ELLIS TORTS

Owens v. Illinois Inc. v. Zenobia

Facts and Procedure: Zenobia (∏) sued Owens-Illinois, Inc (∆) and others for damages alleged to have been
caused by asbestos manufactured by ∆. Trial court instructed to award punitive damages need implied malice
and preponderance of evidence that he ∆’s were grossly negligent. Jury awarded punitive damages. Supreme
Court: Vacated and remanded.
Holding: (1) Standard: In a nonintentional tort action, need actual malice i.e. evil motive, intent to injure, ill
will, or fraud, (2) Burden of proof: clear and convincing evidence the basis for punitive damages.
Reasoning: “Implied malice” leads to inconsistent results, punitive damages are being too broadly applied. If
elevate standard to “evil motive” – actual malice – we still punish those that are negligent. Problem: leaves out
unintentional torts all together, less likely to deter gross negligence but not deterring those that would act
negligently. Inconsistent because saying in non-intentional tort cases you have to find intent. Message to
lower courts to tighten up.

Actual malice – the deliberate intent to commit an injury, as evidenced by external circumstances (evil motive)
Implied malice – Malice inferred from a person’s conduct, wanton disposition, grossly irresponsible to rights
of others, gross negligence

Dissent: Can’t agree that punitive damages should be awarded only in cases of “actual malice” where there is
a subjective intent element. In cases where there is no actual malice, the totality of circumstances may reveal
conduct on the part of the ∆ that is just as heinous. Too far by creating higher threshold for punitive damages
AND changing burden of proof.
Procedural note: For punitive damages need “clear and convincing,” but for compensation just need
“preponderance of the evidence.” When deciding on both many jurisdictions will bifurcate the trial. Debate
here is about intent – difference between a nonintentional tort (gross negligence) and intentional (actual
3 part test: To determine if punitive damages are grossly excessive and violate due process (State Farm); (1)
look at issue of reprehensibility of ∆ conduct (death or serious injury?); (2) Ratio between punitive and
compensatory damages; and (3) other sanctions available for state farms conduct.

Vosberg v. Putney

Rule: If you have the intent to do an unlawful act, then the intent is also unlawful. I.e. desire to commit
an act. If the intended act is unlawful, then the intention to commit the act must also be unlawful, then the
∆ is liable for the consequences. This was found even though the jury in a special verdict held that the ∆
did not intend the harm. “Thin Skull rule” – wrongdoer is responsible for the wrongful act and all
resultant harm even if the consequences are unusual and unforeseeable. If not, then the injured person
could be hurt under this rule. The code of conduct in a school room (making kick unlawful, ∆ had no
license to kick) versus a playground (making the kick lawful). If on a playground engaged in the “usual
boyish sports” then it’s a reasonable expectation that someone is going to get kicked.

Garrett v. Dailey

Facts: 5 ½ year old pull chair from arthritic woman. Rule: Knowledge with substantial certainty.
Knowledge at the time that the act was committed that contact or apprehension would result. Intent can
be inferred from knowledge. Intention is the either when the act is done for the purpose of causing the
contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is
substantially certain to be produced. It is not enough that the act itself is intentionally done and this, even
though the actor realizes or should realize that it contains a very grave risk of bringing about the contact
or apprehension. Such realization may make the actor’s conduct negligent or even reckless but unless he
realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that
intention which is necessary to make him liable under the rule stated in this section.

National anti-smoking advocate had radio talk show host blow smoke deliberately in his face. Remanded
for trial court to seriously consider the battery claim as “offensive contact.” Ohio common law holds that
when smoker intentionally blew cigar smoke in guests face they committed a battery. Tobacco smoke as
a “particulate matter” has the physical properties capable of making contact. Ohio Adm. Code 3745-17.
Purpose, motive, desire to harm/offend/violate personal dignity/insult/embarrass/humiliate/create fear or
apprehension (Leichtman, national anit-smoking advocate). Stronger than knowledge with substantial
certainty. Use K w/sub cert. to determine purpose/motive.

“Doctrine of constructive intent” – knowledge based intent?

Offensive contact -- “For the purpose of causing physical discomfort, humiliation, and distress.”
Leichtman v. WLW Jacor Communications, Inc.

The word “purpose” says that the ∆ had desire/motive/intent to blow the smoke in his face. The word
“purpose” also has significance in “offensive” contact complaint because “even a dog knows the
difference between getting tripped over and being kicked.” If antismoking advocate then he would be
offended, but if done w/purpose you’d be likely to be a lot more offended. The ∆’s attitude and purpose
enhances the injury to the ∏ or one might so argue.


Contact doesn’t have to be with the actual body – can be with extension of the body.

This is what distinguished the act in Fisher as being a battery as opposed to an assault (merely a threat).
Need contact in battery. What bothered Fisher was what was said when the plate was grabbed. It’s
convenient for Fisher’s purposes that there was contact with the plate, because the injury allows the court
to give him liability.

Hypothetical in class: Grab plate + insult = bad; Grab plate before touches + insult = bad; Grab plate +
“we don’t serve patrons on dirty plates” = good

Read v. Coker

Rule: Must have present ability to carry out threat. (Read v. Coker, paper-stainer lessee case). This is
distinguished in the case between the person threatening in “assize time” [i.e. in the future] versus in the
present, rolling up sleeves, etc. Might not be as important; see (Beach v. Hancock, gun and rods case).

Facts: ∏ was a paper-stainer, rented from ∆. Couldn’t pay, ∆ take goods. ∆ sold back goods to ∏ at
higher price. ∏ can’t afford rent, ∆ pay rent. Form partnership for their mutual benefit. ∆ becomes
dissatisfied and dismisses ∏. ∏ refuse to leave, ∆ gather workmen around ∏, tuck up sleeves, ∏ fear
men would strike him. ∏ sue for assault.

Held: Lower court found for ∏. Appeals Court remanded with instructions that shouldn’t be what the ∏
thought the ∆’s intentions were, should be that there was an attempt + present ability. Evidence does not
constitute assault; need more than just threat of violence.
Beach v. Hancock

Rule: Perception of the present ability to carry out threat. Discourage assault as a form of intimidation or
coercion. Did ∏ reasonably believe ∆ had present ability to carry out the threat? Beach v. Hancock (gun
and rods case).

Facts: ∏ and ∆ were engaged in a dispute. The ∆ went to his office, brought out a gun, and aimed it at ∏
in a threatening manner. The ∏ was 3-4 rods distant (Rod = 5.5 yards = 16.5 feet). ∆ snapped gun twice
at the ∏. The ∏ did not know if the gun was loaded or not. The gun was not loaded.

Held: ∆ is guilty of assault. Proper for jury to consider the result if these type of assaults was not

Reasoning: One of the goals of the law is that people feel secure against unlawful assaults. Must be
reasonable fear we complain of. If this wasn’t punished “the business of the world could not be carried
on w/comfort.” Need to punish or else people will assault each other.

State Rubbish Collectors v. Siliznoff

Rule: The ∆ conduct is used as a measure of ∏’s injuries. Use this as proxy since no physical injuries to
gage. Question for the jury to exercise own judgment based on personal experience what kind of
disagreeable emotions are likely to result from this kind of conduct. Inferring injury from the nature of
the conduct rather from the examination of the ∏. (State Rubbish Collectors v. Siliznoff).

Facts: S. takes garbage account from member of the association. Rule of association if you take account
from member then have to pay. S. intimidated into writing promissory notes. None were paid.
Threatened to pay them or harm would come to him in the future. ∆ attorney would be very upset –
argued against assault (no present threat, just future threat), jury didn’t get chance to pass judgment on
new tort.

Held: 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.
Regardless of whether is constituted a technical assault, it is still mental suffering. Found another cause
of action in history of cases in California – they have allowed the recovery of damages when mental
distress causes physical injury.

Note: Cases were intentional infliction of mental upset has typically been applied: debt collection
practices, constitutionally protected rights (cesarean sections, religious beliefs), mishandling of corpses
and related funeral services, conduct of hospitals and health care providers.
Whittaker v. Sanford

Needs to be a physical restraint, not necessarily physical force - Whittaker v. Sanford.

Facts: ∏ is member of religions sect, ∆ leader. ∏ say want to leave – gets on boat and goes from Syria to
Maine. When get to Maine, ∆ refuse to let her off ship. She eventually gets writ of habeas corpus.
Allowed on land during this time – went shopping, picnicked, went to get writ at court. Jury found for ∏,
Appellate affirmed. Damages were too much, does not have the usual humiliation that accompanies false
imprisonment cases. Instructions were apt: Must show restraint was physical, not merely moral influence
(sense of one being locked in a room). Need physical restraint, not necessarily physical force. If the ∏
was restrained so that she could not leave the yacht by the intentional refusal to furnish transportation as
agreed, she not having power to escape other, would be a physical restraint and unlawful imprisonment.
∏ got damages for loss of freedom, mobility, and movement.

Can not be falsely imprisoned in an entire country – Shen v. Leo A. Daly Co. (court held that ∏’s
confinement “was to a whole country” and since he was free to move about Taiwan and daily activities
not restricted in any way he was not falsely imprisoned. Taiwan is too great an area to be falsely

Rougeau v. Firestone Tire & Rubber Co.

If ∏ imply consent and does not revel that they feel confined, then not false imprisonment.

Facts: Lawnmowers stolen from ∆ during ∏’s shift as guard. Security manager investigate. With 2 other
employees of ∆ take ∏, go to ∏’s house, and search for missing property. Return to plant, ∏ asked to
wait in guardhouse, guards instructed to keep him there, ∏ allow to leave when feel ill ~ 30 minutes.

Held: Not falsely imprisoned.

Reasoning: ∏ need to be totally restrained. ∏ never revealed to anyone that he did not want to stay in
guardhouse, thus showing implied consent.

Faniel v. Chesapeake & Potomac Telephone Co.

Facts: Employee suspected of stealing from employer. Accompanied against her will security people to
her house.

Held: Trial court enters judgment for the ∆ employer notwithstanding a jury verdict for the ∏.

Reasoning: No evidence that the ∏, who agreed to accompany the security officers to her home, had
yielded to threats, either express or implied, or to physical force. ∏ did not object or ask to leave the car
when they took a detour, thus failing to negate her prior consent to take the trip.
Sindle v. New York City Transit Authority

Damages incurred during escape.

If a ∏ acted unreasonably in its escape, given ∏ has a duty of reasonable care for his own safety in
extricating himself from the unlawful detention, not relieved of this duty through false imprisonment. It
has been held that alighting from a moving vehicle, absent some compelling reason is negligence per se.
Thus, if the jury finds that the ∏ was falsely imprisoned but that he acted unreasonably for his own safety
by placing himself in a perilous position, recovery for the bodily injuries would be barred and ∆ would
not be liable.

Facts: Last day of school, ∏ student, ∆ bus driver. Students being loud led to vandalism. Driver made
several stops, investigated the damages, and told students they were going to police station. ∆ closed the
doors, pass scheduled stops. Several students jumped from the bus w/o injury. ∏ position to jump, bus
hits curb, ∏ falls to street, wheels roll over body causing serious injury.

Held: Appeals court reversed and remanded ∆ should be able to submit defense of justification, ∏ should
not act unreasonably to get out of false imprisonment.
Justification: Relevant considerations to the issue of justifications: (1) 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. (2) Also, a guardian entrusted with the care or supervision
of a child may use physical force reasonably necessary to maintain discipline or promote the welfare of
the child.

Coblyn v. Kennedy’s Inc.
Statute approach – False imprisonment could be defined in a statute in which case the way to analyze it would
be to go through the statute piece by piece.

Facts: ∏ was a 70 year old man went to ∆ store wearing neck scarf. Purchased a sport coat, put scarf in
pocket. When he was leaving the store pulled the scarf out of pocket. Goss an employee of ∆ stopped him,
demanded where he got the scarf, grabbed him by the arm, and said better go see the manager. Other people
look on. ∏ goes back in store; another employee notices him and says he’s cool. As result of emotional upset
the ∏ was hospitalized for a heart attack. ∏ claim falsely imprisoned. Held: Found for the ∏.
Reasoning: Goss not reasonably justified in believing ∏ committed larceny. Under statute need reasonable
grounds that ∏ commit larceny, reasonable length of time, and reasonable manner of restraint. Since don’t
have one then ∏ can recover. Part of the concern here is not giving shop keepers more power than police
officers to detail.

Statute: G.L. c. 231, §94B : In an action for false arrest or false imprisonment brought by any person by
reason of having been detained for questioning on or in the immediate vicinity of the premises of a merchant,
if such person was detained in a reasonable manner and for not more than a reasonable length of time by a
person authorized to make arrests or by the merchant or his agent or servant authorized for such purposes and
if there were reasonable grounds to believe that the person so detained was committing or attempting to
commit larceny of goods for sale on such premises, it shall be a defense to such action. If such goods had not
been purchased and were concealed on or amongst the belongings of a person so detained it shall be presumed
that there were reasonable grounds for such belief.” ~ When analyzing need to go through statute piece by
Reasoning behind statute: motivated by merchant’s organization, keeps with common law prudent and
reasonable man standard [just codify common law]. Concern: empowering merchants more than police
O’Brien v. Cunard Steamship Co.

The ∆ can only be guided by overt actions. Consider in connection with the circumstances: If ∏’s
behavior indicates consent on her part the ∆ is justified in the act, whatever unexpressed feelings of the ∏
may be. Test: (1) Subjective – what did this ∆ believe? (2) Objective – would a reasonable person in ∆
shoes believe ∏ consented?

Facts: ∏ immigrant on passage to Boston where there were strict quarantine regulations. Need
vaccination, ship offering it on board. On day of vaccinations ∏ got in line, held out arm, ∆ looked, no
mark, he poked her with needle; she didn’t say anything, took the ticket and used it at quarantine.

Held: Found for ∆ doctor, appeared as though ∏ immigrant consented.
Reasoning: She consented by overt acts. No scar to indicate she had previously been vaccinated. Public
health factor also operating here – quarantine if don’t have vaccine.

Barton v. Bee Line, Inc.

Sexual Consent – Consent if female knows the nature and quality of her act.

Facts: ∏ (15) suing ∆ (common carrier) for rape. ∆ claims she consented

Hold: Female under the age of 18 has no cause of action against a male with whom she willingly consorts
if she knows the nature and quality of her act.

Reasoning: References Penal Law – crime even if female consents, this is NOT a cause of action, court
uses as a basis for civil liability because legislature enacted for reason: virtue of females, save society les
and to save society from the ills of promiscuous intercourse. Differentiates between: (1) Society will
protect itself by punishing those who consort with females under age of consent; VERSUS (2) When a
female knows the nature of her act, and rewording her for her indiscretion.

Difference from O’Brien – in O’Brien the ∏ had option of consenting, here its strict liability and consent
does not matter. Burden of proof – if we look at consent as affirmative defense then burden falls on the
∆. Where the burden falls might determine the outcome of the case.

Rules of law: (1) A person who perpetrates an act of sexual intercourse with a female, not his wife, under
the age of eighteen years, under circumstances not amounting to rape in the first degree, is guilty of rape
in the second degree, and punishable with imprisonment for not more than ten years. (2) A female under
the age of 18 has no cause of action against a male with whom she willingly consorts, if she knows the
nature and quality of her act.

Bang v. Charles T. Miller Hospital

Facts: ∏ (patients) is suing ∆ (doctor) for battery, doctor cut ∏ spermatic cords, and ∏ claims only gave
consent to prostate operation.
Held: Remanded, question of ∏’s consent is for the jury.
Reasoning: Where a physician or surgeon can ascertain in advance of an operation alternative situations
and no immediate emergency exists, a patient should be informed of the alternative possibilities and given
a change to decide before the doctor proceeds with the operation.
Issue: How far does a doctor have to go with what they reveal?

Kennedy v. Parrott

Facts: ∏ (patients) was diagnosed by ∆ (doctor) is appendicitis, during operation discovered cysts,
punctured them, developed phlebitis in the leg. ∏ (Kennedy, patient) is suing ∆ (Dr. Parrott, surgeon) for
battery (unauthorized operation) to recover damages for personal injuries.

Held: When the ∏ voluntarily submitted herself to defendant for diagnosis and treatment of an ailment,
defendant's surgical procedure was, absent evidence to the contrary, presumably either expressly or by
implication authorized by plaintiff, as good surgery demanded.

Rule: When the patient is incapable of giving consent and no other authority is there to consent for him,
consent (in the absence of proof to the contrary) will be construed as general in nature and the surgeon
may extend the operation to remedy any abnormal or diseased condition in the area of the original
incision whenever he, in the exercise of his sound professional judgment, determines that correct surgical
procedure dictates and requires such an extension of the operation originally contemplated. Consent is
broad enough to cover what happened here.

Unlike Bang Doctor had no notion that a cyst would be on the ovary.

Solution – Contract law? Due to problems physicians’ have with medical malpractice suits, some suggest
that contracts should be drawn up and signed between physicians and patients ahead of time. Problem
with formal agreements – courts need to look behind them to see if patient actually informed and not
coerced. Can get out of contract if fraud, coercion. If such contracts are enforced they will also insulate
some physicians against unpleasant consequences of their own conduct.

Hackbart v. Cincinnati Bengals

Custom: Professional sports, playground, rough activity – if consent to play a sport or rough activity and
the act falls outside the custom of the sport then it is tortuous. When customs of the game are such that
you are considered to consent to so “rough-housing” then not tortuous.

When outside of the game and not custom of the sport then one is considered not to have consented and is
still entitled to a tort claim. Hackbart v. Cincinnati Bengals

Facts: The ∆ (football player) hit the ∏ (opposing football player) on the back of the neck (against rules
of football) when the play was over and the ∏ was on the ground. ∏ says he did not consent to this
contact in violation of the rules of football. Trial court said that ∏ consented – public policy –
professional football is a species of warfare and physical force is tolerated. Even intentional batteries are
beyond the scope of the judicial process. Appeals Court reversed and remanded saying that no law denies
the application of tort law to football. Consent comes from consent to play the sport. ∏ saying did not
consent to the contact in question. ∆ says he did (defense).

Holding: outside of the action of the game and the customs of the game. Jury needs to decide this
Public policy: if every time someone got hit they would always bring suit. Court doesn’t want to deter
people from playing football. See also Vosburg – discussion of playground and “boyish” games –
because the boys were away from play and away from the playground they were outside the game and the
customs of the game

Courvoisier v. Raymond

Where a ∆ in a civil action attempts to use self defense, he must satisfy the jury not only that he acted
honestly using force, but also that his fears were reasonable under the circumstances; and also as to the
reasonableness of the means made use of. Courvoisier v. Raymond.

Facts: ∆ jewelry shop owner’s home was being vandalized by rioters. ∆ took revolver and went to expel
intruders from building. They start rioting. Police nearby hear shots and come to scene of the crime. The
∏, police officer, proceeds toward ∆ calling out he is a police officer ad to stop shooting. ∆ shot ∏. Trial
Court gave instructions that if ∏ did not assault ∆ then find for ∏.

Holding: Remanded for new trial. Need to consider if there is a justification. (1) Honestly believed he
was being assaulted, even though he wasn’t; (2) reasonable response to his reasonable fears.

Rule of law: Need to establish that if a reasonable person would believe under the circumstances he was
being assaulted and the ∆ reasonably believed he was being assaulted.

Katko v. Briney

Defense of property
Facts: ∆ own farmhouse in ruin. Series of trespassing and housebreaking events, some theft. ∆ board up
home and posted no trespassing signs. ∆ set up “shotgun trap” in north bedroom. Spring gun pointed to
hit intruder in the leg. No sign the gun was in there. ∏ enter farm house to steal jars, opened bedroom
door, was shot and incurred server injuries. Trial court found for the ∏. ∆ appeals based on jury
instructions: can’t use spring fun unless to prohibit felonies and breaking and entering is not a felony;
may not use force that will take life or inflict GBI when protecting property; and given can’t use force to
take life or inflict GBI, prohibited from setting out ‘spring guns’ for purpose of harming trespassers.
Only justifiable use of spring fun is if felony of violence, felony punishable by death, or where trespasser
is endangering human life. Appeals Court affirmed.
Reasoning: (1) Prosser on Torts – “law places higher value on human safety than on property rights.”
This statement needs modification: use force between trespasser and petty theft and when landowner
would be privileged to use deadly force (threat to his personal safety or home). (2) Rule – no privilege to
use force causing death or SBI to repel threat to land or chattels unless threat to ∆’s personal safety as to
justify self defense. (3) Distinguished from Courvoisier because not the Briney’s place of dwelling. If
just his store then not justified. If Briney was sitting there then different – threat to personal safety and
Briney would have ability to distinguish if it was a child, etc.
Dissent: Worried about impact in the law and strict liability use of spring-guns. Should have intent
attached to it, if ∆ did not intend to kill then not liable for anything other than negligence. Fail to instruct
jury on intent. Should be sent to jury because question of ∆’s intention, should not be a blanket ban on
the use of spring guns.
Aftermath: Only rarely have ∆’s escaped liability for use of spring guns because the use of such devises
is so suggestive of indiscriminate and malicious intent. The maxim that “human life wins over property”
is not consistent with every day real life activity.
Ploof v. Putnam

Necessity – For allegation of necessity need necessity of the act but also necessity of the act w/respect to
∆’s property. Ploof v. Putnam

Facts: ∆ owned dock, under charge of ∆’s servant. ∏ sailing on lake with family when storm hit. To save
from destruction ∏ moored to ∆’s dock. ∆’s servant unmoored the sloop, drove it into the shore, boat
destroyed, ∏ and family injured. ∆ claims that like Katko the ∏ is a trespasser and he had the privilege to
remove him from the premises. ∆ demurred, overruled, and appealed. Appeals court affirmed and
remanded for full trial, ∏ has to prove alleged facts.

Necessity: needs to cover not only the necessity of mooring (the act) but the necessity of mooring to the
dock (the act w/respect to the ∆’s property). Should be left to jury w/evidence. ∏ needs to prove that it
was necessary to moor to ∆’s dock to save his and his families lives.

See this in New Orleans – if we’re talking about water and food as a means to survive would this not
satisfy the doctrine of necessity? Doctrine of necessity applies in Mouse’s case – throw casket overboard
during a tempest to lighten the boat and save human lives aboard.

Vincent v. Lake Erie Transportation Co.

Facts: ∆ moor boat at ∏ dock for purpose of unloading cargo. ∆ had permission to tie up unloaded the
cargo finished unloading the cargo storm came, left boat moored, continually maintaining the lines
keeping the boat fastened to the dock caused injury to ∏’s dock. Court found would have been
imprudent to leave the dock, the ∆ proceeded prudently by maintaining the lines to the dock. ∏ claims
trespass – stayed at dock after permission expired. Trial court found for the ∏, ∆ appeals claiming
necessity. Appeals court affirms.

Rule of Law: If it is an act of God then the ∆ would not be held liable, but the ∆’s maintained the lines
and interfered with an otherwise act of god. ∆ preserved their ship at the expense of the ∏ dock. Don’t
need to compensate when: (1) Life or property was menaced by an object or thing belonging to the ∏, (2)
Act of God or unavoidable accident the infliction of injury was beyond the control of the ∆, (3) Not here:
∆ prudently availed itself to ∏’s property for purpose of maintaining its own more valuable property. ##
Does it make a difference here that we are not distinguishing between life and limb?

Dissent: it’s an “act of God” and the storm caused the injury, not the ∆. ∆ had permission to be there,
contractual relations. The boat was lawfully in position and master exercised due care.

Restatement (2nd) Torts combines Ploof and Vincent in §197, recognizing a necessity-based privilege
to enter the land of another in order to avoid serious harm to one’s person, land, or chattels, or to those of
a 3rd person. Privilege is coupled with duty to compensate for harm caused.
Brown v. Kendall

First early case recognizing negligence – Brown v. Kendall

Facts: Dogs fighting in presence of master, ∆ took stick and beat dogs to break up the fight, ∏ look on
from distance, and advance toward dogs, ∆ hit ∏ in eye with stick. ∆ request judge instruct that if both
using ordinary care, the ∆ using ordinary care and ∏ wasn’t or if neither using ordinary care then the ∏
cannot recover. Trial judge denied and instructed that if ∆ act not necessary and no duty then liable
unless exercise ordinary care “in the popular sense.” If jury thinks ∆ had duty, then burden of proof on
∏, if jury believes unnecessary then burden of proof of ∆. Jury found for ∏. Appeals court remanded for
a new trial, the ∆ instructions should have been used.

Point of case – one has to act with ordinary care. Difference with what the courts say here and modern
negligence is about the burden of proof. The ∏ has to show that the ∆ was negligence, but there is a
presumption that the ∏ was using ordinary care and the ∆ has burden of proving ∏ was not using
ordinary care to escape liability. Notion move from special duty to general duty. Ordinary care varies
with circumstances of the case, once you have circumstances need to look at what the prudent and
cautious person would use required by the exigency of the case and to prevent danger.

United States v. Carroll Towing

Hand Formula: Liability depends on whether B < PL, if B< PL then negligent, if B > PL then
reasonable, or not negligent. If B = PL then not negligent. So if B ≥ PL then not negligent. Think of
verbal definition of negligence – failing to act as a reasonable person in the circumstances would have

Facts: A bargee left his barge overnight. Barge got into difficulties, broke away, and sank w/cargo in it.
Issue of whether the bargee was negligent in leaving the barge.

Held: Appeals Court – Reversed and/or remanded – the burden of having employee on board is less than
the probability the vessel will break away times the gravity of the injury. Apply new equation. Need to
show that ∆, bargee, was not acting with reasonable care upon remand.

Formula applied in this case: Owners duty to provide against injuries should be weighed by three
variables: (P) Probability the vessel will break away and cause injury in absence of the bargee [always tie
probability to the injury that actually happened]; (L) Gravity of the resulting injury; (B) Burden on the
bargee of staying on the barge, taking adequate precautions – the bargee’s freedom.

Recent case: As applied to recent case in the news, tourist vessel capsizes when wake hits the boat, all the
people move to one side and force the boat to capsize. 20 people die. Claim company should have had 2
crew members and they only have one. (P) Probability of ship capsizing had they had the second crew
member aboard. (L) 20 people died. (B) Having second crew member on board. Keep in mind that we
are looking at this ex post – if looking at it ex ante then looking at the probability of having to pay
damages. Not all cases where have to pay out damages. ## see notes.
Washington v. Louisana Power and Light Co.

Hand formula – with additional condition that need to look at all cases like the case at hand, not just the
individual case. Washington v. Louisiana Power and Light Co.

Facts: Washington was fatally electrocuted when moved radio antenna and made contact with
uninsulated electrical wire. Shock had happened a few years earlier. Washington request the insulate or
move underground, LPL says only do at Washington’s expense. ∏ sue for wrongful death of
Washington, trial court found for ∏, appeals court reversed saying ∆ owed no duty, and supreme court
affirmed appeals court.

Hand formula: LPL knew there was a possibility of injury, question is whether they created an
unreasonable harm. (P) Possibility electricity will escape and cause harm to people – low, Washington
learned his lesson the first time, always exercised care. (L) Gravity of resulting loss is extreme – death.
(B) Burden or relocating or insulating the power line for all people. (Burden of relocating or insulating
power lines) > (high degree of loss) x (small prob. accident occurring). Focus not just on this case, but
all cases like or similar to it. – In just this case then burden of insulating one line would be worth it, but,
need to think of all similar cases. Great number of power lines exist, and not overwhelming occurrence of

Rule of law: Need to look at whole system, not just individual case when evaluating the burden. It’s
impractical to look at on a case-by-case basis. If you do it for one then everyone is going to want lines

Weirum v. RKO General, Inc.

Duty, according to the court, is to exercise ordinary care to prevent harm. A duty is owed to everyone.
Foreseeability is a primary element in establishing duty. “Everyone” is those that are foreseeably at risk.
Facts: Radio rock station has contest that rewards first finder of a prize. Have large population of teen
listeners. 2 teens were on highway following Disk Jockey’s care; one of them forced the decedent’s car
onto center divider and killed him. Trial court found for the ∏, against the radio station. Appeals court

Procedure points: Duty is a question of law for the court, Decided on case-by-case basis, General rule
that all persons are required to use ordinary care to prevent others from being injured as a result of their
conduct such that a reasonable person would conclude they were creating a risk of harm. Foreseeability is
a question of fact for the jury. Liability: imposed only if the risk of harm resulting from the act is
deemed unreasonable – i.e. if the gravity and likelihood of the danger outweigh the utility of the conduct
involved. Risk – high speed auto chase causes death. Utility – entertainment by radio station

Hand formula: Does not use it exactly, but discusses the elements. B foregoing the contest, different
kind of contest. PL Foreseeable risk of death in auto accident. Court says this is undue risk of harm.
Court makes decision because upholding jury’s decision about how much weight to give to B versus PL.
We know this because the jury has decided in favor of the ∏. Weigh B and PL inorder to determine if the
actor exercised ordinary care. If the actor fails then he breached a duty. In negligence cases we ask (1)
did the actor have a duty; and (2) did he breach it? It is under (2) that the formula comes into play, B vs.
PL helps to establish if they breached the duty. Everyone is defined by those that are foreseeably at risk.

Carroll, Washington, and Weirum fall into the Instrumentalist Camp where the goal of negligence law is
to achieve the optimal level of accident prevention so that the total costs of accidents and accident
prevention will be minimized.
Rowland v. Christian

Facts: ∏ was social guest at ∆’s apartment, used a broken faucet handle in the bathroom and sustained injuries. The
∆ was aware but did not warm ∏ of faulty faucet. Trial Court granted ∆’s motion for summary judgment. Appeals
Court reversed in favor of the ∏. Case takes place in California, under the civil not common law. Rule: Court
eradicates the common law and instates the civil code law that: “everyone is responsible not only for the result of his
willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of
his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon
Holding: Where the occupier of land is aware of a concealed condition involving in the absence of precautions an
unreasonable risk of harm to those coming in contact with it, the trier of fact can reasonably conclude that a failure
to warn or to repair the condition constitutes negligence. The common law classifications of “trespasser, licensee,
and invitee” should not influence the standard of care. This court declines the rigid classifications, thinks these lead
to injustice. The proper test is embodied in the civil code and is whether in management of his property a man has
acted as a reasonable man in view of the probability of injury to others, the status of that man is not determinative
Reasoning: Can depart from ordinary standard of care when balance the following factors: (1) foresee ability of
harm to ∏, (2) degree of certainty that the ∏ suffered injury, (3) closeness of ∆’s conduct and the ∏’s injury, (4)
moral blame; (5) policy of preventing future harm; (6) extent of the burden to the ∆; (7) consequences to the
community; (8) insurance for the risk involved [talking about 3rd party insurance here]. These factors are not
reflected in common law classification of Trespasser, Licensee, and Invitee.
Duty: take premises as they find them, possessors only duty is to refrain from wanton or willful injury.
Trespasser – enters land of another w/o privilege to do so; Licensee – a person like a social guest who is not an
invitee and who is privileged to enter or remain upon land by virtue of the possessor’s consent. Duty to exercise
ordinary care; Invitee – business visitor who is invited or permitted to enter or remain on the land for a purpose
directly or indirectly connect with business dealing between them.
Dissent: L, I, T been developed over many years. Not unreasonable that social guest (licensee, ∏) should be
obliged to take premises as host permits them to be. Don’t want homeowners hovering over guests shoulder. Opens
the door to potentially unlimited liability.

Erie R. Co. v. Stewart

Duty to act affirmatively. When taking precautionary steps and fail to continue to exercise those
precautionary steps, there is an affirmative duty to inform others that you have ceased those operative
steps. Erie R. Co. v. Stewart.

Facts: ∏ was passenger in a car, injured when hit by ∆ train. ∆ had watchman at crossing but the
watchman was not there. The ∏ had knowledge of this practice and relied upon the absence of the
watchman as a sign of safe crossing. Trial court found for ∏, Appeals court affirmed.

Holding: When any ∆ takes precaution to prevent injuries to others, others know of this precaution and
the ∆ fails to maintain this precaution then the ∆ can be held negligent for breach of this duty. When
you’re taking steps to protect people from danger and they are aware of it, you may have a duty to notify
them if you cease doing so.

Procedural point: Responsible if service is negligently performed or abandoned w/o notice to the fact.
Negligent performance – issue for the jury. Lack of due care (absence of watchman) – negligence
appears as a matter of law.
Tubbs v. Argus
∏ guest in ∆ car, drive of curb ∏ injured, ∆ left car and did not aid or assist injured ∏. Sue for additional
injuries (not covered by guest statute) that incurred when ∆ did not aid or assist. Trial court found for ∆,
Appeals court reversed (for ∏). Held: If instrumentality is under control of ∆ then duty of reasonable
care to prevent additional injuries.
Tarasoff v. Regents of University of California

Special Relationship; Pre-existing relationship / Duty to warn; Tarasoff v. Regents of University of

Facts: Podar killed Tatiana Tarasoff. He told ∆ psychologist he intended to kill her two months earlier.
Told campus police, they briefly detain, release. Parents suing ∆ for wrongful death. Trial court
sustained ∆ demurer. Supreme Court reverse saying that ∆ had duty to warn victim.

Held: the defendant therapists' special relationship to patient was extended to victim, and a duty existed
to use reasonable care where they had knowledge that patient was going to harm victim. Because have
special relationship should be foreseeability.

Dissent: Need confidentiality in psychological field. Without it you will deter people from treatment,
inhibit patients from full disclosure, and will frustrate successful treatment due to breach in trust
agreement. This will create net increase in violence because those who seek treatment will be impaired
and cause violence. Only other option is to over- commit to mental institutions. Depriving mentally ill of

Hoyt v. Jeffers

Facts: The ∏ owned a hotel near a steam mill owned by the ∆. Hotel was damaged by fire. ∏ sued
claiming fire was caused by sparks from the mill and the mill didn’t have a “spark catcher” and the ∆ was
negligent for letting sparks escape. Mill has history of creating fires. Trial court found for the ∏,
Supreme Court affirmed saying if jury inferred from the facts that there was causation then the SC will
affirm that.

Circumstantial evidence: Jury can infer from the evidence, but they are not required to compel from the
evidence. Can’t be certain spark caused the fire, but there is enough that the jury could infer the cause
was the mill.

Smith v. Rapid Transit

Facts: ∏ was driving car at 1 am on ∆ bus route. ∏ swerved to avoiding hitting bus, says it was ∆’s bus.
There is conflicting evidence; ∏ favor was it was a bus, on the route, same time, same direction. But bus
was supposed to be there between 1:15 and 12:45, so some discrepancy. ∏ was in an accident and sued ∆
because she thought it was ∆ bus that caused the accident. Trial court found in favor of the ∆, Supreme
court affirmed. # should lexis this one
Summers v. Tice

We know that both the ∆s are negligent here, now we’re dealing with causation.
Facts: ∏ and ∆s were hunting quail. 3 formed a triangle, ∆ flushed a quail, both ∆’s shot at quail in ∏’s
direction. One hit ∏ in the eye, the other in the lip. Don’t know which pellet came from which gun. ∏ argue
they are jointly liable, the ∆ argue that they are not jointly and severally liable. Can’t prove which did it. The
trial court (w/o jury) found for the ∏, ∏ not contributory negligent. Appeals court affirmed, they are jointly
Held: When two defendants are the possible cause of one harm and the injured party can not point out which
defendant caused the harm, the ∆s can both be held jointly [opposed to independently] liable for ∏’s injuries.

Reasoning: Both were negligent, can’t determine which ∆ shot him.
Rule of law: When two or more persons are the sole cause of one harm, OR, two or more acts by one person
are the sole cause of harm, and ∏ has introduced some evidence, then the burden of proof is on the ∆ to prove
that the other person or his other act is the sole cause of harm. It would be unfair to deny the injured party
redress because can’t apportion damages. Rule should apply when harm has multiple causes, and not merely
when ∆ acted together.

Independent versus joint: If independent need to prove which ∆ did it, if joint just prove one of them did it.
Joint liability – the burden of proof shifts to the ∆ to prove that they were not the one who fired the shot. Joint
and severally liable – let ∆s apportion the blame amongst themselves. ∏ can recover from either ∆ the entire
judgment, each liable for 100% of the judgment. Then would be up to ∆ to seek contribution from others,
would be difficult to do in this case because can’t prove which ∆ shot the ∏.
Approach toward negligence: Here the court looks at negligence as just breach of duty, other times courts
require all 4 elements.

Ybarra v. Spangard

Against a large group of people. Medical field. California Supreme Court case.

Facts: ∏ diagnosed with appendicitis, went to hospital. Had operation. Awoke and complained of pain
about ½ between the neck and point of right shoulder. Consulted with doctors and was told it was the
result of trauma or injury by pressure or strain. The trial court said that the ∏ failed to make out a legal
case and bring forward sufficient evidence, found for ∆. Appeals court reversed and remanded. On
remand trial judge found in favor of the ∏ against all ∆.

Held: A ∏ can use the doctrine of RIL to imply that the ∆s were all jointly liable for the ∏’s injury when
under anesthetic for a surgical operation and the ∏ suffered resultant harm. The ∆ have the burden of
initial explanation.

Reasoning: Every ∆ in whose custody the ∏ was placed for any period was bound to exercise ordinary
care to see that no unnecessary harm came to him and each would be liable for failure in this regard. Any
who was negligent would be liable.

Important notes: Unlike cases above where ∆ all negligent, some innocent might be held liable in this
case. More policy making in this case – make sure the medical field exercises more care and monitors
each other. Expanding liability w/res ipsa – liability if know a group of people are in charge of the
instrumentality, expand to encompass a whole group. Can’t prove breach of duty unless look at group as
an entity.

Dillon v. Twin State Gas & Electric Co.

Concurrent and successive causes.

Facts: ∆ maintained wires over public bridge. Young boys play on the bridge. No current passed
through the wires except by chance. Decedent leaned over one of the girders, lost balance, and grabbed
wire to catch his fall. Decedent was electrocuted. ∆ motion for directed verdict, trial court denied, ∆
appeals, Appeals court overruled ∆’s exception and sent back to trial saying the ∆ would be held liable if
it could be proven that the boy would not have died anyways.

The future bears on liability – issue of fact: (1) But for the current the ∏ died from hitting the rocks – get
damages from the shock only; (2) But for the current the ∏ was severely injured – get damages for loss of
impaired income; (3) But for the current the ∏ recovered his balance – damages? (##)

Kingston v. Chicago

Facts: Fire in NE part of ∏ property started by ∆’s locomotive. Fire in NW part of property of unknown
origin. According to jury both fires were proximate cause of the destruction of ∏’s property. Fires united
north of ∏’s property, then united bore down and destroyed ∏’s property. Trial court found for ∏,
Appeals court affirmed.

Holding: If other fire caused by natural origin then could use this as a defense and the ∆ would be
exempt, but if other fire caused by human agency then ∆ liable for whole destruction. Where two causes,
each attributable to the negligence of a responsible person, concur in producing an injury to another,
either of which causes would produce it regardless of the other… because, whether the concurrence be
intentional, actual, or constructive, each wrong-doer adopts the conduct of his co-actor.Why? Because
to allow each of two wrongdoers to plead the wrong of the other as a defense then would permit them to
escape penalty and penalize the innocent party who has been damaged by their wrongful acts.

Procedural Stuff: Shifting the burden here, shouldn’t require ∏ to find source of both fires if know one,
make ∆ find out source of the 2nd fire. ∏ burden to show that but for ∆ fire the ∏’s loss would not occur
(Dillan). If 2nd fire is natural, then ∏ did not meet burden. If 2nd fire was from human agency then did. ∆
burden of showing other fire was from natural cause

What about if it happened some time apart? Baker v. Willoughby – car accident hurt ∏ leg. Sometime
later ∏ was shot in leg, sue for damages. House of Lords held that the ∏’s recovery for his disability was
not affected by the second injury and amputation.
Palsgrapf v. Long Island RR (Majority decision by Cardozo)

Facts: ∏ standing on RR platform, train stopped, man pulled onto moving car by guard and dropped
package containing fireworks. When the fireworks exploded the shock knocked over some scales 25 feet
away, one hit the ∏ and caused injury. Trial court entered judgment for the ∏, Appeals court reversed
and dismissed the complaint.

Majority: This issue here is with duty not with proximate cause. Thus the issue is foreseeability because
duty is based on foreseeability. In this case the harm was not w/in foreseeable risk. No duty was
breached to the ∏, thus we don’t even get to the issue of proximate cause. Cardozo concentrates on space
/distance(if she was closer maybe different story), and lack of perceived hazard. what the package looked
like (didn’t say TNT). The eye of vigilance would not have perceived the risk of danger. ∏ must show
wrong to herself and not another or because it is unsocial.

Dissent [Andrews]: Matter of proximate cause, negligence of the guards was the proximate cause of the
∏’s injury. The duty is a duty to society as a whole, failure to take reasonable care to anyone [Cardozo –
duty of care to those that are foreseeable victims]. Look at accident from view point of after it happened,
who was harmed, not [Cardozo – who was foreseeable harmed]. Andrews believes that proximate cause
is more than just “but for” causation, but not the “pebble in the pond” scenario. When talk about
proximate cause we’re talking about how close the injury is to the act in time and space. Should affirm
judgment, can’t say there is not proximate cause.

Solomon v. Sheull – rescue doctrine

Facts: The ∆ were plain clothes police arresting robbery suspects. The decedent mistook the suspects for
needing help and came out to help them with gun pointed to the ground. Decedent shot by one of the
officers. The decedent’s family sued the police officers for wrongful death. Trial court found for ∏ and
reduced recovery by comparative fault regime [reduces a ∏’s recovery proportionally to the ∏’s degree
of fault in causing the damage, rather than barring recovery completely]. Supreme Court reversed and

Held: Rescue doctrine not correctly applied. Tortfeasor owes rescuer a duty of reasonable care and thus
is liable to the rescuer (i.e. a rescuer is foreseeable).

Rescue Doctrine: Test (1) Would a reasonable person in the same circumstances have acted as the
rescuer did? – Balance utility of rescuer conduct with increased risk of harm. (2) Did the rescuer carry out
the rescue in a reasonable manner? – if not then recover is reduced by comparative degree of fault. Need
not be actual danger, Determined by the trier of fact (jury).

Exception to the rule of recovery fire fighter rule. Bars recovery by professional rescuers for injuries
incurred in the course of their duties. Reasoning: they are compensated ahead of time for the inherent
risks in their work.
Marshall v. Nugent

Facts: ∏ was passenger in car, road covered in snow and ice, as approach uphill curve an oil truck owned
by ∆ approached from opposite side, intruded into lane, car went off road. ∆ stopped truck, block traffic.
∏ go up hill to warn oncoming traffic. A car driven by ∆2 came around the curve, swerved to avoid the
truck, and hit the ∏. ∏ suing both ∆. Trial court found verdict for the ∏ against ∆ (oil truck) and verdict
for ∆ (car driver). Appeals court affirmed.

Held: Even though the ∏ injury occurred after the initial accident, the ∆’s negligence in the first accident
is the proximate cause of the ∏’s later injury – there is a causal relation between the two accidents. The
negligent act was still going when the car was stalled on the side of the highway. The situation had not
become stabilized and normal.

Proximate cause: The efforts of the courts with this doctrine have been to confine the liability of a
negligent actor to those harmful consequences which result from the operation of the risk, or of a risk, the
foreseeability of which rendered the defendant’s conduct negligent. There is some flexibility that comes
in defining this risk for each case.

Procedural: (1) Question of law – judge has to make preliminary decision about if reasonable men might
differ on the inferences to be drawn. (2) Question of fact if there is a significant enough causal relation
between the negligent act and the ∏’s harm, such that the ∆ should be held liable.

Watson v. Kentucky & Indiana Bridge Co.

Facts: ∆ tank car derailed and gas spilled into the street and was in standing pools. 3rd party threw a
match into a pool of gasoline, caused explosion that injured the ∏. Mixed evidence as to why 3rd party
threw the match. Trial Court found for ∆. Appeals court reversed and remanded for a new trial. Like
Kingston each party is liable.

Held: Remanded for jury determination if the lighting of the match by the 3rd party was a wanton or
malicious? If 3rd party inadvertently or negligently lit and threw the match then it alone is not the cause
of explosion because need primary negligence of pools of gas to be there. If 3rd party was malicious then
the ∆ is not responsible, could not foresee such a criminal/evil act.

Proximate cause treatment: Just because intervening acts, doesn’t mean the ∆ is relieved from liability.
Act or omission may be negligent even if injury wouldn’t have occurred but for the intervening cause if
occurrence of intervening acts could be anticipated. Also established: when an injury is caused by two
causes concurring to produce the result, and the ∆ caused one of them, the ∆ cannot escape liability.

Note case Kush: Intervening intentional, even criminal conduct will not always relieve of liability. In
Kush v. City of Buffalo ∏ was injured by chemicals negligently stored by ∆ and stolen by two 15-year
olds. Held: doctrine [relieved from liability if intervening criminal act] does not apply when the
intentional or criminal intervention of 3rd parties is reasonably foreseeable. Consistent – duty in Kush is to
protect the children from the chemicals, the duty was breached. No such duty here.
Ford v. Trident Fisheries Co.

But for test.

Facts: ∏ intestate was a mate on steam troller, fell of ship when vessel rolled and was thrown overboard.
No cry was heard, clothing found, he wasn’t seen. ∏ is suing ∆ for wrongful death. Technical
difficulties with boat lowered to pick up intestate. Trial court found for the ∆, Appeals court affirmed. **
look at this as employee suing the employer case

Held: Even if they were negligent with the rescue boats it was not the cause of death, thus not liable.

Lyons v. Midnight Sun Transportation Services

Failure of But-for test;

Facts: Wife killed when hit by ∆ truck driver. She pulled out of parking lot, ∆ swerve to left to miss her,
∏ pull out further. They collide. ∏ dies, her husband sues for wrongful death. Conflicting evidence on
speed of truck. Trial court found for ∆ (negligence, but was not legal cause of the accident). Appeals
court affirmed.

Held: Even though the ∆ was negligent, the ∆’s negligence is not what caused the ∏’s wife’s death
because there is evidence to the effect that the accident would have occurred regardless of the speed limit
and the ∆ responded property to an intrusion in his lane. Since the jury found lack of causation prong in
the negligence test then can’t have negligence.

Note: wrongful death is a statutory claim, need to make sure state has statute that allows for recover for
wrongful death (loss of companionship, not to be confused with “survivor statute” where bring claim as if
the person had survived).

Cahoon v. Cummings

Facts: ∏ decedent had esophageal cancer that the ∆ failed to detect. ∏ sue ∆ for negligently failing to
diagnose cancer. Judge instruct that if jury determined ∆’s negligence was a substantial factor in causing
the decedent’s death then can recover damages in full. Found for ∏. Appeals court remanded for a new

Held: Loss of chance rule, can’t recover for full damages for wrongful death, should only cover what
which is proportional to the injury. Having shown causation, the damages are proportional [not full] to
the increased risk attributable to the ∆’s negligent act or omission. Doctor is liable for the increased risk.
Issue becomes what was the ∏’s chance of survival had the appropriate standards of care been followed?
In this case damages = loss of chance of survival.
Preponderance of evidence rule: In previous cases courts say you need to show preponderance of
evidence of death; here you need to show by a preponderance of evidence that you deprived ∏ of certain
% of survival.

Loss of chance approach: Hold ∆ liable for % chance loss of survival. This is the minority approach, in
most cases need to show that more likely than not the Dr’s negligence caused the ∏’s death. Why out of
favor? Too subjective, too hard for the jury.

Kinsman Transit Co.
(See Restatement for Causation 277-278) – example with how far courts will go, example of the debate
that goes on. Even though not foreseeable, still liable.

Facts: Barge broke loose from moorings due to negligence of handlers, drifted downstream, broke 2nd
vessel loose, hit a drawbridge, cause dam in river, and flood property upstream. Appeals court held the ∆

Held: Handlers negligence was the proximate cause of the flooding upstream. Although can’t foresee
extent of damage, could see that some damage would be done. Don’t need to limit damages to
foreseeable consequences at the time of the negligent conduct when (1) consequences are direct; and (2)
damages are of the same general sort that were risked.

Palsgraf: This case helps define dissents version of proximate cause. “Question of expediency and fair
judgment, deal with fact to fact basis”, time, space, number of intervening causes, and then at some point
we get to point where so tenuous won’t hold liable for the injury.

Issues: This case falls under cause or duty. Same as Palsgraf. Since Palsgraf is mentioned might mean
in centers on breach of duty. Majority here points to the dissent in Palsgrapf.

Dissent: Reasonable foreseeability must be the guide to decision. Can’t rely on hindsight. Too tenuous
to see that the ships would cause a dam.

Waube v. Warrington

Impact rule -- that there could be no recovery for any resulting physical manifestations of the fright, such as
“nervous disease, blindness, insanity, or even a miscarriage.” Used to be clear weight of authority, changed
with Waube.

Facts: Decedent mother looking out window of her house and watch child cross highway, witness negligent
killing of the child by the ∆. Trial court found for the ∏. Appeals Court reversed, in favor of the ∆.
Held: The mother of a child who was not put in peril or fear of physical impact, cannot recover from physical
injuries sustained caused by freight or shock when she witnesses the killing of her child. This is an issue of
duty, not proximate cause. Court also puts the limitation that to recover there needs to be some physical
Reasoning: ∆ breach of duty must be to the mother. Refers to case with similar facts Hambrook v. Stokes
Bros where mother inquires into crowd, goes to hospital, finds child injured, suffers shock, and dies. This was
viewed from proximate cause, rather than duty, held that ∆ should have anticipated would cause shock to a
mother with respect to her child. This case is wrong – enlarges duty to highway users, ∆ has duty to use
ordinary care to avoid physical injury to those put in physical peril.
Palsgrapf – same debate of cause versus duty. Court is actually applying the Andrews test (##?).
Notes – public policy is at forefront of the courts reasoning – limit tort liability here because emotional distress
in intangible.
Zone of danger – area where one can recover for severe emotional distress. Pretty much universal – recover
for physical injury if in the zone of danger and fear for themselves.
Classic fact pattern involves traumatic accidents. In these cases the rules placed natural boundaries on the
exposure of ∆ to “excessive” liability. The view that small particles can constitute an impact has caused
problems for the law in contexts other than those considered here. Example, in cases involving exposure to
asbestos, for example, the courts have not imposed emotional upset liability when all the ∏ has been able to
allege is contact w/ asbestos fibers; courts have insisted on proof that the contact has caused present physical
injury. It is not enough that there is a fear, even a reasonable fear that some future physical harm will result.

Dillon v. Legg – California case

Facts: ∏’s are a mother and sister of a young child. The child was injured by ∆’s negligent operation of
a car. Both were at the scene and witnessed the accident. Trial court found for the ∆. Appeals court

Held: The court is going against past American decisions that have barred a mother’s recovery for
physical injuries incurred due to shock from witnessing the injury of her child and hold that the ∆ is also
liable for the mother’s injury. The ∆ has a duty to the mother and sister as well as the injured child, there
is a test that needs to be applied to determine that duty. This test helps to determine the degree of

Test: Need to have negligence toward the child (primary liability), need to show the mother suffered
shock that resulted in physical injury. Apply the test: (1) Proximity in space Was the ∏ near the scene
of the accident (versus away from it); (2) Proximity in time Did the ∏ have direct, sensory, and
contemporaneous observance of the accident [* notice proximate cause language]; (3) Was victim closely
related. To be judged on a case by case basis – future courts will draw lines of demarcation upon facts
more subtle than these.

Notes: Opens the door to liability for bystanders, pure liability rule. Disagreement about the role the
factors from Dillon should play culminated in the case of Thing.

Thing v. La Chusa – California case

Facts: ∏ son was injured in car accident that the ∏ did not witness. She was near the scene, informed of
the accident, went to scene, saw bloody body, and assumed he was dead. Trial court granted ∆ motion for
summary judgment. Supreme court affirmed. Difference from Dillon is that the mother was not at the
scene when her son was negligently injured, did not observe ∆ conduct, not aware son being injured, thus
no right to recover (no direct, sensory, or contemporaneous).
Held: Guidelines in Dillon should be stricter. Society needs certainty in law to dictate bystander recover.
Make bright line rule, need: (1) close relation to the victim, (2) present at the scene of the injury
producing event and aware that it is causing injury to the victim, (3) suffers emotional distress beyond
what would be anticipated of a disinterested witness. Differs from Dillon because all three have to be
present for the ∏ to have a cause of action – they become elements of the cause of action, not just
Notes: Case-to-case/ad hoc approach led to inconsistent rulings. Foreseeability is not useful guideline
when there is an intangible injury. Court here is worried about limitless liability for bystanders. Wants to
give insurance about what will happen if a party brings a cause of action, introduce element of
Problem: Bright line rule isn’t really fair, still wiggle room, what about children/grandparents/etc.
Concurring opinion: Better to move back to zone of danger approach in Waube, Dillon is unworkable.
Should be in fear of own personal safety. See page 303 where would agree with majority.
Dissent: Majority wants bright line rule of negligent infliction of emotional distress actions. Grasp onto
arbitrary line. This strict requirement makes Dillan rigid where the court said it should be flexible.
Follow mandate of Dillon and maintain foreseeability and duty determine liability, with a view toward a
policy favoring reasonable limitations on liability. General rules of tort law should apply to NIED.


Facts: ∏ suffered emotional distress when learn baby suffer injury during delivery. She was under
general anesthetic during the time of her caesarian section. Trial court found for ∆, Thing does not apply
because she was under general anesthetic and was not aware of what was going on [sense of arbitrariness
of Thing]. Appeals court reversed, Thing is not applicable because she was a direct victim.

Held: A mother can be compensated for emotional distress against a physician who entered into a
physician patient relationship with her for care during labor and delivery of her child and in the course of
delivery injured the child.

Reasoning: At the time of breach of duty the mother and the child are still one. Courts treat this as a
direct victim kind of case.


Facts: ∏ are “de facto married couple” – live together as husband and wife for 20 years. No legally
married until 1983. During those years used each others surname, held themselves out as marriage, file
joint tax returns, own home, depend on each other. ∏ (husband, wife) sue ∆ for loss of consortium
(deprivation of companionship, sexual relation due to injury) due to wrongful conduct during course of
employment. ∆ moved to summary judgment on the loss of consortium claim. Motion allowed. ∏
appealed. Appeals Court: Affirmed.

Held: The ∏ cannot recover for loss of consortium. They are not legally married.
Notes: This is a matter of public policy – couples could engage in fraud if start granting loss of
consortium claims to people who are not legally married. Worried also about extending to a myriad of
relationships that may exist between cohabitants. Also look at implications for same sex relationships.

On loss of consortium: originally a husbands claim where family seen as economic unit where husband
sat at the head. If wife injured he could claim loss of damages. Today a lot of wives cases, where wife is
dependant on husband. Come out of notion that family is an economic unit.

Borer – written by Tobriner, who wrote opinion in Dillan

Facts: ∏ are 9 children of Borer. Borer suffered physical injured when a cover of a lighting fixture at
American Airlines Terminal at Kennedy Airport fell and struck her. ∏ sue ∆ (AA) for “loss of
consortium.” Trial court found for ∆, appeals court affirmed.
Held: The court refuses to recognize a new cause of action where anyone other than the spouse of a
negligently injured person (in this case a child) can maintain a cause of action for “loss of consortium.”
Reasoning: Somewhere the line must be drawn or could be extended to others in distant relations, need to
limit claims (uncles, aunts). Consortium is loss of sexual relations. For children it is an intangible loss,
money recover would be superficial unrelated future benefit. Social burden of increased insurance
premiums with increased number of cases (See California treatment of insurance cases like Escola,
Dillon, and Rollan – usually use insurance as a sword for the ∏, here it’s a shield for the ∆). Worried
about double recovery. Other jurisdictions don’t let children recover.
Dissent: (1) Nonpecuniary loss – bogus, can recover for loss of consortium; (2) Double recovery – can
avoid by joinder of actions; (3) Sex life – nonsexual loss just as great, moral support, what about old
people; (4) Statistically an accident is much less likely to have minor children than a spouse.
Note: Progression and difficulty of Dillon, Thing, and now Borer in drawing the line. In this case we
have made a convert out of Tobriner, seems to turn attitude around completely.

Butterfield v. Forrester

Facts: ∆ was making repairs on his house and put pole across the road, there was a free passage by
another branch or street in the same direction. ∏ was at a public house, drinking pubs. 8pm in August –
light enough left to discern the obstruction at 100 yards distance. Witnesses saying ∏ riding roughly – if
had had not been riding so hard he would have seen it. ∏ road against it, fell, injured. Court found for
the ∆.

Held: A ∏ cannot recover when his injuries are the result of a ∆ negligent conduct but the ∏ was not
acting with ordinary care. ∏’s own negligence bars recovery.

Notes: This is a complete defense, first case to recognize contributory negligence. In this case the ∏ had
the burden of proving that there was an obstruction on the road and no want of ordinary care. This
changes, because the ∆ burden of proving the ∏ was also negligent.

Davies v. Mann

Facts: ∏ fettered the feet of a donkey to a public highway (legs tied together so he can’t run). Ass was
grazing on the road, ∆ wagon w/team of horses can to the place, ran into the ass, knocked it down, ran
over it, and killed it. Trial court found for ∏, Appeals court affirmed.
Held: If the ∏ is negligent, but the exercise of ordinary care would not have avoided the consequences of
the ∆ negligent act the then ∏ can still recover.

Reasoning: The ass was lawfully there, even if wasn’t the ∆ could have avoided hitting him by exercising
reasonable care. ∆ still bound to go along the road at a reasonable pace, if not could justify running over
anything in the road. Last clear chance rule.

Last clear chance rule – both A and B are negligent, but A has the last clear chance of avoiding the injury.
Softening of the doctrine of contributory negligence. A’s negligence creates a condition that could result
in injury, but B’s negligence is such that it comes at a later time such that the injury would not have
occurred but for B’s negligence. Serves to point to how the courts feel the doctrine of contributory
negligence serves an injustice sometimes.

Meistrich v. Casino Arean Attractions, Inc.

Facts: ∏ was injured when fall while ice-skating rink operated by the ∆. Trial court found for ∆, appeals
court reversed, supreme court affirmed.

Held: There is evidence to take to the jury, ∆ depart from usual procedure in preparing the ice. Issue of
contributory negligence should also be left to the jury, could find the ∏ was careless when remaining on
ice. Assumption of the risk as a defense is not separate from contributory negligence, ∏ conduct should
be assessed using contributory negligence principles. There is no express contract here, no independent
assumption of the risk.

Note: Assumption of risk has several meanings. (1) Assumption of risk is only a denial of breach of
duty. WRONG. (2) Secondary assumption of risk: CORRECT – judged as “contributory
negligence.” Affirmative defense to an established breach of duty. It is a phase of contributory

Boyer v. Iowa High School Athletic Association

Facts: ∏ basketball spectator is suing ∆ management for negligence when at the end of the game as
spectators were leaving the bleachers folded, throwing ∏ to the ground and causing substantial injuries.
Trial court found that no evidence of specific acts of negligence, but charged jury with RIL. Verdict for
the ∏. Appeals Court affirmed.

Holding: The bleachers were an instrumentality exclusively under the control of the ∆ and in the ordinary
course of things the bleachers would not collapse if ordinary care were used. The doctrine of RIL can be
applied to infer negligence.

Reasoning: The “underlying reasoning” in past RIL cases that chief evidence of injury is practically
accessible to the ∆ but not accessible to the injured ∏ does not stand in this case and is not an
indispensable requirement. A seriously injured person cannot be expected to search for evidence.

Shutt v. Kaufman’s Inc.

Res ipsa does not apply here.

Facts: ∏ was a customer at ∆’s shoe store. ∏ sat in a chair, bumped display table and cause metal shoe
stand to fall over and strike ∏ on the head. Trial court found for the ∆. ∏ says RIL applies, ∆ says no.
Appeals court affirmed.

Holding: RIL is not appropriate in this case. The injured party has the option of suing in negligence.

Reasoning: ∏ is a business visitor (invitee) and thus the store keeper has a duty of reasonable care. Even
though ∏ claims she could not foresee the rack would fall, foreseeability is not the RIL test. ∏ could
have shown the ∆ was negligent (display table unstable, etc); ∏ had the means available to her to
establish negligence. Element of res ipsa here is the reasonability issue.

Distinguished from Boyer: much less complicated instrumentality; they differ on the accessibility issue –
saying any cause of specific negligence would be accessible to her. ∏ attorney has burden of carrying out
reasonable investigation to show how accident happened and that the ∆ was negligent. If opportunity to
investigate then should go forward with that

Note: The presence of direct evidence of negligence should not deprive the ∏ of RIL inference; however,
there comes a point when the ∏ can introduce enough direct evidence of negligence to dispel the need for
the inference.
City of Louisville v. Humphrey

Facts: ∏’s husband was drunk and went to jail. Retained there, collapsed, and brought to drunk tank.
Some dispute as to whether another prisoner was in the drunk tank (city only liable if they knew of other
prisoner and they had violent tendencies). Guard found him dead the next morning, later discovered to be
a subdural hematoma (serious head injury). Trial court found for the ∏. Appeals court reversed, should
sustain ∆’s motion for judgment notwithstanding the verdict (allowing trial court verdict would be great

Holding: The evidence in the case falls short of justifying the use of RIL. There is no probative evidence
that an employee of the city or a fellow prisoner inflicted injuries on the decedent.

Reasoning: The instrumentality in this case is the prisoner (this is consistent because this is what the
injury stemmed from).

Procedural comments: The ∏ has the burden of proving that her husband was under an instrumentality
controlled by the ∆ at the time the injury occurred. Judge needs to determine if res ipsa is applicable
(because needs to charge the jury on res ipsa), so the judge does need to make some preliminary finding.
The submit to jury if foundation facts exist enough to satisfy res ipsa.

Escola v. Coca Cola Bottling Company

At what point does the instrument need to be in control of the ∆?

Facts: ∏ was a waitress who was injured when a bottle of the ∆’s broke in her hand. ∏ suing bottling
company for negligence and injuries that resulted from explosion. Trial court found for ∏, Appeals court
affirmed. ∏ rely completely on the doctrine of RIL. Court has to view in light most favorable to the ∏
because ∏ won jury verdict.

Holding: Doesn’t matter if it happened after the ∆ relinquished control of the instrumentality provided ∆
had control at the time the negligent act occurred (in this case the bottling, not the explosion) and the ∏
proves that the condition of the instrumentality did not change after left ∆’s possession. ∏ has burden of
proof that due care was exercised once ∆ relinquished control of the bottle, ∆ does not have to prove that
something changed.

Reasoning: RIL is when have (1) exclusive control; and (2) ordinarily would not occur in the absence of
negligence. Ordinary control is easy because sound and properly bottled carbonated liquids do not
normally explode. Under control of ∆ at time of bottling so exclusive control of the instrumentality is
also present.
Concurring Traynor opinion (although concurring opinion now he wrote it a few years later in a majority
opinion making it established law). Strict liability for product manufactures. Public policy reasons: Great
harm to individual ∏, this way damages spread to all consumers of coke. Modern methods of distribution
have changed – manufacturer is in the best position to avoid defects and guard against harm. Negligence
doesn’t work here because B is always greater than PL and manufacturer would never act [### talk to
someone about the difference between PL and P x damages]. Plus negligence is difficult for an injured ∏
to prove because don’t know where along production line, etc, when defect occurred. Shifting the burden
from the injured ∏ to the manufacturer – the manufacturer is in a better position to prove they did no

Martin v. Herzog

Violation of Statute is Negligence as a matter of law

Facts: ∏ and husband were driving buggy w/o lights on in violation of State statute. They were hit by ∆
car and the husband was killed. ∏ was not traveling with lights on, ∆ did not stay on right side of the
road. ∏ claim ∆ negligent because not drive on right side of road and no lights is not in and of itself
negligence. ∆ claim that traveling w/o lights in violation of highway law is negligent. Trial court found
for ∏. Appeals court reversed, no lights are prima facie negligence.

Rule of law: When purpose of the statute is to protect and guide highway travelers and that omitting to
follow the statute and use the lights is to fall short of the “standard of diligence to which those who live in
organized society are under duty to conform” the unexcused omission of the statutory signals is prima
facie negligence. Jurors do not have license to find anything else. Negligence as a matter of law.

Causal connection between negligence and injury: do not have to pay damages for breach of statute
UNLESS it is the cause of the injury. Violation needs to contribute to injury. Contributory negligence –
doctrine of common law if person is injured in part by own negligence the injured party is not entitled to
collect any damages. Can collect if you are negligent, but that negligence doesn’t contribute to injury.

Tedla v. Ellman

Not negligence by law, but rather “rule of the road.” Violation of the law is safer than complying with it

Facts: ∏s were walking down highway, in dark, carrying junk, on opposite side of the road. The Vehicle
and Traffic Law says that “pedestrians must keep to the left of the center line” [walk against traffic]. ∏s
walking on other side of road because Sunday traffic and there were less cars on that side. ∆ hit ∏’s
killing one, injuring the other. Trial court found for ∏, negligence solely due to ∆ (operator of car).
Appeals court affirmed.

Held: Some statutes are only intended to apply in ordinary situations; conduct otherwise prohibited is
allowed in unordinary situations.
Reasoning: The statute in question here is one to “create rules of the road” and is to apply in “ordinary”
situation. When unusual conditions occur strict observance of a statute may defeat the purpose of the rule
and produce catastrophic results. Negligence is failure to exercise care. When statute defines care, and it
is violated, then negligence. BUT, where when statute fixes no definite standard of care [to protect life
and limb] but merely codifies a common law rule (always subject to exceptions and limitations) OR to
promote public convenience and safety, then the statute should not be constructed as intending to wipe
out the limitations and exceptions which attached to common law duty.
Martin: Martin would say that violation of the statute is negligence as a matter of law and is “wholly

Brown v. Shyne

Injury must follow from negligent act.

Facts: ∆ held himself out to be able to diagnose and treat disease. Under the Public Health Law he was
guilty of a misdemeanor, ∆ engaged in the practice of medicine without a license. ∏ became paralyzed
after she had received nine treatments by defendant. Trial court found in favor of the ∏ (lack of license
to practice medicine is some evidence of negligence, may infer negligence). Appeals court reversed and

Held: Unless the ∏ injury was caused by carelessness or lack of skill, the ∆’s failure to obtain a license
was not connected with the injury and the ∆ cannot be held liable. The injury must follow from neglect of
the statute to hold negligence. No evidence of negligence even if violated the statute.

Reasoning: If violation was the proximate cause of the ∏’s injury, then the ∏ may recover upon proof of
violation. Purpose of the statute is to protect public against unfounded assumption of skill by a doctor,
thus for negligence need to prove that injury came from this unfounded assumption of skill. Need logical
connection between the proven neglect of statutory duty and the alleged negligence.

Gorris v. Scott

Harm suffered must be within the risks envisioned by the legislature when drafting the statute.
Facts: the ∏ sheep owner is suing the ∆ ship owner to recover damages for the death of sheep which the
∆ was carrying and were washed overboard. The ∏ argued that the ∆ was negligent because they were
not in compliance with the Contagious Diseases (Animals) Act, 1869 which held you have to divide
animals into pens.
Held: Can’t bring action based on an act that is intended to prevent against harm other than the harm that
is the cause of the action. Damage complained of here is something totally apart from the object of the
Act, and the action is not maintainable. Harm suffered by the ∏ must be within the risks envisioned by
the legislature when it passed the statute.
Reasoning: Purpose of the act is to prevent animals from communicating infection diseases to each other.
If the animals were in pens (in compliance with the act) the sheep would not have died. BUT, purpose of
the act was not to protect against injury sustained by ∏ so can’t recover even though ∆ was negligent and
violated the act.

Trimarco v. Klein

When the customary way of doing things is ignored, it constitutes negligence. The role of custom is the
establishment of a duty and failure to adhere constitutes a breach.
Facts: ∏ is a tenant in an apartment owned by the ∆, was injured when a glass shower door shattered as
he stopped out of the shower. ∏ entered evidence that shatterproof safety glass is customarily used by
landlords. Trial court found for ∏. Appellate division reversed saying ∆ had no duty to replace the glass.
Appeals reversed.
Custom: general practices of a group of people in the same calling or business. Helps to indicate where
the burden falls. Once custom is established a jury must be satisfied with its reasonableness, because it
could be an unreasonable custom.
Held: Enough to go to jury that ∆ is liable – when certain dangers have been removed by a customary
way of doing things safely, this custom may be proved to show that the one whose neglect has fallen
below a certain standard of care. Must bear on reasonableness. When proof of a customary practice is
coupled with a showing that it was ignored and that this departure was a proximate cause of the accident,
it may serve to establish liability.
T. J. Hooper

The ∆ tries to use custom as a shield. We see here that custom is not always a reliable proxy. Custom
may not necessarily establish a duty. T.J. Hooper

Facts: Barges carrying ∏ cargo were lost at sea during a coastal storm. The tug was not equip with a
radio receiver and could not receive reports of the impending storm. It is not the general practice to use
radio receivers. Trial court found in favor of the ∏ (cargo owner). Appeals court affirmed. Admiralty

Held: Even though equipping a tug with a receiver is not a custom of the business, if it contributes to the
tugs unseaworthiness, the tug owner can still be held liable for lost cargo. In most cases reasonable
prudence is common prudence, but a whole calling may have lagged behind in the adoption of reasonable
devices. Courts must set standard of what is required – need to establish cautions even if universal

Helling v. Carey

Facts: ∏ has glaucoma, ∆ gave periodic eye exams but did not administer test that would have revealed
glaucoma/treat it/avoid loss of vision. ∏ was 32 when the condition was diagnosed. Test is not routinely
given to people under the age of 40 because incidents of disease are 1/25000. Trial court found for the ∆,
Appeals court reversed (doctor can be liable) and remanded (on the issue of damages).

Compared Hooper: Opposite to T.J. Hooper where those in industry might have interest in not getting the
radios because of the cost; Dr. always has interest in giving the test: reduces liability, increase profits.

Issues: Generally with medical practice the custom of a medical practice is the standard of care. This
case was not accepted well, legislature adopted statute overturning it. Say this is a unique case – what is
so unique? Now glaucoma tests are given at younger age than at time of Helling.

Rule: generally custom is the standard of care in medical cases, this case is “unique.”

Werling v. Sandy
Wrongful death.

Procedure: ∏ (parents of stillborn child) are suing ∆ (doctor) for wrongful death due to negligence of the
doctor. Trial court dismissed complaint, no action for wrongful death of a fetus. Appeals court reversed
and remanded for a new trial.
Issue: Does action for wrongful death exist when decedent is a still born fetus? Can parents recover for
this when death/injury occurred before birth? Is fetus that dies en vitre sa mere considered a person for
the purpose of the statute involved here? Held: Cause of action may arise under a wrongful death statute
where a viable fetus is still born since a life capable of independent existence has expired. A viable fetus
which is negligently injured en vitre sa mere and subsequently still born may have the basis for a
wrongful death claim.
Reasoning: As long as fetus was viable at the time of its injury. Purpose of wrongful death recovery is
that recovery would have occurred had there not been death, largely remedial. Rights of unborn child
have history in our law. Does not make sense to have birth be the point where determine liability, only a
matter of seconds for a fetus before and after birth. By saying fetus is viable life this furthers the remedial
nature of the wrongful death statute.
Dissent: leaves question too open ended, should have an exact time when fetus becomes viable. Don’t
want to encourage the filing of multifarious actions about when viability occurs.

Fassoulas v. Ramey

Wrongful birth.

Procedure: ∏ (parents of deformed children) are suing the ∆ (doctor) for negligence, “wrongful birth.” ∆
found 100% negligent for first child, 50% negligent for second child (reduced because ∏’s were
comparatively negligent). Appeals Court Reversed? – agree that you can recover for the special
upbringing expenses of the defective child but not for the healthy child.
Facts: ∏ had two children with severe congenital abnormalities (dating from birth). ∏ (husband) had
vasectomy in order to prevent from having more children. ∆ (doctor) negligently informed them he was
sterile. They had two additional children, the first with severer congenital abnormalities, the second with
slight abnormalities which were fixed and birth and now is a normal and healthy child.
Issue: Can a parent recover damages when a doctor’s negligence results in the pregnancy and two
additional children – one who is a “healthy” child and one who has severe congenital abnormalities?
Held: Can recover for “special upbringing expenses” for the child with abnormalities, cannot collect for
the healthy child.
Reasoning: Parents may not recover damages for the rearing of a normal and healthy child (the benefits
of rearing a child outweigh the economic loss). As a matter of law ordinary rearing expenses are not
recoverable for a defective child. An exception exists for “special upbringing expenses.”
Dissent: ∏ have been damaged by the birth of the second “healthy” child as well and should get
damages. The ∆ did not do the ∏’s a favor.

Fletcher v. Rylands

Facts: ∏ damaged by his property being flooded with water which broke out of a reservoir constructed
on the ∆s’ land by the ∆s’ orders and maintained by the ∆s. There had been coal under the ∆’s land that
was worked out and unknown to ∆s when they built the reservoir, water would not have escaped but for
this latent defect. ∆s contractors became aware of the defect in constructing the reservoir. ∏ entitled to

Issue: Duty to keep at peril or use reasonable prudence? ∆ has an absolute duty to keep at own peril.
Reasoning: Here we have conduct that the court concludes was neither negligent NOR an act of God.
Why then should the ∆ be liable? How do we distinguish negligence? Risk. Rule: that the person who
for his own purposes brings on his land and collects and keeps there something likely to do mischief if it
escapes does so at his own peril, and if it escapes he is liable.
Reasoning: Duty to keep it in at his peril, and if not then he is prima facie answerable for all the damage
which is the natural consequence of its escape. Excused if due to ∏’s default or consequence of vis
major, or the act of God, but none of that exists here. Same as person whose grass is eaten by renegade
cattle. Same for beasts, or water, or filth, or stenches. Majority judge in Court of Exchequer said there
must be negligence in the party doing the damage to render him legally responsible – however this case is
distinguishable because in other circumstances the ∏ had taken the risk upon himself. There is no ground
for saying that the ∏ here took upon himself any risk. He neither knew nor had control over the ∆ or
hinder their building what reservoirs they liked.

Rylands v. Fletcher –

Rule: Will always be strictly liable for non-natural use of the land.
Context: Time place was the industrial revolution where England is moving from agrarian to industrial.
Two different approaches to this problem, in Fletcher says liable if it escapes, in Rylands say if it is an
unnatural use. They are saying “mining” was a natural use – i.e. traditional use.

This is case where split away from negligence towards strict liability for “ultra hazardous activity.”

Paradigm case is blasting – party that undertakes blasting strictly liable to any that are injured from that

Simple principles of this case. ∆ can lawfully use close for any purpose for which it might in the ordinary
course of the enjoyment of land be used and if naturally accrued on ∆’s land and then passed on to ∏ then
∏ could not complain. However, if ∆ use for unnatural use and the consequences of them doing so the
water escapes and injures the ∏ then the ∆ were doing it at their own peril and if evil arose then for the
consequences of that the ∆ would be liable. Judgment for the Court of Exchequer affirmed.

Turner v. Big Lake Oil Co.

Procedure: ∏ (grassland owners) are suing ∆ (oil company, ponds) for neglect and permitting the levees
and dams to break and overflow. Special issue to the jury – answer the ∆ did permit the salt water to
overflow from salt ponds but quitted the ∆ in error of negligence in the premises. ∏ appeals. Court of
Appeals says that negligence is a prerequisite to recover and affirmed. Facts: ∆ operate large oil wells,
and constructed large artificial earth ponds to run polluted waters from the wells. On the occasion
complained of the water escaped from the ponds, passed over the grass lands of the ∏ and injured their

Issue: Can the ∆, w/o negligence on their part, be held liable in damages for the destruction or injury to
property by the escape of salt water from ponds constructed and used by them in operation of their oil
wells? Must the question be predicated upon negligence?

Reasoning: Negligence is a prerequisite to recovery. Can be distinguished from Rylands because storage
of water in England is not w/in the contemplation of the parties versus as with land in Texas where it is
w/in the contemplation of the parties. Texas very different conditions than England, there are also no oil
wells. The construction of basins or ponds to hold salt water is a necessary part of the oil business.
Rule of law: Needs to be in contemplation of the parties.

Context: Really just a conflict between the cattle ranchers and the oil industry. Oil industry wins, one of
Texas major industries. When looking at strict liability it is often a question about who is going to bear
the costs: industry or society.

Seigler v. Kuhlman

Procedure: ∏ (decedents estate) is suing ∆ (driver, owner and manufacture of the truck and trailer) to
recover on the basis of negligence and strict liability. Trial court refused request for jury instructions,
jury return verdict for ∆. ∏ appealed. Intermediate court of appeals affirmed. Held: Reversed and
remanded. Strict liability high degree of risk of harm and injury cannot be laminated by the exercise of
reasonable care.

Facts: Young girl dies in gasoline explosion when car entered pool of gasoline. The ∆ was driving a
gasoline truck that was fully loaded and the trailer came loose from the truck, moments later the ∏ drove
into the gasoline, it ignited, and perished in the flames.

Reasoning: Res ipsa loquitur should have been given to the jury, the inference of negligence could have
been drawn from the event. Tanks on trucks don’t normally detach absence negligence.
Re: strict liability same basic principles as Fletcher – no more unusual but more dangerous than
collecting water. Gas as cargo is uniquely hazardous characteristics. Most important ingredients of proof
will be lost in explosion. Hazards to 3rd persons are likely to be great. Rule of strict liability when
applied to abnormally dangerous activity is standard in Restatement (2nd) of Torts § 519.

Concurring: Another reason not mentioned by the majority is that the commercial transporter can spread
the loss among his customers – who benefit from this extra hazardous use of the highways. There was no
outside force that caused the tractor to be detached. Strict liability should be the standard.

Foster v. Preston Mill Co.

Facts: ∏ own a mink ranch, during whelping seasons mink get excitable. ∆ blasting nearby to clear a
rode (2 ¼ miles away), the vibrations excited the mother mink who began killing their young. ∏ tell ∆, ∆
reduce strength of dynamite charges, but continue blasting.
Procedure: ∏ (mink owner) is suing ∆ (blaster) for damages when mother mink killed her kittens. Look
to recover damages only after ∆ received notice. Trial court w/o a jury found for the ∏, stating that the ∆
received notice of the effect of the blasting operations and was thus absolutely liable for all damages.
Issue: Is this a sustainable theory of absolute liability? Is the risk that any unusual vibration or noise may
cause wild animals, which are being raised for commercial purposes, to kill their young, one of the things
which make the activity of blasting ultra hazardous? Held: no.
Reasoning: Yes, absolute liability applies to blasting as an ultra hazardous activity because extraordinary
risk. However, the thing that makes blasting ultra hazardous is the risk that property or persons may be
damages or injured by coming into contact with flying debris. The responsibility is on the nervous
disposition of the mink, not on the relatively moderate vibration that is a usual incident of ordinary life in
the community.
Rule of law: Injury needs to be the same kind of risk of injury which makes the activity ultra hazardous
such that a ∆ will be held strictly liable.
Context: Again conflict between two industries: forestry and mink raising.

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