Torts Cases

Torts Cases

1-12-04

Hossenlopp v. Cannon (S.C. 1985)

General Facts: 4 year old (H) was bitten by dog (C‘s) and sustained 19 puncture

wounds which required stitches, surgery, and hospitalization. H and friend were at a

babysitters watching sitter‘s dogs inside a fence. C‘s dog charged. Boys tried to climb

fence. Dog grabbed H, and he fell to ground where he was injured. C said that the dog

had been violent once, but the injury to the 6 year old then was only a minor scratch. C

also said that dog could not be bound by a fence (would climb over it), and that the only

way to truly constrain the dog was using a chain.

Case History: Liability assessed for H by summary judgement (federal-like

standard). Damages were left to the jury.

Cause of Action: Negligence (later converted by S.C. S.Ct to strict liability)

Negligence: (1) Duty of reasonable care; (2) Breach of that duty; (3) Causation

(both factual and proximate); (4) Resulting Damages.

Strict Liability: (1) Behavior covered by Strict Liability; (2) Causation; (3)

Resulting Damages.

Law: Dog-bite law (old and new for S.C.)

Old dog-bite law: Domestic animals are not considered inherently dangerous.

Duty of care must be established by the dangerousness of the animal that was

known or should have been known by the owner. ―The negligence that imposes

liability upon the owner is the keeping of a dangerous animal with knowledge of

its dangerous tendencies, or in the failure to restrain it from injuring persons...‖

New dog-bite law: The owner of any dog (dangerous or not) that bites a person

either on public property or private property that the victim is lawfully upon

(including the dog owner‘s own property) is liable for those injuries. UNLESS,

the victim knowingly and voluntarily invites attack upon themselves OR without

reasonable necessity, exposes himself to the danger. From CA law.

Other Opinions: Justice Harwell would prefer the old law requiring knowledge

of dog‘s dangerousness until such time that the legislature changed the law. NOTE: The

CA provision cited by the majority was derived by statute, not common law.

Justice Gregory would not use this case to change the law. NOTE: The S.C. S.Ct

is changing the dog-bite law by affirming a judgment that was reached under the old law

soundly.



Crisi v. Security Insurance Co. of New Haven (CA 1967)

General Facts: Mrs. Crisi owned an apartment building in which Mr. and Mrs.

DiMare lived. Mrs. DiMare fell through an outside staircase and sustained injuries and

developed a psychosis from the fall. DiMares sued C for physical and mental injuries for

400K. C had general liability insurance from Security for 10K. The insurance policy

required that S defend C and handle the claim. Lawyers for S and DiMares agreed that IF

a jury found for Ds on psychosis, then the damages would be at least 100K.

Psychologists were found both supporting and not supporting the mental claim as the

result of the fall. Ds proposed to settle for 10K, but was rejected. S was willing to pay

no more than 3K for physical injuries and nothing for mental. S later rejected a 9K

settlement offer for which C agreed to pay 2.5K.

A jury awarded Ds a total of 101K (Mrs. 100; Mr. 1). S paid 10K. The remaining

was settled by C by 22K, a 40% interest in the property, and the assignment of C‘s claim

against S. Later, C became indigent. C worked as a babysitter and rent was paid by

grandchildren. C became depressed and attempted suicide. C also suffered a general

decline in health. C is said to be a 70 year old immigrant widow. C then brought this

claim against S for insurance co. bad faith.

Case History: At trial, jury awarded C 91K for the adverse judgment and 25K for

pain and suffering.

Cause of Action: Insurance Co. Bad Faith

Insurance Co. Bad Faith: (1) Insurance Policy Covered by Claim; (2) Bad Faith

by Co.; (3) Resulting Damages.

Law: I. Rejection of settlement offer within policy limits as bad faith and

existence of a bad faith cause of action.

Rule from Comunale v. Traders & General Ins. Co.: (1) There is an implied

covenant of good faith in every contractual relationship including insurance Ks.

Neither party will do anything to injure the other‘s ability to receive the benefits

of the K. (2) One of the common benefits and practices under insurance Ks is to

promote and effectuate settlements. (3) Although not covered by express terms,

the insurer must settle appropriate cases pursuant to the implicit good faith

agreement. (4) In determining whether to settle, the insurer must consider his

own interests as well as the interests of the insured. (5) When there is a great risk

of judgment beyond the policy limits and settlement is a reasonable way to keep

the judgment within the policy limits, the insurer must settle the claim.

Another formulation of Comunale rule: ―Liability based on an implied covenant

exists whenever the insurer refuses to settle in an appropriate case and that

liability may exist when the insurer unwarrantedly refuses and offered settlement

where the most reasonable manner of disposing of the claim is by accepting the

settlement.‖

Standard for appropriate settlement: ―Whether a prudent insurer without policy

limits would have accepted the settlement offer.‖

Suggested rule from amicus curiae: Whenever an insurer receives an offer to

settle within the policy limits and rejects it, the insurer should be liable in every

case for the amount of any final judgment whether or not within the policy limits.

The court comes up with some pros (simplicity, no more ―gambling‖ with

insured‘s money, won‘t cost any more for insurance companies than present law,

and provides simple justice since a conflict of interests exists so the insurer and

insured will stay in the same boat together), but does not pass judgment on the

suggested rule b/c the existing law covers C‘s claim against S.

II. Pain and suffering damages can follow from the bad faith liability.

When case presents both K and Tort COA, P may chose either to pursue.

Every wrong has a remedy, and a victim should be compensated for all proximate

harm caused by wrongful acts of D.

Tort damages may exceed injuries which were foreseeable or anticipated.



Lambertson v. U.S. (2d Cir. 1976)

General Facts: L worked for Armour & Co. by unloading meat shipments at the

Syracuse plant. On one occasion (8/30/72), L was unloading meat when U.S. Dept. of

Ag. meat inspector, William Boslet, jumped on his back, pulled L‘s stocking hat over L‘s

eyes, and rode L piggyback. As a result, L fell forward onto meat hooks which were 6

inches in front of him. L suffered severe injuries to his mouth and teeth.

Case History: Case was dismissed by the District Court for lack of jurisdiction

under the Federal Tort Claims Act (28 U.S.C. 2680). L appealed.

Cause of Action: Battery ―dressed up as negligence.‖

Battery: (1) Bodily Contact; (2) Contact was offensive; (3) D intended to

make the contact–an intent to injure is not required, only the intent to make the

contact.

Negligence: (1) Duty of due care; (2) Breach of that duty; (3) Causation (both

factual and proximate); (4) Resulting injuries.

Law: The requisite intent for battery: The intent required for a battery is not the

intent to injure or cause injuries to the victim. Rather, it is the intent to cause the contact

which was offensive to the victim.

Intent in general may be shown by either (1) purpose or (2) knowledge with

substantial certainty that D‘s conduct will cause the prohibited result.



Ranson v. Kitner (Ill. App. 1888)

General Facts: K‘s dog was traveling in the woods where R was hunting wolves.

The dog appeared to be a wolf and R shot and killed it. R‘s defense was that he had a

good faith belief that the dog was a wolf because of the dog‘s appearance.

Case History: A jury awarded K the value of the dog ($50). R appealed based on

a theory that his mistake eliminated liability.

Cause of Action: Conversion

Conversion: (1) Intentional Act; (2) Destruction of property OR interference with

ownership to make it‘s value; (3) Causation; (4) Damages

Law: The extent to which mistake may eliminate liability: A person will still be

liable for their intentionally caused results regardless of whether or not they are mistaken

about the tortious nature of their conduct.

If, however, the intent for the result is lacking, then the mistake may eliminate

liability. Example: A person who shots at a target, but hits a person who is unknowingly

behind the target is not liable for an intentional tort. The intention was to shoot at the

target and not the person. Therefore, the shooters mistake about the existence of the

victim will eliminate intentional tort liability.



McGuire v. Almy (Mass. 1937)

General Facts: M was an insane person, and A was the nurse who cared for her

for ―nearly 14 months.‖ A knew that M was insane, but physically well. Over the course

of care, M had a few odd spells of violence, but nothing major. One day (4/19/32), M

became very violent in a room by herself. After attempts by A, the maid, and M‘s

brother-in-law, A went into the room to calm M. Then, M struck A on the head with a

lowboy (dresser) leg. A suffered injuries.

Case History: Jury verdict below for A for $1500. M appealed contending that a

directed verdict should have been issued on one of two grounds: (1) M was insane and

not liable and/or (2) A assumed the risk of injury through her employment and coming

into the violent scene.

Cause of Action: Assault and Battery

Assault and Battery: (1) Bodily contact; (2) Contact was offensive; (3) D

intended that contact.

Law: To what extent may the insanity or mental capacity of a person affect

liability: An insane person will be held liable for tortious conduct in the sane manner as a

―normal‖ person. The only way that the person‘s mental capacity becomes relevant is the

extent to which that person is capable and did form the required intent for the intentional

tort claimed.

The extent that consent may avert liability: The mere intentional incurring of the

risk of injury is not enough to prevent liability on this basis. ―The degree of danger, the

stress of circumstances, the expectation or hope that others will fully perform the duties

resting on them, may all have to be considered.‖



Keel v. Hainline (Okla. 1958)

General Facts: K and 6 other Ds were ―horsing around‖ prior to the start of a

school class when the teacher was late. For approximately 30 minutes the Ds threw

wooden erasers, chalk, cardboard drum covers, and one soda bottle at each other across

the classroom filled with 35-40 students. The Ds intended to strike each other with the

objects although not to cause injury. The play ended when one D (Jennings) threw an

eraser and hit the plaintiff (Patricia Ann Burge) in the eye, breaking her glasses and

injuring the eye such that she lost the use of the eye.

Case History: Plaintiff won at trial and received damages award. Keel appealed

arguing that (1) no evidence exists that indicates that he (or the others) intentionally

inflicted injury upon plaintiff and (2) no evidence exists that the injury was the proximate

cause of any wrongful and unlawful act by him (or the others).

Cause of Action: Battery (perhaps Assault and Battery)

Battery: (1) Bodily contact on the person of the P; (2) Offensive contact; (3)

Intent of D to make the contact; (4) Causation; (5) Resulting damages.

Law: The extent to which intent may be transferred: A wrongful act directed at

one person (or thing presumably) but harms another person unintentionally, may be held

against the D as if it had been intentionally done against the harmed person.

The wrongfulness of horseplay in this case: The court explicitly held that the

throwing of potentially harmful objects in the presence of innocents is wrongful b/c of the

inherent danger to those innocents by their presence.

Aiding and Abetting wrongful conduct: ―One who commands, directs, advises,

encourages, procures, instigates, promotes, controls, aids, or abets a wrongful act by

another has been regarded as being as responsible as the one who commits the act so as to

impose liability upon the former to the same extent as if he had performed the himself.‖

52 Am.Jur. 454, Torts 114.



Brudney v. Ematrudo (D. Conn. 1976)

General Facts: B was a member of a student peace rally on the campus of Yale.

At approximately 11:00 am on 5/11/72 the rally turned violent. One police officer

Giannotti had been trapped by the mass of people, had fallen in the crowd, and was being

attacked. Fearing that G would be trampled and hurt, fellow officer/defendant E came to

the crowd to rescue G. After several verbal warnings, E decided to use his ―blackjack‖

(nightstick). His intended target was a student, prob. Cruz. However, during the

downstroke, the club accidently hit B‘s head on its way to Cruz‘s head. E was not aware

that his club had struck B. She sued for assault and battery.

Case History: Opinion is from the trial court: Judgment for the defendant.

Cause of Action: Assault and Battery

Assault and Battery: (1) Bodily contact on the person of the P; (2) Offensive

contact; (3) Intent of D to make the contact; (4) Causation; (5) Resulting damages.

Law: The extent to which justifiableness of normally unlawful contact may be

transferred to an unintentional victim. The court does not allow B to recover because the

use of the club by E was ―necessary, reasonable, limited, and relatively controlled under

the circumstances.‖ The court also characterized B‘s injury as ―minor.‖ These two

conclusions combined seems to suggest that the justifiable assault and battery on Cruz (?)

may transfer to the unintended contact with B, especially since the injuries to B were so

minor.





1-14-04

Noble v. Louisville Transfer Co. (Ky. App. 1952)

General Facts: Pregnant woman [Mrs. Noble] and daughter [Shelly age five]

used a taxi service to go home from a train station in Louisville, KY. The girl was sick

and vomited in the car. The taxi driver (defendant, Wood) insisted that mother clean the

mess up when they arrived at the destination. W ―detained‖ the girl while the mother

went in for a rag. W was a large man (6' 1 1/2'‘, 210 lbs.) and the mother was fearful of

him. W used his ―little finger to keep her [girl] from falling over.‖

Case History: The trial court directed a verdict for defendant on all four charges

[two assault, one battery to girl, and false imprisonment of girl]. The appellate court

dismissed the assault and false imprisonment charges as groundless and upheld the d.v.

on matters of law (see below) and on matters of fact (conclusion that no harmful or

offensive touching of S occurred).

Cause of Action: Battery

Battery: (1) Intentional act of D; (2) causation; (3) harmful or offensive touching

of the person of the P.

Law: The extent of intent required for battery: Either harmful or offensive

physical contact or the manifest intention to harm are required for a battery. [R. Torts 13-

20]

NOTE: Apparently most courts will not agree with this intent requirement. Most

courts require an intent ―to cause contact, followed by contact that in fact is either

harmful or reasonably offensive.‖



Picard v. Barry Pontiac-Buick, Inc. (RI 1995)

General Facts: Picard was having ―troubles‖ with the auto clinic (D). P

contacted a local journalist to help, and then took a picture of the D. The picture shows

that the D pointed somewhat angerly at P. D then approached P and asked who had given

her permission to take the picture. D then placed his finger on P‘s camera. P was fearful

of the D and his behavior.

Case History: At trial, D found liable for assault and battery and awarded

compensatory and punitive damages. On appeal the court upheld liability but remanded

for new damages after finding them ―grossly excessive.‖

Cause of Action: Assault and Battery

Assault: (1) Intentional act of the defendant; (2) Causation; (3) Apprehension of

harmful contact for plaintiff.

Battery: (1) Intentional act of the defendant; (2) Causation; (3) Harmful or

offensive touching of the person of the plaintiff.

Law: What counts as the ―person of the plaintiff‖ for battery? While this will

change in every situation, anything that is ―so connected with the body as to be

customarily regarded as part of the other‘s person‖ is eligible to be battered. Essentially,

the extent of the person is regarded by both proximity and emotional attachment.



Moore v. El Paso Chamber of Commerce (Tex. App. 1949)

General Facts: Moore (17) and her mother were walking on the city streets of El

Paso. At the same time, the city‘s chamber of commerce was promoting its annual rodeo.

To promote the event, the chamber ―employed‖ a number of volunteers to rope up folks

who were not dressed in ―Western‖ wear as the citizens had been encouraged to do. The

captives would then be placed on a weak electrical chair until they purchased rodeo

tickets or a bandana to complete the required look. M was chased by a volunteer (Claude

Weaver) to be a captive. M did not want to participate and was fearful. She and her

mother ducked into a drug store with hopes of then moving to the Hilton lobby to escape.

While opening the glass door between the two places, M broke the glass and cut her had

severely. The damages to the hand were determined to be $6,163.00.

Case History: Special verdict was sent to the jury which found that Weaver was

acting under the direction of ―Shorty‖ who was acting under the guise of the Chamber.

W was negligent in his actions and caused injury to M. And M was negligent to care for

her own safety. Upon this final decision of ―contributory negligence,‖ the trial court

found for the D. Appeal and reversed.

Cause of Action: Battery (perhaps assault)

Battery: (1) Intentional act of D; (2) Causation; (3) Harmful or offensive touching

of the person of the P.

Law: The effect of contributory negligence as a defense to an intentional tort:

―Contributory negligence is no defense to an intentional wrong.‖ Here W intended all of

his actions save the injury; therefore, the cause did not lie in negligence, but battery.

The extent to which a non-employee may be held to be the agent of the D: Agency

does not require an express appointment, but can be implied by the conditions and

circumstances of the relationship. It may also exist from a single transaction.



Western Union Telegraph Co. v. Hill (Ala. App. 1933)

General Facts: H‘s wife went to see Sapp (manager of D‘s office in town) about

fixing her clock which was a service earlier promised by phone. S had drank a few

drinks of whiskey and was feeling ―amiable.‖ H‘s wife said that S said, ―If you will

come back here and let me love and pet you, I will fix your clock.‖ H‘s wife also said

that S reached for her and tried to touch or grab her before she jumped back. S was

behind a counter that went up to his armpits. It was shown that it was impossible for S to

touch H‘s wife due to the height of the counter unless he leaned forward or otherwise

made himself taller in relation to the counter. S was the manager of the office and was

attending to business at the time of the incident.

Case History: Trial court denied a defense motion for either s.j. or d.v. based on

two questions: (1) No assault occurred legally or factually and (2) D company could not

be held liable for S‘s actions b/c they were outside the scope of his employment.

Appellate court agreed with the first dismissal, but not the second.

Cause of Action: Assault

Assault: (1) Intentional act of D; (2) Causation; (3) Placed plaintiff in reasonable

apprehension of imminent battery.

Law: Can an assault take place without touching? Yes, an incident is actionable

for assault if there is ―an intentional, unlawful, offer to touch the person of another in a

rude or angry manner under such circumstances as to create in the mind of the party

alleging the assault a well-founded fear of an imminent battery, coupled with the apparent

present ability to effectuate the attempt, if not preempted.‖ Here, there was enough a

question of fact that the case could legally be submitted to the jury.

To what extent may the actions of an employee be said to be in the scope of

his/her employment: Although the actor may clearly be the agent of the D, unless the

agent is acting in a sanctioned manner in the scope of employment, his intentional acts

are his own for liability. S was acting not in the promotion of the business here, but his

own desires for companionship.



Harris v. Jones (Md. 1977)

General Facts: Harris was disabled by a stuttering problem his whole life. This

condition worsened with stress. H was an employee of GM at a manufacturing plant.

Jones was one of H‘s supervisors at the plant. During the course of five months (March-

Aug 1975), J belittled H for his stuttering problem. H was ―shaken up‖ and ―felt like

going into a hole and hide.‖ H‘s condition also worsened in response to the heightened

stress he felt at work because of the harassment. During the harassment, H continued to

receive treatment from a doctor for the problem and was again prescribed pills for the

problem. H also claims that he interpersonal relations with his family, which were

already poor, worsened as well. Other employees also teased H about his condition.

Case History: At trial a jury awarded H $3,500 compensatory damages and

$15,000 in punitive damages against both J and GM. On initial appeal, the Maryland

Court of Special Appeals, reversed the liability assessment while officially recognizing

the tort of intentional infliction of emotional distress (IIED). They did so by finding that

the actions of J were severe/outrageous, but causation and the severity of H‘s distress

were lacking to amount to the tort. The Maryland Court of Appeals upheld this judgment

and affirmed the recognition in general of the tort.

Cause of Action: Intentional Infliction of Emotional Distress

IIED: (1) Intentional or reckless conduct by D; (2) Extreme or outrageous conduct

by D; (3) Causation; (4) Severe emotional distress felt by P.

Law: Recognition of the independent tort of IIED: There exists a need to

compensate damages caused by outrageous conduct leading to emotional distress;

however, the four elements of the tort should be followed closely to avoid frivolous

claims and the difficultly of weeding out false claims.

Extent of the ―extreme or outrageous conduct‖ requirement: The conduct must be

so severe that is goes ―beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.‖ This conduct requirement

does not extend to ―mere insults, indignities, threats, annoyances, petty oppressions, or

other trivialities...plaintiffs must necessarily be expected and required to be hardened to a

certain amount of rough language, and to occasional acts that are definitely inconsiderate

and unkind.‖ However, the personality of the victim as well as the relationship between

the persons must be considered when making a judgment on the outrageousness of the

conduct.

Extent of the ―severe emotional distress‖ needed: ―There is no liability where the

plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results

from a peculiar susceptibility to such distress of which the actor has knowledge.‖

Apparently, this meant in this case that since the conduct may have only caused a slight

increase in the severity of an existing condition, then recovery and liability were not

possible.



Slocum v. Food Fair Stores of Florida, Inc. (Fla. 1958)

General Facts: Slocum asked about the price of an item at a grocery store. A

clerk responded rudely by saying, ―If you want to know the price, you‘ll have to find out

the best way you can...you stink to me.‖ S claims that this language was offensive to her

and caused mental suffering or emotional distress, and an ensuing heart attack and

aggravation of pre-existing heart disease.

Case History: Trial court dismissed the complaint for failure to state a claim for

which relief may be granted. On appeal, the court upheld this ruling and concluded that

an extension of a broad rule invoking liability for abusive language of servants in certain

industries (carriers, hotels, theaters, and telegraph offices, so far) was not warranted in

this case.

Cause of Action: IIED

IIED: (1) Intentional or reckless conduct by D; (2) Extreme or outrageous

conduct by D; (3) Causation; (4) Severe emotional distress felt by P.

Law: How words/conduct are to be adjudged actionable or not: ―The

determination of whether words or conduct are actionable in character is to be made on

an objective rather than subjective standard.‖ The alleged intrusion causing emotional

distress must be determined to have caused a person of ―ordinary sensibilities‖ severe

emotional distress, unless there is prior knowledge of the susceptibility of the victim to

emotional distress.



Contreras v. Crown Zellerbach Corporation (Wash. 1977)

General Facts: Contreras is a Mexican-American who worked for the D until 24

Jan. 1974. During his employment, he suffered numerous racial slurs and epithets on the

job site during business hours and activities. The managers and supervisors were unable

or unwilling to control the employees and stop this behavior. As a result of his racial

heritage, C claims that the employees and employer knew or should have known that he

was especially sensitive and susceptible to emotional distress due to the comments.

Case History: Motion for dismissal for failure to state a claim was granted. C

appealed where court reversed the dismissal holding that the issue of the outrageousness

of the conduct in relation to C‘s heritage was a question of fact for a jury, not a matter of

law to be decided on a demurrer.

Cause of Action: IIED

IIED: (1) Intentional or reckless conduct by D; (2) Extreme or outrageous

conduct by D; (3) Causation; (4) Severe emotional distress felt by P.

Law: The extent to which a person‘s susceptibility to a racial slurs due to

ethnicity may meet the outrageous requirement for IIED: It is possible that today‘s

changing standards that racial slurs will be outrageous enough to qualify for IIED. It is

also, therefore, a question of fact for the jury to decide, not a question of law for the

judge.

The relationship between the parties is a significant factor in determining whether

liability should be imposed.

1-21-04



Taylor v. Vallelunga (Cal. App. 1959)

General Facts: Taylor was the daughter of Clifford Gerlach who was battered by

Vallelunga on Christmas 1956. T witnesses the attack; however, no facts indicated that V

knew that T was there and witnessing the attack.

Case History: V moved to dismiss for failure to state a claim (demurrer) for T‘s

claim of IIED. The motion was granted and T appealed. Appellate court upheld the

demurrer.

Cause of Action: IIED

IIED: (1) Intentional or reckless conduct of D; (2) Extreme or outrageous conduct

of D; (3) Causation; (4) Severe mental distress for P.

Law: Definition of ―intentional‖ conduct for IIED: ―An intention to cause severe

emotional distress exists when the act is done for (1) the purpose of causing the distress

or (2) with knowledge on the part of th actor that severe emotional distress is

substantially certain to be produced by his conduct.

Definition in relation to third party claim: A prerequisite for the intentional aspect

of the COA is that the D knew that the P‘s was present at the time. Alternatively,

evidence must exist that the conduct was done for the purpose of causing emotional

distress.

NOTE: This case was decided before ―reckless‖ behavior could be the basis for

IIED. Also, R.2d 46(2) discusses the extent of liability for IIED conduct directed at third

persons. It provides: Where [extreme or outrageous] conduct is directed at third persons,

the actor is subject to liability if he intentionally or recklessly causes severe emotional

distress (a) to a member of such person‘s immediate family who is present at the time,

whether or not such distress results in bodily harm, or (b) to any other person who is

present at the time, if such distress results in bodily harm. Finally, some courts and

commentators recommend that the presence requirement be dropped in certain

circumstances of extreme conduct (murder) for immediate family members.



Bird v. Jones (Q.B. 1845)

General Facts: Bird (P?) was walking along a public road. A portion of that road

had been sectioned off by Jones (D?) to use as paid viewing area for a boat race. J and

paid officers did not allow B to pass through the area. At one point B and J got into a

scuffle and B was detained for a moment. Afterwards, B was told that he was free to

leave, but he could not stay in the area or pass through the area without paying the price

of viewing.

Case History: At trial P won a jury verdict. D was granted a rule nisi for a new

trial. The conditional grant for a new trial was made absolute by the appellate court.

Cause of Action: False Imprisonment

False Imprisonment: (1) Intentional, unconsented conduct by D; (2) Conduct

amounting to force, threat of force, or assertion of legal authority (3) Causation;

(4) Confinement within fixed boundaries for P.

Law: Extent of the possible ―prison‖: ―A prison may have its boundary large or

narrow, visible or tangible...; it may itself be movable or fixed, but a boundary it must

have; and that boundary the party imprisoned must be prevented from passing; he must

be prevented from leaving that place, within the ambit of which the party imprisoning

would confine him, expect by prison-breach.‖

Loss of complete freedom vs. false imprisonment: False imprisonment is more

than the mere loss of freedom to go to a specific place; ―it includes the notion of restraint

within some limits defined by a will or power exterior to our own.‖

Other Opinions: Lord Denman would have a broader definition of the ―prison‖

for the claim. His definition would more equate the loss of freedom to do something

specific as the possible basis for a claim. He said: ―As long as I am prevented from doing

what I have a right to do, of what importance is it that I am permitted to do something

else?‖



Morales v. Lee (Tex. App. 1984)

General Facts: Lee (P) was an employee in the D‘s medical office. Dr. Morales

brought L into his office where a co-worker and M‘s son were also present. M

questioned L in connection with a missing $5.00. After L denied taking the money, M

―got mad...just went crazy.‖ M threw things around and shouted. M told L not to leave

or he would ―call the police and the police will be here in a minute.‖ Later L left after

being told ―get the hell out of here. I don‘t want to see you anymore.‖ L left in tears,

waited to get her paycheck without speaking. Afterwards, she developed a condition

where she could not sleep, had nightmares, could not eat, and would vomit after eating.

She saw a doctor, lost 20 pounds, and was in good health prior to the incident.

Case History: Jury awarded L compensatory and punitive damages. M appealed,

and the appellate court reversed the trial court and found for the D.

Cause of Action: False Imprisonment

False Imprisonment: (1) Intentional, unconsented conduct by D; (2) Conduct

amounting to force, threat of force, or assertion of legal authority (3) Causation;

(4) Confinement within fixed boundaries for P.

Law: Extent to which threats of future action can meet requirements: Threats of

future action alone cannot usually be sufficient for an action for false imprisonment.

There must be other conduct and evidence that would support the action independently.

Other Opinions: Justice Tijerina agreed with the statement of the law; however,

he found sufficient evidence based on the relative size, age, and sex of the parties and the

employer-employee relationship to avoid the reversal of the jury‘s verdict. He would

rather pay more deference to the jury because of the removal of the appellate court to

witnesses. ―We should not substitute our judgment for that of the jury.‖

Tijerina also pointed out that the confinement for false imprisonment need not be

for anything longer than ―an appreciable length of time.‖ Further, no proof of harm from

that confinement itself is necessary since the tort is complete upon the even brief restraint

of P‘s freedom.



Enright v. Groves (Col. App. 1977)

General Facts: Officer Groves was on his foot patrol when he observed the dog

of P Enright running free in violation of city ordinance. After finding out the ownership

of the dog from E‘s son, G approached E, who was in a parked car. G demanded E‘s

driver‘s license. She gave G her name and address. G ordered E to produce the license

or ―go to jail.‖ E replied by asking, ―Isn‘t this ridiculous?‖ Then G took her by the arm

and said, ―Let‘s go.‖ The grabbing hurt E and she complained to no avail. She then hit G

in the stomach. G then threw her to the ground and handcuffed her and only then

announced her to be under arrest. E was jailed. Later E was convicted of a violation of

the ordinance.

Case History: Jury found for E and awarded compensatory and punitive damages

as follows: false imprisonment, 500/1000; intentional infliction of emotional distress,

1500/3000; battery, 500/1000. G and City of Ft. Collins appealed, but appellate court

affirmed.

Cause of Action: False imprisonment, IIED, and battery.

False Imprisonment: (1) Intentional, unconsented conduct by D; (2) Conduct

amounting to force, threat of force, or assertion of legal authority (3) Causation;

(4) Confinement within fixed boundaries for P.

IIED: (1) Intentional or reckless conduct by D; (2) Extreme or outrageous conduct

by D; (3) Causation; (4) Severe emotional distress.

Battery: (1) Intentional conduct by D; (2) Causation; (3) Harmful or offensive

touching of the person of the P

Law: The extent to which a police officer is liable for false imprisonment claim:

―A claim for false arrest will not lie if an officer has a valid warrant or probable cause to

believe that an offense has been committed and that the person who was arrested

committed it.‖ Also, ―conviction of the crime for which one is specifically arrested is a

complete defense to a subsequent claim for false arrest.‖

Here, however, E was arrested for not producing her driver‘s license. This was an

―offense‖ that was not justified by law; therefore, the charging and conviction of the

violation of the dog leash ordinance is irrelevant to this case.



Peterson v. Sorlien (Minn. 1980)

General Facts: Susan Jungclaus Peterson was 21 year old student. She joined a

religious organization, a weird cult. Her behavior changed and her parents became

worried. They arranged to have her deprogrammed. S‘s father picked her up from

college and took her to the home of Veronica Morgel where a group led by Kathy Mills

attempted the deprogramming. S resisted for 3 days by kicking, screaming, and laying in

the fetal position. On the third day, she changed. Her attitude was back to her old self

and she went out in very public areas without problem. Indeed, she took a trip to

Columbus, OH without issue. Later, she returned to the cult and began this action after

refusing to sign a release from liability for her parents and the others.

Case History: Jury found for Ds on the false imprisonment charge, but found

Morgel and Mills liable for IIED and awarded compensatory and punitive damages

(1/4000-6000). S appealed seeking a j.n.o.v. The appellate court affirms the trial court.

Cause of Action: False Imprisonment and IIED

False Imprisonment: (1) Intentional, unconsented conduct by D; (2) Conduct

amounting to force, threat of force, or assertion of legal authority (3) Causation;

(4) Confinement within fixed boundaries for P.

IIED: (1) Intentional or reckless conduct by D; (2) Extreme or outrageous conduct

by D; (3) Causation; (4) Severe emotional distress by P.

Law: Extent to which a claimant will be barred by not escaping the

―confinement‖: ―If one is aware of a reasonable means of escape that does not present a

danger of bodily or material harm, a restriction is not total and does not unlawful

imprisonment.‖ Here, S could have escaped during most of the last 13 days; therefore, no

false imprisonment claim can lie.

Manner in which consent must be determined: A person who does not possess a

volitional capacity cannot consent or not; therefore, consent must only be adjudged from

the confined person‘s conduct and beliefs after volitional capacity is restored.

Extent to which parents may deprogram children without liability: ―When parents,

or their agents, acting under the conviction that the judgmental capacity of their adult

child is impaired, seek to extricate that child from what they reasonably believe to be a

religious or pseudo-religious cult, and the child at some juncture assents to the actions in

question, limitations upon the child‘s mobility do not constitute meaningful deprivations

of personal liberty sufficient to support a judgment for false imprisonment.‖



CompuServe Inc. v. Cyber Promotions, Inc. (S.D. Ohio 1997)

General Facts: CompuServe is an ISP. Cyber Promotions is a spammer.

CompuServe has asked Cyber to stop and has designed software to prevent the spam.

Cyber simply redesigned the spam to avoid this and has actually increased the amount of

spam. CompuServe is forced to spend much time, money, and hardware/software

resources to prevent the spam from reaching customers. This harms CompuServe. Cyber

contends that they can only be liable for trespass to chattels if they dispossess or

substantially interfere with P‘s ownership/possession.

Case History: This is the trial court. The trial court rules in favor of

CompuServe and orders an injunction because the computation of damages here is nearly

impossible.

Cause of Action: Trespass to Chattels

Trespass to Chattels: (1) Intentional conduct by D; (2) Causation; (3) Interfering

contact with the P‘s chattel.

Law: Extent to which a person can be liable here: ―One who commits a trespass

to chattel is subject to liability to the possessor of the chattel if, but only if,

(a) he dispossesses the other of the chattel, or

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

(c) the possessor is deprived of the use of the chattel for a substantial amount of

time, or

(d) bodily harm is caused to the possessor, or harm is caused to some person or

thing in which the possessor has a legally protected interest.

Here the court found liability under both (b) and (d) because of the interference

the spam caused to CompuServe‘s hardware and their ability to meet their customer‘s

demands and desires.





1-26-04



Zaslow v. Kroenert (Cal. 1946)

General Facts: Z sued K for conversion. Z and K lived in joint tenancy of a

home that they both owned. Within the home, Z had furniture that he owned. During a

―property dispute,‖ K and Chapman changed the locks on the house, and (after informing

Z of their actions) removed all of Z‘s furniture to a storage unit. Z was informed about

the unit‘s location and how to get the furniture back by contacting K‘s lawyer. Instead of

obtaining the property, Z sued for conversion.

Case History: At trial, Z recovered a verdict of $3500 for the conversion. K

appealed, and on appeal the judgment was reversed and remanded for a new calculation

of damages. The Cal. S.Ct. found that a COA for conversion was lacking, but a COA for

trespass to chattels (case) could lie; however, the appropriate damages would be much

less.

Cause of Action: Conversion (Trespass to Chattels)

Conversion: (1) Intentional conduct by D; (2) Causation: (3) A wrongful

exerted dominion (assumption of control) over the P‘s property that substantially

interferes with the P‘s possesory interest in the property.

Trespass to Chattels: (1) Intentional conduct by D; (2) Causation; (3) Interfering

contact with the P‘s chattel.

Law: The extent to which dominion must be exercised: The D must have

exercised such a dominion over the property that substantially interferes or is inconsistent

with the P‘s ownership interest in the property.

The ―need‖ for a demand for return: Although not necessary in all cases, the P‘s

demand for return of the goods which is denied by D is sometimes needed to show

conversion. This is especially true as here where the D obtained the goods in a lawful

manner.

The appropriate measure of damages for conversion: Conversion may allow the P

to recover the full value of the converted goods (as measured by highest market value).

The appropriate measure of damages for trespass to chattels: Trespass only allows

damages in the amount that can be shown that the D‘s intermeddling with the goods

caused to the goods or the P‘s ownership interest in those goods.



Russell-Vaughn Ford, Inc. v. Rouse (Ala. 1968)

General Facts: Rouse went to the car dealership to see about trading in his old

car for a new one. A salesman took the old car‘s keys to inspect the car. After being

offered $2400 (and a new car?), R turned down the offer and asked for his keys back. All

of the salesmen seemed to not know where the keys were and the servicemen played

along and laughed at R. R called the police. After the police arrived, Parker (a salesman)

threw the keys at him calling R a cry baby and that ―they just wanted to see him cry a

while.‖

Case History: Jury awarded $5000 for conversion (punitives too). Ford appealed

and S.Ct. affirmed the verdict.

Cause of Action: Conversion

Conversion: (1) Intentional conduct by D; (2) Causation: (3) A wrongful exerted

dominion (assumption of control) over the P‘s property that substantially

interferes with the P‘s possesory interest in the property.

Law: What may give rise to conversion: ―Conversion may consist, not only in an

appropriation of the property to one‘s own use, but in its destruction, or in exercising

dominion over it in exclusion or defiance of the plaintiff‘s right.‖

Duties of plaintiff to give rise for conversion: A plaintiff does not have to exhaust

all possible remedies to reclaim his property after demanding its return.

Extent to which something may represent valuable property: The taking of

something that can be said to be the symbol or means of control of something valuable

may result in a claim for conversion of the valuable thing itself.



FMC Corp. v. Capital Cities/ABC Inc. (7th Cir. 1990)

General Facts: ABC ran a story on FMC and its work for the U.S. Army making

Bradley Fighting Vehicle (BFV). ABC used several corporate documents or copies of

them in the story. FMC no longer has 4 of these documents. FMC asked for the

documents back, but ABC refused. FMC sued for conversion seeking the documents

back. ABC claimed that they were only copies.

Case History: District Court dismissed the action (conversion–because copies of

documents could not be theoretically converted; and misappropriation–because only a

direct competitor can be sued for misappropriation of confidential corporate information).

On appeal, 7th Cir. affirmed the dismissal of the misappropriation claim, but reversed the

dismissal of the conversion claim.

Cause of Action: Conversion

Conversion: (1) Intentional conduct by D; (2) Causation: (3) A wrongful exerted

dominion (assumption of control) over the P‘s property that substantially

interferes with the P‘s possesory interest in the property.

Law: The extent to which copies may serve as the original property in a

conversion action: Normally, ―the receipt of copies of documents, rather than the

documents themselves, should not ordinarily give rise to a claim for conversion.‖

However, when the owner does not have the originals anymore, ―the copies become the

functional equivalents of the originals.‖ Therefore, they can serve as the converted

property.

Intent needed for conversion: ―An intent to exercise a dominion or control over

the goods which is in fact inconsistent with the plaintiff‘s rights‖ not the intent to steal or

pilfer.

Extent to which intangible property can be converted: Not only can tangible

property, but also intangible property be converted. The U.S. S. Ct. has held that

corporations have a property interest in information compiled whether or not they intend

to use the compilation as a commodity or not.



Davies v. Butler (Nev. 1979)

General Facts: Parents of Davies sued for wrongful death. D was ―pledging‖ a

unofficial fraternity. As a part of the initiation, the initiates were induced to drink large

amounts of alcohol over the course of several days (Thurs-Sat). Then, at midnight

Saturday, the initiates were lined up and induced to drink large amounts of Everclear

within 20-30 minutes. D may have also been hit along with the other initiates. After the

alcohol drinking, the initiates were taken to another site via pickup truck. Upon arrival, it

was noticed that D was not breathing. D was taken to a hospital where he was

pronounced dead.

Case History: Jury verdict (6-3) in favor of the defendants generally. D‘s family

appealed citing prejudicial jury instructions that were erroneous instructions concerning

consent. On appeal, D‘s family was granted a new trial due to the error in jury

instructions.

Cause of Action: Wrongful death

Wrongful death:

Law: Requirements of consent as a bar to action: ―To be effective, consent must

be (a) by one who has the capacity to consent and (b) to the particular conduct, or to

substantially the same conduct.‖

What is capacity to consent: It ―requires the mental ability to appreciate the

‗nature, extent, and probable consequences of the conduct consented to.‘‖ Therefore, if

someone cannot understand b/c of drunkenness, especially when the inebriation is known

or caused by the D, that person cannot consent to that activity.



O’Brien v. Cunard S.S. Co. (Mass. 1891)

General Facts: O‘Brien was one of several immigrants who were being

quarantined until the were vaccinated for small-pox. She stood in line with others, was

examined, was told that she would need to be vaccinated in order to leave the quarantine,

and was vaccinated. She later sued for battery.

Case History: The trial court seems to have dismissed for consent. The appellate

court upheld the judgment.

Cause of Action: Battery

Battery: (1) Intentional conduct by D; (2) Causation; (3) Offensive or harmful

touching of the person of the plaintiff.

Law: Extent of apparent consent: A person (D) is only required to be

appropriately guided by the outward expressions of the other‘s feelings. When P made

no indication to the contrary for the vaccination and it was clear that was what the doctor

was going to do, then her silence amounted to consent.



Kozup v. Georgetown University (D.C. Cir. 1988)

General Facts: Matthew Kozup was born on 1/10/83 with a condition known as

―hypovolemia‖ which requires blood transfusions. Among the blood given to M was

some that was contaminated with HIV. M contracted AIDS and died on 7/10/86. Parents

sued both Georgetown University (the hospital) and the American Red Cross on five

counts: (1) Negligence, (2) Breach of implied warranty; (3) Strict liability; (4) Lack of

informed consent; and (5) Violation of D.C. Consumer Protection Act. They also sued

Georgetown solely for battery.

Case History: Summary Judgment was granted to Ds on all 6 counts. On appeal,

the court upheld the s.j. for the first five counts, but reversed and remanded the s.j. for the

battery. They found genuine issues of material fact that required a jury trial, not the

judge to decide on s.j. motion. However, the court did not favor or say that the P should

win on the count, only that it merited a trial.

Cause of Action: Battery

Battery: (1) Intentional conduct by D; (2) Causation; (3) Offensive or harmful

touching of the person of the plaintiff.

Law: Extent to which a doctor (surgeon) may be held liable for operation

(procedure) on a minor child w/o consent from parents: The general rule is that the doctor

is liable for a battery. There are, however, several exceptions: (1) bona fide medical

emergency; (2) the patient is a ―mature minor‖ who consents; (3) parents are not readily

accessible; or (4) the parents have given implied consent.

Extent of implied consent for medical procedures: If confronted with a decision to

accept the treatment or not, no rational person would have denied the medical procedure.



DeMay v. Roberts (Mich. 1881)

General Facts: Scattergood and DeMay came to R‘s home as assistant and

doctor. S was not a medical professional. Therefore, S and D deceived the Rs to gain

their consent. S unlawfully touched and assaulted R.

Case History: Trial judgment for Rs. Affirmed on appeal.

Cause of Action: Battery

Battery: (1) Intentional conduct by D; (2) Causation; (3) Offensive or harmful

touching of the person of the plaintiff.

Law: Consent is not effectual when it is gained by deceit or fraud.



1-28-04

Silas v. Bowen (D. S.C. 1967)

General Facts: Silas and Brown had a relationship via a K for B to repair S‘s car.

S was unhappy with the work and went to confront B about the problem. S was a large

man; B was not. S became abusive and threatening to B. B in an attempt to scare S into

leaving, shot his shotgun towards the ground, but hit S in the foot. B concedes that a

prima facie case for assault and battery exist, but is pleading the privilege of self-defense.

Case History: This is the trial court. Court rules in favor of the Defendant and

his claim of self-defense.

Cause of Action: Assault and Battery

Assault: (1) Intentional Conduct by D; (2) Causation; (3) Apprehension of an

imminent harmful or offensive touching of the person of the plaintiff.

Battery: (1) Intentional conduct by D; (2) Causation; (3) Harmful or offensive

touching of the person of the plaintiff.

Law: Requirements of self-defense: Must not be the aggressor; Retreat (subject to

exceptions when one is in his own home or place of business); Provocation proportional

to the response; More than words alone can be sufficient for a response.



Drabek v. Sabley (Wis. 1966)

General Facts: Tom Drabek and four other young boys were throwing snowballs

at passing cars. Dr. Sabley was driving one of these cars. S stopped his car, got out, and

chased after them. S caught Tom and grabbed him by the arm. He then took Tom to his

car by the arm and placed him inside. S procured Tom‘s name and then took him into

town to turn him over to the police.

Case History: Jury verdict below in favor of the defendant. On appeal, the court

found that the jury‘s affirmation of S‘s privilege to retrain Tom‘s liberty based on self-

defense/defense of others/crime prevention was upheld to a point. However, this

privilege did not extend to taking Tom into town to the police. There he was falsely

imprisoned and battered.

Cause of Action: Assault, Battery, and False Imprisonment

Assault: (1) Intentional conduct by D; (2) Causation; (3) Apprehension of

imminent offensive or harmful touching of the person of the plaintiff.

Battery: (1) Intentional conduct by D; (2) Causation; (3) Offensive or harmful

touching of the person of the plaintiff.

False Imprisonment: (1) Intentional conduct by D; (2) Causation; (3) Confinement

of the P within fixed boundaries set by the D.

Law: Scope of a privilege of self-defense/defense of others: Once the danger of

harm to one‘s self or others has passed, the tortious behavior of the D is no longer

justified and the D can be liable for that behavior. The danger is deemed to have passed

when it is no longer reasonable for the D‘s behavior to be necessary.



Katko v. Briney (Iowa 1971)

General Facts: Katko and an accomplice broke into the uninhabited farmhouse of

the D. B and his wife inherited the land but did not use it and no one lived there. Over a

ten year period, that property had been broken into several times with small property

being stolen. Then in 1967, B installed a spring gun shotgun aimed at an average

person‘s legs in the bedroom of the farmhouse. K came into the room, was shot, and

most of his leg was blown off. He was forced to spend the next 40 days in the hospital.

Case History: At trial, jury awarded K 20,000 in compensatory damages, and

10,000 in punitive damages. On appeal, the S.Ct. of Iowa affirmed the ruling.

Cause of Action: Battery:

Battery: (1) Intentional conduct by D; (2) Causation; (3) Offensive or harmful

touching of the person of the plaintiff.

Law: Extent to which a person may use force to defend property: A person is

allowed to use force to defend property; however, deadly force is not allowed unless

there is also a danger to persons involved.

Extent to which a person may use a spring-gun: A person may not use mechanical

traps that will cause serious injury to trespassers.



Bonkowski v. Arlan’s Department Store (Mich. App. 1968)

General Facts: B was leaving the store in question. While in the parking lot,

approximately 30 feet from the store, she was called to by the store‘s private security.

The security officer (Reinhardt) said that someone had indicated that they had saw B

placing costume jewelry in her purse. B produced the contents of her purse and her

purchase receipt. Satisfied that B had not stolen, R let her go.

Case History: Jury awarded damages for false arrest and slander. On appeal, the

prima facie case for false imprisonment was sustained, subject to a finding of the now

appropriate shop-keeper privilege to detain those reasonably suspected of stealing for

investigation. The slander count was dismissed for lack of evidence. Case remanded for

a determination of the validity of the privilege.

Cause of Action: False Imprisonment and Slander

False Imprisonment: (1) Intentional conduct of D; (2) Causation; (3)Confinement

of P within fixed boundaries set by D.

Slander:

Law: A merchant may detain a person for a ―reasonable amount of time‖ for a

―reasonable investigation‖ who he ―reasonably believes to have taken a chattel

unlawfully.‖ The R.2d does not extend this privilege for those who have left the store;

however, Mich. does extend it that far in this case.



Surocco v. Geary (Cal. 1853)

General Facts: S‘s house was in the path of the fire of San Francisco 1849. G

was the Alcalde of S.F. G blew up the house in the hopes that the fire may be snuffed out

and confined. The fire spread anyway and S claims that if the house had not been blown

up, then he would have been able to save more things.

Case History: Jury trial returned verdict for S. On appeal, G won based on the

defense of public necessity.

Cause of Action: Conversion

Conversion: (1) Intentional conduct of D; (2) Causation; (3) Substantial

interference with the ownership of the P.

Law: ―At times, the individual rights of property give way to the higher laws of

impending necessity.‖ The need to destroy property to prevent the spread of fire is well

settled. The need to do so must be judged objectively from a person in the place of the D.

Wegner v. Milwaukee Mutual Insurance Co. (Minn. 1991)

General Facts: Police chased an armed suspect into W‘s apartment. The police

fired 25 rounds of chemical munitions and 3 flash-bangs into the home. The police‘s

actions caused severe damage. W sued under tort and ―taking‖ theories.

Case History: At trial, s.j. for city on the ―taking.‖ Affirmed on appeal, court

said that the damages was a taking, but was privileged by the public necessity. S. Ct.

reversed saying that the city did take the property and must compensate.

Cause of Action: Conversion and Taking

Law: The city, and not the individual officers, are liable to compensate for

damages caused to the property of an innocent 3rd person in the apprehension of a

suspect. The public necessity policy is outweighed by the compensation policy and the

policy of spreading the costs of the damages.



Vincent v. Lake Erie Transp. Co. (Minn. 1910)

General Facts: Defendant‘s steamship docked at plaintiff‘s dock to unload cargo

at the port of Duluth. While docked, a violent storm materialized and grew in intensity.

The storm caused the traffic on the lake to cease such that the steamship could not be

tugged out of the harbor. Rather, the P‘s men continued to tie lines to the ship to keep it

afloat and out of danger or from drifting away. Over the course of being attached to the

dock, the wind and water forced the ship to crash into the dock several times causing

damages to the dock.

Case History: At trial, verdict for plaintiff in the amount of $500. On appeal, the

judgment was affirmed because the dock owner voluntarily assented to helping the D at

the expense of his own property and should be compensated for it.

Cause of Action: Conversion? Destruction of Property

Law: Extent of care owed to the shipowner by the dock: ―Nothing more was

demanded of them than ordinary prudence and care, and the record in this case fully

sustains the contention of the appellant that, in holding the vessel fast to the dock, those

in charge of her exercised good judgment and prudent seamanship.‖

Private Necessity as privilege: A defendant who in an attempt to save his own

property has caused harm to another‘s is liable for compensation of those damages. A

defendant is not liable if the person to be benefitted by the destruction of the property is

the plaintiff/owner of the property.

Other Opinions: J. Lewis would find for the D based on an assumption of the

risk theory that all dock owners consent to simply by conducting business in the field.



Ploof v. Putnam (Vt. 1908)

General Facts: Plaintiff was sailing in Lake Champlain with his wife and two

minor children. A storm arose which was violent. In order to save the boat and protect

the family, P attached his ship to the dock of the D who owned a small island in the lake.

The D‘s servant released the tie to the dock. Then the ship was cast into the storm where

it was destroyed and the passengers injured.

Case History: This appears to be before the court on an interlocutory appeal from

a dismissal of the D‘s demurrer to the complaint‘s two counts. Count one: Trespass (to

land) when the servant unmoored the ship which was lawfully docked due to necessity.

Count two: Case (trespass to chattels) claiming that the servant had the duty to allow the

ship to dock and is negligently liable for the damage caused by the undocking. On

appeal, the demurrer denial was upheld and the case remanded for trial. The complaints

were specific enough to survive the demurrer. It was not necessary that the complaint

aver that there was an absence of natural ―docks‖ that could have been used by P.

Cause of Action: Trespass to land and Trespass to chattels (maybe Conversion)

Law: Extent of doctrine of private necessity: Necessity of a private person‘s

protection of property may defeat a trespass claim and thus not barr plaintiff‘s own

recovery if the need is present. This need is amplified and more justified when human

life and limb are at issue rather than mere property.



Barker v. Kallash (N.Y. 1984)

General Facts: Plaintiff (14) and two other boys (Kallash brothers) were making

a pipe bomb when it exploded harming the plaintiff. The other boys got the gunpowder

used from another boy (Melucci) who had gotten the gunpowder from fireworks bought

from (Judge). The parents of the plaintiff sued all of the other boys and their respective

parents.

Case History: Trial court granted summary judgment for Ds. Appellate court

affirmed and so did the highest court. All favored the Ds because the P‘s conduct which

was prohibited by law barred a tort claim based on Reno v. D’Javid.

Cause of Action: Negligence and Negligent supervision of parents

Law: Distinction between conduct regulated by law and that which is prohibited

by law: If conduct is contrary to the regulations of statute, then a person‘s ability to

recover in tort for damages caused to them will be limited by the principles of

comparative fault (negligence). However, if the person‘s conduct is prohibited by law

AND the conduct amounted to a ―serious‖ violation of the law, the person‘s ability to

recover in tort for damages will be barred.

Policy reasoning for this rule: ―The rule is based on ‗the paramount public policy

imperative that the law, whatever its content at a given time or for however limited period

by obeyed.‘‖ This is an extension of the rule that a wrongdoer should not profit from his

wrongdoing.

Extent to which the criminal conduct barr extends to conduct: Not all conduct

which is criminal will invoke this barr. Only ―when the plaintiff‘s injury is a direct result

of his knowing and intentional participation in a criminal act he cannot seek

compensation for the loss, if the criminal act is judged to be so serious an offense as to

warrant denial of recovery.‖

Application of criminal conduct barr when P cannot be held criminally liable:

Although the P would be too young in this case to suffer criminal punishment, the

criminal conduct barr still applies because the conduct was still theoretically criminal and

severe. Furthermore, the conduct here was not one in which a minor would not know that

the conduct was wrong or criminal.

Other Opinions: J. Simmons would not uphold the s.j. He would favor a

distinction because of Barker‘s age in relation to the criminal conduct barr. He also

questions the policy inherent in the barr. He also questions the usefulness of the rule

because of its requirement that the judge deem the criminal violation severe or egregious

for the rule to apply. Finally, he believes that the comparative fault statute‘s language of

―culpable conduct‖ would apply to this situation in which the plaintiff‘s ―culpable

conduct‖ would only diminish the award proportionate to the culpability of the P.



Sindle v. New York City Transit Authority (N.Y. 1973)

General Facts: S was 14 passenger on a school bus owned by N.Y.C.T.A. and

operated by Mooney. The children (65-70) were boisterous and some were causing

property damage. After trying to discipline them and get them to stop, M said that he

was taking them to the police station. Then several kids jumped off of the bus through a

window. While S was climbing out the window to jump, the bus turned, he fell (or

jumped) and the bus ran him over causing serious injuries. There was no evidence that S

was involved in the vandalism.

Case History: Plaintiff originally moved on grounds of negligence and false

imprisonment, but later only moved on the f.i. At the close of P‘s evidence, the D‘s

motion to amend to include aversion of justification was denied and trial went forward.

[P must have won.] On appeal it was affirmed, but the high court reversed citing error in

not allowing the D‘s motion to amend. The court noted that the burden would not be on

the P to disprove the motion and the P should have been prepared for such a defense as it

is typical in f.i. cases.

Cause of Action: False Imprisonment

False Imprisonment: (1) Intentional conduct by D; (2) Causation; (3) Confinement

of P within fixed boundaries set by D.

Law: Extent of justification generally: ―Restraint or detention, reasonable under

the circumstances and in time and manner, imposed for the purpose of preventing another

from inflicting injuries or interfering with or damaging real or personal property in one‘s

lawful possession or custody is not unlawful.‖

Here, there needed to be trial of the question of the reasonableness of the bus

driver‘s conduct in light of his responsibilities to the safety of the children and the

property of the bus.



2/4/2004



Anderson v. Sears, Roebuck, & Co. (E.D. La. 1974)

General Facts: Mother and infant daughter (Mildred and Helen) were severely

injured in a fire caused by a faulty Sear‘s heater. Helen (subject of this motion) was

injured beyond belief. She almost died due to the burns. She was burned over 40% of

her body including 80% of her scalp. She was hospitalized for 28 days and has endured

4/5 major operations to help. Her arm is permanently bent in an uncomfortable position,

some of her fingers and toes are webbed, and she cannot walk or talk without difficulty.

She is expected to need at least 27 more surgeries to help. She also will and has suffered

mental pain due to the tragedy occurring during the most formative time of a child‘s life.

She is never expected to lead a remotely ―normal‖ life.

Case History: Jury awarded Helen $2,000,000 in damages. This is a motion by

the Ds for remittitur. The trial judge review the maximum reasonable jury verdict and

denies the motion. The trial judge‘s calculation set the max here at $2,980,000 (actually,

$3,030,000, off by 50K).

Cause of Action: Product‘s liability

Product‘s liability:

Law: Elements to be considered in damages: (1) Past physical and mental pain;

(2) Future physical and mental pain; (3) Future medical expenses; (4) Loss of earning

capacity; (5) Permanent disability and disfigurement.

Standard for determining excessive damages: The maximum recovery rule

―directs the trial judge to determine whether the verdict of the jury exceeds the maximum

amount which the jury could reasonably find and if it does, the judge may then reduce the

verdict to the highest amount that the jury could properly have awarded.

NOTE: Other possible (in some jurisdictions) damage elements: (1) Hedonic

damages, loss of enjoyment of life‘s pleasures and activities; (2) Loss of consortium (for

spouse, parents, children and grandchildren), loss of companionship plus costs of medical

expenses and future costs; (3) Medical monitoring, the cost of keeping well from

checkups due to the injuries suffered or that might be possible to suffer like in toxic torts.



Helfend v. Southern California Rapid Transit District (Cal. 1970)

General Facts: H was injured in a bus-car accident caused by D and their agent,

the driver. However, H‘s insurance coverage provided him with compensation for nearly

80% of the medical expenses and the rest may have been paid by other sources.

Case History: Defendants moved to introduce the evidence of the insurance

payout to lessen the damage amount. The trial court denied the motion and the appellate

court upheld the exclusion of the evidence based on an affirmation of the ―collateral-

source rule.‖

Cause of Action: Probably negligence

Negligence:

Law: Collateral-Source Rule: when ―an injured party receives some

compensation for his injuries from a source wholly independent of the tortfeasor, such

payment should not be deducted from the damages which the plaintiff would otherwise

collect from the tortfeasor.‖

Policy reasons for the rule: (1) Defendant should not be rewarded due to the

diligence of having first-party insurance and paying the premiums. (2) Introduction of

the evidence would unduly reduce the normal jury verdict which would lessen the take-

home for both the P and the P‘s counsel. (3) Often, the insurance company will take back

the already paid portion from the judgment against the D under the doctrine of

subrogation. (4) The duality of the insurance and tort judgments help to ensure that the P

will be fully compensated.

NOTE: Some jurisdictions have changed or abolished the rule citing the

possibility of double-recovery on the part of the P which then rewards the P for being

injured.



Zimmerman v. Ausland (Ore. 1973)

General Facts: Z was injured in an car accident and suffered knee injuries. Z‘s

doctor said the injuries were ―permanent‖ and although surgery was possible to repair, it

was not certain, only ―optimistic‖ that Z would recover nicely. A‘s doctor said that the

injuries were not permanent, but with a reasonable and routine operation, Z would

achieve a full recovery.

Case History: Jury returned verdict on damages for $7,500 (A admitted liability).

This was at least partially based on the trial instruction that if the jury thought the injuries

were permanent, they could use the mortality table directed to them by the judge to

determine the extent of the damages. On appeal, the court upheld this verdict. They

found that sufficient evidence existed to send the issue of permanence of injury to the

jury.

Cause of Action: Negligence

Negligence:

Law: Use of mortality tables: The admission of mortality tables in a personal

injury case in conditioned on the injuries being permanent.

Extent to which the P must avoid the potential permanency of the injuries: ―The

plaintiff in a personal injury case cannot claim damages for what would otherwise be a

permanent injury if the permanency of the injury could have been avoided by submitting

to treatment by a physician, including possible surgery, when a reasonable person would

do so under the same circumstances.‖ If the treatment would be unreasonable or some

reasonable could reject the treatment, then failure to submit to treatment will not reduce

the damage award.

Factors to be included in determination of the ―avoidable-consequences rule‖: (1)

the risk involved in the treatment; (2) the probability of success; (3) expenditure of

money or effect required; and (4) in some jurisdictions only, pain of the procedure.

Burden of proof for avoidable-consequences rule: The P has the burden of proof

that the injuries were permanent, but the defendant has the burden to show that the P

unreasonably failed to mitigate the damages by not submitting to surgery (treatment).



Gonzalez v. N.Y.C. Housing Authority (N.Y. 1991)

General Facts: Marta (21) and Antonio‘s (19) grandmother was murdered. Each

of the grandchildren were financially independent adults. However, the grandmother had

served as the primary parental figure in their lives since the death of their father and the

mental incompetence of their mother. The grandchildren‘s mother was also cared for by

the grandmother. M and A sued the housing authority where the grandmother lived. The

grandmother was beaten after being tied up to the leg of a bureau. Although the

grandchildren no longer lived with the grandmother, they had lots of contact and the

grandmother often times helped by making dinner and providing advice and child-care

for M.

Case History: At trial the jury found for the Ps for $1,250,000 for wrongful death

and $1,000,000 for the conscious pain and suffering of the grandmother. These awards

were reduced by the trial judge to $100,000 and $350,000 respectively. On appeal, the D

challenged the validity of both award components. The court upheld both citing the true

extent of the pecuniary damages felt by the Ps as well as the undoubted pain and

suffering felt by the victim.

Cause of Action: Wrongful death

Wrongful death

Law: Definition of pecuniary damages: ―In distinction to those injuries to the

affections and sentiments which arise from the death of relatives, and which, though most

painful and grievous to be borne, cannot be measured or recompensed by money. It

excludes, also, those losses which result from the deprivation of the society and

companionship of relatives, which are equally incapable of being defined by any

recognized measure of value.‖

What can count as pecuniary damages: ―Loss of support, voluntary assistance and

possible inheritance, as well as medical and funeral expenses incidental to death.‖ For a

wage earner, loss of earning potential including a consideration of present and future

earnings in light of possible advancement. In the case of non-wage earners, ―pecuniary

injuries may be calculated from the increased expenditures required to continue the

services she provided, as well as compensable losses of a personal nature, such as loss of

guidance.‖



O’Shea v. Riverway Towing Co. (7th Cir. 1982)

General Facts: O was 58 widow who worked as a cook on a riverboat. She

earned 7200 a year. She testified that she was about to take a job that would earn her

more (10,800 a year). She only worked some of the time and had never earned as must as

3600 in any single year. However, until the death of her husband, she never worked and

only works now to help support herself to the extent that her inheritance fails. The sole

issue was the appropriate amount of loss of future income capacity. In particular, the

extent to which interest rates should be used.

Case History: At trial, P awarded 86,033 by the judge. Economist put the range

of lost income between 50,000 and 114,000. On appeal, this award was criticized for

lack of economic analysis, but upheld.

Law: Previous wages do not put a cap on an award for lost future wages.

Inflation should ―be treated consistently in choosing the discount rate [as in

present-value calculations] and in estimating the future lost wages to be discounted.‖

Furthermore, trial courts should include an opinion with regard to how such awards were

calculated by them. NOTE: I hate economics and Posner.



2/9/2004



In re Air Crash Disaster Near Chicago on May 25, 1979 (7th Cir. 1986)

General Facts: Walter Lux (52) was a pilot on a flight that crashed shortly after

takeoff and died. He was survived by his wife (49), and son (22). During the year of his

death, W earned $78,954. He also had various fringe benefits such as medical and dental

insurance. W‘s wife claimed a total of $1,589,930 in lost support of which $1,000,000

was from lost income. At trial, the district court judge refused to allow evidence as to the

income taxes that W would have had to pay from his salary and refused to give a jury

instruction that would have informed them that the jury award would be tax free.

Case History: P won at trial. On appeal, D alleged the errors mentioned above,

and the court reversed and remanded based on those errors. This was a diversity

jurisdiction case based on Arizona substantive law.

Cause of Action: Wrongful death

Wrongful death

Law: The measure of pecuniary damages in wrongful death actions: According to

the R.2d of Torts, ―the recovery of the statutory beneficiaries is measured by the

contributions that the deceased would have made to them if he had lived.... This amount

obviously could not be equivalent to his gross earnings, as he could not have given them

funds that he spend on himself or paid in taxes or used for other purposes; and an

appropriate percentage of his expected earnings, taking into consideration these various

types of expenditures, is proper.‖



Micari v. Mann (N.Y. Sup. Ct. 1984)

General Facts: Several acting students were defrauded into performing sexual

acts with the D and with each other in front of the D in order to enhance their acting

ability and to rid the students of their inhibitions. The D was a reputable trainer in the

acting profession as was effectively acting in loco parentis.

Case History: At trial the jury awarded each P $2000 in compensatory damages

($500 for assault, $1000 for battery, and $500 for IIED), but no punitive damages. On

appeal, the Ps sought a new trial for inadequate damages b/c of the absence of any

punitive damages. The appellate court granted with regard to the punitive damages and

remanded the case for a trial solely on the issue of the extent of punitive damages, unless

the D agreed to $5000 per P for punitive damages.

Cause of Action: Assault, Battery, IIED

Assault: (1) Intentional conduct by D; (2) Causation; (3) Apprehension of

imminent battery for the P.

Battery: (1) Intentional conduct by D; (2) Causation; (3) Harmful or offensive

touching of the person of the P.

IIED: (1) Intentional or reckless conduct by D; (2) Extreme or outrageous conduct

by D; (3) Causation; (4) Severe emotional distress for P.

Law: When courts may increase compensatory damages: ―A court may set aside a

verdict only if the award if found to be ‗so grossly inadequate as to be unconscionable,‘

or put another way, to avoid usurping the function of the jury, the power should be used

‗only if the verdict is so disproportionate to the injury as to not be within reasonable

bounds.‘‖ Here the Appellate court did not allow the new trial for inadequate

compensatory damages.

When punitive damages are appropriate: ―Where the wrong complained of is

morally culpable, or is actually by evil and reprehensible motives, not only to punish the

defendant, but to deter him, as well as others who might otherwise be so prompted from

indulging in similar conduct.‖

When a court may order a new trial for lack of punitive damages: ―A court

possesses [the power] to increase an inadequate or nominal award of compensatory

damages exists with respect to punitive damages‖ whenever ―the rare situations where the

failure of the jury to award punitive damages, or the award of an inadequate sum, shocks

the conscience of the court.‖

Policy reason for the power to overturn the lack of punitive damages: ―Society has

a major interest in the size of the award, as punitive damages are not merely a peace-

keeping device between the parties,‖ but rather a means of community wide deterrence

from similar activities.



BMW of North America, Inc. v. Gore (U.S. 1996)

General Facts: G bought a BMW from an Alabama dealer for 40K. The dealer

did not disclose that the car had been damaged in shipping and was therefore repainted.

However, under BMW‘s policy, he did not have to do so unless the total cost of repair

was greater than 3% of the total purchase price. After driving the seemingly perfect car

for 9 months, G took it to a detailing shop where the defect was noticed. G cited actual

damages at $4,000 for the 10% difference in value of a new versus damaged car. He also

sought punitive damages based on the number of times that he alleged that BMW had

done this sort of thing. He cited nearly 1000 nationwide cases. BMW‘s policy was in

compliance with the most stringent state requirements as to disclosure of this sort of

information, and the activity had never been ruled unlawful.

Case History: At trial the jury awarded $4,000 compensatory damages and

$4,000,000 in punitive (based on the 1000 alleged nationwide cases). On appeal, the

Alabama S. Ct. upheld the use of punitive damages, but reduced the amount to

$2,000,000 because state sovereignty that would restrict the alleged other incidents only

to Alabama cases. The U.S. S. Ct. reversed and remanded the award of punitive damages

as a violation of the 14th Amend Due Process Clause.

Cause of Action: No clue

Law: When punitive damages are appropriate: ―Punitive damages may properly

be imposed to further a State‘s legitimate interest in punishing unlawful conduct and

deterring its repetition. In our federal system, States [have flexibility here]. Only when

an award can fairly be categorized as ―grossly excessive‖ in relation to these interests

does it enter the zone of arbitrariness that violates the Due Process Clause of the 14th

Amend.‖

Requirement of ―Fair Notice‖ that punitive damages are possible: ―Elementary

notions of fairness enshrined in our constitutional jurisprudence dictate that a person

receive fair notice not only of the conduct that will subject him to punishment but also of

the severity of the penalty that a State may impose.‖

Three guideposts for determining excessiveness of punitive damages: (1) Degree

of reprehensibility (―Some wrongs are more blameworthy than others‖; Only economic

harm alone usually is not reprehensible enough; ―deliberate false statements, acts of

affirmative misconduct, or concealment of evidence of improper motive...[are] ordinarily

associated with egregiously improper conduct [worthy of punitive damages].‖); (2) Ratio

of compensatory and punitive damages awarded (While no bright line mathematical

calculation to determine constitutionality is possible, ―a general concern of

reasonableness properly enters into the constitutional calculus.‖); (3) Sanctions for

Comparable Misconduct, either civil or criminal (there needs to be some relationship

between the punitive award and comparable sanctions so as to give the tortfeasor some

notion of the severity of the punishment that is possible.)

Other Opinions: Scalia and Thomas do not see the 14th Amend as something that

imposes any ―federal guarantee [that] a damages award actually be reasonable.‖

Ginsburg and Renquist simply do not believe that the determination of

reasonableness in relation to punitive damages imposed by the States is an area of law

that the S. Ct. should bother with.



Price v. Hartford Accident and Indemnity Co. (Ariz. 1972)

General Facts: Mother (Elsie) had a policy covering her car as to herself and her

son (Charles, 17) for over $1,000,000 to cover ―‗all sums‘ for which either of them might

become liable to pay as damages ‗arising out of the ownership, maintenance or use‘‖ of

the car. C drove the car in a drag race with another boy in which an innocent, Gary

Gardner, was injured. G brought a tort suit seeking 100K compensatory and 25K

punitive damages. H provided a lawyer to defend, but indicated that any punitive

damages awarded would not be covered by the policy. E then brought this suit to force H

to pay any possible punitive damages to the policy limit.

Case History: Trial court ruled for H. On appeal, the court reversed citing six

flaws with the policy argument that socially irresponsible or reprehensible conduct that

invokes punitive damages should not be rewarded by the D using insurance policies. The

six flaws were as follows: (1) the D would not completely avoid penalties, here possible

criminal penalties; (2) H had volunteered to pay punitive damages by using the risk of

that into the calculation of premiums; (3) Criminal penalties will help to deter and punish

D; (4) Punitive damages seek not only to punish and deter the D, but also to deter the

whole of society from engaging in the same conduct; (5) the states that adopt the contrary

rule have not seen a drop in highway accidents; (6) Public policy of enforcing the

insurance agreement to pay is also strong.

Cause of Action: nothing, seeking enforcement of policy

Law: Extent to which punitive damages can be covered by insurance policies:

Some states allow this (Ariz.), others do not. The difference is a matter of conflicting

public policies. Enforcing insurance company‘s agreements to pay vs. not allowing the D

to ―get off‖ from punishment of punitive damages.



Fein v. Permanente Medical Group (Cal. 1985)

General Facts: Medical malpractice suit for failure to diagnose an impending

heart attack.

Case History: Jury awarded more than received after judge reduced the awards

based on ―caps‖ from legislation. On appeal, the whole verdict was affirmed and the

capping legislation was upheld as constitutional.

Cause of Action: Medical malpractice

Law: These laws sometimes violate due process, equal protection, or state

constitutions



Palsgraf v. Long Island Railroad Co. (N.Y. 1928)

General Facts: Two men were running to catch a train that had just started to

move. One of the men made it without incident. The other ―jumped aboard the car, but

seemed unsteady as if about to fall. A guard on the car, who had held the door open,

reached forward to help him in, and another guard on the platform pushed him from

behind.‖ Because of this, a small, newspaper covered package (15'‘ long) that the man

was carrying fell to the rails. This package although one could not tell from its outward

appearance, contained fireworks that exploded upon impact. This impact caused several

large baggage scales to wobble. One such scale fell and struck the P and caused injuries.

P then sued for those injuries.

Case History: At trial, verdict for the plaintiff on negligence grounds. On appeal,

the court reversed because of a lack of foreseeability of the harmful consequences.

Cause of Action: Negligence

Negligence: (1) Duty of care; (2) Breach of the duty; (3) Causation; (4)

Damages

Law: The extent of a negligence relationship: ―Negligence is not actionable

unless it involves the invasion of a legally protected interest, the violation of a right.‖

Likewise, ―the plaintiff must show ‗a wrong‘ to herself, i.e., a violation of her own right,

and not merely a wrong to someone else, nor conduct ‗wrongful‘ because unsocial, by not

‗a wrong‘ to any one...‖ Therefore, the negligence action is the action to recompense a P

for the wrong caused to him/her by the D, not the D‘s wrong act that also happened to

harm the P.

Importance of ―foreseeability‖: ―If no hazard was apparent to the eye of ordinary

vigilance, an act innocent and harmless, at least to outward seeming, with reference to

her, did not take to itself the quality of the tort because it happened to be a wrong, though

apparently not one involving the risk of bodily insecurity, with reference to someone

else.‖ Furthermore, ―the risk reasonably to be perceived defines the duty to be obeyed

and risk imports relation; it is risk to another or to others within the range of

apprehension.‖ However, ―it is not necessary that the defendant should have had notice

of the particular method in which an accident would occur, if the possibility of an

accident was clear to the ordinary prudent eye.‖

When negligence becomes tortious: ―Negligence, like risk, is thus a term of

relation. Negligence in the abstract, apart from things related, is surely not a tort, if

indeed it is understandable at all...‖

Written by Cardozo

Other Opinions: Justice William Andrews dissents based on a difference of

perception of the nature of the tort of negligence. Andrews believes that although

negligence cannot occur in a vacuum, it is ―not merely a relationship between man and

those whom he might reasonably expect his act would injure; rather, a relationship

between him and those whom he does in fact injure...‖ Therefore, ―due care is a duty

imposed on each of us to protect society from unnecessary danger, not to protect A, B, or

C alone.‖ Consequently, under Andrews‘ analysis, the appropriate question is one of

proximate causation, not negligence.

For Andrews (and maybe others), proximate cause is not logical, but merely a

politically convenient way to decide where to stop drawing the line back to a single

event. Proximate cause is of course something that would not occur but for the cause, but

this is not extended indefinitely. ―We trace the consequences, not indefinitely, but to a

certain point. An to aid us in fixing that point we ask what might ordinarily be expected

to follow the [event].‖

2/11/2004



Nussbaum v. Lacopo (N.Y. 1970)

General Facts: N lived and owned a home on a golf course. N‘s property line

ran parallel to the 13th fairway. Between N‘s patio and the fairway was 20-30 feet of

rough which contained 45-60 foot-high trees which served as a natural barrier between

the house and the course. At the time of the incident, the trees were in full foliage. The

normal trajectory of tee shots would be well to the right of the property line and N‘s

house. L (trespasser on the golf course) teed off and his shot hooked dramatically. The

ball went over the trees to the left and allegedly struck N. L did not yell ―fore.‖

Case History: At trial, the court entered a directed verdict at the close of the P‘s

evidence. On appeal, the court upholds this order. The court does so because the risk of

injury to N was not foreseeable from the natural and probable consequences of the errant

shot due to the physical evidence.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Balancing test of foreseeability and duty: ―The care [must] be

commensurate with the risk and danger.‖ ―Lack of due care is not demonstrated when

the undisputed physical evidence proves that it could not have been reasonably

anticipated that the harm complained of would result from the natural and probable

consequences of the act claimed to be negligent.

Burden for P for duty balancing test: ―His burden of proof required that the act

testified to, which he asserts constituted negligence, was not merely possible, but

probable.‖

NOTE: This probable, not just possible is problematic b/c this is too high of a

standard. The appropriate standard is that the burden is showing a ―substantial risk.‖



Gulf Refining Co. v. Williams (Miss. 1938)

General Facts: G sold petroleum products including gas to be used by farmers.

One barrel of gas was sold to W‘s employer to use in refilling tractors. When W used it

the first time, the bung-cap, which had deteriorated threads due to nine years of normal

use, caused a spark which caused a fire which burned and injured W.

Case History: At trial, W recovered damages from a jury. On appeal, the jury

award was upheld because the duty of care for G encompassed W because G dealt with

an inherently dangerous item although the probability of this exact event happening was

low (actually, it had never happened before).

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Degree of foreseeability needed to sustain action: It ―is not whether the

thing is to be foreseen or anticipated as one which will probably happen, but whether it is

likely to happen, even though the likelihood may not be sufficient to amount to a

comparative probability.‖

Test for foreseeability: ―The test as respects foreseeability is not the balance of

probabilities, but the existence...of some real likelihood of some damage and the

likelihood is of such appreciable weight and moment as to induce, or which reasonably

should induce, action to avoid it on the part of a person of a reasonably prudent mind.‖

We only need ―reasonably foreseeable‖ harm.

Since G was engaged in such a inherently dangerous business, the foreseeability

of the damage from this event, even though such events had not happened, was enough to

create a duty of care owed to W to induce liability.



U.S. v. Carroll Towing Co. (2d Cir 1947)

General Facts: Employees of the U.S. failed to properly secure C‘s ship to the

dock. The ship floated away, struck another ship and sank. C did not have an attendant

on board the ship at the time. The attendant had been gone for 21 hours. The ship was in

N.Y. harbor during a busy January with lots of war activity.

Case History: At trial, C won damages, but they were reduced due to a

comparative negligence rule in admiralty. On appeal, the reduction in damages was

affirmed b/c C had a duty of care to have someone on the ship at the time of the accident.

This is so b/c the circumstances of the harbor with high volume required that to

adequately prevent damage, the ship owners should have a hand on deck during daylight

unless there is a good and valid excuse.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Three factors to consider in this type of case to determine duty: (1) the

probability that the ship will break away (P); (2) the gravity of the resulting injury (L);

(3) the burden of adequate precautions (B). In algebraic terms, liability will attach if

B


Chicago, B & Q. R.R, Co. v. Krayenbuhl (Neb. 1902)

General Facts: K was four-years old. The RR had a turntable within 70 feet of a

public sidewalk where K and his family traveled. To prevent danger, the RR company

had a policy that the turntable should have a lock and be locked when not in use. RR

employees disregarded the policy and the turntable was in poor condition and not locked.

One day, K and other children came to play with the turntable. K‘s foot was trapped

against a rail and severed.

Case History: At trial, the jury awarded damages to K. On appeal, the verdict

was upheld as to the duty owed to K, but reversed on other grounds.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: The extent of duty (liability) for an operator of a dangerous item in relation

to children: ―Where the owner of a dangerous premises knows, or has good reason to

believe, that children so young as to be ignorant of the danger will resort to such

premises, he is bound to take such precautions to keep them form such premises, while

there, as a man of ordinary care and prudence, under like circumstances, would take.‖

Balancing test for duty (liability): ―The determination of the question of

negligence, regard must be had to the character and location of the premises, the purpose

for which they are used, the probability of injury therefrom, the precautions necessary to

prevent such injury, and the relations such precautions bear to the beneficial use of the

premises.‖



Young v. Clark (Colo. 1991)

General Facts: Y was driving ahead of C in the center lane on a divided highway

in Colorado. Lanes were ending due to construction. An unidentified driver swerved out

of the center lane to the right and quickly back. This caused a line of cars to brake. At

the same time as the swerving, C looked back to check for other cars before moving to

another lane. A passenger yelled about the slowing of cars, and C tried to stop, but

failed. C hit the rear of Y‘s car causing injuries.

Case History: At trial, the jury found for C b/c C was in a ―sudden emergency‖

and such had to be considered in relation to the duty owed to Y at the time. On appeal,

the court upheld the jury instruction and the verdict. The court also upheld the ―sudden

emergency rule‖ in the face of attacks to its continued use and validity since other

jurisdictions have abolished it.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Scope of the ―sudden emergency doctrine‖: It ―was developed by courts to

recognize that a person confronted with sudden or unexpected circumstances calling for

immediate action is not expected to exercise the judgment of one acting under normal

conditions.‖ The rule does not lower the standard of care, but allows the emergency

situation to bear on the jury‘s decision as to reasonable conduct under the circumstances.

The doctrine applies ―where the sudden emergency is created in any way other than by

the actor‘s own tortious conduct, as where it is created by the unexpected operation of a

natural force or by the innocent or wrongful conduct of a third person.‖

The rule should stand (at least in Colorado) despite the possibility that jurors will

be confused into thinking that the rule lowers the standard of care as long as the

instruction is clear. Although the rule‘s original purpose was to soften the harsh blow of

the old contributory negligence rule, the new comparative negligence rule allows the

sudden emergency rule to apply to both P and D, and is therefore not inconsistent with

each other.



Williams v. Bright (N.Y. App. 1997)

General Facts: Robbins (P) was the passenger in her father‘s car. Her father fell

asleep at the wheel and the car went off the road causing injuries to R. R‘s injuries (to

her hip and knee) could have been mitigated by surgery which had a high probability of

success. R is a devout Jehovah‘s Witness and that faith forbids any medical treatment

that would include blood transfusions.

Case History: At trial, the jury found for the P. The trial court instructed the jury

that an injured person must take all reasonable measures to mitigate their damages.

Furthermore, the trial judge instructed that, in this case, R‘s religious beliefs had to be

taken into account and that the jury could not pass judgment as to the soundness of the

beliefs. These beliefs had to be taken as true. On appeal, the court found the instruction

to be error and reversed giving the appropriate instruction in this type of case.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Scope that a person‘s religious beliefs have on reasonable person standard:

A person‘s religious beliefs should be taken into account, but not so as to pass judgment

(either favorable or not) on the beliefs or to foreclose the jury‘s ability to assess the

reasonableness of the belief itself in relation to the events.

Appropriate jury instruction in this case: ―In considering whether the plaintiff

acted as a reasonably prudent person, you may consider the plaintiff‘s testimony that she

is a believer in the Jehovah‘s Witness faith, and that as an adherent of that faith, she

cannot accept any medical treatment which requires a blood transfusion. I charge you

that such belief is a factor for you to consider, together with all the other evidence you

have heard, in determining whether the plaintiff acted reasonably in caring for her

injuries, keeping in mind, however, that the overriding test is whether the plaintiff acted

as a reasonably prudent person, under all the circumstances confronting her.‖



Goss v. Allen (N.J. 1976)

General Facts: G was an experienced skier and the first aid attendant on the

beginner‘s slope of a ski lodge. A was a 17 year-old inexperienced skier who was trying

his first attempt at downhill skiing. While trying to make a turn, A lost control and

eventually hit G.

Case History: At trial, the jury found for A. The trial judge instructed the jury

that the proper reasonable person test was a reasonable 17 year old in the circumstances

would use. Initially, this was found to be error on appeal. However, the N.J. Supreme

Court held that this was not error and reinstated the verdict for A.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Reasonable person standard with minors: Regardless of the exact age of a

minor, a minor‘s reasonable person standard is ―a reasonable person of like age,

intelligence, and experience under the circumstances.‖ However, ―the nature of the

activity in which the minor engaged‖ is relevant since some activities are ―so potentially

hazardous as to require that the minor be held to an adult standard of care.‖



Breunig v. American Family Ins. Co. (Wis. 1970)

General Facts: B was hit by Erma Veith who was insured by D. E was insane

and suffered from a ―schizophrenic reaction, paranoid type, acute‖ at the time of the

accident. E thought that god was controlling her car and that she should stomp on the gas

to become airborne after she saw the truck in her path.

Case History: At trial, the jury awarded damages to B. On appeal, the verdict

was upheld because there was sufficient evidence that E‘s tendency towards delusion was

known to her and therefore, she did not meet the narrow exception that the court makes.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Scope to which mental deficiencies will foreclose liability: Generally,

insanity will not eliminate liability. In some cases it can though if it meets the following

limited instance. ―The effect of the mental illness or mental hallucination must be such

as to affect the person‘s ability to understand and appreciate the duty which rests upon

him to drive his car with ordinary care, or if the insanity does not affect such

understanding and appreciation, it must affect his ability to control his car in an ordinary

prudent manner. And in addition, there must be an absence of notice or forewarning to

the person that he may be suddenly subject to such type of insanity or mental illness.‖

Essentially, the mental illness must be the equivalent as sudden physical incapacities in

their scope and unexpectedness.

Policy reasons for rule: (1) Where one of two innocents should suffer a loss, it

should be borne by the one who caused it (compensation); (2) those who are responsible

for the insane person should be encouraged to restrain him/her so as to not cause harm to

others (deterrence); (3) insanity defense, if allowed, could lead to many false claims of

insanity (avoidance of intractable inquiries).





2/16/04



Hodges v. Carter (N.C. 1954)

General Facts: H owned a drug store that burned. He submitted claims to each

of his four fire insurance carriers. Each of the carriers severely rejected the claims. H

hired C and Topping to represent him in suit against the insurance companies. C and T

filed a complaint and ―served‖ the four companies via the Commissioner of Insurance for

the State of North Carolina who had yet unchallenged statutory authority to serve as the

agent of insurance companies who operate in the state. The insurance companies

challenged the service and eventually the service was held to have been invalid. H then

started this legal malpractice action based on the error to serve properly.

Case History: After H‘s evidence, the suit was dismissed. On appeal, this was

upheld b/c the attorneys‘ action was not negligent

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Ordinary duty owed by an attorney: ―When an attorney engages in the

practice of the law and contracts to prosecute an action in behalf of a client, he impliedly

represents that (1) he possesses the requisite degree of learning, skill and ability

necessary to the practice of his profession and which others similarly situated ordinarily

possess; (2) he will exert his best judgment in the prosecution of the litigation entrusted

to him; and (3) he will exercise reasonable and ordinary care and diligence in the use of

his skill and in the application of his knowledge to his client‘s cause.‖

What does not constitute negligence: ―An attorney who acts in good faith and in

an honest belief that his advice and acts are well founded and in the best interest of his

client is not answerable for a mere error of judgment or for a mistake in a point of law

which has not been settled.‖ NOTE: This does not mean that any good faith mistake will

be excused. A lawyer will still be judged according to acceptable practice standards.

What does constitute negligence: ―He is answerable in damages for any loss to his

client which proximately results from a want of that degree of knowledge and skill

ordinarily possessed by others of his profession similarly situated, or from the omission

to use reasonable care and diligence, or from the failure to exercise in good faith his best

judgment in attending to the litigation committed to his care.‖

Russo v. Griffin (Vt. 1986)

General Facts: Frank and Tony Russo received a dual interest in their father‘s

paving business. F later wanted to go into the laundromat business, and wanted to sell his

interest in the paving busines to his brother. G worked out the details, but failed to

mention the usefulness or desirability of a covenant-not-to-compete clause. Three

months after the sale, F started his own paving firm in direct competition with T. G was

sued for legal malpractice.

Case History: At trial, the court found for D. On appeal, the court reversed citing

the incorrect application of the ―locality rule‖ in determining the reasonableness of a

professional‘s conduct.

Cause of Action: The tort of negligence (legal malpractice)

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Reasons for ―locality rule‖: It was designed to protect small-time

professionals in rural areas to being held to the same level of care as urban counterparts

when the rural persons would have less training or technological advantages. In medical

practice, the locality rule has been abolished since doctors must all meet a national

standard. In legal practice, the locality rule is still in effect, but the locality is no longer a

single town, but the state.

Other opinions: Justice Hayes would impose a national standard.



Boyce v. Brown (Ariz. 1938)

General Facts: Nancy Boyce broke her ankle in 1927. Dr. Brown was her

physician who set an monitored the condition. As a part of that, the B placed a screw in

her ankle through surgery. Seven years later, N‘s ankle caused her pain. B treated the

pain, but did not take any X-rays. After no improvement, N went to a second doctor who

took an X-ray, saw that the screw had been damaged, and surgically removed the screw

leading to a good recovery.

Case History: At trial, the claim of medical malpractice was dismissed after the

P‘s evidence. On appeal, the dismissal was upheld due to lack of evidence meeting the

accepted legal standard (6 part) for the claim.

Cause of Action: The tort of negligence (Medical malpractice)

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Six part rules of law concerning actions of malpractice: (1) ―One licensed

to practice medicine is presumed to possess the degree of skill and learning which is

possessed by the average (NOTE: other courts change this to minimum) member of the

medical profession in good standing in the community in which he practices, and to apply

that skill and leaning, with ordinary and reasonable care, to cases which come to him for

treatment‖; (2) Before liability attaches, the D must have done something which is

forbidden by the standards of the profession or failed to do something ordinarily required

by the standard; (3) The appropriate standard of the community of professionals must be

shown by positive evidence and without such evidence, a jury is not allowed to speculate

as to the appropriate standard; (4) Negligence is never presumed based on unsuccessful

results, but must be affirmatively proven; (5) The accepted standard of practice must be

demonstrated by expert testimony unless ―the negligence is so grossly apparent that a

layman would have no difficulty in recognizing it‖; and (6) Expert testimony that he/she

would have chosen a different course of conduct (treatment) does not establish

malpractice unless it also appears ―that the course of treatment followed deviated from

one of the methods of treatment approved by the standard in that community.‖



Scott v. Bradford (Okla. 1979)

General Facts: S was notified by her normal doctor that she had several fibroid

tumors on her uterus. The doctor referred S to B, a specialist. B performed a

hysterectomy. Later S developed a vesico-vaginal fistula which allowed urine to leak

from the bladder into the vagina. She went to a urologist who was able to remedy the

condition. B did not inform S of the risk of this condition resulting from the surgery.

Case History: At trial, the jury found for the D. On appeal, the court sustained

the verdict, but changed the applicable law in such actions in the future which would

have altered the result if applied to this case.

Cause of Action: Lack of Informed Consent (modification of negligence)

Lack of Informed Consent: (1) Duty of care to disclose risks, subject to three

exceptions; (2) Breach of the duty; (3) Causation shown by a subjective (normally

objective) assessment that the P would have chosen a different course of treatment

but for the lack of disclosure; (4) Damages from the lack of disclosure.

Law: Policy for Lack of Informed Consent as a COA: ―A patient‘s right to make

up his mind whether to undergo treatment should not be delegated to the local medical

group.‖

Three exceptions to the duty to disclose element: (1) No duty to disclose if the

risks ought to be or are known by the plaintiff; (2) No duty to disclose if disclosure would

actually be detrimental to the patients overall health; (3) No duty in an emergency

situation where the patient is in no position to determine the course of conduct for

himself.

Subjective vs. Objective standard for Causation element: Although most courts

require that the P would have not underwent the treatment but for the lack of disclosure

from an objective standpoint, this court prefers the subjective so as to protect the patient‘s

right of self-determination. The court also dismisses the claim that this policy would

subject the doctor to the hindsight of the patient by emphasizing that the doctor could

avoid the claim by meeting the duty.



Helling v. Carey (Wash. 1974)

General Facts: Medical malpractice case for failure to detect glaucoma. H was a

young patient in the office of C and his partner Laughlin. Starting in 1959, C and L

treated H for near-sightedness via contact lens. However, over the course of the next 9

years, H came in to the office on 10 times due to lack of vision. Each time until the last,

C and L thought the problem was simply faulty or misaligned contacts. However, on that

last visit the doctor performed the simple glaucoma pressure test and found the disease.

However, by this point, the disease had caused some irreversible harm. Normal practice

does not include routine pressure tests for patients under 40 (H was 32); however, normal

practice does include the test if the circumstances indicate that glaucoma should be

suspected.

Case History: Verdict for the Ds. Affirmed initially on appeal. However, this

court reversed and declared a new standard with regard to glaucoma testing cases.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Reasonable standard of care is this type of circumstances (glaucoma

testing): ―As a matter of law, the reasonable standard that should have been followed

under the undisputed facts of this case was the timely giving of this simple, harmless

pressure test to this plaintiff and that, in failing to do so, the defendants were negligent,

which proximately resulted in the blindness sustained by the plaintiff for which the

defendants are liable.‖

Policy reason for the rule change: Persons under 40 are ―entitled to the same

protection, as afforded persons over 40.‖ Furthermore, ―the precaution of giving this test

to detect the incidence of glaucoma to patients under 40 years of age is so imperative that

irrespective of its disregard by the standards of the ophthalmology profession, it is the

duty of the courts to say what is required to protect patients under 40 from the dangerous

results of glaucoma.‖



Walker v. Bignell (Wis. 1981)

General Facts: W and B were in an accident at an intersection of two rural

highways in Wisconsin. W claims that the county and nearby municipality were

negligent in their maintenance of weeds at the intersection which made seeing traffic

nearly impossible. A safety statute declared that it is the responsibility of ―highway

authorities‖ to maintain the vegetation and that the measure was designed to promote

safety.

Case History: At trial the gov‘t Ds were dismissed out via summary judgment. It

was initially affirmed; however, it was reversed on final appeal due to a failure to

consider the applicability of the safety statute to create negligence per se.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Extent to which safety statutes may create negligence per se: (1) the harm

inflicted must be the type that the statute was designed to prevent; (2) the person harmed

must be within the class of persons sought to be protected; (3) some legislative intent to

have the statute serve as the basis for negligence per se is required.



Pelkey v. Brennan (N.Y. App. 1961)

General Facts: P was 13 year old girl who was injured while at B‘s roller-skating

rink. A statute requires that in order to sustain moral and education standards of children,

it is a misdemeanor to allow children under 16 to be at certain places past 7:00 including

roller rinks.

Case History: At trial, the Ps won. On appeal, the court reversed holding that the

statute did not apply b/c the legislature did not intend it to apply in this situation.

Cause of Action: Negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Extent to which a non-civil liability statute may create liability for its

violation: Only if the damage sought upon violation of a statute enacted for the protection

of a special class is the same as the particular interest protected by the statute, can

liability attach for its mere violation.



Stachniewicz v. Mar-Cam Corp. (Or. 1971)

General Facts: S was injured in a bar fight as a bystander. Two groups of

already intoxicated persons who were still being served by the bar, started fighting and a

general melee broke out. After the group ran to the parking lot in fear of the police, S

was found on the floor. He suffered retrograde amnesia and could not remember the

events of the fight. An Oregon statute required that no one should serve an already drunk

person. An Oregon regulation required that a licensee of a liquor license must not allow

drunken fighting in their establishment or permit any visibly intoxicated person to remain

on the premises.

Case History: The jury ruled for the D. The trial judge found that the alleged

violations of the statute and the regulation did not constitute negligence per se. On

appeal, the court found that the statutory standard could apply, but the standard was too

vague to apply to any circumstance. However, the regulation standard of care did apply

and meant that the violation of it should result in negligence per se on the part of the D.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: What is required in order to have a statutory (regulatory) violation amount

to negligence per se: ―A violation of a statute or regulation constitutes negligence as a

matter of law when the violation results in injury to a member of the class of persons

intended to be protected by the legislation and when the harm is of the kind which the

statute or regulation was enacted to prevent.‖ ―However, in addition, it is proper for the

court to examine preliminarily the appropriateness of the standard [from the statute] as a

measure of care for civil litigation under the circumstances presented.‖ If the violation of

the measure would be able to show that but for the violation the injury would not occur,

the court will not adopt the standard for negligence.

Brown v. Shyne (N.Y. 1926)

General Facts: B contracted with S for S to provide chiropractic treatments.

Although S claimed to be a doctor, but was not licensed in violation of the Public Heath

laws. Later, after nine treatments, B became paralyzed.

Case History: At trial, the jury awarded $10K to B. The trial judge instructed the

jury that a violation of the public health laws could be the basis for the jury‘s decision for

B. On appeal, this instruction was held to be error and the case was remanded for a new

trial.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: Extent to which failure to comply with a licensing law can be negligence

per se: Although such licensing statutes are generally intended to promote safety, there is

no logical relationship between the violation of the licensing law and providing care or

treatments below the required standard of care. Therefore, the violation of such a law is

not sufficient to make our a prima facie negligence case.

NOTE: Some legislatures have explicitly made the violation of some licensing

laws prima facie cases of negligence.



Martin v. Herzog (N.Y. 1920)

General Facts: A collision occurred between a car and a buggy which resulted in

the death of the buggy driver. The car allegedly was driving on the wrong side of the

road while the buggy was not using headlights (it was without them) nearly an hour after

sundown. A highway law required that all vehicles carry headlights.

Case History: At trial the jury found for the plaintiff (buggy). The trial judge

said that the buggy‘s failure to have headlights could be considered as evidence of

contributory negligence, but it did not require a finding of contributory negligence. On

appeal, this was held to be error and remanded. The high court agreed.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4)

Damages

Law: The unexcused violation of the highway law here was not merely some

evidence of negligence: it was negligence per se.

NOTE: This is not the universal rule. Sometimes such a violation is reasonable.

Other times, a violation will only create a presumption of negligence. Other times, the

violation will only serve as evidence of negligence.



3/15/04



Wagon Mound No. 1(Privy Council 1961)

General Facts: A freighter in Sydney harbor spilled a great deal of furnace oil.

Six hundred feet away, men on a dock were using welding equipment. As the oil passed

by in the water, a rag that caught on fire and fell to the water ignited the oil. The

resulting fire destroyed the dock.

Case History: The trial court found that the Ds were negligent and the verdict

was for the plaintiff. The issue of proximate causation was affirmed by the Supreme

Court of New South Wales relying on the reasoning of Polemis, which endorsed a direct

consequences approach to proximate causation where any result that followed an actor‘s

negligence and where the causal chain was not broken by an intervening cause, the actor

is liable. The Privy Council overruled and allowed the appeal while discrediting Polemis

as good law.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation—both

factual and proximate; and (4) Damages.

Law: Extent of liability for tenuous harms: ―It is a principle of civil liability,

subject only to qualifications which have no present relevance, that a man must be

considered to be responsible for the probable consequences of his act. To demand more

of him is too harsh a rule, to demand less is to ignore that civilized order requires the

observance of a minimum standard of behavior.



Wagon Mound No. 2(Privy Council 1967)

General Facts: Same as WM1, but the resulting fire also destroyed two ships.

Case History: At trial, relying on WM1, the judge ruled for the Ds saying that

the likelihood of the oil catching fire was too remote for the harm to be foreseeable;

therefore, the proximate cause was lacking. On appeal to the PC, the judgment was

reversed and the Council cited the fact that the issue of foreseeability between the two

cases was different so the conclusion in WM1 was not binding on WM2.



Di Ponzio v. Riordan(N.Y. 1997)

General Facts: Di was filling his car‘s tank at the Def. URC‘s station when the

other Def. R also came into the station to get gas. R took about 5 minutes to fill his tank

while leaving the car on. This was in violation of URC‘s policies and if the employees

had had the intercom system on they should have forced R to turn off his car or cut the

gas to the pump. R then left the running car in park to pay for his gas. R did not want to

leave the car off because of a carburetor problem. The parking system on R‘s car failed

and the car rolled back into Di pinning him between his car and R‘s car. Di suffered a

broken leg. Di sued both R and URC.

Case History: URC moved for summary judgment to dismiss the case against

them. The trial judge denied the s.j. and held that the proximate causation defense raised

by the motion was an issue for the jury. On appeal, the appellate court reversed. The

high court upheld the reversal.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation—both

factual and proximate; and (4) Damages.

Law: ―Conduct is considered negligent when it tends to subject another to an

unreasonable risk of harm arising from one or more particular foreseeable hazards. When

the person is harmed by an occurrence resulting from one of those hazards, the negligent

actor may be held liable.‖

If URC had a duty of care towards Di, the duty to force R to turn off his car did

not extend to the particular harm of the broken leg. The harm caused to Di was not

within the risk of the harm associated with not turning off a car while refueling.



McCahill v. New York Transp. Co.(N.Y. 1911)

General Facts: M was hit by a taxi owned by D. M sustained injuries to his

knee and thigh. However, he died two days later because he developed delirium tremens.

A doctor testified that he would not have developed the disease when he did without the

accident. However, because of M‘s alcoholism he probably would have developed the

disease eventually.

Case History: The jury found the D liable and M not contrib. D appealed

arguing that the cause of M‘s death was not foreseeable from the negligence, essentially a

proximate causation defense. The high court disagreed and upheld the verdict and

announced what has become known as the ―eggshell skull doctrine.‖

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation—both

factual and proximate; and (4) Damages.

Law: ―The principle is also true, although less familiar, that one who has

negligently forwarded a diseased condition, and thereby hastened and prematurely caused

death, cannot escape responsibility, even though the disease would have resulted in death

at a later time without his agency.‖



Merhi v. Becker(Conn. 1973)

General Facts: M was injured by B while attending a union picnic. The picnic

was organized by the Local 1010 and it was decided that police persons should supervise

the picnic. There was to be a great deal of alcohol served and the planning committee

decided that 3-4 police officers would be adequate. However, only one security guard

who was 60 years old and not a police offer was hired. Although this was known prior to

the picnic, nothing was done to correct it. At the party, B was drunk and got into two

fights. B was not removed from the party. Later B went to his car to run down the

person he was fighting with and hit M instead of the other person.

Case History: At trial the jury awarded M a verdict. 1010 appealed arguing that

the jury finding of a duty of care breached as to M was unwarranted and the jury was

unreasonable in finding that if they were negligent that the negligence was the proximate

cause of M‘s injuries. The court upheld the verdict.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation—both

factual and proximate; and (4) Damages.

Law: ―If the defendant‘s conduct is a substantial factor in bringing about harm to

another, the fact that the defendant neither foresaw nor should have foreseen the extent of

the harm or the manner in which it occurred does not prevent him from being liable.‖

―The test is whether the harm which occurred was of the same general nature as

the foreseeable risk created by the defendant‘s negligence.‖



Kinsman No. 1(2d Cir. 1964)

General Facts: In winter when the Buffalo River had chunks of ice in it, The

Shiras, owned by Kinsman, was improperly moored to the docks of Continental due to a

faulty ―deadman.‖ The ship, due to pressure build-up from the ice, broke free, collided

with another ship (The Tewksbury) and eventually crashed into the Michigan street

bridge partially because the bridge operators (city employees) were not present. The

crash caused flooding in addition to the property damage to the other ship and the bridge.

Case History: At trial, Kinsman, Continental and the City were all held to be

liable. On appeal based on proximate causation question, the court held that the Ds all

owed a duty to the P (Palsgraf question), and that proximate causation was met.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation—both

factual and proximate; and (4) Damages.

Law: ―Foreseeability of danger is necessary to render conduct negligent.‖

―The weight of authority in this country rejects the limitation of damages to

consequences foreseeable at the time of the negligent conduct when the consequences are

―direct,‖ and the damage, although other and greater than expectable, is of the same

general sort that was risked.‖

―We see no reason why an actor engaging in conduct which entails a large risk of

small damage and a small risk of other and greater damage, of the same general sort,

from the same forces, and to the same class of persons, should be relieved of

responsibility for the latter simply because the chance of its occurrence, if viewed alone,

may not have been large enough to require the exercise of care.‖



Kinsman No. 2(2d Cir. 1968)

General Facts: Same as K1, this claim was brought by an owner of grain in a

ship upstream that was forced to pay extra transportation costs due to the accident.

The court held that this claim went beyond the bounds of liability by applying the

same principles.





3/17/04



Altamuro v. Milner Hotel, Inc.(E.D. Pa. 1982)

General Facts: A was killed while attempting to rescue persons during a hotel

fire. The fire was caused by a faulty TV which was known by the H‘s employee;

therefore the H was negligent. However, the firefighters had ordered that all civilians to

be evacuated prior to A‘s final attempt to save lives. A‘s wife sued the H for damages

resulting from A‘s death.

Case History: This is the trial court. The court held the H liable and awarded

A‘s estate $396,373 basing its decision on the rescuer doctrine.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation—both

factual and proximate; and (4) Damages.

Law: The rescue doctrine: Provides that when one person is exposed to peril of

life or limb by the negligence of another, the latter will be liable in damages for injuries

received by a third person, in a reasonable effort to rescue the one so imperiled.

However, the rescuer must not act rashly or imprudently when the circumstances

are taken under consideration. ―In such a case, he should not be charged with the

consequences of errors of judgments resulting from the excitement and confusion of the

moment.‖

Five situations where the rescue doctrine comes into play:

Superceding cause: Normal, although negligent, rescue efforts do not

break the causal chain as against the original wrongdoer. If the rescue

negligence was so out of the ordinary, it may break the chain.

Rescuer‘s liability to the victim: Although a negligent rescuer can be held

liable for injuries inflicted upon the victim, the circumstances

surrounding the attempted rescue are taken into account and the

rescuer usually is not held liable.

Injuries sustained by rescuer in rescue attempt: The original tortfeasor

also owes a duty to the rescuer and can be held liable for the injuries

sustained by a rescuer in a reasonable attempt to rescue. Similarly, a

victim who placed himself in peril owes a duty to those who may

attempt to rescue him.

Defenses based on the rescuer‘s conduct: Some courts hold that only if

the rescuer was reckless will his conduct bar his recovery while other

courts apply contributory negligence principle to bar recovery if the

rescuer was negligent in causing his own injuries.

Injuries to rescuers arising from another‘s negligence during a rescue: If

the rescuer is injured by a stranger‘s negligence, that stranger as well

as the original tortfeasor may be held liable for the injuries. The

doctrine will arise when considering the circumstances of a potential

defense of the stranger.



Barnes v. Geiger(Mass. App. Ct. 1983)

General Facts: Mother ran out to the scene of an accident where a boy was hit

by G‘s car. B thought that the boy was her son. It wasn‘t, but the next day, B died of a

cerebral vascular hemorrhage triggered by the accident‘s distress.

Case History: At trial G successfully moved for s.j. On appeal, this was upheld

because B was only an observer at best, not a rescuer.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation—both

factual and proximate; and (4) Damages.

Law: An observer cannot be extended the protections of the rescue doctrine. ―To

achieve the status of a rescuer, a claimant‘s purpose must be more than investigatory.

There must be asserted some specific mission of assistance by which the plight of the

imperiled could reasonably be thought to be ameliorated.

Requirements of the Rescue Doctine: (1) A risk of imminent peril (objective

standard) to person or sometimes property of another; (2) an act of intervention in

response to the peril by the purported rescuer; and (3) if the action is against the creator

of the peril, the P must establish that the peril resulted from the creator‘s tortuous

conduct, rather than an unavoidable accident.

A rescuer who was partially responsible for the creation of the peril may be

allowed damages resulting from the rescue considering the extent of the rescuer‘s fault

under comparative fault principles.



Fuller v. Preis(N.Y. 1974)

General Facts: Dr. Lewis, decedent, committed suicide seven months after a car

accident. Although he believed that he was fine, L developed severe seizures which

debilitated him. L‘s neurologist said that over the course of the seven months, L had at

least 38 seizures and was destined for many more before they would eventually destroy

his brain. On the day of the suicide, L suffered 3 different seizures and seemed very

unstable. He went into the bathroom and eventually shot himself. He left three suicide

notes, claiming that he was sane. The doctors believe otherwise.

Case History: At trial, P was awarded $200,000 by the jury. On appeal, the

verdict was overturned based on a lack of evidence and failure to state a claim. On final

appeal, the cause of action was upheld and a new trial awarded.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation—both

factual and proximate; and (4) Damages.

Law: ―Suicide, as a matter of law, is not a superceding cause in negligence law

precluding liability. An initial tortfeasor may be liable for the wrongful acts of the third

party if foreseeable.‖ However, ―there may be and undoubtedly have been cases where

the causal nexus becomes too tenuous to permit a jury to ‗speculate‘ as to the proximate

cause of the suicide.‖

NOTE: This is a new development in the law. In the past, due to a general

disfavor and fear of suicide, a person who committed suicide seemingly lost all rights

including the ability to have a wrongful death suit brought on their behalf by a survivor.



Goar v. Village of Stephen(Minn. 1923)

General Facts: G was severely injured by an electrical surge from the power-

line negligently installed by the Company and negligently maintained over a year and

half by the Village. In the K governing the relationship between the Company and the

Village, the Company agreed that the lines were free of fault and that the Company

would make all repairs free for a year. However, the Village had exclusive control and

responsibility for seeing to the maintenance of the lines.

Case History: P had a jury verdict against both the Company and the Village.

The award was remitted to $8,500 from $12,500. On appeal, the verdict against the

Village was sustained while the one against the Company was reversed b/c the Village‘s

negligence served as an intervening cause of the harm.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation—both

factual and proximate; and (4) Damages.

Law: Normally, the doctrine of shifting responsibility will not allow the

negligent omission to act of a third party to end the liability of an original tortfeasor;

however, this was deemed one of the unusual cases in which it would. ―Where there has

been such a lapse of time as we have here, and there is a duty, clear and affirmative, on

the part of the purchaser, to inspect an maintain as against that sure deterioration which is

bound to follow from ordinary use, and a complete failure of the performance of duty, but

for which the accident could not have happened, such failure becomes the proximate and

not merely a concurring cause.‖



Balido v. Improved Machinery, Inc.(Cal. App. Ct. 1973)

General Facts: B‘s hand was crushed by a piece of manufacturing equipment.

The machine was negligently made by Improved, sold originally to Paper Mate who later

sold it to Olympic (B‘s employer). Improved was aware of a possible defect with the

machine and notified O that they could fix the defect with a kit costing $500. O declined

and the injury occurred to B.

Case History: A nonsuit was declared as against all three Ds. O b/c Cal.‘s

Workmen‘s Comp law forbid the suit. PM b/c there was too little evidence to sustain a

verdict against them. I b/c the passing of time passed the responsibility to O and b/c I

informed O and offered to fix the problem and was denied which passed the

responsibility to O. On appeal, the nonsuit was upheld against O and PM, but reversed

for a trial against I b/c a jury could possibly find against them.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation—both

factual and proximate; and (4) Damages.

Law: ―It is apparently impossible to state any comprehensive rule as to when

such a decision [shift of duty] will be made. Various factors will enter into it. Among

them are the degree of danger and the magnitude of the risk of harm, the character and

position of the third person who is to take the responsibility, his knowledge of the danger

and the likelihood that he will or will not exercise proper care, his relation to the P or to

the D, the lapse of time, and perhaps other considerations.‖ Another consideration may

be the existence of a K between the D and the third person defining their obligations.

―As a general proposition it can be said that a manufacturer who has taken all

reasonable steps to correct its error may succeed in absolving itself from future liability.‖



Johnson v. Minn.(Minn. 1996)

General Facts: Stewart was a parolee who was supposed to report to a halfway

house. He didn‘t and went on a crime spree in which he raped and killed Melissa

Johnson. Her family sued the state, county, and the halfway house. While the state and

county have sovereign and official immunity generated by c.l. and statute, the issue of the

halfway house‘s duty was left.

Case History: At trial the court granted all defendants‘ motion for s.j. On

appeal, these were reversed. On final appeal, the s.j. motions were reinstated b/c the

halfway house had no duty to control or prevent the actions of Stewart.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation—both

factual and proximate; and (4) Damages.

Law: ―The fact that an actor realizes or should realize that action on his part in

necessary for another‘s aid or protection does not itself impose upon the actor a duty to

take such action.‖ R.2d 314

―There is no duty so to control the conduct of a third person as to prevent him

from causing physical harm to another unless (a) a special relation exists between the

actor and the third person which imposes a duty upon the actor to control the third

person‘s conduct, or (b) a special relation exists between the actor and the other which

gives rise to the other a right to protection.‖ R.2d 315

―Such special relationships exist between parents and children, masters and

servants, possessors of land and licensees, common carriers and their customers, or

people who have custody of a person with dangerous propensities.‖



De Vera v. Long Beach Public Transportation Co.(Cal. App. Ct. 1986)

General Facts: DV was a passenger on a public bus which was struck

negligently by a third person. DV claims that the bus co. had a duty to assist him in

finding out information about the accident to pursue a claim against the other driver.

The co. failed and DV sued. By statute, ―a carrier of persons for reward must use the

utmost care and diligence for their safe carriage, must provide everything necessary for

that purpose, and must exercise to that end an reasonable degree of skill.‖

Case History: The jury awarded DV $17,500. On appeal, this was sustained and

a new duty of care was extended to common carriers, the duty to assist with information

about accidents to the passengers.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation—both

factual and proximate; and (4) Damages.

Law: ―A common carrier is under a duty to its passengers to take reasonable

action (a) to protect them against unreasonable risk of physical harm, and (b) to give

them first aid after it knows or has reason to know that they are ill or injured, and to care

for them until they can be cared for by others.‖

The court found that public policy favored the extension of the new duty b/c the

common carriers are in a better position to help and the end result it a good one.



Kline v. 1500 Massachusetts Ave. Apartment Corp.(D.C. Cir. 1970)

General Facts: K was assaulted and robbed in the hallways of her apartment

building by a third person. While a doorman guarded the entrances when K began her

tenancy, as of 1966 these securities were stopped.

Case History: The trial court held that the landlord owed no duty to protect K

against the criminal acts of third persons. On appeal, a duty was found and the case

reversed and remanded for trial on damages.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation—both

factual and proximate; and (4) Damages.

Law: ―Certain duties are assigned to the landlord b/c of his control of common

hallways, lobbies, stairwells, etc. used by all tenant in multiple dwelling units. The duty

is the landlord‘s b/c by his control of the areas of common use and common danger he is

the only party who has the power to make the necessary repairs or to provide the

necessary protection.‖

3/29/04



Lewis v. Westinghouse Electric Corp. (Ill. App. 1985)

General Facts: L got stuck in the elevator of the D apartment complex which

was maintained by D Westinghouse. She was stuck there for 40 minutes. L claims that

during that time she was in fear of suffocation and serious bodily harm. As a result of the

experience, L suffered an unstable ―angina‖ and aggravation of her ―coronary

arteriosclerotic heart disease‖ and ―hypertension.‖ L sued for negligent infliction of

emotional distress.

Case History: The trial court dismissed the case for failure to state a cause of

action. On appeal, this was upheld b/c the court did not view the situation as one in

which the P could have objectively been reasonably in fear for her safety. Moreover, if

the P truly did suffer these harms, she was not a person of ordinary sensibilities so no

cause of action exists.

Cause of Action: Negligent Infliction of Emotional Distress

NIED:

Law: Fear of safety in the case of NIED is to be adjudged by an objective

standard. ―Indiscriminate allowance of action for mental anguish would encourage

neurotic overreactions to trivial hurts, and the law should aim to toughen the psyche of

the citizen rather than pamper it.‖



Johnson v. New York (N.Y. 1975)

General Facts: J was the daughter of a patient in a State hospital. She and

her aunt were falsely informed that their mother/sister died. Rather a different person by

the same name in the hospital died. However, J made the funeral arrangements including

the financial reservations. However, while viewing the body, the two had doubts as to

whether the person was really the mother. Then, during the wake, while emotionally

distraught, J exclaimed that the person was not her mother and became ―very, very

hysterical.‖ The deceased was not her mother; the hospital pulled the wrong file. Later, J

developed recurring nightmares about death and was diagnosed as suffering from anxiety

neurosis (excessive anxiety). J sued for compensatory and punitive damages.

Case History: At trial, the aunt‘s (estate) claim was dismissed and she did

not appeal. The court awarded $7500 for the funeral expenses and for emotional harm,

but denied punitive damages. On appeal, the lower court modified the award to $1658.47

which represents J‘s actual out-of-pocket funeral expenses alone. On final appeal, the

court reversed to allow the emotional harm to be reflected in the award. The court said:

―Recovery for emotional harm to one subjected directly to the tortious act may not be

disallowed so long as the evidence is sufficient to show causation and substantiality of

the harm suffered together with a ‗guarantee of genuineness.‘‖

Cause of Action: NIED

NEID:

Law: ―In the absence of contemporaneous or consequential physical injury,

courts have been reluctant to permit recovery for negligently caused psychological

trauma, with ensuing emotional harm alone.‖ However two exceptions exist. (1) ―The

minority rule permitting recovery for emotional harm resulting from the negligent

transmission by a telegraph company of a message announcing death.‖ (2) ―Recovery for

emotional harm to a close relative resulting from negligent mishandling of a corpse.‖

In these situations there are a special circumstances which gives rise to an

accurate guarantee of genuineness.

If a person may recover for the pecuniary loss caused by a tortious act, there

is no logical reason to exclude the genuine emotional harm cased by the same tortious

conduct.



James v. Lieb (Neb. 1985)

General Facts: A garbage truck owned by D corp. and operated by L backed

into an intersection and ran over Demetria, killing her. Her brother Gregory helplessly

watched the event. Because of this, G developed physical illness as well as mental

anguish and emotional distress. However, G was not directly threatened harm by the

conduct of L.

Case History: Relying on Fournell v. Usher Pest Control, the trial court

dismissed the case b/c G was not in the ―zone of danger‖ of the event; therefore, he could

not recover for the emotional distress caused by witnessing it. However, on appeal the

court overruled Fournell and adopted a modified form of the Dillon v. Legg, 441 P.2d 72

(Cal. 1968) foreseeability approach for bystander emotional distress claims.

Cause of Action: NIED

NIED

Law: Three factors to guide the determination of bystander liability from

Dillon: (1) Whether the P was located near the scene of the accident as contrasted with

one who was a distance away from it; (2) Whether the shock resulted from a direct

emotional impact upon P from the sensory and contemporaneous observance of the

accident, as contrasted with learning of the accident from others after its occurrence; and

(3) Whether P and the victim were closely related, as contrasted with an absence of any

relationship or presence of only a distant relationship.

The Neb. court made the further observations about these factors: (1) The

relationship factor is the most important. This court requires that there be a marital or

intimate familial relationship. However, it would not exclude aunts, uncles and

grandparents, but would rather impose a greater burden on those to demonstrate

significant attachment. (2) While the proximity requirements of the first two of the

Dillon factors are satisfied by actually seeing the accident, sensory witnessing is not

absolutely required. If the P and the victim are significantly related, the impact would be

just as traumatic if the P learned of the accident rather than witnessing it; (3) The victim

must have suffered either severe harm or death for the harm to be actionable; and (4) The

P need not also suffer concurrent physical injury for the emotional harm to be actionable.

NOTE: Elements of bystander NEID claim according to South Carolina: (1)

the negligence of the D must cause death or serious physical injury to another; (2) the P

bystander must be in close proximity to the accident; (3) the P and the victim must be

closely related; (4) the P must contemporaneously perceive the accident; and (5) the

emotional distress must both manifest itself by physical symptoms capable of diagnosis

and be established be expert testimony.



F.G. v. MacDonell (N.J. 1997)

General Facts: F.G. was in need of counseling and sought out her minister

for such. M was the rector at St. Luke‘s Episcopal Church. The second D, Harper was

the assistant rector and later assumed the rector job. M counseled F.G. and seduced her

into a sexual relationship (but no intercourse). H apparently made this conduct public

after F.G. came to him to discuss M‘s inappropriate behavior. F.G. sued M for negligent

pastoral counseling, NIED, and breach of a fiduciary duty. F.G. sued H for breach of

fiduciary duty.

Case History: At trial, the court dismissed the case based on 1st Amend

concerns. The appellate court reversed as to all counts. The N.J. Supreme Court

modified by only allowing a remand for the claims of breach of fiduciary duty and NIED

against M, and pending a hearing about religion entanglement issues, a claim for breach

of fiduciary duty against H.

Cause of Action: NIED

NIED:

Law: A claim based on fiduciary relationship probably won‘t infringe upon

anyone‘s free exercise of religion; therefore, courts may adjudicate there. If such a claim

succeeds, a NIED may also lie b/c the emotional harm results from the same tortious

conduct.

Other Opinions: J. O‘Hern dissented b/c he saw a real problem with

entanglement. While clearly the Episcopal religion‘s ministers may hold themselves out

as fiduciaries, this decision could be the basis for holding other religious leaders as

fiduciaries when that faith may not be the same as here.



Boyles v. Kerr (Tex. 1993)

General Facts: B (17) induced K (19) to have sex with him (consensual).

However, B also arranged to videotape the experience with two friends. These people

then showed the tape to other friends. Soon the gossip spread to such an extent that K

was humiliated in the community. She was labeled as the ―porno queen‖ and the

humiliation caused poor academic performance and needed psychological counseling. K

sued B and the other two involved for intentional invasion of privacy, negligent invasion

of privacy, and NIED. However, K dropped all counts except the NIED before the case

went to the jury.

Case History: The jury awarded K $500,000 compensatory damages, and

$500,000 punitive ($350,000 of which belonged to B alone). B appealed and the

appellate court affirmed. However, the Texas Supreme Court reversed and overruled St.

Elizabeth Hospital v. Garrard, which recognized NIED as a COA independent of any

other legal right. The court will now only recognize NIED in conjunction with the

invasion of some other legal right. However, in the interest of justice the court allowed K

a new trial.

Cause of Action: NIED

NIED:

Law: ―There is no general duty not to negligently inflict emotional distress.‖

However, ―we are not imposing a requirement that emotional distress manifest itself

physically to be compensable.‖





3/31/04



Kelly v. Gwinnell (N.J. 1984)

General Facts: G drove Joseph Zak home. While there, the two drank

scotch. G had at least 2-3, but had a BAC of .286. Z saw G out to his car and G left. Z

called his house 20 minutes later to see if G made it home. Then Z found out that G was

in a head-on accident in which G and the P, Kelly, was severed injured. K sued G and Z.

Case History: At trial, the court granted Z summary judgment. On appeal,

the court upheld this b/c of a lack of decisions allowing liability for a social host. On

final appeal, the court imposed a duty on social hosts for the harms caused by their

intoxicated guests. ―A host who serves liquor to an adult social guest, knowing both that

the guest is intoxicated and will thereafter be operating a motor vehicle, is liable for

injuries inflicted on a third party as a result of the negligent operation of a motor vehicle

by the adult guest when such negligence is caused by intoxication.‖

Cause of Action: The tort of negligence:

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4) Damages

Law: Duty for social hosts to prevent injuries caused by the drunk driving of

their guests.



Otis Engineering Corp. v. Clark (Tex. 1983)

General Facts: Matheson was an employee of O who had a history of

alcohol problems and being drunk at work. One night he was severely intoxicated (BAC

of .268), and his supervisor (Roy) sent him home. R accompanied M to his car and asked

him if he was alright to drive. M, of course, said yes, and M left. Three miles away, M

had an accident in which the wives of the Clark brothers (or father/son) were killed. R

actually immediately thought of M when he heard about the accident. Cs sued the

company for negligently performing a duty which they assumed.

Case History: At trial, O‘s motion for s.j. was granted. On appeal, the court

reversed. On final appeal, the court upheld the appellate court and remanded the case for

trial. The court imposed a duty on employers who are aware of the drunkenness of their

employees to handle the manner as a reasonably prudent corporation would.

Cause of Action: The tort of negligence

Negligence: (1) Duty of care; (2) Breach of duty; (3) Causation; (4) Damages

Law: Normally, a person has no duty to control the actions of others absent

special conditions between the parties.

Factors to be used to determine if a duty should be imposed: (1) the risk, (2)

foreseeability; and (3) likelihood of injury weighed against (1) the social utility of the

actor‘s conduct, (2) the magnitude of the burden of guarding against the injury and

consequences of placing that burden on the employer. [Learned Hand‘s balancing test]

―The standard of duty that we now adopt...is: when, because of an employee‘s

incapacity, an employer exercises control over the employee, the employer has a duty to

take such action as a reasonably prudent employer under the same or similar

circumstances would take to prevent the employee from causing an unreasonable risk of

harm to others.‖



McKernan v. Aasheim (Wash. 1984)

General Facts: Karen McK had her fallopian tubes tied as a means of

contraception by A. However, she conceived and bore a healthy child. The Ms sued for

the negligent performance of the operation. They requested damages relating to the cost

and pain of the operation, the cost and pain of the resulting pregnancy, loss of the

pleasure of having the procedure performed correctly, and the loss of consortium

associated with the failure of the procedure and the pregnancy. They also sued for the

costs of raising a normal child including the costs of rearing, college, and services of the

parents, and emotional burdens.

Case History: The trial court allowed A‘s motion for partial s.j. for the last

damages claim (cost of rearing). On appeal, the court upheld this ruling. The court based

its decision primarily upon a rejection of the minority view that allowed these damages

(―benefits rule‖) as well as a problem with the accuracy of assessment of these damages.

Cause of Action: Negligent conception

Law: Most courts deny this type of recovery for a variety of reasons. (1)

Some hold that the intangible benefits of parenthood always outweigh the costs. (2)

Some reason that to allow this would permit a windfall for the parents. (3) Some deny

recovery out of concern for the psyche of the child. (4) Others deny recovery for being

too speculative and prone to fraud.

The minority of courts allow this recovery either in full or reduced by the

benefits of parenthood gained by the Ps.

This court denied recovery b/c of the speculative nature of the award and the

―benefits rule‖ analysis, the problem that parents would be forced to demonstrate that the

child is more trouble than it‘s worth, and a concern for the mental and emotional health

of the child who was not only unwanted but whose parents got someone else to pay for

the child‘s existence.



Smith v. Cote (N.H. 1986)

General Facts: Linda Smith was pregnant and was under the care of C.

Early in her pregnancy, L contracted rubella. However, C did not discover the rubella

nor did C alert L to the possible problems with the child‘s development that the disease

would have had or the possible options (namely abortion). L‘s child (Heather) was born

with congenital rubella syndrome which has caused blindness, a heart condition requiring

numerous operations, motor retardation, and hearing impairment. L sued C for wrongful

birth (―a claim brought by the parents of a child born with severe defects against a

physician who negligently fails to inform them, in a timely fashion, of an increased

possibility that the mother will give birth to such a child, thereby precluding an informed

decision as to whether to have the child‖). Meanwhile, H sued C for wrongful life (a

claim brought by a child ―contend[ing] that he defendant physician negligently failed to

inform the child‘s parents of the risk of bearing a defective infant, and hence prevented

the parents from choosing to avoid the child‘s birth‖).

Case History: Unclear as to the trial court, but that court probably did not

recognize the two torts. The N.H. S.Ct. did recognize the tort of wrongful birth, but not

wrongful life. As to wrongful birth, the court declared that the appropriate measure of

damages are ―the extraordinary medical and educational costs attributable to the child‘s

deformities, but may not recover ordinary child-raising costs.‖ Furthermore, ―a parent

may recover for his or her ministrations to his or her child to the extent that such

ministrations: (1) are made necessary by the child‘s condition; (2) clearly exceed those

ordinarily rendered by parents of a normal child; and (3) are reasonably susceptible of

valuation.‖ However, damages for emotional distress may not be recovered due to a need

to limit the already large liability for the doctor.

Causes of Action: Wrongful birth and Wrongful life

Law: As a result of the advances in medical technology that allow for early

detection of these diseases that cause harm to fetuses and the legalization of abortion as

an option in Roe v. Wade, a COA for wrongful birth may exist.

Extraordinary costs rule: While traditional tort principles of damages would

allow for the recovery of the normal and extraordinary costs of raising a child after this

negligence, a special rule has developed in these cases. This rule allows only the

recovery of the extraordinary costs of child rearing. This rule is based upon the

assumption that the Ps in a wrongful birth case were already planning to have and pay for

an ordinary child. Therefore, the only compensation needed to restore them is to allow

for the money needed for the extra costs of raising a disabled child.

Emotional damages: Emotional damages are not allowed. This is not for any

logical reason other than to sever liability at some point. The liability for the doctor is

already high, so the liability needs to be cut off somewhere. The courts have chosen this

as that cut-off.

Wrongful life: ―In order to recognize H‘s wrongful life action, then, we must

determine that the fetal H had an interest in avoiding her own life, that it would have been

best for H if she had not been born.‖ This presents a question that the courts cannot

decide. Not only is it impossible to actually make a decision about this, a decision would

necessarily involve adjudicating the relative value of someone‘s life. This is a bad idea

so the courts have not chosen to recognize this tort.



Farley v. Sartin (W. Va. 1995)

General Facts: Cynthia Farley was pregnant with Baby Farley, who was 22

weeks (5 ½ months) of gestation and not viable at the time. C was killed in a car accident

with the D (S), who was driving a truck owned by D Lee Sartin Trucking Co. H/F Farley

filed this action for wrongful death for his unborn child. The question is whether the

non-viable fetus qualifies as a person under the W. Va. wrongful death statute.

Case History: Ds‘ s.j. was granted and affirmed. On final appeal, the court

reverses and recognizes a fetus, whether viable or not, as a person under the wrongful

death statute for whom an action may be brought by his survivors.

Cause of Action: Wrongful death

Law: Since courts allow for a prenatal injury to a fetus who is born alive can

be actionable by the infant, the court had no problem extending the ―person‖ category to

any fetus whether viable or not. The wrongful death statute allows for recovery for a

person who could have brought an action if he/she had not died. Since a live-born infant

could, then that infant is covered by the statute.

The court also relied on public policy of not allowing a wrongdoer to escape

liability for a tort merely b/c the victim was a non-viable fetus who died as a result of the

tort.

NOTE: This court is in the minority of jurisdictions.



Burr v. Bd. of County Commrs. of Stark City (Ohio 1986)

General Facts: Bs adopted a child from the Ds. The employee of the Ds

represented that the child (Patrick) was the son of a 18 year old mother whose parents

were treating the child badly. They also said that the mother was moving to find a better

job and could no longer care for the child and that she then gave up the child for

adoption. The person also said that the child ―was a nice big, health, baby boy.‖

However, the child developed severe mental retardation problems and Huntington‘s

disease. In fact, the mother of the child was 31 and a mental patient. Although the father

is unknown, he too was a mental patient. Although the mother of the child did not have

Huntington‘s disease, the child was clearly an at risk person for the inheritable disease

which eventually kills children within 8-10 years.

Case History: A jury awarded the Bs $125,000 for the costs of treatment as

well as other damages (mental damages probably). On appeal, it was affirmed. The Ohio

S.Ct. upheld the verdict which was based on fraud. However, the court was careful to

note that the decision did not impose an absolute contract of insurance on adoption

agencies to provide healthy and happy children. Rather, this was an intentional tortious

act that the evidence supported.

Cause of Action: Fraud

Fraud: (1) a representation or, where there is a duty to disclose, concealment

of a fact; (2) which is material to the transaction at hand; (3) made falsely,

with knowledge of its falsity, or with such utter disregard and recklessness as

to whether it is true or false that knowledge may be inferred; (4) with the

intent of misleading another into relying upon it; (5) justifiable reliance upon

the representation or concealment; and (6) a resulting injury proximately

caused by the reliance.

Law: ―In no way do we imply that adoption agencies are guarantors of their

placements. Adoptive parents are in the same position as, and confront risks comparable

to those, of natural parents relative to their child‘s future. However, just as couples must

weigh the risks of becoming natural parents, taking into consideration a host of factors, so

too should adoptive parents be allowed to make their decision in an intelligent manner.‖

―It is the deliberate act of misinforming this couple which deprived them of

their right to make a sound parenting decision and which led to the compensable

injuries.‖







Federal Torts Claim Act (passed after WWII)

The U.S. gov‘t has waived tort immunity caused by negligent or wrongful

act or omission by gov‘t employee where the gov‘t would be negligent if they were a

private party. State tort law will govern the extent and scope of liability.

Should keep in mind–there are huge ―holes‖ or exceptions in the Federal Tort

Claims Act that make it difficult to sue the federal gov‘t.

1. FTCA does not apply to many intentional torts committed by its

employees.

2. ―Discretionary Function Exception‖ Gov‘t is not liable for actions that

done in due care in furtherance of policy or those functions which are discretionary in

nature, even if the act or omission that is in abuse of that discretion.

3. No strict liability cases against the federal gov‘t.



At State level, all but a few states have abolished state sovereignty at that

level. Some make distinction between governmental functions (no liability) and

proprietary functions (liability).





Governmental Officers and Employees

When exercising a judicial or legislative function, a governmental officer is

immune.



Charities

Used to be immune from tort liability. But now, all but one or two of the

States, charitable immunity has been totally abolished. Some states still will have some

sort of cap on damages against charitable organizations.



Familial Immunity

Husband/Wife–used to be immune from torts committed against each other

based on the notion that h/w were one person. More than half have abolished. The

others have at least modified the immunity to allow for intentional torts or those

committed outside the marriage.

Parent/Child–used to be immune from all torts. Now a good number have

completely abolished, others have severely limited to allow some such as intentional

torts.





Exam

Six questions, 1–15 minutes, 2–30 minutes, 3–15 min, 4–30 min, 5–60 min, 6–60

min. Each answer in weighted according to the time needed to answer. Read each

question twice to figure out what ? or ?s are really being asked. Negligence will be most

important.Torts Glossary



A



Absolute Liability–Responsibility without fault or negligence. [Rylands v. Fletcher]



Assault–Any willful attempt or threat to inflict injury upon the person of another, when

coupled with the apparent present ability so to do, and any intentional display of force

such as would give the victim reason to fear or expect immediate bodily harm, constitutes

an assault. An assault may be committed without actually touching, or striking, or doing

bodily harm, to the person of another.



Assault and Battery–Any unlawful touching of another which is without justification or

excuse. It is both a tort and a crime. The two crimes differ form each other in that

battery requires physical contact while assault does not.



Assumption of Risk–The doctrine of assumption of risk, also known as volenti non fit

injuria, means legally that a plaintiff may not recover for an injury to which he assents

i.e., that a person my not recover for an injury received when he voluntarily exposes

himself to the danger. The requirements for assumption of risk are that: (1) the plaintiff

has knowledge of facts constitution a dangerous condition, (2) he knows the condition is

dangerous, (3) he appreciates the nature or extent of the danger, and (4) he voluntarily

exposes himself to the danger. An exception may be applicable even though the above

factors have entered into a plaintiff‘s conduct if his actionscome within the rescue or

humanitarian doctrine.



B



Battery–Intentional and wrongful physical contact with a person without his or her

consent that entails some injury or offensive touching. An actor is subject to liability to

another for batter if: (1) he acts intending to cause a harmful or offensive contact with the

person of the other or a third person, or an imminent apprehension of such a contact, and

(2) an offensive contact with the perosn of the other directly or indirectly results. [R.2d of

Torts 18]



Blameworthy Conduct–



C



Casus Belli–



Comparative Fault–



Comparative Negligence–Under comparative negligence statutes or doctrines, negligence

is measured in terms of percentage, and any damages allowed shall be diminished in

proportion to amount of negligence attributable to the person for whose injury, damage or

death recovery is sought. Many states have replaced contributory negligence acts or

doctrines with comparative negligence. Where negligence by both parties is concurrent

and contributes to the injury, recovery is not barred under such doctrine, but plaintiff‘s

damages are diminished proportionately, provided his fault is less than defendant‘s, and

that, by exercise of ordinary care, he could not have avoided consequences of defendant‘s

negligence afer it was or should have been apparent.



Contributory Negligence–The act or omission amounting to want of ordinary care on part

of complaining party, to which, concurring with defendant‘s negligence, is proximate

cause of injury. Conduct by plaintiff which is below the standard t which he is legally

required to conform for his own protection and which is a contributing cause which

cooperates with the negligence of the defendant in causing the plaintiff‘s harm.



Culpability–Blameworthiness. Except in cases of absolute liability, the person‘s

culpability must be shown.



D



Duty to Defend–The obligation of an insurer to defend the insured in a liability case for

which the insurance policy in question is in jeopardy. This duty attaches when the

insured is sued, and will prevail as long as the situation is clearly one in which the policy

does cover the insured potential liability.



Duty to Pay–The obligation of an insured to pay the adverse judgement of the insured to

the extent of the policy limits as long as the policy actually covers the incident. This

latter question may be decided in a separate suit.



E



F



Fault–Negligence; an error or defect of judgment or of conduct; any deviation from

prudence, duty, or rectitude; any shortcoming, or neglect of care or performance resulting

from the inattention, incapacity, or perversity; a wrong tendency, course, or act; bad faith

or mismanagement; neglect of duty. Under general liability principles, ―fault‖ is a breach

of a duty imposed by law or contract. The term connotes an act to which blame, censure,

impropriety, shortcoming or culpability attaches.



Foreseeability–The ability to see or know in advance; e.g. the reasonable anticipation that

harm or injury is a likely result from certain acts or omissions. In tort law, the

―foreseeability‖ element of proximate cause is established by proof that actor, as person

of ordinary intelligence and prudence, should reasonably have anticipated danger to

others created by his negligent acts. That which is objectively reasonable to expect, not

merely what might conceivably occur.



G



H

I



Insurance Company Bad Faith–



Intent–Design, resolve, or determination with which person act. A state of mind in which

a person seeks to accomplish a given result through a course of action. As used in

intentional torts, ―intent‖ is desire to bring about result that will invade interests of

another. A mental attitude which can seldom be proved by direct evidence, but must

ordinarily be proved by circumstances from which it may be inferred. The word ―intent‖

is used throughout the R.2d of Torts to denote that the actor desires to cause

consequences of his act, or that he believes that the consequences are substantially certain

to result from it. Not to be confused with motive.



Intentional Infliction of (Severe) Emotional Distress–



J



K



Knowledge–Acquaintance with fact or truth. It has also been defined as act or state of

knowing or understanding; actual knowledge, notice or information; assurance of fact or

proposition founded on perception by senses, or intuition ; clear perception of that which

exists, or of truth, fact or duty; notice or knowledge sufficient to excite attention and put

person on guard and call for inquiry; personal cognizance.



L



Liability–It has been referred to as of the most comprehensive character of hazard or

responsibility, absolute, contingent, or likely. Condition of being actually or potentially

subject to an obligation; condition of being responsible for a possible or actual loss,

penalty, evil, expense, or burden; unliquidated claim.



M

N



Negligence–The omission to do something which a reasonable man, guided by those

ordinary considerations which ordinarily regulate human affairs, would do, or the doing

of something which a reasonable and prudent man would not do. Conduct which falls

below the standard established by law for the protection of others against unreasonable

risk of harm; it is a departure from the conduct expectable of a reasonably prudent person

under the circumstances. It is characterized chiefly by inadvertence, thoughtlessness,

inattention and the like, while ―wantonness‖ or ―recklessness‖ is characterized by

willfulness. The law of negligence is founded on reasonable conduct or reasonable care

under all circumstances of particular case. Doctrine of negligence rests on duty of every

person to exercise due care in his conduct toward others from which injury may result.

O



Outrage (Tort of)–



P



Per Contra–



Punitive Damages–Designed to punish the defendant for his evil behavior or to make an

example of him. Unlike compensatory or actual damages, punitive damages are based

upon an entirely different public policy consideration–that of punishing the defendant or

of setting an example for similar wrongdoers. In cases in which it is proved that a

defendant has acted willfully, maliciously, or fraudulently, a plaintiff may be awarded

punitive damages in addition to compensatory or actual damages.



Purpose–That which one sets before him to accomplish or attain; an end, intention, or

aim, object, plan project. Term is synonymous with ends sought, an object to be attained,

an intention, etc.



Q



R



Recklessness–Rashness; heedlessness; wanton conduct. The state of mind accompanying

an act, which either pays no regard to its probably or possibly injurious consequences, or

which, though foreseeing such consequences, persists in spite of such knowledge.

Recklessness is a stronger term than mere or ordinary negligence, and to be reckless, the

conduct must be such as to evince disregard of or indifference to consequences, under

circumstances involving danger to life or safety of others, although no harm was

intended.



Respondeat Superior–Let the master answer. This doctrine or maxim means that a master

is liable in certain cases for the wrongful acts of his servant, and a principal for those of

his agent. Under this doctrine master is responsible for want fo care on servant‘s part

toward those to whom the master owes duty to use care, provided failure of servant to use

care, provided failure of servant to use such care occurred in course of his employment.

Under doctrine an employer is liable for injury to person or property of another

proximately resulting from acts of employee done within scope of his employment in the

employer‘s service. Doctrine only applies when relation of mster and servant existed

between defendant and wrongdoer at the time of injury sued for, in respect to very

transaction from which it arose. Hence, doctrine is inapplicable where injury occurs

while employee is acting outside legitimate scope of authority.



S



Strict Liability–Liability without fault. A concept applied by courts in product liability

cases in which seller is liable for any and all defective or hazardous products which

unduly threaten a consumer‘s personal safety. Concept of strict liability in tort is founded

on the premise that when manufacturer presents his goods to the public for sale, he

represents they are suitabel for their intended use, and to invoke such doctrine it is

essential to prove that the product was defective when placed in the stream of commerce.

(1) One who sells any product in a defective condition unreasonably dangerous to

the user or consumer or to his property is subject to liability for physical harm thereby

caused to the ultimate user or consume, or to his property, if (a) the seller is engaged in

the business of selling such a product, and (b) it is expected to and does reach the user or

consumer without substantial change in the condition in which it is sold. (2) The rule

state in Sub (1) applies although (a) the sellerhas exercised all possible care in the

preparation and sale of his product, and (b) the user or consumer has not bought the

product form or entered into any contractual relation with the seller. [R.2d of Torts

402A]



Substantial Certainty–



T



Tort–A private or civil wrong or injury, including action for bad faith breach of contract,

for which court will provide a remedy in the form of an action for damages. A legal

wrong committed upon the person or property independent of contract. In may be either

(1) a direct invasion of some legal right of the individual; (2) the infraction of some

public duty by which special damage accrues to the individual; (3) the violation of some

private obligation by which the damage accrues to the individual.



Transferred Intent (Doctrine of)–In tort law, if A, intending to strike B, misses B and hits

C instead, the intent to strike B is transferred and supplies the necessary intent for the tort

against C.



U



Unavoidable Accident–An inevitable accident; one which could not been prevented by

exercise of due care by both parties under circumstances prevailing. Not necessarily an

accident which was physically impossible, in the nature of things for the person to have

prevented, but one not occasioned in any degree, either remotely or directly, by the want

of such care or skill as the law holds every person bound to exercise. Such type of

accident is present when an event occurs which was not proximately caused by the

negligence of any party to the event.



Unavoidable Mistake–



V



Vicarious liability–The imposition of liability on one person for the actionable conduct of

another, based solely on a relationship between the two persons. Indirect or imputed

legal responsibility for acts of another; for example, the liability of an employer for the

acts of an employee, or, a principal for torts and contracts of an agent.



W

X,Y,Z