CASE BRIEFS - Torts Fall - Hfixhfix.com by zhouwenjuan

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									8/24/05

**INTENT: A state of mind about the consequences of an act having in mind the
purpose or desire to bring about those consequences, in the absence of purpose or desire,
having the knowledge or belief to a substantial certainty that those consequences will
result.

**RECKELSSNESS: The actor’s conduct is in reckless disregard of the safety of
another, if he does an act or intentionally fails to do an act which it is his duty to the other
to do knowing or having reason to know of facts which would lead a reasonable man to
realize not only that his conduct creates an unreasonable risk of physical harm to another
but also that such risk is substantially greater than that which is necessary to make his
conduct negligent. Wanton or willful conduct.

Brown v. Kendall
Supreme Judicial Court of Mass. (1850)

Facts: Plaintiff and defendant each owned a dog, both of which were fighting with each
other, the defendant tried to stop the fighting by beating the dogs with a stick. As the
defendant lifted the stick and backed toward plaintiff, he hit the plaintiff in the eye and
injured him.

Issue: This is a case of trespass for assault and battery, where question arises as to
whether the defendant is responsible for the damage caused by an
unconscious/unintentional act.

Rule: The plaintiff must show either that the intention was unlawful, or that the
defendant was in fault, for if the injury was unavoidable, and the conduct of the
defendant was free from blame, he will not be liable.
-Ordinary care is defined by the court as kind and degree of care, which prudent and
cautious men would use, such as is required by the exigency of the case, and such as is
necessary to guard against probable danger.

Reasoning: If both plaintiff and defendant at the time of the blow were using ordinary
care, or if at that time the defendant was using ordinary care, and the plaintiff was not, or
if at that time, both the plaintiff and defendant were not using ordinary care, then the
plaintiff could not recover. The act of splitting the dogs, one of which was the
defendant’s, and for the injurious acts, was a lawful and proper act, which he might do by
proper and safe means. If then in doing the act he took proper care and necessary
measures to avoid hurt to others, and accidentally hit the plaintiff in his eye, and
wounded him, this was the result of a pure accident, and therefore action would not lie.

Holding: Facts essential to plaintiff’s recovery, plaintiff takes the burden of proving.
New trial ordered. New trial ordered because improper instructions were given to the
jury as to how they should reach their decision of guilt or innocence.
9/3/05

Intentional Infliction of Mental Distress:

Slocum v. Food Fair Stores of Florida
Supreme Court of Florida, 1958

Facts: Plaintiff inquired to store employee about the price of an item, to which he
replied, “If you want to know the price, you’ll have to find out the best way you can ***
you stink to me.” Plaintiff is seeking damages for mental suffering or emotional distress
and an ensuing heart attack and aggravation of preexisting hear disease.

P.H.: Case is being appealed by plaintiff after an order dismissed a complaint for failure
to state a cause of action.

Issue: Whether the use of insulting language, on the part of the employee to the
customer, constituted an actionable invasion of a right, where such an assertion of a
deliberate disturbance of emotional equanimity justifies an independent cause of action in
tort?

Rule: Restatement of Torts: Conduct intended to cause emotional distress only…one
who without a privilege to do so, intentionally causes severe emotional distress to
another, (requisite intent is required) when the act is done for the purpose of causing the
distress or with knowledge***that severe emotional distress is substantially certain to be
produced by such conduct.

Reasoning: There is a distinction between conduct causing emotional distress and severe
emotional distress.

The rule which seems to be emerging is that there is liability only for conduct exceeding
all bounds which could be tolerated by society, of a nature especially calculated to cause
mental damage of a very serious kind.

There is no need to include instances of mere vulgarity, intended as meaningless abusive
expressions.

Holding: Affirmed—The facts in the case can not be brought under the reasonable
judgment of the before mentioned rules. The words of the employee were not severe
enough to cause emotional stress or heart attack.

-Conduct on part of defendant must be outrageous.

Harris v. Jones
Court of Appeals of Maryland, 1977
Facts: Harris was employed by GM and worked for Jones at a production plant. Harris
had stuttered throughout his entire life and Jones would repeatedly scrutinized and mock
Harris for his impediment. Harris filed suit for intentionally inflicting emotional distress,
by malicious and cruel ridicule of Harris. Harris contended that the ridiculing made him
extremely nervous. He was under the care of a physician to help him deal with the issue.

P.H.: Trial Court finds for Harris and jury awards $3500 compensatory damages and
$15000 in punitive damages against both Jones and GM. The Court of Special Appeals
reversed this decision, because no causal conduct between emotional distress and
suffering.

Issue: Whether a reasonable person would find defendant’s ridicule extreme and
outrageous, so intense as to cause severe emotional distress, required to recover for the
tort of intentional infliction of emotional distress?

Rule: Restatement (Second) of Torts: One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to another is subject to
liability for such emotional distress, and if bodily harm to the other results from it, for
such bodily harm.

There is liability for conduct exceeding all bounds usually tolerated by decent society of a
nature which causes mental distress of a very serious kind.

Four elements: 1. The conduct must be intentional or reckless 2. the conduct must be
extreme and outrageous 3. there must be a causal connection between the wrongful
conduct and the emotional distress 4. the emotional distress must be severe.

Reasoning: The emotional stress must be severe was not established by legally
significant evidence justifying submission of the case to the jury. There must be a
severely disabling response to defendant’s words or actions. Harris’s condition worsened
because of the ridicule from Jones was not proved, his condition may have worsened but
his family problems were not proved to be as a result of Jones’ words.

Holding: Affirmed—the emotional distress was not severe by a legal standard and
therefore does not justify recovery for the tort of intentional infliction of emotional
distress.

Taylor v. Vallelunga
District Court of Appeals of California, 1959.

Facts: Plaintiffs father was beaten causing him bodily injury by defendants. Plaintiff is
seeking damages for the emotional distress she suffered as a result of witnessing the
beating.
P.H.: The action was demurred by defendants, which was sustained. Appellant failed to
amend within 10 days and dismissal was entered on the plaintiff’s case. The appeal here
is from the judgment of dismissal.

Issue: Whether the action should have been dismissed when plaintiff contends that
defendant intentionally inflicted emotional distress on her?

Rule: Siliznoff Case—A cause of action is established when it is shown that one, in the
absence of any privilege, intentionally subjects another to the mental suffering incident to
serious threats to his physical well-being, whether or not the threats are made under such
circumstances as to constitute a technical assault.

Restatement (Second) of Torts: One who, without a privilege to do so, intentionally
causes severe emotional distress to another is liable (a) for such emotional distress and
(b) for bodily harm resulting from it…An intention to cause emotional distress exists
when the act is done for the purpose of causing the distress or with knowledge on the part
of the actor that severe emotional distress is substantially certain to be produced by his
conduct.

Reasoning: There is no allegation that defendants knew that plaintiff was present and
witnessed the beating that was administered to her father. Not is there allegation that the
beating was administered for the purpose of causing her to suffer emotional distress, or,
in the alternative, that defendants knew that severe emotional distress was substantially
certain to be produced.

Holding: Judgment affirmed—see above

Trespass to Land:

Dougherty v. Stepp
Supreme Court of North Carolina, 1835.

Facts: Plaintiff claims defendant trespassed on his land under quare clausum fregit. Only
proof is that defendant appeared on land with surveyor and chain carriers, and surveyed a
part of it claiming it his own. But he did not cut or remove and trees or bushes.

P.H.: Trial Court finds for defendant where judge finds this is not a trespass and
instructed jury.

Issue: Whether defendant’s presence on the land gives rise to an action for trespass,
where jury instructed that it does not?

Rule: It is an elementary principle that every unauthorized, and therefore unlawful entry,
into the close of another, is a trespass.
Reasoning: The law can infer a damage from every such entry whether it is as simple as
in this case treading down the shrubbery.

Holding: Reversed and new trial ordered-any unauthorized entry to another’s property is
a trespass.

-The interest protected in trespass to land is the right to exclusive protection of land.

-Possession: A person who is in possession of land—a.

Bradley v. American Smelting and Refining Co.
Supreme Court of Washington, 1985.

Facts: Plaintiff, landowners, sued for damages in trespass and nuisance from the deposit
on their property of microscopic, airborne particles of heavy metals which came from the
ASARCO. Plaintiff’s property is located 4 miles north of plant, while smelter has
operated in present location since 1890.

P.H.: Parties filed cross motions for summary judgment at the trial court. This action
comes from certification from the U.S. District Court of the Western District of
Washington.

Issue: Whether plaintiff has suffered actual and substantive damages to constitute an
action for trespass against a smelting company, who’s byproducts of microscopic
particles are entering plaintiff’s property?

Rule: Martin: gaseous and particulate fluorides from an aluminum smelter constituted a
trespass for purposes of the statute of limitations: Liability on the theory of trespass has
been recognized where the harm was produced by the vibration of the soil or by the
concussion of the air which, of course, is nothing more than the movement of molecules
one against the other.

[Martin] Trespass and private nuisance are separate fields of tort likeability relating to
actionable interference with the possession of land. They may be distinguished by
comparing the interest invaded: and actionable invasion of a possessor’s interest in the
exclusive possession of land is a trespass; and actionable invasion of a possessor’s
interest in the use and enjoyment of his land is a nuisance.

**When the elements of both trespass and nuisance are present then the party may
proceed under both actions.

Borland: Whether a trespass or nuisance occurs does not depend on whether the
intruding interest is tangible or intangible. If the intrusion interferes with the right to
exclusive possession then it is trespass. If the intrusion is to the use and enjoyment of the
property, the law of nuisance applies.
Reasoning: When airborne particles are transitory or quickly dissipate, they do not
interfere with a property owners possessory rights, and therefore are nuisances. When
the particles accumulate on the land and do not go away, an action for trespass can ensue.

It would be inappropriate to allow on the recover nominal or punitive damages with the
case at hand. No useful purpose would be served by allowing any landowner within 100
miles of a manufacturing plant to take action for trespass. It would cause harassment of
manufacturers and costs would increase.

Holding: The plaintiff’s failed to establish actual and substantive damages caused by
smelting company’s byproducts, and therefore their action for trespass does not lay. The
trial judge granted ASARCO’s motion for summary judgment. This court found for
defendant.
-This is a policy issue: where the court is saying that with airborne molecules such as
this, if they allowed trespass it would lead to too much litigation on the subject and cause
an escalation of cost to the detriment of many.

Herrin v. Sutherland
Supreme Court of Montana, 1925.

Facts: Defendant while hunting ducks, and while standing on the land’s of another,
repeatedly shot at water fowl in flight over plaintiff’s land…to plaintiff’s damage in the
sum of $10.

P.H.: Defendant demurred, which was overruled. Defendant then declined to answer and
default judgment was entered against him. Only nominal damages were sought by
plaintiff and judgment was entered for plaintiff in the amount of $1. Defendant appeals
from this judgment.

Issue: Whether plaintiff has a cause of action for the disturbance of the area above his
property, by another firing a gun, on another’s land?

Rule: Land in its legal significance has an indefinite extent, upwards as well as
downwards; whoever owns the land possesses all the space upwards to an indefinite
extent; such is the maxim of the law.

Reasoning: The airspace near the ground is almost as inviolable as the soil itself. It
would be strange if one could only object to shots being fired of the land if injury
resulted.

Holding: Judgment affirmed, the plaintiff did state a cause of action for nominal
damages because the defendant caused a disturbance to the land of the plaintiff, where
the air space above the ground is considered part of one’s property.

Rogers v. Board of Road Com’rs for Kent County
Supreme Court of Michigan, 1947
Facts: Plaintiff had an agreement with defendant to allow snow fences to be put up on
the plaintiff’s property during the snow season. At the end of the third snow season
defendant failed to remove an anchor post, and plaintiff’s husband driving his mowing
machine was thrown to the ground and suffered injuries causing death as a result of
mowing machine striking the anchor post. Plaintiff brought action to recover for
husband’s death under negligence and trespass.

P.H.: Defendant filed a motion to dismiss based on the proceeding and governmental
immunity. Lower court granted motion and dismissed the cause, because there was no
trespass it was strictly an action for negligence and governmental immunity did apply.
Plaintiff appealed.

Issue: Whether defendant’s failure to remove the said anchor post at agreed upon time,
constituted a trespass and became a proximate cause for husband’s death? (proximate
cause—A cause that is legally sufficient to result in liability—a cause that directly
produces an event and without which the event would never have occurred.

Rule: SS160: A trespass, actionable under the rule state in ss158, may be committed by
the continued presence on the land of a structure, chattel or other thing which the actor or
his predecessor in legal interest therein has placed thereon: a. with the consent of the
person then in possession of the land, if the actor fails to remove it after the consent has
been effectively terminated, or b. pursuant to a privilege conferred on the actor
irrespective of the possessor’s consent, if the actor fails to remove it after the privilege
has been terminated, by the accomplishment of it purpose of otherwise.

Reasoning: Failure to remove the anchor at agreed upon time constituted a continuing
trespass on plaintiff’s land.

Holding: Reversed and Remanded for further proceedings.

*Nuisance protects an interest to one’s peace and enjoyment.
*Trespass to land protects one’s interest to exclusive possession to property. This tort
also protects the possessor of the land.

-Damages to trespass to land—ss162 Restatement (Second):

7. Trespass to Chattels

Glidden v. Szybiak
Supreme Court of New Hampshire, 1949.

Facts: Plaintiff, fours years old, went to store to buy some candy. On the porch of the
store was a dog owned by defendant. Plaintiff began to play with the dog and climbed on
its back and pulled its ears. To which dog bit plaintiff on the nose resulting in injuries
trying to be recovered for.
P.H.: Lower court finds for the plaintiff. Defendants excepted for summary judgment
and when court stated that plaintiff was too young to commit contributory negligence and
therefore too young to commit any tort especially trespass.

Issue: Whether plaintiff was engaged in trespass at the time the dog bit her, if so baring
her action for recovery?

Rule: Any person to whom or to whose property damage mat be occasioned by a dog not
owned or kept by him shall be entitled to recover such damage of the person who owns or
keeps the dog, or has it in possession, unless the damage was occasioned to him while he
was engaged in the commission of a trespass or other tort.

Trespass to Chattels—One, who without consent or other privilege intermeddles (to
interfere in the affairs of another, by touching it or harming it) with a chattel of another,
is liable for trespass of chattel if: a. the chattel is impaired as to its condition, quality or
value, or b. the possessor is deprived of the use of the chattel for a substantial time, or c.
bodily harm is thereby caused to the possessor or harm is caused to some person or thing
in which the possessor has legally protected interest.

Reasoning: There was no claim that the dog was injured by the plaintiff.

Holding: Because of no harm she cannot be held liable for trespass on the dog and will
be able to recover under statute. Judgment on the verdict against the defendant.

-This protects one’s interest in chattels.
-Unlike trespass to land, the majority view is that you have to prove actual damages in
order to bring suit in trespass to chattels.

CompuServe Inc. v. Cyber Promotions, Inc.
United States District Court, Southern District of Ohio, 1997.

Facts: Defendant is in the business of sending unsolicited e-mail advertisements on
behalf of themselves and their customers to hundreds of thousands of internet users.
Plaintiff, CompuServe has notified defendant that they are prohibited from using its
computer equipment to process and store the unsolicited e-mail and has requested that
they terminate the practice. Instead, defendants have sent an increasing volume of e-mail
solicitations to CompuServe customers.

P.H.: This matter is before the court for CompuServe to obtain a preliminary injunction
which would extend the duration of the temporary restraining order issued by this court
and would in addition prevent defendants from sending unsolicited advertisements to
CompuServe customers.

Issue: Whether defendants action of sending unsolicited e-mails to CompuServe
customers constitutes trespass to chattels?
Rule: Trespass to Chattels: there may be recovery for interferences with the possession
of chattels which are not sufficiently important to be classed as conversion and so to
compel the defendant to pay the full value of the thing with which he has interfered. The
unauthorized use of personal property.

Trespass to chattel may be committed by intentionally using or intermeddling with the
chattel in possession of another. Physical intermeddling is; intentionally bringing about a
physical contact with the chattel.

One is subject to liability if, and only if, a. he dispossesses the other of the chattel or b.
the chattel is impaired as to its condition, quality, or value, or c. the possessor is deprived
of the use of the chattel for a substantial time, or d. bodily harm is caused to the
possessor, or harm is caused to some person or things in which the possessor has a legally
protected interest.

Reasoning: CompuServe realizes the value of its equipment based on how well it serves
its clients, therefore the value is diminished even if the equipment is not physically
damaged by the defendant.

Defendant’s actions into CompuServe’s equipment harm plaintiff’s business reputation
and goodwill with its customers, therefore there exists an action against defendant.

CompuServe has the right to restrict others from entering its internet domain, and
defendant is trespassing to chattels of CompuServe by sending the e-mails.

Holding: Motion for a preliminary injunction is granted. It is ordered that during this
proceeding defendant is bared from sending any e-mails to CompuServe clients over its
equipment.

-Mandatory Injunction: Forcing of an act—requires one to do something
-Prohibitory Injunction: Stopping of an act—prohibits one from doing something

-Can something intangible break the close? For example, light.

-Possession: One who has physical control over something to exclude others from having
control over the object.


Pearson v. Dodd
United States Court of Appeals, D.C., 1969.

Facts: On several occasions two former employees of Sen. Dodd, did with the help of
two others, enter the office of the Senator and copy personal documents from his files.
The defendants then published articles containing information gleaned from those
documents.
P.H.: The district court ruled that appellants receipt and subsequent use of the documents
established liability for conversion. This court concludes that based on facts they are not
guilty of conversion.

Issue: Whether conversion of the files of the Senator had occurred, and whether files
copied was subject to suit for conversion?

Rule: Conversion is an intentional exercise of dominion or control over a chattel which
so seriously interferes with the right of another to control it that the actor may justly be
required to pay the other the full value of the chattel.

Reasoning: Liability to trespass to chattels exists only on showing of actual damage to
the property interfered with.

Appellee was not deprived of his use of them because they were taken and copied at night
when he was unaware.

The files here were not of unique nature in that they were not ideas formulated with labor
and inventive genius. From the record none of the copies amounted to literary property,
scientific invention, or secret plans.

Holding: No conversion of the physical contents took place and because the files did not
constitute property subject to protection under conversion the lower court’s decision must
be reversed.

-The most distinctive feature of conversion is its measure of damages which is the value
of the goods converted.
-Where ideas are formulated with labor and inventive genius, as in the case of literary
works or scientific researches, they are protected. Where they constitute instruments of
fair and effective commercial competition, those who develop them may gather their
fruits under the protection of the law.
-Only things which can be lost and found can be converted (also intangibles such as stock
can be converted). Conversion is the sibling of trespass to chattels, therefore conversion
deals with chattels and not real estate.
-Where the intermeddling falls short of the complete or very substantial deprivation of
possessory rights in the property, the tort committed is not conversion, but the lesser
wrong of trespass to chattels.
-**Dominion: sovereignty; absolute control; supreme authority

Restatement

What constitutes conversion:
   Conversion is an intentional exercise of dominion or control over a chattel which
      so seriously interferes with the right of another to control it that the actor may
      justly be required to pay the other the full value of the chattel.
      In determining the seriousness of the interference and the justice of requiring the
       actor to pay the full value the following factors are important:
           o The extent and duration of the actor’s exercise of dominion or control
           o The actor’s intent to assert a right in fact inconsistent with the other’s right
               of control
           o The actor’s good faith
           o The extent and duration of the resulting interference with the other’s right
               of control
           o The harm done to the chattel
           o The inconvenience and expense caused to the other

       The ways in which an actor may convert a chattel—i.e. intentionally exercise
       dominion and control over it that so seriously interferes with the owner’s right to
       control it that it is just to require the actor to pay its full value—include the
       following:
            Acquiring possession of it—e.g. stealing the chattel
            Damaging or altering it—intentionally running over an animal and killing
               it.
            Using it—a bailee seriously violates the terms of the bailment
            Receiving it—obtaining possession after a purchase from a thief
            Disposing of it—a bailee wrongfully sells the chattel
            Misdelivering it—delivery to wrong person by mistake so that the chattel
               is lost
            Refusing to surrender it—bailee refuses to return the chattel.

Kimberlin v. DeLong
Dec. 1994.

Facts: Defendant plants a bomb, the husband and wife plaintiffs are injured. The man
who planted the bomb was convicted of crime. Sometime thereafter the husband
commits suicide. The wife amends the cause to claim wrongful death.

-Wrongful death action and survival death action are not meant to benefit the same
parties.
-Intervening cause:
-An intervening superceding cause has the potential of relieving an intentional tort feasor
of liability.
-Some intervening causes are superceding, but all superceding causes are intervening
causes.
-Cause-in-fact and proximate cause are both aspects of causation.
-Plaintiff does not have to prove proximate cause, because it is a tort concept where the
defendant’s liability can be reduced or eliminated.
-Causation: A process by which A brings about B
         1. Cause-in-fact, factual cause, or actual cause: every plaintiff has to prove that
what tort feasor did was the cause in fact (factual cause or actual cause) of the actual
injury.
         2. Proximate cause (legal cause or logical cause) as opposed to factual cause
-If actual cause not established then you cannot prove proximate cause.
-If intentional then defendant cannot benefit from proximate cause, which could limit
liability.
-Causation must be proved with all intentional torts.
-There must always be an act by defendant
-When are damages a necessary element? Plaintiff does not have to prove actual
damages to prove cause of action for some common law torts.
-For defendant to prevail, he can present [affirmative] defenses—when a defendant has to
resort to an affirmative defense he is saying there is a cause of action, but I have a
defense to that cause of action such that I should not be held liable. (Plaintiff has already
established her cause of action—then defendant brings defense, even though he did
commit the tort)

Chapter 3: Privileges: Conduct which under ordinary circumstances would subject him
to liability, but does not subject him to liability in a particular circumstance. The process
of removing liability from defendant is a privilege; one type of privilege is consent.

   1. Consent

O’Brien v. Cunard S.S. Co.
Supreme Judicial Court of Massachusetts, 1891.

Facts: Plaintiff assembled in line with 200 other women passengers, below the deck of a
ship. A doctor was issuing smallpox vaccine to all those who had no marks on their arms
of previous vaccination, so that the women would not be detained in quarantine at
Boston. Doctor examined arm of plaintiff and saw no mark, she told him she had been
vaccinated already and it left no mark, he suggested vaccination again, she held out her
arm to be vaccinated. No one touched her, she did not tell him she did not want to be
vaccinated, she took the ticket which he gave her.

P.H.: Trial court finds for defendant, plaintiff has exceptions.

Issue: Whether the actions of the doctor constituted an assault and negligence, where he
vaccinated a woman who said nothing to him and consented to vaccination, but later
complained?

Rule: If plaintiff’s behavior is such to indicate consent, an act is justified, regardless of
plaintiff’s unexpressed feelings. In determining consent one can only be guided by overt
acts and the manifestations of the other’s feelings.

Reasoning: Plaintiff availed herself to the service provided. There was no conduct on
her part that expressed she did not wish to obtain a card through vaccination.

Holding: The trial court is affirmed. The actions of the doctor were lawful because the
plaintiff’s expressed actions were one’s of consent to the actions of the doctor.
-Consent: Permission for something to happen, or agreement to do something.
-Assault: Whether doctor used force upon plaintiff against her will?

Hackbart v. Cincinnati Bengals, Inc.
United States Court of Appeals, 10th Circuit, 1979.

Facts: Defensive back for the Denver Broncos, plaintiff, was struck with a blow from the
right forearm of defendant, to the back of plaintiff’s head and neck while kneeling. The
force was great enough that it caused both players to fall forward. There was no penalty
called and nothing was said between the players, they returned to their respective
sidelines.

P.H.: Trial court ruled for defendant saying that football was such a violent game that
players essentially waived their right to file suit for injury.

Issue: Whether trial court erred in determining that as a football player plaintiff
consented to blows which are deemed illegal by standards of NFL? Was there consent
such that the defendant would not be liable for battery?

Rule: The victim of an unlawful blow does not consent to non-action because the nature
of sport is violent.

Reasoning: One should not be forced to have only retaliation as a remedy when an
unlawful blow is made. Football is violent, but this does not mean that players consent to
unlawful actions.

Holding: Action is allowed because there exist in this case valid lines of determination,
that the plaintiff was entitle to have the case tried on an assessment of his rights and
whether they had been violated. There was no consent such that the defendant should
not be held liable for battery.

-This was not the type of hit that plaintiff had consented to while going onto the field.

Mohr v. Williams
Supreme Court of Minnesota, 1905.

Facts: Plaintiff consulted defendant about problem with her right ear. The defendant
advised her that an operation would cure the ailment. While plaintiff was under the
effects of anesthesia defendant determined that an operation was not needed to cure the
right ear. However, he realized that the left ear of the patient was in need of surgery to
cure its disease. The defendant did not wake up the plaintiff to obtain consent to operate
on her left ear. Plaintiff later brought action for battery.

P.H: Trial court, jury returned a verdict for the plaintiff and awarded damages.
Issue: Whether the trial court erred in finding that consent of a patient was necessary for
the doctor to perform an operation on a patient?

Rule: Every person has a right to complete immunity of his person from physical
interference of others, except in so far as contact may be necessary under the general
doctrine of privilege; and any unlawful or unauthorized touching of the person of another,
except it be in the spirit of pleasantry, constitutes an assault and battery.

Reasoning: This was not a case of emergency wherein the doctor would have had the
right to operate in order to save life or limb of patient. This operation was not dangerous
and threatening to her health, therefore she must be notified before a doctor performs the
said operation.

This was a question for the jury to determine.

Holding: This was an issue for the jury to determine, order affirmed that consent is
necessary except in cases of emergency. Damages depend on character and extent of
injuries inflicted upon her by surgery.


De May v. Roberts
Supreme Court of Michigan, 1881.

Facts: Defendant came to house of plaintiff in order to provide medical care, along the
way she asked a young unmarried man to come along and carry her things. Upon
arriving at the house she greeted the plaintiff’s husband and explained why the young
man was there. Husband allowed the man in. While the doctor was performing an act on
the woman the unmarried man did hold her hand and could hear and see everything that
was going on.

P.H.: Trial court found for plaintiff.

Issue: Whether defendant must ask for consent of patient when bringing in an
unprofessional to aide in her actions? This is a case of informed consent. The patient
must know exactly what is entailed in the procedure.

Rule: The plaintiff had a legal right to the privacy of her apartment at such a time, and
the law secures to her this right by requiring others to observe it, and to abstain from its
violation.

Reasoning: The doctor deceived the plaintiff and the plaintiff had a right to be informed
of the unmarried man’s presence, especially given the state she was in at the time.

Holding: Affirmed for plaintiff, damages for shame and mortification because both
doctor and man were guilty of deceit in not providing under the circumstances who they
actually were.
Hart v. Geysel
Supreme Court of Washington, 1930

Facts: Cartwright and Geysel engaged in a prize fight in the city of Seattle, during which
Cartwright received a blow which caused his death. There are no facts showing that the
mutual combat was engaged in in anger, that there was malicious intent to seriously
injure, or that there was excessive force.

P.H.: Both defendants entered demurrers and the action was dismissed.

Issue: Whether an action for wrongful death (an action brought by the decedents
survivors) can be maintained when the encounter, though unlawful, was entered into with
consent of both parties.

Rule: Prize fighting is unlawful and provides that one engaging therein shall be guilty of
a gross misdemeanor.

Majority rule: Where the parties engage in mutual combat in anger, each is civilly liable
to the other for any physical injury inflicted by him during the fight. The fact that the
parties voluntarily engaged in the combat is no defense to an action by either of them to
recover damages for personal injuries inflicted upon him by the other.

Minority Rule: Where parties engage in a mutual combat in anger, the act of each is
unlawful and relief will be denied them in a civil action; at least, in the absence of a
showing of excessive force or malicious intent to do serious injury upon the part of the
defendant.

Reasoning: The facts in this case do not bring them within the scope of the majority rule.
And the minority rule does not apply because anger is lacking.

In the opinion of the court one who engages in prize fighting, even though prohibited by
positive law, and sustains an injury, should not have a right to recover any damages that
he may sustain as the result of combat, which he expressly consented to and engaged in
as a matter of business or sport.

Holding: Judgment affirmed, because there was consent then no recovery shall be had.

-Wrongful Death Action: A lawsuit brought on behalf of a decedent’s survivors for their
damages resulting from a tortuous injury that caused the decedent’s death.

-Survival Action: A lawsuit brought on behalf of a decedent’s estate for injuries or
damages incurred by the decedent immediately before dying—A survival action derives
from the claim that a decedent who had survived would have had—as opposed to the
claim that beneficiaries might have in a wrongful-death action. The cause of action
survives the death of the decedent, and can be prosecuted or filed by the decedents estate.
-Privileges:

-Privileges are based upon consent or those created by law.
        -Privileges created by law must be pleaded by defendant as an affirmative
defense.
        -Privilege of consent plaintiff must prove there was no consent in cases of torts to
invasion to personality. If a privilege other than consent or for the torts to land, the
defendant has to prove it as an affirmative defense. (Restatement sections 10 and 13)

-The privileges are affirmative defenses, that a defendant asserts after the cause of action
has been established. The defendant has the burden of proof when presenting this
defense. The cause of action that plaintiff has does not include saying anything about the
defenses.

   2. Self Defense
      -Existence of Privilege—Anyone is privileged to use reasonable force to defend
      himself against a threatened battery on the part of another. (Affirmative Defense)
      Plaintiff has to show as his prime facie battery case that the use of force was
      unreasonable.
      -Retaliation—The privilege is one of defense against threatened battery, and not
      one of retaliation. When the battery is no longer threatened, the privilege
      terminates; and thereafter the original victim himself becomes liable for battery.
      Even is a person was initially an aggressor, once he has retreated he has a right to
      self-defense against the person he initially threatened.
      -Reasonable Belief—the privilege exists when the defendant reasonably believes
      that the force is necessary to protect himself against battery, even though there is
      in fact no necessity. This is an instance in which a reasonable mistake on the part
      of the actor will protect him.
      -Provocation—Should insults, verbal threats, or opprobrious language justify the
      exercise of self-defense? Almost every court that has passed upon the question
      has held that they do not.
      -Amount of force—The privilege is limited to the use of force that is or
      reasonably appears to be necessary for protection against a threatened battery.
      -Retreat—Common law rule was that, rather than kill his assailant or seriously
      wound him, defendant must “retreat to the wall” (minority view). Majority view
      is that the defendant may stand his ground and use deadly force, and even kill his
      assailant.
      -Injury to a third party—Transferred intent is concerned, the privilege of self-
      defense is carried over, and the defendant is held not to be liable to B in the
      absence of some negligence toward him.

   3. Defense of Others
      -Nature of Privilege—A privilege similar to that of self-defense is recognized for
      the defense of third persons. The early common law recognized a feudal privilege
       in the master of the household to defend members of his family and his servants
       against attack.
       -Reasonable Mistake—One question over which the courts have differed is that of
       the effect of a reasonable mistake as to the necessity for taking action. Some
       courts hold that the intervenor steps into the shoes of the person he is defending,
       and is privileged only when that person would be privileged to defend himself.




4. Defense of Property

Katko v. Briney
Supreme Court of Iowa, 1971.

Facts: Plaintiff’s action is for damages resulting from serious injury caused by a shot
from a 20-gauge spring shotgun set by defendants in a bedroom of an old farm house
which has been uninhabited for several years. Plaintiff and companion had broken and
entered the house to find and steal old bottles and dated fruit jars which they considered
antiques. The defendant’s set the gun in order to deter intrusions into the abandoned
dwelling. The set the gun to hit an intruder in the leg. Plaintiff entered the room and was
shot in the leg by the spring gun, thereafter he suffered substantial disfiguration of his
leg.

P.H.: The trial court holds for the plaintiff and awards $20,000 actual and $10,000
punitive damages. The Superior Court affirmed the decision.

Issue: Whether an owner may protect personal property in an unoccupied dwelling
against trespassers and thieves by a spring gun capable of inflicting serious injury or
death?

Rule: No privilege to use force intended or likely to cause death or serious harm against
another whom the possessor sees about to enter his premises or meddle with his chattel,
unless the intrusion threaten death or serious bodily harm to the occupiers or users of the
premises.

A possessor of land cannot do indirectly and by a mechanical device that which, were he
present, he could not do immediately and in person. Therefore, he cannot gain a privilege
to install, for the purpose of protecting his land from intrusions harmless to the lives and
limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict
death or serious harm upon such as may intrude, by giving notice of his intention to
inflict, by mechanical means and indirectly, harm which he could not, even after request,
inflict directly were he present.
Reasoning: Allison: The Ohio Supreme Court recognized plaintiff’s right to recover
punitive or exemplary damages in addition to compensatory damages.

-In this case the value of the person supercedes the value of the property.

Holding: There is no error in this decision, defendant can not use a spring loaded gun to
protect a dwelling.


5. Recovery of Property

Hodgeden v. Hubbard
Supreme Court of Vermont, 1846.

Facts: Plaintiff buyer had purchased a stove on credit at the warehouse of the defendants,
and carried it away. Defendants discovered almost immediately that plaintiff had
misrepresented his assets and credit and that he was financially irresponsible. The
defendants immediately started out in pursuit, and overtook the plaintiff about two miles
away from him by force. The defendants used force and applied great force to his person.
Plaintiff then drew a knife, and he was then forcibly held by one of the defendants while
the other took possession of the stove.

P.H.: The trial court found for the plaintiff and argued that the defendants should have
used legal redress to obtain the return of the stove.

Issue: Whether one is justified in using force for the return of an item of personal
property, such as using force to obtain the return of a stove purchased with poor credit?

Rule: The defendants had clearly a right to retake the property, thus fraudulently
obtained from them, if it could be done without unnecessary violence to the person, or
without breach of the peace.

Reasoning: By drawing his knife the plaintiff became the aggressor, and therefore the
defendants were justified in using force to get the stove back by holding the plaintiff by
force.

Holding: To obtain possession of the property in question no violence to the person of
the plaintiff was necessary or required, unless from his resistance. The judgment of the
lower court is reversed.

Bonkowski v. Arlan’s Department Store
Court of Appeals of Michigan, 1968.

Facts: Plaintiff left defendant’s store and was walking to her car when Earl Reinhardt, a
private policeman on duty that night in the defendant’s stores, called her to stop.
Reinhardt mentioned to the plaintiff to return toward the store when she had done so,
Reinhardt said that someone in the store had told him the plaintiff had put three pieces of
costume jewelry into her purse without having paid for them. Plaintiff denied the
allegation, but Reinhardt told her he wanted to see the contents of her purse. She emptied
her purse and provided sales receipts for everything she had purchased, Reinhardt then let
her go. Plaintiff brought suit for false imprisonment and slander.

P.H.: For false arrest and slander the jury returned a verdict of $43,750.

Issue: Whether one can hold a person suspected of stealing property, even when that
allegation is denied by defendant?

Rule: A privilege in favor of a merchant to detain for reasonable investigation a person
whom he reasonably believes to have taken a chattel unlawfully.

The privilege we recognize here goes beyond that set forth in the restatement…there state
a caveat that the institute expresses no opinion as to whether there may be circumstances
under which privilege may extend to the detention of one who has left the premises but is
in their immediate vicinity.

Reasoning: It is reasonable to apply the privilege here because a merchant may not be
able to form the reasonable belief justifying a detention for a reasonable investigation
before a suspected person has left the premises.

Holding: False arrest can be justified if agent does not prove that he acted reasonably
with reasonable intentions to prove the theft.

Surocco v. Geary
Supreme Court of California, 1853.

Facts: This is an action commenced to recover damages for blowing up and destroying
the plaintiff’s house and property during a fire in the 24th of December. Defendant,
Alcalde of San Francisco, argued that he was justified to blow up said house on the
ground that he had authority by virtue of his office, and that it had been blown up by him
to stop the progress of the conflagration then raging.

P.H.: The lower court rendered a verdict for the plaintiff.

Issue: Whether the person who tears down or destroys the house of another, in good
faith, and under apparent necessity, during the time of conflagration, for the purpose of
having the buildings adjacent, and stopping its progress, can be held personally liable in
an action by the owner of the property destroyed?

Rule: Necessitas inducit privilegium quod jura privata—Necessity provides a privilege
for private rights. The common law adopts the principles of the natural law, and places
the justification of an act otherwise tortuous precisely on the same ground of necessity.
Reasoning: A house on fire, or those in its immediate vicinity, which serve to
communicate the flames, becomes a nuisance, which it is lawful to abate, and the private
rights of the individual yield to the considerations of general convenience, and the
interest of society.

In all such cases the conduct of the individual must be regulated by his own judgment as
to the exigencies of the case.

Holding: The plaintiffs cannot recover for the value of the goods which they might have
saved; they were as much subject to the necessities of that occasion as the house in which
they were situate; and if in such cases a party was held liable, it would too frequently
happen, that the delay caused by the removal of the goods would render the destruction of
the house useless. The blowing up of the house was a necessity, judgment reversed.

Vincent v. Lake Erie Transportation Co.
Supreme Court of Minnesota, 1910.

Facts: Boat owned by defendant was docked at plaintiff’s docks in Duluth. While
unloading the boat a storm from the northeast developed, which grew into a violent storm
with winds of 50mph. Navigation was suspended for the night. Defendant still attempted
to call a tug to leave the dock, but none were available. The vessel lay upon the outside
of the dock, her bow to the east, the wind and waves striking her starboard quarter with
such force that she was constantly being lifted and thrown against the dock, resulting in
its damage, as found by the jury to the amount of $500.

P.H.: Verdict for the plaintiffs.

Issue: Whether the defendant can be held liable for the damage to the dock when its
conduct during the storm was rendered necessary by prudence and good seamanship
under conditions over which it had no control?

Rule: Where, under stress of weather, a vessel was without permission moored to a
private dock, the defendant was not guilty of trespass, but was liable for damages.
Compensation must be made for the taking of private property.

And so public necessity, in times of war and peace, may require the taking of private
property for public purposes; but under our system of jurisprudence compensation must
be made.

Reasoning: The vessel deliberately and by their direct efforts held her in such a position
that the damage to the dock resulted, and having thus preserved the ship at the expense of
the dock, it seems to us that her owners are responsible to the dock owners tot eh extent
of the injury inflicted.
Holding: Order affirmed, the defendant prudently and advisedly availed itself of the
plaintiff’s property for the purpose of preserving it own more valuable property, and the
plaintiffs are entitled to compensation for the injury done.

-The value of the property taken is the basis for compensation to the plaintiff.
-With regard to the privilege of necessity; (Restatement §197 and 263) when you trespass
against the chattel of another to save the other, there is a privilege—but


Sindle v. New York City Transit Authority
New York Court of Appeals, 1973.

Facts: Plaintiff boarded a school bus owned by defendant, and driven by its employee
Mooney. It was the last day of school and the children were acting in an unruly manner.
On at least one occasion, the driver admonished the students about excessive noise and
damage to the bus. When he reached the Annadale stations the driver discharged several
of the students, he then went to the rear of the bus, inspected the damage and advised the
students that he was taking them to the police station. The driver proceeded to the station
and bypassed several normal stops.

Issue: Whether the driver was holding the children out of necessity for safety and less
damage to the bus?

Rule: Generally restraint or detention reasonable under the circumstances and in time
and manner, imposed for the purpose of preventing another from inflicting personal
injuries or interfering with or damaging real or personal property in one’s lawful
possession or custody is not lawful.

Reasoning: Bus diver has the responsibility to ensure the safety of the passengers and the
property. Therefore his actions must be examined from a consideration of all the
circumstances.

Holding: Reversed for a new trial so that all facts and circumstances can be examined to
determine if it was necessary for the driver to hold the students against their will.

Chapter 4: Negligence
       -The word used to describe the conduct of the person or company being
evaluated.
       -Negligence is to conduct : Intent is to state of mind.

Elements of Cause of Action for Negligence:
        -A duty to use reasonable care. Requiring the actor to conform to a certain
standard of conduct, for the protection of others against unreasonable risks.
        -A breach is a failure to conform to the required standard. It must be said that the
defendant was negligent, but is not liable because he was under no duty to the plaintiff to
use reasonable care.
        -The causation is a reasonably close causal connection between the conduct and
the resulting injury.
        -The damage resulting to the interests of another.

-Negligence is conduct that falls below the standard of care established by law for the
protection of others against the unreasonable risk of harm.

-**It would be incorrect to state, “the elements of negligence are…”, rather one should
say, “the elements to a cause of action for negligence are…”

-Prosser Pg. 169, Restatements definitions.

Lubitz v. Wells
Superior Court of Connecticut, 1955.

Facts: Wells left a golf club in his backyard, thereafter his son (defendant) aged 11 years
old, while playing in the yard with plaintiff, Lubitz (9), picked up the golf club and
proceeded to swing at a stone lying on the ground. In swinging the golf club, Wells Jr.
caused the club to strike the plaintiff about the jaw and chin. Well Jr., alleged, failed to
warn the girl of swinging and he knew she was in a position of danger. Further alleged
that Wells Sr. was negligent because although he knew the golf club was on the ground in
his backyard and that his children would play with it, and although he should have
known, that the negligent use of the golf club by children would cause injury to a child,
he neglected to remove the golf club from the backyard or to caution Wells Jr. against the
use of it.

Issue: Whether Wells Sr. can be held liable for leaving the club in the backyard and
failing to warn child not to use it?

Rule: To be held liable for negligently leaving item unattended to, which subsequently
caused injury to another, it must be shown that the item was obviously and intrinsically
dangerous.

Reasoning: It cannot be held that a golf club is obviously and intrinsically dangerous.

Holding: Wells Sr. cannot be held liable for negligence for leaving the club in the
backyard and failing to notify his son.

Blyth v. Birmingham Waterworks Co.
Court of Exchequer, 1856.

Facts: Defendants had installed water mains in the street, with fire plugs at various
points. The plug opposite the plaintiff’s house sprung a leak during a severe frost,
because the connection between the plug and water main was forced out by the expansion
of freezing water. As a result, a large quantity of water escaped through the earth and
into plaintiff’s house, causing damage.
P.H.: Jury at trial court returned a verdict holding defendant liable for negligence.

Issue: Whether this was an issue that should have been presented to a jury, whether the
facts proved show that the defendants were guilty of negligence? Was there a cause of
action for negligence against the waterworks company?

Rule: Negligence is the omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs, would do or
doing something which a prudent and reasonable man would not do.

Reasoning: The defendants might have been liable for negligence, is unintentionally,
they omitted to do that which a reasonable person would have done, or did that which a
person taking reasonable precautions would not have done. A reasonable man would act
with reference to the average circumstances of the temperature in ordinary years.

Holding: The result was an accident which defendants cannot be held liable for because
the condition were extremes, and the defendant were only counting on previous
experiences.

-Negligence is conduct that falls below the standard of care for the protection of others…
-The word accident is a term of art in tort law (Prosser Pg. 162)

Gulf Refining Co. v. Williams
Supreme Court of Mississippi, 1938.

Facts: Appellants sold and delivered to a planter in that vicinity a drum of gasoline for
use in farm tractors. Appellee was the planter’s employee and was engaged in operating
a tractor. The drum was not used immediately, but when appellee took to using it he
undertook to remove the bunghole cap from the drum in order to replenish the fuel in the
tractor, whereupon there was a sudden outburst of fire, caused by the condition of
unrepair in the threads of the bung cap spark.

P.H.: Judgment in favor of plaintiff.

Issue: Whether the Gulf Co. can be held liable for negligence resulting from the unrepair
of the gasoline drum or whether the incident was unusual, extraordinary, and improbable,
therefore relinquishing them of liability?

Rule: When the inquiry is one of foreseeability, is as regards a thing that may happen in
the future and to which the law of negligence holds a party to anticipation as a measure of
duty, that inquiry is not whether the thing is to be foreseen or anticipated as one which
will probably happen, according to the ordinary acceptation of that term, but whether it is
likely to happen even though the likelihood may not be sufficient to amount to a
comparative probability.
The test as respects foreseeability is not the balance of probabilities, but the existence, in
the situation in hand, of some real likelihood of some damage and the likelihood is of
such appreciable weight and moment as to induce, or which reasonably should induce,
action to avoid it on the part of a person f a reasonably prudent mind.

Reasoning: There is no adequate proof to show that appellee had equal knowledge or
appreciation of the significance of this fact, or any knowledge or appreciation of the
significance of this fact. The drum had been in use for 9 years, and was damaged as a
result of hammering, ect.

Holding: Appellants are liable for negligence because they should have realized the
condition of the drum and known that a spark or explosion of some sort could occur, they
should have reasonable anticipated as a likelihood of weight and condition of unrepair.

-Possibility, Probability, Likelihood—Suggest the foreseeability of an event.
-Anticipation can lead to duty—anticipation is the measure of duty—it must be
established that there is a duty and you can do this by demonstrating that there is/was
anticipation.

Chicago, B&QR Co. v. Krayenbuhl
Supreme Court of Nebraska, 1902.

Facts: A railroad turntable, managed by defendants, was located between two of its lines.
The defendant’s rules required that its employees to keep the turntable locked when not
in use, but there was evidence that this rule was frequently disregarded and that one of
the staples was so loose that the turntable could be unfastened without difficulty.
Plaintiff, in company with other children, found the turntable unlocked and unguarded.
Plaintiff got on the turntable, and when the other children set it in motion, plaintiff’s foot
was caught between the rails and severed at the ankle joint.

P.H.: Judgment for plaintiff.

Issue: Whether defendant can be held liable for child’s injury even though he was a
trespasser on the grounds?

Rule: Regard must be had to the character and location of the premises, the purpose for
which they are used, the probability of injury therefrom, the precautions necessary to
prevent such injury, and the relations such precautions bear to the beneficial use of the
premises. The nature of the precautions would depend on the facts of each case.
But in every case they should be such as a man of ordinary care and prudence would
observe under like circumstances. If, under all the circumstances, the owner omits such
precautions as a man of ordinary care and prudence, under like circumstances, would
observe, he is guilty of negligence.
Reasoning: The turntable is a necessary piece of machinery, that sometimes results in
injury, therefore it is the responsibility of the owner’s to ensure proper safety precautions
are taken.

Holding: The railroad company is liable for protecting its turntable, because it is within
reasonable care to do so. However, the case was reversed for error in instructions given
to the jury.


Davison v. Snohomish County
Supreme Court of Washington, 1928.

Facts: Plaintiff was driving, and proceeded to cross a bridge from west to east, as the car
rounded the curve to the east of the slough, he lost control, the car skidded, struck the
railing on the east or outer edge of the approach just around the curve, broke through the
railing and with plaintiffs, fell to the ground. Both plaintiffs suffered sever injuries and
the car was wrecked. Plaintiffs contend that the bridge was unsafe because of the
insufficiency of the railing or guard to prevent respondents care from skidding off the
approach.

P.H.: The trial court ruled in favor of the plaintiff’s and awarded $2500 in damages.

Issue: Whether the county should be held liable for negligence based on the conditions
of the guard rail?

Rule: As a practical proposition, municipalities cannot be required to protect long
stretches of roadway with railings or guards capable of preventing a car from going off
the road. It would be unreasonable to require municipalities to place guard railings on
long stretches of road because of economic and labor concerns.

Reasoning: Roads must be built and to require them to be built with guard rails along the
entirety of them would be a burden that the public could not afford to bear. It would
prohibit the building of new roads and lead to financial ruin.

Holding: The condition of the railing at the time of the accident was not in connection
with the appellant’s negligence, judgment reversed with directions to dismiss the action.

-The nature of a duty can change over time, for example what was not a duty in 1928,
might be a duty some 30, 40, 50 years later. These cases are trying to demonstrate the
factors that come into play with regard to establishing a duty.

United States v. Carroll Towing Co.
United States Circuit Court of Appeals, Second Circuit, 1947.

Facts: The Anna C was owned by the Conners Co. and had been chartered to the PA
Railroad Co., which had loaded it with a cargo of flour that belonged to the U.S. The
charter required that the Conners Co. provide a bargee between the house of 8am and
4pm. Carroll Towing Co. was the owner of a tug whose servants negligently shifted the
Anna C’s mooring line, causing her to break free from her pier. After the Anna C broke
away, she drifted up against a tanker at the next pier down the North River.
Unbeknownst to those in the harbor responding to the problem, the tanker’s propeller
apparently broke a hole in the Anna C at or near her bottom. She careened, dumped her
cargo of flour and sank. The U.S. sought compensation for the flower and Conners Co.
sought compensation for the barge.

P.H.: The trial court divided the damages according to the admiralty rule, because it
found Conners Co partly responsible for the loss of the cargo and the barge in not having
a custodian on board the barge at the time.

Issue: Whether the towing company is liable for negligently not having a bargee on the
ship during the time of the accident?

Rule: The owner’s duty to provide against resulting injuries is a function of three
variables; 1. The probability that she will break away 2. The gravity of the resulting
injury, if she does 3. The burden of adequate precautions.

Reasoning: The bargee had been away all the time, and we hold that his fabricated story
was affirmative evidence that he had no excuse for his absence. At the locus in quo
barges were being constantly drilled in and out.

Holding: It was a fair requirement that a bargee be on board and therefore the decision of
the lower court is affirmed.
-This case deals with a duty on the part of Conners to have a bargee on the ship.

-Duty is a function of probability, liability, burden. B < PL If PL is less than B then
there is a duty. (Often referred to as the negligence formula, or the formula to determine
liability).

Restatement (Second) of Torts (1965):

§291. Unreasonableness; How Determined; Magnitude of Risk and Utility of
Conduct: Where an act is one which a reasonable man would recognize as involving a
risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of
such magnitude as to outweigh what the law regards as the utility of the act or of the
particular manner in which it is done.
        -Risk is a chance or possibility, it is not involved in negligence.
        -Reasonable risk does not constitute negligence

Vaughan v. Menlove
Court of Common Pleas, 1837.
Facts: Defendant built a hay rick near the boundary of his land not far from the
plaintiff’s cottages. It was alleged that the rick was likely to ignite, thereby endangering
the plaintiffs cottages, of which the defendant had notice; that the defendant was
negligent in maintaining the rick in this dangerous condition and that the rick did ignite
and the fire spread to plaintiff’s land, burning his cottages.

P.H.: A rule nisi for a new trial was obtained.

Issue: Whether the fire had been occasioned by gross negligence on the part of the
defendant, where the prudence of reasonable cautionary person would have exercised
under similar conditions?

Rule: The care taken by a prudent man has always been the rule laid down; and as to the
supposed difficulty of applying it, a jury has always been able to say whether, taking that
rule as their guide, there has been negligence on the occasion in question.

Reasoning: It has been decided that if an occupier burns near the boundary of his own
land that damage ensues to the property of his neighbor, he is liable to an action for the
amount of injury done.

Holding: Judgment affirmed and the cause must be taken to jury, because man acted in
gross negligence and did not follow prudent reasonableness.

-Standard of Care: is the level of caution that is required so as not to be found negligent.
-Subjective standard of care is established by the defendant—objective will be
established out side the defendant.

Delair v. McAdoo
Supreme Court of Pennsylvania, 1936.

Facts: Plaintiff brought action in trespass to recover for damages to his person and
property sustained as a result of a collision between his automobile and that owned by the
defendant. The accident occurred when defendant, proceeding in the same direction as
plaintiff, sought to pass him. As defendant drew alongside of plaintiff, the left rear tire of
his car blew out, causing it to swerve and come into contact with the plaintiff’s car.

P.H.: The jury found for the plaintiff in the sum of $7500.

Issue: Whether defendant can be held liable for the condition of his tires when he claims
not to have known that the condition was so poor? Whether defendant had a duty to
inspect the condition of the tires on his car and take reasonable precautions to ensure
there are no dangerous flaws or faults?

Rule: It is imperative that a duty (responsibility or obligation) or standard (a measure) of
care be set up that will be productive of safety for other users of the highway. Any
ordinary individual knows that when a tire is worn through to the fabric, its further use is
dangerous and it should be removed.

Reasoning: This is a question of fact for a jury, to determine if one was aware of the
condition of his tires.

The hazard is too great to permit cars in this condition to be on the highway. The law
requires drivers to know the condition of the vehicle especially parts which are prone to
wear.

Holding: The order is affirmed and the defendant was negligent for not knowing the
condition of his tires, he should have known their condition.

Torts Practice Exam:

I- R & F
R- R
Analysis of the facts- F
Application of the rules to the fact- R & F
C- R & F

Trimarco v. Klein
Court of Appeals of New York, 1982.

Facts: This case involves the shattering of a bathtub’s glass enclosure door in a multiple
dwelling in July of 1976. The tenant of the apartment in which it happened, was in the
process of sliding the door open so that he could exit the tub. The door, which turned out
to have been made of ordinary glass variously estimated as one sixteenth to one quarter
of an inch in thickness, concededly would have presented no different appearance to the
plaintiff that did tempered safety glass, which the defendants never brought to their
attention.

P.H.: At the trial level the jury found for the plaintiff and awarded damages. A divided
appellate division reversed on the law and dismissed the complaint.

Issue: Whether there exists a standard of care from the landlord of a multiple dwelling in
furnishing the dwellings with updated materials?

Rule: When certain dangers have been removed by a customary way of doing things
safely, this custom may be proved to show that the one charged with the dereliction has
fallen below the required standard.

Proof of customary practice, and conduct which falls short which causes and accident
may enable liability.
Reasoning: When proof of an accepted practice is accompanied by evidence that the
defendant conformed to it, this may establish due care, and contrariwise, when proof of a
customary practice is coupled with a showing that it was ignored and that this departure
was a proximate cause of the accident, it may serve to establish liability.

What usually is done may be evidence of what ought to be done, but what ought to be
done is fixed by a standard of reasonable prudence, whether it usually is complied with or
not.

Holding: Statute should have been excluded therefore the case is reversed and remanded
for a new trial.

-In some instances standard of care can be established by custom. If the custom is not
reasonable the court the court will not hold it to be a standard of care.

Cordas v. Peerless Transportation Co.
City Court of New York, New York County, 1941.

Facts: A man was robbed at gunpoint by two “highway” men. The men took his items of
value and began running away. One of the men entered a cab and told the driver to drive
or be shot. The driver could see the robbery victim running behind the car for some time.
The driver then decided to jam on the brakes, in order to take off balance the robber, and
then leapt from the car. The car began to drive on the sidewalk and upon doing so did
strike plaintiffs and her two children. In this action the plaintiffs seek recovery for
injuries, as a result of the defendants negligence in that but for his abandoning the cab
they would not have been hit.

Issue: Whether the cab driver can be held liable for negligence when he leapt from the
cab in an emergency to protect himself? Did the cab driver have a duty to society to stay
with the cab, regardless of an emergency, in order to protect others in society?

Rule: Negligence is the failure to exercise that care and caution which a reasonable and
prudent person ordinarily would exercise under like conditions or circumstances.

The law in this state does not hold one in an emergency to the exercise of that mature
judgment required of him under circumstances where he has no opportunity for deliberate
action.

Reasoning: An act which might be considered negligent normally, may not be
considered negligent in a time of emergency.

If the court would rule in favor of plaintiffs it would be calling the cab driver a coward,
when in fact he was under no duty to act in such a manner with the emergency.

Holding: Found in favor of defendants because the defendant driver acted in a way
prudent in such a given emergency.
Roberts v. State of Louisiana
Court of Appeals of Louisiana, 1981.

Facts: Plaintiff filed suit against the state advancing two theories of liability, first
respondeat superior, which is the common law principle that employers are held
responsible for the actions of their agents, and secondly negligent failure on behalf of the
post office in failing to operate the concession stand in a proper manner. As plaintiff was
in the lobby of the post office, the blind operator of the concession stand was walking to
the bathroom without the use of can and ran into the plaintiff, knocking him to the
ground, resulting in a hip injury sustained by plaintiff.

P.H.: The trial court ordered plaintiff’s suit dismissed.

Issue: Whether one who suffers from a disabling infirmity is required to act with a
reasonable standard of care, with respect to walking in certain areas without a cane,
where here the walking without a cane by a blind man resulted in the injury of another?

Rule: The reasonable man would be said to be identical with the actor. The man who is
blind…is entitled to live in the world and to have allowance made by others for his
disability, and he cannot be required to do the impossible by conforming to physical
standards which he cannot meet. At the same time the conduct of the handicapped
individual must be reasonable in the light of his acknowledgment of his infirmity, which
is treated merely as one of the circumstances under which he acts…It is sometimes said
that a blind man must use a greater degree of care than one who can see; but it is now
generally agreed that as a fixed rule this is inaccurate, and that eh correct statement is
merely that the must take the precautions, be they more or less which the ordinary
reasonable man would take if he were blind.

Reasoning: Under the circumstances presented the agent was acting a manner that a
reasonably prudent blind person would have acted in similar circumstances.

Plaintiff failed to prove any acts on behalf of agent which may be construed as negligent,
such as running, not paying attention, etc.

Holding: Judgment of trial court affirmed because the man here was acting a reasonable
prudent manner under the circumstances, where another blind man would have acted in
the same manner.

Robinson v. Lindsay
Supreme Court of Washington, 1979.

Facts: Anderson, 13 years old, was driving a snowmobile owned by defendant Lindsay,
pulling plaintiff Robinson, age 11, in a tube behind the snowmobile. As the machine was
pulling the tube, the tow line severed the thumb of the plaintiff passenger, causing loss of
use of the thumb.
P.H.: The trial court returned a verdict in favor of Anderson, the trial court ordered a new
trial.

Issue: Whether a child operating a motor vehicle, such as a snowmobile, must be held to
an adult standard of care in determining negligence?

Rule: Typically, in considering the claimed negligence of a child, the jury is instructed
that it is the of a child to exercise the same care that a reasonably careful child of the
same age, intelligence, maturity, training and experience would exercise under the same
or similar circumstances.

When the activity that the child engages in is inherently dangerous, as is the operation of
powerful mechanized vehicles, the child should be held to an adult standard of care.

Reasoning: The operation of a snowmobile requires adult care and competence.

The child had been operating snowmobiles for 2 years and because of their inherent
danger should be held to an adult standard of care.

Holding: Judgment for a new trial affirmed, because the jury must be instructed that the
child must be held to an adult standard of care, when the child is operating a motor
vehicle, or anytime engaging in activity that is inherently dangerous.

-The standard of care is being provided to the category of children.
-Why would, or does, the court show favor to children with respect to negligence, as
opposed to the intentional torts, or intent? Intent deals with a substantial certainty,
whereas negligence deals with risk and chance. Can a child perceive all the
circumstances that deal with risk and chance? The answer is no, because a child can deal
with certainty, but he may not be able to comprehend the elements of risk and chance that
are associated with negligence. A child cannot calculate all of the risk associated with
actions, whereas with intent he may have an understanding as to what is substantially
certain to happen.
-If there is a presumption required, the jury or fact finder is required to come to that same
conclusion. Rebuttable presumption, irrebuttable presumption.

Breunig v. American Family Ins. Co.
Supreme Court of Wisconsin, 1970.

Facts: The plaintiff was driving his truck when it was struck by the automobile of Mrs.
Veith. The plaintiff filed suit directly against her insurance company. The evidence
established that Mrs. Veith, while driving home, saw a white light on the back of the car
ahead of her. She followed this light for several blocks, she then could not remember
anything until waking in a corn field and being in the hospital. The psychiatrist testified
that Mrs. Veith told him she was driving on a road when she believed that God was
taking a hold of the steering wheel and was directing her car. She saw the truck coming
and believed that she could fly because Batman can. It was determined that she suffered
from acute paranoid schizophrenic reaction.

P.H.: The jury returned a verdict for the plaintiff.

Issue: Whether Mrs. Veith who suffered from a moment of temporary insanity must be
held to the same standard of care of negligence as a reasonable person, therefore creating
liability for negligence?

Rule: There must be an absence of notice or forewarning to the person that he may be
suddenly subject to such a type of insanity or mental illness.

The policy basis for holding a permanently insane person liable for his tort is: 1. Where
one or two innocent persons must suffer a loss it should be borne by the one who
occasioned it. 2. To induce those interested in the estate of the insane person to restrain
and control him. 3. The fear that false claims of insanity would arise in order to avoid
liability.

It is unjust to hold a man responsible for his conduct which he is incapable of avoiding
and which incapability was unknown to him prior to the accident.

We hold that a sudden mental incapacity equivalent in its effect to such physical causes
as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike and
not under the general rule of insanity. Restatements §283(b).

Reasoning: the court believes that it is too broad to hold one liable for his tort when he is
overcome with a sudden mental disability that was not forewarned.

Holding: The decision of the jury is affirmed because it was proven that Mrs. Veith had
previously believed that she would be saved at the end of the world, thus proving that this
was not a case of momentary insanity behind the wheel. But rather she was previously
plagued with mental illness, and therefore must be held to the standard of care of a
reasonable person.

-The standard of care for someone who is mentally deficient: Mental deficiency does not
relieve liability to the reasonable man standard. Under the facts and circumstances a
reasonable man would have the mental deficiency.
-The standard of care can be articulated in one particular way by providing that the
standard is the reasonable man under like facts or circumstances.

Heath v. Swift Wings, Inc.
Court of Appeals of North Carolina, 1979.

Facts: Defendant was the owner of an airplane operated by Fred Heath, who planned to
fly the plane with his wife, son, and a family friend on board. Shortly after takeoff
something went wrong and the plane crashed killing all on board. This suit was brought
by the estates of the wife and son, alleging negligence on the part of the pilot, in failing to
exercise reasonable care in flying the airplane. A witness testified that pilot should have
used flaps to aide in the takeoff, or he could have made an emergency landing in a nearby
field in order to try and save the lives of those on board.

P.H.: The trial court retuned a verdict in favor of the defendant saying that pilot was not
liable. The plaintiff appealed arguing that the jury had been instructed improperly.

Issue: Whether pilot must be held to a reasonable standard of care in operating the plane
compared to others with the same knowledge and experience as the pilot?

Rule: The conduct of a reasonably prudent man remains constant, the quantity or degree
of care required varies significantly with the attendant circumstances.

The court must always use an objective view when instructing the jury with regard to
negligence instructions.

Reasoning: the jury was given a subjective direction when it was told to compare the
pilot’s skills with those of others. Rather the jury should have been instructed that the
pilot it held to the same standard of care as all who operate airplanes, not just those with
his skill level.

Holding: Verdict for a new trial, so that jury may be instructed properly, with regard to
an objective standard, holding Fred liable to the standard of all other pilots, not just those
with his level of experience.


Hodges v. Carter
Supreme Court of North Carolina, 1954.

Facts: Plaintiff’s drug store building burned destroying the building and other items
inside the building. The plaintiff was insured under four different insurance policies at
the time, however, when he requested recovery from the policies, every company
responded denying him an relief. The plaintiff filed an action in 1949 hiring the
defendants as counsel. The attorney’s sent summonses to the Commissioner of
Insurance, who in turn copied the summonses and mailed them to the insurance
companies. This was a common tradition in this jurisdiction. The four companies made
a special appearance in court to claim that there was no jurisdiction over them, because of
failure of personal service. The trial court ruled against the companies, but this court
reversed that decision. The plaintiff then brought this action claiming that the defendant
attorney’s were negligent in serving the summonses and should have known not to mail
them.

Issue: Whether the attorney’s must be held liable for negligence because of failure to
conform to a proscribed standard of care as a professional counselor?
Rule: Ordinarily when an attorney practices law he impliedly represents that, “1. He
possesses the requisite degree of learning, skill, and ability necessary to the practice of
his profession and which others similarly situated ordinarily possess, 2. He will exert his
best judgment in the prosecution of the litigation entrusted to him, and 3. He will
exercise reasonable and ordinary care and diligence in the use of his skill and in the
application of his knowledge to his client’s cause.

An attorney who acts in good faith and in an honest belief that his advice and acts are
well founded and in the best interest of his client is not answerable for a mere error of
judgment or for a mistake in a point of law which has not been settled by the court of last
resort in his state and on which reasonable doubt may be entertained by well-informed
lawyers.

Reasoning: There is no evidence provided by the plaintiff that the defendants here
breached any duty the law imposed upon them when they accepted employment for
plaintiff.

When they mailed the summonses to the Commissioner they were following a tradition
that had been established for some two decades.

Service through the Commissioner had not been tested in the courts of this state.

Holding: Because attorneys were making a good faith effort to serve the then defendants
by relying on tradition, and the case had never arisen, there is not reason that they did not
fulfill their professional standard of care as an attorney. They acted in a reasonable
manner as any other attorney in their position would have. Therefore judgment affirmed.

Boyce v. Brown
Supreme Court of Arizona, 1938.

Facts: In 1927 the plaintiff engaged the services of doctor, defendant, who had been a
practicing physician and surgeon for many years, to reduce a fracture of plaintiff’s ankle.
This was done by means of an operation which consisted, in substance, of making an
incision at the point of fracture, bringing the broken fragments of bone into apposition,
and permanently fixing them in place by means of a metal screw placed in the bone.
There is not serious contention that defendants failed to follow approved medical
standards by performing this procedure. In 1934 the plaintiff again consulted the
defendant, complaining that her ankle was giving her considerable pain. The doctor filed
an arch support and wrapped the ankle for her. Her ankle did not improve from this
treatment and continued to grow more painful until 1936. She then went to visit another
doctor who on hearing the history of the case, and noticing some discoloration and
swelling, cause an X-ray of the ankle to be made. This X-ray showed that there had been
some necrosis of the bone around the screw. The other doctor operated upon the plaintiff
removing the screw and she made an uneventful recovery, the ankle becoming practically
normal.
P.H.: The trial court found that there was no competent testimony that the defendant was
guilty of any acts of commission or omission sufficient as a matter of law to charge him
with malpractice.

Issue: Whether the defendant failed to exercise the proper standard of care as a physician
in the treatment of the plaintiff’s ankle?

Rule: General rules governing malpractice:
   1. One license to practice medicine is presumed to possess the degree and skill and
      learning which is possessed by the average member of the medical profession in
      good standing in the community in which he practices, and to apply that skill and
      learning with ordinary and reasonable care, to cases which come to him for
      treatment. If he does not possess the requisite skill and learning, or if he does not
      apply it, he is guilty of malpractice.
   2. Before a physician or surgeon can be held liable for malpractice, he must have
      done something in his treatment of his patient which the recognized standard of
      good medical practice in the community in which he is practicing forbids in such
      cases, or he must have neglected to do something which such standard requires.
   3. In order to sustain a verdict for the plaintiffs in an action for malpractice the
      standard of medical practice in the community must be shown by affirmative
      evidence, and unless there is evidence of such a standard, a jury may not be
      permitted to speculate as to what the required standard is, or whether the
      defendant has departed there-from.
   4. Negligence on the part of the physician or surgeon in the treatment of a case is
      never presumed but must be affirmatively proven, and not presumption of
      negligence nor want of skill arises from the mere fact that a treatment was
      unsuccessful, failed to bring the best results, or that the patient died.
   5. The accepted rule is that negligence on the part of a physician or surgeon by
      reason of his departure from the proper standard of practice, must be established
      by expert medical testimony, unless the negligence is so grossly apparent that a
      layman would have no difficulty in recognizing it.
   6. The testimony of other doctors that they would have followed a different course
      of treatment than that followed by the defendant is not sufficient to establish
      malpractice unless it also appears that the course of treatment followed deviated
      from one of the methods of treatment approved by the standard in that
      community.

Reasoning: The doctor performed a normal procedure, and others testified that they
would have done the same. The failure to take an X-ray was because of cost and
therefore cannot be inferred as prudent medical treatment. Just because another doctor
would have proscribed a different treatment does not make the other doctor negligent
unless his original actions did not apply the skill and standards he possessed.

Holding: Judgment affirmed because the defendant exercised the proper standard of care
in treating the plaintiff.
-The general rule is that the standard would come from a other doctors, the exception is
that sometimes the negligence is so gross that a layman could recognize it.

Morrison v. MacNamara
District of Columbia Court of Appeals, 1979.

Facts: Plaintiff went to medical laboratory to have a urethral smear test, which was
physically invasive, for trichomonas, a urinary tract infections. The test was
administered while the plaintiff was standing. The plaintiff had an adverse reaction to the
test—he fainted and struck his head on a metal blood pressure stand and on the floor,
causing permanent loss of his senses of smell and taste, among other injuries. At trial the
plaintiff produced an expert witness who testified that the national standard of care for
this procedure dictates that the patient be sitting or laying while the test is being
performed.

P.H.: The trial court ruled in favor of the defendant holding that the expert witness must
come from the same community as the doctor being sued, because the standard of care is
one of locality, not national.

Issue: Whether the defendant should be held to a national standard of care, which
consists of having a patient sit or lay, during this type of procedure?

Rule: As to board certified physicians, hospitals, medical laboratories, and other health
care providers, the standard of care is to be measured by the national standard. It follows
that an instruction which compares a nationally certified medical professional’s conduct
exclusively with the standard of care in the District or a similar community is erroneous.

The locality rule states that the conduct of members of the medical profession is to be
measured solely by the standard of conduct expected of other members of the medical
profession in the same locality or the same community.

Reasoning: The locality rule was developed to protect doctors in rural areas who,
because of inadequate training and experience, and the lack of effective means of
transportation and communication, could not be expected to exhibit the skill and care of
urban doctors.

Medical standards have been nationalized through a system of national board
certification, and this justifies a national standard of care. Defendant admits that he is
nationally certified and tells patients this as well. Therefore he must be held to a national
standard of care.

Holding: The case is reversed for a new trial because the jury should have been
instructed that the a medical professional must be held to a national standard of care
when performing any medical procedures.
-Two Schools of Thought Doctrine: Where competent medical authority is divided the
doctor will not be held liable if he followed a path that was recognized by a substantial
amount of other respected and competent doctors. 610 A.2d 964.




Scott v. Bradford
Supreme Court of Oklahoma, 1979.

Facts: Plaintiff’s physician advised her that she had several fibroid tumors on her uterus.
He referred her to defendant surgeon. Defendant admitted her to the hospital where she
signed a routine consent form prior to defendant’s performing a hysterectomy. After
surgery plaintiff experienced problems with incontinence. She was recommended to a
urologist, who after three surgeries was able to cure the problem. She claims in this suit
that the defendant failed to advise her of the risks involved or of available alternatives to
surgery. She further maintained had she been properly informed she would have refused
the surgery.

P.H.: Trial court jury verdict ruled in favor of the defendant.

Issue: Whether the defendant should have adhered to the doctrine of informed consent
before performing the surgery on the plaintiff?

Rule: Informed consent is as essential as a physician’s care and skill in the performance
of the therapy. The doctrine imposes a duty on a physician or surgeon to inform a patient
of his options and their attendant risks. If a physician breaches this duty, patient’s
consent is defective, and physician is responsible for the consequences.

Three elements for cause of action based on lack of informed consent: 1. Duty to
inform, 2. Causation, 3. Injury.

Plaintiff must prove: 1. Defendant physician failed to inform him adequately of a
material risk before securing his consent to the proposed treatment, 2. If he had been
informed of the risks he would not have consented to the treatment, 3. The adverse
consequences that were not made known did in fact occur and he was injured as a result
of submitting to the treatment.

Reasoning: Patient’s choice requires evaluation of the options and risks. A patient’s
right to undergo a procedure should not be left up to the local medical group. Full
disclosure of material risks must be given to patient, a risk is material if it would be likely
to affect the patient’s decision.

Defendant may try to prove that he acted this way because of an emergency or he knew
full disclosure would be detrimental to patients best interests.
Holding: The judgment of the trial court is affirmed, because the jury was presented with
instructions which told of the doctors duty to disclose material facts and obtain informed
consent.

-For the consent to be valid it must be an informed consent.
-If there is no breach there is no cause of action for negligence—the court neglected to
add breach to the list of required proofs.

Moore v. Regents of the University of California
Supreme Court of California, 1990.

Facts: Moore visited the UCLA medical center shortly after being diagnosed with hairy-
cell leukemia. The doctor recommended that the plaintiff have his spleen removed, the
doctor said this would slow the progress of the disease, therefore Moore consented to the
surgery. Plaintiff alleges that doctor formed the intent and made the arrangements to
obtain portions of his spleen following the removal. The doctor and some colleagues
actually found that Moore’s cells were unusually useful in the genetic research they were
performing, in fact the doctors patented a cell line and licensed it for commercial use
based on the extractions made from Moore.

P.H.: The trial court sustained a demurrer to the conversion count and then dismissed the
entire complaint without ruling on the other counts because of its view that the other
counts simply repeated the inadequate allegations of the conversion count. The court of
Appeals reversed.

Issue: Whether the doctor followed the correct standard and obtained the patient’s
informed consent before the commencement of medical procedures?

Rule: 1. A person of adult years and in sound mind has the right, in the exercise of
control over his own body to determine whether or not to submit to lawful medical
treatment, 2. The patient’s consent to treatment, to be effective, must be an informed
consent, 3. In soliciting the patient’s consent a physician has a fiduciary duty to disclose
all information to the patient’s decision (fiduciary—a duty of utmost good faith, trust,
confidence, and candor owed by a fiduciary—such as a lawyer or corporate officer—to
the beneficiary—such as lawyer’s client or shareholder—a duty to act with the highest
degree of honesty and loyalty toward another person and in the best interests of the other
person—such as the duty that one partner owes to another)

   1. A physician must disclose personal interests unrelated to the patient’s health,
      whether research of economic, that may affect the physician’s professional
      judgment
   2. A physician’s failure to disclose such interests may give rise to a cause of action
      for performing medical procedures without informed consent or breach of
      fiduciary duty.
The scope of the physician’s communication to the patient must be measured by the
patient’s need, and that need is whatever information is material to the decision.

A physician who is seeking a patient’s consent for a medical procedure must, in order to
satisfy his fiduciary duty and to obtain the patient’s informed consent, disclose personal
interests unrelated to the patient’s health, whether research or economic, that may affect
his medical judgment.

Reasoning: A doctor who treats a patient in whom he also has a research interest has
potentially conflicting loyalties. The patient’s interests and desires are the key
ingredients of the decision-making process.

There is competing consideration but ultimately the patient must make an informed
decision about the status of his own health.

Holding: Demurrers overruled with respect to breach of fiduciary duty and lack of
informed consent.

-The Standard of Care which must be applied here is that a doctor must exercise informed
consent and owes a fiduciary duty to those patients. It is the prerogative of the patient,
not the physician, to determine for himself the direction in which he believes his interests
lie. The doctor must inform the patient of any of his interests which might conflict with
the interests of the patients. Or the doctor must inform the patient of any competing
interests.

-In treating a patient a doctor should provide his client with enough information about
any competing interest that he doctor might have, such that a patient may then have
informed consent, disclosing this information in such a way that the relationship can exist
in a good faith, confidence, candor, and trust.

-Informed consent is based on the patient’s perspective—whatever the patient wants to
know he should be told.

Rules of Law

Pokora v. Wabash Ry. Co.
Supreme Court of the United States, 1934.

Facts: Plaintiff driving a truck approached a level railroad crossing at which defendant
had four tracks. Because of boxcars standing on the first track, five or ten feet to the
north of the crossing, he could not see the tracks to the north. He stopped, looked as well
as he could, and listened, but heard no bell or whistle. He then drove slowly ahead, and
when he reached the main track was struck by a passenger train from the north, coming at
30mph.
P.H.: The trial court directed a verdict for defendant, on the ground that plaintiff’s
conduct was contributory negligence as a matter of law, and this was affirmed by the
circuit court of appeals.

*Contributory Negligence: A plaintiff’s own negligence that played a part in causing the
plaintiff’s injury that is significant enough to bar the plaintiff from recovering.
-When talking about plaintiff’s conduct

Issue: Whether the actions of the plaintiff were significant enough to constitute
contributory negligence, thus preventing him from recovery? Whether the rules of law
stated that the driver has a duty to get out of the vehicle before it crossed the switch, walk
forward to the front, and then, afoot, survey the scene, was this negligence so certain that
it can lead to only one conclusion?

Rule: If a driver cannot be sure otherwise whether a train is dangerously near he must
stop and get out of his vehicle, although obviously he will not often be required to do
more than to stop and look.

Pennsylvania Rule: Imposing an underlying duty to stop, as well as to look and listen, no
matter how clear the crossing or the tracks on either side.

Majority Rule: The traveler must look and listen, but that the existence of a duty to stop
depends upon the circumstances, and hence generally, even if not invariably, upon the
judgment of the jury.

Reasoning: The opinion makes it clear that the duty is conditioned upon the presence of
impediments whereby sight and hearing become inadequate for the traveler’s protection.

It is futile and dangerous in some circumstances to have to get out of the car and walk
around to survey the land.

Holding: Judgment reversed because there is a default in the rules of law as to the proper
law to be followed here, rather the law is one of commonplace.

Violation of Statute

Osborne v. McMasters
Supreme Court of Minnesota, 1889.

Facts: Defendant’s clerk in his drug-store, in the course of his employment as such, sold
to plaintiff’s intestate a deadly poison without labeling it “poison”, as required by statute.
That she in ignorance of its deadly qualities, partook of the poison which caused her
death.

P.H.: Judgment for plaintiff.
Issue: Whether defendant is liable for negligence when he violated a statute?

Rule: Where a statute or municipal ordinance imposes upon any person a specific duty
for the protection or benefit of others, if he neglects to perform that duty he is liable to
those for whose protection or benefit it was imposed for any injuries of the character
which the statute or ordinance was designed to prevent, and which were proximately
produced by such neglect.

The failure to perform the duty constitutes negligence and renders the party liable for
injuries resulting from it.

Reasoning: The statute establishes a fixed standard by which negligence may be
determined. The gist of the action is still negligence, or the non-performance of a legal
duty to the person injured.

Holding: Judgment affirmed, the violation of a statute can establish negligence.

-Negligence Per Se: Restatement § 288b

Applicability of Statute

Stachniewicz v. Mar-Cam Corp.
Supreme Court of Oregon, 1971.

Facts: Plaintiff was sitting at a table adjacent to a group of other persons who were
taunting the plaintiff’s friends. The bartender warned the plaintiff’s friend not to start
trouble with the table group of patrons. Eventually a fight broke out, and plaintiff was
somehow injured in the head and suffered from retrograde amnesia.

P.H.: Jury returned a verdict for the defendant.

Issue: Whether the violation of said Oregon statute and regulations constitutes
negligence as a matter of law?

Rule: No person shall give or otherwise make available any alcoholic liquor to a person
visibly intoxicated.

No licensee shall permit or suffer any loud, noisy, disorderly or boisterous conduct, or
any profane or abusive language, in or upon his licensed premises, or permit to any
visibly intoxicated person to enter or remain upon his licensed premises.

A violation of a statute or regulation constitutes negligence as a matter of law when the
violation results in injury to a member of the class of persons intended to be protected by
the legislation and when the harm is of the kind which the statute or regulation was
enacted to prevent.
Reasoning: An examination of the regulation discloses that it concerns matters having a
direct relation to the creation of physical disturbances in bars which would, in turn, create
a likelihood of injury to customers. It is reasonable to assume that the statutes were
passed in order to protect eh public and the customer directly.

Holding: Because plaintiff was within the class of person intended to be protected by the
regulations and statutes, the trial court erred and negligence can be established as a matter
of law.
-There is a distinction made between regulations and statutes and the effect of each with
regard to negligence.

540 P.2d 33 Newing v. Cheatham
Res Ipsolocuitor—last case discussed for that section.

Ney v. Yellow Cab Co.
Illinois Supreme Court, 1954.

Facts: The plaintiff charged that defendant, by its servant, negligently permitted its
taxicab to remain unattended on a Chicago street without first stopping the engine or
locking the ignition or removing the key, contrary to a section of said act. The
undisputed facts reveal that a thief stole the taxicab and while in flight ran into plaintiff’s
vehicle causing property damage. The act in question provides; (a) No person driving or
in charge of a motor vehicle shall permit it to stand unattended without first stopping the
engine, locking the ignition and removing the key, or when standing upon any perceptible
grade without effectively setting the brake thereon and turning the front wheels to the
curb or side of the highway. (b) No person shall operate or drive a motor vehicle who is
under age fifteen.

P.H.: The appellate court here affirmed the trial court’s judgment fixing liability on the
defendant for violation of a section of the Uniform Traffic Act.

Issue: Whether the legislative act was intended to apply to matters of theft, and whether
a violation of the statute is a proximate cause of the injury, that the act of the thief an
intervening, independent, efficient force which breaks the causal connection between the
original wrong and the injury?

Rule: A violation of the statute is prima facie evidence of negligence under the
prevailing rule of this State. This in itself creates no liability.

The rule applies a fortiori to criminal acts. The intervention of a criminal act, however,
does not necessarily interrupt the relation of cause and effect between negligence and an
injury. If at the time of the negligence, the criminal act might reasonably have been
foreseen, the causal chain is not broken by the intervention of such act.

Reasoning: We cannot but conclude that the entire section of the statute is a public safety
measure.
The legislature has here used clear and express terms making it the duty of persons in
charge of motor vehicles to do certain acts upon leaving their vehicles unattended. The
motivation of such legislation is not the State’s desire to punish but rather its interest in
public welfare for protection of life, limb, and property by prevention of recognized
hazards.

We believe that under the circumstances as presented in the case before us we find no
persuasive authority and no impelling reasoning for this court to hold, as a matter of law,
that no actionable negligence can exist.

Holding: Judgment affirmed, the defendant’s disregard for auto traffic law was
negligence and the proximate cause of the damage.

Negligence per se + causation + damages = actionable negligence
(Duty and Breach)

You need proximate cause in addition to negligence per se (and damages) in order to
have actionable negligence. If someone is negligent per se, there was a duty in the
statute, the statute was breached. But to have actionable negligence you still have to
evidence causation and damages.

Perry v. S.N. and S.N.
Texas Supreme Court, 1998.

Facts: B.N. and K.N. attended a day care operated by Francis and Daniel Keller. Their
parents S.N. and S.N. allege that during that period, Daniel Keller regularly abused the
children at the center both physically and sexually. According to plaintiffs, Perry, White,
and Quintero did not attempt to stop Daniel Keller from abusing the children or report his
crimes to the police or child welfare authorities. Plaintiffs alleged that only Perry, White,
and Quintero were negligent per se because they violated a statute requiring any person
who has cause to believe that a child’s physical or mental health or welfare has been or
may be adversely affected by abuse to file a report with the police.

P.H.: The trial court granted summary judgment for the defendants, but the court of
appeals reversed and remanded plaintiff’s negligence per se and gross negligence claims
for trial, but affirmed summary judgment.

Issue: Whether it is appropriate to impose tort liability on any and every person who has
cause to believe that a child’s physical or mental health or welfare has been or may be
adversely affected by abuse or neglect and knowingly fails to report?

Rule: It is fundamental that the existence of a legally cognizable duty is a prerequisite to
all tort liability.
The threshold negligence questions in every negligence per se case are whether the
plaintiff belongs to the class that the statute was intended to protect and whether the
plaintiff’s injury is of a type that the statute was designed to prevent.

Reasoning: The children are with a class of persons whom the child abuse reporting
statute was meant to protect, and they suffered the kind of injury that the Legislature
intended the statute to prevent.

At common law there is generally no duty to protect another from the criminal acts of a
third party or to come to the aide of another in distress.

The role of the statute is to define what conduct breaches the reasonable man duty.

The evidence of legislative intent to punish those who don’t report much less severely
than those who commit the abuse clearly shows that one cannot be held civilly liable.

Holding: We hold that it is not appropriate to adopt Family Code as establishing a duty
and standard of conduct in tort. Therefore the plaintiffs may not maintain a claim for
negligence per se or gross negligence based on defendant’s violation of the abuse
reporting statute.



Effect of Statute

Martin v. Herzog
Court of Appeals of New York, 1920.

Facts: Plaintiff and her husband were driving in a buggy at night when they were struck
by the defendant’s automobile coming in the opposite direction. They were thrown to the
ground, and the man was killed. At the point of the collision the highway makes a curve,
the car of the defendant was rounding the curve when suddenly it came upon the buggy.
Negligence is charged against the defendant in that he did not keep to the right of the
center of the highway. Negligence is charged against the plaintiff’s intestate, the driver
of the wagon, in that he was traveling without lights.

P.H.: The jury found the defendant guilty and plaintiff blameless. The appellate division
reversed and ordered a new trial.

Issue: Whether the defendant is liable for negligence when he collided with a buggy
failing to use head lights? Whether the plaintiff was negligent in not lighting his buggy,
in order to prevent other vehicles from crashing with his buggy where a statute provides
that all travelers on the highway must have lit vehicles?

Rule: Lights are intended for the guidance and protection of other travelers on the
highway. By the very terms of the hypothesis, to omit, willfully or heedlessly, the
safeguards prescribed by law for the benefit of another that he may be preserved in life or
limb, is to fall short of the standard of diligence to which those who live in organized
society are under duty to conform.

Reasoning: A defendant who travels without lights is not to pay damages for his fault,
unless the absence of lights is the cause of the disaster. A plaintiff who travels without
them is not to forfeit the right to damages, unless the absence of lights is at least a
contributing cause of the disaster. To say that conduct is negligence is not to say that it is
always contributory negligence.

Evidence of a collision occurring more than an hour after sundown between a car and an
unseen buggy, proceeding without lights, is evidence from which a causal connection
may be inferred between the collision and the lack of signals.

Holding: A statute designed for the protection of human life is not to be brushed aside as
a form of words, its commands reduces to the level of cautions, and the duty to obey
attenuated into an option to conform. Court of appeals affirmed.

Zeni v. Anderson
Supreme Court of Michigan, 1976.

Facts:

Chapter 5: Causation in Fact

   1. Sine Qua Non

Perkins v. Texas and New Orleans Ry. Co.
Supreme Court of Louisiana, 1962.

Facts: The plaintiff brings this action as the widow of the passenger killed riding in a car
that was in a collision with a train. The accident occurred at the intersection of Eddy
Street and the perpendicular tracks of the defendant railroad company. Located in the
northwest quadrant of the intersection of the railroad track and Eddy Street was a
warehouse 500 feet long. This warehouse obstructed the view to the west of an
automobile driver approaching the railroad crossing from the north on Eddy Street. It
likewise obstructed the view to the north of trainmen approaching the crossing from the
west. Having previously served on this route, the engineer and brakeman were aware of
this obstruction. To warn the public of the approach of trains, the defendant had installed
at the crossing an automatic signal device consisting of a swinging red light and a bell.
At the time of the accident the signal was operating. The two crewmen saw the car
emerge from behind the warehouse. At that time the front wheels of the car were on or
across the north rail of the house track. The fireman estimated that the train was
approximately 60 feet from the crossing when the automobile emerged from behind the
warehouse. The brakeman estimated that the train was 30 to 40 feet from the crossing at
the time the car came into view. Both crewmen immediately shouted a warning to the
engineer, who applied the emergency brakes. The train struck the right side of the
automobile and carried it approximately 1250 feet. The two occupants were inside the
automobile when it came to rest. Both were killed. It was conceded that the railroad had
an imposed speed limit of 25mph, which it was estimated that the train was traveling at a
speed of 37mph.

P.H.: The district court found for plaintiff and awarded damages. The court of appeals
affirmed.

Issue: Whether the excessive speed of the train was a cause in fact of the fatal collision?

Rule: It is fundamental that negligence is not actionable unless it is a cause in fact of the
harm for which recovery is sought. It need not, of course, be the sole cause. Negligence
is a cause in fact of the harm to another if it was a substantial factor in bringing about that
harm.

Reasoning: Under the circumstances of the instant case, the excessive speed was
undoubtedly a substantial factor in bringing about the collision if the collision would
have occurred without it. On the other hand, if the collision would have occurred
irrespective of such negligence, then it was not a substantial factor.

It is clear, that even at the concededly safe speed of 25mph, the momentum of the train
would have, under the circumstances, carried it well beyond the crossing. It was
determined that the train would have needed at least 1250 feet to stop when traveling at a
speed of 37mph.

The plaintiff argues that had the train been traveling at a proper speed the driver of the
car would conceivably have had some additional time to take measures to avert disaster
and the deceased would have had some additional time to extricate himself from danger.

Based upon the evidence of record, it appears almost certain that the fatal accident would
have occurred irrespective of the excessive speed of the train. It follows that this speed
was not a substantial factor in bringing about the accident.

Holding: The plaintiff has failed to discharge the burden of proving that the negligence
of the defendant was a cause in fact of the tragic death. The case is reversed and
dismissed.

   2. Proof of Causation

Gentry v. Douglas Hereford Ranch, Inc.
Supreme Court of Montana, 1998.

Facts: Bacon returned to the house on the ranch of defendants. He was holding his rifle
on his shoulder with his right hand. As he was approaching a wooden deck adjacent to
the house to get a radio from the pickup. Bacon stumbled and his rifle discharged, the
bullet struck Gentry in the head, and she died several weeks later from the head injury.
The complaint alleged that Bacon had been negligent in his handling of the rifle and that
the ranch and cattle company defendants had been negligent in maintaining the deck
stairs in a dangerous condition and that their combined negligence had cause the injury.

P.H.: The trial court entered judgment in favor of the defendant.

Issue: Whether the defendants were negligent in a manner that contributed to the injuries
and death of Gentry in that its treatment of the stairs was a cause in fact of her resulting
death?

Rule: In those cases which do not involve issues of intervening cause, proof of causation
is satisfied by proof that a party’s conduct was a cause in fact of the damage alleged. A
party’s conduct is a cause in fact of an event if the event would not have occurred but for
that conduct, conversely, the defendant’s conduct is not a cause of the event, if the event
would have occurred without it.

A suspicion, regardless of how particularized it may be, is not sufficient to sustain an
action or to defeat a motion for summary judgment. Unsupported conclusory or
speculative statements do not raise a genuine issue of material fact. The trial court has no
duty to anticipate possible proof.

In an action for negligence, a plaintiff must produce evidence from which it can be
reasonably inferred that negligent conduct on the part of the defendant or its agents was
the proximate cause of the plaintiff’s injuries.

Reasoning: The isolated statement relied on by Gentry does not support the contention
that it was the condition of the step or the area surrounding the step which caused Bacon
to stumble and fall. The most that could be inferred was that he was about to ascend the
stairs when he did stumble and fall. Why he stumbled and fell would still require
speculation.

Gentry has offered no substantial evidence that any condition on the property owned by
the ranch company and leased by the cattle company caused Bacon to stumble and fall
immediately before his rifle discharged and struck the decedent.

Holding: Affirmed—the district court did not err when it held that the ranch company
defendants were not negligent in a manner that contributed to the injuries of Gentry.

-Cause in fact and proximate cause are two different things.

Reynold v. Texas & Pac. Ry. Co.
Court of Appeals of Louisiana, 1885.

Facts: Plaintiff a corpulent woman, emerging from the bright light of the sitting-room
and hastening down the unlighted steps, made a misstep in some way and was
precipitated beyond the narrow platform in front and down the slope beyond, incurring
the serious injuries complained of.
P.H.: The trial court found for the plaintiff and awarded damages of $2000.

Issue: Whether the company was the cause in fact for not providing a hand rail and
lighting the steps, which cause the injury to the plaintiff?

Rule: Where the negligence of the defendant greatly multiplies the chances of accident to
the plaintiff, 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.

Reasoning: The defendant contends that she would have fallen anyway, and it was not a
result of the steps being unlighted that she stumbled and fell.

Holding: The whole tendency of the evidence connects the accident with the negligence,
the defendants negligence was the cause in fact of the plaintiff’s injuries.

-Causation cannot be determined or assumed simply by the timing of events, the timing
does not in and of itself determine causation.

Kramer Service, Inc. Wilkins
Supreme Court of Mississippi, 1939.

Facts: The plaintiff was a guest in the defendants hotel, received a cut on his forehead
from a piece of glass that fell from a broken transom when the plaintiff opened the door.
There was evidence that the condition of disrepair had existed long enough to charge
defendant with notice of it. The wound did not heal, and two years after the injury
plaintiff went to a skin specialist, who found that at the point the injury occurred a skin
cancer had developed.

P.H.: The defendant appeals a jury verdict for the plaintiff.

Issue: Whether the disrepair to the transom was the cause in fact of the injury received
and sustained by the plaintiff, which resulted in a skin cancer to that part of the head.

Rule: It is not enough that negligence of one person and injury to another coexisted, but
the injury must have been caused by the negligence. Post hoc ergo propter hoc is not
sound as evidence or argument. Possibilities will not sustain a verdict.

Reasoning: The medical testimony showed that the cancer was probably not a result of
the injury and the chances of this occurring were 1 in 100.

The testimony of medical experts is advisory only and can not be accepted as fact. But
where the testimony is beyond that of a layman then the testimony is sound.
Holding: Affirmed as to liability, reversed as to the damages. The case here cannot be
determined by the testimony of medical experts, and therefore the injury could have
resulted in the formation of the cancer. Thus the hotel is liable for the injury as a result of
cause in fact negligence of the care owed to the transom.

Herskovits v. Group Health Cooperative of Puget Sound
Supreme Court of Washington, 1983.

Facts: Defendant negligently failed to diagnose the plaintiff’s cancer on his first visit to
the hospital and proximately cause a 14% reduction in his chances of survival. It is
undisputed that plaintiff had less than a 50% chance of survival at all times herein.

P.H.: The trial court granted the defendant’s motion for summary judgment.

Issue: Whether a patient with less than a 50% chance of survival has a cause of action
against the hospital and its employees if they are negligent in diagnosing a lung cancer
which reduces his chances of survival by 14%?

Rule: In the typical tort case, the but for test, requiring proof that damages or death
probably would not have occurred but for the negligent conduct of the defendant, is
appropriate.

As the Hamil court noted, the fact finder is put in a position of having to consider not
only what did occur, but also what might have occurred.

Reasoning: The Hamil court held that once a plaintiff has demonstrated that the
defendant’s acts or omissions have increased the risk of harm to another, such evidence
furnishes a basis for the jury to make a determination as to whether such increased risk
was in turn a substantial factor in bringing about the resultant harm.

We reject Group Health’s argument that plaintiffs must show that Herskovits probably
would have had a 51% chance of survival if the hospital had not been negligent.

Holding: We hold that medical testimony of a reduction of chance of survival from 39 to
25% is sufficient evidence to allow the proximate cause issue to go to the jury. Damages
should be awarded to the injured party of his family based on damages caused directly by
premature death, such as lost earning and additional medical expenses, etc. Reverse the
trial court and reinstate the cause of action.

Daubert v. Merrell Dow Pharmaceuticals, Inc.
United States Court of Appeals, Ninth Circuit, 1995.

Facts: Two minors brought suit against defendant claiming they suffered limb reduction
birth defects because their mothers had taken Bendectin, a drug prescribed for morning
sickness to about 17.5 million pregnant women in the U.S. between 1957 and 1982. The
plaintiffs seek to establish that Bendectin is responsible for their injuries. However, the
opinions proffered by plaintiff’s experts do not reflect the consensus within the scientific
community.

P.H.: On remand from the U.S. Supreme Court.

Issue: Whether certain expert scientific testimony is admissible to prove that Bendectin
caused the plaintiff’s birth defects?

Rule: Causation can be proved even when we don’t know precisely how the damage
occurred, if there is sufficiently compelling proof that the agent must have caused the
damage somehow.

Must determine whether the experts testimony reflects scientific knowledge whether their
findings are derived by the scientific method, and whether their work product amounts to
good science. Second it must be determined that the proposed expert testimony is
relevant to the task at hand, that it logically advances a material aspect of the proposing
party’s case.

California tort law requires plaintiffs to show not merely that Bendectin increased the
likelihood of injury, but that it more likely than no caused their injuries.

Reasoning: The experts’ bald assurance of validity is not enough. Rather the party
presenting the experts must show that the experts findings are based on sound science,
and this will require some objective, independent validation of the experts methodology.
The court lists several factors: whether the theory or technique employed by the expert is
generally accepted in the scientific community, whether its been subjected to peer review
and publication, whether it can be and has been tested, and whether the known or
potential rate of error is acceptable.

While plaintiffs scientists are all experts in their respective fields, none claims to have
studied the effect of Bendectin on limb reduction defects before being hired to testify in
this or related cases.

If the proffered testimony is not based on independent research, the party proffering it
must come forward with other objective, verifiable evidence that the testimony is based
on scientifically valid principles.

In terms of statistical proof plaintiffs must establish not just that their mothers ingestion
of Bendectin increased somewhat the likelihood of birth defects, but that it more than
doubled it—only then can it be said that Bendectin is more likely that not the course of
their injury.

Plaintiffs must prove that it cause their birth defects. To show this plaintiffs experts
would have had to testify either that B actually caused plaintiffs injuries or that B more
than doubled the likelihood of limb reduction birth defects.
Holding: Plaintiffs experts must, therefore, stand by the conclusions they originally
proffered, rendering their testimony inadmissible under the second prong of 702.
Affirmed.

Concurrent Causes

Hill v. Edmonds
Supreme Court of New York, Appellate Division, 1966.

Facts: The owner of truck who on a stormy night left it parked without lights in the
middle of a road where the car in which plaintiff was a passenger collided with from the
rear.

P.H.: Trial court dismissed complaint.

Issue: Whether the driver of the truck was solely negligent for leaving the truck unlit on
the street?

Rule: Where separates acts of negligence combine to produce directly a single injury
each tortfeasor is responsible for the entire result, even though his act alone might not
have caused it.

Reasoning: The driver of the car testified that she noticed the truck when it was four car
lengths in front of her, thus giving her enough time to turn and avoid the truck.

Holding: The complaint must be reinstated and a new trial had.

Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co.
Supreme Court of Minnesota, 1920.

Facts: A forest fire which originated in a bog and was found by the jury to have been
caused by the negligence of the defendant, swept over a large area. It merged with
another fire of independent and uncertain origin, and the combined fires burned over
plaintiffs property.

Issue: Whether the defendant is negligent when two fires merged and burned the
residence of plaintiff, when defendants fire may not have been of substantial cause?

Rule: If a fire set by the engine of one railroad company unites with a fire set by the
engine of another company, there is joint and several liability, even though either fire
would have destroyed plaintiffs property.

Reasoning: Normally a fire with unknown origin does not create liability. But in the
present case there should be liability.
Holding: There should be liability in such a case. Affirmed. Cook should be applied to
this case.

Chapter 6: Proximate or Legal Cause

Unforeseeable Consequences

Bartolone v. Jeckovich
Supreme Court of New York, 1984.

Facts: Plaintiff was involved in a four car, chain reaction, car accident. Plaintiff
sustained relatively minor injuries consisting of whiplash and cervical and lower back
strain for which he was treated with muscle relaxants and physical therapy but was not
hospitalized. Subsequently, however he suffered an acute psychotic breakdown for
which he has not recovered. The theory presented was that the accident caused a pre-
existing condition to suddenly come to fruition from the accident.

Issue: Whether the defendant can be held liable for resulting mental incapacities as a
result of trauma from an accident, where it has been shown that the mental deficiency
was pre-existing and was triggered by the accident?

Rule: The circumstances of those cases as well as those of the case before us illustrate
the truth of the old axiom that a defendant must take a plaintiff as he finds him and hence
may be held liable in damages for aggravation of a pre-existing illness.

Nor may the defendants avail themselves of the argument that plaintiff should be denied
recovery because his condition might have occurred even without the accident.

Reasoning: The plaintiff was leading a normal life and this accident was the trigger of
him now leading a handicapped life.

Holding: The order is reversed because the plaintiff should recover for the mental
damages caused as a result of the accident.

-The eggshell skull rule: The plaintiff must be taken as found.

In re Arbitration Between Polemis and Furness, Withy & Co., Ltd.
Court of Appeal, 1921.

Facts: Respondents chartered there vessel to the appellants, the vessel was employed by
the charterers to carry a cargo to Casablanca. The cargo included a quantity of benzine or
petrol in cases. While discharging at Casablanca a heavy plank fell into the hold in
which the petrol was stowed, and caused an explosion, which set fire to the vessel and
completely destroyed the ship. The owners claimed negligence for the value of the ship,
claiming the charterers were negligent in unloading the ship in that manner.
Issue: Whether the defendant is liable for the fire that was caused by a plank that fell
onto the ship while it was being unloaded?
Rule: If the act would or might probably cause damage, the fact that he damage it in fact
causes is not he exact kind of damage one would expect is immaterial, so long as the
damage is in fact directly traceable to the negligent act, and not due to the operation of
independent causes having no connection with the negligent act, except that they could
not avoid its results. Once the act is negligent, the fact that its exact operation was not
foreseen is immaterial.

Consequences which follow in unbroken sequence, without intervening efficient cause,
from the original negligent act are natural and proximate.

Reasoning: The fire appears to have been directly caused by the falling of the plank.
Under these circumstances I consider that it is immaterial that the causing of the spark by
the falling of the plank could not have been reasonably anticipated.

Holding: The appeal must be dismissed because it was negligent in discharging cargo to
knock down the planks of the temporary staging, for they might easily cause some
damage either to workmen, cargo, or the ship.

Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd.
Privy Council, 1961.

Facts: Plaintiff operated a wharf for shipbuilding and ship repairing. The freighter
owned by the defendants was moored about 600 feet away. The freighter carelessly
discharged into the water a large quantity of furnace oil, which spread across the surface.
The oil came in contact with the slipways of plaintiffs wharf, and interfered with their
use, causing only minor damage. The oil was ignited when cotton waste floating on its
surface was set fire by molten metal dropped from the wharf by plaintiff’s workmen. The
fire seriously damaged the wharf, as well as two ships docked alongside it.

P.H.: The trial court found that defendants did not know and could not reasonably be
expected to have known that the oil was capable of being set afire when spread on water.

Issue: Whether the defendants can be held liable for spilling the oil on the water?

Rule: A man must be considered to be responsible for the probable consequences of his
act. The area within which liability is imposed is that which is within the circle of
reasonable foreseeability.

Reasoning:

-Essential factor in determining liability is whether the damage is of such a kind as the
reasonable man should have foreseen. If it is clear that the reasonable man would have
realized or foreseen and prevented the risk, then it must follow that the appellant is liable
in damages.
-The engineer should have known that this type of oil was prone to catching on fire, even
though it was in the water.
Palsgraf v. Long Island R.R. Co.
Court of Appeals of New York, 1928.

-Duty can be based upon relationships.

Section 435a of the restatements:

Section 435b:

								
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