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					Torts Briefs                                                      Printed: July 4, 2012

Roger W. Martin
Torts Case Briefs
Professor Heriot
MW 5:30-6:45

1. I. de S. and Wife v. W. de S. (1348 or 1349); briefed 8/26/94. Pg. 4

2. Facts: ∆ came to π's tavern for wine at night when it was closed and began chopping
at the door with a hatchet. π's wife stuck her head out a window and ordered him to
stop, "and he perceived her and struck with the hatchet, but did not touch the woman."
An inquest said "no harm, no foul".

3. Procedural Posture: First action before a royal court at the Assizes.

4. Judges Rule: It is not necessary for physical contact to occur for an assault to have
occurred. Judgment for π.

5. Classical Holding(s): When a ∆ makes an attack upon a house causing the persons
inside to be placed in imminent apprehension of personal harm, then there is assault,
even if there is no physical contact to the π.

6. Reasoning: Although the hatchet did not strike the π, there was still harm against π,
since ∆ "made an assault upon the woman".

1. Tuberville v. Savage (1669); briefed 8/26/94. Pg. 5

2. Facts: π put his hand on his sword and stated to ∆, "If it were not assize-time, I would
not take such language from you." ∆ took this language to be sufficient provocation to
assault, batter and wound π.

3. Procedural Posture: First action before a royal court at the Assizes. Convoluted
posture because the issue is really the conduct of the π.

4. Judges Rule: "...if one strike another upon the hand, or arm, or breast in discourse, it
is no assault, there being no intention to assault; but if one intending to assault, strike at
another and miss him, this is an assault..." Judgment for π.

5. Classical Holding(s): When a person intends to put another in imminent
apprehension of personal harm, there is an actionable tort of assault.

6. Reasoning: π explicitly stated that he would not strike ∆, because it was assize-time
(judges were in town). Thus there was no intention, and there was certainly no act.




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Torts Briefs                                                    Printed: July 4, 2012


1. Vosberg v. Putney (1891); briefed 8/26/94. Pg. 8

2. Facts: π had previously injured his leg above the knee about 1 1/2 months before ∆
reached across the classroom aisle with his foot, and kicked π in the shin just below the
knee. The kick was slight, however the jury found that π developed tissue and bone
damage as a result of the kick, by aggravating the infection originating during the
previous injury. The jury also found that ∆ did not mean to do π any harm (no malice).

3. Procedural Posture: Action to recover damages for assault and battery. The first trial
resulted in judgment for π for $2,800. ∆ appealed to this court, where the previous
judgment was reversed for error, and a new trial awarded.

4. Judges Rule: "A wrong-doer is liable for all injuries resulting directly from the
wrongful act, whether they could or could not have been foreseen by him."

5. Classical Holding: In the absence of consent, either explicit or implied, a person who
intentionally commits a wrongful act which results in the harmful touching of another
has committed a tortious battery is liable for damages arising from his action.

6. Reasoning: 1. Since the kick was a violation of the "order and decorum" of the school
classroom, it was unlawful, and therefore the intention to commit it was unlawful. 2.
Because the classroom had rules of "order and decorum", and the teacher had already
called the class to order, there was no "implied license" because kicking another in the
shin is not expected behavior for the classroom.

Notes: 2. In Garrat v. Dailey, 5 yr. old ∆ was held liable for a battery tort when he pulled
a chair out from under an arthritic woman π as she was sitting down, because although
he may not have intended to injure π, he knew that π was trying to sit. This
knowledge made ∆'s act wrongful. 3. Transferred Intent: In Talmage v. Smith, ∆ was held
liable for battery when a stick he threw at trespassers struck a different person, π. Court
held that intent to inflict unwarranted injury on someone is an actionable tort when that
injury is inflicted on an unintended person. 4. O.W. Holmes stated that a person is liable
for trespass and damages of another's property, even if does the harm because he thinks
the property to be his own, because he necessarily intended to do the harm. In Brown v.
Dellinger, ∆'s were held liable for burning down a neighbor's house by starting an
unauthorized fire in π's garage grill, even though they did not intend the fire to get out
of the grill. 5. In Cleveland Park Club v. Perry, 9 yr. old ∆ put a rubber ball into a pool
drain which he mistakenly believed was not operating suction. Court held that the intent
controlling the tort was the intent to do the act, not the intent to cause harm.

1. Mohr v. Williams (1905); briefed 8/27/94. pg. 15




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Torts Briefs                                                      Printed: July 4, 2012


2. Facts: ∆ is an ear surgeon who upon examination of π's right ear, convinced π to
consent to submit to an operation to remove a polyp and diseased portion of π's right
ear. However, after π was unconscious from administration of anesthetics in
preparation for the right ear surgery, ∆ found π's left ear to be more in need of surgery
that π's right ear. He then performed a skillful and successful operation on ∆'s left ear,
without the π's consent. π brought a battery action against ∆ to recover damages,
complaining that the surgery impaired her hearing.

3. Procedural posture: Original action resulted in a verdict for π for $14,322.50. The trial
court set aside the previous verdict and ordered a new trial. Both parties appealed from
such orders to this court.

4. Judges Rule: "...any unlawful or unauthorized touching of the person of another,
except it be in the spirit of pleasantry, constitutes an assault and battery". 1 Jaggard,
Torts, 437.

5. Classical Holding: When the circumstances surrounding a medical procedure that
requires surgery do not justify proceeding without a patient's consent, performing said
surgery without authorization is unlawful and the surgeon is liable for damages arising
from a battery tort.

6. Reasoning: The trial court jury found that the surgery was not of an emergent nature.
Therefore, since it was unauthorized by the π, then it was unlawful, and since it was
unlawful, it was battery.

Notes: 1. Surgeons now use a consent form to avoid the dilemma in Mohr v. Williams.
2. The consent must be to the act actually performed. 3. Consent can also be implied by
the conduct of a person. 4. In an emergency situation, where the health of a person is
endangered, "unauthorized operation is justified under consent implied from the
circumstances". 5. Substituted consent: In general, consent of a parent/guardian is
necessary for non-emergency operations on minors and incompetents. 6. In
Belchertown State School v. Saikewicz, the court held that the ultimate consent of
performing painful and uncertain therapy on a terminal patient who was incapable of
providing his own consent lies with the court. This stand was retreated from in Brophy
v. New England Sinai Hospital where the court allowed a family to deny an
incompetent any nutrition, even over the protests of the attending physicians, based on
the need for "honoring the privacy and dignity of the individual". 7. Substituted consent
for the benefit of others: it is possible for a guardian to provide consent to operation on an
incompetent that will benefit another (such as for kidney transplant). 8. "Normally, the
defense of consent to physical contact can be overridden if it is shown that the consent
was induced by fraud or even by nondisclosure of some material fact."

1. Canterbury v. Spence (1972); briefed 8/27/94. Pg. 191


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Torts Briefs                                                   Printed: July 4, 2012



2. Facts: Minor child, π, suffered from severe back pain that Dr., ∆, suspected was the
result of a ruptured disc. ∆ told π he needed a laminectomy to correct this condition. ∆
told π's mother that the operation was serious, but "not more than any other operation".
∆ later testified that the probability of paralysis in a laminectomy was about 1% but he
did not normally inform his patients of risks of this nature so as not to deter them from
undergoing necessary surgery. While performing the surgery, ∆ noted that π's spinal
cord was swollen and in very poor condition. During the π's recuperation, he fell from
his bed while unattended, and thereafter experienced paralysis of the bowels, urinary
incontinence, and required crutches. π sued ∆ for negligence and failure to inform him
beforehand of the risks involved.

3. Procedural posture: π filed suit in District Court 4 yrs. after the laminectomy. Judge
granted verdicts for both ∆'s for failure of π to provide medical evidence of negligence.
π appealed and this court reversed and remanded for new trial.

4. Judges Rule: "True consent to what happens to one's self is the informed exercise of a
choice, and that entails an opportunity to evaluate knowledgeably the options available
and the risks attendant upon each."

5. Classical Holding: In order for a patient to properly consent to a surgery, the
physician must disclose to the patient what risks associated with the surgery are
reasonable to disclose under the circumstances.

6. Reasoning: The court reasoned that "every human being of adult years and sound
mind has a right to determine what shall be done with his own body". The nature of the
physician-patient relationship demands that the physician volunteer this information,
even without the patient asking. They further reasoned that a 1% chance of such a grave
consequence as paralysis was reasonable to disclose, and a hypothetical reasonable
patient would likely consider that information as significant when making his decision
of whether or not to consent to the operation.

Notes: 1. When remanded, the case was once again decided for ∆. 2. British cases have
repudiated the burden that Canterbury put on physicians. 3. In Mink v. University of
Chicago, the court held that a battery claim was proper (as opposed to negligence)
because the π's were subjected to medical experiments without their knowledge,
therefore the issue of implied consent was meaningless. 4. In Kozup v. Georgetown
University (1987), the court held that the risk of contracting AIDS from a blood
transfusion was not material in 1983. They further held that the π failed to demonstrate
that the disclosure of the risk of AIDS would have prevented the transfusion. 6.
Disclosure for non-treatment: In Truman v. Thomas, it was held that when a patient
refuses a risk-free treatment, the physician has the additional duty to inform the patient
of any risks of non-treatment. 7. In Bly v. Rhoads, the court held that a patient-plaintiff


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Torts Briefs                                                    Printed: July 4, 2012


suing for lack of informed consent must provide expert medical witnesses to testify
what should have been disclosed. 8.

1. Hudson v. Craft (1949); briefed 8/28/94. Pg. 22

2. Facts: π is an 18 yr. old boy who, upon the promise of receiving 5 dollars, stepped
into an illegal prize-fight at a carnival, where he suffered personal injuries as the result
of being struck by his opponent. π then sues ∆'s, the illegal prize fight promoter, and his
opponent, for battery damages.

3. Procedural posture: π is appealing a judgment of dismissal. The dismissal occurred
because of π's failure to amend his complaint after demurrer thereto by ∆ was
sustained, and the judge gave π permission to amend his complaint.

4. Judges Rule: When two parties engage in consentual combat, their consent "prevents
an invasion from being tortious and, therefore, actionable, although the invasion
assented to constitutes a crime". 2. "The promoter is liable where he conducts boxing
matches or prize fights without a license and in violation of the statutory provisions ...,
and that the consent of the combatants does not relieve him of that liability."

5. Classical Holding: 1. Consentual participants in an illegal prize fight are barred from
collecting damages due to injuries sustained during the fight. 2. The promoter of an
illegal prize fight is liable for damages as compensation for the possible injuries of
consenting participants in the illegal fight.

6. Reasoning: 1. Based on the Restatement of torts section 60. 2. The court reasoned
that it is from the illegal conduct of the promoter that the fighters are protected under
the Restatement of torts section 61, where the assent of a person to a invasion of which
he cannot appreciate the consequences is not consent thereto. The history of the rules of
boxing in California suggest that those rules intend to protect the participants.

Notes: 2. Volenti non fit injuria - the volunteer suffers no wrong. Ex turpi causa non
oritur actio, no action shall arise out of an improper or immoral cause. 3. In Hackbart v.
Cincinnati Bengals, Hackbart, a football player, suffered injuries from a deliberate and
wrongful blow to the back of the head by an opposing player. The court of appeals said
that there is no reason that the roughness of football should excuse tortious actions on
the part of a player, especially when those actions are contrary to the prescribed rules of
the game. Similar ruling was upheld in Nabonzy v. Barnhill where a high-school soccer
goalie was kicked in the head intentionally. In Turcotte v. Fell, it was held that the
known, apparent and foreseeable dangers of a sport, in this case recklessness of another
horse jockey, was not cause for action, as distinguished from Nabonzy and Hackbart.

1. McGuire v. Almy (1937); briefed 9/3/94. Pg. 28


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Torts Briefs                                                    Printed: July 4, 2012



2. Facts: π was a nurse at a mental institute, in direct care of ∆, who was known to have
occasional violent outbursts. On the night of the alleged battery, ∆ ransacked her room
and threatened π that if she came in, ∆ would kill her. π called for additional people to
help, and then entered ∆'s room. ∆ then hit π over the head with the leg of a low-boy.

3. Procedural posture: An action of tort for assault and battery. Original trial court.

4. Judges Rule: "...where an insane person by his act does intentional damage to the
person or property of another he is liable for that damage in the same circumstances in
which a normal person would be liable."

5. Classical Holding: When insane people act upon an intent to cause a harmful or
offensive contact with another, they are liable for the damage they cause according to
the same principles that govern battery committed by sane people.

6. Reasoning: The court avoided the question of determining the nature and extent of
the ∆'s mental illness in order to determine fault, stating that for this case it was only
necessary to determine if the ∆ actually intended to do harm to the π. They reasoned
that holding an insane person liable for his tortious actions would motivate his
guardians to keep a close eye on him, because the same money he used for his medical
care could also be used to pay for his liabilities. In this way, the courts provide an
effective deterrent against battery by insane people, even though the insane person
necessarily acts irrationally.

Notes: In Polmatier v. Russ an insane man who murdered his father-in-law was held
liable for an intentional tort, because although he was being irrational in his reasons for
committing the act, it was intentional. It would not have been intentional if it were
shown to be a reflexive or epileptic act beyond his will.

1. Courvoisier v. Raymond (1896); briefed 9/3/94. Pg. 32

2. Facts: ∆ was sleeping upstairs from a jewelry store that he owned, when several
intruders attempted to gain entry to an adjoining room where his daughter slept. ∆
chased the intruders into the street with a gun, where they were joined by others. He
fired some shots in the air to frighten them, but instead they began to throw things at
him. A nearby police officer, π, came over to break up the fighting, and ∆, allegedly
thinking π was one of the rioters, purposefully shot π.

3. Procedural posture: In trial court, judgment was for π. ∆ appealed.




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Torts Briefs                                                     Printed: July 4, 2012


4. Judges Rule: If a person reasonably believes that his life is in danger, or that he is in
danger of receiving great bodily harm, then he is not liable for damages he causes in
self-defense.

5. Classical Holding: While actively defending themselves from rioters, if people
intentionally shoot and wound an innocent person because they reasonably believe they
are in imminent danger of bodily harm or death from that person, their actions are
justified by self-defense and therefore they are not liable for damages.

6. Reasoning: The court of appeals reasoned that the lower court was errant in it's jury
instructions, which demanded a verdict for π if they found that π was not actually
assaulting ∆ at the time of the shooting. The court of appeals stated that aside from
actual assault, the defendant would be justified in his actions if it could be shown, in
light of the circumstances, that a reasonable person would have believed himself in
imminent danger of bodily harm.

Notes: 1. "The Restatement (Second) of Torts takes no position on the question of
whether the privilege of self-defense is available against an assailant whose conduct is
neither wrongful nor negligent." 2. "In Morris v. Platt, the court held that the accidental
harming of an innocent bystander by force reasonably intended in self-defense to repel
an attack by a third party is not actionable. "

1. M'Ilvoy v. Cockran (1820); briefed 9/3/94. Pg. 37

2. Facts: ∆ owns a fence that π was tearing down by actual force. In protection of his
property, ∆ "used sufficient force in repelling [π] to wound him severely."

3. Procedural posture: In trial court, the judge refused to enter into the jury instructions
a plea from the ∆ that if it was found that ∆ was defending his real property against π,
then verdict should be for ∆. After verdict for π, ∆ moved for a new trial which motion
was overruled and judgment entered for π. This court affirmed.

4. Judges Rule: "A wounding cannot be justified barely in defense of possession..."

5. Classical Holding: When solely in defense of personal property, a person employs
force sufficient to wound the attacker, he is liable for a battery.

6. Reasoning: The court stated that force can be employed to repel actual force in the
defense of personal property, and force may even be employed where the attacker is
only employing constructive or implied force and continues his attack when first asked to
desist. However, there was no allegation of a personal assault by π in this case, so a
wounding was not justified, and the trial court was correct in refusing the entry to the
jury instructions that was asked for by ∆.


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Torts Briefs                                                      Printed: July 4, 2012



1. Bird v. Holbrook (1825); briefed 9/3/94. Pg. 39

2. Facts: ∆ owns a walled garden where he raises expensive tulips. After being robbed
once, he surrounding his garden with a trip wire activated spring gun to protect it from
intruders. ∆ intentionally did not place notice of the spring gun, because he wanted it to
shoot the intruder. π volunteered to retrieve a runaway pea-hen that had wandered into
∆'s garden, and so climbed the high wall, and entered the garden where he tripped the
wire and was shot in the knee by the spring gun.

3. Procedural posture: This is an English case, first action.

4. Judges Rule: A person who intentionally uses sufficient force to wound a trespasser,
solely in protection of his property, with the express purpose of doing injury, is liable
for battery.

5. Classical Holding: Where people give no deterrent notice to potential trespassers of
the intentionally injurious traps that they have set solely to protect their property from
trespassers, and that trap injures a trespasser who is not actually assaulting them or
their family, they are liable for damages.

6. Reasoning: The defense plead that the π was immune from liability under the
doctrine of "Violenti non fit injuria" [the volunteer suffers no wrong], since the π was a
willful trespasser on the ∆'s property. However, the court reasoned that it is "inhuman
to catch a man by means which may maim him or endanger his life", and that since the
∆ set the traps solely for the purpose of inflicting injury to trespassers, it was a wrongful
act.

Notes: 1. In Katko v. Briney, (1971), an Iowa farmer set a shotgun trap in a boarded-up
storage house that he owned, and the shotgun injured a thief in the legs. The thief sued
and the Iowa state supreme court awarded damages and punitive damages (thus
profiting from his crime). 2. Restatement (Second) of Torts section 85 states that an actor
is privileged to use force that would cause serious bodily injury for the purposes of
protecting his land or chattels, and is not liable , if the intrusion is of the nature that the
actor would be justified in using such force were he actually present. Furthermore in
section 143 provides that a private person may, in order to prevent a felony, use force
which is "not intended to cause death or serious bodily harm", as long as lesser means
would not work. But, in the case where the felony threatens bodily harm or is breaking
and entering a dwelling place, then the actor may use force "intended or likely to cause
death or serious bodily harm".

1. Kirby v Foster (1891), pg. 46, briefed 9/4/94



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Torts Briefs                                                    Printed: July 4, 2012


2. Procedural Posture: The trial jury returned a verdict for π, and the ∆ moved for a new
trial on exceptions to the rulings and refusals of the presiding justice to make ruling.

3. Facts: π was a bookkeeper for a corporation in which ∆ was an agent. $50 was
deducted from π's pay for money that he was responsible for that was lost. ∆ gave
payroll money to π who pocketed the $50 he thought he was due, and tried to leave. A
scuffle ensued and the π was injured by ∆ during the fight to retrieve the money.

4. Judges Rule: "...the right of property merely, not joined with possession, will not
justify the owner in committing an assault and battery upon the person in possession,
for the purpose of regaining possession, although the possession is wrongfully
withheld." Bliss v. Johnson.

5. Classical Holding: When people honestly although mistakenly withhold money from
their employers in the normal course of business, without fraud or deception, thinking
it to be their own, the employer who employs force to regain the money is liable for
battery.

6. Reasoning: The court reasoned that since the π honestly thought that the money was
due him, and peaceably took it during the normal course of business, that the use of
force by the ∆ was not justified because it was redressive and not defensive in nature.

7. Policy: Although this law may cause inconvenience to individuals from time to time,
the underlying principle is that the "injured party cannot be the arbiter of his own
claim". Public order and peace are of greater weight.

Notes: 1. Repossession by a secured party of collateral after default is permitted "if this
can be done without breach of the peace". The privilege of recapture must be exercised
promptly "hot-pursuit".

1. Ploof v. Putnam (1908), pg. 50; briefed 9/4/94

2. Procedural Posture: The trial court ruled for π, and ∆ demurred to the count of
willful unmooring, and negligence of duty.

3. Facts: π and family were sailing their sloop on Lake Champlain when a violent storm
erupted. In order to take refuge from the storm, π moored to the ∆'s dock, whereupon
∆'s servant unmoored the sloop. The sloop was then grounded and smashed in the
storm, casting the π and family into the lake, where they received injuries.

4. Judges Rule: An actor is not liable for trespass when he enters another's land due to
necessity caused by inability to control his movements while exercising a strict right.



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Torts Briefs                                                  Printed: July 4, 2012


5. Classical Holding: People are not liable for trespass when they moor their vessels to
the dock of another without permission if they do so in order to save life and property
from a violent storm.

6. Reasoning: The court cited several cases to support it's rule, each dealing with the
concept of the doctrine of necessity. Examples given were when a dog chased sheep
from a defendants land, but being the nature of a dog to continue the chase, pursued
the sheep onto another's property. Also, a traveler may walk on another's land when
the highway is blocked, in order to avoid the obstruction. Finally, it was held that a
defendant was not personally liable when he jettisoned a casket from a barge during a
storm in order to lighten the load and save the passenger's lives.

1. Vincent v. Lake Erie Transportation Co. (1910), pg. 53; briefed 9/4/94

2. Procedural Posture: An action for damages to a dock. Trial court held for π, dock
owner. ∆ appealed to this court.

3. Facts: ∆ owns a cargo ship that was moored to π's dock under contract to unload
cargo, when a violent storm arose. The ∆, exercising prudent seamanship, remained
moored to the dock, and the action of the waves caused his hull to repeatedly collide
with the dock, resulting in $500 damage to the dock.

4. Judges Rule: Where a person "prudently and advisedly avails himself of [another's]
property for the purpose of preserving is own more valuable property" then he is liable
for damages to the other's property.

5. Classical Holding: Where a person "prudently and advisedly avails himself of
[another's] property for the purpose of preserving is own more valuable property" then
he is liable for damages to the other's property.

6. Reasoning: The majority reasoned that since the boat owner "deliberately and with
direct efforts" kept his boat moored, replacing the lines that parted with heavier ones,
that he should be liable because although he had necessity, this did not excuse him from
having to pay for damages for sacrificing the dock to save his own property.

7. Dissent: The dissent reasoned that the damage was an Act of God, and that under the
majorities' reasoning, there would have been no liability if the boat owner had initially
tied up with his strongest ropes. This reasoning would put the burden on the ship
owner to have anticipated the severity of the storm in order to avoid liability, or to
always tie up with the strongest cables. They further reasoned that the risk for damage
of this nature was assumed by the dock owner as an ordinary risk of this type of
business.



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Torts Briefs                                                    Printed: July 4, 2012


Notes: 1. The doctrine of "incomplete privilege": a defendant may cause harm but only on
condition that he pay for it. This arises in a case of necessity where there is no
assumption of risk. 2. Unjust enrichment: this theory would require the boat owner to
pay because he came away unscathed at the expense of the dock owner. This theory,
however, only works when the property protected is worth more than the property
damaged. 3. Under admiralty law, the doctrine of necessity prevents a salvor from
holding out for a fee equal to the value of the vessel in distress, but rather holds them to
the customary fee. 4. Public necessity: a public official may act with immunity if he takes
reasonable actions in good faith that destroy a person's property in order to benefit the
public at large. Examples are tearing down houses in the path of a fire in order to save
other houses, damage to car paint while spraying pesticides to kill the Medfly, tearing
down an oil refinery to deny a wartime enemy from bombing it.

1. Brown v. Kendall (1850), pg. 81; briefed 9/12/94

2. Procedural Posture: An action for damages of trespass. Trial court held for π. ∆
appealed to this court.

3. Facts: Two dogs were fighting in the presence of π and ∆. ∆ was attempting to break
up the dog fight by hitting them with a big stick. π, who was behind ∆, got too close to
∆, who hit π in the eye with the stick as he was backing away from the dogs and
swinging the stick.

4. Judges Rule: If while performing a lawful act, an person injures another purely "by
accident", then the actor is not liable.

5. Classical Holding: An actor is not liable for injury to another when the actor 1) does
not intend to cause harmful or offensive touching of the other, or does not have
substantial knowledge that his actions would cause damage to another, and 2) the actor
could not have avoided damage to the other by using reasonable care.

6. Reasoning: The court reasoned if the ∆ was not unlawful in his attempt to break up
the dog fight, and if he was exercising due care at the time of the injury, then he could
not be held liable. They further stated that the burden of proof in this case should lie
with the π.

1. Fletcher v. Rylands (1865); pg. 85, briefed 9/12/94.

2. Procedural Posture: Action of trespass. Several arguments back and forth between
the appellate justices, this one at Exchequer.

3. Facts: ∆ owns a reservoir above a mine shaft belonging to π. ∆ hired engineers to
build the reservoir, and they did, exercising proper professional care. The soil under the


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Torts Briefs                                                    Printed: July 4, 2012


reservoir was weak from previous coal removal, and the water broke through the shafts
and filled up the π's mine. π sued for damages.

4. Judges Rule: An actor is liable for trespass when his actions result in the damage to
another's property, even though his actions were lawful and he had no intention to
cause damage, nor any knowledge that his actions would cause damage.

5. Classical Holding: When a person who lawfully builds a water reservoir on his land,
and the water thereafter escapes and does damage to another's property, the person is
strictly liable for the damage caused by the escaped water.

6. Reasoning: Judge Bramwell reasoned that the knowledge or intent to do wrong in
this case was irrelevant, because to hold otherwise would be to say that the π only has
the right to have his mine free from water that was deposited there by those who knew
what they were doing.

7. Dissent: (Martin) The dissent reasoned that to hold the ∆ strictly liable for the water
escaping from his properly and lawfully built reservoir would be to cause him to need
to insure against a lawful act on his own property from which he had no reason to
believe that any damage was likely to ensue.

1. Fletcher v. Rylands (1866); pg. 88, briefed 9/12/94.

2. Procedural Posture: Further review of the previous appellate decision.

3. Facts: As stated above.

4. Judges Rule: (Blackburn) "...the person who for his own purposes brings on his lands
and collects and keeps there anything likely to do mischief if it escapes, must keep it in
at his peril, and, if he does not do so, is prima facie answerable for all the damage which
is the natural consequence of its escape."

5. Classical Holding: Same as above.

6. Reasoning Judge Blackburn reasoned that the damage would not have happened had
the ∆ not brought the water onto his land. In addition, the ∆ should have known that if
the water were to escape, it could cause damage. There was no implied consent under
these circumstances because the π had no knowledge or control over how the ∆ would
use their land. Therefore the ∆ would be liable unless the occurrence was an Act of God.

1. Rylands v. Fletcher (1868); pg. 91, briefed 9/12/94

2. Procedural Posture: Review of the previous decision at the House of Lords.


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3. Facts: Same as above.

4. Judge's Rule: (Cairns) If a person uses his land for any "non-natural" purpose of
storing water, and the water escapes and does damage to another's property, then he is
liable.

5. Classical Holding: Same as above.

6. Reasoning: The reservoir was a non-natural collection of water upon the ∆'s land, as
opposed to natural collection of water in some natural lake. Due to this non-natural use,
the water escaping was due solely to his act, although not negligent, whereas water
escaping from a natural lake could not have been his liability.

Notes: 3. In Rickards v. Lothian, a person entered a building at night, shoved stuff into
the lavatory drain, and then turned on the water which overflowed and caused damage.
The court held that there was not liability because the water use was not non-natural in
the sense that most buildings in the area had lavatories. 4. In Nichols v. Marsland,
overflow from man-made pools due to heavy and unanticipated rainfall was considered
to be and Act of God, and so there was no liability. It was also held in Carstairs v.
Taylor that the liability is not present if the storage of water was for mutual benefit. 6.
The rigor of Ryland v. Fletcher was retreated from in personal injury cases, and
negligence was held to be controlling. 8. Rylands v. Fletcher appears to accord more
protection to personal property than against personal injury.

1. Brown v. Collins, (1873); pg. 97, briefed 9/12/94

2. Procedural Posture: Unknown

3. Facts: (Unclear) ∆ had horses on his property which, upon being frightened, ran onto
the neighbor's property and broke a post.

4. Judge's Rule: In order for a person to be liable for trespass damages, he must be
guilty of some "malice, or unreasonable unskillfulness or negligence".

5. Classical Holding: When horses are frightened into stampede, and thus beyond the
reasonable care and control of their owner, and the horses trespass onto another's
property, the owner is not liable for the damages.

6. Reasoning: Here the court rejected Blackburn's and Cairn's opinions in Rylands,
stating that they were not in keeping with the concepts of progress and improvement.
The court argued that anything could be construed to be capable of causing damage
upon escape from a person's property, and that the only truly natural use of property


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was to leave it in it's native state. The court further said that a person in modern society
had "relative" and not absolute rights.

Notes: 1. In Losee v. Buchanan, a person was held not liable when his boiler exploded
and ignited the house of another, by reasoning of "implied compensation" - that he has
already profited from the general good provided by boilers, and civilization in general,
in which he shares. The doctrine of "reciprocity". In Turner v. Big Lake Oil, Ryland
was held to be not-applicable because the nature of oil drilling in Texas made large
salt-water storage reservoirs a necessity.

1. Stone v. Bolton (1950); pg. 112, briefed 9/18/94

2. Facts: P. is an old woman who was walking on a street that bordered a Cricket field,
when she was struck by a well hit ball. It was one of the longest hit balls ever recorded
at that field, and there had only been a few balls hit over the fence in the last 30 seasons.
P. sued the home cricket club and all of its members claiming negligence in setting up
the field, not making the wall high enough and otherwise not ensuring that the balls
remained in the field.

3. Procedural Posture: At trial court, judgment was for ∆ on both counts. The Court of
Appeals reversed, holding for P. on the claim of negligence.

4. Judges Rule: A person is liable for a reasonably foreseeable risk which he does not
protect against and which results in injury to another.

5. Classical Holding: A person is liable for negligence when he does not take reasonable
precautions to prevent a reasonably foreseeable risk which results in injury to another.

6. Reasoning: There had been 6 to 10 balls hit over the fence in the last 30 years, and
although it was highly unlikely to happen on any one pitch, a ball was eventually going
to go over the fence again, and so the risk was foreseeable. They further reasoned that it
was unreasonable to require the persons who were walking along the road to assume
the risk of being hit by a ball themselves.

1. Bolton v. Stone (1951), pg. 114, briefed 9/18/94

2. Facts: Same as above.

3. Procedural Posture: After judgment for P. in Court of Appeals, it was brought to
House of Lords, this court.




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4. Judges Rule: A person is not liable for negligence when he takes all precautions that a
reasonable man would take in the same circumstances to prevent damage likely to arise
from his actions.

4. Classical Holding: A person is liable for negligence when he does not take
precautions that a reasonable man would take under the same circumstances to prevent
damage to others that would likely result from his actions.

5. Reasoning: The court stated that foreseeability is not the only standard which
applies. They also required taking into account all of the circumstances involved in the
degree of the risk including: the likelihood of damage and extent of damage should it
occur. They stated that these considerations together did not cause a reasonable man to
do anything differently in this case.

Notes: 1. The π had a choice of suing 3 possible ∆'s: the batsman who hit the ball, the
visiting team he played for, or the owner of the home team. She would have to sue the
batsman under strict liability, and the visiting team under vicarious liability. 2. In the
absence of strict liability, there can still be "ethical compensation" where the person who
is under no legal liability might still feel obligated to offer some measure of
compensation to the injured party. 3. The tort theory of Corrective Justice, where the
purpose of the legal system is rectification or redress to restore injured parties to their
original state, supports both strict liability and negligence theories. In strict liability, it is
sufficient to make a prima facie case of "causation" without regards to "responsibility".
In negligence, the argument must be that the π must show that the ∆ performed an "act
of injustice"; something "wrongful". Thus, in negligence, we need to show not only that
the π should be compensated, but that he should be compensated by ∆. 4. Economic
efficiency theory: rights of injured victims to recover should be determined by the costs
involved in establishing and enforcing those rights. Thus, to minimize costs, the risk
should be placed on the person who can most easily avoid it.

1. Hammontree v. Jenner (1971); pg. 120, briefed 9/21/94

2. Facts: The ∆ was driving home from work when he had an epileptic seizure and
crashed through the front of the bike store where π was working, and caused bodily
injury to π, and damages to the store. The ∆ was on medication for his epilepsy, and
driving on a probationary license which required him to submit to tests at 6 mo.
intervals for a doctor to certify, in writing, his fitness to drive. The ∆'s doctor testified
that he believed it was safe to drive under the medication.

3. Procedural Posture: Trial court returned judgment for ∆. π appealed, contending that
the trial court was in error in refusing to grant summary judgment on the issue of
liability, and refusing to give the jury the instructions they prepared which stated that
an epileptic is strictly liable for damages to an innocent person that arise from a seizure


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while he is driving a car. π withdrew a negligence claim and stood solely on the strict
liability claim.

4. Judge's Rule: A driver who is suddenly stricken by an illness rendering him
unconcious, and who thereafter causes damages to a third party, is liable for those
damages only when he is negligent in his actions to prevent such damages.

5. Classical Holding: Same as judges.

6. Reasoning: The court cited the holdings of several previous cases, and reasoned that
to judge for π would override the established law of the state, and cause chaos in
insurance settlements. In addition, they rejected π's analogy to the strict liability
involved in product liability cases. They stated that the jury instructions were properly
disallowed because, besides covering the case where an epileptic had knowledge of a
possible risk, they covered the case of a driver being stricken by a condition of which he
had no prior knowledge.

1. Helling v. Carey (1974); pg. 185, briefed 9/21/94

2. Facts: The π consulted the ∆, an opthamologist, for a period of 10 years in which she
complained of eye irritation from contact lenses. The ∆ tested π for glaucoma when π
was 32, after she complained of impaired peripheral vision. The test was positive, and
the π suffered a permanent loss of vision because the disease had run too long. π sued
for damages.

3. Procedural Posture: The trial court and Court of Appeals both found for ∆ based on
lack of showing of negligence, because it was common practice not to perform the
glaucoma test on patients under 40. π then petitioned to this court.

4. Judges Rule: The reasonable standard of care that should have been followed under
the facts of this case was the timely giving of the glaucoma test, and that in failing to do
so, the ∆ was negligent.

5. Classical Holding: When a person is consults an opthamologist over several years,
and is not tested for glaucoma because, in the profession, his age group is not normally
tested for glaucoma, and the person later loses sight as a result of the glaucoma which
could have been detected by a simple, safe test, the opthamologist is liable for damages
for negligence.

6. Reasoning: The court reasoned that common practice in the profession is not the
absolute measure of negligence. "...There are precautions so imperative that even their
universal disregard will not excuse their omission". The court took an active role in
requiring the test because it was simple, safe, and the consequences of not performing


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the test were very severe and should not be borne solely by the π. A concurring opinion
reasoned that the true measure here was one of strict liability, not negligence.

Notes: 1. Helling provoked a swift statutory response, providing common practice as
the absolute standard of due care, therefore requiring negligence. In common law, the
standard is similar. 2. The standard of custom in physician malpractice is needed
because courts do not have the training to determine what is reasonable, and because it
would generate too many unfounded lawsuits.

R. Keeton and J. O'Connell, Basic Protection for the Traffic Victim (1965).

Summary: Compensation of an injured party is a shifting of loss from the π to the ∆.
The costs of litigation involved in a tort case are tremendous and the overall bottom line
is a monetary net loss unless the advantages of the decision outweigh the costs involved
in the litigation. Thus, an award for compensation should not be made unless there are
more valuable reasons than mere compensation. "Otherwise, the award will be an
arbitrary shifting of loss from one person to another at a net loss to society due to the
economic and sociological costs of adjudication."

Notes:

I. Strict liability
        A. Imposed to make the ∆ internalize the costs imposed on others.
                1. Making the actor bear the costs as if he were the injured party.
        B. Eliminates the need to determine "standard of care".
                1. Reduces litigation costs in individual cases, however
                2. Gives incentives for more lawsuits - raising costs.
II. Negligence
        A. Imposed to make the π internalize costs for accidents that he would not have
        avoided had he been the actor
                1. Because the cost of avoidance would outweigh the cost of injury in view
                of the minimal chance of risk (diminishing returns).
                2. π cannot say that the ∆ did anything "wrong" because he would have
                taken only the same precautions under like circumstances.
        B. Requires determination of "standard of care" or "reasonableness".
                1. Increases litigation costs in individual cases.
                2. Reduces number of lawsuits because the costs of litigation usually
                outweigh the compensation for injury.


I. Standard negligence action
       A. Duty



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              1. ∆ owed π a duty or obligation to conform his conduct to a standard
              necessary to prevent the unreasonable risk of harm to others.
       B. Breach
              1. ∆ did not meet the appropriate standard of care.
       C. Causation
              1. ∆'s failure to meet the appropriate standard of care was causally
              connected to the π's harm.
       D. Damages
              1. The property damage or personal injury was caused by ∆'s breach of
              duty.

1. Vaughan v. Menlove (1837); pg. 129, briefed 9/25/94

2. Facts: ∆ made a dangerous haystack near the boundary of ∆'s and π's properties.
After being warned several times about the risk of fire associated with the haystack, ∆
said that "he would chance it." ∆'s haystack spontaneously caught fire, and the fire
spread to the π's property, totally destroying two cottages belonging to π

3. Procedural Posture: Judgment was for π in trial court, and ∆ appealed on the grounds
that the jury was improperly instructed to judge ∆'s actions by the standard of care of
the ordinary person. Rather, ∆ contested, in determining his negligence, he should be
judged only on his own bona fide best judgment.

4. Judge's Rule: 1. A person must enjoy his property so as not to injure that of another.
2. In determining negligence, it is the standard of care of a man of ordinary prudence
that must be followed.

5. Classical Holding: When a person disregards the ordinary standard of care in
keeping flammables on his property, and a fire ensues due to his lack of ordinary care,
he is liable for fire damages to the property of another that arise directly from his
negligence.

6. Reasoning: To hold each individual to his own standard of care in determining
negligence would be too vague to be practically enforceable. In this case, the ∆ had
repeated warnings, which he disregarded, and so he was aware of the standard of care
necessary. It was his disregard of these warnings that led to the fire and ensuing
damages.

Holmes, The Common Law; pg. 134, briefed 9/25/94

I. Standard of Care
       A. Ordinary care of the average man
              1. Policy


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                         a) in society, a certain average conduct is required to ensure the
                         general welfare.
               2. Risk
                      a) a below-average person acts at his own peril at all times, even
                      though he may not be morally blameworthy.
                      b) an ordinary person acts at his own peril when he fails to exercise
                      proper foresight, or has evil intent.
       B. Exceptions to ordinary care of the average man
              1. Policy
                      a) a person with distinct defects which prevent taking certain types
                      of precautions should not be held accountable for not taking them.
              2. Examples
                      a) a blind man will not be held accountable for failing to take a
                      precaution which required sight.

1. Roberts v. Ring (1919); pg. 136, briefed 9/25/94

2. Facts: π is a 7 Yr old who jumped out from behind a buggy and crossed the street
suddenly in front of ∆'s car. ∆ is a 77 Yr old with sight and hearing impairments, who
was traveling at 4-5 mph when he hit ∆ π states that he saw ∆ just before impact.

3. Procedural Posture: ∆'s father brought the suit for damages. Trial court found for ∆. ∆
claims boy was negligent, π claims error.

4. Judge's Rule: "When one, by his acts or omissions causes injury to others, his
negligence is to be judged by the standard of care usually exercised by the ordinarily
prudent man."

5. Classical Holding: When a person hits and injures a child with his car, he is negligent
and liable for damages if he has not acted with the standard of care usually exercised by
the ordinary man, unless he suffers from physical defects which prevent his taking
those ordinary precautions required to avoid harm to the victim.

6. Reasoning: The driver was negligent in either one of two ways. Either he was not
paying attention closely enough to avoid injuring the child, or he did not stop quickly
enough if he did actually see the child. Further, the court reasoned that the child had no
contributory negligence, because in such a situation, he was only required to exercise
the precautions of self-protection that an ordinary 7 Yr old would exercise in the same
circumstances.

Notes: 2. A beginner might be held to a lower standard of care in some beneficial
activities than an expert would for 2 policy reasons: 1) it encourages more beginners to
take up the particular beneficial action, and 2) a uniform standard of care would not


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provide incentive for an expert to use as much care as he may know to be prudent,
because any increment over the uniform standard would be not cost effective.

1. Daniels v. Evans (1966); pg. 138, briefed 9/25/94

2. Facts: π is the father of a deceased 19 Yr old youth who was riding a motorcycle when
he collided with ∆'s automobile.

3. Procedural Posture: Trial court found for π, and ∆ appealed, contending that the
standard of care required by the 19 Yr old motorcycle driver should have been that
required of the ordinary adult, and not that of the average 19 Yr old.

4. Judge's Rule: When a minor drives an automobile or similar power driven device, he
is held to the standard of care of the ordinary adult.

5. Classical Holding: When a minor drives an automobile, he assumes liability for
damages resulting from his negligence as measured by the standard of care of the
ordinary adult in the same circumstances.

6. Reasoning: An automobile is such a potentially dangerous thing that to hold minors
to a lesser standard of care would be at risk to the general welfare. Driving an auto
requires a great amount more care than most activities undertaken by children, and so
should not be judged according to the standard of care that would apply to those less
dangerous activities.

Notes: 1. In Goss v. Allen, the supreme court held that a 17 Yr old skier should be held
to a youth standard for negligence, distinguishing on the basis that skiing required no
license. The dissent stated that there are many potentially dangerous activities that are
not licensed which result in severe injuries. 2. There is some argument for a
double-standard of conduct - a higher one for defendants and a more relaxed one for
plaintiffs. However, cases have generally moved towards a single uniform standard.

1. Breunig v. American Family Insurance Co. (1970); pg. 143, briefed 9/25/94

2. Facts: ∆ was driving her car when she had a sudden mental delusion that caused her
to lose control, thinking that God had taken over the steering wheel. ∆ thought she
could fly over π's oncoming truck like Batman, but unfortunately, they collided. ∆'s had
a history of delusion, and thought she was on a mission from God to survive the
impending end of the world.

3. Procedural Posture: Trial jury returned a verdict finding ∆ causally negligent on the
theory that she had advance notice that she was susceptible to such delusions.



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4. Judge's Rule: A person struck by sudden mental incapacity which prevents them
from exercising due care, but of which they had advanced warning, is liable for
negligence.

5. Classical Holding: Same as Judge's Rule.

6. Reasoning: The court avoided the question of an insane person's negligence, and
simply stated that a sudden mental affliction should be treated the same as any other
sudden illness, such as a heart attack. They reasoned that since the ∆ believed that God
wanted her to survive, that it was foreseeable that God would one day take control of
her car, thus she had advanced notice, and was negligent in operating the car in the first
place.

1. Fletcher v. City of Aberdeen (1959); pg. 146, briefed 9/25/94

2. Facts: π is a blind man who was using his cane to walk down the street in the vicinity
of some city construction. A city worker had posted barricades around the construction,
but later removed them for ease of work and never replaced them. π was injured as a
result of not encountering any barricades to protect him from the construction.

3. Procedural Posture: Trial court found for π ∆ appealed contending error in the jury
instructions for refusal to instruct as they requested that the city did not have a higher
degree of care required just because the π was blind.

4. Judge's Rule: The city is required to provide protection to a degree that would give a
disabled person notice of the dangers to be encountered.

5. Classical Holding: A person is required to use the degree of protection which would
bring notice of the possible dangers to any potential victim who might be physically
inflicted and therefore unable to exercise care on his own behalf.

6. Reasoning: The city should have known that blind persons were likely to use the
street, and that their only reasonable means of avoiding obstacles was by use of a cane.
Thus, the city was negligent in not providing a barricade for a blind person to ward him
of the dangers he could not see.

1. Robinson v. Pioche, Bayerque & Co. (1855); pg. 147. briefed 9/25/94

2. Facts: A drunk π stumbled into an open hole in front of his house, dug by ∆

3. Procedural Posture: Trial court found for ∆, π appealed.




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4. Judge's Rule: A person who leaves an unmarked hole in a public area, and provides
no protection to prevent pedestrians from falling into it, is liable for damages for
negligence even if the victim is drunk.

5. Classical Holding: Same as Judge's Rule.

6. Reasoning: The court reasoned that a drunk man is as much entitled to a safe street
as a sober one, and much more in need of it.

1. Denver & Rio Grande R.R. v. Peterson (1902); pg. 148, briefed 9/25/94

2. Facts: Unknown

3. Procedural Posture: Unknown.

4. Judge's Rule: The care required of a person is the same whether he is rich or poor.

5. Classical Holding: Same as above.

6. Reasoning: To hold that the degree of care required were related to wealth would
create a sliding rule that would be impractical to enforce. Wealth alone has no bearing
on the standard of care of the ordinary person.

7. Policy: To deter someone, you must give adequate penalty of negligence to cause the
actor to consider the cost/benefit analysis of his action.

1. Smith v. Lampe (1933); pg. 149, briefed 9/25/94

2. Facts: Appellant lived on the shores of Lake Erie. One winter afternoon, he heard a
tug and barge heading toward the shore, so he attempted to warn them off by blowing
his car's horn. Appellee is the owner of the barge, which was being led into port by the
tug. The tug captain misinterpreted the automobile's horn as being fog signals from a
launch at the port's entry signaling them to proceed.

3. Procedural Posture: Trial court found for barge owner.

4. Judge's Rule: "...reasonable anticipation of injury is important only in the
determination of negligence, while the natural course of events is the test of required
causation..."

5. Classical Holding: A person who has a reasonable anticipation that his act will cause
injury to another is liable for damages.



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6. Reasoning: The appellant had no knowledge of fog signals or boats. He had no
means of knowing that his car horn signals might be misinterpreted by the tug.
Therefore, he could not have had any knowledge that what he did would be reasonably
expected to cause an injury.

1. Blyth v. Birmingham Water Works (1856); pg. 151, briefed 10/2/94

2. Facts: ∆ is a water company who installed a water main near the π's house. During
the severest frost on record, the ice build-up in the plug caused the water main to burst
and sent water into the home of ∆ The ice had been visible on the surface for some time
before the accident.

3. Procedural Posture: The Trial court judge instructed the jury that if the ice had been
removed from the plug, the accident would not have happened, and so found for π ∆
appealed to this court.

4. Judge's Rule: People are negligent if they omit doing something which a reasonable
man, guided by the considerations which regulate the conduct of human affairs, would
do.

5. Classical Holding: Same as Judge's Rule.

6. Reasoning: A reasonable man would have taken precautions to avoid accidents
brought about by the normal frost seasons. The fact that the cause of the accident was
not discovered until months after the accident occurred is evidence of how remote the
likelihood of the accident was. In addition, the ∆ was not bound to keep the plugs free
of ice.

1. Eckert v. Long Island R.R. (1871); pg. 152, briefed 10/2/94

2. Facts: π was waiting for ∆'s train which was approaching when he noticed a young
child sitting on the tracks. The π ran across the tracks, pushed the child out of danger,
and was then hit by the train. The π died of his injuries. Witnesses put the speed of ∆'s
train at 12-20 mph.

3. Procedural Posture: In trial court, ∆ moved for non-suit, claiming contributory
negligence by π Jury returned a verdict for π, which was affirmed at the Supreme Court
level. ∆ then appealed to this court.

4. Judge's Rule: One who knowingly and voluntarily places oneself in a position in
which one is liable to receive serious injury is not negligent if one has done so in order
to save a life, unless such actions would be considered imprudent by a reasonable
person under the same circumstances.


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5. Classical Holding: Same as Judge's Rule.

6. Reasoning: The π had only an instant to act, or the child would have died.
Furthermore, it was reasonable for the π to believe that he could save the child without
receiving serious injury.

7. Policy: The court did not wish to deter acts of heroism in preservation of human life.
Terry, Negligence

I. Negligence
       A. Based on reasonableness, not math.
              1. Risk involved must be unreasonably great.
              2. Injurious consequences must be unreasonably probable.
       B. Five factors to consider
              1. Magnitude of the Risk
                      a. Probability rescuer would be killed.
              2. Value of Principle Object
                      a. Value of rescuer's life, very high.
              3. Value of the Collateral Object
                      a. Value of victim's life, very high.
              4. Utility of the Risk
                      a. Probability that the rescue is successful.
              5. Necessity of the Risk
                      a. Probability that the victim would not rescue itself.
       C. Human life may be put at risk to save property if it is reasonable to do so after
       considering the 5 factors.

Seavey, Negligence - Subjective or Objective?

I. Negligence
       A. If π's and ∆'s interests are of equal value, ∆ is not liable if he takes a 50%
       chance of destroying π's property to save his own.
              1. Balancing Interests
       B. An unlawful actor is liable to anyone because his act, by definition, has no
       value to society.

1. Hauser v. Chicago, R.I. & π Ry. (1928); pg. 156, briefed 10/2/94

2. Facts: π is a woman who felt sick while riding on ∆'s train. π went to the lavatory, and
feinted. When she fell to the ground, her body lay in such a way that her head was
under the sink, and her face came into contact with exposed steam pipes. π was badly
burned.


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3. Procedural Posture: Trial Jury returned verdict for π ∆'s motion for directed verdict
was denied. ∆ appealed to this court.

4. Judge's Rule: One is negligent when one fails to protect against injuries that are
reasonably anticipated.

5. Classical Holding: One is not negligent when one constructs a device which protects
against all reasonably anticipated injuries that may be caused by the reasonably
anticipated actions of its users.

6. Reasoning: In order for someone to be burned, they would have to get under the
sink. The area under the sink was not intended for use by passengers. The ∆ could not
reasonably anticipate that the π would have fallen with part of her body under the sink,
therefore ∆ was not liable for π's injuries.

1. Osborne v. Montgomery (1931); pg. 157, briefed 10/2/94

2. Facts: π is an errand boy who was injured when his bicycle handlebar struck the
partially opened left-hand door of ∆'s car while it was double-parked.

3. Procedural Posture: The question was put to the jury whether the driver of the car
was negligent and the boy not contributorily negligent.

4. Judge's Rule: One is negligent when one acts with without ordinary care - the degree
of care which the great mass of mankind would ordinarily exercise under the same or
similar circumstances.

5. Classical Holding: Same as Judge's Rule.

6. Reasoning: The rights of a person living in society are not absolute. We are constantly
doing acts which result in injury to others, but we must consider the balancing of social
justice in determining liability. A firetruck driver might reasonably foresee injury to
others while driving quickly through a highly populated area, but he would not be
negligent if that injury occurred because the benefits of his actions to society outweigh
the probability of injury.

1. Cooley v. Public Service Co. (1940); pg. 159, briefed 10/2/94

2. Facts: π was talking on the phone when a severe storm caused ∆'s power lines to part
and fall onto the phone lines below. The resultant noise that the π's telephone made
scared her so badly that she fainted and sustained a severe neurosis. π contended that



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baskets should be placed under power wires that cross telephone wires in order to
prevent contact of broken power lines with the telephone lines below.

3. Procedural Posture: π sued both the Power Company (∆) and the Phone Company.
Trial jury found for the phone company, but against the power company. The power
company appealed and the judgment was reversed.

4. Judge's Rule: One is not negligent when one acts with due care to prevent a probable
injury to someone, and in doing so, can not prevent an unlikely injury to another.

5. Classical Holding: One is negligent when one acts without due care to prevent a
probable injury to another.

6. Reasoning: The court reasoned that the baskets for holding the power wires would
increase the obvious and immediate risk to the passerby on the street that he would be
injured if the power lines broke. Thus, to protect the telephone user would be to not
protect the passerby. The law could not tolerate such a theory of "be liable if you do and
liable if you don't."

Notes: In a case governed by negligence, the actor may only need consider due care
when he engages in his activity, but not when determining how frequently he engages
in his activity. Thus, the driver of a car is not negligent when the car hits a pedestrian, if
the driver was acting with due care. However, the more times the driver drives, the
higher the cumulative probability that he will hit a pedestrian. Strict liability, however,
requires the actor to consider both due care and frequency. [This argument is flawed if
you consider that one of the ingredients of determining reasonableness is necessity. One
who does a dangerous activity for an unnecessary reason could still be negligent].

1. United States v. Carroll Towing Co. (1947); pg. 161, briefed 10/2/94

2. Facts: The ∆ tug was moving a line of unmanned barges out to sea when one broke
loose, collided with another vessel, and sustained hull damage. The barge began to leak
[and eventually must have sunk].

3. Procedural Posture: Unknown.

4. Judge's Rule: One is negligent when one does not act to prevent injury to another
when the burden of prevention is less than the expected cost of the injury.

5. Classical Holding: A barge owner is negligent when he does not man the barge
during daylight hours in a crowded port.




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6. Reasoning: The court (Chief Justice Learned Hand) stated that it was not
unreasonable to expect that the barge would break its moorings and cause damage to
another ship, especially in the crowded New York harbor. The court used a
mathematical justification to determine negligence. It stated that a person was negligent
when B<P*L, where B= the burden of prevention (cost of the bargee's attendance), P=
probability of injury (barge would unmoor and collide with another vessel), and L = the
loss (cost of the damages arising from the collision.)

Notes: 1. This is the beginning of the cost/benefit analysis of tort law. 2. It is difficult to
determine these mathematical numbers with any accuracy. Their only use should be to
point out which factors should be given most consideration. 3. Marginal Precautions -
taking a precaution is only desirable to the extent that it directly reduces expected cost
of injury. Thus, a $100 precaution to save a $150 loss is only desirable if each dollar of
the $100 went toward reducing the loss by at least a dollar. If the first $60 spent bought
$120 of protection, and the next $40 spent only bought $30 of protection, you shouldn't
spend the extra $40 because you get -$10 returns. 4. The Hand formula assumes a
risk-neutral person. A risk preference or risk aversion would cause the outcome to be
different. 5. Both a system of strict liability with contributory negligence, and a system
of negligence without contributory negligence will result in a risk-neutral person acting
optimally. In the former π (victim) is barred from recovery by his own conduct, and in
the second he is barred from recovery by the ∆'s conduct. Therefore, in both cases he
will be careful to avoid injury. 6. Grady has argued that a negligence system promotes
over-cautiousness because a potential ∆ knows that a small error in judgment can lead
to an immense increase in cost ($0 to big$), whereas in strict liability, a small error in
judgment leads only to a small increase in cost (big$ to bigger$). On the other hand,
Calfee and Craswell argue that the ∆ will be under-cautious because he considers the
real probability that the court might not judge him negligent. 7. Calabresi and Hirschoff
argue for strict liability by saying that it reduces the difficulty of the decision the court
needs to make to one of who could have most easily have avoided the costs, rather than
whether the cost of avoidance was worth it.

1. Titus v. Bradford, B. & K. R. Co. (1890); pg. 169, briefed 10/9/94

2. Facts: ∆ is a railroad company that operated a narrow-gauge line which often carried
standard-gauge curved bottom cars. The cars were placed on the narrow gauge flat
trucks and secured from wobbling by placing wooden blocks under the ends. π was a
brakeman who died when the standard gauge car he was riding on toppled over
because its wooden block brace came loose.

3. Procedural Posture: The trial court jury found for π, and ∆ appealed to this court.

4. Judge's Rule: Employer are not negligent when they use machinery and appliances
of ordinary character and reasonable safety which are ordinarily used by the business.


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5. Classical Holding: Employers are not negligent to their employees when they use the
ordinary and reasonable care normally provided by others in the same business.

6. Reasoning: The court stated that use of standard-gauge cars on the narrow-gauge
track was normal and customary in the railroad business. Furthermore, the ∆ was aware
of the dangers of the job, and so accepted the risks. They stated that an employer was
not required to use a particular device that might have prevented a particular accident
if it was not in common use.[B.S.]

1. Mayhew v. Sullivan Mining Co. (1884); pg. 172, briefed 10/9/94

2. Facts: π was a contractor working in ∆'s mine shaft. In the course of his work, π
routinely stood on a platform suspended in the mine shaft. ∆ cut a ladder hole in the
center of the platform without notifying π, nor erecting a guard rail. π fell through the
ladder hole and received serious injury.

3. Procedural Posture: Trial court refused to allow testimony of the person who cut the
hole as to the custom of putting unguarded ladder holes in mine shaft platforms. The
jury found negligence, and ∆ appealed to this court.

4. Judge's Rule: Employers are negligent, even though they use the average custom of
others in the business, if they fail to provide ordinary care.

5. Classical Holding: Same as judge's rule.

6. Reasoning: It would be no excuse for want of ordinary care to say that all employers
in the same business use the same lack of ordinary care. The trial court was proper in
disallowing the testimony of the ∆'s witness as to mining customs, because in this case,
the carelessness of cutting the ladder hole was apparent.

1. The T.J. Hooper (1931); pg. 173, briefed 10/9/94

2. Facts: The operator of the tugboat "T.J. Hooper" was sued under a towing contract
when his vessels and cargo were lost in a gale. The T.J. Hooper was not outfitted with a
working radio capable of receiving the gov't weather broadcasts which warned of the
coming storm. Several other tugs did have working radios, and so were able to avoid
the storm, but not all coastal tugs carried them.

3. Procedural Posture: Original court.

4. Judge's Rule: Tugs are unseaworthy if they do not carry effective radio sets as part of
their equipment.


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5. Classical Holding: Business owners are negligent if they do not provide the safety
equipment that is customarily used by the majority of that industry.

6. Reasoning: The court reasoned that radios were in almost universal use at the time of
the accident. Many tug owners considered them a necessary part of their equipment.
Thus, when the owner of the T.J. Hooper failed to provide working radios on his tugs,
he was negligent.

1. The T.J. Hooper (1932); pg. 174, briefed 10/9/94

2. Facts: Same as above.

3. Procedural Posture: On appeal from the above decision.

4. Judge's Rule: Common prudence is not the strict measure of negligence, but rather
reasonable prudence.

5. Classical Holding: Business owners are negligent if they do not exercise reasonable
care in the course of their business.

6. Reasoning: The fact that a whole industry may have ignored the use of reasonable
care in their conduct does not excuse them from being negligent.

Notes: 1. Judge Hand's decision represents a revolution in going from the belief that
market forces determine what is a cost-effective safety measure, to the notion of active
regulation of safety measures. Custom may be used as evidence of reasonable care, but
it is not the strict measure of reasonable care. 2. Balancing risk and safety is a
cost/benefit analysis. 3. Safety codes and manuals can be used to show the custom in an
industry, but do not show what ought to be done unless they meet the standard of
reasonable prudence. 4. It is now generally held that an employer's own rules of
conduct may be used as evidence of his negligence, even if they represent a higher
standard of care than what is required by law. Thus, if an employer deems it prudent to
follow a certain rule, and then does not follow it, he may be negligent, even if the rule is
more strict than the law. 5. As customs change, it may be negligent not to retrofit
previously built structures with safety measures that are prudently used today, but
were unknown or unnecessary previously.

1. Helling v. Carey, (1974); pg. 185, briefed 10/9/94

2. Facts: π visited the ∆ eye doctor from 1959 (when she was 23 yrs. old) to 1968 (when
she was 32) largely for irritation of the eyes caused by contact lenses. By the end of 1968,



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∆ suspected that π had glaucoma, and tested her for it. She tested positive. However,
the testing happened so late that she had permanent sight loss.

3. Procedural Posture: At trial court, medical experts testified that the glaucoma test
was not routinely given to patients under 40 because of the rareness of occurrence. The
court agreed that this custom absolved ∆ of liability. The Court of Appeals affirmed
judgment for ∆. π petitioned the Supreme Court for review, which was granted.

4. Judge's Rule: Regardless of the prevailing custom in a profession, the courts must
ultimately decide what is the standard of due care.

5. Classical Holding: An opthamologist who does not administer glaucoma tests to a
patient under their regular care is liable for damages to the patient if the patient
subsequently permanently loses eyesight due to glaucoma.

6. Reasoning: The court quoted Justice Hand in The T.J. Hooper, "Courts must in the
end say what is required; there are precautions so imperative that even their universal
disregard will not excuse their omission." The glaucoma test was painless, inexpensive,
easy to administer, and quick. The possible damages due to glaucoma were very severe.
The court weighed the cost vs. the benefit, and found that the custom of not testing
persons under 40 was negligent. A concurring justice (Utter) stated that the negligence
argument was not even needed here, and argued for strict liability under these
circumstances.

1. Canterbury v. Spence, (1972); pg. 191, briefed 10/9/94

2. Facts: π suffered from back pain as a teenager. The ∆, his doctor, recommended that
he undergo a laminectomy to fix his spine. The ∆ did not advise π or his mother of the
dangers involved because it was customary for him to withhold information of risks
that he considered minor. When the ∆ performed the operation, he found the spinal
cord to be swollen, and in very poor condition. While recovering in the hospital, the π
slipped and fell as he tried to get out of bed unattended, contrary to doctor's orders.
Shortly after the fall, the π experienced paralysis and has since walked on crutches and
had bowel problems.

3. Procedural Posture: The π brought suit as an adult, 4 years after the operation. Both
the hospital and the doctor were named as ∆s. The trial court granted a directed verdict
for ∆, on the grounds that the π had failed to provide medical evidence of causation, or
negligence on the part of the doctor in performing the operation.

4. Judge's Rule: "[T]he standard measuring performance of that duty [to disclose] by
physicians, as by others, is conduct which is reasonable under the circumstances."



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5. Classical Holding: A doctor must disclose to a patient all risks that are reasonable to
disclose under the circumstances, as measured by the patient's right to make an
informed choice as to the operation.

6. Reasoning: The court disregarded the ∆'s argument that he should not be liable
because it was not his custom to disclose risks that he considered slight. It is the
patient's right of self-decision which determines how much should be disclosed, and all
risks that might bear upon a prudent patient's decision must be disclosed. However, the
doctor does not need to second guess the patient. He does not need to disclose risks
which the patient should already be aware of, nor those which would cause the patient
to make an irrational decision not to undergo the surgery.

1. Brune v. Belinkoff (1968); pg. 179, briefed 10/9/94

2. Facts: π slipped and fell as she attempted to get out of her hospital bed. Evidence
showed that the fall was a result of being given a large dose of anesthetic by ∆, an
anesthesiologist. The normal practice in New Bedford, where the ∆ practiced, was to
give 8 mg. of anesthesia. However, the custom in other areas was to give only 4 mg.

3. Procedural Posture: The trial court allowed the jury to consider the average level of
skill of the doctor in New Bedford, and so returned a verdict for ∆ π appealed to this
court.

4. Judge's Rule: A doctor's negligence to be judged by the degree of care exercised by
the average practitioner without regard to his locality.

5. Classical Holding: Doctors are negligent if they do not exercise the degree of
ordinary care exercised by other doctors in the same medical discipline, under similar
circumstances, and with the same medical resources available.

6. Reasoning: The court reasoned that with the advancements in communication and
transportation, it was not proper to judge a doctor's conduct solely in relation to other
doctors in his locality. Therefore, they expressly overruled Small v. Howard, which was
the old law meant to distinguish country doctors' skills from those of distinguished
big-city surgeons.

Notes: 1. In Buck v. St. Clair, the local standard of care was held to be the same as the
national standard of care for board certified physicians. 2. The national/local standard
of care issue is also applicable to expert medical witnesses. An expert from a different
locality will only be allowed to testify if the local statutes permit. 4. Interns may be held
to a lower level of skill and care than an experienced physician.

Thayer, Public Wrong and Private Action (1914, 1924); pg. 207, briefed 10/9/94


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I. Before criminal ordinances for negligent actions
       A. Negligence was a question of fact left to jury using the test of the "ordinary
       prudent man".
       B. Reasonableness of ∆'s conduct was a question of circumstances and not law.

II. After criminal ordinances for negligent actions
        A. Negligence is a question of law not for the jury.
        B. To try as a question of fact would be to place the judgment of the ordinary
        person who knows the ordinance above the judgment of the legislature who
        thought the action dangerous enough to outlaw it.


1. Osborne v. Mc Masters (1889); pg. 208, briefed 10/16/94

2. Facts: ∆'s clerk sold a bottle of poison to π's deceased without labeling it "Poison" as
required by statute. The π's deceased apparently confused this bottle with a bottle of
medicine, drank it, and died.

3. Procedural Posture: The trial court found for π ∆ appealed to this court.

4. Judge's Rule: 1. People are liable for negligence if they neglect to perform a duty
required by statute, and a person designed to be protected by that statute is injured as a
result of their breach of that duty. 2. Breach of a duty imposed by statute is evidence of
negligence as a matter of law, and may be negligence per se.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court stated that it was immaterial whether the duty imposed was by
common law or statute. The statute establishes a fixed standard by which negligence
can be determined. Thus, the only difference between the common law and the statute
in determining negligence is that the statute does not require taking into account all of
the circumstances to determine negligence.

Notes: 1. A statute that is, for some reason, defective as an enforceable statute, is
nonetheless a standard that can be used for determining negligence. 2. Old statutes that
are no longer enforced are NOT strict measures of negligence per se, because the fact
that they are not enforced makes them suspect as a standard of ordinary care. If the
standard was ordinary, it would be enforced. 3. A person may be liable for damages
that arise in the future for a breach of a duty that has not yet been statutorily enacted.
The fact that a statute is later enacted is strong evidence that a standard of care was
required before its enactment. 4. Only the class of persons that was intended to be
protected by a statute is entitled to recover in an action for its breach. However, this


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class can be interpreted broadly. In Teal v. Du Pont, the employee of a company that
was using a ladder was held to have an action under the OSHA statutes against the
manufacturer of the ladder, even though the OSHA statutes are sometimes limited only
to the employees of the company that manufactures the product. This is because the
OSHA statutes were interpreted to cover all employees. 5. The statute does not have to
provide a specific duty against a specific injury. The character of the injury to be
prevented is all that is needed to support negligence. A truck that is too heavy for a
road breaks the ordinance that protects the road, but also makes the driver liable for
other property damage that may result (busted underground pipes). 6. Private courses
of actions under Federal statutes must pass the test of Cort v. Ash: a) is the π a member
of the class meant to be protected by the statute, b) is there any legislative intent to
provide or deny a private remedy, c) is it consistent with the gist of the statute to
provide a private remedy, and d) is the action traditionally one of state law jurisdiction
and therefore inappropriate to provide a remedy based solely on the Federal statute. A
state may, however, adopt a Federal statute as a standard of care in its determination of
negligence.

1. Martin v. Herzog (1920); pg. 214, briefed 10/16/94

2. Facts: π's deceased was killed when the buggy he was driving collided with ∆'s car.
The buggy was not showing the lights required by statute.

3. Procedural Posture: The ∆ claimed the lack of lights was prima facie negligence. The
trial court found for π, the Court of Appeals reversed. π appealed to this court.

4. Judge's Rule: The omission of statutory signals is negligent.

5. Classical Holding: To willfully disregard the provisions of a statute, enacted to
provide for the personal safety of the public, is negligence, unless the statute requires
actions which would put the actor at a greater risk of harm.

6. Reasoning: The court reasoned that the statute for providing lights on highway
vehicles was a standard of care that was fixed by statute, thus it was a question of law,
not fact, that the violation was negligent. However, they conceded that not all negligent
conduct is necessarily contributory to the proximate cause of the injury.

Notes: 1. In Day v. Pauly, the π was found to be in violation of a statute and therefore
negligent, even though he was following road markings placed there by the highway
commission. The court said that the π's violation of the statute was not excused by the
actions of public officials. However, in Tedla v. Ellman, the court held that violation of
the statute that required people to ALWAYS walk on the side of the street facing
oncoming traffic was not negligent during light traffic, because it put the pedestrian at a
higher risk of injury. 3. A π can be contributorily negligent when he is injured by a ∆


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who violates a statute if the π knows that the statute is generally ignored. Thus a statute
does not remove all contributory negligence from a π


1. Brown v. Shyne (1926); pg. 217, briefed 10/16/94

2. Facts: π hired ∆ to treat her back as a chiropractor. The ∆ represented himself as a
capable chiropractor, but had no license to practice medicine. ∆ was therefore in
violation of a statute. π suffered paralyzation as a result of the treatment, and sued for
damages under negligence and malpractice.

3. Procedural Posture: The trial court judge allowed the jury to consider the fact that the
∆ did not have a license as evidence of negligence. The ∆ appealed to this court.

4. Judge's Rule: A π may recover for injuries that were proximately caused by the
violation of a statute by ∆.

5. Classical Holding: The violation of a statute is negligent as to all consequences of the
violation that the statute was meant to prevent.

6. Reasoning: The majority reasoned that the ∆ was not liable to a private party solely
because he did not have a license because the license had no direct bearing on the
injury. A doctor does not gain skill by the awarding of a paper license. Thus, the doctor
was committing an offense against the state, but the lack of a license per se was not the
proximate cause of injury to π.

7. Dissent: The dissent (Crane) reasoned that the statute was meant to provide
protection for the public in exactly this kind of case. The legislature felt that an absolute
bar against unlicensed practice of medicine was necessary, even though some
unlicensed doctors may not cause harm. Thus, the violation of this statute was the
direct cause of the injury. To hold otherwise would put the judgment of the court ahead
of the legislature.


1. Ross v. Hartman (1943); pg. 221, briefed 10/16/94

2. Facts: The π was a person who was hit by a thief driving the stolen truck belonging to
∆. ∆'s employee had left the truck unlocked, violating a statute.

3. Procedural Posture: The trial court found for ∆, on the basis that the violation was not
a proximate cause of the injury, because a third party had intervened. π appealed to this
court.



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4. Judge's Rule: 1. Violation of safety ordinance is negligence. 2. An actor who brings
about the harm which the statute was intended to prevent, by creating the hazard that
the statute was intended to prevent, has legally caused the harm, even if a third party
has also intervened.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that the intention of the statute was to provide for the
safety of the public against exactly this sort of event. The fact that the thief was also
contributorily negligent was immaterial. The ∆ was negligent, per se, because he created
the risk that the thief would injure a third party.

Notes: 1. In Richards v. Stanley, the court held that the owner of the unlocked car was
not negligent because the risk that a thief would injure someone was less than the risk
that a borrower (who had permission) would injure someone. In addition, the court
reasoned that the ∆ had no duty to protect the π from injury caused by third persons.

1. Vesely v. Sager (1971); pg. 224, briefed 10/16/94.

2. Facts: The π was injured when the car he was driving was hit by a drink driver who
had been drinking heavily at ∆'s lodge from 10 PM to 5 am. The ∆ knew that the patron
was drunk, knew that he planned to drive, and also knew that a windy mountain road
was the only exit from his lodge.

3. Procedural Posture: The ∆ demurred claiming that the consumption, not the
furnishing, of the alcohol was the proximate cause of injury, and so he was not liable.
The trial court sustained the demurrer. π appealed to this court.

4. Judge's Rule: "[A]n actor may be liable if his negligence is a substantial factor in
causing an injury, and he is not relieved of that liability because of the intervening act of
a third person if such act was reasonably foreseeable at the time of his negligent
conduct."

5. Classical Holding: A commercial server of alcoholic beverages may be liable to an
injured party for negligence if he serves alcohol to an intoxicated person, knows or
should know that intoxicated person intends to drive, and that intoxicated person
injures another while driving.

6. Reasoning: The court reasoned that the statute barring persons from serving alcohol
to an intoxicated person was meant to protect the public at large, and that the
injury-producing conduct was one of the hazards that it meant to prevent, thus it
satisfied the negligence test. They further found that the furnishing of alcohol was a
substantial cause of the injury, apart from the voluntary consumption by the drinker.


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Notes: 1. In Coulter v. Superior Court, the court held a non-commercial supplier of
alcohol to be negligent as well. However, California has explicitly overruled Vesely and
Coulter, by enacting a statute that protects the server from any liability, stating that the
consumption and not the serving of alcohol is the proximate cause of the injury. 2. In
other states, the state of the common law on this issue is very confused, with judgments
and statutes going both ways.

I. Judge and Jury
       A. Policy
              1. Jury might be biased and return a verdict contrary to established
              principles of law.
              2. Unpredictability of jury undermines need for consistency in outcomes
              of like cases.

II. Holmes, The Common Law (1881); pg. 233, briefed 10/23/94.
       A. Judge determines negligence when it is a question of law.
              1. Judge can determine what conduct is prima facie evidence of negligence
              if there is no question of fact of whether the conduct happened or not.
              2. An experienced judge should be able to determine many questions of
              negligence without needing the assistance of a jury.
       B. Jury determines negligence when it is a question of fact.
              1. Sometimes courts need the assistance of the experience of the
              community (a jury) to determine negligence as a question of law.
              2. Once the jury decides a particular fact pattern is evidence of negligence,
              then it should become a settled matter of law thereafter, and so not be left
              to a jury.

1. Baltimore and Ohio R.R. v. Goodman, (1927); pg. 236, briefed 10/23/94

2. Facts: π was killed by an oncoming train that he did not see as he drove his car across
a railroad crossing. π had slowed his car down as he approached the tracks, but the
view of the train was blocked until it was too late.

3. Procedural Posture: At trial court, ∆ asked for a directed verdict, alleging
contributory negligence, but did not get it. ∆ appealed to this court (Supreme Court).

4. Judge's Rule: (Holmes) Persons are negligent who rely solely upon not hearing a
train or any signal and proceed to cross a railroad track without taking any further
precautions.

5. Classical Holding: Same as judge's rule.



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6. Reasoning: The π was familiar with the crossing, and therefore knew as he
approached it that he would not be able to see the oncoming train. They reasoned that
he should have gotten out of his car, and looked for a train. The court held that
negligence in this case was based on a standard of conduct that should be well settled
already. It was clear that the π was negligent and so the court decided the question of
negligence as law, and reversed the finding of the previous jury.

1. Pokora v. Wabash Ry., (1934); pg. 237, briefed 10/23/94
2. Facts: π came to a train crossing in his truck, but he could not see any approaching
trains because there were some boxcars blocking his vision. He did not get out and look
for oncoming trains. As he proceeded across the tracks, he was killed by an oncoming
train.

3. Procedural Posture: The trial court awarded a directed verdict for ∆. π appealed to
this court (Supreme Court).

4. Judge's Rule: (Cardozo) A person is not negligent who does not get out of his car and
look for oncoming trains at a railroad track.

5. Classical Holding: When courts determine a fact pattern to be negligence as a matter
of law, they must be careful to base their rule on standards of common experience.

6. Reasoning: Cardozo reasoned that it would be uncommon and impractical to require
motorists to stop their cars at railroad crossings. Furthermore, it would not be
advantageous because trains move so quickly that one could be bearing down by the
time that the π got back in his car and proceeded to cross. Cardozo limited the holding
in the Goodman case accordingly.

Notes: The "stop, look, and listen" rule is not applicable when there are other
misleading circumstances. For example, obstructions to view, such as a shack, which
would prevent a π from seeing an oncoming train even if he looked. It is also
inappropriate where the train tracks are normally manned by flagmen.

1. Wilkerson v. McCarthy, (1949); pg. 240, briefed 10/23/94

2. Facts: π was a railroad employee. π attempted to cross a catwalk that was chained off
by the railroad because it was narrow and slippery, and bordered a deep pit. However,
it was "customary" for the employees to ignore the chains and cross anyway. π fell into
the pit as he attempted to cross.

3. Procedural Posture: Both the trial and appeals courts of the state granted directed
verdicts for the ∆ stating that based on the circumstances, there was no way that a
reasonable jury could find negligence on the part of the ∆. π appealed to the U.S.


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Supreme court based on the wording of a federal statute that allowed a π to recover a
diminished amount even though he was contributorily negligent.

4. Judge's Rule: When there is evidence of a ∆'s negligence that could result in a jury
finding for π, the negligence issue should be submitted to a jury.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The majority reasoned that there were sufficient arguments on both sides
of the negligence issue to preclude determination of negligence as a matter of law.

7. Dissent: The dissent did not find any evidence of negligence on the part of ∆. They
reasoned that it would be unfair to hold the R.R. liable because the employee willfully
disregarded the safety chains.

Notes: 2. There are some arguments that a tort case should not be left to a jury. It is
expensive and inconveniences the very people on which we are depending to make an
unbiased decision. Additionally, most juries are not intelligent enough to take on
technical issues such as those in medical malpractice and products liability. However,
one early study shows that juries tend to agree fairly consistently with what a judge
would have found. Studies show that corporate defendants and doctors suffer from
"deep pocket" syndrome. Juries normally award π's much greater damages when the ∆
is thought to have "deep pockets." This fact tends to undercut the effectiveness of the
Hand Formula in determining negligence because it throws an extra term in.

1. Byrne v. Boadle, (1863); pg. 247, briefed 10/30/94.

2. Facts: π was walking past ∆'s warehouse when a barrel of flour fell from a hoist and
struck him.

3. Procedural Posture: English case. Trial court found that there was no evidence of
negligence to be submitted to a jury. π moved to Court of Exchequer.

4. Judge's Rule: The mere fact that a barrel of flour falls from a ∆'s warehouse and
strikes a passerby is prima facie evidence of negligence on the part of ∆, and the burden
is upon the ∆ to rebut that evidence.

5. Classical Holding: When a set of circumstances is sufficient to provide a prima facie
case of ∆'s negligence, the ∆ has the burden to rebut that evidence.

6. Reasoning: The court stated that is was not necessary for the π to prove exactly how
the barrel fell, or to prove that it was in the custody of the ∆'s servants at the time. Some



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circumstances are sufficient that the doctrine of res ipsa loquitur applies, and the π can
prove negligence by circumstantial evidence.

Notes: 1. For the doctrine of res ipsa loquitur to be applicable:
(1) The event must be of a kind which ordinarily does not occur in the absence of
someone's negligence;
(2) It must be caused by an agency or instrumentality within the exclusive control of the
defendant; and
(3) It must not have been due to any voluntary action or contribution on the part of the
plaintiff. [Prosser & Keeton].
3. In Larson v. St. Francis Hotel, the court found that the doctrine of res ipsa loquitur
did not apply because hotel guests in spontaneous celebration of V-day, who threw
furniture out the window, were not under the positive control of the ∆. Furthermore,
this accident is not normally the kind that happens only with negligence on the part of
the hotel. On the other hand, in Connolly v. Nicollet Hotel, the hotel was held to be
negligent when it was "taken over" by a convention, and the accident was the
culmination of several days of riotous drunken behavior. 4. Acts of God, like ships
sinking at sea, are not normally applicable to res ipsa loquitur because there are many
other potential causes besides the negligence of the ∆.

1. Ybarra v. Spangard, (1944); pg. 268, briefed 10/30/94.

2. Facts: π went into the hospital for appendix surgery, and was treated by many
doctors and nurses while in the hospital and under anesthesia. When he awoke from his
operation, he had severe pain in his neck and shoulder, which continued for a long
time. He had no congenital defects that would cause this pain, and there was expert
medical testimony to show that it was caused by trauma.

3. Procedural Posture: The trial court granted a motion for dismissal based on the
grounds that the doctrine of res ipsa loquitur could not apply to multiple ∆'s, because
the π must show that the injury was caused by an instrumentality under the ∆'s
exclusive control, and in this case, the π could not point at a particular ∆.

4. Judge's Rule: "[W]here a plaintiff receives unusual injuries while unconcious and in
the course of medical treatment, all those defendants who had any control over his
body or the instrumentalities which might have caused the injuries may properly be
called upon to meet the inference of negligence by giving an explaination of their
conduct."

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that the doctrine of res ipsa loquitur should be
liberalized to apply to the case of multiple defendants, because the intent of the doctrine


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is to put a presumption of negligence on the ∆. The peculiarity of the facts of a person
undergoing surgery in a hospital should not preclude a π from calling more than 1 ∆ to
answer. There is a suspected "conspiracy of silence" among physicians that must be
overcome by allowing the π to use the force of res ipsa loquitur to break up the
conspiracy.

1. Butterfield v. Forrester, (1809); pg. 279, briefed 10/30/94.

2. Facts: The π was riding his horse home from a public house when his horse tripped
across a pole extending across the street, and was thrown from his horse. ∆ had put the
pole across the street to block the way while he made repairs to his house. It was late
but there was still sufficient light to see the pole if he had not been riding his horse so
hard.

3. Procedural Posture: Trial judge directed the jury that if the pole could have been seen
by someone riding with ordinary prudence, and that the π was not riding with ordinary
prudence, to find for the ∆. π appealed.

4. Judge's Rule: "One person being in fault will not dispense with another's using
ordinary care for himself."

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that the π could not recover since it was his own
negligence that was a contributing cause to the accident.

1. Beems v. Chicago, Rock Island & Peoria R.R. Co., (1882); pg. 280, briefed 10/30/94.

2. Facts: π's inestate (a brakeman) was killed as he attempted to uncouple two train cars.
He had made a first attempt, and when unsuccessful, he ordered the engineer to check
his speed, and then immediately made another attempt. The engineer did not slow
down, and π's inestate caught his foot in a rail and was run over by the train.

3. Procedural Posture: The trail judge refused to enter the ∆'s motion for judgment
non-obstante (not withstanding the verdict), arguing that the π was contributorily
negligent. ∆ appealed.

4. Judge's Rule: "Whatever the inestate's condition at the time of the accident, whether
free to move, or fastened to the place, the defendant is liable if its cars were negligently
driven over him."

5. Classical Holding: When a π is injured without any negligence on the part of the ∆,
then he cannot recover.


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6. Reasoning: The court reasoned that the brakeman had a right to expect that his order
to slow the train would be complied with, and that he was not required to wait before
trying to uncouple the cars. If the cars had been slowed, he would not have been
exposed to danger.

Notes: Shwartz wrote that the standard of negligence between ∆ and π is a double
standard. An objective, stern standard for the conduct of the ∆, and a subjective, mild
standard for the conduct of the π. This was necessary to avoid a π being prevented from
recovery by a slight misjudgment. A negligence system should not require any showing
of contributory negligence on the part of π, because under the Hand formula, the ∆ can
always escape any liability by showing that he took all reasonable precautions. Under
strict liability, contributory negligence is critical, however it is not elegant. Consider 2
drivers who collide head-on through no negligence. They would then have to pay each
other's damages instead of their own because each would be strictly liable to the other.

1. Gyerman v. United States Lines Co., (1972); pg. 283, briefed 10/30/94.

2. Facts: The π is a longshoreman who was unloading stacks of fishmeal. Fishmeal must
be stacked carefully or it will tear and fall, and these stacks were not properly stacked
by ∆ shipping company. π brought the danger to the attention of ∆'s supervisor, but he
stated that nothing could be done. π did not inform his own supervisor as provided for
in grievance procedures. π was injured on the 4th day of unloading the improperly
stacked fishmeal.

3. Procedural Posture: The trial court found that the π was contributorily negligent in
not informing his own supervisor or stopping work in the face of the known danger,
and thus barred from recovery.

4. Judge's Rule: "The plaintiff's negligence is a legally contributing cause of his harm if,
but only if, it is a substantial factor in bringing about his harm."

5. Classical Holding: If an employee does not report an unsafe condition to his
supervisor, and is subsequently injured while working under the unsafe conditions, his
contributory negligence bars his recovery only if it can be shown that the unsafe
condition would have been corrected if he had reported it.

6. Reasoning: The court stated that although the π was negligent in not reporting the
unsafe condition to his supervisor, there was no proof offered by ∆ to show that the
situation was correctable, or would have been corrected if it had received immediate
attention. Just because the supervisor knew does not necessarily mean that he could
have, or would have done anything about it, and the π would still have been injured.



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Notes: 1. When an employer's negligence is violation of a safety statute (OSHA) to
provide a safe workplace for employees, there should be no contributory negligence or
assumption of risk defense. This would make the statute unenforceable because the ∆
could provide substandard equipment to the employee, and then claim that the
employee was negligent for using it. In such a case the employer could save money,
knowing that there would always be someone willing to work under unsafe conditions.
2. Contributory negligence also does not bar recovery when the π is confined to a
custodial institution. Why? 3. A patient can be contributorily negligent in a malpractice
case if he does not provide an accurate medical history and the patient knows that the
doctor is relying on the mistaken information in putting the patient at a risk. 4. π's
necessity can be a defense to contributory negligence. 5. The contributory negligence
must be a substantial factor in bringing about the injury, but the actual injury must be
one that is foreseeable by the π. Thus, a person who is negligently working on a
platform without a railing is not contributorily negligent if his injuries arise from a
bunch of bricks falling on him and knocking him off the platform (Smithwick v. Hall &
Upson Co.).

1. LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry., (1914); pg. 292, briefed
10/30/94.

2. Facts: π owns land that is adjacent to ∆'s railroad track. π stacked his flax close
enough to the railroad that the sparks from a passing train caused the flax to catch fire.

3. Procedural Posture: Trial court found that the ∆ was negligent in operating the train
in such a way as to produce so many sparks. The jury also found that the π was
contributorily negligent in placing his flax within 100 ft of the railroad tracks.

4. Judge's Rule: (McKenna) A property owner is not negligent when he is damaged by
the negligence of another while making a proper use of his own land.

5. Classical Holding: A farmer is not contributorily negligent when he stacks his crop at
a reasonable distance from a railroad track such that a well-managed train would not
light the crop on fire.

6. Reasoning: Mc Kenna reasoned that the property rights were absolute, and that a
property owner should not have to protect his property from the unlawful acts of the
railroad. Therefore, the issue of contributory negligence was not valid. Holmes partially
concurred, but stated that the property right was not absolute, and that the question of
reasonableness of how close the flax could be stacked to the railroad tracks was a
question of fact for the jury.

Notes: Holmes' view has been interpreted in an economical sense. When use of
adjoining properties is involved, the rights of each party must be weighed. The use of


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one's property by either party imposes an inconvenience on the other, and the relative
economic benefit must be considered.

1. Derheim v. N. Fiorito Co., (1972); pg. 296, briefed 11/6/94

2. Facts: ∆ made an illegal left turn in front of π and π was injured in the resulting
accident. However, π was not wearing his seatbelt, and ∆ claimed that the failure of π to
wear his seatbelt was a contributing factor to π's injuries by the doctrine of avoidable
consequences. There was not a statute requiring the π to wear his seatbelt.

3. Procedural Posture: The trial court refused to allow evidence or testimony that would
indicate that π's injuries would have been reduced by wearing his seatbelt.

4. Judge's Rule: A person who fails to wear a seatbelt in a state that does not statutorily
require the use of seatbelts is not negligent under the doctrine of avoidable
consequences, and therefore his damages are not mitigated by his failure to wear a
seatbelt.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court found several impracticalities to letting the "seat belt defense"
mitigate damages. The failure to properly use any safety measure, for instance adjusting
a headrest, could be used to mitigate damages if the defense were allowed.
Furthermore, a battle of experts would result, with both sides arguing about which
specific injuries were caused by the impact, and which could have been avoided. Also,
in the absence of a statute, the law would afford unequal protection to the owners of
cars that had seatbelts.

Notes: 1. In Spier v. Barker, the NY Court of Appeals allowed the "seat belt defense" in
determining the extent of π's injuries, placing the burden of proof on ∆ to show that π's
failure to use a seatbelt was a cause of increased injury. The court used Prosser's
doctrine of avoidable consequences, precluding recovery of any damages that could
have been avoided by reasonable conduct on the part of π. 2. Some states have a statute
that provides a fine for failure to wear a seatbelt, but specifically provides that failure to
wear a seatbelt shall not limit the diminish damages in a tort action. 3. A similar
situation arises with motorcyclists not wearing helmets.

1. Kumkumian v. City of New York, (1953); pg. 303, briefed 11/6/94

2. Facts: ∆ subway train stopped suddenly in the tunnel. The operators knew that it
must either be caused by a faulty valve, a passenger pulling the emergency stop, or by a
tripping device under the train that would be tripped by a person or body coming into
contact with it as the train went by. The operator reset the brakes and the train


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proceeded one car length before stopping again. This happened twice before the
operator stepped out of the car and looked for an obstruction. They then found the
body of π under the 4th car.

3. Procedural Posture: The trial jury found for π on the theory of last clear chance, and
the Court of Appeals set aside the verdict and reversed under the theory of ordinary
contributory negligence.

4. Judge's Rule: When a train operator ignores the brakes of the train tripping
unexpectedly and takes no action to investigate the cause, the operator's actions may be
"negligence so reckless as to betoken indifference to knowledge", and the issue of last
clear chance may be submitted to a jury.

5. Classical Holding: A person who ignores knowledge that a negligent victim is in
peril, and fails to act to avoid injury to the victim, is liable under the doctrine of last
clear chance.

6. Reasoning: The court stated that the tripping devices were not placed there to be
ignored. The fact that the operator successfully reset the brakes should have told him
that there was no mechanical failure, and so there must have been an emergency. The
operator did not even open his own door to look at the length of his own car.

Notes: 1. Last clear chance avoids unpleasant results when contributory negligence is a
complete bar to recovery. Normally, the ∆'s negligence happens after the π's in order to
invoke last clear chance. However, the doctrine was stretched in British Columbia
Electric Ry., Ltd. v. Loach, the court held that the ∆ violated its last clear chance by
failing to keep its brakes in good enough working order to have stopped before killing
π. 2. The doctrine of last clear chance also serves to place the burden of loss where it
best reduces the likelihood of an accident. Under a strict contributory negligence bar,
the ∆ has no reason to avoid the accident, even if he can. Therefore, last clear chance
only provides an exception from contributory negligence when it makes sense
economically.

1. Lamson v. American Axe & Tool Co., (1900); pg. 308, briefed 11/7/94

2. Facts: π was employed by ∆ as a hatchet painter. As part of π's job, he placed the
painted hatchets on a rack above him to dry. The π felt that the rack was unsafe, and
brought this to the attention of his supervisor, who said that π would have to use the
racks or leave. π remained and continued to use the racks, and eventually a hatchet fell
on him.

3. Procedural Posture: The trial court directed a verdict for ∆, and π appealed to this
court.


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4. Judge's Rule: A person may not recover for tort damages where that person has
continued to do an activity which he knows to be likely to cause injury.

5. Classical Holding: An employee who continues to work under unsafe conditions,
even when he is aware that they are likely to cause him injury, may not recover
damages.

6. Reasoning: Holmes reasoned that the π knew the risks better than anyone else, yet he
stayed. He was notified by his supervisor that he could leave if he did not want to take
the chance. By staying, he consciously weighed the value of the job more than the
probability of injury, and so he took the risk.

Notes: 1. The obsolete "common employment" rule used to govern cases whereby the π
could not recover against his employer if the accident was caused by a fellow employee,
under the theory that the π was being paid to take the risks. 2. Assumption of risk has
been viewed under contract theory as a bargain whereby the π makes a deal for high
wages for high risk. Assumption of risk may be a defense even when the π's conduct is
reasonable, as long as it is risky. 3. Workers may be paid a "premium" for higher risk
jobs. This premium has been empirically shown to be about right for the market. 4.
Worker's compensation has done away with the need for most litigation involving the
assumption of risk defense.

1. Murphy v. Steeplechase Amusement Co., (1929); pg. 313, briefed 11/7/94

2. Facts: π was a patron at an amusement park. ∆ ran the amusement park. One of the
"rides" was called "The Flopper" and was an inclined, moving belt. The point of the ride
was to stand up on the belt as it moved and try to look cool. However, when π stepped
on the ride, he fell and fractured his knee.

3. Procedural Posture: Unknown.

4. Judge's Rule: Violenti non fit injuria. One who takes part in a sport accepts the
dangers that inhere in it so far as they are obvious and necessary.

5. Classical Holding: A person who volunteers to go on an amusement park ride, is
aware of the nature of the risks involved, and is then injured by a foreseeable risk of the
ride, may not recover damages.

6. Reasoning: Cordozo reasoned that the π understood exactly the nature of the risk
involved, and that was why he went on the ride - because the risk was the excitement.
The π had watched previous riders, and took the chance that he would be injured in a
fall.


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Notes: 1. Assumption of risk is not a complete defense if the π has no notice of the
dangers involved. Thus, like in informed consent, the ∆ must warn the π of any risks
that might not be obvious. In addition, in Russo v. Range, the court held that the
amusement park could be liable for damages to the π from dangers that the π did not
assume. 2. Spectators of sporting events are said to assume the risk when it is generally
well known. For instance, being hit by a foul ball is well known, however, being hit by a
golf ball while standing in line at a concession stand far from the tee may not be. 3.
Professional athletes are said to assume risks which are generally known by other
professional athletes of the same level of experience. However, a π may still recover for
injuries sustained while playing an extremely hazardous sport if the cause of the injury
was not a risk inherent in the sport.

1. Meistrich v. Casino Arena Attractions, (1959); pg. 317, briefed 11/8/94

2. Facts: π was ice skating in ∆'s arena, which was too hard and slippery for ordinary
skaters. The π knew this, however, he continued to skate and was injured.

3. Procedural Posture: Trial court found that ∆ was negligent in preparation of the ice
rink for its patrons (breach of duty). This court is reviewing the charge to the jury on the
impact of π's conduct on his recovery.

4. Judge's Rule: The term assumption of risk has 2 meanings. In its primary sense, it is a
denial of breach of duty by the ∆, and so the burden of proof is on the π. In its
secondary sense, it is a defense by a negligent ∆ against π's recovery based on
contributory negligence, and the burden of proof is on the ∆.

5. Classical Holding: Same as Judge's Rule.

6. Reasoning: The court reasoned that there was confusion in that assumption of risk
had two separate and distinct meanings. In its primary sense, the ∆ is claiming that he
had no duty of care to the π, and therefore ∆ was not negligent. In the secondary sense,
it was a defense by the ∆ that although he was negligent, π should be barred fro
recovery because he knew the risks and proceeded anyway. The secondary sense would
be no different than plain contributory negligence. If the jury found that an ordinarily
prudent person would have undertaken the same risks, then there is no contributory
negligence. It would be the same as the man darting in front of a train to save a child.
There was a great risk, but no contributory negligence.

Notes: 1. In Marshall v. Ranne, π was attacked by ∆'s wild boar on the way to his car.
Trial court found π could not recover because he was contributorily negligent in not
shooting the boar when he had the chance. The supreme court reversed stating that π
was not contributorily negligent because the ∆ had put him in a position where he had


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no voluntary choice. The only way he could avoid the boar was to stay in his house. The
suggestion has been made that a π should only recover the cost of efficient prevention
(i.e. the cost of building a fence), plus the cost of any injuries that would have occurred
if the precautions had actually been taken, regardless of whether the π took the
precaution or not. This would cause optimum behavior in a π because he would only be
allowed to recover for injuries that would have resulted when he was not contributorily
negligent. 2. The "fireman's rule" applies to all professionals that take on hazardous jobs
that maintain public order. They are barred from recovery due to a ∆'s negligence (or
even criminal act) because they wouldn't have a job unless there was a negligent ∆.

1. Obstetrics & Gynecologists v. Pepper, (1985); pg. 322, briefed 11/9/94

2. Facts: π went to ∆ medical clinic to get oral contraceptives. As standard procedure,
the ∆ requires patients to sign a form waiving their right to trial and requiring binding
arbitration as the patient's sole remedy in case of a complaint. π does not remember
signing the form, or it being explained to her. π received a prescription for pills which
later caused her to have a cerebral incident which left her partially paralyzed. The
prescription was contraindicated by her medical history.

3. Procedural Posture: The trial court found that the waiver was not a binding contract,
and denied ∆'s motion to stay the trial and order arbitration. No findings of fact or
conclusions of law were ever filed.

4. Judge's Rule: A contract of adhesion which limits the duties or liabilities of the
stronger party is not binding unless there is plain and clear notification of the terms and
an understanding consent by the weaker party.

5. Classical Holding: A medical waiver form which requires a patient to waive rights to
a trial and submit to arbitration is not a binding contract unless it can be shown that the
patient fully understood and consented to the terms.

6. Reasoning: The ∆ did not show that the waiver form was ever explained to π, and so
they failed their burden of proof. The patient had no opportunity to negotiate or change
any of the terms and there was no evidence that she knowingly consented to the terms.
[Thus π did not assume the risk that she might not be able to have a fair trial.]

1. Li v. Yellow Cab Co. of Cal., (1975); pg. 329, briefed 11/13/94

2. Facts: π turned across three oncoming traffic lanes to get to a service station, and ∆'s
car and π's car collided after ∆ sped through a yellow light.

3. Procedural Posture: Trial court held that the π was barred from recovery because of
her own contributory negligence.


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4. Judge's Rule: A π may recover damages from an injury caused by the negligence of
the ∆, even if the negligence of the π was a contributing cause to the injury, but the
amount of recovery shall be reduced proportionally by the amount of π's negligence as
compared to the ∆'s negligence.

5. Classical Holding: Where the π may recover against a single ∆, and where the D's
conduct was not wantonly or willfully negligent, a π may recover damages from an
injury caused by the negligence of the ∆, even if the negligence of the π was a
contributing cause to the injury, but the amount of recovery shall be reduced
proportionally by the amount of π's negligence as compared to the ∆'s negligence.

6. Reasoning: The court reasoned that the contributory negligence bar to recovery was
patently unfair. They reasoned that the difficulties arising from a suit against multiple
D's were not sufficient to defeat the need for comparative negligence. They further
reasoned that the last clear chance rule and the contributory negligence portion of
assumption of risk should be absorbed by comparative negligence. They chose the
"pure" comparative negligence rule over the "up to the point" rule because it was more
sound. The "up to the point" rule would still be a bar, and would still result in an unjust
outcome when the comparative negligence of π and ∆ were very close.

Notes: 1. Comparative negligence was applied to some extent even under the strict
contributory negligence rule because it allowed a π to recover when his negligence was
very slight and the ∆'s was gross. 2. Many courts have waited for their legislatures to
institute statutory comparative negligence rather than judicially creating it. 4. In a "up
to the point" comparative negligence system, the π is motivated to sue as many ∆'s as
possible because the sum of ∆'s negligence is greater the more ∆'s there are. 5. (a)
Comparative negligence principles did not apply to strict liability actions brought
against a common carrier. (b) Some courts do not apply comparative negligence where
the ∆'s negligence is wanton, reasoning that wanton negligence is of a different kind,
and not just a greater degree, than ordinary negligence. (c) Comparative negligence
does not apply to intentional torts. (d) Comparative negligence does apply to avoidable
consequences and mitigation of damages. (f) Comparative negligence applies to the
contributory negligence version of assumption of risk, but not the waiver of ∆'s duty
version of assumption of risk. (g) Under comparative negligence, the insurance
companies still have to pay the full amount to the other side. The awards are not offset.
(h) Comparative negligence has a strange effect on economic motivation, because it then
becomes dependent on how much precaution the ∆ has taken. Under the Hand formula
reasoning, the π might not be economically motivated to take a precaution until the ∆
has taken their sufficient precaution. Once the ∆ has taken appropriate precautions, the
comparative negligence has shifted, and the π must take precautions or risk a higher
loss. Errors on one side would then promote strategic responses by the other side.



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1. New York Central R.R. v. Grimstead, (1920); pg. 364, briefed 11/13/94

2. Facts: π's decedent was drowned when he fell into the water off of his barge. The
accident was caused by a collision with another vessel. π's decedent could not swim,
and his wife was unable to save him. There were no life-rings on board. π sued ∆ owner
of the barge for not providing adequate life saving equipment (life-rings).

3. Procedural Posture: The trial court found for π, and ∆ claimed error.

4. Judge's Rule: The absence of a life ring on a ship is not a proximate cause of the
drowning of a person who cannot swim and falls overboard from a ship. [B.S.]

5. Classical Holding: An act or omission must be a proximate cause of an injury to be
considered negligent.

6. Reasoning: The court reasoned that there was "nothing whatever to show that the
decedent was not drowned because he did not know how to swim, nor anything to
show that, if there had been a life buoy on board, the decedent's wife would have got it
in time, that is, sooner than she got the small line, or, if she had, that she should nave
thrown it so that her husband could have seized it, or, if she did, that he would have
seized it, or that, if he did, it would have prevented him from drowning." [This goes
against Carroll Towing because a radio might not have prevented the tug from sinking,
it could have broken down and been too slow to get to port.]

Notes: 1. Grimstead discourages employers from providing life-saving equipment,
because the of the reasoning that it might not help anyway. The modern cases give
more latitude to the jury to decide whether or not the victim could have been saved,
and to assign comparative negligence. 2. When, because of the ∆'s negligence, there is
not sufficient evidence to show causation, the burden of proof shifts to the ∆ to absolve
themselves if they can. [Prima facie case or res ipsa loquitur.]

1. Stimpson v. Wellington Service Corp., (1969); pg. 368, briefed 11/13/94

2. Facts: The ∆ drove their 137 ton rig over the public street in violation of statutory
weight limits. The π's water pipe that extended under the street broke, and flooded his
basement. The π claimed that the weight of the rig put stress on the pipes and caused
the flooding.

3. Procedural Posture: The trial court found for π, and one of the questions to the court
of appeals was whether the π could connect the flooding in his basement to the ∆'s
violation of the statute.




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4. Judge's Rule: Absolute proof of actual causation is not required when it is reasonable
to infer from the facts presented that the act was the proximate cause of the damage.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that it was within a layman's grasp to understand that
a heavy truck could put enough stress on a pipe under the street to cause it to rupture,
even in the absence of expert testimony. It was not speculation for the jury to find that
the two incidents were related.

Notes: 1. In Reynolds v. Texas & Pacific Ry. Co., the court held that "where the
negligence of the defendant greatly multiplies the chances of accident to the π, and is of
a character naturally leading to its occurrence, the mere possibility that it might have
happened without the negligence is not sufficient to break the chain of cause and effect
between the negligence and the injury."

1. Richardson v. Richardson-Merrell, (1986); pg. 370, briefed 11/13/94

2. Facts: π had a child that suffered from physical deformities of the arms and legs. π
was prescribed Bendectin during the early part of her pregnancy to prevent vomiting
and morning sickness. The trial was a virtual "battle of the experts", but it was generally
well settled in the scientific community that Bendectin was not a cause of birth defects.

3. Procedural Posture: The π claimed that the drug caused the birth defects, and the
trial court's jury found for π. ∆ appealed.

4. Judge's Rule: When an issue is so highly esoteric and technical that it involves the
cutting edge of medical technology, and has been settled by nearly universal consensus
among the medical experts, it is no longer a question of fact to be decided by a jury.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that the π's expert witness was on of the few medical
experts who still felt that Bendectin caused birth defects. They refused to give credence
to the argument that causation was shown simply by showing that the damage
happened after the action. For a jury to reject the general consensus of the medical
community and the FDA, which was more knowledgeable and had heard the same
facts, was unreasonable and was speculation.

1. Herskovits v. Group Health Cooperative, (1983); pg. 377, briefed 11/13/94




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2. Facts: The π died of cancer after the ∆ negligently diagnosed his cancer after it had
already proceeded to a point where it increased his chance of death by 14%. However,
the patient had less than a 50% chance of survival to begin with.

3. Procedural Posture: The trial court granted ∆'s motion that the case be dismissed
because the π's deceased had less than 50% chance of survival, and therefore it could
not ever be shown that the ∆'s negligence more likely than not (51%) caused the death.

4. Judge's Rule: A ∆ can be liable for damages if the π can show that the ∆'s negligence
caused a statistical reduction in the chances of the π's survival.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The majority reasoned that the ∆ deprived the π of a significant chance
to recover. To decide otherwise would give the doctors a blanket release from liability
whenever the patient's chances were less than 50%, regardless of how flagrant the
negligence. The majority said the damages should be limited to the amount of money
lost due to early death. The dissent stated that it would open the door for juries to be
emotional, and would be contrary to traditional proximate cause considerations. [Why
is this not done exactly like comparative negligence?]

Notes: 2. A π can recover for "probable future consequences", meaning the increased
chance that they will be exposed to harm in the future. 3. Even the creation of risk can
be compensable, even without actual injury.

1. City of Piqua v. Morris, (1918); pg. 385, briefed 11/20/94

2. Facts: ∆ city maintained water reserves with overflow wickets that became clogged
due to ∆'s negligence. During a storm of unforeseen proportions, the water overflowed
into the π's farm, damaging it. The flood would have happened even if the wickets were
not clogged.

3. Procedural Posture: Trial court found for ∆, court of appeals reversed.

4. Judge's Rule: When a flood itself is the sole cause of damage, and the damage would
have happened even if the ∆ had taken sufficient action to be found not negligent, the
∆'s negligence is not a proximate cause of the damage.

5. Classical Holding: A person is not liable for damages that are not proximately caused
by his negligence.

6. Reasoning: Even if the ∆ would have unclogged the wickets, the flood would have
caused the damage anyway.


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1. Kingston v. Chicago & N.W. Ry., (1927); pg. 386, briefed 11/20/94

2. Facts: ∆ is a railroad who set a fire when sparks from its train ignited surrounding
land. The fire set by ∆'s negligence eventually merged with another fire of unknown
origin, and then the resulting fire destroyed the π's house.

3. Procedural Posture: The lower court found for π. ∆ appealed stating that if the other
fire was of unknown origin, he could not be held as a joint tortfeasor, because he would
not be liable if the other fire were of natural origin and would have caused the same
damage anyway.

4. Judge's Rule: When two negligently started fires of human origin meet and become a
single fire which causes damage, each of the negligent persons who started the
individual fires is jointly and severally liable for the entire amount of damages.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that under the circumstances, there was no reason to
believe that the second fire was of natural causes. The ∆ would have had the burden of
showing that it was not caused by humans. The damage caused by each of the
individual fires could not have been separated. Thus, even though the person who
started the other fire was unknown, the two negligent parties were each liable under
joint and several liability.

Notes: 1. If the other fire was of natural causes, the ∆ would not be liable because the
damage would have happened anyway. If two fires are separate, the first to do the
damage should be liable, even if the other was bearing down. [My opinion]. 2.
Successive acts of negligence may be treated as a joint tort if the damages are not
separable. This may result in one of the negligent parties paying more than his fair
share for the damages accruing from a confused situation that he helped to create.

1. Summers v. Tice, (1948); pg. 390, briefed 11/20/94

2. Facts: π was shot in the face while flushing quail for ∆'s during a hunting trip. There
were two shots that hit him, one in the eye, and one in the lip. Although the one shot
that hit π in the eye could not have come from both guns, there was no evidence which
it did come from. π was not negligent in any way.

3. Procedural Posture: The trial court held that the π could bring action against both ∆'s
as joint tortfeasors. ∆ appealed claiming that the π could not prove that his shot caused
the injury.



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4. Judge's Rule: When two persons both shoot in the direction of a person who is
injured by one of the shots, both persons are jointly liable even though they did not act
in concert to cause the injury.

5. Classical Holding: When several ∆'s are similarly negligent, and a π's injury is
actually caused by only a subset of the ∆'s, and it is not possible for the π to show which
∆'s actions were the proximate cause of his injuries, the π may bring an action against
each ∆ under joint and several liability, even though the ∆'s may not have been acting in
concert, and the burden of proof shifts to the ∆ to show his innocence.

6. Reasoning: To hold otherwise would be to make the π internalize the injury that he
did not cause.

1. Sindell v. Abbott Laboratories, (1980); pg. 393, briefed 11/20/94

2. Facts: The π was the daughter of a woman who was prescribed DES to prevent a
miscarriage while the π was in utero. DES was found to cause cancer, and the π is trying
to recover damages from her own cancer. The ∆ was one of 100 or so manufacturers
who made DES as a generic from a common formula. The π cannot prove that ∆ was the
one who made the DES that her mother actually ingested, nor can the ∆ prove that they
were not the actual manufacturer.

3. Procedural Posture: The ∆ demurred and trial court sustained the demurrer without
leave to amend based on π's admission that they could not prove that the ∆ was the
actual manufacturer.

4. Judges' Rule: Where several manufacturers of a product are named as ∆'s to a
product liability action, and the π cannot prove proximate causation of any one
manufacturer, and the manufacturers can not disprove causation, the π may bring
action against a number of ∆'s jointly. If the combined market share of each of the ∆'s is
a substantial percentage of the overall market, the burden of proof shifts to the ∆'s to
disprove causation. Furthermore, the damages shall be apportioned among ∆'s in
proportion to their individual market shares.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The majority reasoned that as between an innocent π and negligent ∆'s,
the latter should bear the cost of the injury. They relied upon the holding in Summers.
Each ∆ could in turn bring action against the remaining DES manufacturers not joined
in the action to recover their fair share. The court felt it was proper to introduce a new
theory to address the changing times. Otherwise, the ∆'s would have no deterrence,
because they knew that they could be protected by their relative anonymity if there
were enough other manufacturers.


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7. Dissent: The dissent reasoned that this would shift the power to π to go after the
deep pockets, even though the probability that the ∆ was the actual manufacturer was
mathematically very slim. There would be no "matching" between the π's injuries and
the ∆'s actions as was in traditional tort theory.

***********Second Semester************

1. Ryan v. New York Central R. Co., (1866); pg. 409, briefed 1/15/95

2. Facts: The ∆, by careless management of their engine, set fire to their woodshed. The
π's house, 130 ft away, caught fire because of sparks blown onto it.

3. Procedural Posture: The ∆ moved for a non-suit, and the trial court granted it. The
court of appeals affirmed, and the π appealed to the NY supreme court.

4. Judge's Rule: A person is liable for the proximate results of his own acts, but not for
remote damages.

5. Classical Holding: When a person negligently starts a fire in his own house, he is not
liable for damages to his neighbor's house if it is caught on fire by chance of the
weather.

6. Reasoning: The court reasoned that to hold the ∆ liable would be to cause him to
insure against all damages that might be caused remotely if a negligent fire caused by
him spread, by chance, to damage several houses. Each person living in an industrial
society assumes the risk that his neighbor might start a negligent fire that damages him
by chance. [This is a very narrow construction of the words "proximate" and "remote".]

7. Notes: 2. In City of Lincoln, a ship went aground after losing its navigational
equipment in a collision with another ship. The other ship was held to be negligent, and
the also the proximate cause of the grounding because the reasonable human conduct of
the captain of the City of Lincoln was to try to get his ship into port, even if he had no
navigational equipment. 3. If a ∆, by negligence, puts a π under a reasonable
apprehension of personal physical injury, and π, in a reasonable effort to escape,
sustains physical injury, the negligence of the ∆ is a proximate cause of the injury.

1. Gorris v. Scott, (1874); pg. 413, briefed 1/15/95.

2. Facts: The ∆ lost several of the π's sheep at sea when they were washed overboard.
The loss would not have happened if the animals were housed, as required by
sanitation statutes, in certain pens, but the statute was designed to prevent disease, not
loss by falling overboard. The ∆ sued for damages.


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3. Procedural Posture: Unknown.

4. Judge's Rule: For an action to lie for negligence in violation of a statute, the statute
must have been intended to protect the ∆ against the loss which resulted from its
violation.

5. Classical Holding: Same as Judge's Rule.

6. Reasoning: The court reasoned that the statute did not intend to protect the ∆ from
loss by being washed overboard, so an action did not lie. However, if the loss was due
to disease, then the violation of the statute would have been the proximate cause of the
loss, and the ∆ would have been entitled to recovery.

7. Notes: 1. In Haen v. Rockwood Sprinkler Co., the violation of a statute requiring the
doors of a work elevator to be shut was held to be a proximate cause of injury when a
radiator fell on an employee, even though the reason for the statute was to protect
workers themselves from falling.

1. Berry v. The Borough of Sugar Notch, (1899); pg. 416, briefed 1/15/95.

2. Facts: The π was exceeding the speed limit in the ∆ town during a violent windstorm
when an old and unstable chestnut tree fell on his car and injured him. The π sued for
injuries claiming negligence on the part of the town. The ∆ town claimed that the π was
contributorily negligent in speeding.

3. Procedural Posture: Trial court found for π, ∆ appealed.

4. Judge's Rule: A person's negligence is not a proximate cause of an injury unless it is a
contributing factor to the injury.

5. Classical Holding: A person is not contributorily negligent to an injury that is the
result of chance if he is speeding at the time of the injury.

6. Reasoning: The court reasoned that the π could have been injured whether he was
going slowly, or perhaps he would have avoided injury if he were going even faster.
Therefore, his speed was only coincidentally related to the damage.

1. Brower v. New York Central & H.R.R., (1918); pg. 419, briefed 1/15/95.

2. Facts: π's horse and cart was hit by the ∆'s train because of ∆'s negligence. After the
collision, thieves stole the barrels of goods that were being carried on the cart. π sued ∆



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for recovery of the value of the stolen goods, but ∆ claims that the intervening activity
of the thieves broke the chain of causation.

3. Procedural Posture: Trial judge found for π. ∆ appealed.

4. Judge's Rule: "The act of a third person intervening and contributing a condition
necessary to the injurious effect of the original negligence, will not excuse the first
wrongdoer, if such act ought to have been foreseen."

5. Classical Holding: When a negligent person puts another into a position creating an
opportunity for a third person to commit a foreseeable injury against the victim, either
intentionally or by negligence, the original wrongdoer is liable for damages arising
from the action of the third party, as a joint tortfeasor.

6. Reasoning: The majority reasoned that the cargo was "lost" at the time of the accident
because it put the π in a position such that he could not protect his cargo. The
intervention of the thieves was deemed foreseeable by the ∆ because they employed
their own detectives to prevent theft.

7. Dissent: The dissent reasoned that the chain of cause was broken by the active
intervention of an independent criminal actor.

8. Notes: 2. The "last wrongdoer" theory blocks recovery when the deliberate wrong, or
even the negligence, of a third party intervenes. However this doctrine does not work if
the action of the third party is foreseeable, such as when a doctor returns a battered
child to his abusive parents, even though he should have known they would beat the
child again. 3. The Restatement section 448 states that the intentional tort is a
superseding cause, breaking the causation, unless the original wrongdoer should have
realized that the third person might avail himself of the opportunity to commit the
crime. 4. If the ∆'s act has come to rest, but leaves the π in a dangerous position, then
there is causation for the resultant actions of an intervening third party. If the ∆'s action
has come to rest in a position of apparent safety, the chain is broken.

1. Wagner v. International Ry., (1921); pg. 425, briefed 1/15/95

2. Facts: The π and his cousin Herbert were riding in a train. The conductor did not shut
the doors before the train got underway, and Herbert fell out and over a bridge as the
train turned a corner. When the train stopped on the other side of the bridge, the π got
out and went back along the dark bridge to look for the body of Herbert. The π claims
that the ∆'s conductor instructed him to do so and followed him with a light. The π fell
off the bridge in the darkness, and sued the ∆ for negligence, claiming that the failure to
close the door was the cause of his injury because he was trying to rescue his cousin.



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The ∆ denies that the conductor instructed the π to walk out on the bridge or followed π
with a light.

3. Procedural Posture: The trial judge charged the jury that the ∆ was not liable unless
the ∆'s conductor actually did instruct the π to go out onto the bridge and did follow
him with the light. The jury found for ∆. π appealed claiming that the jury instruction
limitations were in error.

4. Judge's Rule: "The wrong that imperils life is a wrong to the imperiled victim; it is
also a wrong to his rescuer."

5. Classical Holding: The wrongdoer who negligently submits a victim to injury is also
liable to the rescuer who acts reasonably to rescue the victim for any damages to the
rescuer.

6. Reasoning: Cardozo reasoned that the ∆ should expect and foresee that if they put a
victim in harm's way, that someone will step forward and attempt a rescue. He rejected
the defense that the rescue was not immediate and "instinctive", stating that the rescue
does not need to be continuous with the injury.

1. In re Polemis & Furness, Withy & Co., (1921); pg. 428, briefed 1/16/95

2. Facts: The π is the owner of a cargo ship which was chartered to ∆. While agents of
the ∆ were unloading the ship, a heavy plank was dropped by the offloaders and
freakishly caused a spark which ignited the gasoline onboard and destroyed the ship.

3. Procedural Posture: The arbitrators found that the offloaders were negligent in
dropping the plank because it could be reasonably anticipated to cause damage to the
ship.

4. Judge's Rule: Foreseeability is the test of negligence, but once negligence is
determined, it is not the absolute measure of causation.

5. Classical Holding: Once and act is determined to be negligent, the negligent party is
liable for all damages that were a direct result of the negligent action, regardless of
whether they could be foreseen.

6. Reasoning: The court reasoned that the act was negligent because it could have been
anticipated to do damage to the ship. They rejected the argument that a negligent
person was entitled to rely on the fact that he could not have anticipated the type of
damage that would have occurred. The fact that the spark was not the anticipated
"type" of damage did not make the cause of the damage remote, it was still a direct
result of the negligence.


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1. Palsgraf v. Long Island R.R., (1928); pg. 431, briefed 1/16/95

2. Facts: A man was late for a train. He ran after the train and attempted to baord it as it
was moving. In his hand he held an unmarked package. The ∆'s employees, tried to
help him onto the train, and in doing so, the package was dropped under the train. It
contained fireworks which exploded and caused a scale at the other end of the platform
to fall on the π.

3. Procedural Posture: The trial court found that the ∆'s employees were negligent and
that negligence was the proximate cause of the π's injuries. The Court of Appeals
affirmed 3 to 2. The ∆ appealed, claiming that their negligence was not the proximate
cause of the π's injuries because they could not reasonably foresee that the contents of
the package were explosive.

4. Judge's Rule: Negligence is not actionable unless it involves the invasion of a legally
protected interest, the violation of a right.

5. Classical Holding: A person is not liable for damages arising from his negligence if
his negligence was not the proximate cause of the damage.

6. Reasoning: The majority (Cardozo) reasoned that the negligent act of the train
employees did not violate a duty owed to the π who was standing far away. Although
the act may have been negligent toward the owner for damage to the package, it was
not negligent towards the π because they could not have foreseen that the package
would have contained explosives. He reasoned that knocking a package out of a
person's hand is not negligence toward someone who was so far away that it was not
foreseeable that they would be injured by the package.

7. Dissent: The dissent reasoned that the fact that the explosion was unforeseeable did
not relieve the ∆ of liability, since he was determined to be negligent. He compared the
case to Polemis, and stated that the liability of the ∆ was not confined to those who
might possibly be hurt.

1. Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon
Mound (No. 1)), (1961); pg. 445, briefed 1/17/95.

2. Facts: The ∆s carelessly discharged oil from their ship while berthed in Sydney
harbor. The oil drifted over and pooled around π's shipbuilding dock, where welding
operations were ongoing. The π's dock supervisor suspended welding operations until
he determined that the oil was not flammable while it was floating on the water [huh?],
and when the welding was recommenced, the sparks set fire to some debris floating in
the oil slick, and a conflagration ensued which destroyed the dock.


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3. Procedural Posture: The trial judge found that the ∆ could not have been expected to
know that the oil was capable of being set afire when spread on water, but that the fire
was a "direct result" of the ∆'s negligently spilling the oil, and therefore under the
Polemis rule, was liable for all direct damages whether or not they could be foreseen. ∆
appealed to this court.

4. Judge's Rule: A person is only liable for the probable consequences of his negligent
acts. The probable consequences are judged by the standard of foreseeability by the
reasonable man.

5. Classical Holding: The test of liability for negligence is foreseeability of the injury
caused by that negligence.

6. Reasoning: The court directly overruled Polemis, stating that is was bad law which
resulted in unfair results. They reasoned that it was better policy to hold a person
accountable for the probable consequences of his action so as to avoid an unjust result
when slight negligence, which normally resulted in only minor damages, freakishly
resulted in major damage. It also avoids the controversies of establishing chain of
causation.

7. Notes: 1. The Wagon Mound rule of foreseeability of damages presents problems
when the damages are neither routine nor freakish, but in the middle. Then the test
becomes significance; if the unusualness of the details is significant in the outcome of
the damage, then the damage was unforeseeable; if not significant, then the damage
was foreseeable. 2. The foreseeability rule also brings up subtleties of damage. In
Doughty v. Turner Mfg. Co., Ltd., the court held that when an asbestos lid was dropped
into a vat of boiling chemicals, damage by splashing was foreseeable, but not damage
by violent explosion. Contrast Hughes v. Lord Advocate, where the explosion of a
paraffin lamp was held to be foreseeable, because it was not a "different type" of
damage than that by burning. 3. The thin skull rule, or "you take your victim as you
find him" was apparently left unshaken by Wagon Mound. 4. Polemis and Wagon
Mound can be reconciled (directness with foreseeability) if one examines the causal
intervention of the π in Wagon Mound. In Polemis, there was no intervention between
the dropping of the board and the explosion. In Wagon Mound, the π had to light the
fire. There could have been a defense of assumption of risk or contributory negligence
when the π recommenced welding operations. Furthermore, the Hand Formula could
come into play if either party knew that there was a very slight possibility of fire, but
failed to prevent it because it was too costly. 5. In the U.S., in Kinsman Transit Co., the
court held that "unforeseeability is irrelevant if damage is direct" when a ship broke
loose from its moorings, and drifted downstream to eventually block the river and
cause substantial flooding damage. They reasoned that just because the risk of large
damage is slight, that it should not be excused if it was direct.


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1. Dillon v. Legg, (1968); pg. 1042, briefed 1/22/95

2. Facts: π was the mother of a child who was killed when the ∆ negligently hit her with
his car. The mother was standing far enough away that she was in no personal danger
of being hit by the car. π sued for damages from emotional distress from watching her
child be killed by ∆'s negligence.

3. Procedural Posture: The trial court found that the mother was not in the "zone of
danger", and so was not entitled to recover because she did not fear for her own safety.
The mother appealed.

4. Judge's Rule: In determining whether the ∆ owes a duty of care to the π, the court
should consider the following: 1) the proximity of the π to the accident, 2) whether the π
directly witnessed the accident, and 3) whether the π was closely related to the victim.

5. Classical Holding: Foreseeability of the risk is the chief element in determining
whether a ∆ owes a duty of care to a π.

6. Reasoning: The court refused to limit the ∆'s liability for emotional damages only to
those within the artificially constructed "zone of danger". They stated that although
opening the ∆'s liability further would lead to fraudulent claims, that is a part of every
tort case. They reasoned that foreseeability was the test of due care. The ∆ is more likely
to foresee the risk of injury to bystanders when they are closely related witnesses who
are near to the victim at the time of the injury.

1. Weirum v. RKO General, Inc., (1975); pg. 456, briefed 1/22/95

2. Facts: The ∆ radio station was holding a summer contest. The object of the contest
was to entice listeners to be the first to arrive at a particular location, where they would
be given a reward. 2 kids, eager to be the first ones to reach the location, were speeding
along the highway and forced the π's car into a ditch, killing him.

3. Procedural Posture: The trial court found for π, and the Court of Appeals reversed,
saying that the radio station had no control over the negligent actions of the drivers.

4. Judge's Rule: "If the likelihood that a third person may react in a particular manner is
a hazard which makes the actor negligent, such reaction whether innocent or negligent
does not prevent the actor from being liable for the harm caused thereby."

5. Classical Holding: When the negligence of a third party is encourage by affirmative
action of the actor, then it becomes foreseeable, and exposes the actor for liability for the
negligent acts of the third party.


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6. Reasoning: The court reasoned that the ∆ radio station owed a duty to the π because
the risk of injury by speeding teens was foreseeable. They stated that the contest was
designed to be a "competitive scramble in which the thrill of the chase" was the goal to
excite listeners. As such, the radio station was negligent in encouraging the negligence
of the drivers, and so was liable for damages resulting from the driver's negligence. The
chain of causation was not broken due to third party intervention, because it was the
negligence of the radio station that caused the ultimate injury by encouraging
negligence of drivers.

1, Buch v. Amory manufacturing Co., (1897); pg. 462, briefed 1/24/95.

2. Facts: π is an 8 year old boy who wandered into ∆'s factory. The ∆ warned him to
leave, but the π did not speak English. The π then had his hand crushed in some
machinery gears while fooling around with his brother, who was one of ∆'s employees.

3. Procedural Posture: The trial court denied a motion for directed verdict. Verdict for π
was set aside, and ∆ appealed.

4. Judge's Rule: A person is not liable to a trespasser for damages that arise without the
person's negligence.

5. Classical Holding: A person who is not acting negligently does not have a legal duty
to rescue a helpless trespasser from being injured.

6. Reasoning: The court reasoned that the mere fact that the child was not able to take
care of himself was not sufficient to put the duty on the ∆ to forcibly eject him from the
factory. The ∆ did not have the duty to prevent the trespass, only the duty not to
negligently injure the π. The ∆ was not doing any negligent thing, even if he should
have known that the π could not speak English. The duty to prevent harm from coming
to a stranger is a moral obligation only and not a legal one.

Ames, Law and Morals (1908)

I. Traditional approach to liability for failing to rescue
       A. The law has been traditionally indifferent to a person who could have saved
       another, so long as the victim was not put into danger by the negligence of the
       bystander.
       B. It is only up to a person's own conscience whether he is a good Samaritan or
       not.
II. Proposed Good Samaritan Rule (3 cases)
       A. A person who would have to go to more than a little inconvenience to save a
       person from death or great bodily harm - No liability.


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              1. Ex: Doctor from Calcutta does not make the long journey to Meerut to
              save a patient who will die otherwise.
       B. A person who fails to interfere to save another from impending death or great
       bodily harm, when he might do so with little or no inconvenience, and the death
       or great bodily harm follows as a result of the inaction. - Should be liable both
       criminal and civil.
              1. Ex: person on bridge fails to throw rope to drowning man.
              2. Ex: bystander fails to remove small child from railroad track when there
              is no danger of being hit.
       C. A person, acting innocently (without negligence), brings about a dangerous
       situation. - Should be liable.
              1. Ex: hunter whose shot hits another in the eye, and the other falls into
              the water and drowns while the hunter stands by.

Epstein, A Theory of Strict Liability (1973)

I. Ames' good Samaritan rule infringes on personal freedom, because bounds can't be
put easily on it.
       A. Ex: If a charity approaches you and asks for $10 to save a starving child, and
       $10 is means very little to you, are you required to give because it is certain that
       someone will die if you do not? - NO.
II. Ames' Good Samaritan rule, which requires strangers to confer benefit on strangers
when it poses "little or no convenience" to the good Samaritan, would result in a
weakening of contract law.
       A. If the traveling doctor were paid, how much would he have to be paid in
       order to be required to make the inconvenient or costly trip? All a potential
       patient would have to pay is enough to make he difference between his payment
       and the fair market value of the doctor's services small enough that it would not
       be inconvenient for the doctor to make the trip, thus undercutting the contract.

Notes: 1. The affirmative duty to rescue could be viewed as a large contract among all
of the general public, who all decided that they should require someone if it is a
negligible cost to himself. Then, a person would bear the risk that it might cost him to
rescue someone, but he would not have to fear that he would lose if he were the one in
trouble. 2. Restitution is an alternative to tort compensation. Although it is smaller than
the amount of tort compensation, it creates the incentive in the rescuer while
eliminating the liability to multiple persons who stand by but do not act. 3. Some states
have statutes that immunize rescuers from ordinary negligence liability (but not gross
negligence or intentional torts), and some states even impose affirmative duties to
rescue, subject to the payment of fines.

1. Montgomery v. National Convoy and Trucking Co., (1937); pg. 470, briefed 1/24/95.



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2. Facts: The ∆'s trucks stalled on an icy highway at the bottom of a hill. The stalled
trucks were not visible from the other side of the hill, and once a car reached the top of
the hill, it could not stop in time to avoid the trucks because of the icy conditions. The ∆
laid out flares, but did not put them where an oncoming car would be able to see them
in time. The π came over the hill and crashed into the trucks.

3. Procedural Posture: The trial court found for π. ∆ appealed to this court which
affirmed.

4. Judge's Rule: A person is liable for omission of acts that the reasonably prudent
person would do to prevent injury to another, when the danger to the other was created
by the person.

5. Classical Holding: A person in a stalled car on the highway must take sufficient
action to warn oncoming traffic of the hazard in time to avoid injury.

6. Reasoning: The court reasoned that the ∆ drivers owed a duty of care to the
oncoming traffic to prevent injury to them. Therefore, it was negligent of the ∆ to fail to
warn oncoming traffic at a point where it would have prevented them from crashing
into the trucks.

7. Notes: 1. The difference between misfeasance and nonfeasance matters most in cases
where the ∆ has not created the danger; for misfeasance he is liable, and for nonfeasance
he is not. It is less critical in cases where the ∆ has created the danger, because either
will result in liability. 2. In a system of strict liability, there is no need to create a duty to
rescue for someone who has created the danger to π. In that case, the ∆ would already
be motivated to warn the π so as to avoid liability, or at least reduce it due to π's
assumption of risk or contributory negligence if he saw the warning but continued to
proceed. 3. §322 of the Restatement imposes an affirmative duty to rescue a person you
have already harmed (even without negligence) from further harm. For example, if you
hit an illegal alien running across the road, you can't simply drive on even if they were
completely at fault. You must stop to render aid. 4. Once a person begins a good
Samaritan act, they are required not to make any negligent acts or omissions in the care
of the person, nor may he leave the person in a worse position than when he started.
(§324 Restatement). However, if A comes upon the scene of an accident, and begins to
take an injured B to the hospital, but then A changes his mind and brings B back to the
scene how he found B, it is arguable that A left B in a worse position, because now B has
lost valuable time in which someone else might have helped him. 5. §327 Restatement
requires that a person who "knows or has reason to know that a third person is giving
or is ready to give aid necessary physical harm" to him is tortiously liable if he
"negligently prevents or disables the third person from giving such aid."




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1. Robert Addie & Sons (Collieries), Ltd. v. Dumbreck, (1929); pg. 476, briefed
1/29/95

2. Facts: The ∆ is the operator of a winch an pulley system at a coal mine. The system
consists of a large wheel, which drives a long cable to hoist coal ashes out of the mine.
The wheel is driven by a motor, and is only operated intermittently. The wheel
assembly is located in an open field, owned by the ∆. Many kids play in the field, but
the ∆ warns them away, and tries to keep people out of the field. The π's son was
playing in and around the wheel, when it started up, killing the boy.

3. Procedural Posture: The trial court found for the π, and ∆ appealed.

4. Judge's Rule: A landowner owes no duty of care to protect a trespasser from injury,
even from concealed danger.

5. Classical Holding: A landowner does not owe a duty of reasonable care to a
trespasser when the landowner takes reasonable steps to prevent trespassers from
entering and remaining on his property.


6. Reasoning: The court reasoned that there were three classes of persons who find
themselves on other's property: invitees to which the landowner owes a duty of
reasonable care to make sure the premises are safe, licensees who are not there by
invitation, but are allowed to remain, to which the landowner owes a duty not to create
a trap or concealed danger, and trespassers, to which the landowner owes no duty
except to refrain from intentional harm. The court found that the ∆'s actions in warning
children away were sufficient to classify the π's son as a trespasser, and not a licensee.
Thus, the ∆ owed no duty of care to protect the child from the danger of the wheel.

7. Notes: 1. In Excelsior Wire Rope Co., Ltd. v. Callan, the court was faced with nearly
identical facts, however it found that the ∆ was reckless because the field was swarming
with children, and the ∆ knew that there were likely to be children playing on the wheel
when they started it up. The court in Gould v. DeBeve used the "willful and wanton
misconduct" rule to find a ∆ liable for injury to a trespassing child because the ∆ had
failed to replace the defective window screen that the π's son fell through, even though
the ∆ had been asked repeatedly to replace it. 2. A person who trespasses accidentally
on land that is adjacent to a public highway can recover from the land owner for
damages caused by the landowner failing to provide reasonable care against the
foreseeable accidental trespasser. 3. Attractive nuisance - the π was lured onto the ∆'s
land as a trespasser by some attractive condition created and maintained by the ∆. This
theory has the danger of being over-applied because most things can be made into
attractive playthings by the imagination of a child. 4. The Restatement (Second) states
that ∆s are liable for "Artificial Conditions" that are dangerous to trespassing children if


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they are located in a place where the ∆ "knows or has reason to know" that children will
play there, involve an unreasonable risk of great bodily harm, a child could not discover
the danger because of its youth, the cost of preventing the danger is "slight", and the ∆
fails to exercise reasonable care to protect a trespassing child. However, the ∆ is under
no duty to investigate the land to determine whether trespassing children are present. 5.
An ice cream vendor may be held liable for injuries to children who run out onto a busy
street after them under the "pied piper" theory, because the ice cream vendor lured the
children into danger. 6. According to Restatement 332, an invitee is either a public
invitee or a business visitor, based on the nature of the premises. In Lemon v. Busey, a
child died after falling from a roof of a church where she was playing while her
grandmother was working there. The child reached the roof by going through an
unlocked fire escape door which should have been locked. However, the court found
that she was only a licensee, not an invitee, and so the church did not have a duty to
protect her from the unsafe condition of the unlocked door. 7. Public officials like police
and mailmen are treated mostly as licensees because they often enter in odd places at
unusual times when they cannot expect the landowner to provide standard precautions.
However, the duty of care depends heavily on when and where the person enters, and
if they can be expected.

1. Rowland v. Christian, (1968); pg. 485, briefed 1/29/95.

2. Facts: The π was a social guest in the ∆'s house. He went to the bathroom and cut his
hand badly on a porcelain handle that was cracked, but did not appear to the casual
observer to be dangerous because it had not yet broken. The ∆ knew that the handle
needed replacement, but did not warn the π of the danger.

3. Procedural Posture: The trial court found for the ∆. They classified the π as a licensee
under law and concluded that the ∆ did not owe a duty to π to protect him from
concealed dangers.

4. Judge's Rule: A person is liable for damages to a guest on his property the owner has
not acted reasonably to protect the guest from injury. Although the π's status as a
trespasser, licensee, or invitee may, in light of the facts, have some bearing on the
question of liability the status is not determinative.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that the old common law distinction of the status of
the guest was rigid and meaningless in the modern world. They reasoned that the
classifications grew out of tradition which dated back to the status of a landowner
during the feudal times. Therefore, they reduced the test of liability to the common test
of negligence. If, in light of all the facts, the ∆ did not take reasonable steps to prevent
injury to the π, then he is liable. The π's status as a trespasser is only one of those facts.


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7. Notes: 1. Other states are mixed in their adoption of Rowland. 2. With the onset of
strict liability in products liability cases, some have sought to apply the same to liability
for landlords engaged in the business of leasing dwellings, under the theory that the
landlord is in a better position to bear the costs of injuries by latent defects in the
property. This tends to promote more household safety at the expense of holding a
morally blameless landlord liable for defects he did not discover. 3. A landowner is now
under the duty to provide reasonable care to a trespasser who he knows has fallen into
a dangerous condition on the landowner's premises. In Pridgen v. Boston Housing
Authority, a boy was trespassing when he climbed out of the top of an escape hatch in
an elevator, but the ∆ was still liable for his injuries because the ∆ failed to shut down
the elevator once he knew of the boy's predicament. 4. There can also be liability for
injuries resulting to strangers from the "natural" conditions of the ∆'s land. In Taylor v.
Olsen, the court held that the negligence was not in planting a tree, but in allowing it to
remain in a dangerous area where it was likely to cause damage to passersby. A
landowner may not escape liability by simply allowing nature to take its course if the
resultant injury was avoidable. 5. Some states have passed statutes that limit the
landowner's liability for injuries that occur on land which is open to the public for
recreational purposes (i.e. hunting and fishing) fearing that stricter laws would result in
less recreational land.

1. Coggs v. Bernard, (1703); pg. 497, briefed 1/29/95.

2. Facts: The ∆ moved casks of brandy belonging to the π from one place to another.
Through the ∆'s negligence, some of the casks were damaged, spilling lots of brandy.

3. Procedural Posture: The lower court found for the π, and the ∆ appealed claiming
that the act was gratuitous and that there was no consideration to support the contract,
thus he did not owe a duty of care to the π to protect his casks from negligent damage.

4. Judge's Rule: "The owner's trusting him with the goods is a sufficient consideration
to oblige him to careful management."

5. Classical Holding: A person who undertakes to move another's property from one
place to another is under a duty to take reasonable precautions to protect the property
from harm.

6. Reasoning: The court relied upon the notion of consideration to show that a contract
was present. The consideration was similar to the modern day promissory estoppel
where the π had relied upon the promise of the ∆

1. Erie R.R. v. Stewart, (1930); pg. 500, briefed 1/29/95.



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2. Facts: The π was a passenger in a car which was hit by one of the ∆'s trains at a
railroad crossing. The crossing was normally guarded by a watchman who warned cars
of the oncoming train. However, on this occasion the watchman was not present in time
to prevent the accident. There was no statutory obligation to provide a watchman.

3. Procedural Posture: The trial court found for π, and ∆ appealed claiming that the
court erred in instructing the jury that if the watchman had been present for a long
period of time, then to remove him was negligence as a matter of law.

4. Judge's Rule: Where a train company has established the presence of a watchman for
such a long time as to establish it as a duty of reasonable care, the train company is
liable for negligence when the watchman is removed.

5. Classical Holding: Where an actor has taken precautions that are not required by
statute, but are provided to protect others from hazards which the actor has created, the
presence of these precautions over a long period of time establishes a standard of care
to which the actor must comply to protect the reliance of the potential victims.

6. Reasoning: The court reasoned that although the railroad company was not required
by statute to provide a watchman, the fact that they had for so long establishes the
watchman's presence as a standard of care. The court reasoned that passersby had come
to rely on the presence of a watchman when trains were coming, so the absence of the
watchman implied that a train was not coming. The railroad should know that a
passerby would rely on the watchman, and so they should anticipate the injury if they
removed the watchman without sufficient notice as to negate the reliance.

1. Marsalis v. LaSalle, (1957); pg. 502, briefed 1/29/95.

2. Facts: The π was bitten by the ∆'s cat. The π suspected that the cat might be rabid, and
so asked the ∆ to keep the cat under observation for two weeks. The ∆ promised to do
so, but however let the cat out negligently. When the π found out that the cat had run
off, she was forced to receive the painful rabies injection as a precaution. π had an
allergic reaction to the vaccine.

3. Procedural Posture: Trial court found for π, ∆ appealed.

4. Judge's Rule: When a person promises to take action to protect another person, and
the other person foregoes other means of protection in reliance on the promise, the
promisor is liable for damages if he then breaches the promise by failing to take
reasonable action to protect the other person.

5. Classical Holding: As stated in Restatement (Second) of Torts:


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Section 323: One who undertakes, gratuitously or for consideration, to render services
to another which he should recognize as necessary for the protection of the other's
person or things, is subject to liability to the other for physical harm resulting from his
failure to exercise reasonable care to perform his undertaking, if:
       (a) his failure to exercise such care increases the risk of such harm, or
       (b) the harm is suffered because of the other's reliance upon the undertaking.

6. Reasoning: The court reasoned that the allowing the bit was not the negligent action,
because there was no history of biting. However, once the ∆ undertook the promise to
watch the cat, he became bound when the π relied upon that promise. The negligent act
was letting the cat out, and it was also the proximate cause of the π's injuries because
otherwise, the shots would not have been required.

1. Kline v. 1500 Massachusetts Avenue Apartment Corp., (1970); pg. 515, briefed
2/8/95

2. Facts: The π is a resident of the ∆'s apartment complex. When she moved in in 1959,
there were security personnel guarding the entrance ways. After several years these
security measures evaporated. Assaults and thefts began to happen in the common
areas. The ∆ was aware of the increase in crime. π was assaulted by an intruder in a
common hallway in 1966, after the ∆ had stopped providing security measures in the
common hallways. The ∆, as the landlord, was the only person who could have
provided security.

3. Procedural Posture: The case was originally tried in the District Court, which found
that there was no duty of a landlord to protect tenants from foreseeable criminal acts
committed by third parties. The π appealed to this court.

4. Judge's Rule: A landlord has a duty to protect it's tenants from foreseeable criminal
acts committed by third parties in the common areas under the exclusive control of the
landlord.

5. Classical Holding: A landlord is liable for damages if he does not take reasonable
measures of protection which are within his power and capacity to take to protect
tenants from assault from third parties.

6. Reasoning: The majority reasoned that the landlord was in a special relationship with
the tenant, because the landlord had exclusive control of the common areas through
which the tenant had to pass to get to his apartment. The tenant was powerless to take
precautions in the common area on his own behalf. Thus, the landlord should have a
duty to act on the tenant's behalf, to provide for their safety. Since the landlord had
prior notice of the type of crime, it was a foreseeable risk, not merely a possible risk.


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7. Dissent: The dissent reasoned that the π did not show that it was an intruder who
attacked her, thus there was a problem of causation. If the attack was by a resident, the
lack of guards at entryways would not be a proximate cause. Furthermore, the dissent
rejected the contract-based reliance argument that the tenant had relied on the security
measures that were present when she moved in. The tenant was aware of the changes in
security as they happened, thus she did have to power to avoid the danger, by moving
to a higher security complex.

Notes: 1. There is a limit to this duty. In Wassell v. Adams, the π was raped when she
answered her hotel room door in the middle of the night expecting her fiancee. She
claimed that the hotel had a duty to warn her of the possibility of high crime in the hotel
at night. The court held that it was common knowledge not to open a hotel door in the
middle of the night, so there was no duty. 2. Condominium complex boards of directors
were held liable in Frances v. Village Green Owners Assn., for the misfeasance of
requiring a tenant to take down external lighting that she had installed on her own to
combat the rising crime in the complex, and nonfeasance for not installing proper
lighting to protect the common areas. The majority analogized to Kline, holding that for
all practical purposes, the board was the landlord, even thought they did not get paid,
because they exercised exclusive control over the common areas. 3. The liability of a
common carrier is extended to public transportation in Lopez v. So. Cal. RTD, where a
group of juveniles attacked a passenger, and the bus driver took no action to prevent it.
Also the "landlord-tenant" liability has been extended to public facilities such as state
colleges, even though the institution does not operate commercially for profit. 4.
Foreseeability does not necessarily require prior similar acts. If it does, then the first
victim loses. It should be an ordinary question of fact.

1. Tarasoff v. Regents of the Univ. of Cal., (1976); pg. 525, briefed 2/8/95

2. Facts: The πs are the family of a girl who was killed by a patient of the ∆'s
psychiatrist. The patient revealed to the psychiatrist beforehand his intention to kill the
girl, and the psychiatrist believed him. Because of the danger, the psychiatrist had the
patient detained, but the police later let him go when he seemed rational. The πs claim
that the psychiatrist owed a duty to them to warn them of the danger posed by the
killer, and that the failure to warn them was a proximate cause of the murder.

3. Procedural Posture: The superior court found that the πs did not state a cause of
action under their facts, and sustained ∆s demurrers.

4. Judge's Rule: A doctor who knows, or should know, that his patient is likely to harm
another has a duty to warn the potential victim of the danger.




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5. Classical Holding: When a doctor knows that his patient is likely to harm another has
a duty to warn the potential victim of the danger.

6. Reasoning: The majority reasoned that although there did not initially exist a special
relationship between the psychiatrist and the victim, one arose when he became, or
should have become, aware of the patient's intent to kill the victim. Under the
Restatement (Second), the special relationship extends to the foreseeable victim of the
conduct. They reasoned that the ethical confidential relationship between a doctor and a
patient was outweighed by the public interest in safety. The privilege of communication
is lost when the patient is a danger to others or to himself. They further stated, in dicta,
that a doctor could be liable even if he did not actually know of the danger, as long as
he should have known by exercising ordinary skill.

7. Dissent: Mosk partially dissented, stating the holding very narrowly, requiring the
doctor to have actual notice of the danger. Other dissenters felt that the decision
impaired the ability of doctors to treat patients effectively.

8. Notes: 1. In Thompson v. County of Alameda, the court found that a duty to warn
did not exist. The murderer in Thompson indicated to the public welfare system that he
would "if released, take the life of a young child residing in the neighborhood."
Although no particular person was identified, the juvenile murdered the π's son within
24 hours of his release. The court distinguished from Tarasoff, finding that the threat
was non-specific enough that warning the neighborhood would be difficult and would
have done little to increase the safety of the neighborhood. [Huh?]. A dissenting judge
argued that the juvenile's custodian should have been warned so that she could have
taken precautions. The governing statute now reads that the duty to warn arises only
when the victim is "reasonably identifiable", and the therapist must make reasonable
efforts to warn the victim as well as police.

1. Baker v. Snell, (1908); pg. 541, briefed 2/12/95

2. Facts: The π is a maidservant of the ∆. The ∆ owned a dog that was ferocious and
prone to biting. The ∆ had a potman who was in charge of keeping the dog safe. The
potman released the dog on the π as a practical joke, and the dog bit her. The potman
was acting in the employ of the ∆ at the time.

3. Procedural Posture: The lower court found for the π. ∆ appealed claiming that the ∆
was not responsible for the bite because of the intervening negligence of the potman.

4. Judge's Rule: Whoever keeps an animal that is dangerous by nature, or that the
owner knows is dangerous, is prima facie liable for damages to anyone attacked by that
animal, unless it can be shown that the person attacked had brought the injury upon
himself.


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5. Classical Holding: Same as judge's rule.

6. Reasoning: The court stated that the potman did not have an independent grudge
against the π, but rather he was simply being negligent in his duty to keep the dog.
They stated that it is wrongful for a person to keep a wild dangerous animal, and so
they should be required to keep control of it at their own peril. They broke dangerous
animals into two classes: those that were generally known to be dangerous, and those
that were not generally known to be dangerous, but which the owner knew that
particular animal was dangerous. Unless the animal was harmless, the owner was
strictly liable.

7. Notes: 1. In Denver v. Kennedy, the rule of strict liability was found not to apply to
zoos because the policy of having zoos was important to the public, however,
negligence was still held as a standard. 2. Strict liability for trespassing animals (such as
livestock) does not extend to damages that are not reasonably to be expected from the
intrusion, or brought about by the unexpected operation of a force of nature or reckless
or negligent conduct of a third person. 3. Assumption of risk was found to be an
affirmative defense in Rubenstein v. United States, where the π was a camper who was
attacked by a bear after he was warned not to camp in the open in Yellowstone Park,
but disregarded the ranger's warning. 4. "Distress damage feasant" is the taking of
chattels (such as livestock) which are doing damage to the land of another, and holding
them until damages are paid for by the owner. This practice only works under strict
liability. 5. In some of the plain states in the U.S., the owner of private property is
required to "fence out" trespassing animals, unless it is shown that the owner of the
animals intentionally caused their animals to trespass. 6. Under the Coase theorem,
statutes favoring the farmer, which require ranchers to control their cattle and keep
them from trespassing even if there is no fence, are the most favorable because they
allow the farmer to make a deal with the rancher to lease part of his land. Thus, the
most efficient use of adjoining lands are reached.

1. Spano v. Perini Corp., (1969); pg. 548, briefed 2/12/95

2. Facts: The π owns a garage adjoining a vacant lot owned by the ∆. The ∆ was in the
process of blasting the lot to dig a tunnel as part of a contract with the city. Flying
debris from the explosion damaged the π's property.

3. Procedural Posture: The trial court found for the π, even though there was no
showing of negligence. The Court of Appeals reversed, holding that a precedent case
required showing of negligence.




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4. Judge's Rule: "Since blasting involves a substantial risk of harm no matter the degree
of care exercised," a person who engages in blasting is strictly liable for damages to
adjoining property resulting from the blast.

5. Classical Holding: A person who engages in activities which require the use of
explosives is prima facie strictly liable for foreseeable damages to other's property.

6. Reasoning: The court expressly overruled the precedent case. They reasoned that this
was an issue of conflicting use of adjoining lands, but ruled in favor of the π, because to
hold otherwise would allow the ∆ to blast to such an extent that it completely destroyed
the π's use of his own land. They reasoned that although the ∆ had the right to blast on
his own land, he should not force the π to internalize the damages because blasting is so
dangerous, it causes damage even when done properly. Although it was not necessary
to the decision the court further intimated that the fact that damage occurred was res
ipsa loquitur that the ∆ was negligent in his blasting.

7. Notes: 1. Historically, direct damages of the blast were viewed as trespass, thus strict
liability without fault, while indirect damages by concussion or vibration were viewed
as case, and thus subject to a negligence standard.

I. Restatement (Second) of Torts Section 519
        A. One who carries on abnormally dangerous activity is subject to liability even
        if he is exercising the utmost care to prevent the harm.
        B. This strict liability is limited only to the kind of harm which makes the activity
        abnormally dangerous.
                1. Ex: A person is not strictly liable for damages caused by the crash of a
                truck carrying explosives.

II. Restatement (Second) of Torts Section 520
        A. In determining whether an activity is abnormally dangerous, the following
        factors are considered:
               1. existence of a high degree of risk of harm,
               2. likelihood that the harm will be great
               3. inability to eliminate the risk by reasonable care,
               4. extent to which the activity is not common usage,
                       a. customarily carried on by the great mass of mankind or the
                       community.
                       b. "non-reciprocal" risks.
               5. inappropriateness of the activity to the place,
               6. extent to which the value to the community outweighs the dangerous
               attributes.
        B. The activity must be necessary, otherwise it is simply negligent, and there is
        no need for strict liability.


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       C. Dangerous activity may constitute an nuisance if it substantially impairs the
       use and enjoyment of the neighbors.
       ∆ Determination of what is abnormally dangerous is a function of the court, not
       the jury.
       E. Policy: put the burden of loss on the person who created the abnormally high
       risk instead of the victim.


1. Siegler v. Kuhlman, (1973); pg. 562, briefed 2/12/95

2. Facts: The π was 17 year old girl who was killed in the resulting explosion when the
∆'s gasoline tanker separated from the truck's cab, and spilled the gasoline all over the
road. The ∆ was not negligent in the hook up of the tank, it separated due to a link
which parted under metal fatigue.

3. Procedural Posture: The trial court found for ∆, and refused to allow a res ipsa
loquitur doctrine. The court of appeals reversed.

4. Judge's Rule: The transportation of gasoline in large commercial quantities is a
abnormally dangerous activity which subjects the actor to strict liability for foreseeable
damages arising from the escape of the gasoline without the intervention of any outside
force beyond the control of the actor.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that the nature of the risk to the general public,
combined with the severity of the foreseeable damages if the gasoline exploded, made
this an abnormally dangerous activity. They cited to Rylands. Furthermore, they stated
that much of the evidence of negligence would be destroyed in the resulting explosion,
therefore leading to problems of proof. Additionally, the owner was in a better position
to spread the loss by passing it on to customers, as well as holding the manufacturer of
the failed link accountable.

1. Madsen v. East Jordan Irrigation Co., (1942); pg. 568, briefed 2/12/95

2. Facts: The π used a farm to raise minks. The π owned adjoining land on which he was
blasting. The shock from the blast frightened the mother minks so much that they killed
their young, as minks are prone to do.

3. Procedural Posture: The lower court sustained a demurrer for the ∆, on the grounds
that the π failed to state a cause of action because the injury to the minks was not a
foreseeable result of the blasting.



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4. Issue: Did the mother minks' actions break the chain of causation from the ∆'s
blasting, and therefore require an allegation of negligence?

5. Holding: Yes. Where an animal intervenes and takes an unanticipated action which
causes damage, the chain of causation from the abnormally hazardous activity is
broken, and the ∆ is no longer strictly liable, but rather liable only for negligence.

6. Reasoning: The court reasoned that the peculiar nature of the minks was one which
was unanticipated. It was not one of the foreseeable dangers to which the π was
exposed from the blasting activities. It was not a physical result of the explosion, but
rather the result of a quirk in the personalities of the minks.

7. Notes: 3. A π is barred from recovery for 1) assumption of risk, 2) contributory
negligence in unreasonably subjecting himself to the danger (but not other types of
contributory negligence), and 3) if the injury would not have occurred except for the
abnormally sensitive nature of the π's activity.

1. Winterbottom v. Wright, (1842); pg. 613, briefed 2/19/95

2. Facts: The ∆ contracted with the Postmaster to provide mail coaches. The π was a
driver of the coach, and was injured when one of the coaches he was driving broke
down because of a latent defect, presumably one which the ∆ negligently failed to
correct before shipping.

3. Procedural Posture: The ∆ demurred, claiming that he owed no duty to the π because
the contract for the coaches was with the Postmaster, and he was simply a third party
not in privity with the contracting parties. Trial court sustained the demurrer. This
court affirms.

4. Issue: Is the ∆ liable to third party users of his equipment when it breaks down due to
latent defects, even though the π was not in privity with the contracting parties (the
Postmaster and the ∆)?

5. Holding: No. A contractor, manufacturer or vendor is not liable to third parties who
have no contractual relations with him for negligence in the construction, manufacture
or sale of the article he handles.

6. Reasoning: The court reasoned that the driver was only a third party, and so the ∆
did not owe any duty to him in negligence under the duty created by his contract with
the Postmaster. To allow this recovery, they thought, would be to open the gates wide
for too many law suits. They saw the action as grounded in contract. After the ∆ had
done everything to satisfy his contractual obligation to the Postmaster, the third party π,



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who had no privity to the contract, should not be allowed to "rip" open the settlement of
the contract by bringing a tort action.

7. Notes: The American courts carved out some exceptions to the rule in Winterbottom.
First, that a third party should be able to recover for damages from equipment designed
to save lives (such as medical equipment) which was negligently made; Second, a third
party should recover for any reasonably foreseeable damages when the manufacturer or
seller knows that the product is dangerous, and does not give notice.

1. MacPherson v. Buick Motor Co., (1916); pg. 615, briefed 2/19/95.

2. Facts: The π was injured in a car manufactured by the ∆ when the one of the wheels
broke while diriving. The wheel was not made by the ∆; it was bought from another
manufacturer. There was evidence, however, that the defects could have been
discovered by reasonable inspection, and that inspection was omitted.

3. Procedural Posture: The π sued under a negligence theory. The Court of Appeal
affirmed a trial verdict for the π. ∆ appealed to this court.

4. Issue: Does the ∆, as the manufacturer of the product, owe a duty of care to the π, as
an end user, even though the ∆ and the π had no contractual relationship because the π
bought the car from a dealer?

5. Holding: [Cardozo] A person who supplies a product for the purpose of the use of
another person, when it is reasonably foreseeable that harm would occur to the user if
the product were not supplied with due care and skill, and which the supplier knows
will be used by the third person without further inspection or testing to reveal danger,
owes a duty to the user to use ordinary care and skill in supplying the product.

6. Reasoning: Cardozo reasoned that the previous distinction between thrid party users
and contractors in privity was not governing. The ∆ knew that the π was a member of
the class of persons likely to use the car, and likely to be injured if the car was not built
properly. In building the car for that specific purpose, he owed the users a duty of care.
The duty extended beyond the dealer, because the ∆ knew that the car would be resold
without any additional checking for danger to the user. The dealer was only a
middleman. The court also stated that the ∆ was liable even though he did not
manufacture the actual wheel, because he put the finished product together. The ∆ thus
had the final opportunity to inspect the wheel for damage, and should be held
accountable for its safety.

1. Escola v. Coca-Cola Bottling Co. of Fresno, (1944); pg. 624, briefed 2/19/95




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2. Facts: The π was a waitress. As part of her job, she was putting bottles of Coca Cola
which had been delivered to her restaurant into the refrigerator. As she put one of the
bottles in, it exploded in her hand, causing severe injuries.

3. Procedural Posture: The π alleged that the ∆ was selling bottles which were
dangerous, either because they were overpressurized, or because of latent defects in the
glass. The jury entered a verdict for the π, which was affirmed on appeal. The Court of
Appeal used res ipsa loquitur to find the ∆ negligent.

4. Issue: Is the ∆ liable for damages to the π, even if the ∆ can make a showing that the
bottle was manufactured without any negligence (which is a defense to res ipsa
loquitur)?

5. Holding: Yes. A manufacturer is strictly liable for damages to consumers when he
sells a product which he knows, or should know, will be used by consumers without
any further inspection for defects.

6. Reasoning: The court [Traynor], held that negligence was no longer the standard for
products liability. Public policy demands that responsibility for damages from products
be fixed where it will most effectively reduce the hazards to the public. The
manufacturer can then spread the cost to the public at large by increasing prices to
cover the liability. He went on to state that although the retailer could be held liable as
well, it would be much more efficient to allow the victim to go directly against the
manufacturer under an implied warranty. The consumer does not have the power to
ensure his own safety because the product is normally packaged at the time of sale.
Furthermore, the representations of the manufacturer create a reliance in the consumer.

7. Notes: Traynor justified his holding with a number of arguments: a) ∆ is in the best
position to avoid the loss. However, this argument won't stand alone because simply
because the ∆ is a business; b) the ∆ can spread the loss - also won't stand alone simply
because the ∆ is a business; c) Elimination of proof complications - expressly to avoid
res ipsa loquitur, this switches the residual risk of unavoidable accidents to the ∆, d) the
retailer was unable to make any changes to the sealed bottle; e) "between two innocents"
- weaker here because of the intervening third party, however, the ∆ knew that the
intervening party would not take any preventive action.

1. McCabe v. Ligget Drug Co., (1953); pg. 630, briefed 2/19/95.

2. Facts: The π used a coffee maker which was purchased at the ∆'s drug store. The π
used the coffee machine according to the instructions. After a few uses, the coffee maker
exploded due to a buildup of contained steam, which apparantly could not be released
because the design of the coffee maker was such that the steam would be bottled-up by
residue left over from the grounds.


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3. Procedural Posture: The π brought an action in contract, for breach of implied
warranty for use. The trial jury rendered a verdict for the π, but the judge set aside the
verdict, and found for the ∆, on the ground that the π did not give the ∆ proper notice
by proving what day it was purchased on.

4. Issue: Is the ∆ liable under an implied warranty theory for personal injuries to the π,
even though the π could not show when she bought the coffee maker (as required by
warranty breach laws of the time)?

5. Holding: Yes. Where a product is negligently designed so as to create a risk of harm
to the user, and that defect is not readily detectable by the user operating it in a normal
manner, the retailer is liable for damages under a contract theory of implied warranty.

6. Reasoning: The court reasoned that the design of the coffee maker was such that it
could not have been used without danger, even if used properly. Thus, the breach of
warranty applied to any coffee maker of this brand which was sold to the π, not just the
specific one that she purchased. Therefore, she was not barred from her action if she
was unable to produce a receipt for this specific machine.

7. Notes: 4. In Henningsen v. Bloomfield Motors, the π purchased a car from the ∆ who
provided a warranty for the original owner only. When the π gave the car to his wife,
the steering failed and it went out of control and crashed, injuring the π's wife. The
court held that the ∆ could not avoid liability by limiting the warranty, because the
implied warranty extended to the ultimate user. 5. Justice Traynor finally split the
contract/tort duality of these implied warranty cases by announcing strict tort liability
in Greenman v. Yuba Power Products as a matter of law, not one imposed in a contract.
6. Liability of the manufacturer of a product apparently ends when that product
becomes incorporated into a final assembly by a subsequent manufacturer. In Goldberg
v. Kollsman Instruments, the π's deceased was killed when an American Airlines plane
crashed because of a defective altimeter made by the ∆. The court limited the liability to
American Airlines, stating that to hold the ∆ liable would allow a π to select from a
multiplicity of ∆s, and destroy whatever contractual rights they had between them.

I. Restatement (Second) §402A - Special Liability of Seller of Product for Physical Harm
to User or Consumer.
        A. The seller is liable if the product is in a defective condition unreasonably
        dangerous to the user or consumer or his property if:
              1. The seller is in the business of selling that product, and it reaches the
              consumer without a substantial change.
                       a. This applies to a movie theater selling popcorn.
                       b. This does not apply to a housewife who occasionally sels her
                       neighbor a jar of jam.


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              2. Unspoiled tobacco is not unreasonably dangerous just because smoking
              it is harmful, but laced tobacco is unreasonably dangerous.
       B. The rule applies even though the seller has exercised all possible care in the
       preparation of the product, and even if the ultimate user has not entered into any
       contractual relationship with the seller.
              1. The seller can prevent the product from being unreasonably dangerous
              by providing an appropriate warning.
              2. Some products can never be safe, (such as the rabies vaccine) but the
              public good is served by them such that they are not unreasonably
              dangerous because the good outweighs the danger, so it is not
              unreasonable to sell them.
              3. Like other strict liability cases, contributory negligence on the order of
              assumption of risk is an affirmative defense.

1. East River Steamship v. Transamerica Delaval, (1986); pg. 643, briefed 2/26/95

2. Facts: The π bought some steam turbines from the ∆, and had them installed in 4
ships. The ∆ supervised the installation of the turbines, and somehow the astern guard
valve was put in backward. The turbines ended up damaging themselves, causing
economic damages from repairs and lost business, but no personal injuries.

3. Procedural Posture: Court of Admiralty.

4. Issue: Is the theory of strict liability for products liability applicable if the damages
are only to the product itself, and are economic and not personal injuries?

5. Holding: No. A manufacturer in a commercial relationship has not duty under either
a negligence or strict products-liability theory to prevent a product from injuring itself.

6. Reasoning: The court examined the majority view held by the court in Seely, which
limited tort liability in order to prevent it from overrunning warranty liability in
contract. It also examined the minority view in Santor, which held that the
manufacturer was liable for damages to the product itself, whether or not the defect
created an unreasonable risk of harm. There were also intermediate cases which
predicated liability on the difference between a "disappointed user" and an "endangered
use", allowing recovery under tort if the defect could have caused a personal injury,
even if it only resulted in economic damage to itself. The court adopted the majority
view, because although it seemed arbitrary to award tort damages only for cases that
resulted in actual injury to something other than the product, it provided the strongest
argument for the safe separation of tort and contract.

1. Murphy v. E.R. Squibb & Sons, Inc., (1985); pg. 653, briefed 2/26/95.



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2. Facts: The π developed cancer at the age of 23, presumably from the side effects of the
drug DES which her mother took when she was pregnant. She brings an action against
the pharmacy that sold her mother the drugs on the theory of strict products-liability.

3. Procedural Posture: The trial court dismissed the case on the basis that the
pharmacist was not susceptible to strict liability under 402A because he was a service
provider, and not a seller engaged in the business of selling drugs.

4. Issue: Is a pharmacist strictly liable for the drugs it sells in filling a doctor's
prescription?


5. Holding: No.

6. Reasoning: The court reasoned that although a pharmacy was a combination of a
seller and a service provider, that there were several policy reasons why they should
not be strictly liable. They stated that the statute regulating pharmacists defines them as
a health service provider. The pharmacist might be inclined to refuse to carry a new and
innovative drug, and only carry those from well established manufacturers because
they would have a better opportunity to recover from the manufacturer in the future if
they were ever sued. Also, it did not seem fair that the pharmacist be held liable if he
were only fulfilling the prescription of the doctor, and the doctor was himself immune
from suit.

7. Dissent: [Bird] felt that the majority overlooked the reasons that strict products
liability was created in the first place. Specifically, the pharmacist might be the only
available defendant for an injured party to sue because the manufacturer might be
unknown. The theory is to put the burden of loss on the one who can most easily insure
against it.

8. Notes: 1. In Shaffer v. Victoria Station, Inc., the π recovered under strict liability for a
wine glass that broke in his hand in a restaurant where he ate because the use of the
glass was necessarily incident to the sale of the wine. In Johnson v. William C. Ellis and
Sons Iron Works, Inc., the court held that a repairman was not strictly liable for failing
to inform the occupant of a pre-existing latent defect that he noticed while doing
unrelated repair work. 2. In Tillman v. Vance Equipment, the court held that 402A did
not apply to the sellers of used equipment because the nature of the used equipment
market is such that the buyer and seller both know that the product is being sold
without any particular representation as to its quality. Furthermore, the used product
dealer generally has no link to the sales and distribution chain of the original
manufacturer. However, in Crandell v. Larkin, the court extended strict liability to
persons who refurbish used equipment. 3. Strict liability may extend to the new owner
of a business. They become liable for the sales of the prior owner for 3 reasons: 1) the


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preceding corporation has been virtually destroyed, leaving the π with no other choice,
2) the successor is in just as good a position to spread the risk as was the original owner,
and 3) the new owner should be liable for the past products because he enjoys profits
based on the original owner's reputation.
1. Pouncey v. Ford Motor Co., (1972); pg. 662, briefed 2/26/95

2. Facts: The π was injured while putting anti-freeze into the radiator of his car when
one of the fan blades broke off and hit him in the face. The π provided an expert who
testified that the fan broke due to excessive inclusions in the metal which caused it to
fatigue. The ∆ produced an expert who said that it broke because of stress due to being
bent and out of balance.

3. Procedural Posture: The trial court jury found for π, and the ∆ appealed alleging
error in failing to grant a judgment notwithstanding the verdict because they felt there
was not sufficient evidence for a reasonable jury to find liability.

4. Issue: May a jury decide that a person is negligent in the manufacture of a product
based on circumstantial evidence where there is direct evidence of an actual defect in
the product?

5. Holding: yes. A manufacturer's liability for a defective product is predicated on
negligence in the manufacture or design of the product.

6. Reasoning: The court reasoned that there was enough evidence to find negligence in
the manufacture of the fan blade.

7. Notes: 1. The burden of proof is on the π to show that her injury resulted from a
condition of the product which was unreasonably dangerous and which existed at the
time the product left the manufacturer's control. 2. Res Ipsa Loquitur can be combined
with a 402A action so that the π does not need to identify the particular product defect.

1. Volkswagen of Am., Inc. v. Young, (1974); pg. 666, briefed 2/26/95

2. Facts: Young died in a car accident when he was driving a VW Beetle. He was not
killed by the initial collision, but rather by a "second collision" when the seat broke free
from the floor and he impacted the rear of the car.

3. Procedural Posture: The π claimed that the car was defectively designed for its
intended purpose because the seat was unreasonably vulnerable to separation from the
floor upon collision. The ∆ asked to have the question certified whether "intended use"
included collision.




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4. Issue: Does the manufacturer of a car have a duty to design it so that it will be
reasonably safe in a collision?

5. Holding: Yes. An automobile manufacturer is under a duty to use reasonable care in
the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in
the event of a collision.

6. Reasoning: The court reasoned that the risk of collision is foreseeable, so the intended
use of a car is one that includes the risk of being exposed to an accident. Thus, a car is
not only for transportation, but for reasonably safe transportation. They held that the
standard to be applied to evaluating liability for design flaws is the traditional one of
reasonableness. They also went on to state that section 402A of the Restatement
(Second) does not apply to design defects of an automobile because it addresses
defective products which were prepared with all possible care. So a defective design,
which is unreasonable by definition, could not fit into a rule which provides for all
possible care to be taken. If all possible care was taken, it would not be defective.

7. Notes: 1. The manufacturer is not necessarily liable if the defect were obvious to the
user, such as the VW Van having no protection in a head-on collision. 2. Strict liability
was thought to be unworkable in cars because to design a car that would survive any
collision would be impractical. A cost-benefit approach as well as statutory safety
regulations have been taken in determining which safety measures are required. 3. It is
often difficult for a π to prove that his injuries were enhanced by a defective design
because they must make some showing of what would have happened otherwise. 4.
The Illinois Supreme court held that although a car should provide reasonable
protection to its own passengers when it was being hit, it refused to extend that
rationale to the consequences to the crashing car's passengers. Thus, a car mfgr. was
held not liable when another car crashed into the mfgr.'s truck from behind and
wedged up under the bed.

1. Barker v. Lull Engineering Co., (1978); pg. 675, briefed 2/26/95


2. Facts: The π was injured when the high-lift loader that he was operating became
unstable and lost its load. The π was not an experienced operator, and he was operating
the lift on uneven terrain. He claimed that the lift was defectively designed because it
lacked seat-belts, a rollbar, a locking mechanism for the lift, and a park gear in the
transmission. The ∆ claimed that the lift was being operated by an inexperienced user,
and not according to its intended use.

3. Procedural Posture: The trial court ruled for ∆. π appealed on the basis that the court
erred in the jury instructions which read that the manufacturer was not strictly liable
unless the product was unreasonably dangerous for its intended use. [Section 402A].


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4. Issue: Does a product have to be unreasonably dangerous for its intended use to
subject the manufacturer to strict liability?

5. Holding: A product is defective in design either 1) if the product has failed to
perform as safely as an ordinary consumer would expect when used in an intended or
reasonably foreseeable manner, or 2) if, in light of the relevant factors discussed below,
the benefits of the challenged design do not outweigh the risk of danger inherent in
such design.

6. Reasoning: The court reasoned that the 402A standard represents an undue
restriction on the application of strict liability principles. Thus, the π could recover if the
product failed to perform as safely as an ordinary consumer would expect [custom] or,
even if the public had a low view of the product's safety, if the product was designed in
such a way that the dangers could be mitigated by cost-effective precautions
[cost-benefit].

7. Notes: 3. Risk-Utility test 1) usefulness, 2) safety, 3) availability of substitute, 4) ability
to eliminate risks, 5) user's ability to avoid danger by exercising care, 6) user's
awareness of the danger, 7) mfgrs ability to spread the loss. 5. Guns do not fit into the
category of defective by design simply because they are extremely dangerous even
when designed and manufactured correctly. 6. Although an original manufacturer is
generally not liable for a subsequently modified product, the court in Soler v.
Castmaster held that the mfgr. could be liable if the modification which was made was
reasonably foreseeable to the mfgr.. [The design defect is the ability to be adversely
modified.]

1. MacDonald v. Ortho Pharmaceutical Corp., (1985); pg. 692, briefed 3/5/95

2. Facts: The π suffered a stroke as a side effect of taking the Ortho-Novum
contraceptive pill. The ∆ provided a written warning along with the pills which stated
that there were side effects which included blood clotting which could lead in some
cases to death, and that the blood clot could occur in the brain, however, they did not
warn directly of the increased risk of “stroke”.

3. Procedural Posture: The trial court jury found for the π, but the judge granted the ∆’s
motion for judgment not withstanding the verdict, concluding that the ∆ did not owe a
duty to warn the π.

4. Issue: Does the manufacturer have a duty to warn the π directly of the increased risk
of a stroke associated with using the birth control pill?

5. Holding: Yes.


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6. Reasoning: The court reasoned that due to the nature of the prescription of
contraceptives, the manufacturer owes a duty to directly warn the consumer of the
dangers. The prescription of birth control pills happens only on a yearly basis, and the
patient cannot be expected to remember all the details of the doctor’s advice for an
extended period of time. The patient needs a written warning that they can refer to.
Furthermore, the warning given must be “comprehensible to the average user and
convey a fair indication of the nature and extent of the danger to the mind of a
reasonably prudent person.” The court found that simply by complying with the FDA
requirements, the manufacturer does not necessarily avoid common law liability
because the FDA does not define the common law. Also, the tone of the warning must
be imperative enough to reflect the seriousness of the risk.

7. Dissent: The dissent reasoned that the manufacturer should only be required to warn
the doctor as a matter of law because the doctor is in a better position to understand the
medical history of the patient, and counsel them directly.

8. Notes: 1. An extreme example of when a warning must be given is in Morgan v.
Faberge, the π burned herself badly when she poured perfume on a lit candle. She
brought suit, claiming strict product liability because the ∆ had failed to make a
warning that the perfume was flammable. The court stated that the exact circumstance
of injury did not need to be foreseeable because the risk of injury from burns was
generally foreseeable. A manufacturer of alcoholic beverages may be liable for failure to
warn of significant health risks involved in either prolonged or excessive drinking. 2.
The warning defense may be negated if the manufacturer overpromotes the product in
such a way that it tends to contradict the warning. This is true even if the doctor who
prescribes the product is negligent in counseling the patient when he is aware of the
dangers. 3. Several cases went to court concerning the adequacy of warning for live
vaccinations. In Davis v. Wyeth Labs, and Reyes v. Wyeth Labs, the provider of a polio
vaccine did not warn the πs of the 1 in a million chance of contracting the disease from a
properly prepared vaccine. Although the vaccine does not meet the definition of
“unreasonably dangerous”, there still exists a duty to warn where “the risk qualitatively
or quantitatively is such as to call for a true choice judgment.” In these cases, the chance
of getting the disease from the vaccine was the same as getting it otherwise. 4. A
warning must be adequate. “ It would defy logic and reason to suggest that an adequate
warning was provided by the mere mention in the consent form’s text that there was a
‘possibility of severe or potentially fatal reactions.’” 5. There is an information cost
associated with providing warnings on labels instead of separate pamphlets. The more
you squeeze onto a label, the less likely that the average reader will give all warnings
the proper consideration. 6. Some tort actions based on adequacy of warning have been
preempted by federal statute. A good example is cigarette liability. The Federal
Cigarette Labeling and Advertising Act sets out the exact warnings that must be



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included on cigarette packs, and states that no additional warnings can be required by
state law.

1. Brown v. Superior Court (Abbott Laboratories), (1988); pg. 707, briefed 3/5/95

2. Facts: The π was injured as a result of her mother using DES when she was a fetus.

3. Procedural Posture: The π sought to hold the ∆ liable on a strict liability theory
claiming defective design of the drug. The trial court found that the ∆ could not be held
liable on a strict liability theory, but only for their failure to warn of known or knowable
side effects of the drug.

4. Issue: Does the strict liability theory of defective design apply to makers of drugs?

5. Holding: No. A manufacturer of drugs is liable for the failure to warn of dangers
inherent in the drug which are known or knowable at the time of distribution.

6. Reasoning: The court reasoned that drugs are different from other products because
they alleviate pain and sustain life. The public interest in the development, availability
and reasonable cost of drugs requires that they not be subjected to the strict liability
standard, but rather the standard in comment k of Restatement (Second) Section 402A.
Comment k is more of a negligence standard because it does not focus on a defect in the
product, but rather whether the manufacturer knew or should have known of dangers
in the product at the time of distribution. It rejected the argument that some drugs are
not “unavoidably dangerous” and therefore should not enjoy the test of comment k.

7. Notes: 1. An application of this rule is found in Brody v. Overlook Hospital, where
the π died from contracting Hepatitis from a blood transfusion. No test for screening
blood for hepatitis was available at the time, so the ∆ was not liable under comment k.
They stated that the loss spreading compensationalist argument was outweighed by the
greater need for reasonably priced blood. 2. Asbestos cases have also applied comment
k. In Borel v. Fiberboard Paper Products Corp., the court held that asbestos was an
unavoidably dangerous product, and that there was sufficient medical evidence at the
time of distribution that exposure to asbestos caused health problems. The ∆ was
therefore liable for failure to warn. The court in Besheda v. Johns-Manville Products
went as far as to say that strict liability for asbestos was required even if the
consequences were unknowable at the time because it created an incentive for the
manufacturers to discover dangers. Besheda was quickly limited, however, by Feldman
v. Lederle Laboratories.

1. Micallef v. Miehle Co., (1976); pg. 715, briefed 3/5/95




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2. Facts: The π is the operator of a printing press machine manufactured by the ∆. The π
attempted to adjust the machine while it was running, and got his hand caught. There
was no guard in the rollers which prevented a person from catching his hand. However,
the danger of injury was one that was patently obvious to the user.

3. Procedural Posture: The trial court found that although the ∆ was negligent in the
design of the press, the π was contributorily negligent in his operation of the machine
and so barred from recovery.

4. Issue: Is a manufacturer liable for injuries resulting from the negligence of his design
if the user is contributorily negligent in his use of the product because the danger is
patently obvious?

5. Holding: Yes. A manufacturer must design his product in such a way as to avoid any
unreasonable risk of harm to anyone who is likely to be exposed to the danger when the
product is used in a manner which is reasonably foreseeable.

6. Reasoning: The court reasoned that the fact that the danger was patently obvious did
not exempt the manufacturer from liability because otherwise, the manufacturer
would have no duty to design a reasonably safe product under the cost-benefit analysis.
The loss should be shouldered by the manufacturer to provide an incentive to create a
reasonably safe product. However, that does not mean that the π’s contributory
negligence is not applicable. Rather, the openness and obviousness of the danger should
be available to the ∆ as evidence of contributory negligence, not bar the π’s action as a
matter of law.

7. Notes: 2. In LeBouef v. Goodyear Tire & Rubber Co., the π was driving a Cougar
which was had a high-horsepower engine capable of going 100 mph, but tires which
had only been tested to 85 mph. As the π drove the car at 100-105 mph, the tires blew
out. The court found that although the driver was contributorily negligent in driving so
fast, the manufacturer was still liable because the speeding was a foreseeable use of the
car, especially since it was designed with such a high power engine. The “foreseeable
misuse” standard results in a net transfer of wealth from careful to careless people
because the manufacturer cannot charge the careless person a higher price for the
product. Thus, the careful person subsidizes the careless one.

1. Daly v. General Motors Corp., (1978); pg. 722, briefed 3/5/95

2. Facts: The π’s decedent was killed when the car he was driving struck the metal
divider and he was thrown from the car. The πs alleged that the door lock was of
defective design because it flew open upon impact.




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3. Procedural Posture: The ∆ claimed that the πs decedent was contributorily negligent
because he was not wearing a seatbelt, did not lock the door [factual discrepancy], and
was intoxicated. The jury found for ∆s.

4. Issue: Are the principles of comparative negligence outline in Li applicable to strict
products liability?

5. Holding: Yes.

6. Reasoning: The majority [Richardson] reasoned that the introduction of comparative
fault did not reduce the manufacturer’s incentive to create a non-defective design. The
manufacturer will still be required to pay for injuries resulting from negligent design,
however, that amount will be diminished by the comparative fault of the π. This also
has the effect of swallowing up the assumption of risk defense into comparative fault.
They reasoned that otherwise, a π could recover more under simple negligence because
assumption of risk would completely bar a strict products liability action.

7. Dissent: The dissent [Mosk] reasoned that the allowance of comparative negligence
necessarily reduced the manufacturer’s incentive to design a safe product. Now, every
manufacturer will be looking for the slightest contribution to reduce its own liability.
Mosk reasoned that the negligence of the actual victim should not be relevant because
the defective design, if truly defective, would injure the careful as well as the careless.
The liability issue should be pure - was the design defective or not? As long as the π
was using the product in a reasonably foreseeable manner, there should be no
consideration of his negligence.

8. Notes: Although there is a fair split between the various states, most jurisdictions
follow comparative negligence in strict products liability cases.

1. Morgan v. High Penn Oil Co., (1953); pg. 571, briefed 3/19/95

2. Facts: The plaintiff is the owner of some property. Next door, the defendant set up an
oil refinery operation. Several times a week, the oil refinery produced noxious gases
which substantially impaired the plaintiff’s use of his land.

3. Procedural Posture: The trial court found for the plaintiffs, and the defendants
appeal, claiming that they are lawfully producing oil on their own land, so they are not
creating a nuisance per se (as a matter of law.) Thus, they allege that the plaintiff must
show that the oil refinery was being operated negligently.

4. Issue: Does nuisance require a showing of negligence?




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5. Holding: No. A person who creates or maintains a private nuisance is liable for the
resulting injury to others regardless of the degree of care or skill exercised by him to
avoid such injury.

6. Reasoning: The court reasoned that nuisance and negligence are two distinct fields of
tort. A nuisance per se is an act which is a nuisance at all times regardless of location or
surroundings. A nuisance per accidens or in fact is an act which becomes a nuisance by
reason of its location or by reason of the manner in which it is operated. A private
nuisance may be created or maintained without negligence. The nuisance may be
intentional or unintentional. A person is liable for intentional nuisance when his act is
both intentional and unreasonable. A person is liable for unintentional nuisance when
his conduct is negligent, reckless or ultra-hazardous. The oil refinery was intentionally
creating the nuisance. The court found that it was unreasonable.

7. Notes: 2. Since the determination of whether an intentional act is a nuisance requires
a determination of reasonableness, the ultimate question becomes one of a cost-benefit
analysis. Physical damage to tangible property, although small, may be regarded as
grave harm because it involves property rights. Where the invasion involves personal
discomfort, it may require that the invasion be continuing to be considered a nuisance.
3. Most minor invasions which are acts that are common and ordinary byproducts of
the use and occupation of one’s property are not considered nuisances because of the
idea of “live and let live”; reciprocal nuisances. Both parties are probably better off if
they simply allow the invasions to do uncontested, otherwise, the high transaction costs
would outweigh the expected recovery. (See Coase Theorem).

1. Fountainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., (1959); pg. 579, briefed
3/19/95.

2. Facts: The Fountainbleu Hotel and the Eden Roc hotel are neighbors on the beach
front in Miami. The Fountainbleu, partly out of a motivation to spite the owner of the
Eden Roc, began to construct a high-rise addition to its hotel directly south of the Eden
Roc, such that it would cast a dark shadow over the pool and beach area around the
Eden Roc. The Eden Roc claimed that such a building would constitute a nuisance,
because it would result in loss of business.

3. Procedural Posture: The trial court found for the plaintiff on the theory that a person
can not use his property in a way that will damage another. They issued a temporary
injunction against the Fountainbleu, and they appealed.

4. Issue: Is a landowner entitled to free flow of light and air from across his neighbor’s
property?




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5. Holding: No. A person must never use his property in a way which injures the lawful
rights of another. However, the free flow of light and air across the adjoining land of his
neighbor is not a lawful right of a landowner. Furthermore, where a structure serves a
useful purpose, it does not constitute a nuisance simply because it cuts off the light and
air of an adjoining property, even if the structure was erected partly for spite.

6. Reasoning: The court reasoned that the Fountainbleu was entitled to make use of its
own property by building the high-rise. The free flow of light and air was not a right
granted under the law. Therefore, a nuisance was not created.

7. Notes: 1. American courts have traditionally rejected a common-law easement for
light and air that passes over a neighbor’s property because it might inhibit growth of
towns and industry. However, in Prah v. Maretti, the court expressly disapproved of
Fountainbleu. In Prah, the plaintiff used solar energy to heat his home. His neighbor
constructed a house that blocked the sun’s rays from striking the solar heater during
some parts of the year. The court reasoned that a “unreasonable obstruction of access to
sunlight might be a private nuisance” due to the emerging importance of solar energy.
The policy of favoring unhindered private development of towns was deemed to be
outdated when weighed against the value of sunlight as a potential energy source. 2. A
person may not erect a “spite fence” solely to block out the sun and air from a
neighbor’s window. However, a tool shed, which serves a useful purpose, might not be
considered a nuisance. 3. Although solely aesthetic nuisances (eye-sores) might exist
which devalue the surrounding neighborhood, it may be impossible to create a
workable common-law rule for how these cases should be decided.

1. Rodgers v. Elliot, (1888); pg. 583, briefed 3/19/95

2. Facts: The plaintiff was recovering from a severe case of sunstroke in a house near a
church. The defendant was the bell ringer at the church. When the defendant rang the
bell, the plaintiff went into convulsions. The defendant’s doctor asked the plaintiff not
to ring the bell, but the plaintiff responded that he would ring it even if his own mother
were ill.

3. Procedural Posture: Unknown.

4. Issue: Is a person liable for nuisance if he creates necessary noises which do not injure
the ordinary person, but do injure an extra-sensitive person?

5. Holding: No. The test for whether a particular act is a private nuisance is whether it
injures the person of ordinary prudence.

6. Reasoning: The court reasoned that the right to make a noise for a proper purpose
must not depend on the sensitivity of the extra-sensitive person, nor the robustness of


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the strong person, but on the ordinary person. Otherwise, the character of a business
might change from legal to illegal with every change of tenant in a neighborhood, or
every passing guest at a nearby house. Legal rights to the use of property can not be
subject to such uncertainty. Regardless of whether the defendant should have shown
more compassion for this individual, he was not required by law to refrain from using
his property in a way which did not injure the ordinary person.

7. Notes: 1. This rule of no nuisance for extra-sensitive persons is under some tension
with the rule that a defendant takes his victim as he finds him. 2. In Belmar Drive-In
Theater v. Illinois State Toll Highway, the plaintiff was deemed to be extra-sensitive,
and therefore not allowed to recover, when the lights of the defendant’s road made it
too bright for the plaintiff to show his drive-in movies. However, in Page Appliance
Center v. Honeywell, the defendant was held liable for the EMI generated by his
computer which adversely affected the picture screens in the adjoining appliance store.
The court stated that televisions were everywhere, therefore the plaintiff was not
extra-sensitive.

1. Ensign v. Walls, (1948); pg. 587, briefed 3/19/95

2. Facts: The defendant has operated a dog farm for several years on her property. It
smells bad, attracts flies and rats, and disturbs the plaintiffs in the use of their land.
However, most of the plaintiffs are new to the area.

3. Procedural Posture: The defendant claims that the business was well established
when the plaintiffs moved in, and so they cannot be heard to complain.

4. Issue: Can a lawful intentional act be considered a nuisance when it existed before
the neighboring residents moved in?

5. Holding: Yes. Carrying on an offensive trade for any number of years in a place
remote from buildings and public roads, does not entitle the owner to continue it in the
same place after houses have been built and roads laid out in the neighborhood, to the
occupants of which and travelers upon which it is a nuisance.

6. Reasoning: The court reasoned that the fact that the defendant was there previously
did not make it any less of a nuisance.

7. Notes: 1. To allow the pre-existing nuisance defense would allow the “theft” of an
interest in real property. However, there may be some assumption of risk type defense
if the plaintiff knew that the zoning laws permitted such an operation before moving in.

1. Boomer v. Atlantic Cement Co., (1970); pg. 592, briefed 3/19/95



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2. Facts: The ∆ operates a cement plant. The π is a resident of the area. The plant emits
large quantities of particulate matter which is a nuisance to the π.

3. Procedural Posture: The lower courts found that a nuisance did exist, and that the
total damages, present and future, were $185,000. However, contrary to the general rule
of the state, they refused to grant an injunction to stop the cement plants operation,
even though it was a substantial and continuing nuisance, because of the extreme
lopsidedness in value of the plant as compared to value of the πs property.

4. Issue: Should an injunction be granted in a nuisance case where there is a large
disparity between the value of the πs damages and the value of the ∆s operation?

5. Holding: No. Where a nuisance is of a permanent and unabatable character an
injunction will be granted unless the value of continuing the operation significantly
outweighs the value of the damage done by the nuisance, in which case permanent
damages may be awarded instead.

6. Reasoning: The majority reasoned that the value of having cement plants was very
high. Furthermore, there was not likely to be any acceleration in the rate of finding a
reasonable way to abate the pollution. Thus, it would be inequitable to grant the
injunction and shut down the plant entirely. However, the threat of an injuction if the ∆
did not pay damages would correct the problem of the particualr πs that were a party to
this action. Thus, the majority reasoned that the proper remedy would be to grant an
injunction, which would be removed when they paid permanent damages. The theory
they used would be a "servitude on land" of πs imposed by the ∆s nuisance.

7. Dissent: The dissent reasoned that air pollution from cement plants was of such high
importance to the public in general that the court should set a precendent on behalf of
the rest of the public, not just the particular πs in this action.

8. Notes: 1. Temporary damages allow an accurate measurement of actual damages, but
they produce high transaction costs of repeated litigation, and require the π to suffer
first for future damages that he knows will happen. Permanent damages avoid high
transaction costs, but they are difficult to approximate, and assume that the ∆ will
maintain the same level of nuisance in the future. 2. If the damages to the π are large,
and the cost of mitigating those damages is small, the π may be required to take steps to
reduce the damage, even including fixing the problem themselves, instead of sitting
back and allowing the damages to accrue. 3. Reasons for granting injunctions are that
they avoid the risk that the ∆ will be insolvent, the provide protection to other victims
who are not joined in the lawsuit, and they avoid the difficult task of determining
future damages. However, in the case where the damage is slight compared to the value
of the nuisance, they give the π extreme bargaining power (perhaps unjustly in some
cases). 4. An injunction may not be awarded to stop the construction of an operation


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that may become a nuisance when completed (ex: a half-way house for parolees in a
residential neighborhood). The reasoning is that the πs don't have damages yet, and
may never have damages. They can still bring an action if the nuisance materializes. 5.
Courts have broad power to consider all the surrounding circumstances in deciding
whether to delay an injunction, make it conditional, or issue it at all. They may "balance
the equities" of the parties to make a compromise. 6. In the case of "coming to the
nuisance" the π may get his injunction, but also be required to pay some sort of
damages to the pre-existing owner of the nuisance if it it is only a nuisance because of
the recent location of houses in the area.

1. Anon (1535); pg. 603, briefed 3/20/95

2. Facts: The King blocked access to one of the public roads. The π was therby
inconvenienced and brought an action for nuisance and damages.

3. Procedural Posture: Unknown.

4. Issue: Is a private citizen entitled to recover for damages from the public nuisance of
a road closure if he is not specially damaged by it any more than the ordinary member
of the public?

5. Holding: No.

6. Reasoning: The court reasoned that to allow this action would be to expose the
person to a hundred private actions, instead of the one public action provided for the
remedy of such situations (administrative remedy).

7. Notes: Gnereal damages from public nuisances are controlled only by direct public
action, usually administrative regulation or criminal prosecution. The private action is
maintainable only for "special" damages if they are "disproportionate" to the individual.
The reasoning is that the transaction costs of adjudicating each individual's slight
damages are too high.

1. Union Oil Co. v. Oppen (1974); pg. 605, briefed 3/20/95

2. Facts: The πs were commercial fishermen who lost profits when the ∆s negligently
spilled a large quantity of oil into the fishing grounds.

3. Procedural Posture: The lower court refused to grant the ∆s motion for partial
summary judgement which claimed that they were not liable for lost profits because in
general, a person is only liable for actual damages, not lost profits.




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4. Issue: Does an Oil Company have owe a duty to the commercial fishermen refrain
from damaging the fish in the sea that are the fishermen's livelihood?

5. Holding: Yes.

6. Reasoning: The court reasoned that the damage was foreseeable, therefore a duty
was owed. [Note this was not litigated as a nuisance case].

7. Notes: 1. Although the oil company would not be liable if they had caught the fish
prior to the fishermen (thereby reducing their profits), Oppen may be interpreted as
providing a tort action to a resource user for the premature destruction of a valuable
pool of resources, even though the resource pool is a common one, which the user does
not own exclusively. However, this action may be most effeciently dealt with in terms
of state regulation. 3. Air pollution is a nuisance with so many causes that to allow a
private action would result in everybody suing everybody. Thus, for these public
nuisances, administrative controls work best.

1. Alcorn v. Mitchell, (1872); pg. 1003, briefed 4/17/95

2. Facts: At the close of a preceeding trial, the ∆ spat in the face of the π in open court.

3. Procedural Posture: The trial court found for the π (of course), and awarded damages
of $1,000.

4. Issue: May a person recover large punitive damages for an offensive battery where
there is only nominal physical injury?

5. Holding: Yes. Juries "may give vindictive damages where there are circumstances of
malice, wilfulness, wantonness, outrage and indignity attending the wrong complained
of."

6. Reasoning: The court reasoned that to award damages here was in keeping with the
philosophy of providing protection against such malicious acts by giving liberal
damages to make an example of the tortfeasor. Such a clear precedent helps to preserve
the public tranquility because otherwise people would resort to personal violence in
such a case if the damages were insufficient.

7. Notes: 1. The Restatement (Second) §18 defines a battery as requiring a) intent to
cause a harmful or offensive contact, or imminent apprehension of such a contact, and
b) a resulting contact either directly or indirectly. If the act is done without intent, the
actor is not liable even if he has been reckless. In these cases, the insult is to be weighed
more than the injury to because that is the real harm that would induce fighting.
Knowledge of the unpermitted conduct is not required. Thus, "A kisses B while asleep


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but does not waken or harm her. A is subject to liability to B." The protection goes
beyond direct contact with the person. It also covers "anything so closely attached [to
the plaintiff's person] that it is customarily regarded as a part thereof and which is
offensive to a reasonable sense of personal dignity." For example: striking a person's
walking cane, striking the horse that the person is riding, grabbing at a person's dinner
plate. 2. Transferred intent also applies to offensive battery. 3. Some states have statutes
that make a person liable for insults, which in their common use tend to incite violence
and a breach of the peace. These statutes are probably to be construed narrowly,
applying to only those words which might make the particular individual retaliate
because they might be unconstitutional under the First Amendment otherwise.

1. Bird v. Jones, (1845); pg. 1007, briefed 4/17/95

2. Facts: The ∆ obstructed a public highway for the purpose of setting up a spectator
area for a boat race. The π wished to cross the highway through the spectator area, but
was blocked by 2 police officers who had been hired to do crowd control. He was free to
go back the way he came, or any other direction, except for forward on the public
highway.

3. Procedural Posture: The π brought an action for imprisonment.

4. Issue: Is a person liable for imprisonment when he intentionally blocks the right of
way of another on a public highway, but allows the other to go in any other direction
but forward [takes away freedom of movement in one direction only]?

5. Holding: No. Imprisonment is more than the mere loss of power to go whithersoever
one pleases, it includes the notion of restraint within some limits defined by a will or
power exterior to our own.

6. Reasoning: The majority reasoned that the π was not imprisoned because although
the ∆'s police officers may have been wrong in not allowing him to pass, he was free to
go around the obstruction. The majority defined imprisonment as requiring that the π
not be able to leave an area without breaching some sort of prison boundary. To find
imprisonment in the present case would be to turn every obstruction of the exercise of a
right of way into imprisonment.

7. Dissent: The dissent defined imprisonment as any illegal restraint of the person by
use of force. He reasoned that it should not matter that the person could find other
means of travelling. "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?"

8. Notes: 1. In Whittaker v. Sanford, the π was allowed to roam freely on a palatial
yacht, but was not allowed to remain ashore or to leave. She was held to be imprisoned,


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but the court stated that the damages awarded were to high because such confinement
lacked "the elements of humiliation and disgrace that frequently attend false
imprisonment." §36 comment b ot the Restatement states that the area in which the
prisoner is completely confined may be large. However, when it is very large, the area
of confinement becomes simply an exclusion from another area. 2. How much coercion
is needed? It is not false imprisonment to lock an athletic young man in a first-floor
room with an open window, but it would be if he were stripped of his clothes. In Griffin
v. Clark, the π was held to be falsely imprisoned when North, in a burst of agressive
hospitality, stashed her luggage in the trunk of his car, and insisted that she ride with
them on a trip instead of taking the train. In National Bond & Investment Co. v.
Withorn, a person who remained in his car while it was being repossessed was held to
be falsely imprisoned because he was remaining in a lawful area, but could not leave
once the car had been hoisted on the tow truck and taken away. 3. Usually, the ∆ must
have intended to confine the π to be liable (like in battery), there being no liability for
negligently caused imprisonments. However, this situation only works well when the
harm to a person's dignity outweighs his physical damage. When the negligent
imprisonment results in major physical harm, the case is treated as ordinary negligence.
For example, if a person accidentally locks another in a walk-in freezer, and
immediately realizes the mistake, he is not liable for the "momentary confinement".
However, if he does not find out until much later, he would be liable for damages if the
person came down with pneumonia. 4. If a person does not know that he is being
confined (drunk, asleep, or insane), he may be found to be imprisoned [probably for
deterrence purposes], but the damages would be slight because the injury to the
person's dignity would be nominal.

1. Coblyn v. Kennedy's, Inc., (1971); pg. 1012, briefed 4/17/95

2. Facts: Coblyn was an old man who had been shopping for a coat at Kennedy's. After
leaving, he was confronted by an employee of Kennedy's while about a dozen people
looked on. The employee demanded that the old man stop and tell him where he got
the ascot he was wearing, thinking that he had shoplifted it. The old man submitted to
the employee's request to go back into the store to validate the old man's story that it
was his. While on the way back up the stairs, the old man had a heart attack, and had to
be treated by the nurse.

3. Procedural Posture: The trial jury awarded Coblyn $12,500 for false imprisonment.
The ∆ appealed, claiming that no unlawful use of force had been employed, nor had
they restrained the π's movement - he had agreed to accompany the employee back into
the store.

4. Issue: May a person be falsely imprisoned if he is embarassed into submitting to go
with another person against his will?



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5. Holding: Yes. "Any demonstration of physical power which, to all appearances, can
be avoided only by submission, operates as effectually to constitute an imprisonment [].
If a man is restrained of his personal liberty by fear of a personal difficulty, that
amounts to false imprisonment."

6. Reasoning: The court first stated that the embarassment of being publicly accused of
shoplifting was enough to motivate a person to submit against his will to return to the
store, or otherwise the public might think that he was really a shoplifter. There was a
statute that allowed a merchant to detain a suspected shoplifter if there were
"reasonable grounds" to do so, and the merchant used "reasonable" means. The court
found that under this objective test, Kennedy's did not use reasonable means because
the employee grabbed the old man's arm and did not identify himself. Furthermore, the
employee did not have reasonable grounds which it defined as being analogous to
"probable cause".

7. Notes: 2. Generalizing from the shoplifting case, detention or restriction may be
justified by showing that it was reasonably necessary for the protection of person or
property. For example, in Sindle v. N.Y. City Transit Authority, a school bus driver may
have been justified in transporting a busload of riotous junior-high school children on
his bus to the police station, even though not all of them were involved in the
dangerous behavior. 3. Consent is another defense against a charge of false
imprisonment. The problem arises, however, when consent once given is retracted. 4. In
Peterson v. Sorlien, a college age girl had joined a religious cult. Her parents took her
against her will to a "professional deprogrammer" who subjected her to various mental
deprogramming techniques. After a few days, the girl was cooperative. However, she
eventually rejoined the cult and brought an action for false imprisonment against her
parents and the deprogrammers. The majority reasoned that the false imprisonment
action could not lie because she was incapable of rationally refusing the treatment since
her mind was screwed up by the cult, and she eventually assented to the treatment after
a few days, showing that she had "regained" her mental faculties. The dissent argued
that since the daughter was an adult, the parents could not enjoy any immunity from
subjecting her to the humiliation of deprogramming.

1. Wilkinson v. Downton, (1897); pg. 1019, briefed 4/17/95

2. Facts: The ∆, in a practical joke, told the π that her husband lay injured from a car
accident on the side of the road, and that he wanted her to go get him. The effect of the
statement made the π vomit and caused her serious medical problems.

3. Procedural Posture: The trial court awarded the π the cost of the cab fare based on
fraud and deciet, but could not find a cause of action to treat the other damages.

4. Issue: May a person recover for intentional infliction of emotional distress?


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5. Holding: Yes.

6. Reasoning: The court reasoned that although the ∆ may not have intended this
particular injury, it was enough that he intended some injury. Such is the nature of tort
recovery. They felt that the medical damages were not too remote a consequence.

7. Notes: In Nickerson v. Hodges, a woman had been confined to a mental institution.
She had the delusion that she was constantly searching for a buried treasure. Ten
people conspired to leave clues to a iron pot full of dirt and stones. When she found it,
they convinced her to put it in the bank, and then open it in public in front of a crowd of
people. When she realized she had been tricked, she went into hysterics, and died 2
years later. The Supreme Court would have awarded her substantial damages if she
had lived, but only awarded $500 to her heirs.

1. Bouillon v. Laclede Gaslight Co., (1910); pg. 1021, briefed 4/17/95

2. Facts: Bouillon liven in a downstairs apartment over a basement. Iin the basement
was a gas meter. Bouillon was pregnant, and due to medical complications, was
bedridden. An meter reader from Laclede, came to the door and demanded entry
through the apartment to read the meter in the basement. He was very belligerent to the
nurse who answered the door, and the fright and shock of the incident led Bouillon to
have a miscarriage the next day.

3. Procedural Posture: The trial court directed a verdict for the ∆, on the grounds that
the meter readers actions were not an assault against the pregnant woman, because they
were directed at the nurse.

4. Issue: May a person recover for emotional distress damages when the assault was
directed at another, and the person is harmed only by observing the incident?

5. Holding: No.

6. Reasoning: Although the court refused to give a cause of action under transferred
intent, they stated that the action fell under trespass. The meter reader had no authority
to enter the apartment. Thus, he is liable for all injuries that were proximately caused by
his intrusion.

Restatement (Second) of Torts §46 Outrageous Conduct Causing Severe Emotional
Distress.

(1) One who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional distress,


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and if bodily harm to the other results from it, for such bodily harm. [Standard is
"extreme and outrageous" conduct which can be either intentional or reckless. The harm
must be "severe" to recover for emotional distress itself. Even when the conduct is
malicious or even criminal, it is not actionable unless it has gone "beyond all possible
bounds of decency". πs must be expected to be hardened to an ordinary amount of
rough language or insults. However, if the ∆ is aware of the particular sensitivity of the
π, and proceeds anyway, his conduct may be "outrageous".]
(2) Where such conduct is directed at third person, the actor is subject to liability if he
intentionally or recklessly causes severe emotional distress [transferred intent]
       (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, [family members can recover
       even if no physical bodily harm, but they have to be present at the time] or
       (b) to any other person who is present at the time, if such distress results in
       bodily harm. [Other persons need actual bodily harm to recover.]

§48 Special Liability of Public Utility for Insults by Servants
         A common carrier or other public utility is subject to liability to patrons utilizing
its facilities for gross insults which reasonably offend them, inflicted by the utility's
servants while otherwise acting within the scope of their employment. [Respondeat
superior for intentional infliction of emotional distress, but only for "public utilities."]

1. George v. Jordan Marsh Co. (1971); pg. 1025, briefed 4/17/95

2. Facts: George is the mother of a son who has outstanding debts to the Jordan Co.
Jordan repeatedly harrassed George to collect the debts of her son until she had a heart
attack. Thereafter, George's attorney sent a letter to Jordan, requesting that they stop the
harrassment, but they continued and she had a second heart attack.

3. Procedural Posture: The trial court sustained a demurrer to George's action for
emotional distress because it was not "parasitic" to, or based on, some other existing tort
(such as fraud or trespass).

4. Issue: May a person recover for intentional infliction of emotional distress when there
has been no underlying tort that caused the harm?

5. Holding: Yes. "One who, without a privilege to do so, by extreme and outrageous
conduct intentionally causes severe emotional distress to another, with bodily harm
resulting from such distress, is subject to liability for such emotional distress and bodily
harm even though he has committed no heretofore recognized common law tort."

6. Reasoning: The court followed the Restatement (Second) §46, which led to the
development of a new rule in the law - that intentional infliction of emotional distress
could stand alone as its own tort. They refuted the argument that this would cause a


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flood of unjust claims, because that is a risk involved even with emotional distress as a
"parasitic" claim, and that judges and juries are competent to decide whether there is
any emotional distress present, and how much. The old rule as announced in Spade,
was that there could be no recovery for emotional distress where there was not a
physical injury. However, this only applied to negligence cases, not intentional cases.

7. Notes: 1. A cause of action for intentional infliction of emotional distress for
threatening language can exist even if the threats are made in such circumstances that
they do not constitute to a technical assault. Also, a loss of consortium cause of action
can arise for the spouse, in the same way that it could for an intentional battery. It is an
intentional invasion of the marriage relationship. 2. An insurance company was held
liable for intentional infliction of severe emotional distress when they, in bad faith,
refused to pay a widow the accidental death claim on her husband. The court found
that the insurance company used economic coercion to try to force the widow to settle,
and so she was subjected to the emotional distress of not being able to care for her
children and accept charity from relatives. 3. A doctor was held liable for the intentional
infliction of emotional distress when he made accident victims wait outside in the
freezing rain after only cursory examination. The court stated that the Restatement test
of "outrageous" was open to too much interpretation, so he stated that "outrageous to
the extreme" should be the test. [There was not a malpractice or breach of contract
action probably because the burden of proof to show negligence in the performance of
the examination would be difficult to overcome.] 4. Although racial insults may be a
form of intentional infliction of emotional distress, the π has to get by the 1st
amendment right to free speech, as well as show some actual mental or emotional
injury.

1. Hustler Magazine v. Falwell, (1988); pg. 1033, briefed 4/19/95

2. Facts: Hustler magazine ran a parody of a liquor ad that featured Jerry Falwell as the
"celebrity" who was portrayed to be confessing that he was an incestuous drunkard.

3. Procedural Posture: Falwell sued for intentional infliction of emotional distress, and
the jury awarded him $150,000.

4. Issue: May a public figure recover damages for emotional harm caused by the
publication of an ad parody offensive to him?

5. Holding: Public figures may not recover for intentional infliction of emotional
distress by reason of publications without showing that in addition to the publication
containing false statements of fact, that it was made with actual malice or disregard as
to whether or not it was true.




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6. Reasoning: The court stated that political cartoons were protected by the first
amendment. Although they conceded that this ad was not really a political cartoon,
they were unable to find a standard that could separate this kind of ad from the others.
They stated that although Falwell may have suffered emotional injury, the First
Amendment was of greater importance here because he was a public figure. Otherwise,
any public figure could take a political cartoonist to court if his feelings were hurt.
Furthermore, they stated that the "outrageousness" standard was inherently subjective
when used in the area of social and politcal events.

1. Dillon v. Legg, (1968); pg. 1042, briefed 4/19/95

2. Facts: π was the mother of a child who was killed when the ∆ negligently hit her with
his car. The mother was standing far enough away that she was in no personal danger
of being hit by the car. π sued for damages from emotional distress from watching her
child be killed by ∆'s negligence.

3. Procedural Posture: The trial court found that the mother was not in the "zone of
danger", and so was not entitled to recover because she did not fear for her own safety.
The mother appealed.

4. Issue: May a mother recover for negligent infliction of emotional distress for
observing the negligently caused death of her child?

5. Holding: In determining whether the ∆ owes a duty of care to the π, the court should
consider the following: 1) the proximity of the π to the accident, 2) whether the π
directly witnessed the accident, and 3) whether the π was closely related to the victim.

6. Reasoning: The court refused to limit the ∆'s liability for emotional damages only to
those within the artificially constructed "zone of danger" for the same reason that they
did not require actual impact. They stated that although opening the ∆'s liability further
would lead to fraudulent claims, that is a part of every tort case. They reasoned that
foreseeability was the test of due care. The ∆ is more likely to foresee the risk of injury
to bystanders when they are closely related witnesses who are near to the victim at the
time of the injury.

7. Notes: 1. In Tobin v. Grossman, the NY court denied recovery to a mother who had
not actually seen the child being hit by the car, but heard the screeching tires and
arrived only moments later. They argued that if the mother was allowed to recover,
then why not other relatives or caretakers, and they were not willing to expand liability
so far. 2. In Elden v. Sheldon, the CA court took a step back from Dillon, and refused to
allow an unmarried cohabitant to recover damages for negligent infliction of emotional
distress, stating that Dillon restricted recovery to married couples. Furthermore, in
Thing v. La Chusa, the court restated the Dillon test more narrowly: 1) the π must be


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closely related to the victim, 2) actually present at the accident scene and aware that it is
causing injury to the victim, and 3) as a result suffers emotional distress beyond that
which would be expected in a disinterested witness. 4. In Ownes v. Liverpool, the π
suffered emotional distress when the ∆ crashed into a funeral hearse carrying the body
of the π's relative. The ∆ argued that he should not be liable because the π was
extrasensitive. The court stated that emotional harms should be treated no differently
than physical ones; a ∆ takes his victim as he finds him. However, in Bourhill v. Young,
the opposite result was reached when a woman gave birth to a stillborn child after
witnessing a motorcycle accident down the street. The court held that there was no duty
because the extra-sensitivity of the π was not foreseeable. 5. In Payton v. Abbott Labs,
the π was a DES daughter who claimed negligent infliction of emotional distress based
on the fear that she might some day contract a DES related illness. However, she had
not yet suffered any harm to date. The court rejected the suit, stating that in order to
recover for negligent infliction of emotional distress, there must be some physical harm
suffered already [actual harm], and that the ∆ should have known that the act would
cause emotional distress to a reasonable person [no extra-sensitive π recovery].

1. Molien v. Kaiser Foundation Hospitals, (1980); pg. 1055, briefed 4/19/95

2. Facts: The ∆ doctor nelgigently diagnosed the π's wife as having syphillis. This
caused the marriage to break up.

3. Procedural Posture: The trial court sustained the ∆'s demurrer on the ground that the
π could not recover for negligent infliction of emotional distress without any physical
injury.

4. Issue: May a person recover for negligent infliction of serious emotional distress
without having any manifestation of physical injury?

5. Holding: Yes.

6. Reasoning: The court reasoned that emotional harms were no less deserving of
redress than physical harms. Thus, it was artificial to require physical injury to recover.
Such a practice encouraged extravagant pleading and distorted testimony as people
exaggerated physical injuries just to get the larger mental injury award. Thus, the
floodgates were already open. Instead, the court held that the standard of foreseeability
of the harm should apply to these cases just as in other torts. It was easily foreseeable to
the doctor that a nelgigent diagnosis of syphillis would result in distrust, causing the
marriage to break up.

7. Notes: 2. In Johnson v. State, the hospital sent the wrong body to a funeral, which
caused the deceased's daughter to have emotional injuries. The court distinguished this
case from the bystander cases that did not allow recovery by stating that the π was the


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direct victim of the harm. The hospital owed the π a duty to send the correct body, and
breached that duty.

1. Lumley v. Gye, (1853); pg. 1304, briefed 4/24/95

2. Facts: Lumley owns a theater where he hired Ms. Wagner to sing in his opera. Gye, a
competitor, persuaded Wagner to sing at his own opera house. Even after the contract
court issued a negative injunction for her not to sing at Gye's opera house, he still
persuaded her not to sing for Lumley.

3. Procedural Posture: Lumley brought an action for malicious inducement to breach a
contract. The lower court sustained the ∆'s demurrer on the grounds that "as a general
proposition of law, that no action will lie for procuring a person to break a contract,
although such procuring is with a malicious intention and causes great and immediate
injury."

4. Issue: May a contracting party sue a person who is not privy to the contract for
malicious inducement breach?

5. Holding: Yes. "A person who wrongfully and maliciously, or...with notice, interrupts
the relation subsisting between master and servant...commits a wrongful act for which
he is responsible at law."

6. Reasoning: The majority [Crompton] reasoned that the action for recovery of contract
damages was separate and unique from the action in tort. In cases where there is a
malicious intent to induce a party to breach, it must be assumed that that act is the
proximate cause of the breach. However, this was limited to malicious acts or those
"with notice", meaning that the ∆ knew of the contract.

7. Dissent: The dissent [Coleridge] was worried that this would open up the floodgates
for many actions for every contractual breach. The dissent felt that the inducement
could not be properly linked to the breach since the persuader was not privy to the
contract. Furthermore, he doubted that the court could reslove the grey area between
malicious conduct, and that which was simple business competition.

8. Notes: 1. The tort has expanded to be applicable to all types of contractual
arrangements where the persuasion is malicious. "Mere persuasion" is not actionable,
and the "notice" requirement of Lumley v. Gye must be read in that light. In Bowen v.
Hall, "malice" was defined as any persuasion which was used "for the indirect purpose
of injuring the plaintiff or of benefitting the defendant at the expense of the plaintiff." 2.
The tort action may be available in a contract even if it is terminable at will by either
party, as long as there was a breach. However, it does not apply where the party is not
in breach, such as leaving the job for higher wages elsewhere. 3. The Restatement §766


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provides that "one who intentionally and improperly interferes with the performance of
a contract" is subject to tortious liability such that "the actor must have knowledge of the
contract with which he is interfering." Thus, the actor is not liable for a good faith
inducement to breach when he does not know of the other contract. 5. Providing a tort
remedy for inducement of breach complicates the contract action because it provides a
disincentive to breach, even when it may be more efficient to do so.

1. Tarleton v. M'Gawley, (1793); pg. 1313, briefed 4/24/95

2. Facts: The π owned a ship that was off the coast of Africa making preparations for
trade. As a canoe with local natives approached to enter into a trade with the π, the ∆
fired a cannon at the canoe, killing one of the natives. This scared the others away, and
resulted int the π being diminished in the amount of trade he could do. However, the π
did not have permission to engage in any trade with the natives until he had paid a
duty to the local king, which he had not done.

3. Procedural Posture: The π brought an action on the case for interference with
prospective trade.

4. Issue: May a person recover for the malicious act of another to interfere with his
ability to do business?

5. Holding: Yes.

6. Reasoning: The court reasoned that the fact that the duty had not been paid may
have been a breach of the other country's laws, but not those of the U.S. Trade in itself
was a lawful act. Since the interference was not accidental, but rather the ∆ had the
intention not to permit any trade, to prevent the natives from trading with anyone else
before they paid him a debt, an action could lie.

7. Notes: The protection afforded in Tarleton is both narrower and broader than that of
Lumley. It is narrower in that prospective advantage is protected only against
interference by means that are unlawful in themselves. But it is broader in that it
extends beyond where a contract exists. In Keeble v. Hickeringil, the ∆ was liable for
frightening away ducks from the π's pond with a shotgun, but would not have been
liable if he had lured them away with his own decoy. In Evenson v. Spalding, the ∆ was
liable for harrassing the competition's salesmen and customers when they tried to make
a public sale of buggies on the roadside.

1. People Express Airlines, Inc. v. Consolidated Rail Corp., (1985); pg. 1316, briefed
4/24/95




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2. Facts: The People Express Airline was forced to evacuate their terminal when a toxic
gas fire was negligently started at the Consolidated Rail yard. There were no physical
injuries, but the airline lost business.

3. Procedural Posture: The lower court found that People's Express was entitled to
recover for wholly economic damages.

4. Issue: May a party recover for damages for negligence that are purely economical
without proving a physical injury?

5. Holding: Yes. A defendant owes a duty of care to take reasonable measures to avoid
the risk of causing economic damages, aside from physical injury, to particular
plaintiffs comprising an identifiable class with respect to whom defendant knows or has
reason to know are likely to suffer such damages from its conduct. [Standard of
foreseeability for purely economic damages.]

6. Reasoning: The court rejected the many arguments allowing purely economic
damages. There were already several exceptions to the general rule (special
relationship, etc.). The court reasoned that creating a right of action for purely economic
damages would not open the floodgates for a rush of unfounded claims. Even if a duty
were shown, the π would still have to prove causation and damages. Also, there would
not be unlimited liability because the π would have to be part of an identifiable class of
foreseeable victims.

7. Notes: The courts were traditionally reluctant to give purely economic damages for
negligence where the victim was not in privity with the tortfeasor. They were afraid
that the chain of injury would go on forever (I injure you, your customers come after
me, their customers come after me, etc.). Holmes stated the proposition in Robins Dry
Dock & Repair Co. v. Flint, that "a tort to the person or property of one man does not
make the tortfeasor liable to another merely because the injured person was under a
contract with that other, unknown to the doer of the wrong. The law does not spread its
protection so far." 2. An argument against allowing purely economic losses to be
recoverable is that whatever business is lost by the plaintiff is picked up by some rival
firm, resulting in no net loss to society. However, this argument overlooks the fact that
there are increased costs in going to the competitor.

1. Mogul Steamship Co. v. McGregor, Gow, & Co., (1889); pg. 1327, briefed 4/24/95

2. Facts: McGregor and Co. formed an alliance of tea trading companies who banded
together to undercut the market price for tea, and drive Mogul and their other
competitors out of business. Although the trade practices were intended to drive Mogul
out of business, they were not motivated by any personal malice.



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3. Procedural Posture: Mogul brought an action for unfair competition.

4. Issue: May a trader recover damages against a group of competitors who band
together to drive him out of business with the purpose of establishing market
dominance for increased profits in the future?

5. Holding: No. "Competition, however severe...if unattended by circumstances of
dishonesty, intimidation, molestation, or such illegalities...gives rise to no cause of
action."

6. Reasoning: The court reasoned that the self-interest of promoting one's own business
was not unlawful. Neither was banding together to dominate the market. The
competition in this case was not fraudulent. Although it was designed necessarily to
damage the π's business, it was not illegal.

7. Notes: 1. The majority in Mogul did not concentrate on the social losses that result
from the creation of a monopoly by predatory pricing. However, there is doubt that
predatory pricing alone, in the absence of capital merger and acquisition, could lead to
a monopoly. 2. In Allen v. Flood, an employee's union was held not to be liable for
pressuring a company to fire a large portion of its employees. "An act lawful in itself is
not converted by a malicious or bad motive into an unlawful act so as to make the doer
of the act liable to a civil action." However, in Quinn v. Leatham, a union was held
liable for pressuring the customer of the π not to purchase goods from the π or his
workers would strike. In justification of the holding, the court remarked "the purpose of
the defendant was to injure the plaintiff in his trade as distinguished from the intention
of legitimately advancing their own interests." However, it is arguably within a union's
best interest to secure work for its own members. 3. In Tuttle v. Buck, the ∆ was found
liable when he set up two barbers, rent free, to compete against the π and drive him out
of business. The court stated that if the actor uses his power and capital maliciously for
the sole purpose of driving another out of business, regardless of the cost to himself,
that is an actionable tort.

1. International News Service v. Associated Press, (1918); pg. 1335, briefed 4/24/95

2. Facts: INS and AP were in direct competition for the acquisition and distribution of
news for sale to newspapers across the country. The INS used AP news bulletins
released on the east coast to telegraph and telephone the news stories in to the west
coast for sale to newspapers in direct competition with the AP.

3. Procedural Posture: AP brought an action for unfair competition.

4. Issue: May a news agency recover damages for unfair competition when a competing
news agency pirates their news and sells it to their own customers?


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5. Holding: Yes. Where tow commercial parties are in direct competition with each
other, each party is under a duty so to conduct its own business as not unnecessarily or
unfairly to injure that of the other.

6. Reasoning: The court reasoned that although AP did not have a right of property in
the news against the general public, they did have a remaining property interest against
anyone in direct competition. By pirating the AP's news, the INS is appropriating the
effort and labor that the AP put into the news. "Stripped of all its disguises, the process
amounts to an unauthorized interference with the normal operation of [AP's] legitimate
business precisely at the point where the profit is to be reaped, in order to divert" the
profit to the INS without the INS taking any of the risks of gathering the news. "It
substitutes misappropriation in the place of misrepresentation, and sells the
complainant's goods as its own."

7. Notes: The rule in INS has been applied in other cases where there is direct
competition, such as recording a concert off the radio and selling it for profit. However,
it has not been applied where the use of the information was not for reasons of direct
competition, but rather was used by companies that make a profit off of the existence of
another [lottery based on NFL, computer that calculates U.S.G.A. golf handicap].

1. Ely-Norris Safe Co. v. Mosler Safe Co., (1925); pg. 1346, briefed 4/24/95

2. Facts: Ely-Norris has a patent on safes that have an explosion chamber to protect
against burglary. Mosler sells safes which it represents as having an explosion chamber,
when in fact they do not.

3. Procedural Posture: Ely-Norris appeals from a decree of dismissal on its suit for
damages for unfair competition.

4. Issue: May a manufacturer who has a monopoly on a certain product recover
damages for unfair competition if a competitor represents his own product as being that
of the original?

5. Holding: Yes.

6. Reasoning: [Hand] If the π could show that he lost customers due to the ∆'s deceit
and fraud, then the ∆ would be liable. A competitor can use any lawful means to
promote his business, but he can not use fraud.

1. Mosler Safe Co. v. Ely-Norris, (1926); pg. 1349, briefed 4/24/95

2. Facts: Same as above.


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3. Procedural Posture: On certiori to the Supreme Court from the lower court of appeal.

4. Issue: May a manufacturer who does not have a monopoly on a certain product, and
therefore can not demonstrate losses, recover damages for unfair competition if a
competitor represents his own product as being that of the original?

5. Holding: No.

6. Reasoning: [Holmes] reasoned that Ely did not have a monopoly on explosion
chambered safes. It only had a patent on one kind. Thus, Ely could not show that a
customer that bought a false safe from Mosler would have bought from them (instead
of one of their competitors) if they had known of the fraud.




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