Torts Briefs Printed: February 4, 2008 Roger W. Martin Torts Case Briefs Professor Heriot MW 5:30-6:45 1. I. de S. and Wife v. W. de S. (1348 or 1349); briefed 8/26/94. Pg. 4 2. Facts: came to 's tavern for wine at night when it was closed and began chopping at the door with a hatchet. 's wife stuck her head out a window and ordered him to stop, "and he perceived her and struck with the hatchet, but did not touch the woman." An inquest said "no harm, no foul". 3. Procedural Posture: First action before a royal court at the Assizes. 4. Judges Rule: It is not necessary for physical contact to occur for an assault to have occurred. Judgment for . 5. Classical Holding(s): When a makes an attack upon a house causing the persons inside to be placed in imminent apprehension of personal harm, then there is assault, even if there is no physical contact to the . 6. Reasoning: Although the hatchet did not strike the , there was still harm against , since "made an assault upon the woman". 1. Tuberville v. Savage (1669); briefed 8/26/94. Pg. 5 2. Facts: put his hand on his sword and stated to , "If it were not assize-time, I would not take such language from you." took this language to be sufficient provocation to assault, batter and wound . 3. Procedural Posture: First action before a royal court at the Assizes. Convoluted posture because the issue is really the conduct of the . 4. Judges Rule: "...if one strike another upon the hand, or arm, or breast in discourse, it is no assault, there being no intention to assault; but if one intending to assault, strike at another and miss him, this is an assault..." Judgment for . 5. Classical Holding(s): When a person intends to put another in imminent apprehension of personal harm, there is an actionable tort of assault. 6. Reasoning: explicitly stated that he would not strike , because it was assize-time (judges were in town). Thus there was no intention, and there was certainly no act. 1. Vosberg v. Putney (1891); briefed 8/26/94. Pg. 8 Roger W. Martin 1Torts Briefs Printed: February 4, 2008 2. Facts: had previously injured his leg above the knee about 1 1/2 months before reached across the classroom aisle with his foot, and kicked in the shin just below the knee. The kick was slight, however the jury found that developed tissue and bone damage as a result of the kick, by aggravating the infection originating during the previous injury. The jury also found that did not mean to do any harm (no malice). 3. Procedural Posture: Action to recover damages for assault and battery. The first trial resulted in judgment for for $2,800. appealed to this court, where the previous judgment was reversed for error, and a new trial awarded. 4. Judges Rule: "A wrong-doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him." 5. Classical Holding: In the absence of consent, either explicit or implied, a person who intentionally commits a wrongful act which results in the harmful touching of another has committed a tortious battery is liable for damages arising from his action. 6. Reasoning: 1. Since the kick was a violation of the "order and decorum" of the school classroom, it was unlawful, and therefore the intention to commit it was unlawful. 2. Because the classroom had rules of "order and decorum", and the teacher had already called the class to order, there was no "implied license" because kicking another in the shin is not expected behavior for the classroom. Notes: 2. In Garrat v. Dailey, 5 yr. old was held liable for a battery tort when he pulled a chair out from under an arthritic woman as she was sitting down, because although he may not have intended to injure , he knew that was trying to sit. This knowledge made 's act wrongful. 3. Transferred Intent: In Talmage v. Smith, was held liable for battery when a stick he threw at trespassers struck a different person, . Court held that intent to inflict unwarranted injury on someone is an actionable tort when that injury is inflicted on an unintended person. 4. O.W. Holmes stated that a person is liable for trespass and damages of another's property, even if does the harm because he thinks the property to be his own, because he necessarily intended to do the harm. In Brown v. Dellinger, 's were held liable for burning down a neighbor's house by starting an unauthorized fire in 's garage grill, even though they did not intend the fire to get out of the grill. 5. In Cleveland Park Club v. Perry, 9 yr. old put a rubber ball into a pool drain which he mistakenly believed was not operating suction. Court held that the intent controlling the tort was the intent to do the act, not the intent to cause harm. 1. Mohr v. Williams (1905); briefed 8/27/94. pg. 15 2. Facts: is an ear surgeon who upon examination of 's right ear, convinced to consent to submit to an operation to remove a polyp and diseased portion of 's right ear. However, after was unconscious from administration of anesthetics in Roger W. Martin 2Torts Briefs Printed: February 4, 2008 preparation for the right ear surgery, found 's left ear to be more in need of surgery that 's right ear. He then performed a skillful and successful operation on 's left ear, without the 's consent. brought a battery action against to recover damages, complaining that the surgery impaired her hearing. 3. Procedural posture: Original action resulted in a verdict for for $14,322.50. The trial court set aside the previous verdict and ordered a new trial. Both parties appealed from such orders to this court. 4. Judges Rule: "...any unlawful or unauthorized touching of the person of another, except it be in the spirit of pleasantry, constitutes an assault and battery". 1 Jaggard, Torts, 437. 5. Classical Holding: When the circumstances surrounding a medical procedure that requires surgery do not justify proceeding without a patient's consent, performing said surgery without authorization is unlawful and the surgeon is liable for damages arising from a battery tort. 6. Reasoning: The trial court jury found that the surgery was not of an emergent nature. Therefore, since it was unauthorized by the , then it was unlawful, and since it was unlawful, it was battery. Notes: 1. Surgeons now use a consent form to avoid the dilemma in Mohr v. Williams. 2. The consent must be to the act actually performed. 3. Consent can also be implied by the conduct of a person. 4. In an emergency situation, where the health of a person is endangered, "unauthorized operation is justified under consent implied from the circumstances". 5. Substituted consent: In general, consent of a parent/guardian is necessary for non-emergency operations on minors and incompetents. 6. In Belchertown State School v. Saikewicz, the court held that the ultimate consent of performing painful and uncertain therapy on a terminal patient who was incapable of providing his own consent lies with the court. This stand was retreated from in Brophy v. New England Sinai Hospital where the court allowed a family to deny an incompetent any nutrition, even over the protests of the attending physicians, based on the need for "honoring the privacy and dignity of the individual". 7. Substituted consent for the benefit of others: it is possible for a guardian to provide consent to operation on an incompetent that will benefit another (such as for kidney transplant). 8. "Normally, the defense of consent to physical contact can be overridden if it is shown that the consent was induced by fraud or even by nondisclosure of some material fact." 1. Canterbury v. Spence (1972); briefed 8/27/94. Pg. 191 2. Facts: Minor child, , suffered from severe back pain that Dr., , suspected was the result of a ruptured disc. told he needed a laminectomy to correct this condition. told 's mother that the operation was serious, but "not more than any Roger W. Martin 3Torts Briefs Printed: February 4, 2008 other operation". later testified that the probability of paralysis in a laminectomy was about 1% but he did not normally inform his patients of risks of this nature so as not to deter them from undergoing necessary surgery. While performing the surgery, noted that 's spinal cord was swollen and in very poor condition. During the 's recuperation, he fell from his bed while unattended, and thereafter experienced paralysis of the bowels, urinary incontinence, and required crutches. sued for negligence and failure to inform him beforehand of the risks involved. 3. Procedural posture: filed suit in District Court 4 yrs. after the laminectomy. Judge granted verdicts for both 's for failure of to provide medical evidence of negligence. appealed and this court reversed and remanded for new trial. 4. Judges Rule: "True consent to what happens to one's self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each." 5. Classical Holding: In order for a patient to properly consent to a surgery, the physician must disclose to the patient what risks associated with the surgery are reasonable to disclose under the circumstances. 6. Reasoning: The court reasoned that "every human being of adult years and sound mind has a right to determine what shall be done with his own body". The nature of the physician-patient relationship demands that the physician volunteer this information, even without the patient asking. They further reasoned that a 1% chance of such a grave consequence as paralysis was reasonable to disclose, and a hypothetical reasonable patient would likely consider that information as significant when making his decision of whether or not to consent to the operation. Notes: 1. When remanded, the case was once again decided for . 2. British cases have repudiated the burden that Canterbury put on physicians. 3. In Mink v. University of Chicago, the court held that a battery claim was proper (as opposed to negligence) because the 's were subjected to medical experiments without their knowledge, therefore the issue of implied consent was meaningless. 4. In Kozup v. Georgetown University (1987), the court held that the risk of contracting AIDS from a blood transfusion was not material in 1983. They further held that the failed to demonstrate that the disclosure of the risk of AIDS would have prevented the transfusion. 6. Disclosure for non-treatment: In Truman v. Thomas, it was held that when a patient refuses a risk-free treatment, the physician has the additional duty to inform the patient of any risks of non-treatment. 7. In Bly v. Rhoads, the court held that a patient-plaintiff suing for lack of informed consent must provide expert medical witnesses to testify what should have been disclosed. 8. 1. Hudson v. Craft (1949); briefed 8/28/94. Pg. 22 Roger W. Martin 4Torts Briefs Printed: February 4, 2008 2. Facts: is an 18 yr. old boy who, upon the promise of receiving 5 dollars, stepped into an illegal prize-fight at a carnival, where he suffered personal injuries as the result of being struck by his opponent. then sues 's, the illegal prize fight promoter, and his opponent, for battery damages. 3. Procedural posture: is appealing a judgment of dismissal. The dismissal occurred because of 's failure to amend his complaint after demurrer thereto by was sustained, and the judge gave permission to amend his complaint. 4. Judges Rule: When two parties engage in consentual combat, their consent "prevents an invasion from being tortious and, therefore, actionable, although the invasion assented to constitutes a crime". 2. "The promoter is liable where he conducts boxing matches or prize fights without a license and in violation of the statutory provisions ..., and that the consent of the combatants does not relieve him of that liability." 5. Classical Holding: 1. Consentual participants in an illegal prize fight are barred from collecting damages due to injuries sustained during the fight. 2. The promoter of an illegal prize fight is liable for damages as compensation for the possible injuries of consenting participants in the illegal fight. 6. Reasoning: 1. Based on the Restatement of torts section 60. 2. The court reasoned that it is from the illegal conduct of the promoter that the fighters are protected under the Restatement of torts section 61, where the assent of a person to a invasion of which he cannot appreciate the consequences is not consent thereto. The history of the rules of boxing in California suggest that those rules intend to protect the participants. Notes: 2. Volenti non fit injuria -the volunteer suffers no wrong. Ex turpi causa non oritur actio, no action shall arise out of an improper or immoral cause. 3. In Hackbart v. Cincinnati Bengals, Hackbart, a football player, suffered injuries from a deliberate and wrongful blow to the back of the head by an opposing player. The court of appeals said that there is no reason that the roughness of football should excuse tortious actions on the part of a player, especially when those actions are contrary to the prescribed rules of the game. Similar ruling was upheld in Nabonzy v. Barnhill where a high-school soccer goalie was kicked in the head intentionally. In Turcotte v. Fell, it was held that the known, apparent and foreseeable dangers of a sport, in this case recklessness of another horse jockey, was not cause for action, as distinguished from Nabonzy and Hackbart. 1. McGuire v. Almy (1937); briefed 9/3/94. Pg. 28 2. Facts: was a nurse at a mental institute, in direct care of , who was known to have occasional violent outbursts. On the night of the alleged battery, ransacked her room and threatened that if she came in, would kill her. called for additional people to help, and then entered 's room. then hit over the head Roger W. Martin 5Torts Briefs Printed: February 4, 2008 with the leg of a low-boy. 3. Procedural posture: An action of tort for assault and battery. Original trial court. 4. Judges Rule: "...where an insane person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstances in which a normal person would be liable." 5. Classical Holding: When insane people act upon an intent to cause a harmful or offensive contact with another, they are liable for the damage they cause according to the same principles that govern battery committed by sane people. 6. Reasoning: The court avoided the question of determining the nature and extent of the 's mental illness in order to determine fault, stating that for this case it was only necessary to determine if the actually intended to do harm to the . They reasoned that holding an insane person liable for his tortious actions would motivate his guardians to keep a close eye on him, because the same money he used for his medical care could also be used to pay for his liabilities. In this way, the courts provide an effective deterrent against battery by insane people, even though the insane person necessarily acts irrationally. Notes: In Polmatier v. Russ an insane man who murdered his father-in-law was held liable for an intentional tort, because although he was being irrational in his reasons for committing the act, it was intentional. It would not have been intentional if it were shown to be a reflexive or epileptic act beyond his will. 1. Courvoisier v. Raymond (1896); briefed 9/3/94. Pg. 32 2. Facts: was sleeping upstairs from a jewelry store that he owned, when several intruders attempted to gain entry to an adjoining room where his daughter slept. chased the intruders into the street with a gun, where they were joined by others. He fired some shots in the air to frighten them, but instead they began to throw things at him. A nearby police officer, , came over to break up the fighting, and , allegedly thinking was one of the rioters, purposefully shot . 3. Procedural posture: In trial court, judgment was for . appealed. 4. Judges Rule: If a person reasonably believes that his life is in danger, or that he is in danger of receiving great bodily harm, then he is not liable for damages he causes in self-defense. 5. Classical Holding: While actively defending themselves from rioters, if people intentionally shoot and wound an innocent person because they reasonably believe they are in imminent danger of bodily harm or death from that person, their actions are justified by self-defense and therefore they are not liable for Roger W. Martin 6Torts Briefs Printed: February 4, 2008 damages. 6. Reasoning: The court of appeals reasoned that the lower court was errant in it's jury instructions, which demanded a verdict for if they found that was not actually assaulting at the time of the shooting. The court of appeals stated that aside from actual assault, the defendant would be justified in his actions if it could be shown, in light of the circumstances, that a reasonable person would have believed himself in imminent danger of bodily harm. Notes: 1. "The Restatement (Second) of Torts takes no position on the question of whether the privilege of self-defense is available against an assailant whose conduct is neither wrongful nor negligent." 2. "In Morris v. Platt, the court held that the accidental harming of an innocent bystander by force reasonably intended in self-defense to repel an attack by a third party is not actionable. " 1. M'Ilvoy v. Cockran (1820); briefed 9/3/94. Pg. 37 2. Facts: owns a fence that was tearing down by actual force. In protection of his property, "used sufficient force in repelling [ ] to wound him severely." 3. Procedural posture: In trial court, the judge refused to enter into the jury instructions a plea from the that if it was found that was defending his real property against , then verdict should be for . After verdict for , moved for a new trial which motion was overruled and judgment entered for . This court affirmed. 4. Judges Rule: "A wounding cannot be justified barely in defense of possession..." 5. Classical Holding: When solely in defense of personal property, a person employs force sufficient to wound the attacker, he is liable for a battery. 6. Reasoning: The court stated that force can be employed to repel actual force in the defense of personal property, and force may even be employed where the attacker is only employing constructive or implied force and continues his attack when first asked to desist. However, there was no allegation of a personal assault by in this case, so a wounding was not justified, and the trial court was correct in refusing the entry to the jury instructions that was asked for by . 1. Bird v. Holbrook (1825); briefed 9/3/94. Pg. 39 2. Facts: owns a walled garden where he raises expensive tulips. After being robbed once, he surrounding his garden with a trip wire activated spring gun to protect it from intruders. intentionally did not place notice of the spring gun, because he wanted it to shoot the intruder. volunteered to retrieve a runaway pea-hen that had wandered into 's garden, and so climbed the high wall, and Roger W. Martin 7Torts Briefs Printed: February 4, 2008 entered the garden where he tripped the wire and was shot in the knee by the spring gun. 3. Procedural posture: This is an English case, first action. 4. Judges Rule: A person who intentionally uses sufficient force to wound a trespasser, solely in protection of his property, with the express purpose of doing injury, is liable for battery. 5. Classical Holding: Where people give no deterrent notice to potential trespassers of the intentionally injurious traps that they have set solely to protect their property from trespassers, and that trap injures a trespasser who is not actually assaulting them or their family, they are liable for damages. 6. Reasoning: The defense plead that the was immune from liability under the doctrine of "Violenti non fit injuria" [the volunteer suffers no wrong], since the was a willful trespasser on the 's property. However, the court reasoned that it is "inhuman to catch a man by means which may maim him or endanger his life", and that since the set the traps solely for the purpose of inflicting injury to trespassers, it was a wrongful act. Notes: 1. In Katko v. Briney, (1971), an Iowa farmer set a shotgun trap in a boarded-up storage house that he owned, and the shotgun injured a thief in the legs. The thief sued and the Iowa state supreme court awarded damages and punitive damages (thus profiting from his crime). 2. Restatement (Second) of Torts section 85 states that an actor is privileged to use force that would cause serious bodily injury for the purposes of protecting his land or chattels, and is not liable , if the intrusion is of the nature that the actor would be justified in using such force were he actually present. Furthermore in section 143 provides that a private person may, in order to prevent a felony, use force which is "not intended to cause death or serious bodily harm", as long as lesser means would not work. But, in the case where the felony threatens bodily harm or is breaking and entering a dwelling place, then the actor may use force "intended or likely to cause death or serious bodily harm". 1. Kirby v Foster (1891), pg. 46, briefed 9/4/94 2. Procedural Posture: The trial jury returned a verdict for , and the moved for a new trial on exceptions to the rulings and refusals of the presiding justice to make ruling. 3. Facts: was a bookkeeper for a corporation in which was an agent. $50 was deducted from 's pay for money that he was responsible for that was lost. gave payroll money to who pocketed the $50 he thought he was due, and tried to leave. A scuffle ensued and the was injured by during the fight to retrieve the money. Roger W. Martin 8Torts Briefs Printed: February 4, 2008 4. Judges Rule: "...the right of property merely, not joined with possession, will not justify the owner in committing an assault and battery upon the person in possession, for the purpose of regaining possession, although the possession is wrongfully withheld." Bliss v. Johnson. 5. Classical Holding: When people honestly although mistakenly withhold money from their employers in the normal course of business, without fraud or deception, thinking it to be their own, the employer who employs force to regain the money is liable for battery. 6. Reasoning: The court reasoned that since the honestly thought that the money was due him, and peaceably took it during the normal course of business, that the use of force by the was not justified because it was redressive and not defensive in nature. 7. Policy: Although this law may cause inconvenience to individuals from time to time, the underlying principle is that the "injured party cannot be the arbiter of his own claim". Public order and peace are of greater weight. Notes: 1. Repossession by a secured party of collateral after default is permitted "if this can be done without breach of the peace". The privilege of recapture must be exercised promptly "hot-pursuit". 1. Ploof v. Putnam (1908), pg. 50; briefed 9/4/94 2. Procedural Posture: The trial court ruled for , and demurred to the count of willful unmooring, and negligence of duty. 3. Facts: and family were sailing their sloop on Lake Champlain when a violent storm erupted. In order to take refuge from the storm, moored to the 's dock, whereupon 's servant unmoored the sloop. The sloop was then grounded and smashed in the storm, casting the and family into the lake, where they received injuries. 4. Judges Rule: An actor is not liable for trespass when he enters another's land due to necessity caused by inability to control his movements while exercising a strict right. 5. Classical Holding: People are not liable for trespass when they moor their vessels to the dock of another without permission if they do so in order to save life and property from a violent storm. 6. Reasoning: The court cited several cases to support it's rule, each dealing with the concept of the doctrine of necessity. Examples given were when a dog chased sheep from a defendants land, but being the nature of a dog to continue the chase, pursued the sheep onto another's property. Also, a traveler may walk Roger W. Martin 9Torts Briefs Printed: February 4, 2008 on another's land when the highway is blocked, in order to avoid the obstruction. Finally, it was held that a defendant was not personally liable when he jettisoned a casket from a barge during a storm in order to lighten the load and save the passenger's lives. 1. Vincent v. Lake Erie Transportation Co. (1910), pg. 53; briefed 9/4/94 2. Procedural Posture: An action for damages to a dock. Trial court held for , dock owner. appealed to this court. 3. Facts: owns a cargo ship that was moored to 's dock under contract to unload cargo, when a violent storm arose. The , exercising prudent seamanship, remained moored to the dock, and the action of the waves caused his hull to repeatedly collide with the dock, resulting in $500 damage to the dock. 4. Judges Rule: Where a person "prudently and advisedly avails himself of [another's] property for the purpose of preserving is own more valuable property" then he is liable for damages to the other's property. 5. Classical Holding: Where a person "prudently and advisedly avails himself of [another's] property for the purpose of preserving is own more valuable property" then he is liable for damages to the other's property. 6. Reasoning: The majority reasoned that since the boat owner "deliberately and with direct efforts" kept his boat moored, replacing the lines that parted with heavier ones, that he should be liable because although he had necessity, this did not excuse him from having to pay for damages for sacrificing the dock to save his own property. 7. Dissent: The dissent reasoned that the damage was an Act of God, and that under the majorities' reasoning, there would have been no liability if the boat owner had initially tied up with his strongest ropes. This reasoning would put the burden on the ship owner to have anticipated the severity of the storm in order to avoid liability, or to always tie up with the strongest cables. They further reasoned that the risk for damage of this nature was assumed by the dock owner as an ordinary risk of this type of business. Notes: 1. The doctrine of "incomplete privilege": a defendant may cause harm but only on condition that he pay for it. This arises in a case of necessity where there is no assumption of risk. 2. Unjust enrichment: this theory would require the boat owner to pay because he came away unscathed at the expense of the dock owner. This theory, however, only works when the property protected is worth more than the property damaged. 3. Under admiralty law, the doctrine of necessity prevents a salvor from holding out for a fee equal to the value of the vessel in distress, but rather holds them to the customary fee. 4. Public necessity: a public official may act with immunity if he takes reasonable actions in Roger W. Martin 10Torts Briefs Printed: February 4, 2008 good faith that destroy a person's property in order to benefit the public at large. Examples are tearing down houses in the path of a fire in order to save other houses, damage to car paint while spraying pesticides to kill the Medfly, tearing down an oil refinery to deny a wartime enemy from bombing it. 1. Brown v. Kendall (1850), pg. 81; briefed 9/12/94 2. Procedural Posture: An action for damages of trespass. Trial court held for . appealed to this court. 3. Facts: Two dogs were fighting in the presence of and . was attempting to break up the dog fight by hitting them with a big stick. , who was behind , got too close to , who hit in the eye with the stick as he was backing away from the dogs and swinging the stick. 4. Judges Rule: If while performing a lawful act, an person injures another purely "by accident", then the actor is not liable. 5. Classical Holding: An actor is not liable for injury to another when the actor 1) does not intend to cause harmful or offensive touching of the other, or does not have substantial knowledge that his actions would cause damage to another, and 2) the actor could not have avoided damage to the other by using reasonable care. 6. Reasoning: The court reasoned if the was not unlawful in his attempt to break up the dog fight, and if he was exercising due care at the time of the injury, then he could not be held liable. They further stated that the burden of proof in this case should lie with the . 1. Fletcher v. Rylands (1865); pg. 85, briefed 9/12/94. 2. Procedural Posture: Action of trespass. Several arguments back and forth between the appellate justices, this one at Exchequer. 3. Facts: owns a reservoir above a mine shaft belonging to . hired engineers to build the reservoir, and they did, exercising proper professional care. The soil under the reservoir was weak from previous coal removal, and the water broke through the shafts and filled up the 's mine. sued for damages. 4. Judges Rule: An actor is liable for trespass when his actions result in the damage to another's property, even though his actions were lawful and he had no intention to cause damage, nor any knowledge that his actions would cause damage. 5. Classical Holding: When a person who lawfully builds a water reservoir on his land, and the water thereafter escapes and does damage to another's Roger W. Martin 11Torts Briefs Printed: February 4, 2008 property, the person is strictly liable for the damage caused by the escaped water. 6. Reasoning: Judge Bramwell reasoned that the knowledge or intent to do wrong in this case was irrelevant, because to hold otherwise would be to say that the only has the right to have his mine free from water that was deposited there by those who knew what they were doing. 7. Dissent: (Martin) The dissent reasoned that to hold the strictly liable for the water escaping from his properly and lawfully built reservoir would be to cause him to need to insure against a lawful act on his own property from which he had no reason to believe that any damage was likely to ensue. 1. Fletcher v. Rylands (1866); pg. 88, briefed 9/12/94. 2. Procedural Posture: Further review of the previous appellate decision. 3. Facts: As stated above. 4. Judges Rule: (Blackburn) "...the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape." 5. Classical Holding: Same as above. 6. Reasoning Judge Blackburn reasoned that the damage would not have happened had the not brought the water onto his land. In addition, the should have known that if the water were to escape, it could cause damage. There was no implied consent under these circumstances because the had no knowledge or control over how the would use their land. Therefore the would be liable unless the occurrence was an Act of God. 1. Rylands v. Fletcher (1868); pg. 91, briefed 9/12/94 2. Procedural Posture: Review of the previous decision at the House of Lords. 3. Facts: Same as above. 4. Judge's Rule: (Cairns) If a person uses his land for any "non-natural" purpose of storing water, and the water escapes and does damage to another's property, then he is liable. 5. Classical Holding: Same as above. 6. Reasoning: The reservoir was a non-natural collection of water upon the 's Roger W. Martin 12Torts Briefs Printed: February 4, 2008 land, as opposed to natural collection of water in some natural lake. Due to this non-natural use, the water escaping was due solely to his act, although not negligent, whereas water escaping from a natural lake could not have been his liability. Notes: 3. In Rickards v. Lothian, a person entered a building at night, shoved stuff into the lavatory drain, and then turned on the water which overflowed and caused damage. The court held that there was not liability because the water use was not non-natural in the sense that most buildings in the area had lavatories. 4. In Nichols v. Marsland, overflow from man-made pools due to heavy and unanticipated rainfall was considered to be and Act of God, and so there was no liability. It was also held in Carstairs v. Taylor that the liability is not present if the storage of water was for mutual benefit. 6. The rigor of Ryland v. Fletcher was retreated from in personal injury cases, and negligence was held to be controlling. 8. Rylands v. Fletcher appears to accord more protection to personal property than against personal injury. 1. Brown v. Collins, (1873); pg. 97, briefed 9/12/94 2. Procedural Posture: Unknown 3. Facts: (Unclear) had horses on his property which, upon being frightened, ran onto the neighbor's property and broke a post. 4. Judge's Rule: In order for a person to be liable for trespass damages, he must be guilty of some "malice, or unreasonable unskillfulness or negligence". 5. Classical Holding: When horses are frightened into stampede, and thus beyond the reasonable care and control of their owner, and the horses trespass onto another's property, the owner is not liable for the damages. 6. Reasoning: Here the court rejected Blackburn's and Cairn's opinions in Rylands, stating that they were not in keeping with the concepts of progress and improvement. The court argued that anything could be construed to be capable of causing damage upon escape from a person's property, and that the only truly natural use of property was to leave it in it's native state. The court further said that a person in modern society had "relative" and not absolute rights. Notes: 1. In Losee v. Buchanan, a person was held not liable when his boiler exploded and ignited the house of another, by reasoning of "implied compensation" -that he has already profited from the general good provided by boilers, and civilization in general, in which he shares. The doctrine of "reciprocity". In Turner v. Big Lake Oil, Ryland was held to be not-applicable because the nature of oil drilling in Texas made large salt-water storage reservoirs a necessity. Roger W. Martin 13Torts Briefs Printed: February 4, 2008 1. Stone v. Bolton (1950); pg. 112, briefed 9/18/94 2. Facts: P. is an old woman who was walking on a street that bordered a Cricket field, when she was struck by a well hit ball. It was one of the longest hit balls ever recorded at that field, and there had only been a few balls hit over the fence in the last 30 seasons. P. sued the home cricket club and all of its members claiming negligence in setting up the field, not making the wall high enough and otherwise not ensuring that the balls remained in the field. 3. Procedural Posture: At trial court, judgment was for on both counts. The Court of Appeals reversed, holding for P. on the claim of negligence. 4. Judges Rule: A person is liable for a reasonably foreseeable risk which he does not protect against and which results in injury to another. 5. Classical Holding: A person is liable for negligence when he does not take reasonable precautions to prevent a reasonably foreseeable risk which results in injury to another. 6. Reasoning: There had been 6 to 10 balls hit over the fence in the last 30 years, and although it was highly unlikely to happen on any one pitch, a ball was eventually going to go over the fence again, and so the risk was foreseeable. They further reasoned that it was unreasonable to require the persons who were walking along the road to assume the risk of being hit by a ball themselves. 1. Bolton v. Stone (1951), pg. 114, briefed 9/18/94 2. Facts: Same as above. 3. Procedural Posture: After judgment for P. in Court of Appeals, it was brought to House of Lords, this court. 4. Judges Rule: A person is not liable for negligence when he takes all precautions that a reasonable man would take in the same circumstances to prevent damage likely to arise from his actions. 4. Classical Holding: A person is liable for negligence when he does not take precautions that a reasonable man would take under the same circumstances to prevent damage to others that would likely result from his actions. 5. Reasoning: The court stated that foreseeability is not the only standard which applies. They also required taking into account all of the circumstances involved in the degree of the risk including: the likelihood of damage and extent of damage should it occur. They stated that these considerations together did not cause a reasonable man to do anything differently in this case. Roger W. Martin 14Torts Briefs Printed: February 4, 2008 Notes: 1. The had a choice of suing 3 possible 's: the batsman who hit the ball, the visiting team he played for, or the owner of the home team. She would have to sue the batsman under strict liability, and the visiting team under vicarious liability. 2. In the absence of strict liability, there can still be "ethical compensation" where the person who is under no legal liability might still feel obligated to offer some measure of compensation to the injured party. 3. The tort theory of Corrective Justice, where the purpose of the legal system is rectification or redress to restore injured parties to their original state, supports both strict liability and negligence theories. In strict liability, it is sufficient to make a prima facie case of "causation" without regards to "responsibility". In negligence, the argument must be that the must show that the performed an "act of injustice"; something "wrongful". Thus, in negligence, we need to show not only that the should be compensated, but that he should be compensated by . 4. Economic efficiency theory: rights of injured victims to recover should be determined by the costs involved in establishing and enforcing those rights. Thus, to minimize costs, the risk should be placed on the person who can most easily avoid it. 1. Hammontree v. Jenner (1971); pg. 120, briefed 9/21/94 2. Facts: The was driving home from work when he had an epileptic seizure and crashed through the front of the bike store where was working, and caused bodily injury to , and damages to the store. The was on medication for his epilepsy, and driving on a probationary license which required him to submit to tests at 6 mo. intervals for a doctor to certify, in writing, his fitness to drive. The 's doctor testified that he believed it was safe to drive under the medication. 3. Procedural Posture: Trial court returned judgment for . appealed, contending that the trial court was in error in refusing to grant summary judgment on the issue of liability, and refusing to give the jury the instructions they prepared which stated that an epileptic is strictly liable for damages to an innocent person that arise from a seizure while he is driving a car. withdrew a negligence claim and stood solely on the strict liability claim. 4. Judge's Rule: A driver who is suddenly stricken by an illness rendering him unconcious, and who thereafter causes damages to a third party, is liable for those damages only when he is negligent in his actions to prevent such damages. 5. Classical Holding: Same as judges. 6. Reasoning: The court cited the holdings of several previous cases, and reasoned that to judge for would override the established law of the state, and cause chaos in insurance settlements. In addition, they rejected 's analogy to the strict liability involved in product liability cases. They stated that the jury instructions were properly disallowed because, besides covering the case where an epileptic had knowledge of a possible risk, they covered the case of a driver Roger W. Martin 15Torts Briefs Printed: February 4, 2008 being stricken by a condition of which he had no prior knowledge. 1. Helling v. Carey (1974); pg. 185, briefed 9/21/94 2. Facts: The consulted the , an opthamologist, for a period of 10 years in which she complained of eye irritation from contact lenses. The tested for glaucoma when was 32, after she complained of impaired peripheral vision. The test was positive, and the suffered a permanent loss of vision because the disease had run too long. sued for damages. 3. Procedural Posture: The trial court and Court of Appeals both found for based on lack of showing of negligence, because it was common practice not to perform the glaucoma test on patients under 40. then petitioned to this court. 4. Judges Rule: The reasonable standard of care that should have been followed under the facts of this case was the timely giving of the glaucoma test, and that in failing to do so, the was negligent. 5. Classical Holding: When a person is consults an opthamologist over several years, and is not tested for glaucoma because, in the profession, his age group is not normally tested for glaucoma, and the person later loses sight as a result of the glaucoma which could have been detected by a simple, safe test, the opthamologist is liable for damages for negligence. 6. Reasoning: The court reasoned that common practice in the profession is not the absolute measure of negligence. "...There are precautions so imperative that even their universal disregard will not excuse their omission". The court took an active role in requiring the test because it was simple, safe, and the consequences of not performing the test were very severe and should not be borne solely by the . A concurring opinion reasoned that the true measure here was one of strict liability, not negligence. Notes: 1. Helling provoked a swift statutory response, providing common practice as the absolute standard of due care, therefore requiring negligence. In common law, the standard is similar. 2. The standard of custom in physician malpractice is needed because courts do not have the training to determine what is reasonable, and because it would generate too many unfounded lawsuits. R. Keeton and J. O'Connell, Basic Protection for the Traffic Victim (1965). Summary: Compensation of an injured party is a shifting of loss from the to the . The costs of litigation involved in a tort case are tremendous and the overall bottom line is a monetary net loss unless the advantages of the decision outweigh the costs involved in the litigation. Thus, an award for compensation should not be made unless there are more valuable reasons than mere compensation. "Otherwise, the award will be an arbitrary shifting of loss from one Roger W. Martin 16Torts Briefs Printed: February 4, 2008 person to another at a net loss to society due to the economic and sociological costs of adjudication." Notes: I. Strict liability A. Imposed to make the internalize the costs imposed on others. 1. Making the actor bear the costs as if he were the injured party. B. Eliminates the need to determine "standard of care". 1. Reduces litigation costs in individual cases, however 2. Gives incentives for more lawsuits -raising costs. II. Negligence A. Imposed to make the internalize costs for accidents that he would not have avoided had he been the actor 1. Because the cost of avoidance would outweigh the cost of injury in view of the minimal chance of risk (diminishing returns). 2. cannot say that the did anything "wrong" because he would have taken only the same precautions under like circumstances. B. Requires determination of "standard of care" or "reasonableness". 1. Increases litigation costs in individual cases. 2. Reduces number of lawsuits because the costs of litigation usually outweigh the compensation for injury. I. Standard negligence action A. Duty1. owed a duty or obligation to conform his conduct to a standard necessary to prevent the unreasonable risk of harm to others. B. Breach 1. did not meet the appropriate standard of care. C. Causation 1. 's failure to meet the appropriate standard of care was causally connected to the 's harm. D. Damages 1. The property damage or personal injury was caused by 's breach of duty. 1. Vaughan v. Menlove (1837); pg. 129, briefed 9/25/94 2. Facts: made a dangerous haystack near the boundary of 's and 's properties. After being warned several times about the risk of fire associated with the haystack, said that "he would chance it." 's haystack spontaneously caught fire, and the fire spread to the 's property, totally destroying two cottages belonging to 3. Procedural Posture: Judgment was for in trial court, and appealed on the Roger W. Martin 17Torts Briefs Printed: February 4, 2008 grounds that the jury was improperly instructed to judge 's actions by the standard of care of the ordinary person. Rather, contested, in determining his negligence, he should be judged only on his own bona fide best judgment. 4. Judge's Rule: 1. A person must enjoy his property so as not to injure that of another. 2. In determining negligence, it is the standard of care of a man of ordinary prudence that must be followed. 5. Classical Holding: When a person disregards the ordinary standard of care in keeping flammables on his property, and a fire ensues due to his lack of ordinary care, he is liable for fire damages to the property of another that arise directly from his negligence. 6. Reasoning: To hold each individual to his own standard of care in determining negligence would be too vague to be practically enforceable. In this case, the had repeated warnings, which he disregarded, and so he was aware of the standard of care necessary. It was his disregard of these warnings that led to the fire and ensuing damages. Holmes, The Common Law; pg. 134, briefed 9/25/94 I. Standard of Care A. Ordinary care of the average man 1. Policy a) in society, a certain average conduct is required to ensure the general welfare. 2. Riska) a below-average person acts at his own peril at all times, even though he may not be morally blameworthy. b) an ordinary person acts at his own peril when he fails to exercise proper foresight, or has evil intent. B. Exceptions to ordinary care of the average man 1. Policy a) a person with distinct defects which prevent taking certain types of precautions should not be held accountable for not taking them. 2. Examples a) a blind man will not be held accountable for failing to take a precaution which required sight. 1. Roberts v. Ring (1919); pg. 136, briefed 9/25/94 2. Facts: is a 7 Yr old who jumped out from behind a buggy and crossed the street suddenly in front of 's car. is a 77 Yr old with sight and hearing impairments, who was traveling at 4-5 mph when he hit states that he saw just before impact. Roger W. Martin 18Torts Briefs Printed: February 4, 2008 3. Procedural Posture: 's father brought the suit for damages. Trial court found for . claims boy was negligent, claims error. 4. Judge's Rule: "When one, by his acts or omissions causes injury to others, his negligence is to be judged by the standard of care usually exercised by the ordinarily prudent man." 5. Classical Holding: When a person hits and injures a child with his car, he is negligent and liable for damages if he has not acted with the standard of care usually exercised by the ordinary man, unless he suffers from physical defects which prevent his taking those ordinary precautions required to avoid harm to the victim. 6. Reasoning: The driver was negligent in either one of two ways. Either he was not paying attention closely enough to avoid injuring the child, or he did not stop quickly enough if he did actually see the child. Further, the court reasoned that the child had no contributory negligence, because in such a situation, he was only required to exercise the precautions of self-protection that an ordinary 7 Yr old would exercise in the same circumstances. Notes: 2. A beginner might be held to a lower standard of care in some beneficial activities than an expert would for 2 policy reasons: 1) it encourages more beginners to take up the particular beneficial action, and 2) a uniform standard of care would not provide incentive for an expert to use as much care as he may know to be prudent, because any increment over the uniform standard would be not cost effective. 1. Daniels v. Evans (1966); pg. 138, briefed 9/25/94 2. Facts: is the father of a deceased 19 Yr old youth who was riding a motorcycle when he collided with 's automobile. 3. Procedural Posture: Trial court found for , and appealed, contending that the standard of care required by the 19 Yr old motorcycle driver should have been that required of the ordinary adult, and not that of the average 19 Yr old. 4. Judge's Rule: When a minor drives an automobile or similar power driven device, he is held to the standard of care of the ordinary adult. 5. Classical Holding: When a minor drives an automobile, he assumes liability for damages resulting from his negligence as measured by the standard of care of the ordinary adult in the same circumstances. 6. Reasoning: An automobile is such a potentially dangerous thing that to hold minors to a lesser standard of care would be at risk to the general welfare. Driving an auto requires a great amount more care than most activities Roger W. Martin 19Torts Briefs Printed: February 4, 2008 undertaken by children, and so should not be judged according to the standard of care that would apply to those less dangerous activities. Notes: 1. In Goss v. Allen, the supreme court held that a 17 Yr old skier should be held to a youth standard for negligence, distinguishing on the basis that skiing required no license. The dissent stated that there are many potentially dangerous activities that are not licensed which result in severe injuries. 2. There is some argument for a double-standard of conduct -a higher one for defendants and a more relaxed one for plaintiffs. However, cases have generally moved towards a single uniform standard. 1. Breunig v. American Family Insurance Co. (1970); pg. 143, briefed 9/25/94 2. Facts: was driving her car when she had a sudden mental delusion that caused her to lose control, thinking that God had taken over the steering wheel. thought she could fly over 's oncoming truck like Batman, but unfortunately, they collided. 's had a history of delusion, and thought she was on a mission from God to survive the impending end of the world. 3. Procedural Posture: Trial jury returned a verdict finding causally negligent on the theory that she had advance notice that she was susceptible to such delusions. 4. Judge's Rule: A person struck by sudden mental incapacity which prevents them from exercising due care, but of which they had advanced warning, is liable for negligence. 5. Classical Holding: Same as Judge's Rule. 6. Reasoning: The court avoided the question of an insane person's negligence, and simply stated that a sudden mental affliction should be treated the same as any other sudden illness, such as a heart attack. They reasoned that since the believed that God wanted her to survive, that it was foreseeable that God would one day take control of her car, thus she had advanced notice, and was negligent in operating the car in the first place. 1. Fletcher v. City of Aberdeen (1959); pg. 146, briefed 9/25/94 2. Facts: is a blind man who was using his cane to walk down the street in the vicinity of some city construction. A city worker had posted barricades around the construction, but later removed them for ease of work and never replaced them. was injured as a result of not encountering any barricades to protect him from the construction. 3. Procedural Posture: Trial court found for appealed contending error in the jury instructions for refusal to instruct as they requested that the city did not have Roger W. Martin 20Torts Briefs Printed: February 4, 2008 a higher degree of care required just because the was blind. 4. Judge's Rule: The city is required to provide protection to a degree that would give a disabled person notice of the dangers to be encountered. 5. Classical Holding: A person is required to use the degree of protection which would bring notice of the possible dangers to any potential victim who might be physically inflicted and therefore unable to exercise care on his own behalf. 6. Reasoning: The city should have known that blind persons were likely to use the street, and that their only reasonable means of avoiding obstacles was by use of a cane. Thus, the city was negligent in not providing a barricade for a blind person to ward him of the dangers he could not see. 1. Robinson v. Pioche, Bayerque & Co. (1855); pg. 147. briefed 9/25/94 2. Facts: A drunk stumbled into an open hole in front of his house, dug by 3. Procedural Posture: Trial court found for , appealed. 4. Judge's Rule: A person who leaves an unmarked hole in a public area, and provides no protection to prevent pedestrians from falling into it, is liable for damages for negligence even if the victim is drunk. 5. Classical Holding: Same as Judge's Rule. 6. Reasoning: The court reasoned that a drunk man is as much entitled to a safe street as a sober one, and much more in need of it. 1. Denver & Rio Grande R.R. v. Peterson (1902); pg. 148, briefed 9/25/94 2. Facts: Unknown 3. Procedural Posture: Unknown. 4. Judge's Rule: The care required of a person is the same whether he is rich or poor. 5. Classical Holding: Same as above. 6. Reasoning: To hold that the degree of care required were related to wealth would create a sliding rule that would be impractical to enforce. Wealth alone has no bearing on the standard of care of the ordinary person. 7. Policy: To deter someone, you must give adequate penalty of negligence to cause the actor to consider the cost/benefit analysis of his action. Roger W. Martin 21Torts Briefs Printed: February 4, 2008 1. Smith v. Lampe (1933); pg. 149, briefed 9/25/94 2. Facts: Appellant lived on the shores of Lake Erie. One winter afternoon, he heard a tug and barge heading toward the shore, so he attempted to warn them off by blowing his car's horn. Appellee is the owner of the barge, which was being led into port by the tug. The tug captain misinterpreted the automobile's horn as being fog signals from a launch at the port's entry signaling them to proceed. 3. Procedural Posture: Trial court found for barge owner. 4. Judge's Rule: "...reasonable anticipation of injury is important only in the determination of negligence, while the natural course of events is the test of required causation..." 5. Classical Holding: A person who has a reasonable anticipation that his act will cause injury to another is liable for damages. 6. Reasoning: The appellant had no knowledge of fog signals or boats. He had no means of knowing that his car horn signals might be misinterpreted by the tug. Therefore, he could not have had any knowledge that what he did would be reasonably expected to cause an injury. 1. Blyth v. Birmingham Water Works (1856); pg. 151, briefed 10/2/94 2. Facts: is a water company who installed a water main near the 's house. During the severest frost on record, the ice build-up in the plug caused the water main to burst and sent water into the home of The ice had been visible on the surface for some time before the accident. 3. Procedural Posture: The Trial court judge instructed the jury that if the ice had been removed from the plug, the accident would not have happened, and so found for appealed to this court. 4. Judge's Rule: People are negligent if they omit doing something which a reasonable man, guided by the considerations which regulate the conduct of human affairs, would do. 5. Classical Holding: Same as Judge's Rule. 6. Reasoning: A reasonable man would have taken precautions to avoid accidents brought about by the normal frost seasons. The fact that the cause of the accident was not discovered until months after the accident occurred is evidence of how remote the likelihood of the accident was. In addition, the was not bound to keep the plugs free of ice. 1. Eckert v. Long Island R.R. (1871); pg. 152, briefed 10/2/94 Roger W. Martin 22Torts Briefs Printed: February 4, 2008 2. Facts: was waiting for 's train which was approaching when he noticed a young child sitting on the tracks. The ran across the tracks, pushed the child out of danger, and was then hit by the train. The died of his injuries. Witnesses put the speed of 's train at 12-20 mph. 3. Procedural Posture: In trial court, moved for non-suit, claiming contributory negligence by Jury returned a verdict for , which was affirmed at the Supreme Court level. then appealed to this court. 4. Judge's Rule: One who knowingly and voluntarily places oneself in a position in which one is liable to receive serious injury is not negligent if one has done so in order to save a life, unless such actions would be considered imprudent by a reasonable person under the same circumstances. 5. Classical Holding: Same as Judge's Rule. 6. Reasoning: The had only an instant to act, or the child would have died. Furthermore, it was reasonable for the to believe that he could save the child without receiving serious injury. 7. Policy: The court did not wish to deter acts of heroism in preservation of human life. Terry, Negligence I. Negligence A. Based on reasonableness, not math. 1. Risk involved must be unreasonably great. 2. Injurious consequences must be unreasonably probable. B. Five factors to consider 1. Magnitude of the Risk a. Probability rescuer would be killed. 2. Value of Principle Object a. Value of rescuer's life, very high. 3. Value of the Collateral Object a. Value of victim's life, very high. 4. Utility of the Risk a. Probability that the rescue is successful. 5. Necessity of the Risk a. Probability that the victim would not rescue itself. C. Human life may be put at risk to save property if it is reasonable to do so after considering the 5 factors. Seavey, Negligence -Subjective or Objective? I. Negligence A. If 's and 's interests are of equal value, is not liable if he takes a 50% Roger W. Martin 23Torts Briefs Printed: February 4, 2008 chance of destroying 's property to save his own. 1. Balancing Interests B. An unlawful actor is liable to anyone because his act, by definition, has no value to society. 1. Hauser v. Chicago, R.I. & Ry. (1928); pg. 156, briefed 10/2/94 2. Facts: is a woman who felt sick while riding on 's train. went to the lavatory, and feinted. When she fell to the ground, her body lay in such a way that her head was under the sink, and her face came into contact with exposed steam pipes. was badly burned. 3. Procedural Posture: Trial Jury returned verdict for 's motion for directed verdict was denied. appealed to this court. 4. Judge's Rule: One is negligent when one fails to protect against injuries that are reasonably anticipated. 5. Classical Holding: One is not negligent when one constructs a device which protects against all reasonably anticipated injuries that may be caused by the reasonably anticipated actions of its users. 6. Reasoning: In order for someone to be burned, they would have to get under the sink. The area under the sink was not intended for use by passengers. The could not reasonably anticipate that the would have fallen with part of her body under the sink, therefore was not liable for 's injuries. 1. Osborne v. Montgomery (1931); pg. 157, briefed 10/2/94 2. Facts: is an errand boy who was injured when his bicycle handlebar struck the partially opened left-hand door of 's car while it was double-parked. 3. Procedural Posture: The question was put to the jury whether the driver of the car was negligent and the boy not contributorily negligent. 4. Judge's Rule: One is negligent when one acts with without ordinary care -the degree of care which the great mass of mankind would ordinarily exercise under the same or similar circumstances. 5. Classical Holding: Same as Judge's Rule. 6. Reasoning: The rights of a person living in society are not absolute. We are constantly doing acts which result in injury to others, but we must consider the balancing of social justice in determining liability. A firetruck driver might reasonably foresee injury to others while driving quickly through a highly populated area, but he would not be negligent if that injury occurred because the Roger W. Martin 24Torts Briefs Printed: February 4, 2008 benefits of his actions to society outweigh the probability of injury. 1. Cooley v. Public Service Co. (1940); pg. 159, briefed 10/2/94 2. Facts: was talking on the phone when a severe storm caused 's power lines to part and fall onto the phone lines below. The resultant noise that the 's telephone made scared her so badly that she fainted and sustained a severe neurosis. contended that baskets should be placed under power wires that cross telephone wires in order to prevent contact of broken power lines with the telephone lines below. 3. Procedural Posture: sued both the Power Company ( ) and the Phone Company. Trial jury found for the phone company, but against the power company. The power company appealed and the judgment was reversed. 4. Judge's Rule: One is not negligent when one acts with due care to prevent a probable injury to someone, and in doing so, can not prevent an unlikely injury to another. 5. Classical Holding: One is negligent when one acts without due care to prevent a probable injury to another. 6. Reasoning: The court reasoned that the baskets for holding the power wires would increase the obvious and immediate risk to the passerby on the street that he would be injured if the power lines broke. Thus, to protect the telephone user would be to not protect the passerby. The law could not tolerate such a theory of "be liable if you do and liable if you don't." Notes: In a case governed by negligence, the actor may only need consider due care when he engages in his activity, but not when determining how frequently he engages in his activity. Thus, the driver of a car is not negligent when the car hits a pedestrian, if the driver was acting with due care. However, the more times the driver drives, the higher the cumulative probability that he will hit a pedestrian. Strict liability, however, requires the actor to consider both due care and frequency. [This argument is flawed if you consider that one of the ingredients of determining reasonableness is necessity. One who does a dangerous activity for an unnecessary reason could still be negligent]. 1. United States v. Carroll Towing Co. (1947); pg. 161, briefed 10/2/94 2. Facts: The tug was moving a line of unmanned barges out to sea when one broke loose, collided with another vessel, and sustained hull damage. The barge began to leak [and eventually must have sunk]. 3. Procedural Posture: Unknown. Roger W. Martin 25Torts Briefs Printed: February 4, 2008 4. Judge's Rule: One is negligent when one does not act to prevent injury to another when the burden of prevention is less than the expected cost of the injury. 5. Classical Holding: A barge owner is negligent when he does not man the barge during daylight hours in a crowded port. 6. Reasoning: The court (Chief Justice Learned Hand) stated that it was not unreasonable to expect that the barge would break its moorings and cause damage to another ship, especially in the crowded New York harbor. The court used a mathematical justification to determine negligence. It stated that a person was negligent when B