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									                                            Torts I: Case Briefs

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Author: Philip Larson
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Torts I: Case Briefs

                                                  Table of Contents
1.    Garratt v. Daily (Intent) ................................................................................................ 3
2.    Spivey v. Battaglia (Intent) ............................................................................................ 5
3.    Ranson v. Kitner (Intent) .............................................................................................. 7
4.    McGuire v. Almy (Intent) .............................................................................................. 8
5.    Talmage v. Smith (Intent) .............................................................................................. 9
6.    Cole v. Turner (Battery) .............................................................................................. 11
7.    Fisher v. Carrousel Motor Hotel, Inc. (Battery) ......................................................... 13
8.    I de S et ux. V. W de S (Assault) .................................................................................. 15
9.    Western Union Telegraph Co. v. Hill (Assault) .......................................................... 17
10.      Big Town Nursing Home v. Newman (False Imprisonment) ................................. 20
11.      Parvi v. City of Kingston (False Imprisonment) .................................................... 22
12.      Hardy v. LaBelle’s Distributing Co. (False Imprisonment)................................... 24
13.      Enright v. Groves (False Imprisonment)................................................................ 26
14.      Whitaker v. Sandford (False Imprisonment) ......................................................... 27
15.      State Rubbish Collectors v. Siliznoff (Intentional Infliction of Mental Distress) .. 29
16.      Slocum v. Food Fair Stores of Florida (Intentional Infliction of Mental Distress)31
17.      Harris v. Jones (Intentional Infliction of Mental Distress) .................................... 33
18.      Taylor v. Vallelunga (Intentional Infliction of Mental Distress) ........................... 35
19.      O’Brien v. Cunard S.S. Co. (Privileges - Consent) ................................................ 37
20.      Hackbart v. Cincinatti Bengals, Inc (Privileges - Consent) ................................... 39
21.      Mohr v. Williams (Privileges - Consent) ................................................................ 40
22.      De May v. Roberts (Privileges – Consent) .............................................................. 42
23.      (Privileges – Self Defense)........................................................................................... 44
24.      (Privilege – Defense of Others) ................................................................................... 45
25.      Katko v. Briney (Privileges – Defense of Property) ............................................... 46
26.      Surocco v. Geary (Privileges – Necessity) .................................................................. 48
27.      Vincent v. Lake Erie Transp. Co. (Privileges – Necessity)..................................... 49
28.      Sindle v. New York City Transit Authority (Privileges – Justification) ................ 50
29.      Lubitz v. Wells (Negligence) ................................................................................... 52
30.      Blyth v. Birmingham Waterworks Co. (Negligence).............................................. 54
31.      Gulf Refining Co. v. Williams (Negligence)............................................................ 55
32.      Chicago, B. & Q.R. Co. v. Krayenbuhl (Negligence) ............................................. 57
33.      Davison v. Snohomish County (Negligence) ........................................................... 58
34.      United States v. Carroll Towing Co. (Negligence) ................................................. 59
35.      Vaughan v. Menlove (Negligence – Standard of Care) .......................................... 61
36.      Delair v. McAdoo (Negligence – Standard of Care) ............................................... 62
37.      Trimarco v. Klein (Negligence – Standard of Care) .............................................. 63
38.      Cordas v. Peerless Transportation Co. (Negligence – Standard of Care) ............. 65
39.      Roberts v. State of Louisiana (Negligence – Standard of Care) ............................ 66
40.      Robinson v. Lindsay (Negligence – Standard of Care) .......................................... 68
41.      Breunig v. American Family Ins. Co. (Negligence – Standard of Care)................ 70
42.      Example Brief ............................................................................................................. 73
43.      Example Brief ............................................................................................................. 75

Philip Larson                                                                                                                Page 2
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                                  1. Garratt v. Daily             (Intent)
1.1 Title and Citation

Garratt v. Daily, Supreme Court of Washington, 1955                                         p. 17

1.2 Facts

Garratt (P) is suing Daily (D) for battery. It addresses the legal issue of whether the infant defendant
intended to harm the plaintiff and is therefore liable for resulting damages. Battery is the “intentional
infliction of a harmful bodily contact upon another.”

Substantive Facts
Brian Daily (5 yrs, 9 mos old), the defendant, was visiting the sister of Ruth Garratt (plaintiff).
Plaintiff contends that as her sister started to sit down in a chair, defendant pulled it out from under her.
Sister testified as much. Plaintiff did not testify at all as to why/how she fell. Defendant contends that he
moved the chair a few feet, sat in it himself, and when he noticed Ruth about to sit down where the chair
had been he quickly attempted to move it toward her to aid her in sitting in the chair but was unable to get it
there in time. Both parties concede that as a result, plaintiff fell and fractured her hip amongst other
damages deemed to be $11,000.

Procedural Facts
    0. The case did not have any question of consent or privilege.
    1. Authorities generally, with some exceptions, agree that a minor committing a tort with force is
       liable as any other person would be.

Procedural History
Plaintiff appealed a trial court judgment dismissing the action and asked for a judgment providing $11,000
in damages or a new trial. Trial court said she failed to prove the necessary “intent”.

1.3 Issues

Garratt v. Daily addresses the legal issue of whether the infant defendant intended to harm the plaintiff
and is therefore liable for resulting damages.

1.4 Decisions

Judgement was remanded back to trial court for clarification with instructions to make definite findings on
“whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where
the chair which he moved had been.” On remand, the trial judge reversed his opinion deciding that the
defendant did know this with substantial certainty and entered a judgment for the plaintiff in the amount of
$11,000. This was affirmed on a second appeal.

1.5 Reasoning

Rule 1: Battery requires the “intentional infliction” of harmful bodily contact.
Rule 2: [Restatement, Torts, 13] Character of Actor’s Intention: if the actor causes the harmful contact
knowing “that such contact or apprehension is substantially certain to be produced”, then the actor
intended harmful contact. Additionally, the comment states that it is not enough for the act to be done
intentionally, “even though the actor realizes or should realize that it contains a very grave risk of bringing
about the contact”. Rather, he must realize with “substantial certainty” that the contact will result in order
to intend the contact and therefore be liable.

Philip Larson                                                                                          Page 3
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The court said that a battery would be established if Brian knew with “substantial certainty” that the
plaintiff would “attempt to sit down where the chair had been” and that “absence of any intent to…commit
an assault and battery on her would not absolve him from liability”. Court remanded to trial court for
clarification to determine if defendant knew “with substantial certainty” that client would attempt to sit
down where the chair had been.

1.6 Separate Opinions

1.7 Analysis

I don‟t understand why it was enough to prove that defendant knew the plaintiff would attempt to sit down
where the chair had been. Battery is “intentional infliction of harmful bodily contact” so I would think that
“absence of any intent to injure the plaintiff…or to commit an assault and battery on her” WOULD absolve
him of liability unless they could prove that Brian knew that plaintiff “attempting to sit where the chair had
been” would result in “harmful bodily contact”.

         -   An appellate court must take as fact the opinions accepted in the trial court.
         -   Why did the defendant win?
         -   A minor can be held liable for an intentional tort.
         -   You can only appeal a “matter of law”. You cannot appeal a “finding of fact”.
                   o You have to prove that there was mistake.
                   o Issue: Did the trial court use the correct definition of intent?
         -   Hypothetical: Physician treats Jehovah‟s witness to a blood transfusion after promising not
         -   Intent = purpose or knowledge to a substantial certainty (“grave risk” is not enough) -
             (Garrett v. Dailey)
         -   Hypothetical: Dr. Evil wants to harm Austin Powers. Austin is walking on a ridge. Dr. Evil
             fires at Powers and happens to hit him, against odds. Did he know “with substantial
             certainty” that it is possible
         -   Can you have intent if you do not know to a substantial certainty? Yes. All you need is
         -   Hypothetical: Dr. Evil feels good and takes his death ray outside and starts shooting it
             randomly. He happens to hit someone. Does he have the necessary intent?
         -   It is not enough that the act was intentional and had “grave risk”. p19. he may be reckless or
             negligent but he does not have intent.
         -   If 5 year old boys can be liable for their torts, what is the purpose of tort law?

Philip Larson                                                                                         Page 4
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                               2. Spivey v. Battaglia                (Intent)
2.1 Title and Citation

Spivey v. Battaglia, Supreme Court of Florida, 1972                                          p20

2.2 Facts

P (Spivey) and D (Battaglia) are coworkers. At lunch, in an effort to tease P, D pulled her head toward him
in a “friendly unsolicited hug”. As a result of the “hug” D became paralyzed on the left side of her face and

Procedural History
Action originated in Circuit Court of Orange County, Florida where plaintiff brought suit against defendant
for 1. negligence and 2. battery. Defendant filed answer claiming his “hug” was battery and was therefore
barred by the two-year statue of limitations on battery. Defendant‟s motion for “summary judgment” was
granted by the trial court and affirmed by the district court.

2.3 Issues

This case addresses the substantive issue of whether, under Florida common law, D‟s conduct was battery?
If “Yes”, plaintiff cannot maintain her action because suit would be barred based on the two-year statute
that had run out. If “No”, plaintiff could maintain her action on a count of negligence.

2.4 Decisions

Trial judge committed error when granting summary final judgement in D. Should have been submitted to
jury to determine if D‟s actions were negligent. Remanded to trial court.

2.5 Reasoning

The “settled law” is that D becomes liable (due to negligence) for “reasonably foreseeable consequences”
of their actions.

Rule 1: “An assault and battery is not negligence, for such action is intentional, while negligence connotes
an unintentional act.”
Rule 2: a reasonable man must believe that a result was substantially certain to follow in order for him to
intend it.
Rule 3: knowledge and appreciation of a risk, short of substantial certainty “is not the equivalent of intent”

Conclusion: distinction between intent and negligence is a matter of degree to which D knows with
substantial certainty that “harmful
2.6 Separate Opinions

2.7 Analysis

What is “summary judgment”? Defendant had a motion for “summary judgment” that was granted by the
trial court and affirmed by the district court.

         -   Summary judgment – court finds for the defendant before the evidence is provided to the jury
         -   Statute of limitations – limitation on the amount of time you can take action
         -   Trial court said that it was “battery” as a matter of law, and therefore the statute of limitations
             had run, therefore he dismissed.

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                 o     Appeal court said that it was not battery as a matter of law because Battaglia lacked
                       the necessary “intent”

Lecture 2 Notes:
         - Why couldn‟t the intent be both ? Appellate court found for
         - His purpose was not to cause a offensive or harmful contact.
         - His knowledge was not to a level of substantial certainty that the action would cause harm.
                 o Contrary opinion: He knew she was shy so he should have known with substantial
                   certainty that it would be offensive contact. Isn‟t that sufficient for intent?
                   Additionally, his “purpose” was sexual harassment.
         - How do we remedy these conflicting ideas?
                 o Perhaps we add to the definition of intent
                 o Intent = purpose or knowledge of what?
                         If the “of what” was the paralysis, then he‟s free (no battery)
                         NO: a person can sue and receive damages for multiple “of what”s
                 o Perhaps, in this jurisdiction, battery is limited to harmful contact.
                 o “unlikely” – who cares
                 o “Garrett vs. Daily” gave us that “intent is purpose or knowledge”
                 o “Spivey v. Battaglia” is saying it is “intent is purpose or knowledge of particular
                   harm or offensive contact” (in that case, paralysis)
                 o Intent = purpose or knowledge of the legally relevant consequences
                   (consequences defined by the tort itself) – (NOT for the harmful or )
                 o This would suggest that Spivey is incorrect. Perhaps
                 o Hypothetical: D has had no exposure to US except watching football. He notices
                   that everyone pats each other on the butt for a job well done. He does this at work to
                   a female employee, and she sues him. Is there intent? Note: It is clear to a
                   reasonable person that this is offensive contact. Do we judge by what a reasonable
                   person would know or what the specific person would know.
                 o Subjective – specific person; objective – reasonable person
                 o You use a subjective standard to determine if the person did the act (Was it his
                   purpose to give a hug? Yes.) However, you would not use a subjective standard to
                   determine whether they are “legally relevant consequences”
                 o Legal standard is that “Intent is judged subjectively” (Garrett v. Dailey) – If a
                   reasonable person would find it likely, there is evidentiary support for the fact that
                   the person knew it. (p21 paragraph 5) “where a reasonable man…”
                 o Can it be both an intentional tort and negligence? NO.

Philip Larson                                                                                         Page 6
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                                 3. Ranson v. Kitner              (Intent)
3.1 Title and Citation

Ranson v. Kitner, Appellate Court of Illinois, 1889                                        p 23

3.2 Facts

P (Ranson) sued D (Kitner) to recover the value of the dog killed by D. D claimed they were hunting
wolves and that P‟s dog looked like a wolf. Jury judgment in trial court was rendered in favor of P for $50.

3.3 Issues

Under Illinois common law, are D‟s liable for damages caused by a “mistake” that D‟s did not “intend”?

3.4 Decisions

Yes, D‟s are liable for the damages caused by their “mistake” despite not “intending” to kill the dog.
Damages of $50 awarded. Trial court decision affirmed.

3.5 Reasoning

The court called it a mistake, not an accident, because the defendants did “intend” to kill the animal. This
was not an accident because an accident assumes lack of intent.

Actions made by “mistake” are sufficient to award damages even when there is no intent.

3.6 Separate Opinions

3.7 Analysis

         -   Where was the “intent”? None necessary. It was “mistake”.

         -   Tort – “Trespass to Chattels” – intentionally harming someone else‟s property
         -   Did they
         -   Hypothetical: Defendant was invited to play hockey in a no-checking league. He is not
             informed that no-checking is allowed so he does it. He gets sued. Does the misinformed
             hockey player have the necessary intent? Yes: why, he had purpose of making harmful
             contact and simply made a mistake.
         -   They acted in good faith,
         -   People can be liable without being morally “blame-worthy”. What does this mean about the
             purpose of Tort law?
         -   Mistakes negate intent when they are about the legally relevant consequences.
         -   Mistakes about anything else do NOT negate intent.
         -   This is an example in which Kitner was mistaken about the legal relevance of his actions
             but he WAS NOT mistaken about the consequences of their actions.
                  o Therefore, they had intent.

Philip Larson                                                                                         Page 7
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                                4. McGuire v. Almy                 (Intent)
4.1 Title and Citation

McGuire v. Almy, Supreme Judicial Court of Massachusettes, 1937                             p 25

4.2 Facts

P employed to take care of D, who is insane. P knew when hired that D was “a mental case” in “good
physical condition”. D threw a fit, broke some furniture, and held up a leg of furniture threatening to kill P
if she entered. They sent for brother-in-law. When he arrived, P entered and D hit her on the head with the
leg. P is suing for damages.

PH: Trial court judged in favor of P and awarded damages.

4.3 Issues

Under Massachusetts common law, is an insane person liable for torts against their caretaker?
4.4 Decisions

Judgement for P. Judge said that whether P assumed the risk of the attack should be left up to a jury.

4.5 Reasoning

Public Policy – a rule imposing liability tends to make the people in charge of the insane person more
        - Courts say in the broadest terms that “an insane person is liable for his torts.”
        - It is sometimes said that an insane person is not liable for torts requiring malice, of which he
             is incapable.
        - Fault is not a prerequisite to liability.
        - The law will “not inquire further into his peculiar mental condition”.

4.6 Separate Opinions

         -   writers in England have disagreed, arguing that liability for acts done should “rest upon fault”
         -   several jurisdictions have narrow exceptions stating that an insane person who can‟t control
             their conduct cannot be liable for injuries caused to those employed to care for him.

4.7 Analysis

         -   Being voluntarily drunk typically does not vitiate intent.

         -   Hypothetical: Someone shoots the bullet thinking the person they are shooting can‟t be killed.
             Turns out they were wrong. Do they have the intent? Yes: he has knowledge of the relevant
             legal consequences but has made a mistake about the characteristics of the person.
         -   Court goes a little further. It gives a justification for the rule:
         -   If you are insane, you can be liable for your intentional torts?
                  o Court gives 3 reasons:
                            Guardians of insane will be more watchful
                            Wealthy insane person should not
                            Insane person caused damage so you should have to make good on it
                  o These seem to be “justice” reasons, not “public policy” reasons.

Philip Larson                                                                                         Page 8
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                                5. Talmage v. Smith                (Intent)
5.1 Title and Citation

Talmy v. Smith, Supreme Court of Michigan, 1894                                             p 28

5.2 Facts

D (Smith) is being sued by P (Talmage) for damages (for trespass) resulting when D threw a stick and hit P.
D has multiple sheds. D ordered boys down from shed and they immediately obliged. D saw two more
boys on another shed and ordered them down. D threw a stick in the direction of the boys and it hit a
different boy (P), whom D claimed not to have seen, in the head. As a result, P lost sight in one of his eyes
and is suing for damages.

PH: Trial court rendered verdict for P in action of “trespass”. Why is this action “trespass” and not
“battery”? Answer: There are 5 torts that fall within “trespass”: battery, assault, false imprisonment,
trespass to land, and trespass to chattels.

5.3 Issues

Transferred Intent: Under Michigan common law, is D liable for damages

5.4 Decisions

Trial court judgment is affirmed.

5.5 Reasoning

If D intends to hit a boy using “unreasonable force under the circumstances” then he is committing an
unlawful act. As such, he would be liable for the injury done even though it was a different boy.

5.6 Separate Opinions

Note: Most students misread cases because they fail to see the issues in terms of the applicable law

5.7 Analysis

         -   Transferred intent. When a defendant intends any one of the five “trespass” torts (battery,
             assault, false imprisonment, etc) and accidentally accomplishes any one of them, the D is
         -   Sounds like battery. Why is it called trespass?
                  o Answer: There are 5 torts that fall within “trespass”: battery, assault, false
                       imprisonment, trespass to land, and trespass to chattels.
         -   Judge incorrectly instructed the jury about what battery is
                  o Harmful contact
         -   Mistake as to consequences negates intent
         -   Mistake as to the significance of the one‟s actions or the circumstances in which one acts does
             not negate intent.
         -   What type of mistake did Smith make?
                  o Mistake as to consequence. Therefore we must change the definition. How should it
                       be amended?
                  o **Definition: Mistake as to consequences that do not indicate a disposition to
                       commit an intentional tort negate intent.

Philip Larson                                                                                          Page 9
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                 o     **Definition: Mistakes as to consequences that indicate a disposition to commit an
                       intentional tort do NOT negate intent
        -    Note: Talmage v. Smith, the court has a problem in the logic. They define the transferred
             intent too narrowly. They say that if Smith “frighten‟s” Smith, but didn‟t intent to hit him he
             could not recover. However, intent does transfer when intending ASSAULT and accidentally
             committing BATTERY. (p29 note 2)

Summary notes on intent
      - Intent requires
               o A conscious act AND
               o Either purpose to produce the legally relevant consequences or the knowledge
                    that the legally relevant consequences are substantially certain to occur.
                          Garratt v. Dailey
      - Questions
               o If one is mistaken about the consequences one‟s action will product, has one acted
                    intentionally? NO.
      - Mistake as to consequences negates intent
               o Spivey v. Battaglia
               o If one mischaracterizes the import of the consequences he or she produces or is
                    mistaken about the circumstances in which he or she acts, has one acted
                    intentionally? YES.
                          Ranson v. Kitner, McQuire v. Almy
               o Mistake as to the significance of the one‟s actions or the circumstances in which one
                    acts does not negate intent
                          Ranson v. Kitner, McQuire v. Almy
               o If one knows that his or her actions create the high probability that the legally
                    relevant consequences will be produced has one acted intentionally? NO.
                          Not enough to be a “grave risk”
               o If one knows that his or her actions are substantially certain to create a serious risk
                    that the legally relevant consequences will be produced, has one acted intentionally?
                    NO. that is not the definition.
               o If a reasonable person would know that his or her actions are substantially certain to
                    produce the legally relevant consequences, even if the defendant did not, has the
                    defendant acted intentionally? NO.

Philip Larson                                                                                      Page 10
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                                  6. Cole v. Turner              (Battery)
6.1 Title and Citation

Cole v. Turner, English Court, 1704                                                                    p29

6.2 Facts


6.3 Issues


6.4 Decisions

    1.   “the least touching of another in anger is battery”
    2.   if two people pass each other, without violence or design of harm, and one touches the other
         gently, there will be no battery.
    3.   if they “use violence against the other, to force his way in a rude manner” it is a battery or if there
         is “any struggle…to that degree as may do hurt” it is battery.

6.5 Reasoning

6.6 Separate Opinions

6.7 Analysis

         -   modern shift of emphasis to intent and negligence rather than from trespass and case. This
             has made “battery” exclusively an intentional tort.
         -   In 1700s, all that was necessary for battery was “the least touching of another in anger”
         -   Battery
                 o Intent to cause Harmful or Offensive contact
                 o Harmful or Offensive contact occurs

         -   **Most Jurisdictions follow this fairly closely. You can pretty much refer to it as law**
         -   2nd Restatement of Torts (1965) p30
                  o Section 13: Battery – Harmful Contact
                           Subject to liability to another for battery if:
                                    A. Acts intending to cause a harmful or offensive contact with the
                                        person OR an imminent apprehension* of such contact
                                        (*transferred intent) AND
                                    B: A harmful contact directly or indirectly results
                  o Section 18: Battery – Offensive Contact
                           1. Subject to liability to another for battery if:
                                    A. Acts intending to cause a harmful or offensive contact with the
                                        person OR an imminent apprehension of such contact AND
                                    B. An offensive contact directly or indirectly results
                           2. An act which is not done with the intention above does not make the
                              actor liable to the other for a mere offensive contact with the other‟s person

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                             although the act involves an unreasonable risk of inflicting it and, therefore,
                             would be negligent or reckless if the risk threatened bodily harm
        -   Questions?
               o Does it matter if D is trying to help P?
               o Does it have to be offensive to a reasonable person (objective) or offensive by P‟s
                    standards (subjective)?
               o Is transmission of disease through sexual activity a battery?

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                 7. Fisher v. Carrousel Motor Hotel, Inc.                       (Battery)
7.1 Title and Citation

Fisher v. Carrousel Motor Hotel, Inc., Supreme Court of Texas, 1967                                   p32

7.2 Facts

Fisher (P) is a mathematician attending a conference at the hotel (D). Standing in line for lunch, he is
approached by one of D‟s employees who grabs a plate from his hand and says “Negro could not be served
in the club”. P was not touched and was in no apprehension of physical injury.

PH: Jury in trial court returned verdict for $400 actual damages in humiliation and indignity and $500
punitive damages. However, Trial Court judge set aside jury verdict and gave judgment to the
defendants. This was affirmed by the Court of Civil Appeals. Plaintiff is appealing to the Supreme Court
of Texas.

7.3 Issues

Under Texas common law, is it battery if D makes an offensive contact with something P is holding but
does not touch P himself?

7.4 Decisions

Yes. Supreme court reversed the trial court and the court of appeals and found in favor of the plaintiff.
Court awarded the $900 in damages recommended by the jury.

7.5 Reasoning

“to constitute an assault and battery, it is not necessary to touch P‟s body or even his clothing; knocking or
snatching anything from P‟s hand or touching anything connected with his person, when done in an
offensive manner, is sufficient”

Relevant Cases: Court references Kress & Co. v. Brashier in which defendant was found to have
committed assault when grabbing a book from P‟s hand.

Statutes: Court references Section 18 of 2nd Restatement of Torts p31…”since the essence of P‟s grievance
consists in the offense to the dignity involved in the unpermitted and intentional invasion of his person, and
not in any physical harm done to his body, it is not necessary that the P’s actual body be disturbed
…there are some things such as clothing or a cane or, indeed, anything directly grasped by the hand
which are so intimately connected with one’s body as to be universally regarded as part of the person.”

   1. action is the unpermitted and intentional invasion of P‟s person, not actual harm done to P‟s body.
   2. personal indignity is cause for action for battery

7.6 Separate Opinions

7.7 Analysis

         -   Court cannot second guess jury about the facts. Trial court must have said that they have
             misinterpreted the law
         -   Contact does not need to be person-to-person contact

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        -   Battery protects our dignity in addition to protecting us from physical harm
                 o Why didn‟t this develop as two separate torts?
        -   Battery has changed from Cole v. Turner to Fisher v. Carroussel Hotel because originally
            there had to be contact

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                           8. I de S et ux. V. W de S                (Assault)
8.1 Title and Citation

I de S et ux. V. W de S, Assizes, 1348                                                              p34

8.2 Facts

“I de S” (P) complains that “W de S” (D) beat his wife. W went to their house seeking to buy wine but the
tavern was closed. He beat on the door with his hatchet so the wife stuck her head out the window and told
him to stop. He struck with the hatchet without the intention of hitting her. Court said there was an assault
on the woman but “no harm done”. P recovered damages from D.

8.3 Issues

Is D liable for damages in an assault where “no harm is done”?

8.4 Decisions

Court said yes. “And so note that for an assault a man shall recover damages…” p34¶4

8.5 Reasoning

8.6 Separate Opinions

8.7 Analysis

This is the “great-grandparent” of all assault cases
          - Question
                   o why allow the action if “no harm was done”?

         -   Battery
                 o 1. Intent to cause a harm or offensive contact AND
                 o 2. Harmful of offensive contact occurs
         -   What constitutes a contact?
                 o Does not have to be direct person-to-person contact
                 o Just has to be “intimately connected” to the person that is an invasion of a person‟s
                     dignity (Fisher) Reasoning: battery is designed to protect our dignity in addition
                     to our physical security.
         -   What makes a contact harmful or offensive?
                 o Hypotheticals: doctor (D) is operating on (P) the patient to remove her appendix.
                     Patient has consented to operation. Doctor sees a problem with her intestine as well
                     and fixes it. P sues anyway for battery. Does P have a case?
                           Intent is about what is in the Defendant‟s mind.
                           Battery is not the intent to harm. It is the intent to commit a contact that is
                           Harmful contact – anything that invades the body?
                           “Harmful” is based on the nature of the act and not on anything else.
                              Therefore, cutting someone‟s intestine with a knife is a harmful contact.
                 o Hypothetical: Guest is asked onto an anti-smoking program. Host blows smoke in
                     the guests face during the whole interview. Guest sues for battery. Are the elements

Philip Larson                                                                                       Page 15
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                               Has he made an offensive “contact”? Yes. It is depriving the person of his
                                dignity (Fisher) and “contact” does not require direct person-to-person
                                contact (Fisher).
                             YES, the elements are met. (Fisher, Garrett v. Dailey)
                                     Battery is meant to protect dignity in addition to physical security
                o      Hypothetical: P is an unusually sensitive women who finds any male contact
                       offensive. Male coworker slaps her on the back for a job well done and she sues for
                       battery. Are the elements of battery met?
                             Do you have to intend the contact or do you have to intend the harmful or
                                offensive contact?
                                     This will be battery if you just need to intent the contact?
                                     It will not be battery if you need to intend the harmful contact?
                                     PUBLIC POLICY – since we don‟t want tons of people to be sued
                                         when they haven‟t intended harm or offense, we will use the latter.
                                     Offensive – it is subjective and based on the plaintiffs perspective
                                     Harmful – objective (not based on the plaintiffs perspective)

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                 9. Western Union Telegraph Co. v. Hill                            (Assault)
9.1 Title and Citation

Western Union Telegraph Co. v. Hill, Court of Appeals of Alabama, 1933                             p34

9.2 Facts

Hill (P) is suing Western Union Telegraph Co. (D) for assault on his wife. D was under contract with Sapp,
an agent of P (manager of a Western Union office) to keep an electric clock working. When clock broke,
P‟s wife went to Sapp‟s office and told him about the problem. Sapp was behind a counter that was so
wide that if he leaned across it his finders would just barely reach the other side. P contends that Sapp
attempted to put his hand on her shoulder and told her “if you come back here and let me love and pet you,
I will fix your clock.” D denies making an attempt to touch P.

PH: Trial court found in favor of P and D is appealing.

9.3 Issues

Is Western Union guilty of assault based on the actions of one of its managers?

9.4 Decisions

Court of Appeals reversed the trial courts verdict on the grounds that Sapp was not acting for Western
Union Telegraph. Apparently they did not have a problem with the finding of assault, they just had a
problem with saying that Western Union was responsible for the assault.

9.5 Reasoning

Every battery includes assault but assault does not necessarily require battery.

Rule 1: Assault is an unlawful attempt to commit a battery
         - Assault
                  o Intentional offer to touch person in a rude or angry manner that creates in the mind
                       of the party alleging the assault a well-founded fear of imminent battery. p35¶3

9.6 Separate Opinions

9.7 Analysis

         -   “a major distinction between a criminal assault and an assault in tort is that for a criminal
             assault, a victim need not have an apprehension or fear of contact” p36 Note7
         -   Questions
                 o Must plaintiff be put in fear, as distinguished from mere apprehension, for there to be
                             Why might a lawyer try to prove fear if it is not a necessary element of the
                                      Punitive damages?
         -   “Words in themselves, no matter how threatening, do not constitute an assault” Cucinotti v.
             Ortman, p37¶1
                 o What about threatening words + threatening gesture?

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         -   Women and men had equal legal rights until they got married
                 o Married people are a single unit and their single voice was given to the man.
                 o This is no longer the case. However, this is why Hill‟s husband is suing rather than
                     Hill herself.
         -   According to Supreme Court of Alabama…
                 o Assault is
                           Attempt to commit a battery OR
                           1. Intent to cause 2, 3, 4
                           2. Offer to touch
                           3. The offer causes a well-founded fear that the touching will occur
                           4. apparent present ability to touch
                 o However, this does not make sense because you can attempt to commit a battery
                     without satisfying 1,2,3&4 (e.g. come up behind someone and attempt to hit them in
                     the head).
         -   Not every battery has assault and not every assault requires battery.
         -   So which of these definitions is correct?

8/30/04 - Notes
         - Assault = attempt to commit Battery (Reject this definition)
         - Assault = (accept this definition but ignore #2 which is redundant)
                  o 1. Intentional offer to touch (intent to cause apprehension of battery)
                  o 2. unlawful offer to touch
                  o 3. well founded fear of imminent Battery
                  o 4. apparent present ability to Batter
         - Note: we can ignore #2 because “unlawful” is assumed. “unlawful” typically just means
         - We can reject the first definition of assault because if it were correct, a person would just need
             the intent to commit a harmful or offensive contact. It does nothing to protect people from the
             “fear” of an imminent battery.

         -   Assault means different things in criminal law vs. tort law
         -   Purpose of Criminal Law is punishment
         -   Purpose of Tort Law is NOT punishment
         -   Transferred Intent
         -   Hypothetical: Confrontation between two people. “A” is small but angry. “A” attacks “B” a
             large, muscular black belt in karate. Is this assault?
                  o Intent to commit battery
                  o Fear of imminent battery? (Yes. Fear of harmful contact even if there is no harm.
                      Additionally, it could also be considered to be offensive contact. )
                           Note: Assault does not require that D has to be “in fear”. You just have to
                               “comprehend” that there is an imminent threat of Battery.
                  o Apparent present ability to Batter.
         -   Hypothetical: Dr. Evil fires at Austin Powers from behind using a silencer. He misses. Later
             on, someone tells Austin Powers that Dr. Evil shot at him. Austin decides to sue for assault.
             Will he win?
                  o No
                           While Dr. Evil has intent, Austin Powers has no “well-founded” or any
                               other type of fear of imminent battery
                  o Purpose of Tort Law is NOT punishment.
         -   Hypothetical: a problem on a basketball court. I‟m going home to get my gun and then I‟m
             going to come kill you. Is this assault?
                  o No
                           No present ability to commit a battery.

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                              What if “apparent present ability to commit a battery” were not a part of
                               Assault. Would it still be assault?
                                     No. There is no fear of “imminent” battery.
        -   Hypothetical: another problem on the basketball court. Guy takes an unloaded gun out the
            bag and points it at someone. They run away and sue for assault.
                 o Yes.
                           Intent to cause apprehension of battery
                           Well founded fear of imminent battery
        -   Hypothetical: another problem on the basketball court. Person who is upset says “I‟m going
            to kick your butt if you don‟t get out of here right now.” Person threatened does not go
            anywhere. Is this assault?
                 o No
                           Strange, because he has the intent to cause apprehension and the other
                               person has a well-founded fear that he is going to be struck. Why isn‟t this
                                     Because “mere words do not constitute an assault”
                                     If it is just a **VERBAL statement**, there cannot be an assault.
                                             o Reason: Risk of false positives would be too high.
        -   Hypothetical: another problem on the basketball court. The aggressive party pulls out his
            gun from the bag and says “If you don‟t get out of here right now, I‟m going to blow you
            away.” Is it assault?
                 o YES
                           **Conditional threat** where he has no right to impose the condition.
                               Also, he has intent, but there is no “well-founded” fear of an imminent
                           Note: If this were demanding that someone leave your house, or you will
                               throw them out it is NOT INTENT because you have the legal right to
                               impose the condition.
        -   Conditional threats can give rise to assault if the person has no legal right to impose the
        -   Therefore ASSAULT IS:
                 o Intent to cause apprehension of battery (Not enough if this is just communicated
                 o Well-founded fear of imminent battery

Philip Larson                                                                                     Page 19
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         10. Big Town Nursing Home v. Newman                            (False Imprisonment)
10.1 Title and Citation

Big town nursing home v. Newman, Court of Civil Appeals of Texas, 1970                               p37

10.2 Facts

D (Big town nursing home) is appealing judgment for P (Newman) for actual and exemplary damages in
False Imprisonment. P, retired, was taken to D nursing home by nephew who signed admission papers.
Admission papers said P “will not be forced to remain in the nursing home against his will for any length of
time”. D‟s employees told P he could not use the phone or have any visitors without approval. P walked
out of the home and was caught by employee of D and brought back “forceably”. P tried to escape 5-6
times and was brought back each time. P was taped to a “restraint chair” for more than 5 hours. After
losing over 30 pounds, P eventually escaped and brought suit.

PH: trial court found P was falsely imprisoned. Court of appeals found amount of damages were excessive
and offered P a remittitur which the P accepted.

10.3 Issues

Did D nursing home falsely imprison P?

10.4 Decisions

Yes. Affirmed court of appeals decision in favor of P.

10.5 Reasoning

Rule 1: False Imprisonment is…p38¶2
    1. intent
    2. the direct restraint of physical liberty
    3. without adequate legal justification

Court held there was ample evidence to sustain jury‟s finding of false imprisonment.

Rule 2: Defendant may be compelled to respond in exemplary damages if the act is a wrongful act done
intentionally in violation of the rights of plaintiff. p38¶3

10.6 Separate Opinions

10.7 Analysis

          -   appellate court can knock down damages set by trial court.
          -   In this case, appellate court affirmed the trial court decision but thought the damages were
          -   False Imprisonment is:
                   o 1. intent to restrain (this is not “improperly restrain” because you do not need to
                        know the import)
                   o 2. the direct restraint of physical liberty
                   o 3. “without adequate legal justification” – the assumption is that there is sufficient

Philip Larson                                                                                        Page 20
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        -   Hypothetical: What if all of the people in the home think he is involuntarily committed? Does
            their mistake change liability?
                 o No. They are not mistaking the “legally relevant consequences”. They are
                     mistaking the circumstances.
                 o This is consistent with what we saw with Intent in Battery
        -   Hypothetical: If a cop says “don‟t leave town”? Is that false imprisonment?
        -   Hypothetical: You and a colleague just found out about a lucrative position in a law firm.
            You run out here and lock your colleague in a room so that you can get there first. There is a
            window in the room with a window 6 ft off the ground. Is this false imprisonment?
                 o Yes. There must be a “reasonable means of escape” there is not restraint.
                           What is a “reasonable means of escape”?
                                    If the tort is designed to protect your dignity, this makes sense.
                                        (e.g. you‟re dressed up in high hills climbing out a window?)
                                    You don‟t need to show much in order to prove that it is not
                                        reasonable because you don‟t want to protect the person attempting
                                        to commit the tort.
        -   Hypothetical: What if there is an open door but it is hard to find? Is this “false
                 o Yes.
        -   If you are out hiking and someone obstructs your path so you have to go a different, longer
            way is this “false imprisonment”?
                 o No.
                           The background rationale is to protect a person‟s driver and dignity.
                               However, the elements must be met before you use the dignity argument.
                           You may be liable for something, but not “false imprisonment”
        -   RULE OF THUMB: follow the elements literally first and THEN think about the underlying
            rationale of “dignity”

Philip Larson                                                                                    Page 21
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                11. Parvi v. City of Kingston                   (False Imprisonment)
11.1 Title and Citation

Parvi v. City of Kingston, Court of Appeals of New York, 1977                                         p39

11.2 Facts

Parvi (P) was with two brothers that were fighting each other. P was drunk and told the police he “had no
place to go”. Rather than arrest him, the police took him to an abandoned golf course to “dry out”.
Testimony is conflicted about whether he went willingly. P then walked 350 ft onto the New York State
Thruway where he was struck by a car. P brought a case of false imprisonment. P “no longer has any
recollection” of his confinement.

PH: trial court dismissed the case (found in favor of D) and appellate division affirmed.

11.3 Issues

What role does whether the person is conscious that they are being confined play in false imprisonment?

11.4 Decisions

Judgment reversed saying that he was falsely imprisoned because he was conscious of the confinement at
the time of the confinement.

11.5 Reasoning

Rule: 2nd Restatement of Torts §42 takes position that…
         - “there is no liability for intentionally confining another unless the person physically restrained
             knows of the confinement or is harmed by it”

Appellate court used this to say that since P “no longer had any recollection” of it he did not know it.
However, Court of Appeals said they failed to recognize that P did have consciousness of the confinement
at the time when the imprisonment itself took place.

11.6 Separate Opinions

Another judge dissented saying that since Parvi can‟t remember anything from that day his statement that
“he was ordered into the car against his will” is insufficient to establish a prima facie case. (production of
enough evidence that the fact is true.)

11.7 Analysis

         -    Could Parvi have filed a negligence claim?
         -    In order to dismiss the case, the trial court has to say that it would be impossible for P to
              prove the case.
         -    This case ADDS ANOTHER ELEMENT to the definition of False Imprisonment is:
                   o 1. intent to restrain (this is not “improperly restrain” because you do not need to
                        know the import)
                   o 2. the direct restraint of physical liberty
                   o 3. “without adequate legal justification” – the assumption is that there is sufficient
                   o 4. plaintiff must have “awareness” of the restraint (similar to needing to be
                        “aware” of the attempted battery)

Philip Larson                                                                                         Page 22
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                          Note: Most jurisdictions allow this element to be foregone if there is
                           HARM (example: Baby in a car seat suffers dehydration)

Philip Larson                                                                                   Page 23
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         12. Hardy v. LaBelle‟s Distributing Co.                      (False Imprisonment)
12.1 Title and Citation

Hardy v. LaBelle‟s Distributing Co., Supreme Court of Montana, 1983                                 p41

12.2 Facts

D (LaBelle Co.) hired P (Hardy) as a temporary employee. Another employee thought they saw Hardy
steal a watch from LaBelle. Hardy was approached by manager and told she would be getting a tour of the
store. Instead they went to the showroom office where Hardy was told she had been accused of stealing a
watch. She agreed to a lie detector test which she passed. Store and the other employee apologized to P. P
is suing that she was wrongfully detained against her will.

P did not ask to leave. She was not told she could not leave. No threat of force was made to compel her to
stay. She said that she would have followed him voluntarily if she had known the true purpose.

PH: trial court found in favor of D

12.3 Issues

    1.   Is the evidence sufficient to support the verdict and judgment?
    2.   Did the District Court err in the issuance of its instructions?

12.4 Decisions

Affirmed in favor of D. P was not falsely imprisoned because she was not restrained against her will.

12.5 Reasoning

Rule: There are two key elements to false imprisonment
    1. restraint of an individual against his will (words are enough if individual fears to disregard them)
    2. unlawfulness of such restraint

12.6 Separate Opinions

12.7 Analysis

         -   similar to assault, threats of future action are not generally enough for false imprisonment
         -   retention of P‟s property can sometimes provide the “restraint” necessary to constitute false
         -   Hardy “felt compelled to remain” in the room (in order to keep her job, etc.) and that this
             constitutes “restraint”
                  o Court doesn‟t buy this argument.
                  o Can “mere words” ever constitute restraint?
                            Yes.
                                      Threats of force qualify (Hardy p42)
                                               o However, similar to conditional threats in assault, you
                                                    must have the “legal privilege” to do what you say.
                                      Note: this is only the case if the words are not ones that they have
                                          a legal right to make.

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                                     Therefore, in the case of
                o      Note: Mere words are NOT enough to constitute ASSAULT but ARE enough to
                       constitute FALSE IMPRISONMENT
                            Can an “implicit threat of force” constitute false imprisonment? (e.g. two
                                bodyguards with thick necks but no words)

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                     13. Enright v. Groves               (False Imprisonment)
13.1 Title and Citation

Enright v. Groves, Colorado Court of Appeals, 1977                                                   p43

13.2 Facts

D (officer Groves) appeal from decision of trial court in favor of P (Mrs. Enright). Groves saw a dog
running loose in violation of “dog leash” ordinance. He saw a boy who said it was his dog and told him
that he could find his mom out front. Mrs. Enright asked if she could help. When he asked for her drivers
license she gave him her name and address. He demanded her driver‟s license. Groves advised her that she
could either produce the drivers license or go to jail. She said it was ridiculous, he grabbed her and took
her to jail.

PH: trial court awards P $500 actual damages and $1000 exemplary damages.

13.3 Issues

Was Mrs. Enright arrested for her dog not being on a leash or for failing to produce her drivers license?

13.4 Decisions

Court affirmed trial courts decision in favor of P saying that D‟s order for P to produce her license was not
a lawful one. Since he arrested her for this reason, she was falsely arrested and could recover for false

13.5 Reasoning

D contends that Officer had probable cause to arrest Enright and that she was arrested for violation of the
dog-at-large ordinance. They assert that therefore, her claim of false imprisonment cannot lie.

Court said: “evidence is clear that Groves arrested Mrs. Enright, not for violation of the dog leash
ordinance, but rather for refusing to produce her driver‟s license.”p44¶6 It goes on to say that producing a
license on request is not a lawful order and refusal to comply was not an offense. “Groves was not
therefore entitled to use force in arresting Mrs. Enright”

13.6 Separate Opinions

13.7 Analysis

         -   She is confined in the police car.
                 o She is not confined in the police station because she was arrested
                 o A police officer has an apparent authority to arrest.
                           Will being afraid to disregard a police officer‟s order constitute restraint?
                                     Yes.
                                     “Having Apparent Authority to Restrain” is another element

Philip Larson                                                                                        Page 26
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                   14. Whitaker v. Sandford                  (False Imprisonment)
14.1 Title and Citation

Whitaker v. Sandford, Supreme Judicial Court of Maine, 1912

14.2 Facts

Not clear who is P and who is D. (P – Whittaker, D- Sandford) P was a member of a religious sect of which
D was the leader. P decided to abandon sect and return to America. D offered her use of his yacht,
assuring her that under no circumstances would she be detained on board. On arrival D refused to furnish
her with a boat so that she could leave the yacht saying that it was up to her husband whether she could
leave. She remained on board for nearly a month as D tried to convince her to rejoin the sect. With
assistance of sheriff, she was able to get her release and then she brought action for false imprisonment.

PH: In trial court, jury found in favor of P and gave her $1100. D did not agree with court‟s instructions
and appealed from an order that denied his motion for a new trial. Trial court instructed the jury that for P
to recover they must show that “restraint was physical” and not merely “moral influence”.

14.3 Issues

Was D‟s not providing P with a boat to get to shore sufficient “physical restraint” for an action of false

14.4 Decisions

Yes. Court affirmed trial court decision saying that there was evidence that D refused P a boat and that his
refusal was wrongful.

14.5 Reasoning

Jury was warranted in finding that D was guilty of unlawful imprisonment. The agreement was that she
was to go ashore. There was no practical way for this to happen without using the yacht‟s boats.
Therefore, “the case leaves not the slightest doubt that he had the power to control the boats, if he chose to
exercise it”p46¶2 Therefore, his denying her the privilege to go ashore was a wrongful denial.

14.6 Separate Opinions

14.7 Analysis

         -   False Imprisonment =
                 o 1. Intent to restrain
                 o 2. Restraint
                           Confinement within fixed boundaries
                           Force
                           Threat of force or other “words one fears to disregard”
                                   A threat to deprive someone of something they are legally entitled
                           Apparent lawful authority to restrain (e.g. police officer)

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                               Failure to furnish an exit when you have a legal duty to do so. (Whitaker, or
                                jailbird finishes his sentence and isn’t released hypothetical)
                 o 3. Awareness of R or, in most jurisdictions, harm from R
                 o 4. w/o legal justification
                            probable cause
                            conviction
        -   Hypothetical: highway patrolman pulls over an African American for failure to signal when
            switching lanes. Driver thinks he is only being pulled over because he is black. Person who
            was stopped pushes the police officer. Officer arrests him. Is there FI?
                 o Yes.
                            Does the police officer have probable cause to arrest based on assault of the
                                police officer?
                                      Yes. Therefore, it was not FI to be in the police car and in jail.
                                      However, was it FI to confine him to the side of the road?
                                               o Yes. Officer‟s have “apparent lawful authority” to stop
        -   Hypothetical: NYC subway. Individual on the express train feels chest pains. Happens to be
            an official of the subway on the car. He asks them to stop the train and he won‟t do it. The
            conductor stops at the next scheduled stop rather than the next stop. The man has a heart
            attack and later sues the subway. Is there FI?
                 o Restraint probably does not work
                            He was not “confined” because he entered the train voluntarily.
                            However, we might be able to use “Whitaker”. E.g. if someone voluntarily
                                steps onto a train or boat and expects to be let out but is not, it can
                                constitute restraint.
                                      Key Difference: in Whitaker, there is an express promise that they
                                          will be let out at the end of the trip. There was no “express
                                          promise” in the hypothetical.
                                      Express agreement to be given a specific exit and then denied.

Philip Larson                                                                                       Page 28
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15. State Rubbish Collectors v. Siliznoff (Intentional Infliction of Mental
15.1 Title and Citation

State Rubbish Collectors Ass‟n v. Siliznoff, Supreme Court of California, 1952                        p47

15.2 Facts

P (state rubbish collectors) sued D (Siliznoff) to collect certain notes. D counterclaimed asked that the
notes be cancelled because of duress and want of consideration. D also sought punitive damages for
alleged assaults made on him. D collected trash and collected money in a territory the State Rubbish
Collectors Ass‟n considered theirs. Ass‟n called D before them and ordered that he pay them the money.
D said P had to meet with them or else “we are going to beat you up”. D went to the meeting and said he
didn‟t owe them anything. D says that he signed the notes after 2 more hours of discussion because “that‟s
the only reason they let me go home”. He said the fright he suffered during his dispute caused him to
vomit several times and miss work.

PH: trial jury found for D (Siliznoff) on original complaint (doesn‟t have to pay the signed notes) and
counterclaim (wins his assault case as well). He obtained $1250 general damages and $4000 in punitive
damages. Ass‟n is appealing the judgment.

15.3 Issues

Can someone recover damages for “emotional distress” when there is no physical injury?

15.4 Decisions

Yes. Judge affirmed trial court‟s decision giving P damages for emotional distress.

He admits that some will argue that allowing recovery when there are no physical injuries will open the
door to unfounded claims and a flood of litigation. However, he says that a jury is in a better position to
determine whether the conduct is outrageous enough to result in mental distress than they are to determine
whether any physical injuries are a result of mental distress. “Greater proof that mental suffering occurred
is found in D‟s conduct…than in physical injury that may or may not have resulted therefrom.”p50¶2

HOLDING: “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.”

15.5 Reasoning

P said there was no assault because the “threats made all related to action that might take place in the
future” and that no one threatened “immediate physical harm to defendant”. (true)

RULE: 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” p48¶4

RULE BEFORE 1947: In 1st Restatement, cause of action in these situations was negligence. If D
intentionally subjected P to such intense distress that bodily harm resulted, D would be liable for
negligently causing P harm.


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However, there is growing body of case law supporting position that the “law should protect emotional and
mental tranquility”. In fact, the ALI amended section 46 of the Restatement of Torts in 1947 saying: “ 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.”p49¶5.

15.6 Separate Opinions

15.7 Analysis

         -   Unlike California, some states recognize Intentional Infliction of Mental Distress as a tort but
             restrict its application to situations in which the P has suffered “physical consequences”
         -   Numerous decisions in which physical injury is not necessary to recover if D‟s conduct
             exceeds the “limits of social toleration”
         -   2nd Restatement allows for cause of action based on IIMD saying that liability exists when D‟s
             conduct is “extreme and outrageous”.

         -   One important part of this case is that after 1947 the new rule is that a plaintiff can recover for
             IIED without showing “physical harm”
         -   New rule requires “severe emotional distress”
                  o Court says it must be “severe” to prevent the “flood gates of litigation”
                            Just having “emotional distress”
         -   Elements of IIED from this case
                  o Intent to cause severe emotional distress
                  o Severe emotional distress must occur
         -   Hypothetical: If I try to annoy you all the time and you suffer “severe” emotional distress, can
             you recover?
                  o No. not unless the person had intent to cause “severe” emotional distress
         -   Intentional Torts
                  o Battery
                  o Assault
                  o False Imprisonment
                  o Trespass to Chattels
                  o Trespass to Land
         -   Why wasn‟t IIED one of the original Torts?
                  o Physical security is much more in control than 200 years ago. When people are less
                      afraid of being physically attacked people start to think that “mental tranquility” is
                      important too.

Philip Larson                                                                                         Page 30
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     16. Slocum v. Food Fair Stores of Florida (Intentional Infliction of
                              Mental Distress)
16.1 Title and Citation

Slocum v. Food Fair Stores of Florida, Supreme Court of Florida, 1958                                  p51

16.2 Facts

P (Slocum) sought damages for mental suffering and ensuing heart attack allegedly caused by D‟s
employee verbally insulting her when she was a customer of the store.

PH: trial found in favor of D. P is appealing saying that the court should recognize the existence of a new

16.3 Issues

Under Florida common law in 1958, does a P have action based on IIMD if the emotional distress is not

16.4 Decisions

No. Court affirmed lower courts judgment in favor of D. Court said that it did not have to decide whether
to recognize the existence of a new tort because the tort, if it existed, would require “severe emotional
distress” not mere “emotional distress.

16.5 Reasoning

RULE: “the rule that 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.”p52¶6
         - “whether words or conduct are actionable…is to be made on an objective rather than
              subjective standard…The unwarranted intrusion must be calculated to cause severe
              emotional distress to a person of ordinary sensibilities, in the absence of special knowledge
              or notice”
         - Note: “this tendency to hinge the cause of action upon the degree of the insult has led some
              courts to reject the doctrine in total.”
Court does say that there is a trend in which “special relationships” arising from contracts or their inherent
nature, sometimes creates a “duty of courtesy beyond that legally required in general mercantile or personal
relationships.”p53¶2 However, it says that this does not apply in this case

Court says that regardless of whether these rules are ultimately adopted by the jurisdiction, the facts of this
case don‟t reach what the rules intended to cover.

16.6 Separate Opinions

16.7 Analysis

         -    “a certain toughening of the mental hide is a better protection than the law could ever be.”
         -    “no pressing social need requires that every abusive outburst must be converted into a tort”

Philip Larson                                                                                         Page 31
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        - IIED =
                 o      1. Intent to cause severe emotional distress
                 o      2. Severe emotional distress occurs
                 o      3. Causation (Defendants action had to cause it)
                 o      4. Conduct must be extreme and outrageous
        -   Court rules for D so elements are not satisfied. Which one isn‟t?
                   o D did not intend “severe” emotional distress.
        -   Hypothetical: customer is an elder jewish women in WWII and the employee said “get out you
              stupid Jew”? Is this IIED?
                   o 1. Intent to cause SED to an ordinary person [Slocum] unless you have special
                        knowledge of a person‟s idiosyncrasies.
        -   Insults are not typically a cause of action for IIED because there is not the requisite intent to
              cause “severe” emotional behavior
                   o Exception: if you have special knowledge that this individual will suffer “severe”
                        distress because of your insult.
        -   What are the legally relevant consequences of IIED?
                   o SED
        -   If I act with the purpose of creating SED, I have the requisite intent.
        -   If I act with substantial certainty that SED will be created, that is enough for intent.

Philip Larson                                                                                       Page 32
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         17. Harris v. Jones             (Intentional Infliction of Mental Distress)
17.1 Title and Citation

Harris v. Jones, Court of Appeals of Maryland, 1977                                                   p54

17.2 Facts

Harris (P), an 8-year employee of GM, sued GM and one of its supervisors Robert Jones (D). Jones, aware
that Harris had a speech impediment that caused him to stutter, and aware of his sensitivity to the disability,
nevertheless “maliciously and cruelly ridiculed” him. Harris saw a physician once during the 5 months that
he claimed mistreatment from Jones. Harris admitted that he had problems with supervisors other than
Jones and had been suspended or relieved from work 10-12 times. P claims that D‟s actions occurred
during employment and that GM therefore ratified Jones‟ conduct.

PH: trial court jury awarded P $3500 compensatory damages and $15,000 punitive damages. This was
reversed by the Court of Special Appeals.

17.3 Issues

Did Jones‟ insults about Harris‟ speech impediment cause “severe” emotional distress?

17.4 Decisions

No. Supreme court affirms the Court of Special Appeals decision in favor of D. Court ruled that the
emotional distress was not “severe” and therefore judged in favor of GM/Jones (D). Harris (P) had to pay
the legal fees.

17.5 Reasoning

RULE 1: “there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature
which is especially calculated to cause, and does cause, mental distress of a very serious kind.”p56¶3

RULE 2: Four elements necessary for liability for Intentional Infliction of Emotional Distress…
   1. conduct must be intentional or reckless
   2. conduct must be extreme or outrageous
   3. there must be a causal connection between the wrongful conduct and the emotional distress
   4. the emotional distress must be severe

Court of Special Appeals reversed saying that the first two were established but that the last two were not

The Court of Appeals, however, said that 1,2 and 3 did not have to be shown because the fourth element
was “not established by legally sufficient evidence justifying submission of the case to the jury.”p57¶2
They did not find the emotional distress to be severe. Rather they found it “vague and weak” at best.

RULE: Section 46 of Restatement of Torts, comment d: “liability has been found only where the conduct
has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”p56¶7

17.6 Separate Opinions

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17.7 Analysis

        -   Courts are reluctant to subject either internal family disputes or petty but strongly felt
            antagonisms to the sanctions of tort law.
        -   Collecting agencies
                  o Reasonable attempts to collect debt do not lead to liability even though they may
                       cause serious mental distress.
        -   Is filing a frivolous lawsuit against someone sufficiently outrageous to permit recovery for
            IIMD? No.
        -   Abuse of Race or Religion? Can be a cause of action.
        -   Special protection for pregnant women
                  o Woman who had a miscarriage as a result of mental distress was allowed to recover

        -   Conflict with Slocum
                o This case says you just either need intent or the conduct to be reckless. In Slocum,
                      recklessness is not enough to get IIED.
                o The difference in the cases is because Slocum uses the 1st Restatement. Harris uses
                      the 2nd Restatement. By the 2nd Restatement, recklessness was sufficient.
        -   Is Harris correct about including recklessness in this Tort?
                o Not sure
                o It seems that Hasnas is saying the court should have said that he didn‟t have the
                      requisite intent to cause SED. (court thinks there was the necessary intent)
        -   Can the Constitution override Tort law? It shouldn‟t be able to but sometimes it does.

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     18. Taylor v. Vallelunga                 (Intentional Infliction of Mental Distress)
18.1 Title and Citation

Taylor v. Vallelunga, District Court of Appeal of California, 1959                                     p60

18.2 Facts

P witnessed D beating her father and that she suffered severe emotional distress. D made a motion to
dismiss this action.

PH: motion to dismiss (demurrer) was sustained. P is appealing the judgment of dismissal.

18.3 Issues

For a cause in IIMD to be actionable, must D intend that the action or insult be done for the purpose of
causing emotional distress to P?

18.4 Decisions

Yes. Judgment for dismissal affirmed because the D‟s did not know that the appellant “was present and
witnessed the beating” nor was there any allegation that the beating was “administered for the purpose of
causing her to suffer emotional distress.”p61¶4

18.5 Reasoning

RULE 1: Cause of Action: you can recover in situations where no physical injury followed the suffering
of mental distress (Siliznoff)
        - “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
              technical assault”
RULE 2: Restatement of Torts §46
        - “An intention to cause sever 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.”

Court argues that since D‟s did not know P was present and did not administer the beating for the purpose
of causing her to suffer emotional distress, there was no cause of action.

18.6 Separate Opinions

18.7 Analysis

         - why isn‟t there “transferred intent” in this case? (i.e. they had the intent to commit battery and
            that intent transfers for any other intentional tort including IIMD)
                 o public policy? What if 3 million people saw assassination of president on TV. How
                      far would liability extend?
         - A number of courts have required that P be present at time of action in order to recover for
            IIMD. Should this be a “black letter” requirement?

Philip Larson                                                                                          Page 35
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        - D‟s did not have the requisite intent because they did not know she was there.
                o What about transferred intent?
                          It seems to fit perfectly here.
                          However, transferred intent is applied less stringently here for public policy
                             reasons. [3 million ppl see president die – can they all recover?]
                o Doctrine of transferred intent does not apply to IIED.
                    TO IIED”
                o Element 1 is about What‟s happening in the mind of the defendant. All other
                    elements are about other things in the world. (note: this includes element 3 about
                    being extreme and outrageous) 1st element is subjective and 3rd element is objective.
                 o Hasnas

Philip Larson                                                                                   Page 36
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              19. O‟Brien v. Cunard S.S. Co.                    (Privileges - Consent)
19.1 Title and Citation

O‟Brien v. Cunard S.S. Co., Supreme Judicial Court of Massachusetts, 1891                           p88

19.2 Facts

O‟Brien (P) brings two actions against Cunard S.S. Co (D), one for assault and another for “negligently
vaccinating the plaintiff”. Although there was conflicting medical testimony, P alleges that she suffered
blistering and contamination. Regulations of the quarantine and willingness of ships medical officer to
vaccinate were posted around the ship in many languages. When it became P‟s turn, she told him she had
been vaccinated before and that it just hadn‟t left a mark. Doctor said nothing and she held up her arm to
be vaccinated and that no one touched her.

PH: We are now in the Supreme Judicial Court. Appellate court affirmed. Trial court found for defendant
and plaintiff brings exceptions.

19.3 Issues

Action 1: Assault – Was there any evidence that the surgeon used force upon the plaintiff against her will?
If plaintiff indicated consent, he was justified in his act, “whatever her unexpressed feelings may have

Action 2: Negligence – this isn‟t talked about in the case.

19.4 Decisions

The ruling of trial court was affirmed. Exceptions overruled.

19.5 Reasoning

Rule: If a P “indicates consent” then D is justified in his act, “whatever P’s unexpressed feelings”.

Action 1: Assault – “There was nothing in the conduct of the P to indicate to the surgeon that she did not
wish vaccinated.” Therefore, it was a lawful act.
19.6 Separate Opinions

19.7 Analysis

        -    NOW WE GET INTO LIABILITY!! (b/c we get into privilege)
                o Intentional Torts h
                o “Intentional” – defendant has “intentionally produced a set of specifically identified
                     consequences defined by the Tort”
                           You are not asking whether they have acted wrongfully
                           Intent deals with the defendants mind.
                           All other elements DO NOT have anything to do with what‟s in the
                               defendant‟s mind.
         -   Consent is different than all other privileges
                o Burden of showing that consent exists rests on the plaintiff. Ignore this for now and
                     let‟s figure out why.
         -   O‟Brien case

Philip Larson                                                                                       Page 37
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                o      There was battery
                             He had intent to commit a H or O contact (sticking a needle into someone‟s
                                 skin is harmful)
                             The contact occurred
                o      Then why did the court throw the case out?
                             They said there was “Consent” to the contact on the part of P.
                             Do you need “Actual Consent”
                             Is it what a reasonable person would consider to be consent?
                             Does consent require any words
                                      No, it can be manifested through actions
                o      Consent
                             Words
                             Actions
                o      Hypothetical: Doctor comes upon seen of a traffic accident. He asks if she wants
                       treatment. She doesn‟t speak English. She shakes her head „No‟ because she does
                       not know what he is saying. Doctor helps her anyway and in fact she wanted the
                       help. She later sues. Is there battery?
                             He intends harmful contact
                             Harmful contact occurs
                             Consent was not consent to a reasonable person. Therefore, doctor does not
                                 have privilege of consent. Does this bother you?
                             Why should consent serve as a defense to battery?
                                      If the touching could be beneficial?
                             “Actual Consent”
                             Sometimes, people won‟t have “actual consent” but will act in a way where
                             What is Consent?
                                      Actual consent, or word or deed that would suggest consent to a
                                           reasonable person
                                      This fixes both the hypothetical and O‟Brien
                             Why should the defense of consent be construed this broadly?
                                      Flood gates of litigation
                                      Place too high a burden on people interacting with P. The only
                                           way to know whether or not to proceed is if you could read their
                                           mind. Fairness to the defendant.
                o      Hypothetical: D is on a public street gets into an argument with P. He says, if you
                       don‟t leave now I‟ll punch you in the face. P stands his ground. D punches him in
                       the face. Does he have the defense of consent?
                             Actual consent
                             Manifestation of consent to a reasonable person.
                o      Hypothetical: D says if you don‟t leave my house right now, I‟ll throw you out. D
                       throws P out of the house. Does he have the privilege of Consent?
                             NO!!
                                      He may have some other privilege but he doesn‟t have actual
                                           consent and he does not have manifestation of consent.

Philip Larson                                                                                     Page 38
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         20. Hackbart v. Cincinatti Bengals, Inc                       (Privileges - Consent)
20.1 Title and Citation

Hackbart v. Cincinatti Bengals, Inc, United States Court of Appeals, Tenth Circuit, 1979               p89

20.2 Facts

Hackbart (P) was hit in the back of the head by Charles Clark of the Bengals (D) with enough force to
knock both players down (during a football game). Strike was not accidental but trial court did not find
that there was “intent to injure”.

PH: Trial court found for D, the Bengals. Trial court found that Clark “acted out of anger and frustration,
but without a specific intent to injure” p90¶3. Trial court ruled that the game of football is violent and that
the sanctions available for these circumstances are provided through penalties and expulsion.

20.3 Issues

Can an injury inflicted by a professional football player in a regular season game give rise to liability in tort
when it arises from an intentional strike?

20.4 Decisions

Appellate court reversed the trial court decision and ordered a new trial. They said that the trial court
should have limited their scope to D‟s liability. However, instead they determined that as a matter of social
policy since football was violent that valid lines could not be drawn. Appellate court said this was not the
proper issue.
20.5 Reasoning

20.6 Separate Opinions

20.7 Analysis

Are the elements of battery met?
         - Yes.
         - Trial court decided that there was consent because football is a tough, unpredictable sport.
         - Court of Appeals reverses the decision. Why?
                 o If you engage in something that is inside the rules, it is not a battery
                 o If you engage in something that is outside the rules, perhaps it could be battery
         - Hypothetical:

Philip Larson                                                                                          Page 39
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                     21. Mohr v. Williams                  (Privileges - Consent)
21.1 Title and Citation

Mohr v. Williams, Supreme Court of Minnesota, 1905                                                     p91

21.2 Facts

P consulted D, an ear specialist about a problem with her right ear. She consented to an operation on her
right ear. Her family doctor was present at her request. While under anesthesia, the doctor realized that the
right ear did not need surgery but that the left ear did. He performed a successful operation. Nevertheless,
P brought action against D for battery saying she did not consent to the operation.

D claims:
1. Operation was consented to by P (express) and by her doctor who did not tell him to stop.
2. Act did not amount to assault and battery because it was a skillfully performed an operation that fixed a
disease that threatened her health. Essentially, “absence of a showing that D was actuated by a
wrongful intent, or guilty of negligence, relieves the act of D from the charge of unlawful assault and
battery” p93¶2

PH: Trial court awarded P $14,322.50. Trial judge denied motion for judgment notwithstanding the verdict
but granted a new trial on the ground that the damages were excessive. Both parties appeal.

21.3 Issues

Is express consent necessary for a doctor to be relieved from liability for assault and battery if he is
performing an operation with the intention of helping the patient?

21.4 Decisions

No, the doctor can still be liable if the consent could have been gotten without risking the life or health of
the patient. Order for new trial is affirmed. (Note: In second trial P received a verdict and judgment for
$39. There was no appeal.)

21.5 Reasoning

Rule 1: The court says that if patient consents to an operation and during it the physician discovers
conditions that were not anticipated that would endanger the life or health of the patient, he would be
justified in extending the operation without express consent. p92¶2

Court rules that this case does not meet this rule because her life was not endangered.

Rule 2: Criminal A&B vs. Civil A&B: This case is unlike in a criminal prosecution for A&B, for there
an unlawful intent must be shown. But that rule does not apply to a civil action, to maintain which it is
sufficient to show that the A complained of was wrongful and unlawful or the result of negligence.”

21.6 Separate Opinions

21.7 Analysis


Medical Care Consent
        - Medical care providers can act in absence of express consent if (p94 §3):

Philip Larson                                                                                          Page 40
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                o 1. patient is unable to give consent (e.g. unconscious, intoxicated, mentally ill)
                o 2. there is risk of serious bodily harm if treatment is delayed
                o 3. a reasonable person would consent to treatment under the circumstances
                o 4. this patient would consent to treatment under the circumstances
        -   Withdrawal of consent
                o Withdrawal of consent means physician must get new consent
        -   Child is a minor?
                o Consent of parent is necessary for any major surgical operation, except an
                          Can parents “consent” on behalf of a minor to be a donor in a transplant
                             operation for the benefit of a sibling?

        -   Mohr case
                o There is battery
                            Intent for Harmful contact
                            Harmful contact occurs
                o He is claiming that he is not liable because he has the case of consent.
                            Consent MUST come from the individual
                            Asdfd
        -   Hypothetical: Patient comes into hospital unconscious. In her wallet is a card that says she
            doesn‟t want blood transfusions and she needs one. Can the doctor proceed?
                o No.
        -   Hypothetical: Wife is hurt. Husband does not consent to operation. Can doctor proceed?
                o Yes. Husband is a third party and cannot take away consent of patient.
                            Exception: if he is a durable power of attorney.
        -   Defense of Consent
                o Actual Consent
                o Manifestation of consent
                o Unconscious and faced with life-threatening condition + no manifestation of lack of
        -   Plaintiff has to establish there was consent.
                o Other defenses, there will be wrongful behavior

Philip Larson                                                                                   Page 41
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                    22. De May v. Roberts                 (Privileges – Consent)
22.1 Title and Citation

De May v. Roberts, Supreme Court of Michigan, 1881                                                   p96

22.2 Facts

De May (D) is a physician sent to treat Mrs. Roberts (P). He brought Scattergood, not a physician and
utterly ignorant of the practice of medicine, with him to carry his things. P believed him to be an assistant
physician. Evidence tended to prove that Scattergood was reluctant to accompany De May. P‟s husband
seemed satisfied by the description of Scattergood as a “friend fetched to help carry my things.”

PH: Trial Court found for P.

22.3 Issues

If you illicit consent from someone by deceiving them, does the consent remove the liability for the actions
then taken?

22.4 Decisions

No. Judgment for P affirmed. Court ruled that Roberts had a right to privacy and that her original consent
to the presence of Scattergood based on the assumption that he was an assistant physician does not prevent
her from recovering when she finds out the truth.

22.5 Reasoning

“To the P the occasion was a most sacred one and no one had a right to intrude unless invited or because of
some real and pressing necessity which it is not pretended existed in this case. P had a legal right to the
privacy of her apartment” p97¶2

“The fact that at the time, she consented to the presence of Scattergood supposing him to be a physician,
does not preclude her from maintaining an action and recovering damages upon afterwards ascertaining his
true character.”

Rule: If you illicit consent from someone by deceiving them, the consent does not remove liability for
actions taken based on that false consent.

22.6 Separate Opinions

22.7 Analysis

         -   Consent “induced by fraud”
         -   Intoxication
                 o Consent is ineffective if P is incapable of expressing rational will
         -   Informed Consent
                 o Doctrine of “informed consent” requires that a physician disclose to the patient the
                      risks of the proposed medical treatment. If she does not do so, she may be liable
                      when injury results from the treatment.
                            Before 1960, liability was placed on the ground of battery

Philip Larson                                                                                        Page 42
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                          Since around 1960, failure to disclose the risk has been treated as a “breach
                           of the doctor‟s professional duty” and is therefore placed on grounds of

Philip Larson                                                                                  Page 43
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                            23.         (Privileges – Self Defense)
23.1 Notes

        -   Privilege of Self-Defense is normally covered in criminal law. Cases involved tort liability
            are infrequent. When they arise, the criminal rules are carried over and applied without much
        -   SELF DEFENSE
                 o 1. Existence of Privilege
                           “Anyone is privileged to use reasonable force to defend himself against a
                              threatened battery on the part of another.”
                                     Burden of proof is on the defendant. (except in some jurisdictions
                                        when D is a police officer)
                                     Trial court judge will make initial determination whether a self-
                                        defense instruction is warranted by the facts
                 o 2. Retaliation
                           Self-defense is a privilege against threatened battery, not one of retaliation.
                           If battery is no longer threatened, privilege terminates and the original
                              victim becomes liable for battery.
                           Even if a person initially was an aggressor, once he has retreated he has a
                              right to self-defense against the person he initially threatened.
                 o 3. Reasonable Belief
                           Privilege of self-defense 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
                 o 4. Provocation
                           Insults and verbal threats do NOT justify the exercise of self-defense (in
                              almost every court)
                 o 5. Amount of Force
                           Privilege is limited to the use of force that is or reasonably appears to be
                              necessary for protection against a threatened battery.
                           Differences in age, size and relative strength are proper considerations.
                 o 6. Retreat
                           Disagreement on whether the defendant must retreat if he can do so or if he
                              is allowed to stand his ground and use force.
                           “It is settled that he may stand his ground and use any force short of that
                              likely to cause serious injury.”
                                     Restatement does not require retreat within one‟s own home.
                           “Victim may use deadly force if there is the slightest doubt, if reasonable,
                              that the retreat can be safely made.”
                 o 7. Injury to Third Party
                           Defendant, defending himself against A unintentionally shoots B. So far as
                              “transferred intent” is concerned, the privilege of self defense is carried over
                              and A is not liable to B in absence of some negligence.

Philip Larson                                                                                       Page 44
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                          24. (Privilege – Defense of Others)
24.1 Notes

               o 1. Nature of Privilege
                      Similar to self-defense but for third persons.
                      Often used to protect family members.
                      As in self-defense, the closest questions concern whether defendant used
                         reasonable force in the circumstances.
               o 2. Reasonable Mistake
                      Some courts hold that the intervenor steps into the shoes of the person he is
                         defending. If it turns out he has intervened to help the aggressor, he is
                      Other courts hold that the defendant is privileged to use reasonable force to
                         defend another even when he is mistaken in his belief that intervention is
                         necessary, as long as his mistake was reasonable. 2nd Restatement §76
                         adopts this perspective.

Philip Larson                                                                               Page 45
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              25. Katko v. Briney                (Privileges – Defense of Property)
25.1 Title and Citation

Katko v. Briney, Supreme Court of Iowa, 1971                                                            p105

25.2 Facts

Katko (P) brings action for damages against Briney (D). Briney‟s house had had a series of intrusions
despite no trespass signs, etc. D set up a “shotgun trap” that would shoot a shotgun when the bedroom door
was opened. The gun could not be seen from outside and there was no warning of its presence posted.
Katko went into the house with intention of stealing old jars and had his leg blown away leading to
permanent deformity.

D argues that “the law permits the use of a spring gun in a dwelling or warehouse for the purpose of
preventing the unlawful entry of a burglar or thief”.

PH: Jury ruled in favor of P for $20,000 actual and $10,000 punitive damages. Defendants made motion
for judgment notwithstanding and for a new trial and the judge overruled. Defendants are appealing.

25.3 Issues

Can an owner protect personal property in an unoccupied boarded-up farmhouse against trespassers and
thieves with a spring gun capable of inflicting death or serious injury?

25.4 Decisions

No. Judgment affirmed for the plaintiff.

25.5 Reasoning

Trial Court Rule: a person owning a premise is prohibited from setting out “spring guns” and like
dangerous devices which will likely take life or inflict great bodily injury. The fact that the trespasser may
be acting in violation of the law does not change the rule. The only time it would be justified is if the
trespasser was committing a felony of violence or a felony punishable by death. p107¶5

Rule: Torts §85 “The value of human life and limb, not only to the individual concerned but also to society,
so outweighs the interest of the possessor of land in excluding from it those whom he is not willing to
admit…that a possessor of land has no privilege to use force intended or likely to cause death or serious
harm against another

Rule 2: A possessor of land cannot do indirectly with a mechanical device that which, were he present, he
could not do immediately and in person.

25.6 Separate Opinions

Dissenting opinion: trial court‟s instructions failed to “tell the jury it could find the installation was not
made with the intent or purpose of striking or injuring the plaintiff.” He also said that this principle had
never been applied to a burglar, just a mere trespasser.

25.7 Analysis

         -    unlike self-defense, a reasonable mistake as to the existence of privilege will NOT protect the
              defendant in defense of property

Philip Larson                                                                                           Page 46
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        -   like in self-defense, privilege to defend property is limited to the use of force reasonably
            necessary to the situation as it appears to the defendant
        -   Use of Force Calculated to Cause Death or Serious Injury
                 o If invader threatens personal safety of D or his family (self-defense), D may use
                      deadly force if it is necessary
                 o In some states, the general rule of prohibiting deadly force is modified if D gives P
                      clear notice of the danger

Philip Larson                                                                                    Page 47
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                      26. Surocco v. Geary (Privileges – Necessity)
26.1 Title and Citation

Surocco v. Geary, Supreme Court of California, 1853                                                  p117

26.2 Facts

Geary (D) was trying to stop a fire and blew up Surocco‟s house and property to try to prevent the fire from
spreading. The fire would have destroyed the house later but the Surocco‟s claim they could have gotten
more of their property out.

PH: trial court jury found for P. D is appealing under the Practice Act of 1850.

26.3 Issues

Can a person tears down or destroys the house of another, in good faith, and under apparent necessity, for
the purpose of saving adjacent building and stopping a fire‟s progress, be held personally liable in an action
by the owner?

26.4 Decisions

No. Judgment reversed in favor of D. Court held that the blowing up of the house was necessary and that
P cannot recover for the value of the goods that might have been saved because they were as much subject
to the necessities of the occasion as the house in which they were situated.

26.5 Reasoning

Rule: Necessity provides a privilege for private rights. p117¶6

“Common law adopts the principles of natural law, and places the justification of an act otherwise tortuous
precisely on the same ground of necessity.” p117¶7… “at such times, the individual rights of property
give way to the higher laws of impending necessity.”

Why? Public policy. “were it otherwise, one stubborn person might involve a whole city in ruin, by
refusing to allow the destruction of a building which would cu off the flames and check the progress of the
fire.” p118¶1

26.6 Separate Opinions

26.7 Analysis

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        27. Vincent v. Lake Erie Transp. Co.                       (Privileges – Necessity)
27.1 Title and Citation

Vincent v. Lake Erie Transp. Co., Supreme Court of Minnesota, 1910                                   p120

27.2 Facts

While unloading a boat owned by Lake Erie Transp. Co. (D), a large storm erupted. Navigation was
practically suspended. However, in holding and tying the boat to the dock, the dock sustained damages.
Vincent (P) owns the dock and is suing for damages.

D contends that the storm created “necessity” by prudence and good seamanship to dock the boat and
therefore should not be held liable for any injury resulting to the property of others.

PH: Trial court found for P. Judge denied request for a new trial. D appeals.

27.3 Issues

Can P recover damages when his dock is damaged by a ship whose owners have chosen to tie to it during a
bad storm or is this an “act of god” that would not allow recovery?

27.4 Decisions

Judgment for P affirmed.

27.5 Reasoning

Rule 1: If, “without the direct intervention of some act by the one sought to be held liable”, the property of
another is injured, such injury would be attributed to the “Act of God” and P could not recover.

Court says that this rule is not executed because “those in charge of 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…her owners are responsible to the dock owners”

Rule 2: And so public necessity, in times of war or peace, may require the taking of private property
for public purposes; but under our system of jurisprudence compensation must be made.”

Court argued that the infliction of the injury was in the control of the defendant and they decided to salvage
their own property at the plaintiff‟s expense.

27.6 Separate Opinions

Dissenting opinion was omitted.

27.7 Analysis

                o Should necessity privilege ever extend to the taking of life?
                       In criminal law, the answer has generally been “no” p122 §5

Philip Larson                                                                                        Page 49
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28. Sindle v. New York City Transit Authority                         (Privileges – Justification)
28.1 Title and Citation

Sindle v. New York City Transit Authority, New York Court of Appeals, 1973                        p126

28.2 Facts

Sindle (P), a 14 year old kid, was riding the school bus owned by D. It was the last day of school and the
students were boisterous, breaking lights, windows, etc. There is no evidence that P partook in the
destruction. Driver made several stops, admonished the students, and then drove them straight to the police
station bypassing several normal stops. P (w/ father) brought action fro false imprisonment.

PH: Appellate court denied D‟s motion to amend their answers to plead “Defense of Justification”. Court
excluded all evidence bearing on the justification issue.

28.3 Issues

28.4 Decisions

New York Court of Appeals thought it “was an abuse of discretion for the trial court to deny the motion to
amend and to exclude the evidence of justification.” Appellate court decision was therefore reversed and a
new trial was granted.

28.5 Reasoning

Although not relevant to the holding, the court does note that:

“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 unlawful.” p127¶4

28.6 Separate Opinions

28.7 Analysis


You need rules to govern behavior if people live in close contact. There is great wisdom
in rules that have developed over time. They are to protect people‟s dignity by.

    1. Theory 1: Intentional torts are designed to protect natural rights including life,
       liberty and property.
           a. Expand definition of liberty so that all pieces of the torts are defined
               within liberty.

Philip Larson                                                                                     Page 50
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    2. Theory 2: Intentional torts provide more than just natural rights in some ways
       and less in others. (e.g. if I shoot at the back of your head and miss, there is no
       tort even though most would argue that this is an affront to your natural rights)
    3. Theory 3: Things that give rise to violence are discouraged. A way of
       discouraging interpersonal violence. (Consent – construed narrowly to ensure
       that consent is only a privilege when the person invited the conduct; if it were
       construed more broadly; Trespass to Property – don‟t have ability to use deadly
       force because this would cause him or his family to come after you) What
       reduces violence in society? What was society‟s greatest need?

Intentional torts have the purpose of reducing violence within society. This protects a
person‟s dignity because this often induces a violent response. It explains assault because
this could induce a violent response. It explains consent because if there is true consent,
there is no possibility of violent response. It is construed narrowly because if you
mistake someone‟s consent, it will lead to a violent response. It explains defense of
property because you will try to protect it violently. It also explains why you cannot use
deadly force. It explains necessity when public good overrides individual‟s interests
because people who stand against the majority would be trampled violently by the
masses. It certainly explains justification (miscellaneous privilege) because sometimes
its JUST NOT FAIR to hold someone responsible. Justification is like a safety valve that
heads off.

In the 1900th century, insults not accompanied by intentional harmful contact probably
did not induce violence because they were less sensitive. Now, there are certain kinds of
insults that are so serious that they are likely to induce violent response. Today, the torts
have not evolved because

If there were no statutory laws being passed, these would have started evolving to cover
these types of insults in Tort law. However, since politicians have …

A problem with this theory:
Intentional Infliction of Emotional Distress (IIED) does not protect just words.
Nevertheless, incredibly cruel insults can certainly lead to a violent response.

When confronted with an exam

Allowing liability would help reduce violence in society.

Philip Larson                                                                         Page 51
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                             29. Lubitz v. Wells              (Negligence)
29.1 Title and Citation

Lubitz v. Wells, Superior Court of Connecticut, 1955                                                p131

29.2 Facts

Lubitz (P) sues Wells (D), owner of a golf club for negligence. Wells left the golf club in his backyard.
Well‟s son picked it up and swung it at a stone. Missing the stone, he hit Judith Lubitz in the jaw and chin.

29.3 Issues

Is leaving a golf club in a backyard where you know two kids will be playing sufficient negligence for
cause of action?

29.4 Decisions

No. Father was not found guilty of negligence. Court found that it would “hardly be good sense to hold
that this golf club was so obviously and intrinsically dangerous that it is negligence to leave it lying on
the ground.”

29.5 Reasoning

29.6 Separate Opinions

29.7 Analysis

        -    Given the Carroll Towing case, (B< PL), and given the burden is so low, why did the court
             find in this way?
                  o P‟s argument: The burden was so low to pick up the club…
                  o D‟s argument: The burden is incredibly high because you have to pick up all
                       ordinary objects that could be misused by a child.
                            You don‟t try to measure the loss to the P and the Burden on D. You try to
                                measure these across classes of objects because it is measuring societies
                                burden and societies losses.
                  o It is likely because a REASONABLE PERSON would not FORESEE the loss.
                       Therefore, you never get to the equation.
                  o If we were sure that the LAW & ECONOMICS perspective was correct, we could
                       stop. However, there are other perspectives…(hence we read the other cases)

        - two approaches to analyzing negligence
              o 1. Law and Economics Approach and
              o 2. ??
        - ELEMENTS:

Philip Larson                                                                                       Page 52
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                 o   Duty (Normative)
                 o   Breach (Empirical)
                 o   Causation
                          Cause in fact (Empirical)
                                  Did defendant‟s behavior directly cause the damage?
                          Proximate cause (Normative)
                                  Not really about causation. If my actions have in fact caused
                                      harms to someone else, under what conditions should I be hold
                                      liable? How far down the chain of causation are we liable?
                o Damage (Empirical)
        -    Normative
                o Describing the way something should be…Not a judgment about what is or is not the
                o Proximate Cause and Duty are normative
        -    Empirical
                o Describing the way something is. These are factual questions.
                o Breach, Cause in Fact, and Damage are all empirical
        -    NOTE: “n”egligence means breach of duty “N”egligence means all 4 elements are present

What is the PURPOSE of having a tort called NEGLIGENCE?

p129 Negligence
       - not recognized until early part of 19th century
       - around 1825, negligence began to emerge as a separate basis of tort liability, independent of
            other causes of action
       - negligence was for all unintentional torts
       - Elements of Negligence
                 o 1. Duty to use reasonable care
                 o 2. Breach of Duty: Failure to conform to the standard
                 o 3. Causation: close connection between conduct and resulting injury
                 o 4. actual loss or damage
       - Another common rubric:
                 o “conduct that falls below the standard of care established by law for the protection of
                      others against the unreasonable risk of harm”p130
       - CONTRIBUTORY NEGLIGENCE: the defendant is claiming that the plaintiff‟s conduct
            was negligent and that the plaintiff‟s negligence also contributed to the cause of plaintiff‟s

Philip Larson                                                                                    Page 53
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             30. Blyth v. Birmingham Waterworks Co.                            (Negligence)
30.1 Title and Citation

Blyth v. Birmingham Waterworks Co., Court of Exchequer, 1856                                            p132

30.2 Facts

Blyth (P) is suing Birmingham Waterworks Co. (D) when a plug opposite Blyth‟s house sprung a leak
during a severe frost. Water escaped through the earth and into Blyth‟s house causing much damage. The
plug had worked well for 25 years.

PH: trial court left question of D‟s negligence to jury which returned a verdict for P. Defendant is

30.3 Issues

Is a company providing plugs for waterpipes guilty of negligence when the plugs break under an extreme
frost after the plugs have worked well for 25 years?

30.4 Decisions

No. Appellate court ruled that trial court erred in leaving the finding of negligence up to the jury.

30.5 Reasoning

“a reasonable man would act with reference to the average circumstances of the temperature in ordinary
times.” The frost represented “a contingency against which no reasonable man can provide. The result
was an accidenct for which the D‟s cannot be held liable.” p132¶5

30.6 Separate Opinions

30.7 Analysis

         -    Blyth v. Birmingham Waterworks
                  o this is not negligence as a matter of law
                  o it was POSSIBLE to prevent this kind of damage
                  o Do we have a DUTY to prevent all possible harm?
                            NO. This was preventable.
                            Where do we draw the line?
                            You do not have to be EXTRAORDINARILY careful?
                                      We just have to take ORDINARY care!
                                      How much care is ordinary care? The amount a reasonable person
                                         would take.
                            Ordinary care is reasonable under the circumstances.
                  o Hypo: If I build homes in San Francisco, would it be negligent to build homes that
                       can‟t survive an earthquake? Yes.
                  o Hypo: In DC, would you be negligent? No, because a reasonable person would not
                       build homes that can survive an earthquake.
                            Therefore, the amount of care required depends on the circumstances.

Philip Larson                                                                                           Page 54
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                  31. Gulf Refining Co. v. Williams                      (Negligence)
31.1 Title and Citation

Gulf Refining Co. v. Williams, Supreme Court of Mississippi, 1938                                    p133

31.2 Facts

Williams (P) is suing Gulf Refining Co. (D). D distributes petroleum products, including gasoline. They
sold a drum of gasoline to Williams. When Williams removed the bunghole from the drum, there was a
burst of fire. The trial jury concluded this was caused by a spark produced by the poor condition of the
threads of the bung cap. Williams was badly burned.

D‟s (Gulf Refining) primary argument: this was “unusual, extraordinary and improbably occurrence…that
witnesses say no such happening had ever before been heard of by them.”p133¶6

PH: trial court found for P and Gulf Refining Co. is appealing.

31.3 Issues

Is a company that sells a drum of gasoline with an old bunghole liable for negligence when a spark
resulting from the old bunghole causes a fire, even though the likelihood of the fire is extremely low?

31.4 Decisions

Yes. Supreme court affirms trial courts decision in favor of Williams recovering. The drum had been in
use nine years, the threads on the cap were broken, bent and jagged. The condition had attracted the
attention of one of the Gulf Refining Co.‟s employees before the container was sent out.

31.5 Reasoning

“there was no adequate proof to show that Williams had equal knowledge or appreciation of the
significance of the state of the bunghole.”

“should have reasonably anticipated…the sudden fire or explosion would be caused by the condition of

31.6 Separate Opinions

31.7 Analysis

         -   p135”the test is not of the balance of probabilities, but of the existence of some probability of
             sufficient moment to induce action to avoid it on the part of a reasonable mind.”
         -   Gulf Refining v. Williams
                  o NEGLIGENCE was found
                           Gulf failed to provide reasonable care.
                           If D fails to take precautions against a harm that is probable?
                                      That is negligence. A reasonable person would take precautions
                                         against probably harm.
                           If D takes precautions against all probable harms, is that ordinary care?
                                      NO. You have to protect against more than just probable harm?
                  o TEST OF FORESEEABILITY

Philip Larson                                                                                        Page 55
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                          “real likelihood of some damage and the likelihood is of such appreciable
                           weight and moment as to induce, or which reasonably should induce, action
                           to avoid it on the part of a person of a reasonably prudent mind”p134¶3
                          Real likelihood of damage that would cause a reasonably prudent person
                           would take precautions
                          A.k.a. protect against reasonably foreseeable


Philip Larson                                                                              Page 56
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            32. Chicago, B. & Q.R. Co. v. Krayenbuhl                           (Negligence)
32.1 Title and Citation

Chicago, B. & Q.R. Co. v. Krayenbuhl, Supreme Court of Nebraska, 1902                                p135

32.2 Facts

A child, Krayenbuhl (P) playing on a railroad turntable maintained by Chicago, B. &Q.R (Defendant), is
suing to recover damages. Turntable had a bolt that held it in position and had a padlock. D‟s rules
required employees to lock it when not in use but this was frequently disregarded. P got on the turntable.
When the other children set it in motion his foot got caught and was severed at the ankle.

PH: trial court returned verdict for P saying railroad was negligent. D brings “error”. Trial court held that
the fact that the children were trespassers did not “deprive them of the right to enforce D‟s duty to use
reasonable care to make its premises safe.”

32.3 Issues

Does a railroad have to use sufficient care to prevent trespassing children from misusing their heavy
machinery and causing themselves harm in order to prevent liability for negligence?

32.4 Decisions

Yes. Nevertheless, the court reversed the judgment saying there was an error in instructions to the jury that
amounted to improper comment on the evidence.

However, the appellate court seems to agree with the trial courts finding saying that:
 “the public good, we think demands the use of the lock…because the burden of doing so is out of
proportion to the danger to be anticipated from leaving it undone”p136¶4 the precautions should be such as
“a man of ordinary care and prudence would observe under the circumstances.”p137¶2

32.5 Reasoning

Regard must be had for
    1. character and location of the premises
    2. purpose for which it is used
    3. probability of injury
    4. precautions necessary to prevent the injury

32.6 Separate Opinions

32.7 Analysis

Torts classes
         - Defendants are always new technologies that we don‟t know about yet.

      - you have to take precautions up until you
      - effective precautions that don‟t destroy the benefits of the activity
             o Hypo: putting up signs would not be enough because they are not necessarily
      - Ordinary care is the care you would use to

Philip Larson                                                                                        Page 57
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                  33. Davison v. Snohomish County                         (Negligence)
33.1 Title and Citation

Davison v. Snohomish County, Supreme Court of Washington, 1928                                          p137

33.2 Facts

Davison (P) is suing Snohomish

33.3 Issues

Davison (P) is suing Snohomish County (D) for negligence in construction and maintenance of an elevated
bridge. The P‟s were driving their Ford auto and went across the bridge at a low rate of speed. As the car
rounded the curve, he lost control, the car skidded and he broke through the railing and fell to the ground.
Both P‟s suffered severe and painful injuries and the automobile was wrecked.

P‟ s claim the bridge is unsafe because it couldn‟t prevent their car from skidding off the approach.

PH: trial court found for P‟s in amount of $2500. Defendant moved for judgment notwithstanding the
verdict, or, in the alternative, for a new trial. Trial court denied both motions and defendant is appealing.

33.4 Decisions

Supreme Court found for D‟s and reversed the trial court decision and dismisses it (no new trial).
Davison‟s could not recover.

33.5 Reasoning

Court said that: “municipalities cannot be required to protect long stretches of roadway with railings or
guards capable of preventing an automobile, moving at a rapid rate, from leaving the road if the car be in
any way deflected.”p138¶4

Additionally, it would “put a burden upon the public that it could not bear. It would prohibit the building
of new roads and tend to the financial ruin of the counties undertaking to maintain the old ones.”p138¶4

33.6 Separate Opinions

33.7 Analysis

         -    if we had to take precautions to prevent cars from going off roadways, the burden would be so
              great that it would destroy the benefits, new roads (b/c the company
                   o 4 cases
                              Normative question
                                      What is the level of duty we owe to each other
                                               o Ordinary amount of care
                                                          Two standards that are different
                                                          Reasonably foreseeable damage
                                                          Or Cost vs. Benefit
                                                          How do we reconcile?

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              34. United States v. Carroll Towing Co.                       (Negligence)
34.1 Title and Citation

United States v. Carroll Towing Co., United States Circuit Court of Appeals, 2nd Circuit, 1947      p139

34.2 Facts

United States (P) is suing Carroll Towing (D) for negligence. Anna C was a barge owned by Conners Co.
Carroll Towing was the owner of the tug whose servants negligently shifted Anna C‟s mooring lines
causing her to break free from the pier. It hit a tanker, she dumped her cargo of flour belonging to the US
and sunk. The US seeks compensation for the flour and Conners Co. seeks compensation for the barge.

D‟s claim: barge could have been kept afloat and her cargo saved if it had been known she had a damaged
propeller but her bargee had gone ashore so no one could observe that it was leaking.

PH: trial court divided the damages, according to admiralty rule, because it found Connor‟s Co. partly
responsible for the loss of the cargo and the barge because they did not have a custodian on board.

34.3 Issues

Is the bargee responsible for contributory negligence when an accident caused by a third party is
augmented by the bargee not having a custodian on board the barge for over 21 hours?

34.4 Decisions

Yes. Conners Co. was found to be partly responsible for the losses of flour and the barge.

34.5 Reasoning

“there is no general rule to determine when the absence of a bargee or other attendant will make the owner
of the barge liable for injuries to other vessels if she breaks away from her moorings.”

However, one needs to consider:
   1. P – probability it will break away
   2. L – gravity of resulting injury if it does
   3. B – burden of adequate precautions

If B is less than PL, you are liable because you should have taken the precautions.

Court found that it was a fair requirement that “you should have a bargee aboard (unless he has some
excuse for absence) during the working hours of daylight.”

34.6 Separate Opinions

34.7 Analysis

Restatement of Torts
        - §291 Unreasonableness
                 o “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.”

Philip Larson                                                                                       Page 59
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        -   When do we have to take the precautions?
               o If B < P*L you have to
               o When B is greater than P*L, you do not have to take the precautions…
               o How can this be quantified?
               o That is the law and economics view of negligence…
               o When it is socially cost-effective, we should take precautions…
               o Social value, not private value is what is at stake here
               o We’re not concerned with maximizing REAL social wealth (because we let the
                   jury decide), but what are we maximizing?

Philip Larson                                                                        Page 60
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             35. Vaughan v. Menlove                 (Negligence – Standard of Care)
35.1 Title and Citation

Vaughan v. Menlove, Court of Common Please, 1837                                                     p143

35.2 Facts

Not sure who is D and who is P. D built a hay rick near boundary of his land and P‟s land. D was
repeatedly warned that this could ignite and he said he would “chance it”. The rick started a fire that
burned down D‟s barn and P‟s cottages.

PH: trial judge told jury that if the fire had “been occasioned by gross negligence on the part of the
defendant” or if D did not take “such reasonable caution as a prudent man would have exercised under the
circumstances” then D would be guilty. Trial court found in favor of P. New trial was obtained on grounds
that judge should not have directed the jury about the “reasonable man” but should have asked whether he
had acted to the best of his judgment (subjective).

35.3 Issues

In negligence cases, must D show that he has taken the care based on his best judgment (subjective) or the
care of an ordinary, prudent man would have taken (objective)?

35.4 Decisions

“Reasonable Man”. D is guilty. No new trial.

35.5 Reasoning

RULE: “the care taken by a prudent man has always been the rule laid down;” p145¶1

REASON: if it were subjective, liability would be different for every individual and would be impossible to

D contends that the rule should be whether D had acted honestly and to the best of his own judgment.

35.6 Separate Opinions

35.7 Analysis

         -    HYPOTHETICAL: 22 year old with mental capacity of 9 year old is driving a tractor. He
              runs over someone. Defense argues that he was using the highest degree of care of which he
              was capable. Plaintiff argues that the court should use the standard of the “reasonable
              person.” Can he be liable even though he did his best?
                  o Yes! You can do your best and still not meet the standard of a “reasonable person”.
                  o Negligence is not about assigning liability when someone is morally blameworthy…
         -    Duty = care that would be exercised by a person of ordinary prudence

Philip Larson                                                                                        Page 61
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             36. Delair v. McAdoo                 (Negligence – Standard of Care)
36.1 Title and Citation

Delair v. McAdoo, Supreme Court of Pennsylvania, 1936                                                   p146

36.2 Facts

Not sure who P and D are. P brought action in trespass to recover damages to person and property when he
got in a car accident with D. D‟s tire blew out and caused him to swerve into P‟s car. P claims D was
negligent for driving with defective tires. Multiple witnesses, including a repairman, testified that the tires
were very worn.

PH: trial court found for P $7500. Court granted a new trial saying that the verdict was excessive. D
makes motion for judgment notwithstanding the verdict.

36.3 Issues

Is it negligent to drive a car with worn tires?

36.4 Decisions

Yes. Affirmed in favor of P. “it is imperative that a duty or standard of care be set up that will be
productive of safety for other users of the highways.”p147¶2

36.5 Reasoning

RULE: “the law requires drivers and owners of motor vehicles to know the condition of those parts which
are likely to become dangerous where the flaws or faults would be disclosed by a reasonable

“the hazard is too great to permit cars in this condition to be on the highway.”p147¶2

36.6 Separate Opinions

36.7 Analysis

         -    “It is commonly held that a reasonable person will not forget what is actually known, and that
              forgetfulness does not excuse negligence.”p148Note7

         -    HYPO: Beaches in Australia put out red flags when there are dangerous jellyfish close to
              shore. An American tourist goes swimming and gets stung. Is going swimming negligent
                  o The reasonable person in Australia should know not to go in the water.
                  o If you are an American tourist and you see red flags, you better find out what they
                       mean. “Duty to find out.”
         -    We hold people to have the level of knowledge required as the ordinary person
         -    NOTE: “A jury is just as well qualified to pass judgment as to the risk of danger in the
              condition of an article in universal use under a given state of facts as experts.” P147¶2

Philip Larson                                                                                           Page 62
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             37. Trimarco v. Klein                (Negligence – Standard of Care)
37.1 Title and Citation

Trimarco v. Klein, Court of Appeals of NY, 1982                                                      p148

37.2 Facts

P‟s bathtub‟s glass enclosure shattered. P was in the process of sliding the door so that he could exit the
tub. He received severe injuries from the lacerated glass.

P contends, with expert testimony, that since the 1950s the practice of using shatterproof glazing materials
was “into common use” so that by 1976 the glass door no longer conformed to “accepted safety standards.”

PH: trial court found for Trimarco (P). Appelate division was divided but reversed and dismissed the

37.3 Issues

Supreme Court would have affirmed trial court and reversed appellate court saying that determining
whether D‟s not replacing the glass tub was negligent was rightly left up to the jury. However, they order a
new trial because some statutes should have been excluded.

37.4 Decisions

Appellate court rationale for reversing trial court and finding there was no negligence was that, “assuming
there existed a custom…to substitute shatterproof glass,…unless prior notice of the danger came to the D‟s
either from the Ps or by reason of a similar accident in the building, no duty devolved on Ds to replace the
glass under common law or §78 of the Multiple Dwelling Law”

Supreme Court rejected Ds contention that shower door was not covered by §78 of the Multiple Dwelling

RULE: “it must bear on what is reasonable conduct under all the circumstances, the quintessential test of

RULE2: “once its existence is credited, a common practice or usage is still not necessarily a conclusive or
even a compelling test of negligence…Before it can be, the jury must be satisfied with its reasonableness,
just as the jury must be satisfied with the reasonableness of the behavior which adhered to the custom or the
unreasonableness of that which did not.” p150¶4

Jury allowed to decide: “so measured…the case…was enough to send it to the jury and to sustain the
verdict reached.” “it was for the jurors to determine whether or not the evidence in the case established a
general custom or practice.”

37.5 Reasoning

37.6 Separate Opinions

Philip Larson                                                                                        Page 63
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37.7 Analysis

        -   HYPO: In 1912, the titanic sank and there were not enough lifeboats. In fact, the industry
            custom in 1912 was not to have a lifeboat for every individual. Titanic met all board of trade
            requirements…Does this mean that they were not negligent?
                 o Following customs is evidence that one behaved the way a reasonably prudent
                     person would behave. However, it is not conclusive evidence.
                 o Jury could still find negligence, if it finds that the customs are not what a reasonably
                     prudent person would do…
                 o Answer: Yes or no depending on jury.
        -   HYPO: Customary way of handling certain types of heart conditions is bypass surgery. If a
            physician treats the condition with low-cholesterol drugs, have they acted negligently?
                 o Failing to follow custom is merely evidence that one may not have acted prudently,
                     but it is not conclusive evidence.
                 o The standard of negligence continues to be that the defendant acted the way a
                     reasonably prudent person (non-expert) or entity would have behaved in those
        -   HYPO: D is driving an automobile. He decides to pass P in a no-passing zone. He sees a
            child step out into the road. He swerves to avoid the child and hits the other car. P sues D for
            negligence. Is he negligent?
                 o You must behave as a reasonably prudent person would under the
                     circumstances not of one’s own making…(Cordas v. Peerless)
                 o In an emergency, there is no intent because you don‟t have enough time to have
        -   HYPO: Grandpa is crossing the street very slowly. He starts when it is legal but can‟t get
            across in time. If a car has to swerve out of the way of the grandfather and hits a tree, is
            grandpa liable?
                 o Would a reasonably prudent

Philip Larson                                                                                      Page 64
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   38. Cordas v. Peerless Transportation Co.                        (Negligence – Standard of
38.1 Title and Citation

Cordas v. Peerless Transportation Co., City Court of New York, 1941                                 p152

38.2 Facts

A thief jumped into the taxi of a driver working for Peerless Transp. (D). The thief had a gun. The
chauffeur pulled on the emergency breaks, swung open the door and jumped out. He abandoned the car
and turned to look and saw P and her two kids were injured by the cab.

P and her husband are suing D for damages contending that chauffeur was negligent in abandoning the cab.
The injuries were minor.

38.3 Issues

Is a person forced to make a quick decision in an emergency negligent if that decision directly causes injury
to another person?

38.4 Decisions

No. Driver of taxi that abandoned his cab at gunpoint was not at fault when cab hit the innocent
bystanders. Court “cannot hold the defendant liable.”

38.5 Reasoning

RULE: “negligence is…failure to exercise that care and caution which a reasonable and prudent person
ordinarily would exercise under like conditions or circumstances.”p153¶3

RULE2: “negligence is not absolute or intrinsic…but is always relevant to some circumstances of time,
place or person.”p153¶3

EMERGENCY DOCTRINE: “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 an opportunity for deliberate
action. He is not required to exercise unerring judgment, which would be expected of him, were he not
confronted with an emergency requiring prompt action.” p154¶4

38.6 Separate Opinions

38.7 Analysis

    1. what if the actor‟s conduct is found to be unreasonable even in light of the emergency?
    2. are there situations in which one may be required to anticipate an emergency, and be prepared to
       meet it?

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     39. Roberts v. State of Louisiana                    (Negligence – Standard of Care)
39.1 Title and Citation

Roberts v. State of Louisiana, Court of Appeal of Louisiana, 1981                                    p155

39.2 Facts

Roberts (P) sued to recover damages he got in the lobby of the Post Office in Lousiana. He fell after being
bumped into by Mike Burson, the blind operator of a concession stand. Burson left the stand to go to the
men‟s bathroom when he bumped into Roberts. Roberts fell and hurt his hip.

P sued State of Lousiana for “negligent failure…to properly supervise and oversee the safe operation of the
concession stand.”p156¶2

PH: Trial court ordered P‟s suit dismissed.

39.3 Issues

Does the standard of care for a blind person require that they use their cane, and if they do not and cause
someone injury, they are liable?

39.4 Decisions

No. Appellate Court affirms trial court and dismisses the case saying that the blind man wasn‟t negligent
and therefore, neither was the state that employed him.

39.5 Reasoning

RULE: “the conduct of the handicapped individual must be reasonable in the light of his knowledge of his

RULE2: “(the handicapped person) must take the precautions, be they more or less, which the ordinary
reasonable man would take if he were blind.”p156¶8

Court found that after “a careful review of the record in this instance…Burson was acting as a reasonably
prudent blind person would under these particular circumstances.”p156¶9… because “it is not uncommon
for blind people to rely on other techniques when moving around in a familiar setting.”p157¶3

39.6 Separate Opinions

39.7 Analysis

         -   “what is D‟s obligation toward someone who is intoxicated?”

         -   HYPO: Grandpa is crossing the street very slowly. He starts when it is legal but can‟t get
             across in time. f a car has to swerve out of the way of the grandfather and hits a tree, is
             grandpa liable?
                 o Well, a reasonably prudent person would have made it to the otherside so under the
                      current rule, YES he would be liable…
                 o However, the answer is NO because of Roberts v. State of Louisiana.

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                o      You are not held to the standard of a reasonably prudent person with the same
                       physical characteristics (e.g. being tall is not enough) but you DO have to take into
                       consideration HANDICAPs and DISABILITIES.
        -   HYPO:

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             40. Robinson v. Lindsay                (Negligence – Standard of Care)
40.1 Title and Citation

Robinson v. Lindsay, Supreme Court of Washington, 1979                                             p159

40.2 Facts

Billy Anderson, a 13 year old, was driving a snowmobile belonging to Anderson (D). He was pulling Kelly
Robinson (P) on an innertube. P‟s thumb was severed when it got caught in the rope. Thumb was
reattached but not fully functional at time of trial.

PH: Trial jury found in favor of Anderson saying that she was not negligent. Trial judge ordered a new
trial because he forgot to instruct the jury as to that standard and thought they should have been so

40.3 Issues

Is a minor operating a snowmobile held to an adult standard of care?

40.4 Decisions

Yes. Supreme court agrees that a minor operating a snowmobile should use an adult standard of care.
They affirm the order for the new trial.

40.5 Reasoning

RULE1: SPECIAL CHILD STANDARD: “it would be a monstrous doctrine to hold that a child of
inexperience…should be held to the same degree of care in avoiding danger as a person of mature years
and accumulated experience”p160¶2…instead, you compare a child‟s conduct to that expected of a
reasonably careful child of the same age, intelligence, maturity, training and experience.

RULE2: EXCEPTION to SPECIAL CHILD STANDARD: “When the activity 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”p160¶5

Reasoning: “we should be skeptical of a rule that would allow motor vehicles to be operated to the hazard
of the public with less than the normal minimum degree of care and competence.”p161¶1

40.6 Separate Opinions

40.7 Analysis

         -    this means that more is required of a child of superior intelligence…

HYPO: Child swings a golf club at a rock in a crowded area. He hits a teacher. Is he liable?
       - YES. Even though he is a child, the activity was INHERENTLY DANGEROUS, which
           means that he should be held to an adult standard of care. (BUT ONLY IN WASHINGTON)
       - NO, in most other states the child is liable for negligence unless they are working in an
           ADULT ACTIVITY.
               o An adult activity is something that requires an adult level of maturity, experience,
                    etc. Oftentimes something requiring a license is good evidence of this. (e.g. driving,
                    hunting, etc.)

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        -   Why?
               o       Inherently dangerous activity

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    41. Breunig v. American Family Ins. Co.                          (Negligence – Standard of
41.1 Title and Citation

Breunig v. American Family Ins. Co., Supreme Court of Wisconsin, 1970                                  p163

41.2 Facts

Breunig‟s (Ps) truck was hit by Mrs. Veith‟s car on the wrong side of the highway. P is suing Mrs. Veith‟s
insurance company (D). Mrs. Veith had an insane delusion that affected her ability to operate the car. She
saw a white light and followed it for 3 or 4 blocks. She thought God was taking hold of the steering wheel.
She “knew she could fly because Batman does it.” She had no knowledge or forewarning that such illness
or disability was likely to occur.

PH: trial court found for P and D is appealing.

41.3 Issues

Is insanity a form of defense that can preclude liability for negligence?

41.4 Decisions

While in general insanity is not a valid defense, the court carved out a specific niche where it can be. “We
hold that a sudden mental incapacity equivalent in effect to such physical causes as a sudden heart attack,
should be treated alike and not under the general rule of insanity.”

In this specific case, the court affirmed the trial court‟s decision that there was negligence because the jury
decided that she could have known that God would take over her life to the extent of driving her car.
(seems strange…)

41.5 Reasoning

RULE: “the affect of the mental illness…must be such as to affect the person‟s ability to understand and
appreciate the duty which rests upon him…in addition, there must be an absence of notice or forewarning
to the person that he may be suddenly subject to such a type of insanity”

RULE2: BASIC INSANITY RULE: “the policy basis of holding a permanently insane person liable for his
tort is 1. where one of two innocent person‟s must suffer a loss it should be borne by the one who caused it
and 2. to induce those interested in the insane person to restrain and control him and 3. the fear that an
insanity defense would lead to false claims of insanity.”

RULE3: “statement that insanity is no defense is too broad when applied to negligence case where a driver
is suddenly overcome without forewarning by a mental disability which incapacitates him…it is unjust to
hold a man responsible for his conduct which he is incapable of avoiding and which…was unknown to him
prior to the accident.

41.6 Separate Opinions


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41.7 Analysis

        -    Why is there a children exception but not an insanity exception?
                o Perhaps because an insanity defense would cause people to make false claims
                     whereas you can‟t falsely claim to be a child…

HYPO: There is a psychotic person who tells everyone to stop and abandon their cars. An accident occurs.
Is that person negligent?
          - If it is not a sudden delusion, then YES.
                   o Why? Insane people must use the same standard of care as an ordinary, prudent
                             Why? Public policy. 1. The one who causes the loss should pay for it. 2.
                                make sure the caretakers pay more attention, 3. prevent false claims.
          - If it is a sudden delusion then NO in Wisconsin, in most other states YES.

                 o Question: Why do we alter the standard for people with physical disabilities but we
                      don‟t for people who are mentally incapacitated (e.g. insane or really dumb).
                           Thesis 1: Physical disabilities or children is more measurable than mental
                               incapacitation. Blindness or childhood is more visible
                                    Since we are AWARE of the disability or the fact that it is a child,
                                        our expectations include this when we decide on our actions. We
                                        can alter our behavior to take precautions.
                                    By contrast, it is not possible to tell that the mentally incapacitated
                                        so we do not have a warning to take greater precaution.
                                    If you see negligence as a means of finding out what precautions
                                        we must take and what precautions others must take,
                           Thesis 3: Common law evolution…(perhaps its going in that direction)
                                    As we become better equipped to measure mental handicaps and
                                        lower mental ability, we may start to carve out niches of protection
                                        for them in the law.
        -    Why doesn‟t the burden fall with the person who caused the injury for blind people?
                 o Did Roberts act in the way that a reasonable blind person would act? Yes.
        -    Negligence is an objective standard applied across classes of cases…
        -    What is the duty?
        -    And has the duty been breached?

        -    Two Versions of Negligence Duty
                o Negligence Duty = duty to take precautions whose burden is less than the potential
                    magnitude of the loss discounted by its probability of occurrence.
                o Negligence duty = duty to act with the degree of care a reasonable person would
                    exercise in the circumstances
                o How would a reasonable person act
                          What type of risks would a reasonable person avoid?
                                    Unreasonable risks
                                    What are unreasonable risks?
                                           o Risks in which B < PL
                o Duty to act with the degree of care a reasonable
                o Is the reasonable person the efficient person?
                          If the purpose of tort law is the maximization of social wealth, yes.
                          If the purpose of tort law is not the maximization of social wealth, then…?
                o Learned Hand said that jury‟s should decide P and L, “real or fancied” rather than
                    their actual values, what kinds of judgments are jury‟s better at making than actuarial

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                            Fairness or equity.

        -   Corrective Justice vs. Optimal Safety Regulations (see Hasnas‟ NEGLIGENCE SLIDES
            from website)
                o Rectify a wrong done and restore the moral balance between parties vs. providing
                     optimal deterrence, impose the cost of injury on the least cost avoider.
                o Individual focus vs. collective focus
                o Equity based vs. efficiency based
                o Individual justice vs. greatest good for the greatest number
                o Reasonable person standard vs. the negligence standard
        -   Unforeseeability
                o Corrective Justice says there is NO WRONG.
                o Optimal Deterrence says B>PL. Burden for preventing unforeseeable risks is
        -   Low Intelligence
                o CJ – is there a wrong? Practical requirement? Burden of unintelligent is higher…
                o OD - B>, but invisible, measurement costs >.
        -   Common Knowledge
                o CJ – there is a wrong (you must have some level of base knowledge. If you don‟t
                     have it you have wronged someone else)
                o OD – B<PL (the burden of having common knowledge is fairly low)
        -   Emergency
                o CJ – no wrong. If you don‟t act as someone who had a longtime to think, you have
                     not wrongfully injured someone…
                o OD – B>PL (burden to prevent when
        -   Physical Disabilities
                o CJ – no wrong
                o B>, visible, measurement costs <
        -   Children
                o CJ – no wrong.
                o OD – B>, visible, measurement costs < (we can take precautions ourselves against
                     the acts of children.
        -   Insanity
                o CJ – is there a wrong? Practical requirements? (not really a wrong…is it practical
                     for courts to identify different types of insanity?)
                o OD – B>, but invisible, measurement costs >

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                                       42. Example Brief
42.1 Title and Citation

42.2 Facts

42.3 Issues

42.4 Decisions

42.5 Reasoning

42.6 Separate Opinions

42.7 Analysis


Osborne v. McMasters
        - poison was sold from drug store
        - drug was not labeled poison as required under statute
        - someone drank it and died
        - HYPO: assume it is common standard to sell things without labels. D claims he behaved as a
            reasonable druggist would behave.
                o No, industry standard is evidence you‟ve acted reasonably but is not proof that you
                    have acted reasonably.
        - HYPO: what if the druggist could establish that
        - What was the proof introduced that the druggist was negligent?
                o The statute requiring the label.
                o The Statute fixes the standard of care.
                o The druggist broke the statute and therefore did not use sufficient standard of care.
                o Standard is the statute not what a reasonable person would do.
        - Ways of determining standard of care
                o negligence formula
                o reasonable person standard
                o standards set by statute
                          when statute is designed to protect the type of injury sustained by P
                          when P is the type of person meant to be protected

Stachniewicz v. Mar-cam Corp.
        - two parties in a bar
                 o whites got in a fight with Native American

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                   o   whitey is suing the owner of the bar for negligence
                   o   jury found for defendant. Jury found that the owner acted as a reasonable person
                       would act. This may or may not matter.
                             Statute was designed to protect the type of injury sustained by P
                             P
                  o Negligence per se, you have Duty and Breach but you don‟t necessarily have
                       Causation and Damage…
                  o If you get Negligence per se you DON‟T HAVE TO PROVE CAUSATION and
                  o If the injured party of the plaintiff worked at the bar
        -    Is there any justification why we let statutes and regulations supply the negligence standard of
             care and supplant the reasonable person standard?
                  o Negligence per se may not be great when you find cases where the jury finds for the
                       defendant and the courts overrule in favor of P. This is because the reasonable
                       person standard is different than the statutes

Ney v. Yellow Cab Co.

Perry v. S.N. and S.N.

Martin v. Herzog

Zeni v. Anderson

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                                      43. Example Brief
43.1 Title and Citation

43.2 Facts

43.3 Issues

43.4 Decisions

43.5 Reasoning

43.6 Separate Opinions

43.7 Analysis



Res ipsa loquiter = getting into court on very little evidence.
         - “the thing speaks for itself”
         - 2 Elements
                  o Doesn‟t ordinarily occur without negligence
                  o It must have been in defendant‟s EXCLUSIVE CONTROL

        -    Negligence
                 o Duty
                 o Breach
                         Proposition: Preponderance of evidence
                 o Causation
                 o Damage

Proposition to be established
         - Evidence  could a jury
                  o Circumstantial Evidence
         - Res Ipsa is a specific type of evidence
                  o NOTE: a JUDGE decides whether res ipsa loquitur applies.
                            If it does, you get to a jury. If not, you don‟t…
                  o You do not have to prove someone WAS negligent.
                  o You just have to show that a jury COULD FIND based off the facts, that someone
                       was negligent…
         - McDougald v. Perry

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                o   Tire comes out from a truck and hits the driver of another vehicle. If P wants to get
                    to trial, he should try to establish that:
                           Damage would not ordinarily occur without negligence (e.g. tires don‟t
                               ordinarily fly out at moving vehicles)
                           Instrumentality in defendant‟s EXCLUSIVE CONTROL
               o Judge let this go to juryjury finds for Pappellate court reverses (because there
                    was no expert testimony)Supreme Court reverses the reversal (no expert testimony
                    is needed)
               o Holding: Expert Testimony is not required to establish the first element of res ipsa
                    (i.e. damage would not ordinarily occur without negligence)
        -   HYPO: What if the defendant truck driver had introduced evidence that he noticed there were
            some teenage boys hanging around the truck and he chased them away? Would this matter?
                           YES: the truck was no longer in his EXCLUSIVE CONTROL.
                                     INCORRECT ANALYSIS: you don‟t need sole access (think of
                                        the flour falling out of the bakery window case)
                           NO: at the time of the accident, it WAS in his exclusive control.
                                     THIS ANALYSIS IS INCORRECT: Must have exclusive control
                                        at the TIME the negligence occurred
                           NO: the truck was ALWAYS in the truck driver‟s exclusive control.
        -   Larson v. St. Francis Hotel
               o P is walking down the sidewalk and is struck in the head by a heavy, over-stuffed
                    arm chair. It is a reasonable inference that the chair came from some portion of the
               o Res Ipsa does not apply. Why not?
                           Court says that hotel does not have EXCLUSIVE CONTROL of the
                               furniture because the guests have control over it.
                           Additionally, chairs aren‟t usually “negligently” thrown out windows.
                               Usually they are “intentionally” thrown out the window.
               o If you can‟t get into court on res ipsa, you can maybe get into court with either
                    CIRCUMSTANTIAL or DIRECT evidence…
               o Res ipsa is a way of getting into court when you don’t have circumstantial or
                    direct evidence…

        -   Ybarra v. Spangard
               o P had appendicitis. D, the doctor, performed the surgery. P woke up with a pain in
                   his neck. He was unable to lift his arm and his arm atrophies.
               o Does he have any direct evidence about what happened?
                         NO.
               o What is the proposition that needs to be established?
                         Duty: reasonable care. The defendant didn‟t use the amount of care a
                            reasonable person in this position would use.
               o Does he have any circumstantial evidence to prove this proposition?
                         NO.
               o NOTE: whenever dealing with evidence, first ask what the proposition is.
               o What about RES IPSA?
                         First element is fine.
                         However, “exclusive control” is difficult because there are many doctors.
               o Nevertheless, Supreme Court allows the doctrine of RES IPSA…
                         Exception to Exclusive Control:
                                  Patient is unconscious and undergoing medical treatment.
               o Therefore, you can use RES IPSA if:
                         1. Damages would not ordinarily occur without negligence
                         2. Instumentality is under the EXCLUSIVE CONTROL of defendant
                         3. UNLESS, P is a patient that is unconscious and undergoing medical
                            treatment (this is a very narrow)
               o NOTE: in this case the DEFENDANTS must prove that they WEREN‟T negligent!

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                             BURDEN OF PROOF SHIFTS TO DEFENDANTS in the unconscious
                              medical treatment exception…this is a big deal…
        -   Sullivan v. Crabtree
                o P son died. Son was riding in D‟s truck. Truck swerved off a highway and went
                    down a steep embankment. D testified he was going downhill, there was some
                    gravel on the road, and the pavement was a little broken. Since it went to the, P was
                    able to establish RES IPSA. Judgment was for D. Appellate affirms.
                o Basis of appeal?
                          Jury should not have been able to find for D.
                          Why not?
                                   P is appealing because D provided NO explanation for the injury…
                                   P is saying he established RES IPSA and therefore BURDEN OF
                                       PROOF was on DEFENDANT
                                   Court said: burden of proof was still on P. Res ipsa just lets you
                                       get into court. There is an inference of negligence that the jury can
                                       agree with or disagree with.

        -   Negligence
                o DUTY
                o BREACH
                o CAUSATION
                        Causation in Fact
                        Proximate Cause
                o DAMAGE

        -   Res ipsa loquitur
                 o Event does not ordinarily occur without Negligence
                 o Exclusive control by defendant except when unconscious undergoing medical
                      treatment (Note: “Exclusive control” should be viewed slightly expansively…)
                 o Note: Burden of proof
        -   HYPO: P is on Amtrak and gets hurt when a train derails. He sues based on res ipsa because
            it has no idea why the train was off the track. Amtrak provides evidence that people have
            been threatening sabotage, etc. Does res ipsa apply?
                 o YES. Providing an alternative explanation does not hurt the two elements. It may
                      help the case in front of the jury…
                 o NO. The train is under Amtrak‟s control but the rails are under someone else‟s
                 o How do we resolve? We must ask, “What is the purpose of res ipsa loquitur?”
                            Res Ipsa is a matter of equity and justice. In situations where P cannot
                               establish circumstantial or direct evidence because D controls it, they can
                               still get help. Courts are reluctant to keep a P with a potentially meritorious
                               claim from having his day in court…
                                      Primary complaint: increases the number of frivolous lawsuits in
                                      Another example: Airlines
        -   HYPO: P accepts a ride on D‟s motorcycle. Motorcycle‟s tire blows out and P is injured. P
            sues under Res Ipsa. D moves for summary judgment. Does D win?
                 o YES. Tires blowing out usually do not have to do with negligence. It could happen
                      with negligence, but usually it does not. (McDougald v. Perry “the fact that a tire
                      blows out…in the absence of anything more…is not enough to conclude
        -   HYPO: Bikes R Us sells and rents bikes. It rents a bicycle to a customer. Customer is injured
            when the quick release tire falls off. Bikes R Us provides no evidence as to why this occurs.
            Jury finds for D. Customer asks for a new trial. Can he get it?
                 o NO.

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                 o     Why look at the period of time in which Bikes R Us had the bike? That‟s the time at
                       which, if there was any negligence, it would have taken place?

     - Causation in Fact
          o Empirical
          o Whether or not negligence ACTUALLY caused damage…
          o How do you prove “Cause in Fact” in court?
          o We only care whether you can establish, with a preponderance of the evidence,

        -    Proximate Cause
                 o Normative

      - Railroad was “negligent per se” because it broke its own regulation.
               o Note: this is not “negligence per se” because it is not a real statute.
               o However, the court takes it as the rule for negligence anyway…
      - P has established DUTY and BREACH.
      - Trial court finds for P. Appellate court affirms. Supreme court reverses.
      - Cause in Fact = D’s Negligence is a substantial factor in producing the Damages
               o What is a substantial factor?
                         “BUT FOR” Causation: If no Negligence, there would be no Damage 
                             “sine qua non” (i.e. “But for” – no damage BUT FOR negligence)
      - HYPO: University is being sued by a student who was assaulted in the dorm. P is suing the
          college for not hiring enough security officers to protect him. You are arguing that it should
          be dismissed. What do you argue?
               o You want to argue that there is no “Causation in Fact”
                         Even with no negligence, the damage still would have occurred. Therefore
                             the negligence was not a substantial factor because there is no but for
                             relationship. Therefore, there is no “Cause in Fact.”

     - A guy Bacon, hunting on a ranch, trips and accidentally shoots Gentry‟s wife in the head,
         killing her. Gentry is suing the Ranch for keeping the step in a way that would allow an
         accident like this to happen. Bacon can‟t remember if he tripped on the stair or if he was just
              o Causation in Fact
                        Proving POSSIBILITY is not enough. You must have evidence that
                             PROVES causation in fact

     - Guest in defendant‟s hotel received a cut in the forehead from a piece of glass that fell from a
        broken window. P is suing for negligently maintaining the window and wants damages for
        both the cut and for the cancer that eventually developed in the exact location on his forehead.
            o Trial court found for P. Supreme Court of Mississippi reverses on damages saying
                 that P could recover for the cut but not for the cancer.
            o Supreme Court argues that P was unable to prove that the cut led to the cancer…
                       If no negligence, would the cancer occur? Supreme Court does not know…
                                Expert testimony says that it is possible but strange that you would
                                    develop cancer from this.
                                Therefore, the BUT FOR test for causation in fact fails because
                                    they can not be sure that the cancer would not have occurred BUT
                                    FOR the window…
                       In this case, you want to establish “BUT FOR” logic?

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                             In this case, there is not enough evidence for BUT FOR analysis…
                             You need “preponderance of evidence” (e.g. more likely than not…50.1%)

BUT FOR CAUSATION = No negligence  No injury

     - Fat women waiting for the train was told to “hurry up” to get down the steps. Women
        misstepped and fell down the slope.
     - Negligence: hurrying someone down a non-lighted stairway.
     - She is suing and received $2000 in damages. Appellate court affirms.
     - Defendant contends that even if the company was negligent in not lighting the stairway that
        was not necessarily the cause of the lady‟s fall. (Defendant claims NO BUT FOR
     - If the defendant‟s negligent actions increase the likelihood of the occurrence, then this does
        not break the chain of causation.
     - How is this reconciled with the Perkins case in which the fact that the train was speeding was
        found not to be a cause of the accident.
             o In the Perkins case, the D proved that if the train had been going the proper speed the
                 accident would still have occurred. (if No Negligence, injury would still occur)
             o In the Reynolds case, the D could not prove that she would have fallen down the
                 steps anyway. (if No Negligence, injury might occur)
             o It is NOT ENOUGH to show that something MIGHT OCCUR
     - Appellate court rejects this argument

     - P is being treated for obesity. As a result of surgery, she had tears in her esophagus from it
          being performed improperly. She is suing for not using the appropriate standard of care in the
          surgery. Jury found for Plaintiff. Defendant is complaining that the court excluded their
          expert testimony. Trial court excluded the experts because they would just talk about
          possibilities not probabilities.
     - Rule: Plaintiff bears the burden of proof that plaintiff‟s injury was caused by D‟s negligence.

Hypothetical: Cop is supposed to do background checks before giving permits for guns. If he does not do it
for someone who does not have a record and that person shot someone, can you prove but-for causation?
        - No. If he had not been negligent, there would still be injury.
        - Rule: If NO Negligence, then NO injury…

Hypo: P driving on the highway, gets a flat tire, and she stops. Nancy is changing music and driving
negligently and has to swerve to avoid P. Harry, coming the other way, doesn‟t see Nancy swerve until too
late. He and Nancy hit P. Who can P sue?
         - P can prove that Nancy and Harry both breached their duty
         - Harry might get off the hook

       - P is a passenger in a car suffering an injury when the car collides with a truck parked without
          lights in the middle of the road. Car driver was driving negligently. P won the appeal.
       - Negligence: leaving your truck in the middle of the road with no lights on.
       - BUT-FOR ANALYSIS: If No negligence  No injury. The driver was negligent as
          well…Doesn‟t that matter? No, the two pieces of negligence DO NOT CANCEL OUT.
       - “where separate acts of negligence combine to produce a single injury, each tortfeasor is
          responsible for the entire result, even though his act alone might not have caused it”

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         - Just apply the normal negligence rules to understand CONCURRENT CAUSES
Hypo: A doctor performs a negligent vasectomy. They have a son. Son gets to be 21, drives his car into
the plaintiff. P sues the doctor.
         - If doctor had not been negligent, we would not have injury. Therefore, it appears we have
               BUT-FOR causation.
         - Why is this not cause-in-fact?
                   o You must show it is a SUBSTANTIAL FACTOR.
                   o Is BUT-FOR causation sufficient for there to be cause-in-fact?
                             NO. You need but-for causation AND it must be a substantial factor.

     - Cause in fact = defendant‟s negligence is a substantial factor in producing plaintiffs injury
     - What is a substantial factor?
            o But For causation – Ps injury would not have occurred in the absence of D‟s
            o Perkins: If P‟s injury would have occurred even if D had not been negligent then D‟s
                 negligence is not a substantial factor
            o But-for causation is necessary for defendant‟s negligence to be a substantial factor in
                 producing plaintiff‟s injury
            o Is “but for” causation sufficient to establish that defendant‟s negligence is a
                 substantial factor in producing P‟s injury
     - Gentry: Proving but-for causation. Proof that it is possible that Ps injury would not have
        occurred is NOT enough.
     - Kramer: proof that it PROBABLY would not have occurred in the absence of

     - Heskovits had cancer. His doctors misdiagnosed it. There was testimony that his chance of
        survival was probably less than 50%. However, his chances were reduced some 14%. He
     - Negligence: Failure to diagnose the cancer.
     - D‟s argued that they were not liable because he probably would have died anyway. They
        can‟t prove BUT-FOR causation. (e.g. even if they weren‟t negligent, he PROBABLY would
        have died anyway.)
             o D‟s say their negligence CANNOT be shown to be the probable cause…
     - RULE: “once P demonstrates that D‟s negligence increased the risk of harm, there is a basis
        for the jury to make a determination as to whether the increased risk was in turn a substantial
     - RULE2: “the D‟s act or omission failed in a duty to protect against a harm from another
        source” (this limits quite a bit where you can sue for negligence under this principle)
     - Analysis: You do not have to prove but-for causation when the negligence fails to protect
        P from harm from some other source AND it increases the likelihood of that harm
        occurring and meets the “substantial factor” test!! (this was the first case that did not
        require BUT-FOR causation)
     - Alternatively, you can think of this with BUT-FOR causation in which the injury is the
        reduced chance of survival (not death)
             o However, the problem is that this creates a FLOODGATES of LITIGATION
                        If he survives, he could sue the doctor…
                        Therefore, court does not want to recognize this as a compensable injury.
     - EXCEPTION TO CAUSE IN FACT (“BUT FOR”) TEST: If P fails to protect D from
        harm from another source AND it increases the likelihood of that harm.

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     - FACTS: P is claiming that his property was destroyed by fire. Two fires came together.
        Defendant is that a railroad (D) created one of the fires as a result of sparks from their engine.
     - PH: P won at trial. Appellate court affirms.
     - BUT FOR rule: If railroad had not been negligent, would the property still been destroyed by
        fire? YES. Therefore, there is NOT but-for causation.
             o Note: Ordinary rule of law would say there is no cause of action. However, plaintiff
                        When two causes combine to cause damage, and either one alone would
                            have caused the damage, then both are liable.
             o HYPO: Lucky checks into hospital for bypass surgery. Because of a negligent
                  misreading of the catscan, the surgery would almost certainly kill the patient.
                  Instead, since they negligently fed him an hour before surgery, he puked and
                  asphyxiated. Who can the estate sue?
                        ONLY the HOSPITAL for negligently feeding him. NOT the doctor…
                                  If surgeon was not negligent, would the patient be dead? YES.
                                     (No But-for causation)
                                  If the hospital had not negligently fed him, would the patient be
                                     dead? YES. (No but-for causation)
                        These causes DO NOT COMBINE INTO ONE and act as ONE FORCE to
                            cause damage. Therefore, this is NOT like ANDERSON. This is like the
                            HILL case, in which the car hits a truck negligently parked in the middle of
                            the road. If you have two causes, each of them would be liable. It is
                            DIFFERENT than HILL in that they are SEQUENTIAL.
SUMMERS v. TICE (Problems in Determining Which Party Caused the Harm)
     - D‟s were hunting. They shot at the same time. One of them hit P in the eye. There is no way
        to tell which bullet hit the P.
     - P argued that the D‟s were acting in concert.
             o Court rejects this and says they were not acting in concert.
     - P can‟t make cause in fact. Even though there would be BUT-FOR causation, P can‟t
        establish it.
     - Court does not want to let two people both known to be negligent off the hook. Therefore,
        what is the rule?
             o When D‟s are both negligent and P cannot prove which one‟s negligence CAUSED
                  the damages, the PROOF OF BURDEN SHIFTS to the defendant to offer evidence
                  about which one caused the injury.
             o This is similar to Ybarra in which someone undergoing medical treatment for
                  appendicitis and woke up not able to move his arm. Ybarra shifts the burden of
                  proof for people who are not NECESSARILY NEGLIGENT. It is difficult to prove
                  that you have not been negligent.
             o Courts are willing to shift burden to defendants when they have clearly been
             o Note: Courts RARELY shift the burden to defendants if the D only has a 33%
                  chance of being liable…

SINDELL v. ABBOTT LABORATORIES (Problems in Determining Which Party Caused the
      - FACTS: Can a P injured as a result of a drug administered to her mother during pregnancy,
          who knows the type of drug involved but cannot identify the manufacturer, hold liable a
          maker of a drug produced from the same formula?
      - Courts rarely shift the burden
      - Summers v. Tice does not work because each defendant has less than 50% chance of being

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         -   Enterprise Liability – if there is an industry that settles on STANDARDS of care, you might
             be able to apply this. Why isn‟t this valid? There are only six D‟s and 197 total
         -   NEW RULE: each company has to pay the percentage of their market share of the drug at the
             time of the sale.
         -   FINAL EXCEPTION

      - Concurrent Causes
      - Summers v. Tice (still need BUT-FOR; it just shifts the burden of proof)
      - Sindell v. Abbott Laboratories (MARKETSHARE LIABILITY – somewhat like an expansion
         of Summers v. Tice – basically says that all companies that had a hand in creating an
         unreasonable risk are forced to sort out the causation issues. Burden of proof is on defendants
         to prove they could not have sold the drug. If they can‟t

     - When you have a breach of duty that was a cause-in-fact, we are not quite done. We need to
        see whether or not it was a PROXIMATE CAUSE before dishing out liability…
     - There are some situations in which the action is a CAUSE-IN-FACT and the person still does
        not have to pay. This is the purpose of PROXIMATE CAUSE. Prior to analyzing proximate
        cause, we have a person who was Negligent and whose Negligent was a Cause-in-fact of the
     - Proximate cause is a LIMITATION on liability.

     - Gives a definition of proximate cause.
     - Given cause-in-fact, courts will only find D‟s liable for situations where there is
     - Proximate cause is a LIMITATION on liability.

      - FACTS: D‟s railroad engine set fire to a woodshed. P‟s house, 130 ft from shed, caught fire.
          Next a number of other houses burn down.
      - NEGLIGENCE: railroad breached a duty of care to prevent the sparks from the engine from
      - CAUSE-IN-FACT? – YES. If fire did not happen there would not be damages.
      - PH: Trial judge found for D. P is appealing.
      - Why did P win if there was cause-in-fact? The fire was not a PROXIMATE CAUSE of the
      - “this action cannot be sustained for the reason that the damages incurred are not the
          immediate but the remote result of negligence of the defendants.”
      - RATIONAL: a man may insure his own house. If a railroad had to pay for things like this,
          the railroad would not be able to stay in business…
      - COURT SAYS: NO LIABILITY because you want to have enough liability to discourage
          railroads from acting negligently but not so much that no railroad could operate safely without
          going out of business (and making it unnecessary for people to protect themselves…)
      - This has to do with REASONABLE FORESEEABILITY
               o Reasonable Foreseeability is courts attempts at finding the right balance…

Characterization of what type of harm there is

      - Facts: D suffered a seizure while driving and drove into a work site strike P with such force
         that he was thrown into the air and landed in 400 degree boiling hot liquid. Driver was
         negligent because he did not take his medicine.
      - P is arguing

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        -   Intervening cause is negligent…
        -   There WAS proximate cause in this case and we want to figure out why…
                 o Court says that drivers
                 o Once the
        -   Bartolone Rule
                 o Foreseeable type of harm + Unforeseeable extent or manner  Proximate cause
        -   WM1 Rules
                 o Unforeseeable type of harm  NO Proximate cause
        -   Palsgraf
                 o Unforeseeable Plaintiff  NO proximate cause
        -   Derdiarian
        -   Unforeseeable Intervening cause  superceding cause  No Proximate Cause
        -   What does “intervening” mean?
                 o The cause-in-fact must occur between the act of negligence and the actual damage or
        -   Negligence - Company failed to put up barrier
        -   Intervening cause – driver failing to take medicine
        -   Was there cause-in-fact? There is no but-for causation
                 o The damages would not have occurred but for the driver failing to take his medicine.
        -   Why does the court think that the negligence is foreseeable?
                 o The harm was foreseeable but the manner may have been unforeseeable…
        -   You can analyze this case in two ways
                 o 1. Find out if there is an intervening harm.
                           1. See if there is a negligent cause in fact that operates between the original
                              negligence and the accident
                           2. If there is foreseeable intervening cause then there is proximate cause.
                 o 2. Bartolone
                           1. What type of harm is putting a barrier up meant to protect?
                           2. What type of harm was
        -   Rule: When you have an intervening cause, it is foreseeable when the type of harm from the
            intervening negligence is the same type of harm that is foreseeable to the original D.

     - FACTS: P was injured in an explosion. R.R allowed a car to derail that knocked open a can
         of gasoline. A third party lit a match and the gasoline caught fire.
     - INTERVENING CAUSE: third party lighting a match
     - NEGLIGENCE: R.R allowing a car to derail knocking open a canister of gasoline
     - Directed verdict for D and sent back to trial to determine whether the intervening party was
     - Intervening cause may be intentional…
     - Court says that if the act was malicious then it would be an UNFORESEEABLE cause. Why
         is this different than if
              o If the intervening cause is a criminal one, it makes more sense to hold the
                    intervening party liable.
     - Two negligent acts
     - If it is a criminal act, then there will NOT be proximate cause…
     - Rule from this seems to be that Malicious/Intentional acts are Unforeseeable
     - This is strange though because our standard for Foreseeability is something that a reasonable
         person would consider to be a “real risk”
     - Asdf
     - Why must the intervening act be NEGLIGENT

     - FACTS: P was in a car accident. He started having really bad seizures (38 in 7 months). P
          then committed suicide.
     - Negligence: negligent driving

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        -    Intervening cause: man committing suicide
        -    Injury: the death
        -    Intervening cause is intentional
        -    NOTE: Plaintiff’s act CAN BE the intervening act!!
        -    Suicide is unforeseeable so we should have an unforeseeable intervening cause leading to NO
             PROXIMATE CAUSE.
        -    However, this is not the case. The Supreme Court said this is more similar to BARTALONE,
             in which there is a foreseeable type of harm even though the extent of the harm.
                  o There must be a direct causal connection from the original injury that causes the
                  o If this were a volitional act rather
        -    When is suicide unforeseeable? Only when you have this type of impulse from an injury.

     - FACTS: D is the railroad company. P complains that the conductor of the railroad
       encouraged him to go out onto the bridge. Conductor runs the train full of people with the
       door open. The vestibule falls out of a train. Train stops. Cousin jumps out of train looking
       for his cousin and slips off the bridge and falls.
     - Negligence: Train should not have run w/ a train full of people with the door open.
     - Intervening Cause: act of negligence on the part of the conductor
     - Intervening Cause 2:
     - Injury: he‟s trying to recover for his fall
     - Question: If the conductor had never been there, and Wagner had done the same thing, could
       he have recovered?
     - Is there any other
     - If you expose someone to danger, is it foreseeable that someone will try to rescue you? YES.
     - If you expose someone to danger you will be liable for the damages to anyone who tries to
       help that person out…


HYPO: negligent driver hits a pedestrian. While in the street, someone driving carefully runs over him
because he can‟t see him. Pedestrian sues both drivers. Who can he recover from and for what injuries?
        - Second
HYPO: negligent driver hits a pedestrian. In a van


This is where we are at:
         - Intervening cause
         - Intervening cause test
         - Some guidelines for making the judgment
                 o Human act
                 o Negligent
                          Same type of harm as the original act of negligence: YES
                          Different: NO
                 o Malicious
                          Unforeseeable
                 o Suicide
                          Typically unforeseeable
                 o “Danger invites rescue”
                          Rescue is foreseeable
                 o Danger invites escape
                          Escaping a dangerous situation is foreseeable.

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Foreseeable Intervening Cause = PC
(If the cause was foreseeable you should have taken the measures needed to take precautions)

Unforeseeable Intervening Cause = superceding cause = NO PC.
(If you fail to protect against something that is unforeseeable, are you liable)
(Econ argument: it would cost a lot to protect against unforeseeable causes)

3 Primary Rules of NEGLIGENCE
Bartolone + WM2  Foreseeable type + Unforeseeable extent or manner  PC
WM1  Unforeseeable type  NO PC.
Palsgraf Unforseeable Plaintiff  NO PC.

Therefore, why bother learning the rule of intervening causes? The cases we read tell you something about
the normative aspects of the case.

Intervening Cause Rule of Negligence
Derdarian  Negligence of intervening cause poses the threat of the same type of harm as the original
negligence.  Foreseeable

Intervening Causes: Foreseeability vs. Unforeseeability
Suicide is an unforeseeable intervening cause unless it is a momentary lapse due to psychosis
Rescue is foreseeable (unless extremely unreasonable)
Escape is foreseeable
Criminal acts are unforeseeable
Malpractice is a foreseeable intervening cause

HYPO: landlord leaves door unlocked. Intruder goes in and hurts renter.
       - Intervening Cause: break in (criminal act)
       - Negligence: landlord leaving the door unlocked
       - You have an intervening, intentional, criminal act. Watson tells us that therefore the
           landlord‟s negligence was NOT the proximate cause.
       - They are not in situations in which the types of

If you negligently fail to protect against intentional criminal acts of a third party, that is the exception to the
Watson rule.

Polemis – not enough for there to be a direct result it also has to be foreseeable.

           depend on where the apartment is located?
           - Neligence
           - Intentional
                   o Criminal
                   o Suicide
                   o Rescue
                   o Escape
                   o Malpractice

           -   Negligence
                   o 1. Duty
                   o 2. Breach
                   o 3. Causation
                   o 4. Damage (

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Strict Liability =
    2. Causation
    3. Damage

Animals –
   1. Trespassing Animals – if someone is the owner of animals likely to roam and do damage, the
        owner is strictly liable for the damages they do. You do not have to show that the owner breached
        his duty to use due care to keep the animals in. (examples: farm animals)
             a. Household animals, the owner is NOT strictly liable
   2. Dangerous Animals – the owner of a non-domesticated animal is liable for strict liable if this
        animal injures someone (e.g. leopard, tiger)
             a. Household animals do not apply, unless you have knowledge that they have vicious

Rylands v. Fletcher
        - Facts: D‟s own a mill. P owns a mine shaft. To supply it with water they built a reservoir.
             While excavating, they came across some underground shafts. Water broke through the
             reservoir and entered the mine shaft.
                  o In this case, the defendant exercised reasonable care.
                  o If P tries to sue D for negligence he will not win because he did not breach a duty.
        - Exchequer decides: if you bring something liable to do mischief and it escapes…
        - House of Lords: if you use your land in non-natural way, and someone else is
             injured…(NON-NATURAL USE).

Bridges v. The Kentucky Stone Co. Inc.
         - Webb steals dynamite from “The Kentucky Stone Co.”, takes it 100 miles away and sets it off
             3 wks later injuring plaintiff. Case is thrown out because there was an intervening cause. It is
             a superceding intervening cause because it was an intentional, criminal act
                 o Court of Appeals reverses summary judgment.
                 o Supreme Court found the company was not liable.
         - This court is telling us that “ULTRAHAZARDOUS ACTIVITY”.
                 o This case says strict liability is when you have an “ultrahazardous activity”. You
                      also have to apply the rules of negligence to make sure there was a proximate cause.
         - “Abnormally dangerous” is now used rather than “ultrahazardous” because the old locution
             implies that it has to do with the location. However, it is more than this.

Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.
         - D is a manufacturer of a dangerous chemical. At its manufacturing plant it loaded 20,000
            gallons onto a railroad car and sent it through Chicago. P is the switching line. There was a
            $981,022.75 clean up cost mandated by Dept. of Environ. Protection. P wants D to pay for it
            and sues them for negligence and strict liability.
                 o Should D be judged on strict liability standard?
                           Factors in determining if an activity is abnormally dangerous
                                    1. High degree of risk of harm
                                    2. Likelihood that the harm will be great
                                    3. Inability to eliminate risk by the exercise of reasonable care
                                        (court says to look here first!!)
                                    4. Extent to which the activity is not a matter of common usage
                                    5. Inappropriateness of the activity to the place it is carried on
                                    6. Extent to which its value to the community is outweighed by its
                                        dangerous attributes
                 o Strict liability encourages people to move dangerous activities to the most
                     appropriate place. (e.g. hot air balloon in NY). Alternatively, you could encourage

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                     people to do the activity less frequently. It would provide incentives to find
                     alternatives that are safer for doing these things.
          -   How does the court apply it in this case?
                 o Court finds that the case has to recover for negligence not for strict liability…Why?
                           Because the court said

Negligence encourages people to be more careful when doing an activity.
Strict liability encourages people to do less of an activity or move the activity to a more appropriate place.
Strict liability basically is negligence but instead of Duty/Breach you look at Abnormally Dangerous

Corrective justice – you only pay damages if someone has committed a wrong.
Strict liability is tough because it seems as if you have to pay even if you have not committed a wrong.
However, perhaps from a corrective justice perspective you could say “if you engage in an activity from
which you profit that knowingly cannot be eliminated due to the use of reasonable care and the injured
party is injured through no fault of his own”
          - Corrective Justice – you don‟t mean to hurt anybody. However, you are exposing people to
                high risk and corrective justice can be justified.

Is the activity abnormally dangerous?

    1. duty
    2. Breach
    3. Causation
    4. Damage

First question: Is the activity abnormally dangerous? If not, do a negligence analysis…
Who answers the first question? The judge.
The judge tells the litigants which tort (SL or Negligence) is relevant.
How does the judge determine if the activity is abnormally dangerous? He looks at the six criteria.
         - high degree of risk of harm
         - likelihood that the harm will be great
         - inability to eliminate risk by the exercise of reasonable care (most important)
         - extent to which the activity is not a matter of common usage
         - inappropriateness of the activity to the place it is carried on
         - extent to which its value to the community is outweighed by its dangerous attributes
SL =
     1. Abnormally dangerous activity
     2. Causation
     3. Damage

Strict liability tries to encourage people to perform dangerous activities in locations least likely to cause
damage. Creating strict liability in situations where you cannot eliminate the risk by the exercise of
reasonable care, it makes sense to create incentives for them to find safer alternatives.

Strict liability discourages the activity.

If you CAN eliminate the risk by the exercise of reasonable care, you DO NOT NEED strict liability, you
only need negligence…

          -   the harm is knowingly exposing someone to high risk from which you are planning to profit
              and the activity cannot be protected against through the use of reasonable care.
                   o If all of these features exist, there is reason to say that if someone is injured, you
                       have a duty to compensate.

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                                This is not necessarily because of a moral wrong but there is still a wrong.
                                 Therefore, you can justify this from a corrective justice perspective.

Why is the owner of a wild animal be subject to strict liability rather than negligence if the animal escapes
and eats someone‟s dog.
         - even in using reasonable care, you cannot prevent the risk of injury. Additionally, you are
             planning on profiting it. Moreover, it may be an inappropriate place to keep a wild animal.
             There is very little value to the community. The probability of there being harm if it escapes
             is very high.

“Abnormally dangerous” can be a placeholder for the six criteria.

What about farm animals like horses and cattle?
        - Question 1: can you prevent barnyard animals from causing damage by using reasonable
            care…probably not. This could be an argument for strict liability.
        - Question 2: where are these taking place? On farms, out in the country. Therefore, there is
            less risk of damage than if this farm were in the middle of a city. This may help explain why
            we are looking at strict liability. This encourages people not to have farms in the middle of a
What about keeping a dog known to be vicious on your property?
        - Question 1: are you exposing others to a high degree of risk for your own pleasure in a
            situation in which you cannot prevent harm by using reasonable care?
        - This leads to strict liability.
What about cats and dogs?
        - this is a question of common usage. This is similar to the automobile example. This is a
            strike against going into the strict liability realm.

Voluntarily, knowingly exposing neighbors to high risk when you benefit…this is a good candidate for
strict liability.

Limitations on Strict Liability

Foster v. Preston Mill Co.
Facts: blasting operation caused a mother mink to kill her kittens. This occurred about 3 miles from the
blasting. Trial court found for P. Appellate reverses saying it was not a “proximate cause.
Issue: is the risk of an unusual vibration that causes a wild animal to kill its young, one of the things that
makes blasting ultrahazardous?
Answer: no. the exceedingly nervous disposition of the mink caused this.

RULE: If you have an abnormally dangerous activity in which the harm results from the kind of risk posed
by the abnormally dangerous activity, then you have strict liability. Otherwise you go to negligence.

Is the injury being sued for the type of risk that makes blasting abnormally dangerous?
Limitation: Does the harm arise from the risk that makes the activity abnormally dangerous?

NOTE: from a corrective justice perspective, the harm arose from something that was not the . What about
an economic perspective? The Burden may be so high (because you have to guard against everything) that
the cost does not justify it. Additionally, if the risk that produces the injury is not the type of risk that
makes something abnormally dangerous, then it is probably the type of risk that can be protected against by
using reasonable care…(e.g. sound proof cages for minks)

HYPO: if porting flammable liquid is abnormally dangerous and the liquid breaks free, if someone drowns
in the liquid are you in strict liability? NO. This is not the type of harm that makes the activity abnormally

Golden v. Amory

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Facts: D‟s owned a hydroelectric plant with a dyke. During a hurricane, the hurricane caused a river to
overflow and damage P‟s real estate. P‟s are suing under strict liability using Rylands v. Fletcher.
PH: trial court finds for P. Appellate court affirms.
Holding: the rule from Rylands does not apply when the injury occurs from an “act of god.”

What is the chance of proving negligence if the damage is from an “act of god”? Very small chance. It
will be difficult to prove there was a breach of duty. You don‟t take precautions against massive hurricanes
in Massachusetts.

NOTE: if an injury results from an act of god, you cannot reasonably say that D has harmed P. Therefore,
there is no liability from a corrective justice approach. You are not knowingly exposing someone to a high
risk and profiting from it. However, if the harm occurs for reasons that do not make it abnormally
dangerous, they should not be liable. Also, from an economic perspective the burden of protecting against
“acts of god” would be incredibly costly.

NOTE: despite the fact that the rule is clear, it is difficult to apply because “Acts of God” are difficult to
prove. There is a large grey area.

Sandy v. Bushey
Facts: P put his mare and colt out in the pasture of a neighbor. Other horses use the pasture including D‟s
3-yr old colt. P‟s mare was kicked by D‟s horse. D‟s horse had “vicious propensities”.
D says that P was guilty of contributory negligence and, therefore, cannot recover.
PH: verdict for P. Appellate court affirms that D is liable.
Rule: if injured party voluntarily put himself in the situation knowing the probable consequences, he cannot
recover. In cases of strict liability, D cannot use “contributory negligence” as a defense.

DO NOT CONSIDER: if you are dealing w/ strict liability (e.g. an animal w/ known propensity to be
vicious), can D defend against strict liability by saying P was careless? We are not concerned with this yet
because we have not talked about defenses. Note: in Virginia, it is a defense. In most states, it may reduce
damages but it is not a complete defense.

DO CONSIDER THIS: you can get out of strict liability if P intentionally and recklessly put himself in
danger of the activity.

2 questions
Bad news, the questions will be very rich with issues. You can expect the questions to describe a situation
that does not occur every day.

Each question will have a percentage of the grade and an amount of time to put on it.
There is time pressure that he wants to relieve.
Take your time. Think through things and analyze and organize ahead of time.

1. spend a good deal of time planning your answers.
2. answer the questions he asks and ONLY those questions.

Pay attention to who the P is and who the D is. Establish whether P can establish liability against D.
If there are multiple D‟s. You may cite cases by name but don‟t have to.

The exam is about:
    1. understanding of tort law and ability to use it to solve problems
    2. ability to lucidly communicate that knowledge in written form

Philip Larson                                                                                           Page 89
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Philip Larson          Page 90

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