Various Torts Law Briefs V

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Various Torts Law Briefs V Powered By Docstoc
					TORTS FOR 10/27/04
NEW YORK CENTRAL RAILROAD CO., V. GRIMSTAD, US Court of Appeals, 2nd Circuit, 1920 History: Jury found as a fact defendant was negligent in not equipping barge w/lifepreservers Facts: Barge was lying port side of steamer in Brooklyn loaded w/sugar in transit from Havana to St. John; Tug entered slip bumped against barge; Decedent’s wife, feeling the shock, came out from the cabin, looked on one side of the barge, saw nothing, went across the deck to the other side, and found her husband had fallen in the water about 10 ft. from the barge holding his hands out of the water; he didn’t know how to swim; she went back into cabin for a line and when she came back out, he had disappeared; he drowned Issue: Whether defendant was negligent in not equipping the barge w/life-preservers. Whether if there had been a life-preserver on board Grimstad would have been saved from drowning Holding: Judgment reversed Analysis: Proximate cause of death was his falling into water; since no testimony, assume it happened w/out negligence on his part or on part of defendant Nothing showed defendant didn’t die b/c he didn’t know how to swim; or that wife would’ve gotten the buoy/life-preserver in time Court erred in denying defendant’s motion to dismiss the complaint at the end of the case

ANDERSON V. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO., Supreme Court of MN, 1920 History: Plaintiff had a verdict; appeal from an order denying a motion in the alternative judgment notwithstanding the verdict or for a new trial Facts: One of defendant’s engines started a fire in a bog near the west side of plaintiff’s land; it smoldered there for about two months when it flared up and burned his property shortly before it was reached by one of the big fires which swept through northeastern MN at the end of that day Issue: Concurrent causes Holding: Order is affirmed Analysis: If Cook case decides one who negligently sets a fire is not liable if another’s property is damages, unless it is made to appear that the fire was a material element in destruction of property, there can be no question about soundness of the decision But if it decides that if that fire combines w/another of no responsible origin, and after the union of the first two fires they destroy the property and either fire independent of the other would’ve destroyed it anyway, then no matter if the first fire was/not matieral factor in destruction of the property, there is no liability SUMMERS V. TICE, Supreme Court of CA, 1948, 1948 History: Judgments for Plaintiff Summers; Tice/Simonson appeal; appeals consolidated pursuant to stipulation Facts: Defendant Tice flushed a quail and it flew between plaintiff and defendants; both defendants shot at quail, in plaintiff’s direction; one shot hit plaintiff’s eye Issue: Whether judgment against both defendants should stand—failure to identify the specific actor Holding: Judgments for Plaintiff Summers affirmed Analysis: Oliver court held the two person hunting together were acting in concert and so both liable Not fair to plaintiff—he was injured and if one is let go, the other might be, and he is remediless If both defendants are independent tort feasors, they should have to work out any apportionment between themselves and innocent wronged party should not be deprived of his right to redress

HYMOWITZ V. ELI LILLY & CO., Court of Appeals of NY, 1989 History: Defendants moved for summary judgment dismissing complaints b/c plaintiffs could not identify the manufacturer; trial court denied these motions Facts: (1947) FDA began approving the New Drug Application of manufacturers to market DES to prevent miscarriages; (1971) FDA banned use of DES as miscarriage preventative, b/c it caused vaginal cancer and precancerous vaginal/cervical growth Issue: Identification of manufacturer of DES virtually impossible; many claims barred by Statute of Limitations before injury discovered Whether a DES plaintiff may recover against a DES manufacturer when id of producer of the specific drug that caused the injury is impossible Holding: Appellate Division affirmed Analysis: In products liability, identification of the exact defendant whose product injured plaintiff is generally required Court agrees w/high State courts that tort doctrines of alternative liability and concerted action, available in some personal injury cases to permit recover where the precise identification of a wrongdoer is impossible, in their un-altered common-law forms do not permit recovery in DES cases Alternative liability Summers v. Tice; alternative liability provides DES plaintiffs w/no relief Theory of concerted action provides no basis for recovery; doctrine provides for joint and several liability on part of all defendants having an understanding, express or tacit, to participate in a common plan/design to commit a tortuous act Court says it’s more appropriate that loss be borne by those who produced drug than by those were injured by its use Market share concept—loosened requirement that all possible wrongdoers be before the court and made a “substantial share” sufficient; each defendant who couldn’t prove it didn’t actually injure plaintiff would be liable according to that manufacturer’s market share Court says market share theory based upon a national market is the best solution Apportion liability based on the amount of risk of injury each defendant created to public-at-large