were in playBrown v. McDonald's Corp. (655 N.E.2d 440) (Ohio App. 1995) (pg. 501)o Facts
The plaintiff purchased a meatless simulation of a hamburger from the defendant restaurant and subsequently had an allergic reaction to a seafood ingredient and sued the restaurant for failing to warn of the ingredient
Defendant conceded that it did not give a warning on the product but that a flier was available that listed the ingredients and further argued that the sandwich posed no risk to ordinary customers and thus they had no duty to warn
Trial court gave summary judgment to the defendanto Court of appeals reversed
A relevant statute asks whether a manufacturer exercising reasonable care would warn of that risk in light of both the likelihood and the seriousness of the potential harm
There is a duty to warn when the defendant knew or should have known of the danger and the seriousness of it
There must be a consideration of the extent of the duty (there was a flier, but did they need to go further to meet their duty)
Hand formula The cost is likely low (B) because it would be cheap to add a warning
But it is not trivial in B to ask McDonald's to investigate every single possibility of an allergy from every one of their foods -- basically the burden is a lot bigger than it may seem on the surface at first look
Brune v. Belinkoff (354 Mass. 102) (1968) (pg. 165)o Facts
A woman is given a certain dose of anesthesia during childbirth and afterward suffers numbness and weakness. She claims the dose was too large (8mg in New Bedford v. 5mg in Boston)
Trial court is instructed to apply the "locality rule" (measures a physicians by the standards of other doctors in similar communities)
The trial court finds for the defendanto The Supreme Court reverses and abandons the locality rule
The proper standard of care should be whether a practitioner has exercised the degree of care and skill of the average qualified practitioner, taking into account advances in the profession and medical resources available
o Rejection of the "locality rule" The decision of whether custom was followed or not is usually based on expert testimony
(doctor) about whether or not the physician in question met the standard of care Many doctors may not want to testify against a local doctor or may hold the same
sub-standard of care based on the communityBrzoska v. Olson (668 A.2d 1355) (Del. 1995) (pg. 20)o Facts
A dentist is diagnosed with HIV/AIDS and does not inform his patients of his condition and continues to practice until shortly before his death
Trial court gave summary judgment to the defendanto Delaware Supreme Court affirmed
Consent was given to the healthcare provider and the procedure was performed by them in the way consented to
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It was not reasonable for the plaintiff's to state that this was a pertinent fact for them to know about their dentist before giving consent
Plaintiff's were not able to establish actual exposure to HIV Where is the line drawn in what needs to be disclosed and what does not? Can not begin to
open that door (it is not the court's place to do so) Opens the door for fraudulent cases based on various facts
Byrd v. English (117 Ga. 191) (1903) (pg. 285)o Facts
The defendant was building a house and in the course of excavations caused damage to power lines while removing earth under an adjacent sidewalk, which was against city ordinance
The plaintiff's company subsequently lost power for several hours The plaintiff sues for the profits lost and the defendant moves to dismiss the case
o The court held no liability for loss of profits Though the defendant was negligent, the losses were purely economic The defendant would be liable to the power company for damage to their property and then
economic losses on top of thatByrne v. Boadle (159 Eng. Rep. 299) (Exch. 1863) (pg. 192)o Facts
The plaintiff is walking by a warehouse when he is struck by a barrel of flour that falls from above
The plaintiff can not say how the flour barrel fell and no witness can attest to any more then him being hit with the barrel
The plaintiff was nonsuited on the grounds that no evidence against the defendant was available for the jury to consider
o The Court of Exchequer (English Superior Court) brought verdict for the plaintiff Defense argued that because the accident could have been caused by negligence does not
mean that the plaintiff is entitled to a presumption of negligence The court stated that the barrel could not roll out of the warehouse without some type of
negligence The defendant is responsible for the warehouse, its workers and its content and
therefore is negligent in allowing the barrel to roll out of it The court holds that the plaintiff does not need to witness the negligence
Two theories of support for the defendant's negligence The accident very likely resulted from negligence (Pollack) The parties did not have the same access to evidence bearing on how the accident
occurred (Bramwell)Candler v. Smith (179 S.E. 395) (Ga. App. 1935) (pg. 401)o Facts
A baboon escapes from the defendant zoo and gets into a woman's car, subsequently scaring her back into her house and destroying some of her belongings
A jury found for the plaintiff and the defendant appealedo Held for the plaintiff (no new trial)
A baboon is an animal ferae naturae and therefore it is not necessary for the owner to be negligent in allowing the animal to escape because the owner is bound to keep the animal for be liable
Central of Georgia Ry. v. Price (32 S.E. 77) (Ga. 1898) (pg. 363)o Facts
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Plaintiff was a passenger on defendant's train and the defendant was negligent in not letting her off at her spot and taking her to a further stop
The defendant put the plaintiff in a hotel for the night where a kerosene lamp in her room caught fire and caused her injury
The jury returned verdict for the plaintiff and then overruled the defendant's motion for a new trial; defendant appealed
o Georgia Supreme Court reversed The injury was cause by the negligence of the hotel or its workers, not by the negligence of
the train company A third party's negligence (intervening action between the harm and the railroad's
negligence) caused the actual harm The injuries were not the natural or proximate consequences of taking the plaintiff
past her stop The actual harm that happened was not foreseeable based on the reasonable expectations
of the railroad when they were negligent The harm that occurred was not more likely because of the defendant's negligence
(the defendant's negligence did not increase the probability of the harm to the plaintiff)
Charles v. Seigfried (651 N.E.2d 154) (Ill. 1995) (pg. 239)o Facts
The defendant is hosting a party where he serves a 16 year old girl alcoholic beverages and subsequently permits her to drive him with a BAC of .299 where she is killed in an auto accident
The plaintiff's estate sues the defendant The trial court dismissed the plaintiff's complaint
o The Supreme Court Affirms It is the drinking of the alcohol not the furnishing of it that causes the resulting damages The court was unwilling to open the "Pandora's box" that would hold all social hosts liable in
similar situations Leave impositions of civil liability in these situations to the legislature
Many states have instituted social host and bar tender responsibility statutes Motion to dismiss phase
The court is unwilling to accept the facts of the plaintiff as trueCity of Boca Raton v. Mattef (91 So. 2d 644) (Fla. 1956) (pg. 263)o Facts
Plaintiff's decedent was a sign painter and offered to paint the town water tower; his offer was accepted by the Town Council if the Town Attorney drew up the proper contracts
The Town Attorney delayed the contract because he needed more information but the plaintiff continued with the work anyway and was killed when he fell from the tower because of a breaking tower ladder rung
Plaintiff brought suit for her husband's death claiming that the city breached its duty to provide the deceased with a reasonably safe place to work
The trial court instructed the jury that the deceased was an employee of the city (invitee) and was owed a duty of reasonable care; jury found for the plaintiff
Defendant appealed, claiming mis-instruction of the jury (argued that the plaintiff was a volunteer and therefore a licensee, not an invitee)
o Florida Supreme Court reversed and remanded for a new trial
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The court concluded that the deceased was a volunteer and therefore equivalent to a licensee
The deceased had not yet been officially invited by the defendants to undertake the job (the contract had not yet been formed)
The deceased entered onto the land and attempted to perform the job by his own volition and therefore was not owed a duty of reasonable care that an invitee would be owed (the defendant is not obliged to make provisions for the safety of the deceased under these circumstances)
The court states that the plaintiff can not be considered an invitee because there was no established contract at the time of the incident (creates incentive for proper business)
Not a trespasser because the superintendent of the property knew he was there and consented to his presence
Because the plaintiff was decided to be a licensee the only duty of care owed by the defendants was to warn of conditions they were aware of in terms of passive negligence
If there was active negligence (i.e. injured by an act of the superintendent) then there would be liability
Cleveland Electric Illuminating Co. v. Van Benshoten (166 N.E. 374) (Ohio 1929) (pg. 257)o Facts
Plaintiff attempts to use a make-shift outhouse constructed by the defendants on a work site and when he lit a cigarette it ignited a gas line below and caused an explosion
Plaintiff sued the defendants for negligence in constructing the building and in failing to warn of its dangers
Trial court directed a verdict for the defendanto Ohio Supreme Court affirmed
The plaintiff was neither an invitee nor a licensee but rather a trespasser There are no facts that show that an ordinarily prudent person could reasonably have
anticipated or foreseen that plaintiff would use the building for any purpose or that he would light a cigarette while in it
Evidence comes solely from the plaintiff and from it there appears to be no duty or breach of duty
If the plaintiff had asked permission to use the outhouse then some different things may apply
The defendants would owe a duty of due care and would need to warn the defendant of any foreseeable dangers
The court would need to decide if it was reasonably foreseeable for the defendants to know that the plaintiff may light a cigarette while using the outhouse
The defendant took her dog, who had a history of biting people, to be neutered and the dog snapped at the veterinarian and the vet made the dog be muzzled during the procedure and when the procedure was over and the muzzle removed the dog bit the vet
The trial court gave summary judgment to the defendanto Court of appeals affirmed
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The defendant owed no duty of care to the plaintiff in this case unless she either engaged in intentional concealment or misrepresentation or her conduct was so reckless as to fall totally outside the range of behavior expected of those who avail themselves of vet services
The plaintiff had made an assumption of the riskCohen v. Smith (648 N.E.2d 329) (Ill. App. 1995) (pg. 21)o Facts
Woman is admitted to the hospital to deliver her baby and tells her doctors that she can not be seen nude by a man, however during her C-section she is seen and touched by a male nurse
The trial court dismissed her complainto Court of appeals reversed
Plaintiff needed to prove that she had expressed her need not to be touched in advance (which she had) and she had the right to do so
In Brzoska, there was no evidence that the patient expressed non-consent in certain circumstances before hand
Colonial Inn Motor Lodge v. Gay (680 N.E.2d 407) (Ill. App. 1997) (pg. 360)o Facts
Defendant was in plaintiff's parking lot and backed up his car into a heating unit on the side of the building which subsequently severed the gas line and caused a fire and the closing of the motel
The defendant claims that he thought he had only hit the building and that the events were not foreseeable
The trial court gave summary judgment to the defendanto Court of appeals reversed and remanded
The plaintiff has at least some evidence that the defendant's car struck the heating unit and was therefore the proximate cause of the damage
The court holds that foreseeability in this case can not be held as a matter of law If the defendant's conduct is a substantial factor in bringing about the injury then it is not
necessary that the extent of the harm or the exact manner in which it occurred be reasonable foreseeable
The facts should be brought to the jury "eggshell skull" mentioned in that if the plaintiff has some inherent weakness that
results in an injury at the hands of the defendant then the defendant is still liable The defendant set off a chain of events that led to the harm without any intervening third
partyCombustion Engineering v. Hunsberger (187 A. 825) (Md. App. 1936) (pg. 193)o Facts
Plaintiff was working in a boiler room when a workman of the company was hammering a metal wedge which then fell and hit the plaintiff
The jury found for the plaintiffo Court of Appeals reversed
Held that there was not sufficient evidence of negligence The fact that the wedge fell cannot be held as the definite result of negligence
because there are situations that it could fall when there was no negligence It may be expected that a tool may fall from time to time despite all precautions
because to expect otherwise would presume perfection among workmen Must consider the reasonable care of everyone around the incident
13
A person walking in a building site had more of a duty to reasonably expect that something would fall than a person who is walking down a public street
The plaintiff was prescribed a medication by the defendant doctor and told that, despite its side effect of drowsiness, that she could drive a car
The plaintiff was driving while on the medication and blacked out at the wheel, causing an accident and injury to her passenger children
The plaintiff brought suit against the defendant for the injuries to her children The appellate division help that the plaintiff's complaint should be dismissed because the
doctor owed no duty to the childreno Affirmed
The court reasoned that to establish a duty owed to a third party by the doctor there would be a need for actual privity or something close to it that would show a link between the defendant and the third party's reliance and an understanding by the defendant of that reliance
The defendant cannot reasonably foresee that the children were relying on his conduct
In order for a duty to be established the defendant must understand that the injured party is relying on his conduct not to be negligent
Connolly v. Nicollet Hotel (95 N.W.2d 657) (Minn. 1959) (pg. 196)o Facts
The plaintiff was walking by a hotel when she suddenly had mud in her eye At the time of the incident the hotel was host to a convention which had, in many ways,
gotten out of control and caused a great deal of destruction to the hotel Jury entered verdict for the plaintiff, but the court gave judgment n.o.v. (notwithstanding
the verdict )to the defendant because they claimed the plaintiff failed to show negligence of the hotel
o The Court of Appeals reversed Negligence may be inferred from all the facts and surrounding circumstances
The mayhem at the hotel at the time suggested a higher level of foreseeability which in turn lowers the burden of taking precautions
Dissent What further precautions could have been taken by the defendant?
Man forcibly removes another drunken man from a party and then is told by someone that the same man is coming back up the stairs so he hits the man with a musket when he appears, but it turns out it is another man
The trial court found in favor of the defendanto Court of appeals reversed and remanded for a new trial on jury misinstructiono The court suggested, however, that the defendant may still be found not liable
The defendant must show two things1. Used all due care to find the identity of the person2. Use no more force than necessary in the circumstances
An airplane owned by the defendant ran out of fuel and crashed into the plaintiff's garage
14
The trial court held that the defendant was strictly liable for the damage to the plaintiff's property
o Liability for damage by airplanes is bound by negligence The flight of airplanes has become a common activity and technology exists to make it safer There was obvious negligence in this case (not properly fueling the plane) Restatement section 24(a) -- the passengers came into contact with the dangerous activity
in order to gain the benefit of the air travel while the people on the ground had no inherent benefit
Defendant represented the plaintiff in a contract dispute and failed to filed a timely petition for review of a court of appeals decision so the plaintiff filed a malpractice suit
Both parties presented expert testimony on the likelihood that the state supreme court would have reviewed and reversed the decision in the contract case if the petition had been timely filed
Jury found that there was a 20% chance and thus rewarded the plaintiff 20% of the damages incurred in losing the original suit (based this on the loss of chance doctrine)
Defendant appealedo Washington Supreme court
The court held that the traditional more-like-than-not standard applied (not loss of chance) The burden falls on the plaintiff to show that but for the defendant's negligence the claim
would have been successfulDavies v. McDowell National Bank (180 A.2d 21) (Pa. 1962) (pg. 261)o Facts
Plaintiffs go to visit the a worker at the defendant business where they find him unconscious in his office; doctors are able to revive him and the plaintiffs agree to stay and make sure he is stable enough to get home later
Authorities later visited the office and found Mrs. Davies and the worker dead of carbon monoxide poisoning due to a blocked chimney
Plaintiffs sue the business claiming that the death was caused by negligence in maintaining the premises
The defendant worker was told he needed to have his chimney/ventilation checked Trial court stated they could assume negligence but still nonsuited the plaintiff's because
there was no evidence that the defendant knew of the unsafe conditionso Pennsylvania Supreme Court affirmed
The reasonable conclusion is that the plaintiffs were social guests at the office (licensees) and therefore the defendant would be liable only if he had knowledge of the dangerous condition and failed to give warning
Would need to realize (1) that the danger involved an unreasonable risk to the guests and (2) that they are not likely to discover the danger on their own
The plaintiff had no knowledge and therefore could have no duty to warno Key distinctions in this case
Private space (different from Ehret) Lack of action as opposed to an affirmative act (different from Ehret) Visitors were licensees not invitees
15
Davis v. Feinstein (88 A. 2d 695) (Pa. 1952) (pg. 134)o Facts
A blind man is using a walking stick while going down the street and falls through the cellar door of another man who left it open. The blind man is injured and sues.
The trial court finds for the plaintiffo Appellate court affirms
The plaintiff took all the precautions that he could to compensate for his disability and used due care under the circumstances so he was not negligent
The property owner had a responsibility of due care to not make the sidewalk a dangerous place
He was negligent in creating an obstacle that a reasonable person could not expect (not foreseeable obstacle)
Dawson v. Chrysler Corp. (630 F.2d 950) (3d Cir. 1980) (pg. 482)o Facts
A police officer was driving a patrol car when he lost control and the car skidded off the road and wrapped around a pole causing him to be rendered quadriplegic
The plaintiff based his claim on strict products liability and alleged that the patrol car was defective because it did not have a full and continuous steel frame and a cross-member
If the vehicle had been designed as such he alleged he would not be paralyzed Expert testimony agreed and said that the design was possible but it would add
several hundred pounds to the car and increase the price and it would also most likely not absorb as much of the impact of the crash
The jury awarded to the plaintiff and the defendant's moved for judgment notwithstanding the verdict or a new trial; the court denied both
o Circuit Court of Appeals affirmed The question is whether the jury verdict for the plaintiff was reasonable
The defendant argues that it is not because as a matter of law the product was not defective
The determination of whether a product is "reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes" is determined by a "risk/utility analysis"
A product is defective if "a reasonable person would conclude that the magnitude of the scientifically perceivable danger as it is proved to be at the time of trial outweighed the benefits of the way the product was so designed and marketed"
7 factors on pg. 484 The defendant alleges that the plaintiff failed as a matter of law to prove that the patrol can
was defective They urge that the substitute design proposed would be less socially beneficial and
they argue that their design meets the safety standards of the time However, Congress explicitly stated that complying with safety standard does
not mean that there was not a defect The car was safer in a head on collision, but in the present crash it was not safer
The plaintiffs evidence by expert testimony was sufficient Chrysler is going to have to bear the costs of claims that say the car is not heavy enough and
others who say it is too heavy -- these costs will likely be passed on to the consumer The outcome may vary on a case by case basis and needs to be for a jury to decide
The court expresses concern about inconsistent standards across jurisdiction
16
Desnick v. American Broadcasting Companies (44 F.3d 1345) (7th Cir. 1995) (pg. 29)o Facts
ABC sent reporters into the offices of Desnick under the impression that they wanted eye examinations and they used secret footage on a TV special but Desnick claims he would not have consented to work on them if they had revealed who they really were
The district court dismissed the trespass counts in the complainto Court of appeals affirmed the dismissal of the trespass counts and remanded the rest for trial
The fraud that was committed did not infringe on the interests of the office or disrupt the premises
There was no invasion of a person's private space The law gives effect to consent procured by fraud under the circumstances that the action is
not an interference with the ownership or possession of the property Restaurant Reviewer Analogy
There is a potential for a positive outcome that would come with a positive review The ABC Corp would never have aired what they would at Desnick if there was
nothing interesting and scandalous to reportDillon v. Twin State Gas & Electric Co. (163 A. 111) (N.H. 1932)o Facts
A boy was sitting on the edge of a bridge when he lost his balance and grabbed one of the defendant's wires; he was electrocuted and thrown back onto the beam
Boy's father sues for negligence and the defendant moved for a directed verdict which was denied
o Court of appeals affirmed The boy was owed no protection from falling but was owed protection from the danger of
the wire Several situations may arise
Boy would fall and either be maimed or killed If the jury concludes he would have been killed than the defendant would not
be liable because there was no actionable negligence (unless for additional suffering)
If the jury concludes he would have been maimed than the defendant would be liable and would owe damages measured to the value of the lost life and earning capacity in its injured condition
In this case there was no background risk of electrocution absence negligence of the defendant, but there was a background risk of death from a fall (more similar to Wendland than Herskovits)
The loss of a chance doctrine is not essentially applicable because the cause of death and any background risk are not the same source
The plaintiff was a customer at the defendant's gas station and was pinned between two cars when an attendant left a running car unattended
There was a rule that all cars needed to be turned off when fuelingo The court of appeals held that the defendant was entitled to summary judgment
When a vehicle's engine is left on at a gas station there is a reasonably foreseeable risk of fire or explosion -- it is this class of foreseeable risk that defines the scope of the defendants duty
The plaintiff is owed a duty because he was a customer of the defendant's business
17
The question of duty would be more difficult if the plaintiff was not a customer The incident that led to the injury of the plaintiff was outside the scope of the defendant's
duty The foreseeable risk establishes the scope of duty -- it must then be examined if the
actual harm is within the scope of the dutyDoughty v. Turner (1 Q.B. 518) (1964) (pg. 359)o Facts
Plaintiff worked in the defendant's factory The factory worked with cauldrons of cyanide kept at 800 degrees centigrade and a cement
cover was knocked into one cauldron and two workmen watched it sink into the molten liquid; moments later, the cauldron erupted and injured the plaintiff
The trial court found that the defendants had not know that the immersion of the cover into the cauldron would cause the chemical reaction
The court held the defendant's workman negligent in knocking the cover into the cauldron and therefore gave judgment to the plaintiff
The plaintiff argues that it is foreseeable that the cyanide would harm someone if it touched them on their skin not that the chemical reaction was foreseeable
A splash of the cyanide was foreseeable and the explosion is just an extension of that foreseeable splash
o House of Lords reversed If the lid had been dropped into the cauldron and caused a splash that injured the plaintiff
there would be liability; but the events are not equal to this The explosion which caused injury was the result of an unforeseeable chemical
reaction, not the agitation caused by the dropping of the cover into the cauldron There was a two minute gap between the cover dropping in and the injury, therefore
the explosion was not just a magnified splash The negligent act did not cause the harm Dissent
Discusses the reasonable man The defendant, under the majority's opinion, would not be liable even if he
intentionally immersed the lidDoyle v. Pillsbury Co. (476 So. 2d 1271) (Fla. 1985) (pg. 478)o Facts
The plaintiff's husband opened a can of green beans distributed by the defendant and the plaintiff looked into the can and observed a large insect floating and she recoiled in alarm and fell and was injured
o The defendant is liable for foreseeable injuries from the insect being in the can (physical and mental injuries from consuming the insect) but not from the random injuries from merely observing
The plaintiff was a passenger in a Volkswagen "microbus" that crashed into a telephone pole and caused her various injuries for which she brought suit
A judge found the defendant liable for failing to make the bus crash-worthyo The court of appeals reversed
Sacrifices of safety were made for the design benefits of the bus (more space) and these designs changes/benefits were readily known to the consumer
18
There was no evidence presented that the was any practical way of improving the "crashability" of the vehicle that would have been consistent with the purpose of its design
In Dawson the tradeoff was one type of safety for another while here the tradeoff would be between adding a safety feature and losing the unique advantage of the bus
Earl v. Van Alstine (8 Barb. 630) (N.Y. 1850) (pg. 400)o Facts
Defendant maintains his bees on his property adjacent to a highway and one day a man's horse is killed when they go past the bees
The trial court found for the plaintiffo N.Y. Court of appeals reversed
Bees are a useful animal that is necessary to the existence of man and therefore they can be considered domestic
Bees have been studied and they have been found to be manageable and it is rare that they will cause serious injury
The bees had been kept in the same location for several years and caused no damage and therefore did not have violent tendencies
Eckert v. Long Island R. Co. (43. N.Y. 502) (1871) (pg. 148)o Facts
A man talking to another man notices a boy sitting on a set of railroad tracks in the path of an oncoming train (the train gave no notice it was approaching) and goes to the boy and throws him to safety but is himself killed by the train as a result
The plaintiff won a jury verdict and the court entered judgment upon it The defendant claimed that he could not be liable because the plaintiff was contributorily
negligento Court of Appeals affirmed
The railroad was negligent Plaintiff was not negligent
The child was not aware and was not going to rescue himself The plaintiff had to have had a slight chance of being able to rescue himself and not
just be throwing himself into undue danger and being outwardly reckless Necessary risk was taken in order to save a life, not property
o Economics Did the plaintiff expose himself to an unreasonable risk?
Magnitude of Risk (man's probability of death) was great and the principle object (man's life) was very valuable but the collateral object (child's life) and the great utility (probability man saves child) and necessity of the risk (probability child does not save himself) counterbalanced those first considerations and made the risk reasonable
Hand Aspects B = loss of the chance of saving a child (value of the child's life)
The untaken precaution would be doing nothing P = probability that either the child or man is killed L = value of loss of life (magnitude of harm that would be eliminated if the precaution
was taken) Posner
"Almost any tort problem can be solved as a contract problem…" If the values of the lives are equal, then the expected benefit of the rescue to
the railroad in reducing expected liability cost to the child's parents are greater than the expected costs of the rescue (probability that the man would die)
19
(probability the child will be saved and lawsuit costs will be avoided v. probability the man will be able to save the boy and not die)...based on this, the railroad would have hired the man to save the child, therefore they should compensate him ex post
Would this be viewed as a positive cost-benefit analysis if figured out before hand?
If the railroad owned the train, the man and the boy, would it be worth it for the railroad to risk the man in order to save the boy?
This view considers the private benefits of the opposing parties The hand formula tends to look at all the social benefits of the situation
Ehret v. Village of Scarsdale (199 N.E. 56) (N.Y. 1935) (pg. 257)o Facts
A company laid drainage pipes under the street by newly built houses and during the process encased an existing gas main within it which subsequently began to leak and gas entered the drainage pipes and asphyxiated a trespasser who had enter one of the vacant houses
The trespasser's estate (plaintiffs) won a judgment against the defendants for ordinary negligence in laying its pipe
o Court of Appeals affirmed The rule that an owner of land is not liable to a trespasser should not be extended so far as
to confer immunity upon the defendant in this case The trespasser may have assumed the risks of using the land unlawfully, but could not
reasonably expect or assume the risk of danger that would arise from an existing condition on a public street
A trespasser assumes the risks/dangers associated with the private land that they trespass on
The danger that caused the harm was not on the private land that was trespassed on but on a surrounding public area
A trespasser does not assume the risks of surrounding public areaEinhorn v. Seeley (136 A.D.2d 122) (N.Y. App. 1988) (pg. 279)o Facts
The plaintiff was raped by an unknown attacker while visiting an apartment building and she alleged that the assailant was able to enter the building because the lock on its front door had been negligently installed/maintained by the defendant
Defendant moved to dismiss in that there was no privity between himself and the plaintiffo Summary judgment for the defendant
Defendant could not reasonably anticipate harm to the plaintiff from his negligence No special relationship between the defendant and the plaintiff
Farmilant v. Singapore Airlines, Ltd. (561 F. Supp. 1148) (N.D. Ill. 1983) (pg. 376)o Facts
The plaintiff bought an airline ticket from the defendant that would take him from Los Angeles to Madras and back with several stopovers
The plaintiff attempted to change his flight itinerary during the trip and when he arrived in the last stop before his destination, he was told there were not seats on any flights to his destination for 3 weeks so he took a different flight to another stop over location where he took a train to Madras
20
During a stop on the train trip he ate some bad food and became very ill and then tried to book an immediate flight back to the U.S. but was told his wait would be over a month
He booked a flight home on another airline The plaintiff sued the airlines to recover his medical expenses and alleged that his injuries
were attributed to the airline's negligence in failing to have a sear for him on a flight from his last stop over to Madras
o The defendant's negligence did not substantially increase the risk of the plaintiff getting food poisoning
The defendant was not found liable The purchase of the food from the vendor was a superseding cause
Federal Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901-950) (pg. 551)o Fixed rate of compensation
This is a basic trade-off of fairness for efficiencyForbes v. Parsons (9 F.Cas. 417) (E.D. Pa. 1839) (pg. 111)o Facts
A sea captain beats the cook on his ship for failure to maintain his kitchen and cook edible food
The captain claimed that his actions were justified while at seao The court found for the captain
The court rules that, while at sea, the captain may discipline his crew as he sees fit in order to maintain order
Seriousness of the offense v. the seriousness of the harm done The captain of the ship is able to justify how serious the offense of preparing a
bad meal for men at sea really iso Congress rules 11 years later that corporal punishment on a ship is no longer allowed (commerce
vessels)Forster v. Red Top Sedan Service (257 So. 2d 95) (Fla. App. 1972) (pg. 441)o Facts
The two plaintiffs were driving when a driver for the defendant company began trying to run them off the road, approached their vehicle and physically assaulted both of them
The trial court gave a directed verdict to the defendanto Florida court of appeals reversed
The court found that a reasonable jury could bring in a verdict for the plaintiffsFrank v. United States (250 F.2d 178) (3d Cir. 1957) (pg. 233)o Facts
A man is aboard a ship when it becomes disabled and is given an attempted tow by a U.S. Coast Guard heavy motor lifeboat
The man is on the deck when a handrail breaks and he is drowned in the water before the Coast Guard can reach him and successfully save him
The plaintiff sues on behalf of the deceased, claiming negligence on three counts1. The boat had a defective reverse hear which delayed it in reaching the deceased for
rescue2. The life rings were over secured and could not be thrown to the deceased in time3. The crew of the boat was incompetent in terms of Coast Guard standards
The district court found for the defendanto Court of Appeals affirmed
21
An obligation to render aid does not exist in this case because there is no relational basis for the duty
It was only a diligent rescue effort that was not successful and had nothing to do with inadequate equipment (claim 1), preparation (claim 2) or personnel (claim 3)
The court concludes there was no duty to attempt rescue A stronger argument may be that...
There was a duty to attempt the rescue that was established once the boat attempted tow, but no breach of that duty in that they attempted rescue to the best of their ability
Plaintiff was driving his pickup truck drunk and ran into a tree and was seriously injured and required surgery for which he needed a tracheostomy
The plaintiff's artery was ruptured during surgery and he died The plaintiff's wife asserted that the doctor had negligently cut the artery while performing
the tracheostomy The defendant asserted that it was the plaintiff's own negligence which led him to need the
surgery so he should not be liable The jury brought a verdict for the defendant
o Court of appeals reversed The court held that a physician cannot avoid liability for negligent treatment by asserting
that the patient's injuries were originally caused by the patient's own negligence A doctor's obligation to exercise due care when treating their patients cannot be
compromised by the theory of the plaintiff's negligenceGain v. Carroll Mill Co.(spatial proximity) (787 P.2d 553) (Wash. 1990) (pg. 302)o Facts
Plaintiff was watching the news when he saw footage of an accident which he was able to conclude killed his son
Plaintiff sued the other driver in his son's accident and the trial court gave summary judgment to the defendants on the ground that recovery could not be had unless the plaintiff was present at the scene of the accident
o Supreme Court affirmed The court concluded that mental suffering to a relative who is no present at the accident
scene is not foreseeable as a matter of lawGambill v. Stroud (531 S.W.2d 945) (Ark. 1976) (pg. 166)o Facts
An anesthesiologist and surgeon was supposed to perform surgery but stopped because of complications from which the patient suffered damages.
The jury was instructed along the lines that the doctor should have met a reasonable standard of care in a similar location and found for the defendant
The plaintiff appealed and claimed the "locality standard" had been usedo Supreme court affirmed
Comparison of locations is not based on particular locality, but the main focus should be on the standard of medical facilities, practices and advantages
Not being aware of what is the most medically up to date is not en excuse, but not having the physical technological capabilities is
o The "similar" community standard Gives incentives for doctors to practice in smaller communities
22
May make it necessary for doctors to at least attempt to keep their facilities as up to date as possible
Gardner v. National Bulk Carriers, Inc. (310 F.2d 284) (4th Cir. 1962) (pg. 308)o Facts
Plaintiff's decedent was a seaman who was discovered to be lost overboard and his ship did not turn around or attempt to look for him at all; he was never seen again
Plaintiff sued under the Jones Act (federal statute that allows seamen to recover for injuries caused by negligence of a shop's owner or master)
The court exonerated the ship's owners on the notion that they acted reasonably They concluded that there was no reasonable possibility of success in finding the
seaman and hence there was no causal relation between any negligence and the death
o Court of appeals reversed and gave summary judgment to the plaintiff (as a matter of law there was a causal element and that the trial courts judgment was not reasonable)
The court reasoned that many seamen who fall overboard survive for many hours Turning back would have entailed no risk for the defendant
The inaction of the master was a neglect of the duty of rescue and henceforth a neglect from which a contributing cause of the seaman's death is fairly and conclusively drawn
A duty is owed to the plaintiff because a duty is always owed to a crewmember by their superior
There is a strong case for breach because the captain made no effort to rescue There is a causal link in this case because the captains actions would most likely have
prevented the death (more likely than not) There is no way to know whether the plaintiff drowned instantly or was killed in
another way instantly or whether he was alive for hours and would have survived but for the defendant's negligence in not coming back to get him
The court wants to create a precedent that when a captain has an opportunity to deliberate about whether to help a crewmember or not, that they make the decision to help in most cases
A bean seller hired the defendants to certify the weight of bags of beans which were then sold, at the price of the certified weight, to the plaintiffs who, upon trying to resell the beans, found that they had been weighed incorrectly and overcharged
The plaintiffs sued the defendants to recover the amount they had overpaid to the bean seller
The trial judge gave direct verdict to the plaintiffso Court of appeals affirmed
The law imposes a duty to the buyer and the seller in the situation here The plaintiff's use of the weight given to them by the defendants was a direct
consequence of the actions of the defendants (incorrectly weighing the beans) Though there is no privity between the plaintiff and defendant (like in H.R. Moch) the
defendant knew the purpose of weighing the beans and the direct effect that he would have on potential buyers (i.e. the plaintiff)
The defendant knew the plaintiff would be the immediate intended third party beneficiary of the contract
23
"The plaintiff's use of the certificates was not an indirect or collateral consequence of the action of the weighers. It was a consequence which, to the weigher's knowledge, was an end and aim of the transaction" = intent
Can the defendant reasonably predict the scope of liability of their negligenceGorris v. Scott (9 L.R. Ex. 125) (1874) (pg. 184)o Facts
Ship owner agrees to take the plaintiff's sheep from one port to another. The sheep were swept overboard in a storm because they were not penned
A statute exists stating that sheep must be penned on voyages to prevent the spread of disease
o Not negligence per se because the purpose of the statute was not to stop sheep from going overboard
Harm sought to be prevented was different than the harm that occurred The legislative statutes must be kept clear and explicit Violation of the statute can still be presented as evidence
A man consents to surgery by one doctor who in the end is only present for part of the surgery while another doctor performed much of the surgery
Trial court gave summary judgment to the defendantso Court of appeals reversed
Consent given to one person does not necessarily transfer to another person for the same action, even if they are qualified
The identity of the healthcare provider does indeed matter When a person is generally admitted to the hospital, they give their consent to the
hospital and its workers as a wholeGraves v. Church& Dwight (631 A.2d 1248) (N.J. App. 1993) (pg. 499)o Facts
The plaintiff drank baking soda and water one night to alleviate heartburn and was soon hospitalized when the baking soda combined with his stomach acid to create a large volume of gas that caused a rupture in his stomach
The plaintiff contended that there were several ways to warn on the contained (his expert claimed as many as 20)
The plaintiff said that he had no read the label on the box but that he usually did read labels and paid attention to warnings
The plaintiff also smoked 3 packs a day despite knowing of the warnings on cigarette cartons The jury found that the baking soda was defective in not carrying a warning of the danger of
stomach rupture but found that this failure to warn was not a proximate cause of the plaintiff's use of it; Graves said he was entitled to a presumption that if the warning had existed he would have heeded it
There was a duty, a breach, but no causeo Court of appeals affirmed
The plaintiff was entitled to a presumption that he would have heeded the warning but the defendants had presented sufficient evidence to rebut that presumption
It was admissible that a jury make an analogy between the plaintiff's smoking in the face of health warnings on cigarettes and his projected behavior if a warning had been on the baking soda he consumed (the jury's decision was reasonable)
24
It may be arguable that because of the differences in the danger (long term danger of smoking v. instantaneous danger of ingesting baking soda) that they two situations were too different to make a reasonable analogy
The pleasure that is received from the activity could also be consideredGreen v. Smith & Nephew (629 N.W.2d 727) (Wis. 2001) (pg. 487)o Facts
The plaintiff claimed that the latex gloves she used as a hospital worker created a new allergy when the proteins in the gloves interacted with her immune system
The jury brought a verdict for the plaintiffo Wisconsin Supreme Court affirmed
WI law is at odds with the third restatement The biggest issue is that the restatement sets the bar higher for recovery in strict
products liability design defect cases than in comparable negligence cases -- it increases the burden for injured consumers not only by requiring proof of the manufacturer's negligence but also by adding an additional element of proof of an alternative design to the negligence standard
There is a focus on consumer expectations The foreseeability standards set forth by the 3rd restatement are too similar to those
of the negligence standard and there is no place for that in strict liabilityGrimshaw v. Ford Motor Co.(174. Cal. Rptr. 348) (Cal. App. 1981) (pg. 559)o Facts
The plaintiff was injured when the Pinto he was driving was rear ended by another car and because of the gas tank placement, exploded
The plaintiff alleged that the care was defectively designed and brought evidence at trial that Ford knew of the defect because of product testing
The trial court awarded compensatory damages and $125 million in punitive damages, evaluating
Is the sum so large as to raise a presumption that the award was the result of passion and prejudice and therefore excessive as a matter of law?
Does the award bear a reasonable relationship to the net assets of the defendant? Does the award bear a reasonable relationship to the compensatory damages?
The court concluded that the award was excessive and awarded a remittitur of $3.5 million The defendant appealed and argued that evidence was insufficient under CA law to support
any punitive damageso The court of appeals affirmed
In CA malice can be defined as "a conscious disregard of the probability that the actor's conduct will result in injury to others
There does not need to be an intent of harm Ford engaged in a deliberate weighing of options and chose profits over human
life The primary purpose of punitive damages are punishment and deterrence of like
conduct by the wrongdoer and others Government safety standards and the criminal law system have failed to provide adequate
consumer protection against manufacture and distribution of defective products Punitive damages are therefore the most effective remedy for consumer protection
against defectively designed mass produce articles In the present case injury was a virtual certainty and the defendants showed a callous
Plaintiff was at a county fair in a two-story building when a cow fell from the second story and landed on her
Defendants responded that there was no basis for their liability because "reasonable conclusions other than negligence of the defendants can be drawn to explain the occurrence"
Trial court held that the plaintiff was entitled to a trialo Supreme Court affirmed
Claimed this was an appropriate case for res ipsa loquitor because reasonable precautions were not taken by the defendant
The burden on the defendant to prevent the incident was very low (should have kept the cows on the first floor)
Haasman v. Pacific Alaska Air Express (100 F. Supp. 1) (Alaska 1951) (pg. 204)o Facts
A plain traveling from Seattle to Alaska disappeared during the journey; neither the plaintiffs nor the defendants have any evidence or knowledge of what happened to it
Plaintiff sues for negligence on the doctrine of res ipsa loquitor which the defendant moves to dismiss
o Trial Court denies the motion to dismiss Equality of ignorance is not the same as equality of knowledge
The defendant and the plaintiff are on equal footing in terms of not having access to the information
But the incident which caused the harm still must have resulted from inherent negligence
The defendant having no knowledge of how the incident occurred is only further evidence that the defendant was not giving proper care in the situation
Defendant's negligence is the fact which can not be possibly known by the plaintiff, but the defendant's equal ignorance does not negate this
The plaintiff was a defensive end and after he performed a blocking maneuver a player from the defendant team struck him in the back of the head and caused a neck injury
Judgment was entered for the defendant after a bench trial The judge reasoned that as a professional football player the plaintiff could have
reasonably expected the encounter during the game The level of violence in NFL football games are at such a level that the plaintiff
recognized and accepted the risk that he may be injuredo Appellate court reversed
The rules of the game prohibit striking someone after the play has stopped Since the conduct broke the explicit prohibition the action cannot be assumed by the
plaintiff It is not within the custom of the game to strike after the play
The plaintiff's wife was killed in a three car crash and the plaintiff sued the other drivers under PA's wrongful death statute and won a jury verdict of $64,754.30
26
o The court of appeals reversed because of trial errors, but affirmed the method of making case for damages
Defendant claimed that it was an error to admit expert testimony on the economic value of services rendered by a wife and mother
The plaintiff claimed she was using various skills during 18 hours of the day (cook, baker, waitress, laundress, nurse, etc.)
The court held that the plaintiff had submitted ample proof that allowed for a fair determination
The defense did not pose argument about what it would cost to "maintain" herHaskins v. Grybko (17 N.E.2d 146) (Mass. 1938) (pg. 256)o Facts
The defendant was hunting woodchucks one night in order to protect his crops when he unknowingly shot and killed the plaintiff's intestate thinking it was a woodchuck
The plaintiff brought suit and won in trial court on the finding that the defendant was ordinarily negligent
o Supreme Court reversed The intestate was a trespasser and therefore the defendant was not liable for mere
negligence He was under an obligation to refrain from intentional injury and from willful and
reckless conduct and did not breach this obligation He was negligent but not liable
He was ordinarily negligent but it was not his duty to exercise reasonable care (Second Restatement 333, pg 258) but rather liability would have been attached if his actions were intentional or reckless
If there had been consistent trespassers on his land then Second Restatement 334 would apply
If both men had been on public land or both were trespassers, they would owe the same duty to each other
The plaintiff and defendant each went turkey hunting and the defendant was calling to a turkey when the plaintiff rustled in some bushes nearby so the defendant shot into the bushes and injured him
The trial court instructed the jurors that they should bring in a verdict for the defendant if they found that the plaintiff was negligent in that he placed himself in a position of assuming whatever risk there would be when he voluntarily went turkey hunting and if they found that his negligence was a proximate cause of his injuries
The jury found for the defendant The plaintiff appeal arguing that the jury instructions misstated the law
o Court of appeals held for the plaintiff that the instruction was incorrect and ordered a new trial The plaintiff had a right to assume until he knew otherwise that other hunters would
exercise due care under the circumstances, including the circumstance of the nature of the forest
The plaintiff does not assume every possible risk He had the right to assume that other hunters would not be negligent There may be a contributory or comparative negligence claim in this case
27
Henry v. Houston Lighting & Power Co. (934 S.W.2d 748) (Tex. App. 1996) (pg. 375)o Facts
The plaintiff was hired to fix a gas line that was severed by the defendants and when he was doing so he heard another employee shout "Fire!" as a reaction to fog machine fog that had drifted into the hole; the plaintiff rushed out of the hole and ran into a pole causing injury
The trial court gave summary judgment to the defendantso The scope of the risk created by the defendant includes explosions and the harm which may befall
a defendant as they attempt to escape explosion The defendant was found liable Because the plaintiff believed he was in imminent danger of an explosion then his injury
while trying to escape it is within the scope of the duty of care of the defendantHerrick v. Wixom (80 N.W. 117) (Mich. 1899) (pg. 256)o Facts
A man sneaks into a circus event and is subsequently injured by a firecracker that is used during the show
The jury brought verdict for the defendant having been instructed that if the plaintiff was a trespasser then there was no duty and therefore no liability
o Michigan Supreme Court reversed and remanded a new trial due to jury mis-instruction A trespasser is not beyond the reaches of the law and any negligence on the part of the
defendant that results in injury will render liability The presence of the plaintiff (the audience) was known and the danger of the
negligent act was known by the defendant Whether the plaintiff is a trespasser or not is irrelevant, the same standard of
care is owed to a known audience member who has a ticket and one who does not
The circus was aware that the plaintiff was present in the proximity of their dangerous and subsequently negligent act
Herskovits v. Group Health Cooperative of Puget Sound (664 P.2d 474) (Wash. 1983) (pg. 317)o Facts
Plaintiff's decedent was improperly diagnosed with a cough and later found out that he had lung cancer which he died from
Plaintiff's decedent brought an action under Washington's wrongful death statute after the defendant failed to make an early diagnosis of his lung cancer
The defendant moved for summary judgment on the ground that the plaintiff probably would have died from lung cancer even if he had been diagnosed earlier
The trial court granted the motion and dismissed the actiono Court of appeals reversed and reinstated cause of action
The court concluded that the relationship between the increased risk of harm and the plaintiff's death is sufficient enough to state a cause of action
A 14% (39% to 25%) reduction in chance of survival is sufficient evidence of causation and therefore the jury must be allowed to consider the possibility that the defendant's failure (negligence) was the proximate cause of his death
If liable, damages should be awarded based on direct effects, like lost earning and medical expenses
There can not be blanket immunity for doctors who have patients with less than 50% survival chances -- deterrence goal of the tort system
Concurring
28
"Loss of chance" doctrine: what caused the loss must be a separate question from what the nature and extent of the loss are (the loss of the chance of a cure must be examined, not just the ultimate loss of his life)
Recovery should be allowed for the loss of the chance of cure even though the chance was small (less than 50% survival)
Though the plaintiff can not show that he was denied a cure, he can show that he was denied the chance of a cure
An all or nothing approach is wrong Its arbitrary It subverts the deterrence objective of tort law It creates pressure to manipulate and distort rule affecting causation and
damages It gives defendants the benefit of uncertainty It denies the loss of a chance as worthy of redress
H.R. Moch Co. v. Rensselaer Water Co. (159 N.E. 896) (N.Y. 1928) (pg. 273)o Facts
The defendant water works company entered into a contract with the city to provide, among other things, water to the hydrants within the city
A building caught fire and spread to the plaintiffs warehouse, which was destroyed The plaintiff claims that though capable, the defendant was negligent in its omission
of not providing adequate water and pressure to stop the fire The plaintiffs claim that the defendants failed to meet their contract with the city and
therefore must pay the damages caused by the fire A motion to dismiss was denied and the appellate division reversed
o N.Y. court of appeals affirmed The plaintiffs complaint alleged two points
(1)A cause of action for breach of contract (2)A cause of action for a common-law tort
(1) No legal duty rests on a city to supply its inhabitants with protection against fire The contract in question makes promises directly to the city to benefit it in the
corporate and private capacity The benefit that would be provided to the plaintiff is incidental and secondary
(not primary and immediate like it would need to be to impose a duty) The defendant company owes a duty to the city not to its inhabitants
The consequences of owing a duty to every inhabitant would be very un-proportional
(2) Liability would be unduly extended to an indefinite degree by an enlargement of the zone of duty
The defendant cannot be held responsible to every person who may indirectly benefit from their contract with the city
The assumption of one relation cannot mean the involuntary assumption of a series od new relations
A man's dog is consistently going onto another's property and stealing all the eggs from his coop, the neighbor shoots the dog and kills it to stop it from stealing the eggs
The jury brought in a verdict for the plaintiffo Mississippi Supreme Court reversed
29
All other alternatives had been exhausted at this point (progressively becoming more aggressive)
Tried many different ways to make the dog stop Consistent behavior that can not be altered at this point (dog will not stop) Magnitude of the value of the property that is trying to be protected (eggs may have
been his livelihood)In Re Exxon Valdez (1995 WL 527990) (D. Alaska 1995) (pg. 564)o Facts
The defendant's tanker spilled 11 million gallons of oil into an Alaskan sound Exxon and their boat captain were both held liable and had separate punitive damages held
against them Exxon appealed claiming that the jury was improperly instructed and there was a
misstatement of the law The jury was instructed that even if Exxon was not itself negligent, the company
could be held liable for punitive damages on the reckless acts of their employees
Exxon argued that by defying its regulations, the captain was acting outside the scope of his employment and therefore they could not be liable for punitive damages
The court held that this is not necessarily determinativeo The district court affirmed
Restatement 217C(b) the captain was an alcoholic and therefore Exxon was negligent in employing him because he was essentially unfit
Restatement 217C(c) the captain can be considered to be in a managerial position and therefore he himself has some policymaking authority
In re Polemis (3 K.B. 560) (1921) (pg. 351)o Facts
Plaintiff chartered a ship he owned to the defendants who, through their negligence, caused the ship to explode and be destroyed
There was gas leaking from its cargo into the hold A panel of arbitrators found the following to be facts
That the ship was lost by fire That the fire arose from a spark igniting petrol vapor in the hold That the spark was caused by the falling board coming into contact with some
substance in the hold That the fall of the board was caused by the people employed by the defendant
The plaintiff was negligent because he allowed the plank to fall There were foreseeable harms (harm to a person or property)
The unforeseeable harm (the explosion) does not factor into the question of negligence
That the causing of the spark could not be reasonably anticipated from the falling board, though some form of damage may have been reasonable anticipated
o House of Lords awarded full damages to the plaintiffs It is immaterial that the cause of the damage (the spark) could not be reasonably
anticipated Given the breach of duty that constitutes negligence and given the damage as a direct
result of that negligence, the anticipations of the person whose negligent act has produced the damage appear to be irrelevant
30
If an act would or might cause damage, the fact that the damage was not the exact type of damage anticipated is immaterial
The damage must be caused directly by the negligent act and not by independent causes
The defendant argues that there should be a distinction between the type of harm and the extent of the harm in terms of foreseeability
There may be more extensive harm that is of the foreseeable type, but there may also be a completely different type of harm that is not foreseeable
The court rejects this distinctionIndiana Harbor Belt Ry. Co. v. American Cyanamid Co. (916 F.2d 1174) (7th Cir. 1990) (pg. 419)o Facts
American Cyanamid is a manufacturer of chemicals and in this case the one in question is acrylonitrile, which is used for many things but is highly flammable, toxic and carcinogenic
Acrylonitrile is used for a variety of things American loaded 20,000 gallons of this onto a railroad car and sent it on its way where it
was to switch lines at Indiana's switching line It was discovered by employees of the switching line that the car was leaking the chemical
due to a broken lid and subsequently a massive evacuation a cleanup was ordered at the expense of the plaintiff Indiana
Indiana brought two claims against American Negligently maintaining the leased tank car That the transportation of this chemical through this area is an abnormally dangerous
activity and the shipper should be strictly liable for the damages caused The district court gave summary judgment to the plaintiff Indiana on the grounds of strict
liabilityo Court of Appeals reversed and remanded
The issue on appeal is whether this activity is an abnormally dangerous one that is subject to strict liability
This should be decided as a matter of law This issue is governed by second restatement section 520
The Supreme Court of Illinois treats the second restatement section as authoritative
Guilles v. Swan Paradigmatic case for strict liability Covers all the aspects of section 520
The court bases its decision in considering the 6 factors set out in the second restatement's section 520 (based in 19th century cases) -- discusses them in a different order
Briefly discusses how these would apply but not impose strict liability Incentive is created to experiment with methods of preventing accidents that involve
changing the way that the actor operates Moves beyond just asking the actor to exercise due care, asks them to change
their activity Common activities are likely to have technology of care available and the hazards are
not seen as great on a social whole -- risks outweighed by the social value The accidental spill was caused by carelessness -- it is not clear how the activity could be
altered to reduce the risks associated It is irrelevant that the chemical is dangerous and it was not the properties of the
chemical that caused the damage (not corrosiveness, etc.)
31
If a tank car is carefully maintained the danger of a spill is any chemical is negligible The defendants could have properly inspected and maintained the rail car Other parties could have been negligent in their handling of the car
If the case moves forward on a negligence theory then the possibility is opened that other parties (plaintiff, any third parties, etc.) may be responsible in part for the damage
There is no compelling reason to move to a regime of strict liability When a lack of care can be shown in court such accidents are adequately
deterred by the threat of liability for negligence Because it is easy to see how the accident in this case might have been prevented at
reasonable cost by greater care on the part of those who handled the tank car, this is not a case of strict liability
If strict liability was found here there would be the possibility that the shipping of all other dangerous chemicals would be subject to the same liability (Pandora's Box)
But if due care is used then the accidents won't happen very often anyway so the strict liability imposed won't be invoked very often -- the Pandora's Box will not necessarily be opened to the degree that the plaintiff argues
There may only be a slight increase in insurance if the vast majority of spills are preventable by proper due care
The railroad network is a hub and spoke system and all the hubs are in major cities It is unreasonable to think that major transports would not go through metropolitan
areas Strict liability would not impose incentives for alternative routes
It would be extremely costly The route would likely be longer
Even if the magnitude of the risk is decreased (L), the probability would likely be increased (P)
The defendants are not experts in rail road routes (the shipper/transporter/carrier would be in a better position to make determinations about routes)
If a less hazardous substitute for the chemical existed then the case would be different -- strict liability would make more sense because an alternative form of action would be incentivized reasonably
It would make sense to create a strict liability incentive to manufacture the less dangerous chemical substitute
Posner's application of 520 factors (c) there is the possibility to decrease or eliminate the risk with reasonable care (d) the particular hub is very commonly used to transport hazardous chemicals --
there is most likely technology that is available to reduce the risk (b) magnitude may be high but priority is low (e) railroad used often for this type of transport, alternative routes were not practical (f) products created have a greater social good
Restatement approach Is Allocative: Who was in the best position to lower the risk of the harm, i.e. can do so
most effectively? This person is who the responsibility should fall on Not Distributive: Who is best able to incur the cost, i.e. will suffer the least in doing
so? This person is who the responsibility should fall on It is not the chemical acrylonitrile that is at issue here, it is the transportation of it
32
The manufacturer of a product is not considered to be engaged in abnormally dangerous activity merely because the product becomes dangerous when it is handled or used in some way after it leaves his premises even if this danger is foreseeable
Strict liability is not appropriate here, but negligence claims can still be brought and should be tried in court -- the burden on the plaintiff is higher now (they need to show negligence)
If you can eliminate the risk by due care (c) then because the risk did occur there must be negligence (res ipsa), but who is the negligence on?
Ira S. Bushey & Sons v. United States (398 F.2d 167) (2d Cir. 1968) (pg. 434)o Facts
A U.S. coast guard ship was being overhauled in a floating drydock when one of its sailors opened valves that caused flooding and subsequent sinking of parks of the drydock and the ship
The drydock owner sought damages and was granted them by the district courto Court of appeals affirmed
The lower court applied the motive test The actor's conduct needs to be closely related to a motive that is intended to benefit
his employer, whether it actually does benefit them or not The court determined that the sailor's act were too far removed from anything personal to
not be considered within the scope of his employment The sailor's conduct was not so unforeseeable as to make it unfair to impose liability
Some type of damage by the sailors crossing the drydock is foreseeable so it is immaterial that the exact type of action and harm were not foreseen
The foreseeability of the event is still contingent on the scope of employment It all basically falls under a fairness rationale
There is inherent risk of damage and this is enough to impose liability Policy rationales that are rejected
The distributive argument is that just because the employer might be in a better financial place to pay the damages does mean they need to be held liable
The allocative argument is to allocate the risks/burdens in the most efficient and least costly way -- the defendant should be in the best position to avoid this type of harm
But in this case the court argues that the drydock owners are the ones in the best position to prevent this harm (put locks on valves, etc.)
Jacobsma v. Goldberg's Fashion Forum (303 N.E.2d 226) (Ill. App. 1973) (pg. 265)o Facts
Defendant (manager of the store) calls "Stop thief!" and points in the direction of the plaintiff who sees a man (the thief) running in his direction; the plaintiff attempts to stop the thief and dislocates his shoulder in the process
The trial court refuses to instruct the jury on the issue of whether the plaintiff was a volunteer and therefore determined that the was not a volunteer as a matter of law
Jury gave verdict to the plaintiff and the defendant appealed stating that the court had erred in refusing instructions for the jury on volunteer status
o Court of Appeals affirmed The plaintiff was a business invitee upon entering the store and therefore the defendant
owed him a duty to exercise ordinary care for his safety When the defendant called "Stop thief" it was concluded that it was reasonable for the
plaintiff to infer that this was an active call for his assistance
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The defendant's active call for assistance and the plaintiff's purpose in attempting to stop the shoplifter was to benefit the defendant and is sufficient to continue his characterization as an invitee
The defendant was also found to have had prior knowledge of the shoplifter's illegal activities and it was thus concluded that the defendant became charged with the responsibility (owed a duty) to protect its invitees from other illegal acts by the shoplifter
Johnson v. Douglass (723 N.Y.S.2d 627)o Facts
The plaintiffs were out walking their dog when the defendant came speeding down the road and nearly hit them and also killed their dog
Plaintiff's allege negligent infliction of emotional distress Plaintiff's could claim a bystander position or a near miss position
Bystander: argument would be that the dog was closely related to them and that witnessing its death was emotionally distressing
Pets are not usually viewed as "family members" but as property Near miss: argument would be that the couple had to jump out of the way of
the speeding car but they would need to note some type of physical ailments that they suffered as a result
It may be reasonably foreseeable that in a residential neighborhood there would be pedestrians
Foreseeability is not weighed as highly in these caseso Court ruled against both claims in NY (can not recover for property, can not recover for emotional
injury when there is no pre-existing duty)Johnson v. Jamaica Hospital (467 N.E.2d 502) (N.Y. 1984) (pg. 297)o Facts
Plaintiff's infant child was abducted from the defendant hospital shortly after her birth and missing for a period of 4 months before being recovered by the police
Plaintiffs sued the hospital for the emotional distress that they suffered at the hands of what they referred to as the hospitals negligence
Trial court held the complaint stated a good cause of action Appellate division affirmed
o Court of appeals reversed The court stated that there was no basis for establishing a duty between the parents and
the hospital and therefore there could be no liability The direct injury allegedly caused by the negligence was to the infant and therefore
the plaintiff's grief was not directly related and therefore not actionable Though the parents are in a pre-existing contractual relationship with the hospital,
there is concern that a Pandora's box will be opened and that liability will be expanded too far
The general rule in contract cases is that absent a duty upon which liability can be based, there is no right of recovery for mental distress
In this case, the infant was a more direct victim but the parents would have difficulty showing evidence of emotional distress in an infant
Dissent Plaintiffs were subjected to the hospital's failure to protect their right to custody of
their child and therefore there is sufficient guarantee that the claims of emotional distress are indeed legitimate
34
Johnson v. Kosmos Portland Cement Co. (64 F.2d 193) (6th Cir. 1933) (pg. 374)o Facts
The defendant owned a barge that was moored in a river and had recently been used to haul oil and had therefore accumulated gas in its hold
The defendant's negligently failed to remove the gas before having the plaintiff's work on the barge using an acetylene torch
The gases were ignited by a lightning strike and not by the torch, killing the workers The trial court found that the defendant's negligence was not the proximate cause of the
fatal injuries to the plaintiffs and therefore gave judgment to the defendantso If the plaintiff can convince the court that the foreseeable harm is the risk of explosion then the
defendant is liable because the risk that was foreseeable is within the class of the actual harm This was the case and the defendant was found liable
The defendant negligently created the risk of an explosionJohnson v. Wills Memorial Hospital (343 S.E.2d 700) (Ga. App. 1986) (pg. 168)o Facts
An unstable man is in a hospital under guard but he escapes from a window and is found later frozen to death
The plaintiffs sue because they claimed the man was not properly cared for The jury found for the defendant
o Court of Appeals affirmed "Similar" community modified locality rule is appropriate because it is the adequacy of the
facilities and services that is in question Services may be limited by location and resource by no fault of the hospital
o Facilities may be judged by custom because it allows a judgment based on the custom of the best that can be done under the uncontrollable circumstances
A couple uses a house for storage purposes and experiences multiple attempts of trespass so they set up a spring gun which injures an intruder
The trial court finds for the defendanto Court of appeals affirmed
Life must be valued more than property One may cause bodily injury if there is a physical threat to self, not otherwise
Harm to a person must be at stake If Briney had been there and concerned for his own life then shooting the intruder
would be under different circumstances Dissent
There must be a consideration of whether there was an intent to seriously injure or kill an intruder and that question of fact should be left to a jury with proper instructions
If what is contained on the property is "his life" then he should be allowed to use the threat of force to protect it
Keel v. Hainline (331 P.2d 397) (Okla. 1958) (pg. 8)o Facts
Students were in class before it was called to order throwing erasers back and forth at each other intentionally, a student not involved in the throwing or receiving was caught in the line of a throw and lost an eye from the impact
Plaintiff sues the thrower of the eraser and the target of the eraser
35
Jury brought a verdict for the plaintiff against both defendants The defendant at whom the eraser had been thrown appealed
o Court of appeals held for the plaintiff The basics of a battery have been established
A intentionally threw the eraser at B (intentional contact) The action is unlawful in its essence (inappropriate in the current situation (the
classroom)) Transferred Intent
A's intentions toward B are combined with harmful contact with C to create a battery A throws eraser at B and hits C, A is liable
"Transferred" transferred intent A throws eraser at B (a willing participant) but hits C instead, B is liable as well
They were willing participants who either aided, abeted, encouraged, procured, promoted or instigated the act
Keffe v. Milwaukee & St. Paul R. Co. (21 Minn. 207) (1875) (pg. 259)o Facts
A young boy caught his leg in a railroad turntable and subsequently needed it amputated The turntable was unfenced, revolved easily and was located near the plaintiff's home The trial court found for the defendant on the grounds that the plaintiff was a trespasser
o Minnesota Supreme Court reversed The defendant knew that by leaving the turntable as it was he was alluring young children to
the scene which they could not know was dangerous (Second Restatement 337, pg 259) This particular duty deals specifically with respect to children (attractive nuisance)
A child cannot be blamed for not resisting temptation before them There are different expectations of adults and their perceptions of danger
The defendant was bound to use care to protect the plaintiff from the danger which they led them to because the plaintiff could not be expected to protect himself
Plaintiff sued defendant policeman under the claim that he had wantonly beaten him with his nightstick in an altercation in a bowling alley where the defendant was working security
The jury gave verdict to the plaintiff The defendant appealed the punitive damages awarded on the ground that it was the
plaintiff's burden to introduce evidence concerning the defendant's net worth for purposes of equipping the jury with essential information to a just determinative of punitive damages
o Court of appeals affirmed The court laid out their justifications for punitive damages
Compensatory damages do not always compensate fully because they must be based in objective evidence they often fall short, especially if the damage is intangible
Punitive damages are necessary in some cases in order to make sure that tortious conduct is not under deterred
Punitive damages are necessary in some cases to make sure that people channel transaction through the market when the costs of voluntary transactions are low
When a tortious act is concealable, a judgment equal to the harm done by the act will un-deter (person who assaults is caught only half the time)
An award of punitive damages expresses the community's abhorrence at the defendant's act
36
Punitive damages relive the pressures on the criminal justice system The elimination of punitive damage may result in a burden on the criminal justice
system which may lead to people using a self-help method instead of the judicial system
The factor of the defendant's wealth is not a critical part of any of the above elements The plaintiff does not have the burden to show the defendant's net worth
Punitive damages serve as a type of bounty that give the plaintiff an incentive to act in a when that is beneficial to the public at large, which is why they are awarded to private plaintiffs rather than the state (in cases that involve crimes that may influence the state)
The plaintiff was a blind man who was assaulted after getting in the defendant cab because he brought his guide dog into the cab with him
The jury returned a verdict for the plaintiff for compensatory damages and punitive damages
The defendant appealed, claiming that they should not be liable for punitive damages based on the driver's conduct
o The court of appeals reversed in part (concerning the punitive damages) The court applied the complicity rule (2d Restatement of Agency)
In order for an employer to be held liable for punitive damages based on the conduct of an employee there must be some deliberate corporate participation in the action
217(a) the principal authorized the doing and the manner of the act In this case there was no deliberate action, only a possible knowledge that some cab
drivers did not take blind passengers, which was not the cause of the injuryKerr v. Connecticut (140 A. 751) (Conn. 1928) (pg. 133)o Facts
A man with very poor hearing was walking along a trolley line and, despite the driver trying to warn him by horn to move, was hit by a trolley when he failed to move away from the tracks when the trolley came by
The plaintiff's negligence is in question here (a negligent plaintiff can not collect damages even is the defendant was at fault)
The trial court found negligence on the part of the plaintiff but not on the defendanto Connecticut Supreme Court affirmed
The plaintiff was contributorily negligent as a matter of law The law required the defendant to exercise that care for his own safety which a reasonably
prudent deaf man would exercise The plaintiff is responsible for compensating for his own deficiency (he should not
have been walking on the trolley tracks)Kershaw v. McKown (196 Ala. 123) (Ala. 1916) (pg. 92)o Facts
A mans dog had been attacking another's goat so the goat owner shot the dogo Liability in this case depends on the relative value of the two animals in question
The court is focusing on the economic end result of the actions Goat > Dog or Goat = Dog then defendant not liable Goat < Dog then defendant liable
37
Kingston v. Chicago & N.W. Ry. Co. (211 N.W. 913) (Wis. 1927) (pg. 334)o Facts
The plaintiffs property is damaged by fire; the defendant caused one fire which joins with another equal fire before it reaches and destroys the plaintiff's property
Jury brought verdict for the plaintiff, defendant appealed arguing that the other fire would have burned down the plaintiff's property anyway
o Court of appeals affirms The plaintiff established the cause of the origin of the fire and the course of the fire up until
it reached his property No principle of justice requires that the plaintiff be placed under the burden of
identifying the origin of multiple fires for the damage which one of the fires could have done on its own
The plaintiff has the burden to show the source of one of the fires and that it would have burned down its property (that it would reach his property)
The burden then shifts to the defendant to show that if his fire had not united with the other fire then his fire would not have burned down the property because the other fire was of much greater proportions
He also could show that the other fire was the result of natural causes and therefore the property would have been destroyed anyway
Most courts use the approach that as long as the defendants negligence contributed substantially to the harm then they are liable
Even if the other fire was natural or larger, liability would exist This most closely follows 433b (illustration 10 and 11) in the second restatement, but would
be similar to 433A (illustration 3) if the source of the other fire was another defendant In Summers both defendants were negligent but only one actually caused harm, in this case
the defendant certainly contributed to the harm In Dillon the defendant's negligence did cause the injury, but the uncertainty lies in what
would have happened to the plaintiff if the defendant had not been negligent, but in this case the uncertainty lies with the causation (how much was the defendant's negligence a contributing factor)
Klein v. Pyrodyne Corp. (810 P.2d 917) (Wash. 1991) (pg. 427)o Facts
The defendant company was hired for a fireworks show and knocked one firework sideways and sent it into a crowd causing various injuries
The trial court gave summary judgment to the plaintiffs on the ground that the defendants were strictly liable for damage caused by its fireworks
o Washington Supreme Court affirmed There is an inherent risk of personal injury or property damage when fireworks are used No matter how much care is taken, the high risk cannot be eliminated when the activity is
done near crowdso Some courts have rejected this rationale on the idea that fireworks are a matter of common usage
on appropriate occasions If something is common then it is most likely not viewed by society as "abnormally
dangerous" or particularly hazardous The more common something is the more likely it is that there are safeguards available to
reduce any inherent dangers associated with the activity
Two people playing touch football end up with the P on the ground and D steps on her hand which causes serious injury to her hand that leads to amputation
The trial court gave summary judgment to the defendanto California Supreme Court Affirmedo Like Vosburg, the D did not intend harm with the conduct
The difference is that in Vosburg the physical contact was intended, in Knight the physical contact that caused the injury was not intended
The plaintiff was a professional meat cutter who lost a finger using the defendant slicer The slicer was a different type of design that held the blade at a new angle The plaintiff claimed the design caused the cutter to "self feed"
The plaintiff brought other butchers who attested that sometime the saw did "self-feed" and there had been as many as 30 other injuries from the saw
The jury found for the plaintiff and awarded compensatory damages and $20 million in punitive damages
o The court of appeals reversed Such a small number of injuries does not justify the large punitive damages
The injuries were inherent and could essentially be somewhat expected through the use of the machine
The evidence does not provide support that the defendant's conduct was wanton and willful because such a small number of injuries did not put the defendant on notice of the danger
Konradi v. United States (919 F.2d 1207) (7th Cir. 1990) (pg. 438)o Facts
A mailman was driving to work when he collided with the plaintiff's car and killed him The estate sued the U.S. under the Federal Torts Claims Act which allows the federal
government to be liable under state tort law in circumstances where private parties would be held liable
The trial court gave summary judgment to the defendant governmento The court of appeals reversed and found summary judgment premature
The idea of this doctrine overall is to provide incentive for employers to alter not their care but their activity itself
Businesses should consider tradeoffs and are more likely to do so if they are liable for the torts of their employees within the scope of the employment
The scope of employment can be functionally defined by reference to the likelihood that liability would induce beneficial changes in activity
In this case the postal service had rules in place which guaranteed that an employee would need to drive to work and take a particular route
It is viewed that the Postal Service had control over the aspects that led to the accident
Laidlaw v. Sage (158 N.Y. 73) (1896) (pg. 6)o Facts
Man comes into an office and threatens to blow up the building unless he is paid a substantial amount of money, D uses a coworker as a shield and when the explosives go off he is not injured but P is
39
The case was tried several times due to evidence as to whether P would have been injured even if she had not been used as a shield
In the fourth jury trial the court entered verdict for the plaintiffo The NY court of appeals reversed and remanded for new trial
They stated that the jury had been mis-instructed as to whether the defendant had committed a voluntary act
The issue becomes whether or not the act of moving the coworker in front of them was voluntary or not
Court says anything done in imminent danger or to protect yourself is not a voluntary act but more reflexive and instinctual
Very subjective decision as to what is to be considered imminent danger and under what circumstances can this be applied
The further a person gets from a situation where they are acting purely instinctually the weaker becomes the argument that the act was involuntary
The plaintiff was shot and taken to the hospital where the contacted defendant doctor said he would be there shortly but did not arrive for several hours; the plaintiff died
The plaintiff used an expert witness to estimate her deceased husband's lost earnings He was a trained carpenter
The jury awarded $400,000 for loss of support and loss of consortium (society) (it does not differentiate how much of the award was for each)
The plaintiff appealed claiming that the award was inadequateo The court of appeals affirmed
The court held that there was no evidence to show that the award amount was inadequateLander v. Seaver (32 Vt. 114) (1859) (pg. 113)o Facts
A boy makes a rude comment about his school master outside of school and the master hears it; at school the next day the school master beats the boy at school
The trial court found for the school master If the school master was acting with good motives then he is not liable
o The Supreme Court reversed and remanded They held that the jury had been mis-instructed Good motives need to go along with reasonable behavior and judgment
Larson v. St. Francis Hotel (188 P.2d 513) (Cal. App. 1948) (pg. 195)o Facts
The plaintiff was walking along the sidewalk when an armchair fell from the sky and hit her on the head; it was later presumed, despite a lack of witnesses, that the air chair fell from the hotel window
The plaintiff pled her case relying of the doctrine of res ipsa loquitor The court, however, granted the defendant's motion for nonsuit
The plaintiff had no way to prove negligence without reliance on res ipsa loquitoro The Court of Appeals affirmed
Followed the standard set in Gerhart v. So. Cal. Gas Co. Doctrine only applied where the cause of injury is shown to be under the exclusive
control and management of the defendant Does not apply to cases of divided responsibility
"V.J. Day" is an extraordinary day that constitutes extraordinary circumstances
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A hotel does not have "exclusive control" of its furniture (patrons have control at most times)
The accident was such that it can be presumed that it ordinarily might happen despite the best precautions of the defendants
Lawson v. Management Activities, Inc. (81 Cal. Rptr. 2d 745) (Cal. App. 1999) (pg. 296)o Facts
An airplane crashes near a car dealership where the workers of the dealership witnessed the crash and subsequently filed a claim because they felt they were in danger during the ordeal
The trial court dismissedo Court of appeals affirmed
There were not physical ailments to the plaintiffs as the result of the incident (Robb) There was not a special relationship in that the pilot does not owe a duty to keep those on
the ground safe (Third Restatement) The plane may not have crashed as the result of negligence and therefore the defendant
may not hold a duty or moral blameworthiness Policy rationale
There are so many other plaintiffs who can file a claim in this situation that there is no need for a concern that the defendants will have no liability in any case (not like Robb where the plaintiff was the only victim and potential plaintiff)
Liebeck v. McDonald Corp. (pg. 513)o The plaintiff was burned severely by McDonald's coffee and she got a settlement during litigationo One of the key things that led to victory was that the coffee had burned a lot of people in recent
years and the coffee sold by McDonald's was kept at 20 degrees hotter than the competitionLitzman v. Himboldt County (273 P.2d 82) (Cal. App. 1954) (pg. 335)o Facts
A boy is at the county fair when he finds what he thinks is a flare and lights it only to have it explode and he finds out it is really an aerial bomb
The aerial bomb could have come from one of two sources (one of them was negligent, but the plaintiff cannot show which one it was)
The jury is instructed that if they can not conclude which source left the bomb unattended then they need to dismiss the claims against both defendants
The jury finds fore the defendants The plaintiff appealed, stating that under res ipsa loquitur and under alternative liability the
jury should find for himo Res Ipsa Loquitor
There is no way to know that both of the sources were negligent in leaving the bomb -- one is completely blameless
But, should there be a burden on the defendants to show that it was not them based on their inventory? If they cannot prove it this way, they may be negligent for not keeping proper inventory of dangerous materials
Unlike in Ybarra, the two sources had no duty to monitor each other as part of a teamo Alternative liability
Both defendants were not necessarily negligent -- only one could have left the bombo Outcome -- liability
Court accepted both the res ipsa argument and the argument of alternative liability The burden was shifted to the defendants
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London Borough of Southwark v. Williams (2 All ER 175) (1971) (pg. 104)o Facts
A group of homeless squatters take residence in an abandoned home and the city evicts them and they claims a necessity to be in the house
o The court denied the use of the privilege of private necessity The town does not want to open the flood gates to claims of private necessity by the
homeless "If homelessness were once admitted as a defense to trespass, no one's house could
be safe." This case does not constitute an acute and immediate need of protection from threat
The problem of homelessness itself is chronic and does not constitute the right to invoke private necessity
Economic Perspective In cases where transaction costs are high and it is difficult for parties to bargain the
law should take more lenient view of property rights however when transaction costs are low then the two parties should be able to take the time necessary to bargain
The homeless are not able to bargain in any way (no means to compensate)Lordi v. Spiotta (45 A.2d 491) (N.J. 1946) (pg. 262)o Facts
Plaintiff and his son are visiting the defendants bungalow when the defendant's son turns on and lights the gas heater and then later asks his father (defendant) to turn it off; the defendant fails to properly shut off the gas and later there is an explosion that kills the plaintiff's son when the defendant asks the plaintiff to light the gas heater
The plaintiff sued for negligence The jury gave a verdict to the plaintiff which the defendant appealed from an order denying
his motion for directed verdicto New Jersey Supreme Court affirmed
The "guest rule" cannot establish immunity for the defendant when the guest (plaintiff) is injured by an unknown danger created by the defendant's negligence (affirmative act of negligence)
The defendant's act (not properly closing the gas valve) amounts to active negligence Key distinction from Davies is the active negligence (does not matter that the danger
was still unknown if it is the result of active negligence) Active or passive negligence would not matter in a trespasser situation
(negligence but no liability: a person may be negligent (either actively or passively) but if they owe no duty of care then they are not liable)
Louisville & Nashville Ry. v. Creighton (50 S.W. 227) (Ky. 1899) (pg. 531)o Facts
The plaintiff's child ran across RR tracks and was killed by a negligent train driver The jury awarded the administrator of the child's estate $10,500 for lost earnings The defendant appealed claiming that the award was excessive
o Court of appeals reversed and ordered a new trial There is no assurance that the child will reach manhood and until that time he would need
to be supported There are many childhood diseases and other obstacles to reaching adulthood
Comparable to awards given to adults, the amount is too high Dissent
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The jury had just as much right to assume that the child would earn a large amount of money as the court has to assume that he would not
The decision is speculative either way There needs to be some deterrence for killing a child
Lowe v. California League of Professional Baseball (65 Cal. Rptr. 2d 105) (Cal. App. 1997) (pg. 603)o Facts
The plaintiff was hit by a foul ball and claimed he was distracted from the game by the team mascot who was hitting the plaintiff in the back of the head with his tail, causing him to turn his attention away from the game
The team claimed that the plaintiff assumed the risk by attending the game Summary judgment for the plaintiffs
o Appellate court reversed Defendant owed a duty not to increase the risk that the plaintiff had assumed, but the
plaintiff needs to provide evidence that the distraction by the mascot did increase the risk (a jury is needed)
Luthringer v. Moore (190 P.2d 1) (Cal. 1948) (pg. 429)o Facts
The defendant was hired to exterminate vermin in the basement of a restaurant and did so by releasing hydrocyanic acid gas which overcame the plaintiff the next day when she arrived for work at the pharmacy next door
The trial court instructed the jury that fumigating with the gas was an ultra hazardous activity for which the defendant would be strictly liable even if he had taken all reasonable precautions
The jury returned verdict for the plaintiffo Liability was found for the exterminator
520 Factor (c) -- even if all due care was taken the defendant himself admits that the harm still has potential to occur
Activity level economic rationale -- was a substitute insecticide available that is inherently less harmful
520 Factor (d) -- gas was not considered a matter of common usage 520 Factor (e) -- the place was a common business area and therefore not necessarily
appropriate Another way to think about it is that to use the gas at all was inherently negligent in itself
532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. (750 N.E.2d 1097) (N.Y. 2001) (pg. 283)o Facts
The south wall of the defendants office building collapsed and caused the surrounding area to be closed off; the plaintiff's deli was effected and was closed from business for 5 weeks
The plaintiff brought suit alleging that the defendant's negligence cause the collapse and sought to collect lost profits
The trial court dismissed the complaint o Appellate division reversed
Defendants should have anticipated that pre-existing problems with their structure would be effected by the planned renovation and could foreseeably result in injury to others and because they did not they are to be considered in reckless disregard
Causes incentive to act reasonably in regard to the safety of otherso New York Court of Appeals then consolidated this case with others and ordered all complaints
dismissed
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While a landowner owes a duty to those around him to take reasonable care to avoid injuring them, it can not be held that the landowner owes a duty to protect an entire urban neighborhood against purely economic losses
By limiting the scope of the defendant's liability to those who have suffered injury or property damage afford a reasonably apportioned liability
Policy-driven line-drawing is too arbitraryMadsen v. East Jordan Irrigation Co. (125 P.2d 794) (Utah 1942) (pg. 429)o Facts
The plaintiff ran a mink farm and the defendant owned a nearby property where they were using explosives during repairs
The plaintiff claimed that the vibrations from the explosions caused the mother mink to become frightened and caused her to kill a large number of her young
The trial court sustained the defendant's demurrer to the complainto The Utah supreme court affirmed
There was the intervention of a third party between the explosion and the damage therefore breaking the chain and causing question of proximate causation
One who fires explosives cannot be liable for every occurrence following the explosion which has a semblance of connection to it
Malouf v. Dallas Athletic Country Club (837 S.W.2d 674) (Tex. App. 1992) (pg. 34)o Facts
People who live next door to a golf course often experience golf balls flying onto their property and hitting their house or car
Defendant won judgment after a bench trialo Court of appeals affirmed
There is no liability in this case due to the fact that there is no evidence that there was any intent to violate a property right
The golf balls ending up on the property was an "unintended consequence"Manning v. Brown (689 N.E.2d 1382) (N.Y. 1997) (pg. 584)o Facts
Two unlicensed drivers decide to take an unattended car and take turns driving around One girl suggests to the other that she should change the radio station which causes the
driver to crash; the passenger at that time was injured and sued the driver and the car owner
The trial court gave summary judgment to the defendantso Court of appeals affirmed
The court holds that where a plaintiff engaged in unlawful conduct the courts will not entertain suit if the plaintiff's conduct constitutes a serious violation of the law and the injuries for which the plaintiff seeks recover are the direct result of that violation
The act in this case was considered a serious violation Unlicensed drivers engaged in an activity which was hazardous not only to
themselves but also to the public at large Criminal conduct that puts the public at grave risk constitutes a serious violation
Pitcher was irritated by fans who were heckling at a baseball game and threw a ball into the stands intentionally and hit a fan
The trial court gave a directed verdict to the defendantso Court of appeals reversed and remanded
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The intent to create a direct fear of imminent danger is sufficient for liability when the intent transfers to actual contact
The other hecklers can not be held liable for the injury because the act of heckling can be reasonably expected at a baseball game
The hecklers were not a necessary part of the action which caused injury Differs from Keel because there was not a back and forth mutual and proportional
exchange Shows that transferred intent requires some type of mutual and proportional
A man fell overboard and before he was recovered his leg was bitten off. There was no doctor on the ship and the closest doctor was far out of the ship's course (3 weeks) so the ship simply continued on its prescribed path and upon reaching its destination (3 months later), the man's leg is cared for and slightly further amputated
Trial court says the man is owed a duty to make up for his pain and sufferingo Court of appeals reverses that verdict
There was no additional loss or disability that was substantial enough to warrant the danger of turning back and finding aid
The delay would be of an indefinite time period and the owner's would have been subjected to high and un-proportional damages
o Economics Hand Aspects
B = cost (danger, monetary) of rerouting the ship to the other port with a doctor (really big in this case...very risky, very dangerous)
P = probability of harm (if no detour is taken, will the man suffer?) (yes, the man will suffer)
L = magnitude of the resulting harm (long-term consequences, suffering) Would the cost of being sued be more than the cost of re-routing the ship?
There was no additional injury to the man on the remainder of the journey (no further damage to be incurred) but there would have been substantial damage if the ship was re-routed
Posner Contractual perspective
How much will the man accept to incur the suffering? How much would the man pay to avoid the suffering?
Wright Aggregate Risk Utility Test
The creation of significant risk to others is reasonable if1. The risks are not too serious2. The risks are necessary (unavoidable) to obtain a benefit3. The risks have been reduced to the maximum feasible4. The risks are outweighed by the desired benefit
There are benefits in preserving the willingness of men to sailMartin v. Herzog (126 N.E. 814) (N.Y. 1920) (pg 171)o Facts
Man and his wife are traveling by buggy when the defendant rounds the corner and strikes the buggy in his automobile which causes the death of the husband
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Plaintiffs claim the defendant was negligent for not keeping to the right side of the road Defendant claims the plaintiffs were contributorily negligent for not having headlights Jury found for the plaintiffs (no negligence on them at all)
o Appellate Division reversed and ordered a new trial (Supreme Court affirms) A new trial is ordered because the jury was mis-instructed
They should have been told that the omission of lights was "prima facie (adequate) evidence of contributory negligence" not just a "consideration for negligence"
Appellate says that to willfully not use headlights (a safeguard prescribed by law) is to fall short of the duty of care that people in organized society need to conform to
Omission of the lights was a negligent wrong The absence of the lights must be a contributing factor to the "disaster" that is at
claim for negligence (the defendant must demonstrate a causal connection for it to be relevant)
The plaintiff needs to show that despite their violating the statute, the accident still would have happened (i.e. there was so much light elsewhere etc.)
o Appellate court claims that the collision was due to the defendants failure to see the buggy at a time when the headlights of the buggy should have alerted him to it (if there were lights)
Marzolf v. Stone (temporal proximity) (960 P.2d 424) (Wash. 1998) (pg. 301)o Facts
Plaintiff's son was killed in an accident which the plaintiff came upon 10 minutes later in time to see his gravely injured son and the accident aftermath
Plaintiff sued the defendant for negligent infliction of emotional distress and the trial court dismissed the complaint
o Supreme Court reversed The court held that the emotional trauma caused by seeing a loved one injured at an
accident scene stems not merely from witnessing the transition from health to injury, but also from witnessing the aftermath of an accident
Allowing recovery only to those who are present at the impact of the accident creates an arbitrary distinction that the court is not willing to make
A man boarded a train and opened fire on the passengers (killing 6, injuring 19) using "black talon" bullets which are designed to bend on impact and cause more damage than an average bullet
The defendant manufacturer had pulled the bullet from the market but the gunman had purchased them before this time
The plaintiff alleged that the defendant should be held strictly liable because the bullets were defectively designed
The district judge granted the defendant motion to dismiss the complaint for failing to state a claim upon which relief can be granted
o The court of appeals affirmed The plaintiffs failed to allege that the bullet was unreasonably dangerous for its intended
use Some product must by their very nature be dangerous in order to be functional
The risk/utility test is inapplicable because the risks arise from the function of the product and not a defect
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The purpose of the risk/utility analysis is to determine whether the risk of injury might have been reduced or avoided is the manufacturer had used a feasible alternative design
The risk/injury to be balanced with utility must be a risk not intended as the primary function of the product
Dissent A possible alternative does exist in this case (elimination of talons on bullet)
Cites restatement: the designs of some products are so manifestly unreasonable in that they have low social utility and a high degree of danger that liability should attach even absent proof of a reasonable alternative design
Defendant's tractor collided with plaintiff's truck and caused the plaintiff various injuries The evidence at trial showed that the defendant had been drunk but the plaintiff had been
speeding The trial court gave judgment to the defendant when the jury found the two men equally at
fault The court used the doctrine of contributory negligence
The court of appeals affirmedo After further appeal, remanded for new trial with instructions
"All-or-nothing" bar of contributory negligence (rejected by most states at this time -- 1992) Plaintiff's contributory negligence completely bars recovery
Plaintiff should be penalized for his misconduct Plaintiff should be deterred from injuring himself Plaintiff's negligence supersedes the defendant's so as to render the defendant's
negligence no longer proximate Does not apply when
Defendant's conduct was intentional Defendant's conduct was grossly negligent Defendant had the "last clear chance" with which, through the exercise of
ordinary care, he could have avoided plaintiff's injury Plaintiff's negligence can be classified as remote
Court concluded that it was time to abandon the outmoded and unjust common law doctrine of contributory negligence and adopt in its place a system of comparative fault
Pure comparative fault Damages are reduced in proportion to the percentage of negligence attributed
to the plaintiff The plaintiff can always collect unless they are 100% at fault
Modified comparative fault Plaintiff's recover like in pure form, but only if the plaintiff's negligence is either
less than the defendants (≤49% of total) or is equal to but does not exceed defendants (≤50% of total)
If there are more parties than 2 the parties are looked at collectively as plaintiffs and defendants for their percentages of fault
This court chose the modified comparative fault for recovery if the plaintiff's negligence is less than the defendant's negligence (≤49% of total)
Special verdict for modified contributory negligence (≤49% comparative fault) (pg. 579) (1) Was the defendant negligent?
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Yes or No (If the answer is no, do not go any further) (2) Was the defendant's negligence a proximate cause of injury or damage to the
plaintiff? Yes or No (If the answer is no, do not go any further)
(3) Did the plaintiff's own negligence account for 50 percent or more of the total negligence that proximately caused his/her injuries or damages?
Yes or No (If the answer is yes, do not go any further) (4) What is the total amount of plaintiff's damages, determined without reference to
the amount of plaintiff's negligence? Amount in dollars
(5) Using 100 percent as the total combined negligence which proximately caused the injuries or damages to the plaintiff, what are the percentages of such negligence to be allocated to the plaintiff and defendant?
Plaintiff % Defendant %
(total must equal 100%)McMahon v. Bunn-O-Matic Corp. (150 F.3d 651) (7th Cir. 1998) (pg. 509)o Facts
Plaintiff was a passenger in a car driven by her husband who had purchased a cup of coffee and the plaintiff was attempting to transfer the coffee into a smaller cup when she spilled it on herself and suffered 2nd and 3rd degree burns
She claimed the makers of the coffee machine had failed to warn consumers about the severity of burns that hot coffee can produce and that any coffee served at more than 140 degrees is defective
The district court gave summary judgment to the defendanto Court of appeals affirmed
The court concludes that the average serving temperature of coffee is between 170 and 205 degrees so the plaintiff's contention of 140 being appropriate is unreasonable
(Failure to warn) The plaintiffs argued that they knew coffee could burn but did not know the extent to which it could burn and the damage it could cause
The court held that to give what would be adequate warning in the plaintiffs eye there would need to be a medical and scientific explanation in tiny fine print on the coffee
Indiana law expects consumers to educate themselves about the hazards of daily life (Design defect) The plaintiffs contend that the coffee maker was defective in design because
it kept coffee too hot but Indiana does not condemn product as defective just because they are designed to do things that create serious hazards
Without evidence that coffee at 180 degrees is of little use to consumers the plaintiffs cannot show that the high temperature makes the coffee defective
If the product was held defective, Mobil would be held liable as well because selling coffee was part of their regular business
The proper means of compensation for the plaintiff is first-party health insurance and accident insurance and this alternative means is only further reasoning for why this should not be a case for the torts system
Mexicali Rose v. Superior Court (822 P.2d 1292) (Cal. 1992) (pg. 477)o Facts
The plaintiff was injured when he swallowed a chicken bone found in the food he was served at the defendant's restaurant
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The plaintiff based his claims on the second restatement's section that stated that there should be strict liability when the food was more dangerous than would be normally thought
The trial court dismissed the claims They relied on the rationale in Mix v. Ingersoll Candy Co. which held that liability could
not be held for injuries caused by substances "natural" to foodo Supreme Court of CA affirmed
The court agrees with the plaintiff that a reasonable expectation rule should be adopted but in applying the test still continued to distinguish between foreign and natural substances
It stated that if the injury-producing substance is natural to the preparation of the food served then it can be said that it was reasonably expected by its very nature and the food cannot be determined unfit or defective
Dissent Claimed that the term natural could be construed to include too vast an array The reasonableness should means that the consumer could anticipate finding the
object in the mealMiami Herald Publishing Co. v. Kendall (88 So. 2d 276) (Fla. 1956) (pg. 442)o Facts
A worker of the defendant was delivering newspapers and ran over the plaintiff The trial court entered judgment on a jury verdict for the plaintiff
o Florida supreme court reversed Held as a matter of law that an independent contractor is not an employee and the doctrine
does not apply If the one securing the services controls the means by which the task is accomplished,
the one performing the service is an employee If not, he is an independent contractor The means of the accident was the vehicle selected and in this case the paper
boy selected his own vehicle In this case any control directed by the defendant was to the result, not to the manner
of performance by the independent contractor Small regulations in manner do not override this
Miller v. Civil Constructors, Inc. (651 N.E.2d 239) (Ill. App. 1995) (pg. 428)o Facts
The defendants operated a firing range and the plaintiff was hit by a stray bullet as he drove down a nearby road
The plaintiff claimed on one count that the defendants were strictly liable because "discharging firearms is an ultra hazardous and highly dangerous activity"
The trial court dismissed the strict liability counto The court of appeals affirmed
The risk of harm to persons or property, even though great, can be virtually eliminated by the exercise of reasonable or even utmost care
There needs to be a clear distinctions between requiring a defendant to exercise a high degree of care when involved in potentially dangerous activities and requiring a defendant to insure absolute safety of others while engaging in the activity
The use of firearms is a matter of common used and the harm comes from misuse rather than from their inherent nature
520 Factor (c) reasonable care could result in the reduction of risk The target practice is of some social utility (police officers used the range)
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520 Factor (f) social utility The place where this was happening was the appropriate place
520 Factor (e) activity in relation to placeMiller v. Reiman-Wuerth Co. (598 P.2d 20) (Wyo. 1979) (pg. 437)o Facts
The defendant employed a man who was given permission to leave work to deposit a check; on his way back to work the man was in a car accident and the plaintiff's sued the man's employer (defendant) for damages associated with the accident
The trial court gave summary judgment to the defendant The plaintiff argued that the determination of whether or not the trip was in the scope
of employment was a question of fact for the juryo Wyoming supreme court affirmed
A reasonable mind would not find the activities of the accident to be under the scope of employment
Moskovitz v. Mt. Sinai Medical Center (635 N.E.2d 331) (Ohio 1994) (pg. 561)o Facts
The plaintiff alleged a malpractice because of a failure to diagnose a tumor and treat it The defendant doctor did not properly diagnose the ailment, did not perform a biopsy
and then altered medical records to try to cover their mistakes The jury brought a verdict for the plaintiff and awarded compensatory and punitive
damages of $3 milliono Ohio Supreme court held the punitive damages excessive and ordered a remittitur
An intentional alteration, falsification or destruction of medical records by a doctor, to avoid liability for his or her medical negligence, is sufficient to show actual malice
Punishment does not mean confiscation -- they are not meant to completely ruin the defendant
Suggested $1 million in punitive damagesMouse's Case (77 Eng. Rep. 1341) (1609) (pg. 106)o Facts
Man on a ship has his casket thrown overboard because of a storm and the ship will sink if it is not lightened
o No liability is found because all of the passengers were in danger and the preservation of their lives is more valuable than Mouse's belongings
o Law of Admiralty (general average) Compensation can be sought from those whose belongings were saved by Mouse's
belongings being thrown overboardo Boat Overload
If the ferryman was negligent in overloading the cargo, he may be liable for damagesMurphy v. Hobbs (5 P. 119) (Colo. 1884) (pg. 552)o Facts
The plaintiff is bringing action to recover damages for malicious prosecution and false imprisonment
The trial court found in favor of the plaintiff The defendant appeals on the grounds of trial error
The appeal court examines whether damages as punishment can be recovered in this type of case
o Court of appeals reversed
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The court considered several factors which may contribute to double jeopardy and unfair punishment
The fine awarded as punishment in the civil action does not prevent indictment and prosecution in a criminal court
Evidence of punishment in a criminal suit is not admissible even as mitigation of exemplary damages in a civil action
The court holds that there may be more justification for punitive damages if there was no criminal trial, but this would not necessarily change things
There ought to be no disposition to take from the defendant or give to the plaintiff more than equity and justice require
When he is awarded pain and suffering damages, lost earnings, etc. it seems excessive to allow awards to punish the defendant as well
The unfair rule allows... Torts unaccompanied by malice will consider only the actual injury to the person or
property Torts accompanied by malice will consider the injury as well as exemplary damages
The court accepts the defendants argument that the previous decision allowed for double prosecution and punishment
The compensatory damages essentially covers all the damages that the plaintiff is entitled to
o This case was overruled 5 years later by the Colorado General Assembly and punitive damages were re-allowed in cases of intentional-like torts
The plaintiff chose to go on an amusement park attraction called "The Flopper" which consisted of a moving belt that was meant to cause people to lose their balance
The plaintiff fell and fractured his knee cap The trial court and court of appeals gave judgment to the plaintiff
o Those judgments were reversed and a new trial was granted The court held that a fall was one of the obviously foreseeable risks of the attraction The plaintiff complained that the attraction was too dangerous and was not properly
equipped to prevent injury to those who did not know of its dangers The court holds that because the risk of the fall was obvious it was not negligent for it to
exist They state it would have been different if the danger was unobservable or if there had
been so many accidents like the plaintiff's in the past to warrant a change The plaintiff may have a claim if the padding to catch the falling people was inadequate and
there was a concealed danger where it looked like there was paddingNeal v. Neal (873 P.2d 871) (Idaho 1994) (pg. 24)o Facts
A husband has an affair and his wife sues him for battery based on the argument that she would not have consented to sexual relations with him if she had known about the affair
o There would seem to be no liability because there were no conditions to the consent If there was liability, it would open the ability of anyone to file a suit if they wanted to
essentially withdraw their consent after an incident Also, there is a deterrence rationale here in that if an affair is had that the person can be
Some employees of the defendant company negligently tried to unplug a valve which resulted in a leaking stream of flammable petroleum that the plaintiff safety supervisors, as part of the fire brigade, were supposed to clean up and when they did the petroleum ignited
The trial court gave summary judgment to the defendants on assumption of risk groundso Supreme Court of California reversed
A special rule does exist limiting the duty of care the public owes to firefighters and police officers whose need for employment arises from certain inevitable risks that threaten the public welfare
Fire is inevitable, but industrial accidents are not Because the safety employees in this case are privately employed, a third party lacks
the relationship that justifies exonerating him or her from the usual duty of care They are paid by their employer, but can still collect from a third party (here the
maintenance company) who had nothing to do with paying for and providing those rescue services
With a firefighter and a police man taxes paid by the public essentially pay for the service provided and for immunity from liability
The person who is being rescued paid directly for the rescue services in this instance
Newlin v. New England Telephone & Telegraph Co. (54 N.E.2d 929) (Mass. 1944) (pg. 285)o Facts
The plaintiff had a mushroom factory and the defendant company owned a telephone pole nearby; the telephone pole fell over and caused a loss of electricity in the plaintiff's factory causing all the mushrooms to spoil
The plaintiff sued to recover the losses and claimed the telephone pole had been negligently maintained; defendant moved to dismiss the complaint
o Held for the plaintiff The complaint stated a good cause of action
There was direct property damage in this case (ruined mushrooms) and therefore the claim of economic losses can be added
New York Central R.R. v. Grimstad (264 F. 334) (2d Cir. 1920) (pg. 308)o Facts
Plaintiff's husband was the captain of a barge that was moored in a harbor; when the plaintiff emerged from the cabin to check things on the deck she saw that her husband was in the water (he did not know how to swim) and then tried to fetch a line to throw to him but was too late and he drowned
Plaintiff sued the owner of the barge claiming negligence on his part for failing to provide lifesaving equipment on the vessel
Jury found for the plaintiff and the trial entered judgment on thato Court of appeals reversed
The proximate cause of the decedent's death was falling into the water There is no evidence to show….
That the husband did not die because he could not swim That if there was a life buoy on board it would have been successfully used to
save him A duty existed between the barge owner and the captain because there is a special
employee/employer special contractual relationship
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There was a breach because the burden of having safety equipment on a ship is not high
There was no causal link between this breach and the injury If the claim of negligence was for something like safety nets on the sides of the boat, then
the cause- in-fact issue is established, but the safety measure may have gone against customary safety procedures and therefore the duty would not have been breached (analyze with the Hand formula)
If the plaintiff had established the prima facie case and the suit turned to the defendant to assert a defense, then he may have made a claim of contributory negligence because the captain could not swim
1977 NYC Power Outage (pg. 275)o A massive power outage left 3 million Consolidated Edison customers without power for 25+
Defendant found negligent in permitting the blackout and was held liable to the plaintiff for damages resulting from spoiled food and lost business caused by the blackout
o Lilpan Food Corp. v. Con. Ed. (493 N.Y.S.2d 740) (Sup. Ct. 1985) (pg. 276) Plaintiff supermarket sued defendant to recover damages for looting of its store during the
blackout but their claim was dismissedo In both cases there was a contract with the stores
Distinction: the thrust of the plaintiff claim in Food Pageant was directed to the failure to supply electricity to the market while the thrust of the claim in Lilpan was directed to the failure to supply electricity to the city in general (street lights, traffic lights) which contributed to the vandalism
A duty is owed to the market directly, but cannot be owed to the city as a whole The cases need to be examined in the intent of the contract (providing electricity to
run the store) not the other effects overall (the streets being dark and therefore allowing looting)
Food Pageant: Contracted to provide electricity, which they did negligently and a foreseeable consequence resulted
Lilpan: Contracted electricity of the store but their claim focused on the electricity lost elsewhere which caused the looting (not a foreseeable consequence)
Olin Corp. v. Smith (990 S.W.2d 789) (Tex. App. 1999) (pg. 539)o Facts
The plaintiff and a friend were hunting when driving in a truck and the plaintiff opened fire on a wild pig until he heard a click from his gun and he assumed it was empty
The gun then discharged into his leg due to a defect which then had to be amputated A bench trial led to a verdict for the plaintiff who was awarded $6 million+, with $5 million+
for "physical pain and mental anguish, disfigurement and physical disability The defendant appealed, arguing that the damages were excessive
o The court of appeals affirmed The plaintiff was 16 at the time and had a life expectancy of 55.8 more years and went
through months of agony while the doctors attempted to save his leg He experienced blistering and phantom pain
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Opelt v. Al G. Barnes Co. (183 P. 241) (Cal. App. 1919) (pg. 405)o Facts
The plaintiff was scratched by a circus leopard when he deliberately crossed under a safety rope and put himself within reach of the animal
The trial court gave judgment to the defendant on the finding that the plaintiff was injured solely because he willfully placed himself within reach of the wild animal which he knew to be dangerous
o Held for the defendanto If the leopard had been let out of its cage and injured a third party then there would likely be
liability because there would be no assumption of riskOuellette v. Carde (612 A.2d 687) (R.I. 1992) (pg. 585)o Facts
The defendant was working on his car when he was pinned under it and in the process of releasing himself he caused a gas leak from his car
Upon escaping from under the car he called his neighbor plaintiff and while on the phone passed out so the plaintiff came to help and revived him
The two decided to leave the garage and when they opened the door the gasoline ignited The plaintiff claimed that he was negligent in creating the situation while the defendant
claimed that the plaintiff was negligent in her rescue attempts The trial court refused to allow the defendant to argued contributory negligence or for the
jury to consider thato The Rhode Island Supreme Court affirmed
One who voluntarily attempts to save a life of another should not be barred from recovery due to their own negligence
The law and our society puts a high value on human life The principles of comparative negligence only apply if a defendant establishes that the
rescuer's actions were rash or recklessOverseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd; Wagon Mound (No. 1) (1961) (pg. 352)o Facts
Defendants owned a ship which accidentally dispersed oil throughout a plaintiff's wharf which eventually led to a fire and severe property damage
The trial judge found that the fire started when molten metal fell from the plaintiff's wharf onto a rap which ignited the oil (the reason of oil is to burn)
The judge also found that the defendant did not know and could not reasonably be expected to have known that the oil could be set on fire in the water
The defendant was indeed negligent in allowing the oil to leak into the water and not cleaning it up, leaving a dormant danger
The defendant could not have foreseen the harm that resulted, however The defendant's negligence was indeed the cause of the harm
o House of Lords grants appeal The court holds that the decision in Polemis is no longer good law Establishes the appropriate rule for causation and proximate cause is reasonable
foreseeability Foreseeability is more important and fair than directness
A man must only be held responsible for the probable consequences of his act Negligence is judged by a reasonable man and therefore it is fair and just that
causation be judged by reasonable foreseeability
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It is the foresight of the reasonable man which alone can determine responsibility
Foreseeability replaces "directness" as the acceptable test If the fire had been immediate as opposed to delayed the defendant would still have been
negligent The consequence of the spill is unforeseeable and it is irrelevant even if there is no
temporal separationOverseas Tankship (U.K.) Ltd. v. The Miller Steamship; Wagon Mound (No. 2) (1967) (pg. 355)o Facts
Previous case facts, but the plaintiff this time is the owner of a ship that was destroyed in the fire
Trial court gave judgment to the defendantso Privy Council reversed
The court found that the defendants would have regarded the oil as "very difficult to ignite in water" but not impossible (the harm was foreseeable)
The plaintiffs in the first case had to be concerned about the risk of the fire being foreseeable because if it was they could have been held contributorily negligent for continuing work when the oil was in the water
In this case however, the plaintiffs took no actions that could have caused the fire and therefore they did not need to be concerned about contributory negligence
They were able to argue foreseeability fully without concern and the court accepted it
The court held that it was clear that the reasonable man would have realized or foreseen and prevented the risk and therefore there must be liability
Palsgraf v. Long Island R.R. Co. (162 N.E. 99) (N.Y. 1928) (pg. 378)o Facts
Plaintiff was on the platform of the defendant's railway when a train stopped at the station and two men ran to catch it; one of the men made it onto the platform while the other jumped on but was unsteady so the guards tried to push and pull him onto the train
The man was carrying a package which fell as he was pushed and pulled onto the train; the package, though it looked innocent, contained fireworks which exploded when they fell
The explosion caused a scale to fall on the plaintiff The trial court and the appellate division gave judgment to the plaintiff
o Court of Appeals reversed (minority approach to proximate causation) The conduct of the guards was negligent in relation to the man trying to board the train and
was not negligent to the plaintiff The plaintiff attempted to sue in her own right for a wrong to her personal self, not as a
beneficiary of a breach of duty to the other man The cause of action by the plaintiff, even though they are far away, must primary and
original The duty in this case was owed to the passenger, not to Palsgraf herself
The plaintiff fails to show an actual wrong to herself The reasonably foreseeable risk defines any duty that may be owed Negligence is not a tort unless it results in a wrong (intentional v. unintentional)
If the harm was not willful then the plaintiff must show that the act had obvious apparent dangers that warrant protection despite no foreseeability
Even if the package had been thrown intentionally then Palsgraf would still not have a claim because the explosion was not foreseeable (Doughty)
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Therefore, because they would not be liable for an intentional act, then they would definitely not be liable for an unintentional act
The issue is that the rights that are said to have been violated are not of the same type The man experienced damage to his property when the package fell The plaintiff claims damage to her person
The fundamental difference between a tort and a crime is that in a criminal case the "people" are the plaintiff because the crime is against society (public at large) where in a tort case the individual is the plaintiff because it is a harm to one person
A tort harm to one person can not be thought of as a harm against the people The court emphasizes that because there is no duty owed there is no issue of causation to
even consider in this case If a duty was found to be owed to the plaintiff then liability would entail any and all
consequences no matter how novel or extraordinary This may be subject to some discretion on a case by case basis
The line is being drawn between who can bring a suit and who can not (who a duty is owed to not how vast the scope of that liability should be)
Introduces the idea that a case brought by an unforeseeable plaintiff should fail for want of a duty rather than for want of proximate cause
The line needs to be drawn with who can bring a case Dissent (majority approach to proximate causation)
Notes that everyone owes a reasonable duty of care to the world at large People owe a reasonable care to each other -- there is a public law aspect to
torts This approach seems to state that the duty owed is presumed in many cases
where there is an injury that results from an action The issue should be proximate cause, not negligence
There needs to be an emphasis on practicality and reasonable policy bounds Support for the judgment in Polemis
If the act is wrongful then the actor is liable for the proximate results Everyone owes the world a duty of not acting in a way that may unreasonably
threaten safety Any damage must be connected to the negligence so that it can be the
proximate cause The scope of the harm is immaterial
The court should consider whether the harm resulted from a natural and continual sequence that can be traced to the negligence
In this case, the act was negligent and the plaintiff's injuries were the proximate result of this negligence
There was a direct connection between the two events (no temporal or geographic separation)
The judgment should be affirmed (he most likely would have sent the case back to a jury to be re-evaluated as to whether the defendant's actions were the proximate cause -- he cannot decide this case as a matter of law)
o Cardozo (focus on duty, private action) v. Andrews (focus on proximate cause, public law) Cardozo's approach would limit the number of plaintiff's while Andrews would let most all
injured parties be plaintiffs and draw the lines within proximate cause Cardozo's approach makes it more likely that the result will be a question of law for the
judge rather than a question of fact for the jury in Andrew's approach
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With Cardozo, less cases would reach the jury (it is more likely to reach a jury when the issue is framed with proximate causation)
o Duty Palsgraf was an invitee and is owed a duty by the railroad because of the duty owed by
common carriers to their passengerso Breach
The untaken precaution was the guards not taking proper care in getting the passenger onto the train or to stop him from trying to jump on the train late
Foreseeable damage to the package and to the passenger if care was not takeno Causation
Cause-in-fact: but for the guard pushing the man onto the train, the package would not have fallen and exploded and then caused the scale to fall onto Palsgraf
Proximate Cause: There is a direct sequence of events between the package falling and the injury to
Palsgraf but it is a very remote and unforeseeable consequence Is the type of harm similar because it is to a passenger or is it different because it was
from an explosion and not an impact (push or fall)? There was a direct consequence and foreseeable or not does not matter (Polemis) Colonial Motor Lodge -- impact which led to an unforeseeable explosion
The defendant was driving his dogs, in pursuit of foxes, onto another's land which in turn scared the mans cattle and caused damage to his land
The trial court nonsuited the plaintiffo The North Carolina Supreme Court reversed
There would be no liability if the dogs were unprovoked; however, in this case, the dog's were intentionally sent with the knowledge that it was likely that they would cross property lines in pursuit of the game
The plaintiffs were women who used a contraceptive device that is implanted under the skin; the women complained of un-warned side effects
The contraceptive device was widely advertised in a campaign directly targeted at women rather then at doctors and had no mention of the side effects
The trial court dismissed the plaintiff's complaint on the ground that the learned intermediary doctrine shielded the defendant from liability
o New Jersey Supreme Court reversed The doctrine does not apply in cases where the manufacturer of a drug is alleged to have
marketed it directly to consumers in a misleading fashion The dramatic shift in pharmaceutical marketing to consumers is based in large part on
significant changes in the health-care system from fee-for service to managed care The direct marketing of drugs to consumers generates a corresponding duty requiring
manufacturers to warn of defects in the product The defendant is afforded the presumptive defense that they were complying with the FDA
requirements in their advertising It is fair to enforce the FDA's regulatory scheme by allowing patients who are deprived
of reliable medical information to establish that the misinformation was a substantial factor contributing to their use of a defective pharmaceutical product
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If the FDA regulations must always be gone beyond, then these regulations may not be enough and they may need to be changed and enhanced (should these requirements be the floor or the ceiling?)
This is generally a question of causation when the manufacturer potentially argues that the doctor should have warned the patient when they wrote the prescription
Plaintiffs underwent in vitro fertilization at the defendant's clinic and the embryo they created was mistakenly implanted into another woman who subsequently gave birth to the child and then there was a court order needed to return the child to the biological parents
Plaintiffs sued the clinic to recover for their emotional distress Trial court held that the complaint stated a good cause of action
o Appellate division affirmed Plaintiffs seek damages for the emotional harm caused by having been deprived of the
pregnancy and birthing experiences Damages for emotional harm can be recovered even in the absence of physical injury
when there is a duty owed by the defendant to the plaintiff (to properly care directly for them and implant the embryo in a direct procedure) and a breach of that duty resulted in the emotional harm
A plaintiff must produce evidence sufficient to guarantee the "genuineness of the claim"
Pescatore v. Pan American World Airways, Inc. (887 F.Supp. 71) (E.D.N.Y 1995) (pg. 528)o Facts
A bomb exploded on an airplane and caused it to crash, killing all the passengers It was decided that the plane company had committed willful misconduct in failing to find
the bomb The plaintiff's husband worked for BP and had several advanced degrees The jury awarded $9 million for lost earnings and $5 million for loss of society The defendant moved for a new trial on the grounds that the verdict was excessive
o The district court denied the motion, the court of appeals affirmed The jury acted reasonably when considering the compensation for top executives at major
corporations similar to BPPetition of Kinsman Transit Co. (338 F.2d 708) (2d. Cir. 1964) (pg. 357)o Facts
A ship is moored to a dock when large chunks of ice in the water create pressure which eventually causes the post holding the ship to come loose; the ship floats downstream where it unmoors another ship and the two float downstream together
Eventually the two ships collide with a bridge and cause collapse of the bridge and damming of the river, flooding the bank for several miles
Multiple cases were filed from various parties One party sued the original dock owner for negligently maintaining his post Trial court held for the plaintiff that the post was not adequately maintained
o Court of appeals affirmed The defendant was negligent because the boat was able to come free and there is a lot of
risk in a free floating boat (any burden of maintaining the post is less than the potential harm)
The events were foreseeable and therefore the defendant was negligent
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Where damages resulted from the same physical forces whose existence required the exercise of greater care than was displayed and were of the same general sort that was expectable, unforeseeability of the exact developments and of the extent of the loss will not limit liability
The defendant needs to be liable for all the harms that are of the same general sort of those that were foreseeable
Takes into consideration the extent of the harm (the actual extent may not have been foreseeable but the type of harm was)
It is necessary to foresee the type of harm, not necessarily the extent of damage by that type of harm
Three men are thrown overboard during a rough time at sea The captain did not make an attempt to look for the crewmen and only sent out a may day Two of the men were recovered with serious injuries and the third was never found Plaintiffs sued the ship owner and operator for negligence
o Trial court found for the plaintiff There is an inherent duty of a ship owner or operator to assist or rescue any member of the
crew (a special relationship exists) The skipper and those aboard failed to
Use due care to make an effort to turn the boat around Keep the vessel in good working condition Cast a line to the men Throw any life saving device to the men
This provides incentive for ship owners to maintain their vessels His inaction caused further harm to the plaintiffs
Phoenix Professional Hockey Club, Inc. v. Hirmer (502 P.2d 164) (Ariz. 1972) (pg. 285)o Facts
The plaintiff owned a hockey team and hired a new goalie when his was injured in an accident caused by the negligence of the defendant
The plaintiff sued the defendant to recover the costs of hiring the new goalieo Held for the defendant
The complaint failed to state a good cause of action There was no physical injury to the plaintiff and the goalie is not the hockey clubs
property and therefore there is no claim on which the economic loss can be addedPloof v. Putnam (81 Vt. 471) (1908) (pg.97)o Facts
Man and his family dock the ship against a stranger's dock during a storm, the dock owner's servant unattached the boat and the ship was destroyed and the family injured
o The judgment was affirmed and cause remanded The plaintiff is the one invoking the privilege in this case
Under the circumstances the plaintiff had the right to be on the property to protect his property and his family
The court states that the defendant can not expel the plaintiff from the property because of the privilege but the defendant has no affirmative action requirement to help the plaintiff reach the property
A man shoots his father in law and kills him and is then found later in the woods in a state that appears to be "insane" (crying, naked, holding infant daughter)
A psychiatrist found D to be suffering from schizophrenia Criminal trial: not guilty by reason on insanity Civil trial: found guilty
o The Connecticut Supreme Court Affirmed Reason of policy: incentive for the guardians of insane people to prevent these types of
things from happening (variation on the idea of deterrence) Based on D's state of mind, he still shot and killed someone, no matter who he thought that
person was and what his reason was for doing so The court deems that everything is an act (unless it is purely reflexive, convulsive or
epileptic) and that a rational choice is not a requirement for battery, just the intent to invade the interests of another (intentional conduct)
Though the defendant could not make a sane choice he could still make an insane choice and a choice is a choice
Pridham v. Cash and Carry Building Center (359 A.2d 193) (N.H. 1976) (pg. 363)o Facts
Plaintiff is injured in the defendant's showroom when a worker negligently untied a rope that was securing vinyl panels, which then fell and landed on the plaintiff
The plaintiff was taken to an ambulance and on the way to the hospital the driver had a heart attack and drove into a tree, killing the plaintiff
Plaintiff won a jury verdict and the trial court entered judgment upon it The defendant appealed and contended that the jury had been improperly instructed
o New Hampshire Supreme Court affirmed The jury was instructed correctly
They were told that the law states that if a defendant is liable for the plaintiffs injuries then the is also liable for any additional harm that results from the normal efforts of a third person in rendering aid
But for the initial negligence, the plaintiff would not have been in the ambulance and would not have been harmed
A 17 year old and a 16 year old are out hunting and the 17 year old shoots the 16 year old The jury attributes an equal share of responsibility for the accident to the plaintiff and
defendant under the idea that the defendant would only be liable if he did not exercise the degree of care expected of someone at his age and his intelligence
The plaintiff appeals and contends that the court should have instructed the jury that the 17 year old was required to use the same degree of care that would be observed by an adult in the like circumstances
o Court of Appeals affirmed The standard is that is a minor is to be held to an adult standard of care he must be
engaging in an activity that is (a) dangerous to others (b) normally engaged in only by adults
Hunting was not an activity that is usually engaged in by adults only
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This standard is something for legislature to change and modify and the majority opinion is not willing to set forth a new rule
Quill v. Trans World Airlines (361 N.W.2d 438) (Minn. 1985) (pg. 296)o Facts
Plaintiff is on an airplane that goes into a tailspin for about 40 second before the pilots are able to recover the plane
Plaintiff alleged that, because he must travel often for work, that he now suffered from anxiety and other ailments when flying in a plane
Trial court allowed the case to jury where the plaintiff was awarded damageso Court of appeals affirmed
There is most likely a duty of care between the plane and the passengers (pre-existing contractual relationship, duty owed to passengers by common carriers)
There is not the concern of expanding the scope of liability indefinitely Reina v. Metropolitan Dade County (285 So. 2d 648) (Fla. App. 1973) (pg. 442)o Facts
The plaintiff was a passenger on the defendant's bus when he got into an argument about the fare of the bus with the driver and further conflict when the bus driver did not stop at his stop; the driver eventually let the plaintiff off and subsequently chased him down and beat him when he made an obscene gesture after leaving the bus
The trial court gave a directed verdict to the defendanto Florida court of appeals affirmed
Richardson v. Ham (285 P.2d 269) (Cal. 1955) (pg. 375)o Facts
A bulldozer was left atop a mesa unlocked over night when two drunk men found it and drove it around the mesa until the abandoned it because they couldn't figure out how to stop it; the bulldozer drove down the side of the mesa and across a freeway, through a house and into an automobile before it was stopped by a retaining wall and utility pole
The plaintiff's brought suit claiming that their damages were attributed to the negligent failure of the defendant's to lock the bulldozer
The trial judge granted the plaintiff's motions for a new trial and the defendants appealedo The unlocked bulldozer was a tantalizing opportunity for the drunk men and therefore the
defendant was liable because they had created the opportunity for the 3rd party The defendant was found liable
Rinehart v. Board of Education (621 N.E.2d 1365) (Ohio App. 1993) (pg. 115)o Facts
A boy makes a rude comment about a teacher and the teacher whacks him with a paddle to punish him following the school's policy; the boy and his parents sue for damages
Ohio has a corporal punishment policy for schools "...may inflict...reasonable corporal punishment upon a pupil...whenever such
punishment is reasonably necessary in order to preserve discipline while such pupil is subject to school authority"
Board of Education has a further policy on corporal punishment in school Other methods of punishment had failed The punishment could not be out of malice or anger No danger of physical injury Only acceptable for of punishment is with the approved paddle Another adult must be present
Trial court gave summary judgment to the defendants
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o Court of appeals affirmed The teacher had followed the policy for the punishment and therefore was within his
boundsRiss v. City of New York (240 N.E.2d 860) (N.Y. 1968) (pg. 253)o Facts
The plaintiff ends a relationship with a man who subsequently repeatedly threatens her if she will not come back to him; though she goes to the police multiple times, she is awarded no protection until the man causes her permanent blindness and scarring
The plaintiff sues the city The trial court gave a directed verdict to the defendant
o Court of Appeals affirmed The amount of protection that can be afforded is limited to the resources of the community
and is not for the judiciary to dole outRobb v. Pennsylvania Railroad Co. (210 A.2d 709) (Del. 1965) (pg. 291)o Facts
Plaintiffs car became lodged on the defendants railroad tracks and she only narrowly escaped before a train hit her car
Plaintiff suffered no physical injuries but claimed to have suffered "great fright and nervous shock"
The trial judge gave summary judgment to the defendant on the ground that the plaintiff had claimed no physical impact ("impact rule"); plaintiff appealed
o Supreme Court reversed and remanded The plaintiff was in the immediate zone of danger created by the defendant's negligence
The court is not concerned with fright that does not lead to physical injury or sickness or situations in which the fright arises from the peril of another
There must be physical consequences as a result of the fright Advances medical sciences allow a legitimate diagnosis of emotional
distress The court determines that there is more support for rejecting the "impact rule" The court concludes that where negligence proximately caused fright to someone within the
zone of danger and that fright results in physical ailments that would be similar or comparable to injuries as the result of physical contact that the injured party has the right to recover
The plaintiff should have the opportunity to present proof of her own physical injuries as a result of the emotional distress she suffered at the hands of the negligent defendant
Here the plaintiff claims that she is no longer able to nurse her child (physical consequence)
Compensation goals of the tort system need to take precedent over efficiency and expediency
Roberts v. Ring (173 N.S. 437) (Minn. 1919) (pg. 137)o Facts
An old man ran over a 7 year old boy who ran into the streeto The jury brought a verdict for the defendant and the plaintiff appealed
Held for the plaintiff that the jury was not properly instructed because they were told to consider the age and infirmities of both the man and the child
The child does not know any better and has not developed good judgment
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The old man, however, should know of his limitations and his abilities in driving and the infirmities that he claims should only have stopped him from driving a car
Court should not say that the old man is not liable because he is oldRobins Dry Dock & Repair Co. v. Flint (275 U.S. 303) (1927) (pg. 280)o Facts
The plaintiffs chartered a steamboat and as part of their agreement with the boat owners it was cleaned every 6 months
During a cleaning a crack was found in the propeller and the boat owners hired the defendant company to install a replacement but one of the defendant's employees negligently dropped and cracked the new propeller causing the boat to be in dry dock for an additional two week while a new propeller was cast
The plaintiffs sued the defendant company to collect the losses they incurred while in dry dock
The district court gave judgment to the plaintiffs and the court of appeals affirmedo United States Supreme Court reversed
The issue is whether the respondents (Flints, plaintiff) have an interest protected by the law (under their contract) against unintended injuries inflicted on their chartered vessel by third persons
Justice does not permit that the petitioner be charged with the full value of the loss of use unless there is someone who has a claim to it against the petitioner
The respondents have no claim The respondents can not recover on the grounds that if someone else recovered, they
would get part of that The defendant would be liable to the owners of the boat because there was physical
damage to their property The plaintiffs did not own any of the property that was damaged
"The injury to the propeller was no wrong to the respondents but only to those to whom it belonged"
The general notion is that a plaintiff who suffers no physical injury generally cannot recover for pure economic losses caused by defendants negligence
Rodi Yachts v. National Marine (948 F.2d 880) (7th Cir. 1993) (pg. 162)o Facts
A barge is lashed to a dock by National Marine and should be unloaded by TDI but before it is it slips free from the dock and damages other ships. National Marine is sued and impleads TDI.
Trial court finds National Marine 2/3 responsible and TDI 1/3 responsible The defendants appealed, each claiming the other was solely at fault
o Court reversed and remanded The relevant customs are how the ropes should be tied and how often the barge should be
checked once it is tied (The question is not whether the defendants were negligent and liable to the defendant (they were and are), it is which of the defendants is liable for what part of the damages)
Posner Custom should be determinative when there is not potential for contractual relations
If there is a potential contractual relationship, customs should determine the outcome
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A contractual relationship exists because they have a foreseeable relationship with each other in the present situation (related through third party customers)
People who should unload the boat, people who should be watching the ship, people who lashed the ship to the dock, etc…
What has happened is beyond the scope of the contract but the fact that the parties have a contractual relationship with each other should influence how the case is viewed from a torts perspective
If there is no potential contractual relationship, customs shouldn't be the standard
Third parties who were not at all involved in the situation prior to damages (plaintiff barge damaged by defendant's negligence)
Both collectively face third party customers and if the two groups work together efficiently than they will create customs to help avoid damages which represent the efficient allocation of the risks
The Roman Prince (275 F. 712) (S.D.N.Y 1921) (pg. 373)o Facts
The plaintiff was on a barge that was struck by the defendant's boat and began to leak The plaintiff did not think the ship would sink so stayed aboard until realizing that the ship
was actually sinking and then tried to climb from one boat to the other and injured her kneeo The trial court gave judgment to the defendant
The collision between the two ships was not the proximate cause of the injury The plaintiff chose to stay aboard the ship after the collision The stumble was the fault of the plaintiffs and there was plenty of time to deliberate
leaving the ship and to take due care in doing do This time to deliberate makes it different than Scott (Squib) because the plaintiff
was not acting out of compulsive necessity (she is her own superseding cause in this instance)
Rowland v. Christian (443 P.2d 561) (Cal. 1968) (pg. 267)o Facts
Plaintiff cut his hand on a faucet in the defendant's bathroom; the defendant knew the faucet was broken and had not warned the plaintiff of the danger
The defendant claimed that the crack in the faucet that caused the injury was obvious and that the plaintiff was aware of it because he had used the bathroom before
Trial court gave summary judgment to the defendant on the grounds that the plaintiff was a licensee
o California Supreme Court reversed Landmark decision that the traditional distinctions between duties owed to trespassers,
licensees and invitees had become obsolete Classification as a trespasser, licensee or invitee does not often reflect the major factors of a
case that should determine whether immunity should be given to a defendant The factors that should be considered are not necessarily related to the plaintiff's
status The court concluded that a man's safety does not become less valuable based on his status
on the particular land and that reasonable people to not vary their conduct depending on this status
To focus on status in terms of determining duty of care is contrary to modern social mores and humanitarian values
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The proper test to be applied, under section 1714 of the Civil Code, is whether in the management of his property the defendant has acted as a reasonable man in view of the probability of injury to others
Although the status of the plaintiff on the property may have some effect on liability, it is not determinative
Under the present case, the court concludes that the defendant was aware of the risk and failed to remedy it or warn the plaintiff that they were in danger
When a defendant is aware of a hidden danger on their land and fails to warn the plaintiff of it, they are negligent
A plaintiff should reasonably be able to rely on warnings of risk from a defendants so that they may take special precautions (like the defendant likely takes) to avoid harm
Roth v. First National State Bank of New Jersey (404 A.2d 1182) (N.J. App. 1979) (pg. 441)o Facts
The plaintiff ran a check-cashing business and routinely went to the bank every morning to cash checks; one day he was robbed because one of the bank tellers told her boyfriend of the activity of the plaintiff and he tipped off the robbers
The trial court gave summary judgment to the bank on the ground that the teller had not been acting within the scope of her employment
o Court of appeals affirmed In examination of the restatement the court notes that the teller had no apparent
connection with her duties at the bank when she committed the tortious act She was also not involved in the transactions with the plaintiff
A claim still potentially exists for negligent hiring, but the strict liability of the employer does not fit
The defendant was prosecuted and acquitted of a stabbing murder in criminal court The defendant was then convicted in a civil suit Based on the estimated net worth of the defendant the court awarded $12.5 in
compensatory and $25 million in punitive damages The defendant appealed by claiming the award was excessive
o The court of appeals affirmed The proper level of punitive damages is an amount not so low that the defendant can
absorb it with little no discomfort, nor so high that it destroys, annihilates, or cripples the defendant
To review the damages, they should consider The reprehensibility of the defendant's conduct The actual harm suffered by the victims The wealth of the defendant
The defendant's conduct was outrageous, therefore making the damages justifiedRyan v. Towar (87 N.W. 644) (Mich. 1901) (pg. 259)o Facts
A company owned a water wheel which was enclosed in a pump house; children made a hole in the pump house wall and played on the wheel which subsequently caused injury to a young girl who got caught between the wheel and the pit
Trial court gave directed verdict to the defendanto Michigan Supreme Court affirmed
The current remedy for dealing with trespassing children is inadequate
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The burden would be too high for the company to put more effort into enclosing the pump house
Second Restatement 339 The plaintiff would need to show that the defendant
Knew there would be children on the property Know that a risk or danger existed Know that because they are children they would not recognize the risk Would not take on the appropriate burden to prevent the harm
In this case, the defendant can argue that they did take on the burden of enclosing the water wheel and that any further burden is disproportionate to any risk that exists to children
Failed to exercise reasonable careSanderson v. International Flavors and Fragrances, Inc. (950 F. Supp. 981) (C.D. Cal. 1996) (pg. 343)o Facts
Plaintiff alleges that the scents and her exposure to the aldehydes in them caused serious injury to her including brain damage and sense of smell damage
The plaintiff asked the court to apply the market share theory in determining liabilityo Summary judgment to the defendants
A plaintiff cannot shift the causation burden to defendants The plaintiff was not injured by a fungible product made by many different
manufacturers Because the products were not fungible the ability to distinguish which product
caused the damage is still in the hands of the defendants The plaintiff has not joined a substantial share of the market
There must be a substantial chance that one of the defendants caused the harm to the plaintiff
The larger the portion of the market the plaintiff joins, the smaller the chance of error in liability
Schuster v. City of New York (154 N.E.2d 534) (N.Y. 1958) (pg. 253)o Facts
A man provided information to the police which aided in the capture of a well-known criminal; the man's assistance to the police was widely televised and he subsequently began receiving threats on his life
The police did not take the treats seriously and afforded no protection to the man and he was eventually murdered
The plaintiff's estate sued, alleging That the city had a duty to protect people who had cooperated in law enforcement
efforts That the city failed to exercise reasonable care in not supplying protection to the man That the death of the man was due to the city's negligence in recklessly exposing him
to the danger The trial court dismissed the complaint
o Court of Appeals reversed The city owes a special duty to use reasonable care for the protection of person who have
collaborated with it once reasonable dangers appear The public authorities made active use of a private citizen
Even if the police do not solicit the help of the citizen's, there may be an argument that the police were still actively using the citizens
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Scott v. Shepard (K.B. 1773) (pg. 372)o Facts
A firecracker was thrown into a crowded market and then tossed around until it blew up and took out the plaintiff's eye
o The important question was whether the plaintiff had stated a good claim for trespass or whether the claim should have been brought as an action for trespass "on the case"
The court held that the plaintiff had a good trespass claim There is no longer a distinction between trespass and case but this case (the squib case) is
precedential in terms of proximate causation Because the third party acts were not the acts of a free agent but of people who were acting
under compulsive necessity for their own well-being their intervention does not eliminate liability for the defendant
Segler v. Steven Brothers Inc. (222 Cal. App. 3d 1585) (1990) (pg. 177)o Facts
A store owner opens his store each day and cleans the left behind dog poop that has accumulated over night; on this day the store owner did not get around to cleaning the sidewalk and a woman walking by slipped and fell
The woman sues the store owner for not keeping his sidewalk clean as is required under city law
The trial court finds for the plaintiffo Court of Appeals reversed
Evidence against the defendant was insufficient as a matter of law The jury was instructed that if they found that the store owner did not keep his
sidewalk clean, like the statute says, then he should be found negligent per se This was incorrect
The ordinance was not meant to create a standard of care owed to the public, but to the city
The intent of the statute was not to protect the public, but to make the business owner liable to the city for aesthetic reasons
Sellers and Non-Sellerso Keen v. Dominick's Finer Foods, Inc. (364 N.E.2d 502) (Ill. App. 1977) (pg. 477)
The plaintiff was pushing a shopping cart in the defendant's grocery store when the cart inexplicably tipped over; she was hurt when she tried to stop it from overturning and sued on a theory of strict products liability claiming that the cart was defective
No strict liability -- the grocery store is not in the business of selling or renting shopping carts, rather they just offer them as a convenience (the store was a user of the carts just like their customers and the customer could pursue a strict liability claim against the manufacturer or a negligence claim against the store)
o Peterson v. Lou Bachrodt Chevrolet Co. (329 N.E.2d 785) (Ill. 1975) (pg. 477) The plaintiff's decedent was killed when she was run over by an automobile that had been
purchased from the defendant's used-car dealership; the plaintiff brought suit against the dealership on theories of strict products liability, alleging the accident resulted from various defects in the car's brakes that were present when the car left the dealer's control
No strict liability -- one of the rationale for liability on wholesalers and retailers is to put pressure on them to choose a good manufacturer but since the car was used there was an intervening person and there was no allegation that the defect came from the manufacturer (once the car came into the control of the original customer the chain of distribution was completed)
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o Nutting v. Ford Motor Co. (584 N.Y.S.2d 653) (App. Div. 1992) (pg. 477) HP computer makes annually bought thousands of cars for its employees to use then
auctioned them off a couple of year later; the plaintiff bought one of the cars at auction then was injured when it stalled on the highway and sued HP on the theory of strict products liability
Strict liability -- HP regularly buys and auctions off cars and therefore this liability makes it so that the incentive of good business exists; the third restatement says that the business does not need to be the primary business if it goes beyond the casual occasional sale (HP sells computers primarily but they also auction these cars on a regular basis)
The defendant's driver was transporting a truckload of gasoline and even though he performed all the necessary safety checks the trailer came loose on the highway and fell to another street where the plaintiff drove over some spilled gasoline which subsequently ignited and killed her
o Washington Supreme Court held the defendant strictly liable Gasoline develops even greater dangerous qualities when it is carried as freight
Gasoline is highly likely to cause fire or explosion which would likely destroy evidence of any negligence
If the plaintiff can not rely on strict liability they must move to negligence but if all the evidence was destroyed then the plaintiff would not be able to show negligence
The hazards to third persons are so great as to be almost beyond calculation The transportation of gasoline in large quantities creates dangers that cannot be eliminated
by the exercise of reasonable care The fact that this is the only way to transport gasoline is irrelevant
The difference here between this case and American Cyanamid is that the transporter is the actual defendant in this case (although it is suggested that it may have not made a difference)
520 Factor (c) -- in this case the risk cannot be eliminated by the exercise of due care The defendant took all necessary safety checks but the incident still occurred
In this case, there is one single party that was obviously negligent (in American Cyanamid there may have been multiple parties that were negligent)
520 Factor (b) -- there was a death in this incident (magnitude of harm)Sindell v. Abbot Laboratories (607 P.2d 924) (Cal. 1980) (pg. 336)o Facts
Plaintiffs were injured as a result of a drug administered to their mothers during pregnancy with the intention of preventing miscarriages
Daughters of the mothers who took the medicine have vaginal and cervical tumor issues
The defendant companies were aware of the risks of the drugs as experimental medicine and did not properly label the drugs, adequately warn doctors who would prescribe the drugs, or follow FDA regulations concerning the drugs
It is taken as a matter of fact that the defendants should have known (or knew) that the drug was a carcinogenic substance
Defendants demurred to the complaint stating that the plaintiff was unable to make the identification of which defendant had caused her injury and therefore there could be no liability
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There is not an issue of duty or breach, rather a duty of causation The trial court dismissed the action
o California supreme court reversed Plaintiff places primary reliance on the cases dealing with alternative liability that hold that
is a party cannot identify which of two or more defendants caused an injury, the burden of proof may shift to the defendants to show that they were not responsible (Summers)
This case differs from Summers because there is a significant chance that none of the defendants were the ones whose negligence caused the injury
Though the collective defendants did represent a majority of the market Neither the plaintiff nor the defendant is in a notably better position to identify the actor
whose negligence caused the harm The absence of evidence is not the fault of the defendants, but rather from the
passage of time The court establishes that under the rationale of Summers the defendant does not
necessarily need to have greater access to information regarding causation Advances is science and technology create fungible goods which may harm consumers and
which cannot be traced to any specific producer There needs to be a remedy to harms caused by the changing times
The court holds that the proper solution is to measure the likelihood that any of the defendants supplied the product which allegedly injured the plaintiff by percentage which the company sold verses the entire production sold by the industry
Each defendant will be held liable for the proportion of the judgment represented by its share of the market unless it demonstrates that it could not have made the product that injured the defendant (burden shifts to the defendant)
Defendants argue that to hold them responsible is unfair and contrary to public policy because there is an absence of proof as to which one caused the injury
Court argues that it is fair because the liability will be directly proportional to the damages caused by each defendant
The court extends the theory of alternative liability to market share liability A modification of the rule in Summers is warranted because this involves fungible
goods which can not possibly be traced to any specific producer (through no fault of either party) so there must be some way to give relief in cases like this
Dissent There is an essential unfairness in holding only a small number of defendants, in this
case 5, responsible for the actions of an entire industry It hurts the industry as a whole (chilling effect)
There is an issue with plaintiffs who have the ability to sue or not If other states do not adopt this policy then the companies in the states that do will
need to take responsibility for the entire market The defendant's wealth and ability to pay damages should play no part in a decision
(deep-pocket theory of liability)Smith v. Cutter Biological, Inc. (823 P.2d 717) (Haw. 1991) (pg. 343)o Facts
Plaintiff, a hemophiliac, received multiple blood transfusions and claims to have contracted HIV/AIDS as a result of the blood manufacturers negligence in failing to screen donors and warn recipients
Plaintiff asserts his claim under market share theory of liabilityo The court allowed market-share liability
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The product is not necessarily as fungible as it has been required to be in other cases The plaintiff does identify the entirety of the market as defendants There is a strong deterrence incentive The court found that general state tort law would allow the action and recognized the
market-share theory of recovery to supply causation with modifications Since the court was faced with a minimal number of manufacturers, it believed that
the culpability for marketing the product was the better policy and advocated several liability, holding a particular defendant only liable for its market share
Smith v. Pelah, Hilary Term (20 Geo. 2) (pg. 402)o A dog had previously bitten someone and was kept anyway and when the dog was upset again in
the future it bit another person -- the defendant was strictly liable for the dogs second bite The animal which was originally mansuetae naturae had exhibited violent tendencies and
therefore could not longer be considered harmless The harm caused in the future must be of the same type as the violence exhibited in
the pasto Many states have replaced the common law approach with animal control statutes that hold a dog
owner strictly liable for any bites a dog inflicts, regardless of the dog's past record or reputationSoldano v. O'Daniels (141 Cal. App. 3d 443) (1983) (pg. 225)o Facts
Defendant owns two businesses and an employee of one of his establishments is told by a man that the plaintiff's relative was being threatened in the other establishment
The man asked to use the phone but was denied by the employee and the employee refused to call for help; the plaintiffs relative was subsequently shot and killed
The plaintiff brought suit against the owner of the two businesses The trial court dismissed the complain
o Court of Appeals reversed The use of a telephone in a public part of a business should not be refused for a legitimate
emergency call No innocent citizens would impose any risk The stranger's assertion of an emergency would not create a duty unless it was clear
that there was an imminent dangerStangle v. Fireman's Fund Insurance Co. (198 Cal. App. 3d 971) (1988) (pg. 225)o Facts
Plaintiff purchases a diamond ring with the intent to sell it for profit and asks a former girlfriend to do so for him
She finds a buyer for the ring and meets him at his "office" to make the transaction; the man disappears with the ring
While the theft is in progress, the former girlfriend attempts to use the buildings phone to contact the police but was stopped by the receptionist; when the police are finally reached it is too late
Plaintiff sues on the theory that the defendant had a duty, after being informed that a theft was in progress, to make its telephone available
Trial granted the defendant a directed verdicto Court of Appeals affirmed
There is a distinction between a public business and a private business area There is a difference between the value of a human life and a material object
The plaintiffs and defendants were in a car accident together at the fault of the defendants Though there were no initial bodily injuries, one plaintiff passenger began to exhibit
psychotic reactions and was soon after diagnosed with schizophrenia The doctor determined that she had a "prepsychotic" personality and that the
accident caused her psychosis Injured party and her parents sued for damages associated with her condition
o Liability found "eggshell skull" plaintiff -- the defendant has to take the plaintiff as they are
The psychotic tendencies were a pre-existing condition of the plaintiff and therefore because the defendant's actions led to the exacerbation of this condition there is liability
There may be adjustment for damages under the consideration that the plaintiff would most likely have developed the psychotic tendency with or without the accident
Struve v. Droge (62 How. Pr. 233) (N.Y. Sup. Ct. 1881) (pg. 108)o Facts
An apartment owner noticed smoke coming from the apartment of a tenant and broke in to investigate and potentially stop the fire; the smoke had a different source and the property was damaged in the process of the apartment owner coming in
Trial court gave judgment to the defendanto The court of appeals reversed
Because there was no actual public necessity the defendant is liable It does not matter to the court that it was a reasonable mistake or that there was no
actual intent to perpetrate a wrongSullivan v. Dunham (55 N.E. 913) (N.Y. 1900) (pg. 428)o Facts
The defendants were using explosives to remove a tree and one blast sent a section of stump flying onto a highway which then struck the plaintiff and killed her
The trial court instructed the jury that the plaintiff did not have to show negligence on the defendants' part in order to recover from them
The jury returned verdict for the plaintiffo The court of appeals held the evidence sufficient to support the outcome
This consequence is a reasonable expectable one -- the kind of harm is the same type that makes the activity dangerous (restatement section 519)
Plaintiff and both defendants were quail hunting when an errant shot by one of the defendants struck the plaintiff in the face
The trial court found that the defendants had been negligent in firing in the plaintiff's direction and entered judgment against both of them
The defendants appealed on the ground that the plaintiff failed to prove which of them fired the shot that hit him
o Court of appeals affirmed Both defendants were negligent toward the plaintiff and brought about the situation where
the negligence of one of them caused the injury The burden therefore lies with the defendants to absolve themselves if they can
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The defendants are in a far better position to offer evidence to determine which one caused the injury (analogous to Ybarra)
Prevents two negligent defendants from pointing the finger at each other and escaping liability
The plaintiff would need to argue that the traditional rules of causation in terms of negligence do not apply (plaintiff unable to know needed information) and therefore a case of alternative liability exists
If it were to come out that one defendant's bullet was certainly the one to cause the injury, the prima facie case would fall apart because the causation necessity of negligence would be lost (though the defendant was negligent, his negligence did not cause injury to the plaintiff)
It may be safe to say that, on average, a person who causes injury with their negligence is more reckless than someone who causes no injury with their negligence
Surocco v. Geary (3 Cal. 70) (1853) (pg. 107)o Facts
The mayor of San Francisco orders a house to be destroyed in order to stop a spreading wild fire; the family claims they should have had more time to get their belongings out
Trial court gave judgment to the plaintiffso California Supreme Court reversed
Public necessity is invoked in this case The plaintiffs were as much benefited from the actions as everyone else "The right to destroy property, to prevent the spread of [disaster], has been traced to
the highest law of necessity"Tarasoff v. Regents of The University of California (551 P.2d 334) (Cal. 1976) (pg. 243)o Facts
The plaintiff's daughter was murdered by a psychiatric patient who had disclosed to his psychotherapist his plans for the killing
The killer was detained for a short time by the police, then released when he seemed mentally stable
The plaintiffs sue the police for failure to detain the man and the psychotherapist for failure to warn the victim or her family
The plaintiffs argue that both parties had a duty to warn them Trial court dismissed the plaintiffs complaints
o Court of Appeals reversed in part and affirmed in part Affirmed that the police were in no way liable because there was no individualized special
relationship between them and the victim or them and the killer (no special relationship = no duty)
The police have a duty to the general public, no to specific individuals The police do not have the special skills of a therapist to determine when psycho
threats are legitimate or not Reversed and stated that the psychotherapist was liable because of the special relationship
that existed between him and the killer (special relationship = duty) There is an exception to the "no duty" rule where a special relationship exists The therapist failed to exercise "that reasonable degree of skill, knowledge, and care
ordinarily possessed and exercised by members of [that profession] under similar circumstances"
Reference to custom
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The court finds that the right to "protective privilege (patient/doctor confidentiality) ends where public peril begins"
There is no sufficient interest in not warning the victim or her family This precedent creates a disincentive….
For patients to fully divulge homicidal thoughts to their therapists in fear of their therapists telling others
For doctors to take on patients who are psychopathicTedla v. Ellman (19 N.E.2d 987) (N.Y. 1939) (pg. 173)o Facts
A man and his sister are walking along the side of a highway with no footpaths carrying a lantern at dark; the two are struck by a care driving on the highway and the man is killed, his sister injured
The sister brings suit against the driver of the car The defendant claims that the brother and sister were walking along the wrong side of the
road for the direction they were headed in and thus were violating a state law The plaintiffs claim that it was safer because of traffic to be on the side of the road
that they were on The trial court found the defendant liable due to his negligence; he appealed, saying that, as
a matter of law, the brother and sister should have been negligent as wello Court of Appeals affirmed
Though there was a law in place, it can not be construed so strictly that to follow it a person would need to put themselves into more danger than if they were to break it
The law was meant to protect people and therefore should be allowed some leniency when the breakers of the law are just trying to protect themselves
A man and his family miss the train and want to stay at the station overnight to wait for the next train because of a storm; the train station attendant forces the family to leave despite the fact that the man explains that his wife's health will be compromised if she is forced into the rain; she becomes ill and they blame the train station
The trial jury found for the plaintiffo Texas Supreme Court affirmed
Because the court can reasonably infer from the trial courts judgment that the defendant knew of the wife's condition and that the weather was bad enough to exacerbate this condition, it was essentially unlawful for him to force her out into the rain
o Ploof Analogy In both cases the plaintiffs claim the private necessity to be there and because they were
deliberately expelled by the defendant the defendant is liable for subsequent damageso Vincent Analogy
If the family sought refuge in the train station and the station incurs expenses to keep them there out of their necessity then the family would owe the cost of the expenses to the train station
Male high school student is driving home five female students when he falls asleep at the wheel and, despite the calls of the girls to try to wake him, he veers off the road and hits a tree stump, causing injury to the plaintiff
o Wisconsin Supreme Court found the driver (defendant) negligent per se
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Failing to heed to the bodies signs of sleep and ignoring those signs while driving a car must be negligent as a matter of law
The occurrence of sleep should have been reasonably foreseen An outside force causing the defendant to fall asleep would be different and
unforeseeable (i.e. seizure)o Analogy to Martin v. Herzog (buggy with no lights)
The actions of the defendant are never safe, therefore there is no safety trade-off that makes the action ok
Thompson v. County of Alameda (614 P.2d 728) (Cal. 1980) (pg. 246)o Facts
A juvenile offender, who has made previous threats that if released he will murder a child and has a criminal history involving violence toward children, is released and subsequently murders a young boy within 24 hours of his release
The victims parents (plaintiff's) file suit against the county alleging that they owed a duty to the community to warn the parents of young children that the juvenile offender was being released
The trial court dismissedo Supreme Court affirmed
No special relationship exists in this case (the victim was not a named victim) A warning would not have been helpful in this situation because it would either cause panic
or not have been taken as seriously when given to a broad section of the community Warnings of this sort would also hinder the rehabilitation and parole processes
Thompson v. White (149 So. 2d 797) (Ala. 1963) (pg. 373)o Facts
Plaintiff was injured when the defendant's car ran into hers Clowns were performing at a roadside gas station and had caused a mild distraction to the
plaintiff so she also sued the Gulf gas station for distracting the defendant The trial court brought verdict against the defendant driver (White) but sustained a
demurrer to the plaintiff's complaint against Gulfo The Alabama Supreme court reversed the judgment involving Gulf and remanded
The activity of the clowns naturally distracted the defendant driver because evidence reasonably supports that if the plaintiff was distracted then so was the defendant
White was not a free agent but acting under the influence of the clowns (Scott (Squib) acting under a third party influence)
White's negligence was a concurring cause of the accident and not an independent intervening cause which would insulate Gulf from liability
Tingle v. Chicago (14 N.W. 320) (Iowa 1882) (pg. 175)o Facts
The defendants train hits the plaintiff's cow on a Sunday Plaintiff sues because operation of a train on a Sunday is prohibited by law (not for
negligence) Trial court gave judgment for the plaintiff
o Supreme Court reversed The accident was not the result of the defendants negligence (there was no negligence) in
operation of the train and resulted from a situation for which he was not responsible and therefore he is not liable
Acting illegally does not necessarily create a tort case for negligence
Two tugboats towing barges lost them in a storm because they were unaware of the impending weather because of unworking radios on the tugboats
Trial court found the tugboats "unseaworthy" (meaning the defendants were negligent) Defendants argue that it is not customary to have radios on tugboats
o Court of appeals affirmed The court responds that "there are precautions so imperative that even their universal
disregard will not excuse their omission" Even if it is not custom to have a radio, it is so necessary to have one that custom is
disregarded Because some tugs have radios and deemed it necessary those tugs are right and the
others standards are too slack Hand Formula
Cost of equipping boats with radios is less than the cost of damages as the result of the storm, then the radios need to be there or there is negligence
Customs are a good starting point because they have historical basis They reveal what the parties close to the situation have already come up with on their
own (what has been developed by those who are most familiar with the situation) Customs can not be the standard because if one just adheres to custom there is no
incentive for innovationUltramares Corp. v. Touche (174 N.E. 441) (N.Y. 1931) (pg. 278)o Facts
Stern hired the defendants, an accounting firm, to prepare and certify a balance sheet for the condition of their business; the defendants presented Stern with a balance sheet that they knew they would reference in their borrowing and other financial dealings
The plaintiff made loans to Stern in reliance on the balance sheet prepared by the defendants; Stern was in fact insolvent and could not pay back the loans
The defendant negligently has failed to discover that Stern had doctored its books The jury returned verdict for the plaintiff; defendants appealed
o Appellate court reversed They held that the trial court should have dismissed the negligence count
If negligence were to exist it would expose accountants to a liability in an unknown amount for an unknown time to an unknown class
Unlike Glanzer, this preparation of information was not primarily for a third party It was primarily for use by Stern in its business development and was only collaterally
for the use of those who Stern did dealings with (the privity was with Stern, not the others)
The defendants could not reasonably predict the scope of their liability if they were negligent (they could not reasonably foresee who the potential plaintiffs would be)
More like H.R.Moch than Glanzer If there has been neither reckless misstatement nor insincere profession of an opinion, but
only honest blunder, the ensuing liability for negligence is one that is bounded by the contract and is to be enforced between the parties by whom the contract was made
The parties could have gone beyond the default rules of tort law and contract new rules that will deal with foreseeable risk (defendants could explicitly state no liability to avoid suit like this while the plaintiffs could impose liability in the contract)
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United States v. Carroll Towing Co. (159 F.2d 169) (2d Cir. 1947) (pg. 140)o Facts
A barge is chartered to a company (bargee included) and then tied to the end of a pier. A tug came by and needed to untie the barge to get by, so they (harbor master) did so and did not tie it back up properly. The barge floated away from the dock and ended up sinking. The bargee was not on board at the time of the sinking
The tug boat crew is found negligent for not properly retying the boat and they are partially responsible for the damages
o Appellate court is deciding whether the bargee being absent from the barge is negligent as well (determine that he is indeed)
Hand Formula Applied (Bargee) P = probability the boat will break away
Higher because it is NY harbor during WWII so it is very busy L = gravity of the resulting injuries
The barge and all its cargo sinks B = burden of adequate precautions (requiring the bargee to be present)
The bargee was absent for 21 hours, some of those being the work day, so he is negligent because he should have been there during working hours
Hand Formula Applied (Harbor Master) Only difference
B = the time it would take to retie the boat properly United States v. Lawter (219 F.2d 559) (5th Cir. 1955) (pg. 231)o Facts
The plaintiff and his wife are boating when their ship sinks; they are stuck in the water (4 feet deep with strong waves) with no boats nearby to help them
They are spotted by a U.S. Coast Guard helicopter on patrol and an attempted rescue ensues A crew member lowers a cable and retracts it before the plaintiff's wife can secure
herself in the harness; she is raised to the point of the helicopter but falls before she can be brought into the vessel; she dies from the fall
The plaintiff sues the U.S. claiming that his wife's death was due to their negligence in allowing the man to operate the cable when he clearly was not qualified to do so
The district court brought verdict for the plaintiff The defendant appealed, stating that the complaint did not state a good cause of action
o Court of Appeals affirmed The Coast Guard place the deceased in a worse position than she was originally in and
negligently caused her death When they voluntarily attempted rescue they took on a duty of care not to make her
dangers worse Once responsibility for rescue it assumed, it must be done with due care
Van Alstyne v. Rochester Telephone Corp (296 N.Y.S. 726) (City Ct. 1937) (pg. 36)o Facts
The defendant left lead droppings on the land that they had consent to be on in order to do work, but the lead droppings left behind cause the plaintiffs dog's to die
The plaintiff sued on a count of negligence but it was dismissed because the consequence (that the dog would eat the lead) was unforeseeable
The plaintiff also sued on a count of trespass which the court found for in favor of the plaintiff
o The workers were found to have essentially trespassed when they left behind the lead
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There was consent for the company to be on the land to repair the wire, but not to leave dangerous lead droppings behind
The defendants exceeded the scope of the consent They became intruder's and liable for the consequence whether the results
could or should reasonably have been foreseenVan Vacter v. Hierholzer (865 S.W.2d 355) (Mo. App. 1993) (pg. 586)o Facts
The plaintiff ignored his doctors orders to change his lifestyle to improve his heart, did not take his prescribed medication and did not visit the doctor when he was told to do so
The plaintiff went to the doctor complaining of chest pains, was sent home as ok and died a few hours later
Plaintiff's wife sued the doctor claiming she was negligent in sending her husband home The defendant asked that the jury be instructed that it could reduce any recovery for the
plaintiff by the extent to which the plaintiff's death was caused by his own negligent failure to follow the instructions of his doctor for several years
The jury was instructed in this way and said that the defendant was negligent but that the death of the plaintiff was caused by 93% his own negligence and thus no damages were rewarded
Plaintiff argued that the jury should not have been instructed to consider comparative negligence
o The court of appeals reversed and remanded The court agreed and held that although the decedent had a nonchalant attitude about his
health, this indifference and consequent inaction was not the significant and legal proximate cause of the decedent's death -- the proximate cause of his death was the doctor sending him home when he should not have (similar to Fritts)
The court held that the jury instruction was bad because it invited the jury to apportion fault to the decedent for his death on the basis of evidence which was not a proximate cause of his death
There is not necessarily a need for incentives through the tort system in this case because the threat of death serves as a strong incentive and if this is not enough then it is doubtful that diminishing the damages awarded will be enough
A man built a haystack near the edge of his property and though his neighbor warned him of the fire hazard that it posed, he did not remove it and only built a chimney through it. It caught fire and burned down a portion of his neighbor's property
Jury finds for the plaintiff under the idea that the defendant was bound to reasonable caution
The defendant appeals based on the argument that he "ought not be responsible for the misfortune of not possessing the highest order of intelligence"
o Court rejects and holds for the plaintiff The court refuses to customize the judgment and capability standards for ever case
Must adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe
Vaughan v. Miller Bros. "101" Ranch Wild West Show (153 S.E. 289) (W. Va. 1930) (pg. 403)
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o Facts An ape on exhibit at the defendants circus bit off the plaintiff's finger The plaintiff sued to recover his injuries and claimed no negligence but that the defendant
was strictly liable for the damage done by his animalo W.V. Supreme court disagreed (this decision represents a minority view among courts)
It the right of every person in this country to exhibit wild animals and injury arising from these animals must stem from negligence in restraining them
The act of the defendant was essentially a lawful activityVillage of Carterville v. Cook (22 N.E. 14) (Ill. 1889) (pg. 371)o Facts
Defendant village maintained a sidewalk 6 feet off the ground with no railings and the plaintiff, walking with all due care, was jostled off the sidewalk by another pedestrian
The jury returned a verdict for the plaintiff and the defendant appealedo Held for the plaintiff
Vincent v. Lake Erie Transportation (109 Minn. 456) (1910) (pg. 100)o Facts
Ship docks and must stay because of a storm; the ship crew kept the boat docked and repeatedly refastened it to the dock which caused damage to the dock
The plaintiff was liable for damages as awarded by a juryo Court of Appeals affirmed
The boat had a right to be there to protect itself but it does need to pay for the damages (no trespass but liable for damages)
Though the boat owner was acting reasonably, he was favoring his own property over the other's property so he is still liable
If he had let the boat drift freely and then damaged the dock, he would not be liable
Dissent Because the boat owner arrived legally and had no way to leave safely, the dock
owner is liable for damageso Defense of Property
If the dock owner wanted to untie the boat in order to protect his dock from the damage by the boat then he would need to justify that his dock was more valuable than the boat to not be liable
Vosburg v. Putney (80 Wis. 523) (1891) (pg. 1)o Facts
One student kicks another student in school after class has been called to order and the impact exacerbates a preexisting injury which causes the leg to become lame
No evidence was presented that states the kicker meant to cause serious injury Special Verdict was handed down
Set of answers to more specific questions Shows the basis of the jury's conclusions and thus makes it easier for the court
reviewing the verdict to know what the jury was thinkingo Court of Appeals affirmed
Even thought the defendant did not intend harm, the act then intended was unlawful and therefore the result was unlawful
Relevant that the kick happened in the class and not at recess (playground is a place where certain liberties are taken and there are implied rules of the classroom and the playground)
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The act was in violation of the decorum of the school and was not in any way invited
A crab fishing boat sinks on a clear day; the sinking is essentially unexplainable The plaintiff claims the ship was unseaworthy because a large crab tank made it unstable
This claim is based in ordinary negligence in that the plaintiff is claiming a standard of care was not met
The plaintiff also claims res ipsa loquitor Trial court enters a verdict for the defendant
o Court of Appeals affirms The trial court was correct in stating that there was no evidence that the ship was
unseaworthy (which would have had to have been established as of its last departure) Because no evidence of unseaworthiness exists, there is no reasonable belief of negligence
on which to base the claim for res ipsa loquitor The sea itself is dangerous and therefore there is an inherent risk that exists without
negligence being a factorWanzer v. District of Columbia (580 A.2d 127) (D.C. App. 1990) (pg. 255)o Facts
A man calls 911 complaining of headaches and the operator suggests that it would be logical to take an aspirin as opposed to getting an ambulance
The man is found by his neighbor several hours later and after being transported by ambulance to the hospital it is determined that he has suffered from a stroke and soon dies
The man's daughter (plaintiff) sues D.C. claiming it breached its duty by negligently failing to train and supervise dispatchers
City (defendant) files a motion to dismiss which is granted by the trial courto Court of Appeals affirms
The court held that the city could not have been held liable for the dispatcher's failure to send an ambulance because the city owed the father no special duty greater than that owed to the public at large
By just answering the call, the dispatcher is not undertaking a duty to provide care to the plaintiff
One of the defendant's railroad cars derailed and spilled its cargo of gasoline into the streets The gasoline was ignited by a third party
It is unknown whether the man ignited the gas on purpose or by accident The trial court gave a directed verdict to the defendant railroad
o Court of appeals reversed and remanded The court determined that liability depended on how the third party came to start the fire
(this was to be a question of fact for the jury) If the third party accidentally started the fire, then liability is on the defendant If the third party purposely started the fire, there is no liability for the defendant
It is foreseeable that someone would accidentally start the gasoline on fire, but it is not foreseeable that someone would start it on fire maliciously (commit arson)
Weirum v. RKO Radio General, Inc. (539 P.2d 36) (Cal. 1975) (pg. 223)o Facts
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The defendant radio station hosts a contest in which contestants must locate a certain disc jockey in various city locations in order to win prizes
In an attempt to win, two teenagers race along a freeway at 80 mph and cause the death of a fellow driver
Plaintiff sues one teenager (who went on to win a prize after the accident) and the radio station
Trial court jury brought verdict for the plaintiffs, the defendants motioned for a judgment n.o.v. and were denied; defendants appealed
o Supreme Court affirmed The defendants appeal is based on a section of the Restatement that is grounded in an
affirmative act by the defendant that created undue risk of harm Liability in this case is not based on the defendant's failure to intervene (affirmative
act) (nonfeasance) but on its creation of an unreasonable risk of harm (misfeasance) The harm that results from the goading in this situation is inflicted upon a third party
(plaintiff), not the actors who were goaded (teen drivers)Welge v. Planters Lifesavers Co. (17 F.3d 209) (7th Cir. 1994) (pg. 466)o Facts
A third party purchases a jar of peanuts for the plaintiff and cut off the barcode for rebate purposes; the plaintiff uses them once without incident and then, while he is closing the jar the second time, it shatters and his hand is injured
The plaintiff brings suit against K-Mart (who sold the peanuts), Planters (who packaged the peanuts in the jar) and Brockway (who made the jar)
The defendants moved for summary judgment and it was granted by the district judge because the plaintiff had failed to exclude possible causes of the accident other than a defect introduced during the manufacturing process
o The court of appeals reversed and remanded It was not a question that the jar was defective but when the defect was introduced
The defect must have been introduced before purchase when the jar was in the control of the defendants (all of the evidence presented by the plaintiff must be viewed as true and all evidence must be viewed in favor of the plaintiff)
The defendants argue that the third party use of a knife on the jar may have led to the defect
The court find this to be a common thing to do The court further finds that because the defendants had initiated the rebate process
they had invited the third party to use a knife on the jar K-Mart created the incentive program that encouraged the removal of the label
from the jar (needed to use a knife to take it off properly) The other defendants may not have been directly involved in the
promotion but the alleged misuse has not been proved to a level that can justify summary judgment
Invited misuse is no defense to a products liability claim because invited misuse is not misuse
Misuse is not a defense for strict liability unless the misuse was the sole cause of the defect
If the misuse is not the sole cause then it may only reduce the damages The defendants argue that the jar could have been damages while sitting on the shelf
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The plaintiff in a products liability suit is not required to exclude every possibility that the defect which led to the accident was caused by someone other than one of the defendants
Relation to Res Ipsa Loquitur An accident can itself be evidence of liability if it is the kind of accident that
would not have occurred but for a defect in the product and it is reasonably plain that the defect was not introduced after the product was sold
An accident happening at all is evidence that the product was defective when sold
It is too remote to expect a person to lock up their cans and jars -- it is too remote to expect a rational person to take this precaution
Experts from both sides agreed that the jar must have contained a defect but they could not find the fracture that had precipitated the shattering of the jar
The court reasons that the evidence shows that the probability that the defect which caused the accident happened after purchase is very small and therefore the probability that the defect was introduced by one of the defendants is very high
The plaintiff's evidence is strong enough to warrant a fact trying by jury and not weak enough to warrant summary judgment
With respect to K-Mart it does not matter who made the defect, it only matters that they sold a defective product
If trial evidence shows that the defect was caused by a K-Mart employee then liability would be solely for K-Mart (liability is only for those who handle the product after it becomes defective)
With respect to Planters it does not matter who made the defect, it only matters that they distributed a defective product
If trial evidence shows that the defect was caused by a Planters employee, liability would be for K-Mart and Planters
The strict liability element in modern products liability law comes precisely from the fact that a seller subject to that law is liable for defects in his product even if those defects were introduced without the slightest fault of his own for failing to discover them
Wendland v. Sparks (574 N.W.2d) (Iowa 1998) (pg. 328)o Facts
A cancer patient went in to cardiac arrest and her doctor did not attempt to resuscitate her as an act of mercy; her husband sued the hospital for negligence on the doctrine of lost chance
Trial court gave summary judgment to the defendanto Iowa Supreme Court reversed
Held that a victim who suffered from a pre-existing condition and is then subjected to another source of injury may have a claim for the second event
If it were not for the second event they may have survived the first Two lost chances in this case
Efforts of resuscitation would have been successful She would have been cured of her disease
The jury must examine the percentage chance of survival and then take the damages and award that percent
Where there is more than one lost chance, the percentages of each of those chances are considered in awarding damages
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Werth v. Taylor (475 N.W.2d 426) (Mich. App. 1991) (pg. 26)o Facts
Woman is in the hospital and giving birth; she will die without a blood transfusion, which she has mentioned she does not want, though her husband was not clear about the same matter
Trial court gave summary judgment to the defendantso Court of appeals affirmed
Due to the equivocal nature of their initial refusal (I don’t want the blood, but I don’t want to die) and the fact that the refusal was made when the person's life was not in immediate danger
Consent is often implied in emergency procedures when the person is not able to give their actual consent because of their condition
White v. Levarn (108 A. 564) (Vt. 1918) (pg. 175)o Facts
Two men go hunting on a Sunday and one accidentally shoots the other Plaintiff sued claiming that hunting and discharging firearms on a Sunday is illegal Trial gave judgment to the defendant
o Supreme Court reversed Because the act that caused injury to the defendant was unlawful in its nature and was the
result of the defendants negligence, he is liable for damages it causedWhite v. University of Idaho (786 P.2d 827) (Idaho 1989) (pg. 4)o Facts
Piano lesson taking place and the D (student) is touched by the P (piano instructor) during the lesson in order to demonstrate something and the touch causes a freakish injury that leads to a suit
The defendant was found liable (P filed for summary judgment (no reasonable jury would decide against them) and the D was found liable)
o Court of appeals affirmed In relation to Vosburg, that case states that the touching must be "wrongful"
The student states that the act of the contact was not something that she would have consented to
The court ruled that that kind of contact was not what could be reasonably expected in the context
What is the plaintiff communicating and what would a reasonable person communicate in this situation
Williams v. Hays (143 N.Y. 442) (1984) (pg. 122)o Facts
Ship captain is on desk for 48 hours or more trying to save his ship from a storm. When he is finally able to go below desk he takes a dose of medication to fight malaria that he thinks he contracted. He did not eat or sleep. He then exercises poor judgment and ends up sinking the ship. He claims insanity because of exhaustion and illness.
Jury instructed "if the defendant was insane then he is not liable, if he was not insane then he was liable"
Jury was incorrectly instructed The trial judge gave directed verdict for the plaintiff which the defendant appealed
o Court of appeals reversed and remanded No man can be expected to do the impossible (perform to the highest and most rational
degree under that level of stress)
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Though insanity is not a defense, the defendant in this case did all he humanly possibly could and his temporary insanity was caused solely by the storm which he was fighting
The irrational action was a result of carrying out his duties Was unable to foresee that he may go into an insane state (not normally prone to
bouts of insanity)Williams v. United States (747 F. Supp.697) (S.D.N.Y. 1990) (pg. 540)o Facts
The plaintiff was a former inmate at a federal prison; he was diabetic and contracted a bacterial infection in his foot which was misdiagnosed by the prison's medical officer
The foot eventually had to be amputated The federal judge found the government liable
o Assessment of damages The plaintiff was 48 at the time with a like expectancy of 24 more years
He suffered phantom pain, blisters and complications with his prosthetic He was unable to perform certain activities after the procedure He was a long-time inmate
Drugs, alcohol, psychopathology, no job, diabetes, smoke The plaintiff requested $1.5 million but was awarded $500,000 (without any offset for
comparative negligence)Wilton v. City of Spokane (132 P. 404) (Wash. 1913) (pg. 447)o Facts
Defendant's hired a partnership as independent contractors to build a street and the partnership needed to use dynamite at one point and left behind an unexploded piece which was paved over and later drilled into causing an explosion
The plaintiff sued the city arguing that it was responsible for the negligence of the partnership in leaving behind the dynamite
o Washington supreme court held for the city The leaving of the dynamite was pure negligence There is no way that the city could have known that the dynamite was there The activity is inherently dangerous and the harm was wholly collateral to the danger of the
activity Wolf v. American Tract Society (58 N.E. 31) (N.Y. 1900) (pg. 213)o Facts
A man is on the street near a construction site when he is hit on the head with a falling brick The plaintiff brings suit against 2 of 19 construction workers (independent contractors)
because he was unable to identify which man in particular had dropped the brick Trial court dismissed the complaint
o Court of Appeals affirmed Some proof must be given to enable the jury to identify who committed the wrong
Because the men are independent contractors they are not responsible to each other and not involved in a distinctly collaborative act
Therefore would be unable to prove who did cause the harm Distinction from the barrel falling case because they are not all employees of a
centralized control Distinction from medical malpractice above because there is no suspicion of a
"conspiracy of silence"
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It is assumed that the plaintiff did suffer injury because of someone's negligence, but because the person is completely unidentifiable there must be no redress rather than an innocent person be held responsible
The chance of punishing an innocent man is too high Over deterrence may create disincentives for socially productive activities
If every man is going to be liable, then men may not want to work on construction anymore
We do not want to compel all workers to collaborate with each other in order to attempt to avoid liability
Dissent The rule itself was founded upon a necessity with the goal of protecting the public and
should not be abandoned because a multitude of people may be responsible for the harm
Woodall v. Wayne Steffner Productions (20 Cal. Rptr. 572) (Cal. App. 1962) (pg.599)o Facts
The plaintiff was a stunt man who was hired by the defendant company to parasail behind a car driven by a driver hired by the defendant
The plaintiff was assured by the driver that he would follow the regulations to assure safety but he did not and caused the plaintiff to crash and be injured
The trial court entered a verdict for the plaintiff The defendant appealed claiming that the plaintiff should be barred from recovery by
assumption of risk on his parto Court of appeals affirmed
The plaintiff assumed the risk of dangers that were not directly associated with the driver's negligence
The plaintiff was assured repeatedly as to the competency and care of the driver to be furnished by the defendant
The court held that assumption of risk must be free and voluntary If it clearly appears from the plaintiff's words or conduct that he does not consent to
relieve the defendant of the obligation to protect him, the risk will not be assumed If the plaintiff surrenders his better judgment upon an assurance of safety or a
promise of protection, he does not assume the risk unless the danger is so obvious and so extreme that there can be no reasonable reliance upon the assurance
The plaintiff did not assume the risk that was the proximate cause of his injury The risk that caused the injury was out of the scope of his assumption of risk
Woodbridge v. Marks (45 N.Y.S. 156) (N.Y. App. 1897) (pg. 90)o Facts
Man goes onto another's property and is attacked by watchdogs when he strays from the path (it is dark and he gets "lost"), the dogs can not reach the house or the walkway when they are chained
The jury brought in a verdict for the plaintiff and the court entered judgment upon ito Court of appeals reversed
The defendant has a right to keep his property safe and he took precautions in his method of doing so
First purpose of the dog is to scare and protect then attack (unlike with the spring gun where the gun's first purpose is to shoot)
Designed for a means of deterrence not a means of revenge or violence There is a certain degree of notice (visibly seeing the dogs, hearing them)
Man tries to rob a convenience store and the owner shoots him while the robbery is in process
Jury brought verdict for the defendant o Nebraska Supreme Court affirmed
Must be considered that the plaintiff has already committed assault and threat of harm before the battery takes place
Was the retaliation proportional to the crimes which had already taken place There was no actual threat of further harm at the time of the shooting There was also no other alternative means to prevent and stop the robbery at
that timeYania v. Bigan (155 A.2d 343) (Pa. 1959) (pg. 219)o Facts
Defendant was working on a coal-strip mining operation where he created large trenches (16 to 18 feet deep), one that contained water (8-10 feet)
Defendant was prepared to pump the water out of the trench and asked for the assistance of the plaintiff's husband and another man
Defendant and the third man were in the trench where the pumping pipe was when the plaintiff's husband jumped into the trench and drowned
The plaintiff filed three charges, claiming the defendant was negligent...1. *By urging, enticing, taunting and inveigling Yania to jump into the water2. By failing to warn Yania of the dangerous conditions3. *By failing to go to Yania's rescue
Defendant filed preliminary objections (demurrers (motion to dismiss) (admit the facts as true)) which were sustained by the lower court (trial)
o Appellate Court affirms The defendant had no legal duty to save the deceased (no affirmative act) The deceased was a man of full mental abilities and therefore he was not goaded into the
water (count 1 of negligence) The mere fact that the defendant saw the deceased in the position of peril in the water did
not impose on him any legal duty to come to his aid (count 3 of negligence) because he was not responsible for the jump to begin with
The result was not the consequence of any conduct by the defendanto What if….?
Bigan encourages Yania to jump into the water knowing that it is too shallow to do so Battery case (intentional harm)
Bigan encourages Yania to jump into the water without knowing that it is too shallow to do so
Negligence (unreasonable assumption that the water is safe) Contributory Negligence (Yania should have checked the water for himself; was he
reasonable in trusting the statements of Bigan?)
Yazoo & Mississippi Valley Railroad Co. v. Gordon (186 So. 631) (Miss. 1939) (pg. 445)o Facts
A carload of cattle was being shipped by railway and Yazoo hired a third party to unload and hold the cattle while they waited for a connecting train; one steer got loose and gored the plaintiff
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o The Mississippi supreme court held for the plaintiff The steer was a domestic rather than a wild animals and that the defendant therefore
should be held liable if the steer's escape was caused by negligence The court rejected the argument that the steer escaped while under the control of an
independent contractor Yazoo owed a duty to the public to prevent the steer from being at large and could
not delegate the performance of this duty to another and escape liability If the activity is inherently dangerous (called a peculiar risk in the Second Restatement 416)
then the employer cannot delegate the duty of care to a third partyYbarra v. Spangard (154 P.2d 687) (Cal. 1944) (pg. 208)o Facts
The plaintiff was admitted to the hospital for a routine appendectomy but experienced severe and debilitating shoulder pain after the operation, which non-defendant doctors said was most likely the result of some trauma or injury by pressure
The plaintiff's theory is that the lack of his ability to produce evidence provides a case of res ipsa loquitor
The defense argues that there are too many defendants (multiple doctors, nurses and the hospital owner) to place blame and too many instruments in play to know which defendant controlled the one that may have caused injury
The trial court entered judgments of nonsuit for all of the defendantso Court of Appeals reversed
Hold that where a plaintiff receives unusual injuries while unconscious during an operation, all defendants who had any control over his body or the instruments which might have caused the injuries may be called upon to [give an explanation of their conduct]
If the doctrine was not applicable then an unconscious patient who is injured during a procedure would have to rely on a doctor or nurse to disclose who was negligent during the procedure
This chance is given when the burden of proof is shifted (someone needs to fess up) If no one knows anything, there will still be liability (equality of ignorance is not an
excuse) Provides an incentive for people to hold each other accountable (deterrence
emphasis) If the doctrine was not applicable, then the only fair alternative would be to apply strict
liability With res ipsa the defendant has a chance to prove they were not negligent With strict liability, the defendant has no chance to prove they were not negligent
Three Part Test Applicability Has no problem satisfying 1 or 3 When it comes to 2
Plaintiff is unable to identify a specific instrumentality or the defendant who had exclusive control of it
Defendant Court says that every defendant was responsible to exercise
ordinary care The employer is responsible for his employees The doctors are responsible for the nurses under them
The control at one time or another of every instrumentality was under the control of every defendant
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Instrumentality It is enough that the plaintiff shows injury resulting from an external
force applied during the operation The number of people in whose care a patient is placed is not excuse for negligence
