Table of Contents

Index...............................................................................................................................10
CHAPTER I. Development Of Liability........................................................................16
Anonymous...................................................................................................................17
Weaver v. Ward............................................................................................................18
Brown v. Kendall..........................................................................................................19
Cohen v. Petty...............................................................................................................21
Spano v. Perini Corp.....................................................................................................22
CHAPTER II. Intentional Interference With Person Or Property..................................24
Garratt v. Dailey............................................................................................................25
Spivey v. Battaglia........................................................................................................27
Ranson v. Kitner...........................................................................................................28
McGuire v. Almy..........................................................................................................29
Talmage v. Smith..........................................................................................................30
Cole v. Turner...............................................................................................................31
Wallace v. Rosen..........................................................................................................32
Fisher v. Carrousel Motor Hotel, Inc............................................................................34
I de S et ux. v. W de S...................................................................................................35
Western Union Telegraph Co. v. Hill...........................................................................36
Big Town Nursing Home, Inc. v. Newman..................................................................38
Parvi v. City of Kingston..............................................................................................39
Hardy v. LaBelle's Distributing Co...............................................................................40
Enright v. Groves..........................................................................................................41
Whittaker v. Sandford...................................................................................................42
State Rubbish Collectors Ass'n v. Siliznoff..................................................................43
Slocum v. Food Fair Stores of Florida..........................................................................44
Harris v. Jones...............................................................................................................45
Taylor v. Vallelunga.....................................................................................................46
Dougherty v. Stepp.......................................................................................................47
Bradley v. American Smelting and Refining Co..........................................................48
Herrin v. Sutherland......................................................................................................50
Rogers v. Board of Road Com'rs for Kent County.......................................................51
Glidden v. Szybiak........................................................................................................52
Compuserve, Inc. v. Cyber Promotions, Inc.................................................................53
Pearson v. Dodd............................................................................................................54
CHAPTER III. Privileges...............................................................................................55
O'Brien v. Cunard S.S. Co............................................................................................56
Hackbart v. Cincinnati Bengals, Inc.............................................................................57
Mohr v. Williams..........................................................................................................58
De May v. Roberts........................................................................................................59
Katko v. Briney.............................................................................................................60
Hodgeden v. Hubbard...................................................................................................61
Bonkowski v. Arlan's Department Store.......................................................................62
Surocco v. Geary...........................................................................................................63
 Vincent v. Lake Erie Transp. Co..................................................................................64
Sindle v. New York Transit Authority..........................................................................65
CHAPTER IV. Negligence.............................................................................................66
Lubitz v. Wells..............................................................................................................67
Blyth v. Birmingham Waterworks Co..........................................................................68
Gulf Refining Co. v. Williams......................................................................................69
Chicago B. & Q.R. Co. v. Krayenbuhl.........................................................................70
Davison v. Snohomish County.....................................................................................71
United States v. Carroll Towing Co..............................................................................72
Vaughan v. Menlove.....................................................................................................73
Delair v. McAdoo.........................................................................................................74
Trimarco v. Klein..........................................................................................................75
Cordas v. Peerless Transportation Co...........................................................................76
Roberts v. State of Louisiana........................................................................................77
Robinson v. Lindsay.....................................................................................................78
Breunig v. American Family Ins. Co............................................................................79
Heath v. Swift Wings, Inc.............................................................................................80
Hodges v. Carter...........................................................................................................81
Boyce v. Brown............................................................................................................82
Morrison v. MacNamara...............................................................................................83
Scott v. Bradford...........................................................................................................84
Moore v. The Regents of the University of California.................................................85
Pokora v. Wabash Ry. Co.............................................................................................86
Osborne v. McMasters..................................................................................................87
Stachniewicz v. Mar-Cam Corp....................................................................................88
Ney v. Yellow Cab Co..................................................................................................89
Perry v. S.N. and S.N....................................................................................................90
Martin v. Herzog...........................................................................................................91
Zeni v. Anderson...........................................................................................................92
Goddard v. Boston & Maine R.R. Co...........................................................................93
Anjou v. Boston Elevated Railway Co.........................................................................94
Joye v. Great Atlantic and Pacific Tea Co....................................................................95
Ortega v. Kmart Corp...................................................................................................96
Jasko v. F.W. Woolworth Co........................................................................................98
H.E. Butt Groc. Co. v. Resendez..................................................................................99
Byrne v. Boadle..........................................................................................................100
McDougald v. Perry....................................................................................................101
Larson v. St. Francis Hotel.........................................................................................102
Ybarra v. Spangard.....................................................................................................103
Sullivan v. Crabtree....................................................................................................104
CHAPTER V. Causation In Fact..................................................................................105
Perkins v. Texas and New Orleans Railroad Co.........................................................106
Reynolds v. Texas & Pac. Ry. Co...............................................................................107
Gentry v. Douglas Hereford Ranch, Inc.....................................................................108
Kramer Service, Inc. v. Wilkins..................................................................................109
Herskovits v. Group Health Cooperative of Puget Sound..........................................110
 Daubert v. Merrell Dow Pharmaceuticals, Inc............................................................111
Hill v. Edmonds..........................................................................................................113
Anderson v. Minneapolis, St. P. & S.St. M. R.R. Co.................................................114
Summers v. Tice.........................................................................................................115
Sindell v. Abbott Laboratories....................................................................................116
CHAPTER VI. Proximate Or Legal Cause...................................................................117
Atlantic Coast Line R. CO. v. Daniels........................................................................118
Ryan v. New York Central R.R. Co............................................................................119
Bartolone v. Jeckovich................................................................................................120
In re Arbitration Between Polemis and Furness, Withy & Co., Ltd...........................121
Overseas Tankship v. Morts Dock & Engineering Co., Ltd. "Wagon Mound No. 1"122
Overseas Tankship Ltd. v. Miller Steamship Co. "Wagon Mound No. 2".................123
Palsgraph v. Long Island R.R. Co...............................................................................124
Yun v. Ford Motor Co................................................................................................126
Derdiarian v. Felix Contracting Corp.........................................................................128
Watson v. Kentucky & Indiana Bridge & R.R. Co.....................................................129
Fuller v. Preis..............................................................................................................130
McCoy v. American Suzuki Motor Corp....................................................................131
Kelly v. Gwinnell........................................................................................................133
Enright v. Eli Lilly & Co............................................................................................135
CHAPTER VII. Joint Tortfeasors.................................................................................137
Bierczynski v. Rogers.................................................................................................138
Coney v. J.L.G. Industries, Inc...................................................................................139
Bartlett v. New Mexico Welding Supply, Inc.............................................................141
Bundt v. Embro...........................................................................................................143
Cox v. Pearl Investment Co........................................................................................144
Elbaor v. Smith...........................................................................................................145
Knell v. Feltman..........................................................................................................147
Yellow Cab Co. of D.C., Inc. v. Dreslin.....................................................................149
Slocum v. Donahue.....................................................................................................150
Bruckman v. Pena.......................................................................................................152
Michie v. Great Lakes Steel Division, Nat'l Steel Corp.............................................153
Dillon v. Twin State Gas & Electric Co.....................................................................155
CHAPTER VIII. Duty Of Care.....................................................................................156
Winterbottom v. Wright..............................................................................................157
MacPherson v. Buick Motor Co.................................................................................158
H.R. Moch Co. v. Rensselaer Water Co.....................................................................159
Clagett v. Dacy............................................................................................................160
Hegel v. Langsam.......................................................................................................162
L.S. Ayres & Co. v. Hicks..........................................................................................163
J.S. and M.S. v. R.T.H................................................................................................165
Tarasoff v. Regents of University of California.........................................................167
State of Louisiana ex rel. Guste v. M/V Testbank......................................................169
Daley v. LaCroix.........................................................................................................171
Thing v. La Chusa.......................................................................................................173
Endresz v. Friedberg...................................................................................................175
 Procanik by Procanik v. Cillo.....................................................................................177
CHAPTER IX. Owners And Occupiers Of Land.........................................................179
Taylor v. Olsen............................................................................................................180
Salevan v. Wilmington Park, Inc................................................................................181
Sheehan v. St. Paul & Duluth Ry. Co.........................................................................182
Barmore v. Elmore......................................................................................................183
Campbell v. Weathers.................................................................................................185
Whelan v. Van Natta...................................................................................................186
Rowland v. Christian..................................................................................................187
Borders v. Roseberry..................................................................................................189
Pagelsdorf v. Safeco Ins. Co. of America...................................................................191
Kline v. 1500 Massachusetts Ave. Apartment Corp...................................................193
CHAPTER X. Damages................................................................................................195
Anderson v. Sears, Roebuck & Co.............................................................................196
Richardson v. Chapman..............................................................................................198
Montgomery Ward & Co., Inc. v. Anderson..............................................................200
Zimmerman v. Ausland..............................................................................................202
Cheatham v. Pohle......................................................................................................203
State Farm Mutual Automobile Insurance Co. v. Campbell.......................................205
CHAPTER XI. Wrongful Death And Survival.............................................................208
Moragne v. States Marine Lines, Inc..........................................................................209
Selders v. Armentrout.................................................................................................210
Murphy v. Martin Oil Co............................................................................................212
CHAPTER XII. Defenses.............................................................................................214
Butterfield v. Forrester................................................................................................215
Davies v. Mann...........................................................................................................216
McIntyre v. Balentine.................................................................................................217
Seigneur v. National Fitness Institute, Inc..................................................................219
Rush v. Commercial Realty Co..................................................................................222
Blackburn v. Dorta......................................................................................................223
Teeters v. Currey.........................................................................................................225
Freehe v. Freehe..........................................................................................................227
Renko v. McLean........................................................................................................229
Abernathy v. Sisters of St. Mary's..............................................................................231
Ayala v. Philadelphia Board of Public Education......................................................233
Riss v. New York........................................................................................................234
DeLong v. Erie County...............................................................................................235
Deuser v. Vecera.........................................................................................................237
CHAPTER XIII. Vicarious Liability............................................................................239
Bussard v. Minimed, Inc.............................................................................................240
O'Shea v. Welch..........................................................................................................242
Murrell v. Goertz........................................................................................................244
Maloney v. Rath..........................................................................................................245
Popejoy v. Steinle.......................................................................................................246
Shuck v. Means...........................................................................................................248
Smalich v. Westfall.....................................................................................................249
CHAPTER XIV. Strict Liability...................................................................................250
Rylands v. Fletcher.....................................................................................................251
Miller v. Civil Constructors, Inc.................................................................................252
Indiana Harbor Belt R.R. Co. v. American Cyanamid Co..........................................254
Foster v. Preston Mill Co............................................................................................256
Golden v. Amory........................................................................................................257
Sandy v. Bushey..........................................................................................................258
CHAPTER XV. Products Liability...............................................................................259
MacPherson v. Buick Motor Co.................................................................................260
Baxter v. Ford Motor Co.............................................................................................261
Henningsen v. Bloomfield Motors, Inc.......................................................................263
Greenman v. Yuba Power Products, Inc.....................................................................265
Rix v. General Motors Corp........................................................................................267
Prentis v. Yale Mfg. Co..............................................................................................268
O'Brien v. Muskin Corp..............................................................................................270
Anderson v. Owens-Corning Fiberglass Corp............................................................272
Friedman v. General Motors Corp..............................................................................273
Daly v. General Motors Corp......................................................................................275
Ford Motor Co. v. Matthews.......................................................................................277
Medtronic, Inc. v. Lohr...............................................................................................278
Peterson v. Lou Bachrodt Chevrolet Co.....................................................................280
Hector v. Cedars-Sinai Medical Ctr............................................................................281
CHAPTER XVI. Nuisance...........................................................................................282
Philadelphia Electric Company v. Hercules, Inc........................................................283
Morgan v. High Penn Oil Co......................................................................................285
Carpenter v. The Double R Cattle Company, Inc.......................................................287
Winget v. Winn-Dixie Stores, Inc...............................................................................289
Boomer v. Atlantic Cement Co., Inc...........................................................................291
Spur Industries, Inc. v. Del E. Webb Development Co..............................................293
CHAPTER XVII. Defamation......................................................................................295
Belli v. Orlando Daily Newspapers, Inc.....................................................................296
Grant v. Reader's Digest Ass'n....................................................................................298
Kilian v. Doubleday & Co., Inc..................................................................................299
Neiman-Marcus v. Lait...............................................................................................300
Bindrim v. Mitchell.....................................................................................................301
Shor v. Billingsley......................................................................................................303
Terwilliger v. Wands..................................................................................................304
Economopoulos v. A.G. Pollard Co............................................................................305
Carafano v. Metrosplash.Com, Inc.............................................................................306
Ogden v. Association of the United States Army.......................................................309
New York Times v. Sullivan......................................................................................310
St. Amant v. Thompson..............................................................................................312
Harte-Hanks Communications, Inc. v. Connaughton.................................................314
Gertz v. Robert Welsh, Inc.........................................................................................316
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc...................................................318
Philadelphia Newspapers, Inc. v. Hepps.....................................................................319
 Milkovich v. Lorain Journal Co..................................................................................320
Sindorf v. Jacron Sales Co., Inc..................................................................................321
CHAPTER XVIII. Privacy...........................................................................................322
Joe Dickerson & Associates, LLC v. Dittmar.............................................................323
Sanders v. American Broadcasting Companies, Inc., et al.........................................326
Hall v. Post..................................................................................................................328
Cantrell v. Forest City Publishing Co.........................................................................330
Hustler Magazine v. Falwell.......................................................................................331
CHAPTER XIX. Civil Rights.......................................................................................332
Ashby v. White...........................................................................................................333
Camp v. Gregory.........................................................................................................334
Memphis Community School Dist. v. Stachura..........................................................335
CHAPTER XX. Misuse Of Legal Procedure...............................................................336
Texas Skaggs, Inc. v. Graves......................................................................................337
Friedman v. Dozorc....................................................................................................339
Grainger v. Hill...........................................................................................................340
CHAPTER XXI. Misrepresentation.............................................................................341
Swinton v. Whitinsville Savings Bank.......................................................................342
Griffith v. Byers Constr. Co. of Kansas, Inc...............................................................343
Derry v. Peek..............................................................................................................344
International Products Co. v. Erie R.R. Co.................................................................345
Winter v. G.P. Putnam's Sons.....................................................................................346
Hanberry v. Hearst Corp.............................................................................................347
Richard v. A. Waldman and Sons, Inc........................................................................348
Credit Alliance Corporation v. Arthur Andersen & Co..............................................349
Citizens State Bank v. Timm, Schmidt & Co.............................................................351
Ultramares Corporation v. Touche.............................................................................352
Williams v. Rank & Son Buick, Inc...........................................................................353
Saxby v. Southern Land Co........................................................................................354
Vulcan Metals Co. v. Simmons Mfg. Co....................................................................355
Sorenson v. Gardner....................................................................................................356
McElrath v. Electric Investment Co............................................................................358
Burgdorfer v.Thielemann............................................................................................359
Hinkle v. Rockville Motor Co., Inc............................................................................361
CHAPTER XXII. Interference With Advantageous Relationships..............................363
Ratcliffe v. Evans........................................................................................................364
Horning v. Hardy........................................................................................................365
Testing Systems, Inc. v. Magnaflux Corp...................................................................367
Lumley v. Gye............................................................................................................369
Bacon v. St. Paul Union Stockyards Co.....................................................................370
Della Penna v. Toyota Motor Sales, U.S.A., Inc........................................................371
Adler, Barish, Daniels, Levin and Creskoff v. Epstein...............................................373
Brimelow v. Casson....................................................................................................375
Harmon v. Harmon.....................................................................................................376
Neibuhr v. Gage..........................................................................................................377
Freeman & Mills, Inc. v. Belcher Oil Company.........................................................378
 Nash v. Baker..............................................................................................................379
CHAPTER XXIII. Torts In The Age Of Statutes.........................................................380
Burnette v. Wahl.........................................................................................................381
Nearing v. Weaver......................................................................................................383
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics...................385
Alexander v. Sandoval................................................................................................387
De Falco v. Bernas......................................................................................................389
Pulliam v. Coastal Emergency Svcs...........................................................................392
CHAPTER XXIV. Compensation Systems as Substitutes for Tort Law.....................393
Blankenship v. Cincinnati Milacron Chemicals, Inc..................................................394
 Index

Abernathy v. Sisters of St. Mary's..................................................................................231

Adler, Barish, Daniels, Levin and Creskoff v. Epstein...................................................373
Alexander v. Sandoval………………………………………………………………….387
Anderson v. Minneapolis, St. P. & S.St. M. R.R. Co.....................................................114
Anderson v. Owens-Corning Fiberglass Corp................................................................272
Anderson v. Sears, Roebuck & Co.................................................................................196
Anjou v. Boston Elevated Railway Co.............................................................................94
Anonymous………………………………………………………………………………17
Ashby v. White...............................................................................................................333
Atlantic Coast Line R. CO. v. Daniels............................................................................118
Ayala v. Philadelphia Board of Public Education..........................................................233
Bacon v. St. Paul Union Stockyards Co.........................................................................370
Barmore v. Elmore..........................................................................................................183
Bartlett v. New Mexico Welding Supply, Inc.................................................................141
Bartolone v. Jeckovich....................................................................................................120
Baxter v. Ford Motor Co.................................................................................................261
Belli v. Orlando Daily Newspapers, Inc.........................................................................296
Bierczynski v. Rogers.....................................................................................................138
Big Town Nursing Home, Inc. v. Newman......................................................................38
Bindrim v. Mitchell.........................................................................................................301
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.......................385
Blackburn v. Dorta..........................................................................................................223
Blankenship v. Cincinnati Milacron Chemicals, Inc......................................................394
Blyth v. Birmingham Waterworks Co..............................................................................68
Bonkowski v. Arlan's Department Store...........................................................................62
Boomer v. Atlantic Cement Co., Inc...............................................................................291
Borders v. Roseberry......................................................................................................189
Boyce v. Brown................................................................................................................82
Bradley v. American Smelting and Refining Co..............................................................48
Breunig v. American Family Ins. Co................................................................................79
Brimelow v. Casson........................................................................................................375
Brown v. Kendall..............................................................................................................19
Bruckman v. Pena...........................................................................................................152
Bundt v. Embro...............................................................................................................143
Burgdorfer v.Thielemann................................................................................................359
Burnette v. Wahl.............................................................................................................381
Bussard v. Minimed, Inc………………………………………………………………..240
Butterfield v. Forrester....................................................................................................215
Byrne v. Boadle..............................................................................................................100
Camp v. Gregory.............................................................................................................334
Campbell v. Weathers.....................................................................................................185
Cantrell v. Forest City Publishing Co.............................................................................330
Carafano v. MetroSplash.com, Inc……………………………………………………..306
Carpenter v. The Double R Cattle Company, Inc...........................................................287
Cheatham v. Pohle…………………………………………………………………...…203
Chicago B. & Q.R. Co. v. Krayenbuhl.............................................................................70
Citizens State Bank v. Timm, Schmidt & Co.................................................................351
Clagett v. Dacy................................................................................................................160
Cohen v. Petty...................................................................................................................21
Cole v. Turner...................................................................................................................31
Compuserve, Inc. v. Cyber Promotions, Inc.....................................................................53
Coney v. J.L.G. Industries, Inc.......................................................................................139
Cordas v. Peerless Transportation Co...............................................................................76
Cox v. Pearl Investment Co............................................................................................144
Credit Alliance Corporation v. Arthur Andersen & Co..................................................349
Daley v. LaCroix.............................................................................................................171
Daly v. General Motors Corp..........................................................................................275
Daubert v. Merrell Dow Pharmaceuticals, Inc................................................................111
Davies v. Mann...............................................................................................................216
Davison v. Snohomish County.........................................................................................71
De Falco v. Bernas……………………………………………………………………...389
De May v. Roberts............................................................................................................59
Delair v. McAdoo.............................................................................................................74
Della Penna v. Toyota Motor Sales, U.S.A., Inc............................................................371
DeLong v. Erie County...................................................................................................235
Derdiarian v. Felix Contracting Corp.............................................................................128
Derry v. Peek..................................................................................................................344
Deuser v. Vecera.............................................................................................................237
Dillon v. Twin State Gas & Electric Co.........................................................................155
Dougherty v. Stepp...........................................................................................................47
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.......................................................318
Economopoulos v. A.G. Pollard Co................................................................................305
Elbaor v. Smith...............................................................................................................145
Endresz v. Friedberg.......................................................................................................175
Enright v. Eli Lilly & Co................................................................................................135
Enright v. Groves..............................................................................................................41
Fisher v. Carrousel Motor Hotel, Inc................................................................................34
Ford Motor Co. v. Matthews...........................................................................................277
Foster v. Preston Mill Co................................................................................................256
Freehe v. Freehe..............................................................................................................227
Freeman & Mills, Inc. v. Belcher Oil Company.............................................................378
Friedman v. Dozorc........................................................................................................339
Friedman v. General Motors Corp..................................................................................273
Fuller v. Preis..................................................................................................................130
Garratt v. Dailey................................................................................................................25
Gentry v. Douglas Hereford Ranch, Inc.........................................................................108
Gertz v. Robert Welsh, Inc.............................................................................................316
Glidden v. Szybiak............................................................................................................52
Goddard v. Boston M.R. Co……………………………………………………………..93
Golden v. Amory............................................................................................................257
Grainger v. Hill...............................................................................................................340
Grant v. Reader's Digest Ass'n........................................................................................298
Greenman v. Yuba Power Products, Inc.........................................................................265
Griffith v. Byers Constr. Co. of Kansas, Inc...................................................................343
Gulf Refining Co. v. Williams..........................................................................................69
H.R. Moch Co. v. Rensselaer Water Co.........................................................................159
Hackbart v. Cincinnati Bengals, Inc.................................................................................57
Hall v. Post…………………………………………………………………………...…328
Hanberry v. Hearst Corp.................................................................................................347
Hardy v. LaBelle's Distributing Co...................................................................................40
Harmon v. Harmon.........................................................................................................376
Harris v. Jones...................................................................................................................45
Harte-Hanks Communications, Inc. v. Connaughton……………………………..……314
H. E. Butt Grocery Co. v. Resendez……………………………………………………..99
Heath v. Swift Wings, Inc.................................................................................................80
Hector v. Cedars-Sinai Medical Ctr................................................................................281
Hegel v. Langsam...........................................................................................................162
Henningsen v. Bloomfield Motors, Inc...........................................................................263
Herrin v. Sutherland..........................................................................................................50
Herskovits v. Group Health Cooperative of Puget Sound..............................................110
Hill v. Edmonds..............................................................................................................113
Hinkle v. Rockville Motor Co., Inc................................................................................361
Hodgeden v. Hubbard.......................................................................................................61
Hodges v. Carter...............................................................................................................81
Horning v. Hardy............................................................................................................365
Hustler Magazine v. Falwell...........................................................................................331
I de S et ux. v. W de S.......................................................................................................35
In re Arbitration Between Polemis and Furness, Withy & Co., Ltd...............................121
Indiana Harbor Belt R.R. Co. v. American Cyanamid Co..............................................254
International Products Co. v. Erie R.R. Co.....................................................................345
J.S. and M.S. v. R.T.H....................................................................................................165
Jasko v. F.W. Woolworth Co............................................................................................98
Joe Dickerson & Associates, LLC v. Dittmar…………………………………….…….323
Joye v. Great Atlantic and Pacific Tea Co........................................................................95
Katko v. Briney.................................................................................................................60
Kelly v. Gwinnell............................................................................................................133
Kilian v. Doubleday & Co., Inc......................................................................................299
Kline v. 1500 Massachusetts Ave. Apartment Corp.......................................................193
Knell v. Feltman..............................................................................................................147
Kramer Service, Inc. v. Wilkins......................................................................................109
L.S. Ayres & Co. v. Hicks..............................................................................................163
Larson v. St. Francis Hotel.............................................................................................102
Lubitz v. Wells..................................................................................................................67
Lumley v. Gye................................................................................................................369
MacPherson v. Buick Motor Co.............................................................................158, 260
Maloney v. Rath..............................................................................................................245
Martin v. Herzog...............................................................................................................91
McCoy v. American Suzuki Motor Corp........................................................................131
McDougald v. Perry........................................................................................................101
McElrath v. Electric Investment Co................................................................................358
McGuire v. Almy..............................................................................................................29
McIntyre v. Balentine.....................................................................................................217
Medtronic, Inc. v. Lohr...................................................................................................278
Memphis Community School Dist. v. Stachura..............................................................335
Michie v. Great Lakes Steel Division, Nat'l Steel Corp.................................................153
Milkovich v. Lorain Journal Co......................................................................................320
Miller v. Civil Constructors. Inc………………………………………………………..252
Mohr v. Williams..............................................................................................................58
Montgomery Ward & Co., Inc. v. Anderson..................................................................200
Moore v. The Regents of the University of California.....................................................85
Moragne v. States Marine Lines, Inc..............................................................................209
Morgan v. High Penn Oil Co..........................................................................................285
Morrison v. MacNamara...................................................................................................83
Murphy v. Martin Oil Co................................................................................................212
Murrell v. Goertz............................................................................................................244
Nash v. Baker..................................................................................................................379
Nearing v. Weaver..........................................................................................................383
Neibuhr v. Gage..............................................................................................................377
Neiman-Marcus v. Lait...................................................................................................300
New York Times v. Sullivan..........................................................................................310
Ney v. Yellow Cab Co......................................................................................................89
O'Brien v. Cunard S.S. Co................................................................................................56
O'Brien v. Muskin Corp..................................................................................................270
Ogden v. Association of the United States Army...........................................................309
Ortega v. Kmart Corp……………………………………………………………………96
Osborne v. McMasters......................................................................................................87
O’Shea v. Welch……………………………………………………………………..…242
Overseas Tankship Ltd. V. Miller Steamship Co...........................................................123
Overseas Tankship v. Morts Dock & Engineering Co., Ltd...........................................122
Pagelsdorf v. Safeco Ins. Co. of America.......................................................................191
Palsgraph v. Long Island R.R. Co...................................................................................124
Parvi v. City of Kingston..................................................................................................39
Pearson v. Dodd................................................................................................................54
Perkins v. Texas and New Orleans Railroad Co.............................................................106
Perry v. S.N. and S.N........................................................................................................90
Peterson v. Lou Bachrodt Chevrolet Co.........................................................................280
Philadelphia Electric Company v. Hercules, Inc............................................................283
Philadelphia Newspapers, Inc. v. Hepps.........................................................................319
Pokora v. Wabash Ry. CO................................................................................................86
Popejoy v. Steinle...........................................................................................................246
Prentis v. Yale Mfg. Co..................................................................................................268
Procanik by Procanik v. Cillo.........................................................................................177
Pulliam v. Coastal Emergency Svcs...............................................................................392
Ranson v. Kitner...............................................................................................................28
Ratcliffe v. Evans............................................................................................................364
Renko v. McLean............................................................................................................229
Reynolds v. Texas & Pac. Ry. Co...................................................................................107
Richard v. A. Waldman and Sons, Inc............................................................................348
Richardson v. Chapman..................................................................................................198
Riss v. New York............................................................................................................234
Rix v. General Motors Corp............................................................................................267
Roberts v. State of Louisiana............................................................................................77
Robinson v. Lindsay.........................................................................................................78
Rogers v. Board of Road Com'rs for Kent County...........................................................51
Rowland v. Christian......................................................................................................187
Rush v. Commercial Realty Co......................................................................................222
Ryan v. New York Central R.R. Co................................................................................119
Rylans v. Fletcher...........................................................................................................251
Salevan v. Wilmington Park, Inc....................................................................................181
Sanders v. American Broadcasting Companies, Inc……………………………………326
Sandy v. Bushey..............................................................................................................258
Saxby v. Southern Land Co............................................................................................354
Scott v. Bradford...............................................................................................................84
Seigneur v. National Fitness Instiute Inc……………………………………………….219
Selders v. Armentrout.....................................................................................................210
Sheehan v. St. Paul & Duluth Ry. Co.............................................................................182
Shor v. Billingsley..........................................................................................................303
Shuck v. Means...............................................................................................................248
Sindell v. Abbott Laboratories........................................................................................116
Sindle v. New York Transit Authority..............................................................................65
Sindorf v. Jacron Sales Co., Inc......................................................................................321
Slocum v. Donahue.........................................................................................................150
Slocum v. Food Fair Stores of Florida..............................................................................44
Smalich v. Westfall.........................................................................................................249
Sorenson v. Gardner........................................................................................................356
Spano v. Perini Corp.........................................................................................................22
Spivey v. Battaglia............................................................................................................27
Spur Industries, Inc. v. Del E. Webb Development Co..................................................293
St. Amant v. Thompson..................................................................................................312
Stachniewicz v. Mar-Cam Corp........................................................................................88
State Farm Mut. Auto Ins. Co. v. Campbell…………………………………………....205
State of Louisiana ex rel. Guste v. M/V Testbank..........................................................169
State Rubbish Collectors Ass'n v. Siliznoff......................................................................43
Sullivan v. Crabtree........................................................................................................104
Summers v. Tice.............................................................................................................115
Surocco v. Geary...............................................................................................................63
Swinton v. Whitinsville Savings Bank...........................................................................342
Talmage v. Smith..............................................................................................................30
Tarasoff v. Regents of University of California.............................................................167
Taylor v. Olsen................................................................................................................180
Taylor v. Vallelunga.........................................................................................................46
Teeters v. Currey.............................................................................................................225
Terwilliger v. Wands......................................................................................................304
Testing Systems, Inc. v. Magnaflux Corp.......................................................................367
Texas Skaggs, Inc. v. Graves..........................................................................................337
Thing v. La Chusa...........................................................................................................173
Trimarco v. Klein..............................................................................................................75
Ultramares Corporation v. Touche.................................................................................352
United States v. Carroll Towing Co..................................................................................72
Vaughan v. Menlove.........................................................................................................73
Vincent v. Lake Erie Transp. Co......................................................................................64
Vulcan Metals Co. v. Simmons Mfg. Co........................................................................355
Wallace v. Rosen……………………………………………………………………...…32
Watson v. Kentucky & Indiana Bridge & R.R. Co.........................................................129
Weaver v. Ward................................................................................................................18
Western Union Telegraph Co. v. Hill...............................................................................36
Whelan v. Van Natta.......................................................................................................186
Whittaker v. Sandford.......................................................................................................42
Williams v. Rank & Son Buick, Inc...............................................................................353
Winget v. Winn-Dixie Stores, Inc...................................................................................289
Winter v. G.P. Putnam's Sons.........................................................................................346
Winterbottom v. Wright..................................................................................................157
Ybarra v. Spangard.........................................................................................................103
Yellow Cab Co. of D.C., Inc. v. Dreslin.........................................................................149
Yun v. Ford Motor Co....................................................................................................126
Zeni v. Anderson...............................................................................................................92
Zimmerman v. Ausland..................................................................................................202
 CHAPTER I.
Development Of
Liability
16 Anonymous
Anonymous

Citation. King's Bench 1466

Brief Fact Summary. None.

Synopsis of Rule of Law. None.

Facts. None.

Issue. None.

Held. The judge observed that an individual must go about his/her business in such a way
that "by his deed no injury or damage is inflicted upon others." Accordingly, if an
individual is building a home, and a piece of wood falls on the individual's neighbor's
home, the neighbor has a cause of action, even though the house was lawfully being built
and the builder did not intend for the damage to occur. Additionally, if somebody defends
themselves when another party assaults them, and in the course of this defense a third
party is injured, that third party would have a cause of action, even though the injury was
not intentional and was in the course of defending oneself.

Discussion. This case offers a very early description of a duty and a breach of duty.
17 Weaver v. Ward
Weaver v. Ward

Citation. Hobart 134, 80 Eng. Rep. 284 (K.B. 1616).

Brief Fact Summary. Two members of a military unit were involved in a drill. While
discharging his weapon during the drill, Defendant accidentally injured Plaintiff. Plaintiff
brought suit for assault and battery.

Synopsis of Rule of Law. When injury results from one's actions, he will be held liable
for that injury unless he can prove no fault whatsoever in the matter.

Facts. In the course of a military skirmishing drill, Defendant discharged his weapon.
Although Defendant had no intention that it did so, his weapon caused injury to Plaintiff.
Plaintiff brought suit against Defendant. Defendant argued that he was not liable for the
injury because it was unintentional and was not his fault. Plaintiff demurred and was
awarded damages.

Issue. Was Plaintiff properly awarded damages despite Defendant's argument that the
injury was inflicted by accident?

Held. Yes. The Court affirmed the award, finding Defendant had failed to prove he was
totally blameless.

• One may escape liability for an injury he has inflicted when he was
utterly faultless in inflicting the injury, but it is his burden to prove his
total lack of fault.

Discussion. This case shows the beginnings of possible defenses in the tort system. This
marks a progression from Anonymous [Y.B. Edw. IV, folio 7, placitum 18 (K.B. 1466).],
in which a more absolute rule was stated. It is important to note, however, that it is the
Defendant's burden to plead and prove this defense; one the court found he failed to
carry.
18 Brown v. Kendall
Brown v. Kendall

Citation. 60 Mass. (6 Cush.) 292 (Mass. 1850).

Brief Fact Summary. Two dogs began fighting and their owners attempted to separate
them. In an effort to do so, Defendant beat the dogs with a stick and accidentally injured
the Plaintiff in the process. Plaintiff brought suit against the Defendant for assault and
battery.

Synopsis of Rule of Law. When a Defendant unintentionally injures another while

undertaking a lawful act, the Plaintiff must prove that the Defendant acted without due
care as adapted to the exigencies of the circumstances.

Facts. Defendant accidentally injured Plaintiff while trying to separate two fighting dogs.
At trial for Plaintiff's action for assault and battery, the Court instructed the jury that if
beating the dogs with a stick was a necessary act, Defendant was required to prove that
he used ordinary care. The trial court further instructed the jury that if beating the dogs
with a stick was merely a permissible act, Defendant was required to prove that he acted
with extraordinary care to avoid liability.

Issue. Was the Trial Court correct in instructing the jury that there is a distinction
between necessary lawful actions and permissible lawful actions such as would require
different levels of care for the undertaking of each?

• Was the trial court correct in instructing the jury that it was Defendant's
burden to prove that he acted consistent with the applicable level of care
when he unintentionally injures another?

Held. The Court reversed the verdict and ordered a new trial due to erroneous jury
instructions. The requisite standard of care is the same for accidental injuries resulting
from lawful actions, whether the actions are characterized as necessary or merely
permissible.

• The requisite standard of care is the same for accidental injuries resulting
from lawful actions, whether the actions are characterized as necessary or
merely permissible.

• When a trial court instructs a jury that the Defendant is required to prove
he acted with due care to avoid liability, a new trial is necessary to place
the burden of proof properly upon the Plaintiff.

Discussion. This case shows further evolution of the fault concept in tort law. Now, not
only is lack of fault a defense to such a tort action, it is the Plaintiff's burden to prove the
Defendant has acted with fault.
19 Brown v. Kendall
• This case also endeavors to hone the definition of fault. The Court
identifies the appropriate standard of care for lawfully actions
unintentionally causing injury.
20 Cohen v. Petty
Cohen v. Petty

Citation. 62 App.D.C. 187, 65 F.2d 820 (D.C. Cir. 1933).

Brief Fact Summary. Plaintiff was injured while riding in a car driven by Defendant.
Plaintiff sued Defendant for negligence and claimed Defendant was speeding at the time
of the accident. Defendant proffered uncontested evidence that he lost control of the car
because he fainted immediately prior to the accident, on the strength of which the trial
court directed a verdict for Defendant.

Synopsis of Rule of Law. When a Plaintiff fails to show any actionable negligence on
the part of the Defendant, and the Defendant's uncontested evidence shows the injury
resulted from a sudden, unforeseeable illness, a verdict is properly directed for the
Defendant.

Facts. Plaintiff and his sister were riding in the back of a car driven by Defendant with
Defendant's wife in the passenger seat. Plaintiff suffered injuries when Defendant lost
control of the car and drove it off the road. Plaintiff and his sister testified that the car
was traveling at an excessive speed, but Defendant's uncontested evidence showed that he
fainted just before losing control of the car, that he had no reason to expect that such a
fainting spell would occur, and that this is what caused the accident.

Issue. Did the trial court properly direct a verdict in favor of the Defendant based upon
evidence of the fainting spell?

Held. Yes. The trial court's directed verdict was upheld.

• A motorist suddenly stricken with illness causing loss of control of an

automobile resulting in injuries to another is not guilty of negligence when
he had no reason to anticipate the illness.

Discussion. This case introduces the issue of foreseeability into the question of fault. An
essential component of its holding is that a motorist suffering from such an attack must
have had no reason to anticipate the onset of a fainting spell. No longer inquiring solely
whether Defendant intended to cause injury, the Court was required to consider whether
Defendant had reason to foresee causing the injury.
21 Spano v. Perini Corp.
Spano v. Perini Corp.

Citation. 25 N.Y.2d 11, 250 N.E.2d 31, 302 N.Y.S.2d 527, on remand, 33 A.D.2d 516,
304 N.Y.S.2d 15 (N.Y. 1969).

Brief Fact Summary. In the course of constructing a tunnel, Defendants set off a large
quantity of dynamite that allegedly damaged Plaintiffs' property. Plaintiffs brought suit,
claiming negligence but failing to offer any evidence that Defendants failed to exercise
reasonable care. Plaintiffs relied instead upon a theory of absolute liability for blasting
operations and received a favorable verdict, but Defendants won reversal of the verdict
on appeal.

Synopsis of Rule of Law. In the case blasting operations, failure to prove negligence will
not bar recovery when damage to an innocent party results from the blasting. Because
blasting is an abnormally dangerous activity, public policy requires that the costs of the
damage resulting to innocent parties be borne by those undertaking the blasting, even
when they have not behaved negligently.

Facts. Plaintiffs' property was allegedly damaged as a result of blasting operations

undertaken by Defendants. Plaintiffs brought suit to recover for these damages, but were
unable to show that Defendants had acted negligently. Plaintiffs thus sought to recover on
the theory that those engaged in blasting are subject to liability for damages resulting
from the blasting even in the absence of a showing of negligence. This was the rule in the
majority of jurisdictions at the time, but not in New York. Plaintiffs were awarded a
verdict at trial, but that verdict was reversed on appeal.

Issue. Was the Appellate Division correct in upholding the appellate term's reversal of
the verdict in favor of the Plaintiff because there was no evidence of negligence on the
part of the Defendant?

Held. No. The Appellate Division's decision was reversed and the cause was remanded to
the Appellate Division for an inquiry into the weight of the evidence with respect to the
cause of the damages.

• The majority rule that those engaged in blasting are subject to liability
for the resulting damages is adopted, supplanting New York's previous
rule that proof of negligence was required for recovery in such cases
unless a physical trespass also occurred.

• Public policy requires that those engaging in abnormally dangerous or

ultra hazardous activity bear the cost of the damages such activity inflicts
upon innocent parties.

Discussion. This case helps reintroduce concepts of no-fault liability to the law of torts.
These notions of strict or absolute liability for blasting and other "ultra hazardous" or
22 Spano v. Perini Corp.
"abnormally dangerous" activity would seem to buck the trend toward requiring fault or
wrongdoing as a prerequisite to recovery.

• This case also marks an interesting example of public policy analysis.

The Court explicitly mentions public policy and places great emphasis
upon its relevance in finding the appropriate rule. This is illustrative of
some of the many competing issues in the law of torts, many of which will
be addressed later and in greater detail.
23

CHAPTER II. Intentional

Interference With Person Or
Property
24 Garratt v. Dailey
Garratt v. Dailey

Citation. 46 Wash.2d 197, 279 P.2d 1091 (Wash. 1955).

Brief Fact Summary. Plaintiff brought suit for assault and battery against Defendant, a
five year-old boy. Plaintiff alleged that Defendant intentionally moved a chair as she was
about to sit down so as to injure Plaintiff, but the trial court found he was instead trying
to prevent injury and had no intention of injuring or embarrassing her.

Synopsis of Rule of Law. The relevant intent for the purposes of assault and battery may
be found from evidence establishing that Defendant knew to a substantial certainty that
contact or apprehension of contact would result from his actions. Knowledge of a grave
risk that such contact or apprehension could occur is insufficient. A Defendant's age in
such a case is relevant only insofar as it demonstrates Defendant's likely degree of
knowledge based upon his experience and understanding.

Facts. Plaintiff alleged that Defendant, a five year-old boy, moved a chair away just as
she was about to sit down in it, causing her to be injured. At trial, the judge believed the
testimony of Defendant, finding that he did not act with any intent to cause offensive
contact, injury, or embarrassment to Plaintiff. The Trial Judge dismissed the case on the
strength of these findings, and Plaintiff appealed.

Issue. Does the finding that a Defendant did not intend to cause offensive contact, injury,
or embarrassment to a Plaintiff warrant dismissal of the Plaintiff's claim for assault and
battery?

• Is a Defendant's age relevant in determining whether or not he has

committed an intentional tort?

Held. The Court reversed the trial court's dismissal of the case and remanded the case for
a determination of the extent to which Defendant knew, based upon his experience and
understanding, that the injury would result from his actions.

• The requisite intent for assault and battery substantial certainty that
contact or apprehension of contact would result from his actions.
Knowledge of a grave risk that such contact or apprehension could occur
is insufficient.

• With respect to intentional torts, a Defendant's age is relevant only

insofar as it demonstrates the Defendant's likely degree of knowledge
based upon his experience and understanding.

Discussion. This case introduces some of the many critical distinctions at play in
analyzing intent. The Court discusses at least three discernible classes of intent: 1) the
intent to commit the act of moving the chair; 2) the intent to injure, embarrass, or cause
apprehension; and 3) the intent that may be inferred from what the Defendant knew was
substantially certain to result. In this case, it appears that the trial court focused
25 Garratt v. Dailey
exclusively upon the second category, and dismissed the case when it could not be found.
This Court, however, placed greater emphasis upon the third category, which would
clearly allow liability in a far greater array of situations.
26 Spivey v. Battaglia
Spivey v. Battaglia

Citation. 258 So.2d 815 (Fla. 1972).

Brief Fact Summary. Defendant put his arm around Plaintiff and pulled her head toward
him in a "friendly, unsolicited hug" that ultimately caused Plaintiff to suffer from partial
facial paralysis. Plaintiff brought suit for assault and battery and negligence. Because the
suit was brought after the statute of limitations for intentional torts had run, Defendant
argued that the acts complained of were strictly intentional and the suit was barred.

Synopsis of Rule of Law. With respect to assault and battery, one is deemed to intend
that which is substantially certain to follow from his actions but need not intend to cause
actual injury or harm. Knowledge of a risk of harm is not sufficient to establish the
requisite intent.

Facts. During a break at work, Defendant put his arm around Plaintiff and pulled her
toward him. Plaintiff experienced sharp pains that culminated in partial facial paralysis.
She sued Defendant under negligence and assault and battery theories. Relying upon a
similar case, Defendant argued that his actions were strictly intentional, constituted
assault and battery as a matter of law, and warranted dismissal of the case because it had
been filed after the statute of limitations for assault and battery had expired. The trial
court agreed and granted summary judgment for Defendant.

Issue. Was the trial court correct in granting summary judgment for Defendant on the
theory that his actions constituted assault and battery as opposed to negligence as a matter
of law?

Held. No. The grant of summary judgment was reversed to allow Plaintiff to proceed
with her claim for negligence.

• Knowledge of a risk that physical injury could result from an unsolicited,

intentional touch does not mean that one taking such an action has
committed assault and battery as a matter of law if physical injury results.
Rather, it is only assault and battery as a matter of law when a reasonable
person would have believed that physical injury was substantially certain
to follow.

Discussion. Again, multiple issues of intent are implicated in this case. Defendant
intended to touch Plaintiff, but certainly did not intend to cause her facial paralysis. Once
again, the critical issue is Defendant's knowledge of the likelihood that injury would
result. Later, a Defendant's knowledge of the likely extent of any potential damage also
becomes important.
27 Ranson v. Kitner
Ranson v. Kitner

Citation. 31 Ill.App. 241 (Ill.Ct.App. 1889).

Brief Fact Summary. While hunting for wolves, Defendants came across Plaintiff's dog
and killed it. Defendants claimed it was an accident occasioned by the dog's uncanny
resemblance to a wolf, and that they should therefore not be held liable.

Synopsis of Rule of Law. Parties are liable for damages caused by their own mistaken
understanding of the facts, regardless of whether they have acted in good faith.

Facts. Plaintiff sued Defendants for the value of his dog after they killed it while hunting
wolves. Defendants admitted to killing Plaintiff's dog, but argued that they were not
liable because they did so out of a good faith belief that it was a wolf. The jury found
them liable for the value of the dog.

Issue. Were Defendants entitled to relief from a jury verdict that they were liable for the
value of the dog due to their good faith, mistaken belief that the dog was a wolf?

Held. No. The jury's verdict was affirmed.

• When one damages another, he is liable for that damage, even if he

would not have committed the act causing the damage but for a good faith
but mistaken belief.

Discussion. This case focuses upon the intent relevant to liability. Defendants argued that
they believed they were merely hunting a wolf, did not intend to kill anyone's dog, and
thus should not be held liable. The Court is unmoved by this argument, because the
animal's wolf status was not relevant to Defendants' admitted intent to kill it, which is
what caused the damages to Plaintiff.
28 McGuire v. Almy
McGuire v. Almy

Citation. 297 Mass. 323, 8 N.E.2d 760 (Mass. 1937).

Brief Fact Summary. Plaintiff was employed as a caregiver for Defendant, a mentally ill
but physically fit woman. During one of Plaintiff's shifts, Defendant caused a loud
disturbance and told Plaintiff she would kill her if she entered her room. Plaintiff entered
the room anyway, was physically attacked by Defendant, and sued for assault and battery.

Synopsis of Rule of Law. The insane are liable for their torts to the same extent as the
sane, except for certain torts requiring malice of which they are incapable.

Facts. Plaintiff sued Defendant for assault and battery for damages inflicted during a
physical attack. Plaintiff was working as a nurse for Defendant, an insane person, at the
time, and was aware of Defendant's propensity for violent behavior. The general rule for
the insane at the time was that the insane were liable for their torts to the same extent as
the sane. The jury returned a verdict for the Plaintiff.

Issue. Did the trial court err in refusing to direct a verdict for Plaintiff for assault and
battery because Defendant was insane when she attacked Plaintiff?

Held. No. The verdict was upheld and the award sustained.

• In order to be liable for intentionally damaging another, an insane person

must have been capable of the same level of intent and have possessed the
same level of intent as would give rise to liability for a sane person.

Discussion. Much like [Garratt v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (Wash. 1955)]
held with respect to children, the Court in this case declines to carve out a specific
exception to general conceptions of intent for the insane. Rather, the Court applies
general standards of intent to the insane, with the caveat that insanity could preclude
one's capacity to intend certain types of actions in certain circumstances.
29 Talmage v. Smith
Talmage v. Smith

Citation. 101 Mich. 370, 59 N.W. 656 (Mich. 1894).

Brief Fact Summary. Defendant discovered several boys playing on top of sheds on his
property. Defendant demanded that they get down and most complied quickly, but
Plaintiff and a few others remained on the roofs. Defendant threw a stick in the direction
of a few boys on one of the roofs, but the stick missed those boys and struck and injured
Plaintiff.

Synopsis of Rule of Law. A Defendant's intent to cause physical contact with one party
can be considered intent to commit battery against a second party when unreasonable
force is used because the Defendant has no right to commit such an act.

Facts. Defendant threw a stick toward one member of a group of several boys to get them
to leave his property. The stick missed the first boy and struck Plaintiff in the eye.
Plaintiff sued and recovered on a jury verdict. The jury was instructed that Defendant
could be liable if he threw the stick with the intent to hit the first boy or Plaintiff and did
so with force that was unreasonable under the circumstances

Issue. Was the jury properly instructed that Defendant could be liable if he intended to hit
either boy and used unreasonable force?

Held. Yes. The judgment was affirmed, with costs.

• When a Defendant intends to inflict harmful or offensive contact upon

one party but instead inflicts such contact upon another, he is liable for the
resulting injury.

Discussion. This case introduces the doctrine of transferred intent. As the Court explains,
the doctrine is based upon the notion that one should not be allowed to escape liability for
wrongdoing simply because someone other than the intended target was injured. This
shows once again that tort law is not overly preoccupied with intent to cause a specific
injury to a specific party - the overriding concern is with wrongful conduct.
30 Cole v. Turner
Cole v. Turner

Citation. 6 Modern Rep. 149, 90 Eng. Rep. 958 (Nisi Prius 1704).

Brief Fact Summary. No facts are given.

Synopsis of Rule of Law. The lightest angry touch constitutes battery. A gentle touch
made in close quarters with no ill intention is not a battery. A forceful or reckless touch,
in close quarters is a battery.

Facts. As indicated above, no facts are given. This case only sets forth recitations of law.

Issue. Under what circumstances and with what mindsets may a touching constitute
battery?

Held. Any degree of touching coupled with angry mindset qualifies as battery.

• A light degree of touching in circumstances that may make avoiding

such a touch difficult is not a battery in the absence of negative intent.

• A reckless or violent touching is a battery, even under circumstances that

make avoiding physical contact difficult.

Discussion. These early pronouncements on battery demonstrate the elements at play in

determining whether a battery has occurred. Far from being a simple matter, one must
look to the parties' states of mind, the degree of contact, and their surroundings in
analyzing whether a battery has occurred. It is also noteworthy that these
pronouncements suggest that a party's intentions are the most important factor in the
battery analysis, as an angry mindset can render even the most minimal contact a battery.
31 Wallace v. Rosen
Wallace v. Rosen

Citation. 765 N.E.2d 192 (Ind. App. 2002)

Brief Fact Summary. A student's parent was standing at the top of a staircase in a school
talking to her daughter and some of her daughter's friends. During the conversation, a fire
alarm went off and while the students were evacuating, the parent fell down the stairs.
The parent alleged that a teacher pushed her down the stairs.

Synopsis of Rule of Law. The Plaintiff failed to show that the trial court abused its
discretion by not reading the jury a civil battery instruction.

Facts. The Defendant, Rosen (the "Defendant"), was a high school teacher. On April 22,
1994, the high school had a fire drill while classes were being conducted. None of the
teachers knew about the fire drill in advance. The Plaintiff, Wallace (the "Plaintiff'), was
at the school on the day of the fire drill delivering homework to her daughter Lalaya. The
Plaintiff was speaking with Lalaya and two of her friends on the top of a staircase when
the fire alarm went off. The Plaintiff alleged that during the course of the fire drill, the
Defendant pushed her down the stairs. The Defendant admitted to touching the Plaintiff's
back to get her attention, but says she did not push her down the stairs. The trial court
judge refused to instruct the jury about civil battery. The trial court ruled in favor of the
Defendant, and the Plaintiff appealed.

Issue. Should the court have given the jury an instruction about battery?

Held. No. The court first set forth the Indiana Pattern Jury Instruction for the intentional
tort of civil battery. It reads: "A battery is the knowing or intentional touching of a person
against [his] [her] will in a rude, insolent, or angry manner." The court also observed that
a battery is an intentional tort, and it went on to discuss the differences between negligent
acts, reckless acts and intentional acts. The court further recognized "[t]he intent with
which tort liability is concerned is not necessarily a hostile intent, or a desire to do any
harm. Rather it is an intent to bring about a result which will invade the interests of
another in a way that the law forbids. The defendant may be liable although intending
nothing more than a good-natured practical joke, or honestly believing that the act would
not injure the plaintiff, or even though seeking the plaintiff's own good."

• More than one witness testified that the Defendant touched the Plaintiff on
her back before she fell. This touch caused the Plaintiff to fall and injure
herself. However, not all touching rises to the level of civil battery. "For
battery to be an appropriate instruction, the evidence had to support an
inference not only that Rosen intentionally touched Wallace, but that she did
so in a rude, insolent, or angry manner, i.e., that she intended to invade
Wallace's interests in a way that the law forbids." The court also relied upon
Professors Prosser and Keaton's observations about battery. The court
observed "The conditions on the stairway of Northwest High School during
the fire drill were an example of Professors Prosser and Keeton's 'crowded
world.' Individuals
32 Wallace v. Rosen
standing in the middle of a stairway during the fire drill could expect that a
certain amount of personal contact would be inevitable. Rosen had a
responsibility to her students to keep them moving in an orderly fashion down
the stairs and out the door. Under these circumstances, Rosen's touching of
Wallace's shoulder or back with her fingertips to get her attention over the
noise of the alarm cannot be said to be a rude, insolent, or angry touching."

Discussion. The judge relied greatly on Professor Prosser and Keeton's writings about the
intentional tort of battery. The Professor's stated, "[I]n a crowded world, a certain amount
of personal contact is inevitable and must be accepted. Absent expression to the contrary,
consent is assumed to all those ordinary contacts which are customary and reasonably
necessary to the common intercourse of life, such as a tap on the shoulder to attract
attention, a friendly grasp of the arm, or a casual jostling to make a passage.... The time
and place, and the circumstances under which the act is done, will necessarily affect its
unpermitted character, and so will the relations between the parties. A stranger is not to
be expected to tolerate liberties which would be allowed by an intimate friend. But unless
the defendant has special reason to believe that more or less will be permitted by the
individual plaintiff, the test is what would be offensive to an ordinary person not unduly
sensitive as to personal dignity…. "
33 Fisher v. Carrousel Motor Hotel, Inc.
Fisher v. Carrousel Motor Hotel, Inc.

Citation. 424 S.W.2d 627 (Tex. 1967).

Brief Fact Summary. At a professional conference held in Defendant's hotel, one of

Defendant's employees seized a plate from the Plaintiff's hand, shouting that a "Negro
could not be served in the club". Defendant's employee did not make physical contact
with Plaintiff, but the event was witnessed by many of Plaintiff's colleagues. Plaintiff
sought actual and punitive damages for assault and battery.

Synopsis of Rule of Law. A Plaintiff may recover for battery even when not physically
touched so long as the Defendant committed an unwanted an intentional invasion of the
inviolability of the Plaintiff's person.

Facts. Plaintiff sued for assault and battery when Defendant's employee forcibly removed
a plate from Plaintiff's hand, but did not actually make physical contact with Plaintiff.
The jury returned a verdict of $400 for actual damages and $500 in punitive damages.
The trial court, however, set aside the verdict because no actual physical contact was
made with Plaintiff.

Issue. Did the trial court correctly set aside the jury's verdict because no actual physical
contact was made with the Plaintiff?

• May actual damages stemming from mental suffering be awarded when

no physical contact occurred?

Held. The trial court's decision was reversed and the verdict reinstated.

• Unwanted and intentional invasion of one's person through dispossession

of an object is battery even in the absence of physical contact.

• Actual damages for mental suffering stemming from battery may be

awarded even when no physical contact is made.

Discussion. The Court distills battery as a tort concerned primarily with personal dignity,
not merely personal space. However, the Court repeatedly refers to offenses to "the
person", implying that some nexus with physical contact must be present in cases of
battery. The Court suggests that any objects grasped by a person are considered part of
"the person" for the purposes of battery. Other courts have sometimes referred to such
objects as "appurtenances".
34 I de S et ux. v. W de S
I de S et ux. v. W de S

Citation. Y.B.Lib.Ass. folio 99, placitum 60 (Assizes 1348).

Brief Fact Summary. Defendant W de S went to the home of Plaintiffs I de S and M de

S at night to purchase wine. Upon finding the door closed, Defendant beat the door with a
hatchet until M de S stuck her head outside and told him to stop. W de S swung the
hatchet toward M de S but did not strike her, and Plaintiffs sued for assault.

Synopsis of Rule of Law. Physical contact is not a necessary element of an action for
assault.

Facts. Plaintiffs sued Defendant for assault after he swung a hatchet at but did not strike
M de S. Defendant pled not guilty on the ground that there was no physical contact. An
inquest into the matter confirmed that no physical contact had occurred. The inquest
concluded that no harm was thus done and dismissed the case.

Issue. Did the fact that no physical contact occurred mean that no harm was done,
warranting dismissal of the case?

Held. No. The Court reversed the decision of the inquest and awarded damages.

• Assault may be found and damages awarded in the absence of physical

contact.

Discussion. Not unlike Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex.
1967), this case shows that interference with one's person is actionable, and that this need
not include actual physical contact.

• Neither the inquest nor the Court appears to have made any inquiry into
the state of M de S's mind as W de S swung his hatchet toward her. Her
state of mind, as the victim of an alleged assault, will become relevant in
later assault cases.
35 Western Union Telegraph Co. v. Hill
Western Union Telegraph Co. v. Hill

Citation. 25 Ala.App. 540, 150 So. 709 (Ala. Civ. App. 1933).

Brief Fact Summary. Defendant's employee routinely provided repairs to the clock
located in Plaintiff's business. On one occasion when Plaintiff's wife requested that he
repair the clock, Defendant's employee allegedly offered to fix the clock in exchange for
sexual favors and unsuccessfully reached out to grab her. When Plaintiff sued for assault,
Defendant denied the allegations and argued the physical evidence showed he could not
have reached Plaintiff's wife.

Synopsis of Rule of Law. For assault to occur, there must be an intentional and unlawful
offer or attempt to touch another's person in a harmful or offensive manner such that it
creates a well-founded apprehension of imminent battery. One accused of assault must
also appear to have the present ability to commit the battery if not prevented.

Facts. Plaintiff sued Defendant for assault on the grounds that its employee made
offensive remarks to his wife and attempted to grab her when she came into its store.
Defendant's employee admitted to having been mildly intoxicated at the time, but denies
Plaintiff's wife's version of events. The physical evidence also suggested that Defendant's
employee would have been unlikely to be able to touch Plaintiff's wife as described. The
trial court found that whether assault had been committed was a question for the jury,
who found for Plaintiff.

Issue. Did the trial court err in submitting the question of whether assault had occurred to
the jury?

Held. No. The Court found the trial judge properly submitted the question to the jury.

• When the evidence shows that a party could have made an effort to reach
out and touch another in an offensive, unwanted manner and may or may
not have had the apparent ability to do so at the time, whether an assault
has occurred is a question for a jury.

• The Court also found, however, that the employee was acting beyond the
scope of his employment if he committed assault and Defendant was thus
not liable for his actions. The Court reversed the verdict on this ground.

Discussion. Defendant was attempting to avoid liability on the ground that its employee
could not have succeeded in touching Plaintiff's wife, even had he tried. As the Court
explains, such an argument is largely irrelevant to the tort of assault. Assault requires
only that the victim be put in apprehension of imminent battery. As a corollary to this
rule, there may be some circumstances when no reasonable person could possibly
apprehend imminent battery. For example, the alleged assailant may have been so far
away from the party claiming assault that it would be impossible to reasonably believe
battery was imminent. Or the alleged assailant could have been in such an obviously
36 Western Union Telegraph Co. v. Hill
weakened or vulnerable position that such a belief would be impossible. However, when
it simply appears that actual battery might have been difficult or unlikely, it is for the jury
to decide whether the party claiming assault could have had the requisite apprehension of
imminent battery.
37 Big Town Nursing Home, Inc. v. Newman
Big Town Nursing Home, Inc. v. Newman

Citation. 461 S.W.2d 195 (Tex.App. 1970).

Brief Fact Summary. Plaintiff, a retiree, was checked into Defendant's nursing home at
the behest of his nephew. Upon checking in, the admission papers indicated that
Plaintiff's presence was strictly voluntary and he could leave at any time. However, when
Plaintiff attempted to leave on numerous occasions, he was restrained, punished, denied
privileges, and moved to a wing of the home for drug addicts and the insane.

Synopsis of Rule of Law. False imprisonment is one person's direct restraint of another's
physical liberty in the absence of sufficient legal justification.

Facts. A few days after Plaintiff was checked into Defendant's nursing home, he decided
he wished to leave. However, despite the fact that his admission papers indicated his
presence was strictly voluntary, he was denied use of a telephone, had his personal
belongings seized, and was forcibly restrained and returned to the home on the occasions
when he escaped. He was also transferred to an area reserved for drug addicts and the
insane. Plaintiff brought suit for false imprisonment and was awarded actual and punitive
damages.

Issue. Was the jury wrong to find Plaintiff had been falsely imprisoned?

• Was the award of punitive damages improper under these

circumstances?

Held. The jury's verdict was upheld, except the award was found excessive. Plaintiff
accepted the remittitur proposed by the court of appeals.

• When a nursing home detains a retiree against his will despite an

agreement that his presence is voluntary and has no other legal
justification for the physical detention, it has committed false
imprisonment.

• When a Defendant's acts giving rise to actual damages are undertaken

wrongfully, intentionally, and without regard to the rights of the Plaintiff,
punitive damages may be appropriately awarded.

Discussion. This is a rather straightforward false imprisonment case. Plaintiff was even
able to identify a contractual provision specifically demonstrating the Defendant's
knowledge that it acted in disregard of his rights. The relative simplicity of the case
allows the Court to set forth the precise elements of the tort of false imprisonment.
38 Parvi v. City of Kingston
Parvi v. City of Kingston

Citation. 41 N.Y.2d 553, 362 N.E.2d 960, 394 N.Y.S.2d 161 (N.Y. 1977).

Brief Fact Summary. Police officers for the Defendant City of Kingston took custody of
Plaintiff, who was intoxicated, and drove him outside the city limits instead of arresting
him. After he was deposited on a golf course, Plaintiff found himself on the New York
Thruway, where he was struck by a car and injured. Although he had little or no
recollection of the entire evening, Plaintiff sued for false imprisonment.

Synopsis of Rule of Law. Consciousness of confinement is a necessary element of false

imprisonment, but recollection of that consciousness is not. It is thus possible to maintain
a cause of action for false imprisonment despite lacking any recollection of confinement.

Facts. Plaintiff brought suit against Defendant for false imprisonment after he was taken
into custody by its police officers and was later injured. Plaintiff admitted, however, that
he had no recollection of actually having been in police custody on the evening in
question. Because Plaintiff could not remember having been confined, the trial court
dismissed his claim for false imprisonment.

Issue. Did the trial court correctly dismiss Plaintiff's false imprisonment claim because
Plaintiff had no recollection of confinement?

Held. No. The trial court's decision was reversed to allow a jury to consider whether the
Plaintiff was conscious of the confinement at the relevant times. The failure to recall
one's confinement does not mean that one was not conscious of such confinement at the
time, which is the relevant question in actions for false imprisonment.

Dissent. Plaintiff utterly failed to make even a prima facie case for false imprisonment.
He set forth no evidence such as would allow a conclusion that he was conscious of his
confinement at the relevant time, and his failure to recall the confinement defeats his
case.

Discussion. This case hones the elements of the false imprisonment action. A Plaintiff is
required to prove consciousness of the confinement as a prerequisite to recovery. This
being a dignitary tort, it would not make sense to allow recovery when an insult to one's
dignity is not realized. The Court explains, however, that such a dignitary insult is
actionable so long as the victim is aware of it as it occurs. The failure to recall the insult
does not erase the harm inflicted.
39 Hardy v. LaBelle's Distributing Co.
Hardy v. LaBelle's Distributing Co.

Citation. 203 Mont. 263, 661 P.2d 35 (Mont. 1983).

Brief Fact Summary. An employee of Defendant informed Defendant that Plaintiff, a

recently hired temporary employee at Defendant's jewelry department, had stolen a
watch. The store manager invited Plaintiff into his office, claiming she was being given a
tour as a new employee. The manager closed the door behind him, and Plaintiff was
ultimately questioned in the room for 20 to 45 minutes by the manager, at least one
uniformed police officer, and others.

Synopsis of Rule of Law. While actions or words may give rise to a claim of false
imprisonment, the actions or words must rise to the level of unlawful restraint against
one's will to be actionable.

Facts. Plaintiff had been recently hired as a temporary employee in Defendant's jewelry
department. Another of Defendant's employees told store management that she had seen
Plaintiff steal a watch from the store. Under the guise of giving her a tour of the store, the
store manager lured Plaintiff into his office and closed the door behind him. The
manager, at least one uniformed police officer, and others questioned Plaintiff for 20 to
45 minutes, during which time Plaintiff did not ask or attempt to leave and was not told
she could not leave. The manager was eventually satisfied that Plaintiff had not
committed the theft. Plaintiff later brought suit for false imprisonment, and admitted that
she would have entered the manager's office even had she not been lured there. The jury
found for Defendant.

Issue. Was the jury wrong to find that Plaintiff had not been restrained against her will?

Held. No. The jury's verdict was upheld. The Court found that Plaintiff was not
unlawfully restrained against her will because she would have entered the office
voluntarily, never asked or attempted to leave, and was never told she could not leave.

Discussion. The Court acknowledges that words can suffice to create the kind of
unlawful restraint as could give rise to false imprisonment. However, the facts of the
underlying case did not demonstrate that any such words were used. Rather, it appears
Plaintiff may have held a subjective belief that she was not allowed to leave the
manager's office. Creating circumstances that may engender such a belief does not rise to
the level of false imprisonment without further words or actions confirming such a belief.
40 Enright v. Groves
Enright v. Groves

Citation. 39 Colo.App. 39, 560 P.2d 851 (Colo. Ct. App. 1977).

Brief Fact Summary. Defendant, a police officer spied a dog running without a leash in
violation of Defendant city's local ordinance. After determining the dog belonged to
Plaintiff, the officer located Plaintiff and demanded her driver's license, which Plaintiff
refused to give. The officer told Plaintiff he would arrest her if she didn't turn over her
license, and when she failed to do so he placed her under arrest, after which she was
convicted of violating the leash ordinance.

Synopsis of Rule of Law. Conviction of the crime for which one is arrested bars a
subsequent claim for false imprisonment, but does not provide a defense when there was
probable cause to arrest for a different crime.

Facts. When Defendant officer saw a dog running without a leash in violation of an
ordinance, he searched for its owner. When he determined Plaintiff to be the owner, he
located her and demanded her driver's license without explaining why. Plaintiff refused,
instead telling the officer her address. The officer told Plaintiff he would arrest her if she
did not surrender her driver's license. Plaintiff again failed to do so, and the officer placed
her under arrest. Plaintiff was later convicted of violating the leash ordinance. Plaintiff
brought suit for false imprisonment, and the jury awarded her $500 in actual damages and
$1000 in punitive damages.

Issue. Was the jury correct in returning a verdict for Plaintiff despite her subsequent
conviction for violation of the leash ordinance?

Held. Yes. The judgment was affirmed. While Plaintiff was ultimately convicted of a
crime, she was not convicted of the crime for which she was arrested. As the facts
elucidate, she was arrested for failing to produce her driver's license to the officer, which
is not a crime. The officer's arrest of Plaintiff was therefore unlawful and the verdict was
proper.

Discussion. In an action for false imprisonment involving police officers, the defense will
often be raised that Plaintiff was ultimately convicted of a crime. This case makes it
clear, however, that the conviction must mirror the basis of the arrest. Probable cause to
believe that one crime has been committed does not provide blanket authority for an
officer to arrest someone for any other crime. Had the officer in this case arrested
Plaintiff solely for violation of the leash ordinance, the defense would have been valid.
41 Whittaker v. Sandford
Whittaker v. Sandford

Citation. 110 Me. 77, 85 A. 399 (Me. 1912).

Brief Fact Summary. Plaintiff and her husband were members of a religious group
headed by Defendant and based in Tel Aviv. Plaintiff decided she would like to leave the
group and return to the United States, in response to which Defendant offered
transportation via his yacht and assured her she would not be detained. Upon arrival,
Defendant refused to grant her use of a boat to reach the shore, and she remained on
board against her will except for brief, supervised excursions until she finally obtained
release through a writ of habeas corpus.

Synopsis of Rule of Law. Physical as opposed to moral restraint is required for false
imprisonment, but this does not mean actual physical force must be used. Refusing to
provide one with the means to overcome a physical barrier can constitute restraint such as
can give rise to a claim for false imprisonment.

Facts. Plaintiff was a member of a religious organization of which her husband was a
minister and Defendant was the head. The group was based in Tel Aviv, but Plaintiff
decided she would like to leave the group and return to the United States with her
children. Defendant offered to grant them passage aboard his yacht and promised that
they would not be detained when Plaintiff expressed concern that he would refuse to let
her leave the ship. When they arrived, Defendant refuse to let Plaintiff use a boat to reach
the shore and said it was up to her husband to decide whether she should be allowed to do
so. Plaintiff's husband, in turn, said that it was up to Defendant to decide. Although
Plaintiff was occasionally allowed to leave the yacht briefly, she was always supervised
and was only able to reach the United States after she secured a writ of habeas corpus.
She sued Defendant for false imprisonment. At trial, the court instructed the jury that
while physical restraint was a necessary element of false imprisonment, actual physical
force need not have been used.

Issue. Did the trial court properly instruct the jury that actual physical force is not
required for a case of false imprisonment to succeed?

Held. Yes. The verdict was upheld. Physical restraint can be found in the refusal to grant
one the means to overcome a barrier to free movement, particularly when one has sole
control over those means. The boats in question were under the control of Defendant and
were necessary to provide Plaintiff with the means to reach the shore.

Discussion. While false imprisonment is not so broad a concept as to allow recovery

when one merely persuades another to restrict his own movements by appealing to his
morals or reason, nor is it so narrow that actual physical force must have been used. This
case addresses the grey area in which a physical impediment to a Plaintiff's free
movement existed and a Defendant refused to remove it. In this case, the fact that the
Defendant caused the impediment to exist and controlled the means to remove it meant
that his refusal to do so constituted false imprisonment.
42 State Rubbish Collectors Ass'n v. Siliznoff
State Rubbish Collectors Ass'n v. Siliznoff

Citation. 38 Cal.2d 330, 240 P.2d 282 (Cal. 1952).

Brief Fact Summary. Defendant, a non-member of Plaintiff association, collected

garbage from a company Plaintiff claimed was within its domain. Plaintiff's agent
allegedly demanded that Defendant surrender the money derived from the collection or
suffer physical consequences, in response to which Defendant attended Plaintiff's
meeting and signed notes promising to pay. Plaintiff sued Defendant to force payment of
the notes, and Defendant argued they were unenforceable and counter-sued for
intentional infliction of mental distress.

Synopsis of Rule of Law. There exists a cause of action for intentional infliction of
emotional distress for serious threats of physical violence whether or not such threats
technically rise to the level of assault. When one acts outrageously, intends to cause such
distress and does so, he is liable for the emotional distress and the bodily harm resulting
therefore.

Facts. Defendant collected garbage from a company Plaintiff claimed was properly
subject to collection by one of its members. Defendant alleged that agents of Plaintiff
threatened him with physical violence if he did not make an arrangement to pay
Plaintiff's member the money derived from the collection, and demanded that he attend a
meeting of the association. Defendant also alleged that he was only allowed to leave that
meeting after he signed notes promising to pay the money demanded. When Plaintiff
sued to collect on the notes, Defendant claimed they were invalid and counter-sued for
intentional infliction of mental distress. The jury returned a verdict in favor of Defendant
for both the notes and the intentional infliction of mental distress.

Issue. Was the jury correct to find Plaintiff liable for the damages resulting from
Defendant's mental suffering, even though Plaintiff caused no actual physical damage?

Held. Yes. The verdict was sustained. One who behaves outrageously in causing severe
emotional distress to another is liable for the damages stemming from that emotional
distress, including physical injury. It is a question for the jury whether outrageous
conduct has caused emotional distress and physical injury.

Discussion. The Court focuses upon the role of a jury and its likely capabilities in
reaching this decision. Recognizing that a jury may not be equipped to accurately track
the cause of a physical injury, the Court makes paramount the question of whether one
has engaged in outrageous conduct such as would warrant imposition of liability for
resulting emotional and physical damages. The Court is clearly concerned about
unleashing a whole new range of causes of action, and attempts to use the outrageousness
standard to limit that possibility.
43 Slocum v. Food Fair Stores of Florida
Slocum v. Food Fair Stores of Florida

Citation. 100 So.2d 396 (Fla. 1958).

Brief Fact Summary. Plaintiff was a customer in Defendant's store and asked an
employee the price of an item. The employee insulted her by responding that "[i]f you
want to know the price, you'll have to find out the best way you can…" because "you
stink to me". Plaintiff, taken aback by the comment upon her bodily odor, brought suit for
intentional infliction of emotional distress, and the trial court dismissed for failure to state
a cause of action.

Synopsis of Rule of Law. Mere expressions of insults or general abuse are not actionable
unless it can be shown that they were intended to bring about severe emotional distress.

Facts. Plaintiff, a customer in Defendant's store, inquired as to the price of a certain item.
The employee responded that "[i]f you want to know the price, you'll have to find out the
best way you can…" because "you stink to me". Plaintiff brought suit for intentional
infliction of emotional distress, and claimed the insulting characterization of her bodily
scent led to a heart attack and exacerbated heart disease. The trial court dismissed the
case for failure to state a cause of action.

Issue. Was the trial court correct to find that the Plaintiff's allegations were insufficient to
state an independent cause of action?

Held. Yes. The judgment was affirmed.

• Only such conduct as exceeds all bounds permissible in society can give
rise to an independent claim for intentional infliction of emotional distress.

• The conduct complained of must be substantially certain to result in

severe emotional distress.

• Mere insults or general abuse do not rise to the requisite level of

outrageousness to allow for recovery for infliction of severe emotional
distress.

Discussion. The Court recognized that a trend toward allowing causes of action for
intentional infliction of emotional distress was emerging. The Court felt compelled,
however, to place some limitations upon such claims. In this case, the concept of
outrageousness is further defined, with the result that garden-variety insults are excluded
from the conduct that can give rise to such a claim. This particular example, an insulting
comment upon someone's bodily odor, is found not to be sufficiently outrageous as to
give rise to a cause of action for intentional infliction of emotional distress.
44 Harris v. Jones
Harris v. Jones

Citation. 281 Md. 560, 380 A.2d 611 (Md.App. 1977).

Brief Fact Summary. Defendant was Plaintiff's supervisor at a factory, and was aware
that Plaintiff suffered from a speech impediment causing him to stutter. Defendant
frequently mocked Plaintiff and his condition on the job, causing him to feel distress.
Plaintiff sued for intentional infliction of emotional distress.

Synopsis of Rule of Law. For intentional infliction of emotional distress: 1) the conduct
must be intentional or reckless; 2) the conduct must be extreme and outrageous; 3) the
wrongful conduct must cause the distress; and 4) the emotional distress must be severe.

Facts. Defendant supervised Plaintiff at an automobile factory and frequently mimicked

his stuttering condition while at work. Plaintiff asked him on numerous occasions to stop,
but he persisted. Plaintiff sued Defendant for intentional infliction of emotional distress,
but admitted that Defendant was not the only one who mocked him and that he had had
problems with other supervisors in the past. The jury returned a verdict in Plaintiff's
favor, but this was reversed on appeal.

Issue. Was the Appellate Court correct to reverse the verdict based upon its finding that
there was insufficient evidence from which the jury could conclude that the wrongful
conduct caused the distress and that the distress was severe?

Held. Yes. The reversal of the verdict was affirmed.

• In determining whether conduct is outrageous, the totality of the

circumstances must be considered. The environment and characteristics of
the individuals involved must be taken into account.

• Whether conduct can be considered outrageous is initially a question for

the judge. When reasonable people could form different opinions as to
whether conduct was outrageous, it is a question for the jury.

• The severity of the emotional distress must be proven by the Plaintiff and
must also be considered in light of the totality of the circumstances.

Discussion. In addition to clearly setting forth the elements of intentional infliction of

emotional distress, the Court places a heavy burden upon the Plaintiff to demonstrate the
causation and severity of that distress. This case demonstrates once again that this is a
difficult tort to prove, despite or perhaps as a reaction to the concurrent trend toward
allowing its recognition.
45 Taylor v. Vallelunga
Taylor v. Vallelunga

Citation. 171 Cal.App.2d 107, 339 P.2d 910 (Cal. Ct. App. 1959).

Brief Fact Summary. Plaintiff Gerlach alleges Defendants physically attacked him and
Plaintiff Taylor, Gerlach's daughter, alleges she witnessed the attack. Gerlach sued for
damages stemming from his physical injuries while Taylor sued for the emotional distress
she suffered from witnessing the attack.

Synopsis of Rule of Law. For one to recover for emotional distress when she has
experienced no physical injury, she must establish that the Defendant intentionally caused
her to suffer from severe emotional distress.

Facts. Plaintiff Taylor witnessed Defendants intentionally attacking and beating her
father, Plaintiff Gerlach. While Gerlach sued for his physical damages, Taylor sued to
recover for the emotional distress she experienced as a result of witnessing the event.
Taylor failed to allege that the Defendants knew she was present for the event or that they
intended the beating to cause her to suffer distress. The trial court granted the Defendants'
motion to dismiss Taylor's claim and Taylor appealed.

Issue. Did the trial court err in dismissing Taylor's complaint for intentional infliction of
emotional distress?

Held. No. The dismissal was affirmed. When a Plaintiff seeks to recover for emotional
distress but does not allege any physical damage, she is required to prove that the
emotional distress was intentionally inflicted upon her by the Defendant. When a
Defendant is not even aware of the Plaintiff's presence or does not commit the acts
causing the distress with the intention of causing Plaintiff such distress, the Defendant
has not intentionally inflicted emotional distress upon the Plaintiff.

Discussion. The Court focuses on the Plaintiff's failure even to allege the Defendants
were intending to cause her to suffer emotional distress. While it was alleged that the
Defendants intended to injure Plaintiff Gerlach, there are no allegations with regard to
their intent to injure Plaintiff Taylor. Because Taylor suffered no physical injuries herself,
she could only recover for emotional distress if the Defendants' actions met the
requirements for an intentional infliction of emotional distress claim. Because Taylor did
not allege the Defendants knew she was present or intended her to suffer from emotional
distress, the dismissal was proper.
46 Dougherty v. Stepp
Dougherty v. Stepp

Citation. 18 N.C. 371 (N.C. 1835).

Brief Fact Summary. Defendant entered Plaintiff's land to perform a survey, but did not
mark trees or cut timber. Plaintiff sued for trespass. The trial court instructed the jury that
no trespass had occurred and the jury found for Defendant.

Synopsis of Rule of Law. Every unauthorized entry upon another's land qualifies as a
trespass, regardless of the degree of damage done in the process.

Facts. Defendant and his survey team entered Plaintiff's land for the purpose of
conducting a survey. Defendant and his team did not do any damage to or mark the trees
or shrubbery upon the property. Plaintiff sued Defendant for trespass. The trial court
instructed the jury that no damage had been inflicted and thus no trespass occurred. The
jury returned a verdict for Defendant.

Issue. Did the Trial Court properly instruct the jury that no trespass had occurred because
there was no palpable damage to the land?

Held. No. The case was reversed for a new trial. The actions taken upon the land and the
effects of those actions are relevant in calculating damages, but the entry upon another's
land without authorization always qualifies as a trespass.

Discussion. This case demonstrates the distinction between liability and damages in tort.
Although the Court acknowledges that the actual damages suffered by the Plaintiff were
probably minimal, this has no bearing upon whether a trespass was committed in the first
place. The Court also noted that the law infers some damage results from such a wrong,
and will grant it once liability is proven.
47 Bradley v. American Smelting and Refining Co.
Bradley v. American Smelting and Refining Co.

Citation. 104 Wash.2d 677, 709 P.2d 782 (Wash. 1985).

Brief Fact Summary. Defendant American Smelting and Refining Co. operated a
smelter near the Plaintiff Bradley's property. As a result of its operations, Defendant's
smelter caused various gases and particulate matter, imperceptible to the naked eye, to be
deposited upon Plaintiffs' property. Plaintiff sued to recover for trespass and nuisance.

Synopsis of Rule of Law. Trespass is the interference of one's right to exclusive

possession of land, while nuisance is the interference with one's right to exclusive use and
enjoyment of land. Accordingly, particles that quickly dissipate may give rise to a
nuisance action while particles that are deposited and do not pass away may give rise to
an action in trespass. However, the prior rule that any trespass whatsoever entitles a
landowner to nominal or punitive damages is no longer appropriate or workable in these
circumstances. Actual damages must now be proven to sustain a trespass claim.

Facts. Plaintiffs, an association of landowners on an island, sued Defendant, the operator

of a nearby smelter, for trespass and nuisance due to gaseous and particulate emissions.
The parties filed cross-motions for summary judgment, and the United States District
Court for the Western District of Washington certified the matter for the Supreme Court
of Washington.

Issue. Are Plaintiffs entitled to nominal or punitive damages as a matter of law due to the
interference with their exclusive possession, use, and enjoyment of their land by gaseous
and particulate emissions?

Held. No. The matter was remanded with instructions that actual damages needed to be
shown for recovery.

• Trespass occurs when one interferes with another's right to exclusive

possession of property.

• Nuisance involves the interference with one's right to exclusive use and
enjoyment of property.

• Particles that remain deposited and do not quickly pass away interfere
with one's exclusive possession of land and are thus the subject of the law
of trespass.

• Quickly dissipating particles interfere only with one's use and enjoyment
and are thus properly subject to nuisance law.

• Although trespass entitled a plaintiff to nominal and punitive damages as

a matter of law at common law, such a rule is inappropriate and
unworkable with respect to wide-ranging pollutants. A trespass plaintiff
must now prove actual damages to recover.
48 Bradley v. American Smelting and Refining Co.
Discussion. The Court is clearly mindful that the common law rule would require
recovery of at least nominal damages for any trespass, no matter how minimal. Based
upon these facts, however, and paying particular attention to policy considerations of
safeguarding industries against widespread and unnecessary litigation, the Court requires
that actual and substantial damages be shown for one to recover for trespass.
49 Herrin v. Sutherland
Herrin v. Sutherland

Citation. 74 Mont. 587, 241 P. 328 (Mont. 1925).

Brief Fact Summary. Defendant, while hunting, fired his shotgun at birds flying over
Plaintiff's land. Plaintiff sued for trespass, claiming damages of $10.

Synopsis of Rule of Law. Interference with the airspace over one's property can give rise
to an action for trespass.

Facts. Defendant was hunting while standing on someone else's property. He fired his
shotgun at ducks flying over Plaintiff's land. Plaintiff sued for trespass to his land.
Plaintiff was granted a default judgment, and was ultimately awarded $1 in nominal
damages. The Defendant timely appealed.

Issue. Did the trial court err when it granted Plaintiff nominal damages for the discharge
of a shotgun over his land?

Held. No. The judgment was affirmed.

• Under Blackstone's interpretation, land extends upwards and downwards,

giving its owner rights in its air space.

• Air space, at least near the ground, is nearly as subject to protection as is

the ground.

Discussion. The Court confirms that the air space over one's land is subject to protection
against trespass. The Court is not called upon to determine how far such protection might
extend, as the intrusion upon Plaintiff's land occurred merely a few feet off the ground,
but it does suggest that the degree of protection diminishes the further from the ground it
gets.
50 Rogers v. Board of Road Com'rs for Kent County
Rogers v. Board of Road Com'rs for Kent County

Citation. 319 Mich. 661, 30 N.W.2d 358 (Mich. 1947).

Brief Fact Summary. Pursuant to a license, Defendant placed a snow fence and posts
upon Plaintiff's husband's property with the understanding that it would be removed at the
end of winter. Defendant did not remove the fence at the end of winter, and Plaintiff's
husband was killed by an accident involving the fence's continued presence on his
property. Plaintiff sued for trespass and negligence.

Synopsis of Rule of Law. When one consents to the presence of a structure or chattel on
his property and that structure or chattel is not removed after the consent is revoked or
terminated, he may recover for damages resulting from its continued presence.

Facts. Defendant obtained a license to place a snow fence upon Plaintiff's husband's
property, but in so doing agreed to remove the fence after the winter months when it was
necessary. Defendant failed to remove the fence after winter as agreed. When Plaintiff's
husband was later mowing the area, he was injured by a collision with the fence and
ultimately died. Plaintiff sued for trespass and negligence. The Trial Court dismissed the
action, finding that there was no basis for finding trespass. The Plaintiff appealed.

Issue. Was the Trial Court correct in dismissing the cause of action in trespass?

Held. No. The judgment was reversed and remanded. The license and agreement
rendering the snow fence's presence initially lawful did not bar an action for its presence
after it should have been removed. Once consent or license to a structure or chattel's
presence upon one's land is effectively terminated, the presence may revert to a trespass.

Discussion. This case demonstrates other possible dimensions of an intrusion upon

another's land. The Court recognizes that the fence was properly on the property in the
first instance and was thus not originally a trespass. Had the injury occurred during the
winter months, no damages could have been sought in trespass. However, due to the
expiration of the license period, the fence's continued presence ripened into a trespass,
and the damages became recoverable.
51 Glidden v. Szybiak
Glidden v. Szybiak

Citation. 95 N.H. 318, 63 A.2d 233 (N.H. 1949).

Brief Fact Summary. A dog owned by Defendants bit Plaintiff, a four year-old girl.
Plaintiff sued to recover for her personal injuries. Defendants contended that Plaintiff was
guilty in committing a trespass by meddling with the dog and thus not entitled to recover.

Synopsis of Rule of Law. In order to prove a case of trespass to chattels, there must be
damage to the chattel, the owner must be deprived of use of the chattel for a substantial
period of time, or bodily harm must result from the trespass.

Facts. Plaintiff, a four year-old girl, encountered a dog owned by Defendants. She
approached the dog, played with him and pulled his ears. The dog bit Plaintiff, and she
sued to recover for her injuries. Defendants argued that Plaintiff, in playing with the dog,
had committed trespass to chattels and was thus not entitled to recover.

Issue. Was Plaintiff's approach upon and subsequent play with the dog trespass to
chattels such as would bar recovery for her injuries?

Held. No. Judgment was entered for the Plaintiff.

• One who non-consensually uses or interferes with a chattel of another is

guilty of trespass if the chattel is damaged, the possessor is deprived of use
for a substantial time, or bodily harm is caused by the interference.

• Unlike trespass to land, trespass to chattels does not entitle one to

nominal damages. Some sort of damage must result from the interference
because sufficient legal protection of the inviolability of possession of a
chattel is found in the privilege to use reasonable force to maintain
possession.

Discussion. This case introduces the tort of trespass to chattels, albeit in the context of a
defense to another action. The Court sets forth the essential elements of the tort and
explains its distinction from trespass to land. Defendants' inability to prove any damage
to the dog doomed the invocation of trespass to chattels as a defense.
52 Compuserve, Inc. v. Cyber Promotions, Inc.
Compuserve, Inc. v. Cyber Promotions, Inc.

Citation. 962 F.Supp. 1015 (D. Ohio 1997).

Brief Fact Summary. Despite Plaintiff's request that they cease to do so, Defendants
continually distributed unsolicited e-mail advertisements to the subscribers of Plaintiff.
Although Plaintiff implemented measures to filter out Defendants' unsolicited messages,
Defendants reconfigured their messages so as to circumvent these measures and reach the
intended targets. Plaintiff sought to enjoin Defendants from continuing in its efforts to
send such unsolicited messages to its subscribers.

Synopsis of Rule of Law. Electronic signals sent via a computer are sufficiently tangible
to form the basis of a cause of action for trespass to chattels, and interference therewith
can be actionable.

Facts. Defendants distributed e-mail advertisements to Plaintiff's subscribers. Plaintiff

requested that Defendants stop, but Defendants continued. Plaintiff employed measures
to block Defendants' messages, but these measures were frequently circumvented.
Plaintiff obtained a temporary restraining order to block the messages, and then sought a
preliminary injunction to extend the duration of the blockage. Defendants argued that
Plaintiff's computer equipment and service was not dispossessed, and that this prevented
the issuance of such an injunction.

Issue. Is Plaintiff entitled to a preliminary injunction to block Defendants' messages

despite the fact that the computer equipment and service were not being dispossessed?

Held. Yes. The preliminary injunction was granted. Dispossession is only one example of
an occasion in which trespass to chattels has occurred. Such a trespass may also be found
when the chattel is damaged or devalued, the possessor is deprived of its use for a
substantial period of time, or bodily harm results from the interference with the chattel.

Discussion. This case again addresses the extent of interference with chattels that must
exist in order to be actionable. The Court rejected Defendants' argument that a plaintiff
must show actual dispossession of the chattel to find for a Plaintiff. Rather, any
actionable interference can give rise to a claim and, as this case demonstrates, an
injunction.
53 Pearson v. Dodd
Pearson v. Dodd

Citation. 410 F.2d 701, cert. denied, 395 U.S. 947, 89 S.Ct. 2021, 23 L.Ed.2d 465 (D.C.
Cir. 1969).

Brief Fact Summary. Staffers of Plaintiff, a United States Senator, repeatedly entered
his office and removed various documents. They made copies of the documents and
distributed the copies to Defendants, who published their contents. The originals were
returned to Plaintiff's office.

Synopsis of Rule of Law. Conversion is the intentional exercise of control or dominion

over a chattel that interferes with another's rights to control it with sufficient severity that
the party exercising such control may fairly be required to pay for its full value.

Facts. Defendants published articles based upon information contained in documents

stolen from Plaintiff's office. Defendants would receive the information from Plaintiff's
own employees, who would temporarily remove the documents from Plaintiff's office,
copy them, and return the originals to the office. Plaintiff sued for conversion. The
District Court ruled that the Defendants had committed conversion

Issue. Was the District Court correct in finding that Defendants committed conversion by
paying for and using the photocopies of Plaintiff's files?

• Was the information contained in the files in question properly subject to

protection under a lawsuit for conversion?

Held. No. The District Court's decision was reversed.

• The interference with Plaintiff's use of the files was not so severe as to
warrant payment for their entire value. The files were removed at night,
photocopied, and returned to their usual place. The interference with a
Plaintiff's use must be far greater for the tort of conversion, which
necessitates an award of the entire value of the property in question.

• The information in this case is not the sort of information properly

protected under conversion. In this case, the information involved was
internal correspondence and office records, while conversion protects
intellectual property, trade secrets, and the like.

Discussion. The Court sets forth the elements of conversion, noting its most striking
feature to be its award of the entire value of property with which interference has
occurred. As a result of this relatively drastic remedy, the interference must be severe.
The Court explains that a lesser interference will fall into the realm of trespass to chattels,
in which the measure of damages tends to be diminution in value.
54

C
H
A
P
T
E
R

I
I
I
.

P
r
i
v
i
l
e
g
e
s
55 O'Brien v. Cunard S.S. Co.
O'Brien v. Cunard S.S. Co.

Citation. 154 Mass. 272, 28 N.E. 266 (Mass. 1891).

Brief Fact Summary. Plaintiff was a passenger aboard one of Defendant's ships. She
was vaccinated while on the ship, and suffered from complications resulting in injury.
She sued for assault and negligence.

Synopsis of Rule of Law. When consent is used as a defense to an assault action, the
totality of the circumstances must be considered, but only overt acts and outward
manifestations may demonstrate such consent or lack thereof.

Facts. Plaintiff was given a vaccination while aboard on of Defendant's steamships.

Plaintiff suffered blistering and ulceration thereafter, and alleged this was due to the
vaccination. Plaintiff had presented herself to Defendant's surgeon in the quarantine area
and did not object when he indicated his intention to vaccinate her. Nevertheless, she
sued for assault and negligence. The trial court directed a verdict for Defendant on the
basis of consent.

Issue. Did the trial court err in directing a verdict for Defendant on the basis of consent?

Held. No. The judgment was affirmed. When one's overt acts and outward manifestations
of intent indicate consent to physical contact in light of the surrounding circumstances,
the making of such physical contact is consensual and therefore lawful.

Discussion. This case introduces the defense of consent into the law of torts. More
importantly, it sets forth the proper analysis of a claim of consent. As the Court explains,
such a defense will be analyzed according to the overt acts of the party attempting to
defeat the defense, and will be considered in light of the surrounding circumstances. The
defense of consent thus cannot be defeated on the basis of one's unexpressed feelings or
intentions. One must produce evidence to the effect that the other party had reason to
know consent was not given.
56 Hackbart v. Cincinnati Bengals, Inc.
Hackbart v. Cincinnati Bengals, Inc.

Citation. 601 F.2d, cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 188 (10th Cir.
1979).

Brief Fact Summary. Plaintiff, a professional football player, was injured when one of
Defendant's players intentionally struck him during a game. Both continued to play in the
game and did not make any complaints at the time. Plaintiff later sued to recover for his
injuries.

Synopsis of Rule of Law. Even in an inherently violent situation such as a game of

professional football, it is possible for one to go beyond its customs and so be liable for
injuries in tort.

Facts. Plaintiff was injured by one of Defendant's players in a professional football game.
Defendant's player intentionally struck Plaintiff, but was not found to have intended to
injure him. Neither of the two complained to officials at the time of the injury, but
Plaintiff later sued to collect for his personal injuries. The trial court took judicial notice
of the violent nature of professional football and found that the only remedies available to
Plaintiff would be those administered within the game.

Issue. Was the Trial Court correct in finding that Plaintiff had no remedy at law due to
the extremely violent nature of professional football?

Held. No. The judgment was reversed and remanded for a new trial. Despite the
generally violent nature of professional football, there are rules prohibiting certain
conduct such as the intentional striking of other players. The very existence of such rules
demonstrates that there are boundaries to what constitutes acceptable behavior in the
sport, and Plaintiff was entitled to a determination of whether his rights were violated.

Discussion. The Court was called upon to analyze an implied consent defense. The trial
court clearly found that one engaging in professional football was aware of its dangers
and therefore surrendered his rights to seek redress for injuries sustained in the process.
The Court explains here, however, that there is a question of scope to such consent, and
the mere understanding of a sport's generally violent nature does not extinguish all rights
to recover for truly egregious conduct that is beyond the pale even of what professional
football commonly entails.
57 Mohr v. Williams
Mohr v. Williams

Citation. 95 Minn. 261, 104 N.W. 12 (Minn. 1905).

Brief Fact Summary. Defendant was performing an operation upon Plaintiff's right ear
when he decided that the condition was not so serious as to warrant the operation. While
Plaintiff remained under anesthetic, Defendant discovered a more serious condition in her
left ear. Without awakening her to receive consent, he performed the operation on the left
ear.

Synopsis of Rule of Law. While implied consent for a surgeon or doctor to operate in
emergency, life-threatening situations may exist; the consent to perform one operation
does not automatically operate as consent to perform other, similar operations.

Facts. Defendant was to operate on Plaintiff's right ear for a medical condition. During
the operation, Defendant determined that the condition did not require the operation.
However, Defendant also discovered a more serious condition in Plaintiff's left ear.
Rather than awaken Plaintiff to receive consent, he simply performed the operation while
she remained under anesthetic. Plaintiff sued for battery and received a jury verdict.
Defendant's motion for a judgment notwithstanding the verdict was denied.

Issue. Did the trial court err when it denied Defendant's motion for judgment
notwithstanding the verdict on the basis of consent?

Held. No. The judgment was affirmed. Reasonable latitude must be afforded a surgeon or
physician in the course of medical procedures, but such discretion is not unfettered. In the
absence of express consent or implied consent justified by emergency, it is a question for
a jury whether one has consented to a medical procedure.

Discussion. The Court here addresses the scope of consent and the related issue of
implied consent in the medical context. In the case of an emergency, life-threatening
medical condition, implied consent exists to carry out procedures necessary to alleviate
the problem. Such a condition can exist independently, or can be found in the course of
performing another procedure. However, whether a situation is sufficiently life
threatening so as to warrant such consent is a question of fact for a jury.
58 De May v. Roberts
De May v. Roberts

Citation. 46 Mich. 160, 9 N.W. 146 (Mich. 1881).

Brief Fact Summary. Plaintiff Roberts had requested that Defendant De May, a doctor,
visit her house for medical purposes. He arrived along with a second person, Defendant
Scattergood, who was not a doctor. Plaintiff allowed both into her home and voiced no
objection to Scattergood's presence, but later sued for deceit.

Synopsis of Rule of Law. Consent given under false pretenses is not valid consent and
will not operate as a defense to a subsequent action.

Facts. Defendant De May, a doctor, visited the premises of Plaintiff. Because he was sick
and the roads were difficult to travel, De May brought Defendant Scattergood along to
assist him, even though Scattergood was not a doctor and was not invited to Plaintiff's
premises. When Defendants arrived, De May introduced Scattergood as his assistant, and
Plaintiff did not protest or object to his presence. Later, after discovering Scattergood's
identity, Plaintiff brought suit for deceit. Defendants argued she had consented to
Scattergood's presence. Judgment was entered for the Plaintiff.

Issue. Should judgment have been entered for the Plaintiff even though she did not object
to Scattergood's presence?

Held. Yes. The judgment was affirmed. The consent to Scattergood's presence was
clearly predicated upon the Plaintiff's mistaken belief that he was a physician. As the
Defendants fostered this belief, it cannot give rise to a valid claim of consent.

Discussion. This case demonstrates that the mere expression of consent of itself is not
necessarily sufficient. The consent must be made with knowledge of the relevant facts to
operate as a valid defense in a subsequent tort action. Consent given under a
misapprehension of pertinent facts is of no moment.
59 Katko v. Briney
Katko v. Briney

Citation. 183 N.W.2d 657 (Iowa 1971).

Brief Fact Summary. Plaintiff broke into and entered a farmhouse owned but not
occupied by Defendant for the purposes of theft. Plaintiff was injured in the process by a
"spring gun" trap Defendant had set to thwart intruders. Although "no trespass" signs
were posted on the property, no warning about the trap was posted.

Synopsis of Rule of Law. No privilege exists to use force intended or likely to cause
death or great bodily harm to prevent trespass to land or chattels unless the trespass
threatens death or great bodily harm to the occupier or user of the land or chattel.

Facts. Plaintiff broke into a farmhouse owned but not occupied by Defendant to steal
items he might find inside. Unbeknownst to the Plaintiff, Defendant had set a shotgun
trap inside, and the gun fired at and injured Plaintiff when he entered the house.
Defendant testified that he had placed the trap because he was tired of people breaking
into the farmhouse, but did not intend to injure anyone. There were "no trespass" signs
posted around the farmhouse, but no indications of any traps therein. The Trial Court
instructed the jury that such a spring gun trap was prohibited unless it was used to prevent
a trespasser from committing a felony of violence or punishable by death. The jury
returned a verdict for Plaintiff and the Trial Court denied motions for judgment
notwithstanding the verdict. The Defendant appealed.

Issue. Was the Trial Court correct to instruct the jury that such a trap could not be used
except to prevent a trespasser from committing a felony of violence or punishable by
death and to deny the motion for judgment notwithstanding the verdict?

Held. Yes. The judgment was affirmed.

• The Trial Court's instructions were correct. A privilege to use means

intended or likely to cause death or great bodily harm in order to prevent
trespass to land or chattels exists only when the trespasser is committing a
felony of violence or punishable by death. Such was not the case here.

• Criminal liability may also result from the use of such traps.

Dissent. The instructions made no provision for the possibility that the device was set
with no intent to actually strike or harm an intruder, and previous cases on the subject
dealt with intrusions to a vineyard, not a burglary such as this.

Discussion. The Court acknowledges one's rights to protect against trespasses, but places
important limitations upon those rights. Of paramount concern, the Court explains, is the
value of human life and well-being. It is therefore necessary that actions risking loss of
human life or damage to well being are prohibited except under circumstances when
another party has already created a risk to either.
60 Hodgeden v. Hubbard
Hodgeden v. Hubbard

Citation. 18 Vt. 504, 46 Am.Dec. 167 (Vt. 1846).

Brief Fact Summary. Plaintiff purchased a stove from Defendants on credit and took it
away. Defendants quickly discovered that Plaintiff's credit information was false and
immediately set out to overtake him and recover the stove. Defendants ultimately retook
the stove by force, and Plaintiff sued for assault and battery.

Synopsis of Rule of Law. One has a right to retake property that is rightfully his so long
as it can be done without unnecessary violence to the person and without creating a
breach of the peace.

Facts. Plaintiff went to a warehouse owned by Defendants to purchase a stove. He

supplied Defendants with credit information to consummate the purchase and left with
the stove. Defendants discovered that Plaintiff's credit and assets were not what he
claimed and they sought to recover the stove. They eventually overtook him and, after
Plaintiff drew a knife, forcibly extracted the stove from his possession. At trial for assault
and battery, the court instructed the jury that Defendants were not entitled to use force to
recover the stove, even though Plaintiff misrepresented his credit. Plaintiff was awarded
$1, and the Defendants appealed.

Issue. Was the trial court correct in instructing the jury that Defendants were liable to
Plaintiff if they used any force at all in retaking the stove?

Held. No. The judgment was reversed and remanded. The stove was passed to Plaintiff
under false pretenses, leaving all rights to its possession with Defendants. Defendants
therefore were privileged to retake the property if this could be accomplished without
unnecessary violence or breach of the peace. Only if Defendants used unnecessary
violence or breached the peace were they liable to Plaintiff.

Discussion. This case recognizes the privilege an owner of property has to recover that
property when it is wrongfully taken. The most important aspect of this ruling is the
limitation placed upon that privilege. Once again, of primary concern is the prevention of
violence and breach of the peace.
61 Bonkowski v. Arlan's Department Store
Bonkowski v. Arlan's Department Store

Citation. 12 Mich.App. 88, 162 N.W.2d 347 (Mich. Ct. App. 1968).

Brief Fact Summary. Plaintiff had left Defendant department store after shopping.
Defendant Reinhardt, a security guard working for the store approached her in the
parking lot and asked to see the contents of her purse. He determined that, despite reports
of another witness, Plaintiff had not stolen anything and returned to the store.

Synopsis of Rule of Law. There exists a privilege for merchants or shopkeepers to detain
those whom they reasonably believe to have unlawfully taken chattels for a reasonable
investigation and thereby avoid liability for false imprisonment.

Facts. Plaintiff had been shopping at the Defendant department store. Defendant
approached Plaintiff in the parking lot and explained that someone had told him that she
had placed jewelry in her purse and not paid for it. He requested that she show him the
contents of her purse, which she did. Defendant was satisfied by the presence of receipts
that she had not stolen anything. Plaintiff later sued Defendant and the store for false
imprisonment and slander. The jury returned a verdict for Plaintiff in the amount of
$43,750. The trial court denied Defendants' post-trial motions.

Issue. Was the trial court correct in denying the Defendants' motion for judgment
notwithstanding the verdict on the basis of privilege?

Held. No. Reversed and remanded for new trial. If Defendant reasonably believed that
Plaintiff had unlawfully taken items form the store, he was privileged to detain the
Plaintiff for a reasonable investigation.

Discussion. This case introduces the shopkeeper or merchant's privilege to detain a

suspected shoplifter for investigation. There are two important issues with respect to the
privilege: 1) whether there was a reasonable belief that an item had been unlawfully
taken; and 2) whether the investigation undertaken in response to this belief was
reasonable. Satisfaction of both elements will provide a defense to a claim of false
imprisonment.
62 Surocco v. Geary
Surocco v. Geary

Citation. 3 Cal. 69, 58 Am.Dec. 385 (Cal. 1853).

Brief Fact Summary. Defendant, the Alcalde of San Francisco, destroyed Plaintiffs'
house in an attempt to halt the progression of a fire in the city. Plaintiffs sued to recover
for the damages sustained by the destruction.

Synopsis of Rule of Law. Otherwise tortious acts may be rendered non-tortious when
necessity dictates that they be undertaken for the greater interests of society.

Facts. Defendant had Plaintiffs' house destroyed in an effort to save many more buildings
from a fire. Plaintiffs sued to recover for the damages to his property. Judgment was
entered for Plaintiffs, and the Defendant appealed.

Issue. Was Defendant privileged to destroy Plaintiffs' house in order to halt the spread of
the fire?

Held. Yes. The judgment was reversed. The private rights of an individual in a house that
is in danger of spreading flame to other houses and thus an entire city yield to the interest
in protecting against such a spread. In such case, one is privileged to destroy the house to
stop the spread.

Discussion. In this case, the Court recognizes the common law privilege of necessity. In
cases involving a fire that is likely to spread, an individual is privileged to destroy the
house when such destruction is necessary to halt the spread. No recovery may be had for
the damages flowing from such a necessary destruction.
63 Vincent v. Lake Erie Transp. Co.
Vincent v. Lake Erie Transp. Co.

Citation. 109 Minn. 456, 124 N.W. 221 (Minn. 1910).

Brief Fact Summary. Defendant's steamship was moored to Plaintiffs' dock to unload
cargo. A massive storm prevented the arrival of tugboats to remove the steamship after
the unloading. Rather than cast the ship adrift, Defendant's employees kept the boat
moored to the dock, which resulted in damage.

Synopsis of Rule of Law. One who takes actions to protect his property that result in
damage to another's property is required to compensate for those damages, even when the
actions taken were necessary to prevent the destruction of his own property.

Facts. Defendant's steamship was moored to a dock owned by Plaintiffs to allow for the
unloading of cargo. By the time the unloading was complete, the weather had grown so
perilous that no tugboats could enter the area and remove the ship. Rather than risk the
ship's loss or destruction by untying it from the dock, Defendant's employees kept the
mooring intact, which resulted in damage to the dock. Plaintiffs sued to recover for the
damage caused by the ship's continued mooring. After a jury trial, a verdict was entered
for Plaintiffs. The trial court denied Defendant's motion for a new trial, and Defendant
appealed.

Issue. Did the trial court properly deny Defendant's motion for a new trial on the basis of
necessity?

Held. Yes. The judgment was affirmed. While necessity may sometimes require that one
individual use the property of another to avoid destruction of his own property, the party
whose property is damaged is entitled to compensation.

Discussion. The Court here distinguishes between public necessity for the greater good
of society and private necessity for the good of one's own property. In the case of public
necessity, compensation is not required for resulting damage. In the case of private
necessity, however, while one may be entitled to use another's property and the act of so
doing is thus not considered unlawful, any resulting damage must be compensated.
64 Sindle v. New York Transit Authority
Sindle v. New York Transit Authority

Citation. 33 N.Y.2d 293, 307 N.E.2d 245, 352 N.Y.S.2d 183 (N.Y. 1973).

Brief Fact Summary. Plaintiff was a passenger on a school bus owned by Defendant
transit authority and driven by Defendant Mooney. Students aboard the bus were
behaving rather disobediently and causing damage to the bus despite Defendant's
admonitions. Ultimately, Defendant bypassed the usual stops and took the Plaintiff and a
few other students to a police station.

Synopsis of Rule of Law. Reasonable restraint or detention undertaken with the aim of
preventing another from inflicting personal injury or damaging property is not unlawful.

Facts. Plaintiff was a student and passenger aboard a school bus owned by the transit
authority and driven by Defendant. Several of the students aboard the bus were engaged
in raucous behavior and caused damage to the bus. Defendant repeatedly told them to
behave, but to no avail. Finally, after he had inspected the damage, Defendant informed
the students that he was taking them to the police. He stopped making the usual stops and
delivered the students to the police. Plaintiff sued for false imprisonment. At trial,
Defendant argued his actions were justified, but the trial court excluded evidence of
justification. Judgment was entered for Plaintiff and the Appellate Division affirmed and
Defendants timely appealed.

Issue. Did the trial court abuse its discretion in excluding the evidence of justification
proffered by Defendants?

Held. Yes. The judgment was reversed and remanded for a new trial.

• One is justified in restraining or detaining another in a manner

reasonable under the circumstances to prevent personal injury or damage
to property, and evidence regarding such justification should not have
been excluded in evaluating this claim of false imprisonment.

• A parent, guardian, or teacher entrusted with care of a child is justified in

using that physical force reasonably necessary for discipline or the child's
own welfare.

• It is the Defendant's burden to plead and prove justification.

Discussion. The Court introduces the defense of justification for the use of physical
force. In finding justification, the Court focuses upon the bus driver's role as the
supervisor of the students on the bus, creating a special relationship between the parties.
The Court also notes that the burden is on the Defendant to prove justification.
65

C
H
A
P
T
E
R

I
V
.

N
e
g
l
i
g
e
n
c
e
66 Lubitz v. Wells
Lubitz v. Wells

Citation. 19 Conn.Sup. 322, 113 A.2d 147 (Conn. 1955).

Brief Fact Summary. Defendant Wells, Sr. left a gold club lying in his yard. His son,
Defendant Wells, Jr. and his friend, Plaintiff, were playing in the yard when Wells, Jr.
discovered the club. Wells, Jr. picked up the club and swung it, striking the Plaintiff in
the face and injuring her.

Synopsis of Rule of Law. A golf club is not so inherently dangerous that leaving it lying
in a yard can constitute negligence.

Facts. After Plaintiff was accidentally struck by a golf club wielded by Defendant Wells,
Jr., she brought suit against Wells, Jr. and Wells, Sr., who had left the club lying in his
yard. Wells, Jr. was accused of being negligent in swinging the golf club and failing to
warn the Plaintiff that she might be struck. Wells, Sr. was accused of behaving
negligently by leaving the club in the yard where children might play with it. The
Defendants brought a demurrer against the action stated against Wells, Sr.

Issue. Does leaving a golf club lying in a yard where children might find it qualify as
negligence?

Held. No. The demurrer as to the Plaintiff's action against Wells, Sr. was sustained. A
golf club is not so inherently dangerous that leaving it where children could play with it
and hurt themselves could constitute negligence.

Discussion. Something greater than the realization that some possible injury could result
from leaving an item on the ground is required to sustain a negligence claim. For the
discarding of such an item to give rise to negligence, it must be obviously or intrinsically
dangerous.
67 Blyth v. Birmingham Waterworks Co.
Blyth v. Birmingham Waterworks Co.

Citation. 11 Exch. 781, 156 Eng. Rep. 1047 (Court of Exchequer 1856).

Brief Fact Summary. Defendants had installed water mains along the street with
hydrants located at various points. One of the hydrants across from Plaintiff's house
developed a leak as a result of exceedingly cold temperatures and caused water damage
to the house. Plaintiff sued for negligence.

Synopsis of Rule of Law. Negligence is the failure to do something a person of ordinary

prudence would do or the taking of an action that a person of ordinary prudence would
not take. A mere accident that is not occasioned by the failure to take such an action or
the taking of such an action does not qualify as negligence.

Facts. Plaintiff sued to recover for damages sustained when a water plug installed by the
Defendants sprung a leak and doused the Plaintiff's house. The plug had been installed 25
years prior to the incident, which was caused by extraordinarily cold weather. Prior to the
incident, there had been no problems with the plug. The jury was allowed to pass upon
the question of the Defendants' negligence and returned a verdict for Plaintiff.

Issue. Was the jury properly allowed to consider whether Defendants were guilty of
negligence?

Held. No. Verdict was entered for Defendants. No evidence was entered showing any
acts or failures to act on the part of Defendants such as could comprise negligence. The
evidence showed that Defendants routinely took precautions against cold weather, and
that only due to a particularly and unforeseeably cold winter did any damage occur. This
was properly characterized as an accident, not as negligence.

Discussion. The Court distills the essence of basic negligence. The mere fact that
someone has been injured by another or another's property does not mean negligence has
occurred. Rather, one must act or fail to act in a way that someone of ordinary prudence
would not act or fail to act. Otherwise, there is no fault and no liability.
68 Gulf Refining Co. v. Williams
Gulf Refining Co. v. Williams

Citation. 183 Miss. 723, 185 So. 234 (Miss. 1938).

Brief Fact Summary. Plaintiff was injured after a gasoline container delivered by
Defendant exploded while he was trying to remove its cap. The explosion occurred as a
result of a spark caused by worn threads on the cap. Plaintiff sued to recover for his
personal injuries.

Synopsis of Rule of Law. Foreseeability of a harm is the existence of such a likelihood

of damage so as to induce action to take care against it on the part of a reasonably prudent
person.

Facts. The Defendant delivered a gasoline container to Plaintiff for use in refueling a
tractor. The container had been in use for about nine years and was in a state of
considerable disrepair. When Plaintiff went to refuel the tractor, he removed the
container's cap and the gasoline exploded, causing him great injury. The jury found
Defendant liable for Plaintiff's injuries. Defendant appealed, arguing that the explosion
was so unusual, extraordinary, and unforeseeable that they cannot be held liable for
damages resulting from its occurrence.

Issue. Was the damage inflicted upon Plaintiff foreseeable so as to give rise to a claim for
negligence based upon the failure to take steps to safeguard against it?

Held. Yes. The judgment was affirmed. The state of the gasoline container, as was
known to Defendant, was such that a reasonable person should have anticipated that its
disrepair could cause an explosion and thus should have taken care to safeguard against
such a result. Defendant's failure to do so subjected it to liability.

Discussion. This case attempts to define the concept of foreseeability. As the Court
explains, such foreseeability as can give rise to negligence can be found when there exists
sufficient likelihood of damage to induce a reasonably prudent person to take care against
it.
69 Chicago B. & Q.R. Co. v. Krayenbuhl
Chicago B. & Q.R. Co. v. Krayenbuhl

Citation. 65 Neb. 89, 91 N.W. 880 (Neb. 1902).

Brief Fact Summary. Plaintiff, a four year-old child, was injured while playing on
dangerous equipment owned and operated by Defendant, a railroad company. Despite the
fact that Defendant had rules requiring the equipment to be locked and inaccessible to
members of the public, Plaintiff was able to access it when he discovered it. Plaintiff was
injured while playing on the equipment, and sued for negligence.

Synopsis of Rule of Law. With respect to dangerous instrumentalities, the character,

location, and utility of the instrumentality as well as the ease of making it safer must be
taken into account in determining what degree of precaution is necessary so as not to be
negligent.

Facts. Defendant owned and operated railroad equipment. Defendant had guidelines
requiring that dangerous railroad equipment remain locked when not in use, but these
guidelines were frequently ignored. When the Plaintiff came upon such equipment owned
by the Defendant, it was unlocked and the Plaintiff was injured while playing on it. Trial
resulted in a verdict for the Plaintiff, and the Defendant appealed.

Issue. Was the Defendant negligent in failing to safeguard against the Plaintiff's injuries?

Held. Probably. When, under all relevant circumstances, one fails to take such
precautions as would one of reasonable prudence, he has acted negligently and is liable
for the damages resulting from that negligence. In this case, the use of a lock to prevent
public access to the equipment is such a minimal restriction upon the equipment's utility
that the failure to keep such a lock in place likely amounted to negligence. However, the
trial judge improperly commented upon the evidence, necessitating a new trial.

Discussion. The Court tackles the difficult issue of the appropriate standard of care with
respect to inherently dangerous but necessary instrumentalities of business. The Court
determines that the appropriate approach is to analyze the character, location, and utility
of the instrumentality as well as the ease of making it safer. One is negligent when, under
all relevant circumstances, he has failed to take such precautions, as would one of
reasonable prudence.
70 Davison v. Snohomish County
Davison v. Snohomish County

Citation. 149 Wash. 109, 270 P. 422 (Wash. 1928).

Brief Fact Summary. Plaintiffs were driving their car across a bridge, at which point the
car lost control and drove off the road, over the guardrail. Plaintiffs suffered severe
injuries and wrecked their automobile. Plaintiffs brought an action to recover for their
damages.

Synopsis of Rule of Law. While municipalities are required to maintain roads for public
use, there are limitations to the extent of safety that can be provided to all roads. For
elevated causeways or viaducts, municipalities are required only to take such measures as
are reasonable to prevent against injury. Absolute safety cannot be guaranteed.

Facts. Plaintiffs suffered from damages after the car they were driving went off the road
as they made a turn. Plaintiffs sued for the resulting damages, arguing that the road was
not sufficiently maintained so as to prevent the accident or at least diminish the damages.
Defendants argued that Plaintiffs were guilty of contributory negligence in operating their
vehicle. The verdict was for the Plaintiff, and the trial court denied Defendant's motion
for judgment notwithstanding the verdict.

Issue. Did the trial court err in denying Defendants' motion on the basis of contributory
negligence?

Held. Yes. There was insufficient evidence to warrant submitting the question of
negligence to the jury. The judgment was reversed with instructions to dismiss the action.

Discussion. The Court acknowledges that municipalities have certain duties with respect
to road maintenance. The Court further acknowledges that some roads can be rendered
quite safe by the expenditure of additional money. The Court points out, however, that
for cases such as this, in which only a certain degree of safety can reasonably be attained,
a municipality is not negligent for failing to somehow make these roads safer.
71 United States v. Carroll Towing Co.
United States v. Carroll Towing Co.

Citation. 159 F.2d 169 (2d Cir. 1947).

Brief Fact Summary. A ship owned by the Conner Company had its mooring lines
shifted by a tugboat working for Defendant. As a result, the ship broke free from the pier,
drifted, collided with a tanker, and sank. The ship's cargo, flour belonging to the United
States, was lost as a result.

Synopsis of Rule of Law. In the event that a ship breaks its moorings, its owner's duty is
a function of 1) the probability that the ship will break away; 2) the gravity of the injury
resulting; and 3) the burden of necessary precautions.

Facts. A tugboat working for Defendant caused the mooring lines of a ship carrying
cargo owned by the United States to shift. Nobody was aboard the ship or the tugboat to
stop the lines from shifting. The ship ultimately sunk as a result, and the cargo was lost.
The United States sought compensation for the lost cargo. The trial court divided the
damages between the Conner Company and Defendant.

Issue. Was Defendant negligent in failing to have a Bargee aboard the ship to prevent
against such injury?

Held. Yes. To have no Bargee aboard the ship for a period of twenty-one hours was
negligent.

Discussion. This case introduces Learned Hand's tripartite test for analyzing negligence.
The Court explained that liability for negligence in such cases is dependent upon whether
the burden of taking adequate precautions is less than the likelihood that an injury will
occur multiplied by its gravity. When the burden is less than that product, negligence has
been committed.
72 Vaughan v. Menlove
Vaughan v. Menlove

Citation. 3 Bing. (N.C.) 467, 132 Eng. Rep. 490 (Court of Common Pleas 1837).

Brief Fact Summary. Defendant paced a stack of hay near cottages owned by Plaintiff.
Defendant was warned that there was a substantial possibility that the hay would ignite,
and Defendant replied that he would "chance it". The hay eventually did ignite and burn
Plaintiff's cottages, and Plaintiff sued to recover for their value.

Synopsis of Rule of Law. The standard for negligence is an objective one. One has
behaved negligently if he has acted in a way contrary to how a reasonably prudent person
would have acted under similar circumstances.

Facts. Defendant was warned that his haystacks posed a substantial risk of igniting and
damaging Plaintiff's cottages. He disregarded these warnings and kept the hay in place.
The hay did ignite and damage Plaintiff's cottages, and Plaintiff brought suit for
negligence. The trial court instructed the jury that the issue was whether the fire was
occasioned by gross negligence, and explained that Defendant was bound to act as a
reasonable man would have under the circumstances. The jury found for Plaintiff, but
Defendant obtained a ruling on the ground that the jury should have been instructed to
find negligence only if it found Defendant had not acted to the best of his own judgment.

Issue. Was the trial court correct in instructing the jury that whether or not Defendant had
been negligent was to be evaluated from an objective standpoint, not taking Defendant's
intellectual limitations into account.

Held. Yes. The standard of negligence is an objective one. The ruling was discharged.

Discussion. This case rejects the argument that a Defendant's particular sensibilities or
weaknesses should be taken into account in evaluating negligence claims. Rather, one
must look only to whether one has acted as would a reasonably prudent person under
similar circumstances.
73 Delair v. McAdoo
Delair v. McAdoo

Citation. 324 Pa. 392, 188 A. 181 (Pa. 1936).

Brief Fact Summary. Defendant attempted to pass Plaintiff as they were driving in their
cars. Defendant's tire exploded as they were alongside one another, causing a collision.
Plaintiff sued Defendant for negligence.

Synopsis of Rule of Law. Drivers are required to know the condition of the parts of their
vehicles that may become dangerous when their dangerous condition could be found
through a reasonable inspection.

Facts. While driving, Defendant attempted to pass Plaintiff. When Defendant drew
alongside Plaintiff, one of his tires blew out, causing the cars to collide. Plaintiff sued for
negligence, claiming that Defendant was negligent in driving on tires that were poorly
maintained. The jury returned a verdict for Plaintiff, and Defendant moved for a
judgment notwithstanding the verdict.

Issue. Was the trial court correct in refusing to grant Defendant's motion for a judgment
notwithstanding the verdict on the ground that he did not know his tires were in a
dangerous state?

Held. Yes. The judgment was affirmed. The jury was qualified to determine that the tires
were in a dangerous state and that Defendant was negligent in driving upon them.

Discussion. The Court rules that those driving automobiles are required to take certain
precautions to maintain them. When a reasonable inspection would disclose a dangerous
condition in an automobile, a party is charged with that knowledge and is guilty of
negligence when he ignores it and drives in spite of it.
74 Trimarco v. Klein
Trimarco v. Klein

Citation. 56 N.Y.2d 98, 436 N.E.2d 502, 451 N.Y.S.2d 52 (N.Y. 1982).

Brief Fact Summary. Plaintiff suffered severe injuries when the glass of a bathtub he
was in shattered. Defendants owned the building in which the incident occurred, and had
used ordinary glass for the bathtub enclosure despite the common practice of using
shatterproof glass in such cases. Plaintiff sued for his personal injuries.

Synopsis of Rule of Law. When custom and practice have removed certain dangers, the
custom may be used as evidence that one has failed to act as is required under the
circumstances.

Facts. The shattering of a bathtub enclosure's glass door led to Plaintiff's severe injury.
Defendants owned the building in which this occurred, and had used ordinary as opposed
to shatterproof glass in constructing the enclosure. Plaintiff sued to recover for his
injuries, and received a substantial judgment. The Appellate Division reversed and
dismissed the complaint.

Issue. Was Defendants' failure to use safety or plastic glass conclusive proof that they
had not acted with due care so as to warrant liability?

Held. No. Although custom and practice can has definite relevance to whether or not one
has acted with due care, it remains a jury question whether one has acted with due care
under particular circumstances.

• Proof of the existence of a custom and practice coupled with evidence

showing adherence to it may establish one has acted with due care.

• Proof of the existence of a custom and practice coupled with evidence

showing failure to adhere to it may establish liability.

Discussion. This case demonstrates that custom and practice can be important in
evaluating the appropriate standard of acre in negligence cases. However, even after such
custom and practice are established, adherence or non-adherence thereto is not conclusive
proof of liability or innocence.
75 Cordas v. Peerless Transportation Co.
Cordas v. Peerless Transportation Co.

Citation. 27 N.Y. S 2d 198 (1941).

Brief Fact Summary. A taxi driver working for the Defendant, Peerless Transportation
Co. (Defendant), jumped from his taxi while it was running to escape an armed
highwayman who was being pursued by his victim. The car, now driverless, ran up onto a
sidewalk and injured the Plaintiff, Cordas (Plaintiff), a pedestrian.

Synopsis of Rule of Law. Reasonable and prudent action is based on the set of
circumstances under which the actions took place.

Facts. A driver working for the Defendant's taxi company, jumped from a running taxi
when a highwayman entered the taxi and demanded to be driven away while being
chased by a recent victim. The driver left the cab while it was still running and it
subsequently ran up onto a sidewalk and injured the Plaintiff and her two children.

Issue. Whether abandoning a running car is reasonable behavior.

Held. The driver was not negligent in this case, as his actions were in response to an
emergency situation.

Discussion. Negligence is defined as the failure to exercise that care and caution which a
reasonable and prudent person ordinarily would exercise under like conditions or
circumstances. In an emergency situation, the law does not hold a person to the same
standards as if he had opportunity for deliberate action. The circumstances dictate what is
or is not prudent action.
76 Roberts v. State of Louisiana
Roberts v. State of Louisiana

Citation. 396 So. 2d 566 (1981).

Brief Fact Summary. The Plaintiff, Roberts (Plaintiff), fell and broke his hip when a
blind man bumped him into.

Synopsis of Rule of Law. The handicapped are held to a reasonable standard of care for
a person with their disability, the handicap is considered part of the circumstances.

Facts. The Plaintiff, an elderly gentleman, sued the Defendant, the State of Louisiana
(Defendant), when he fell and broke his hip after being bumped into by the blind operator
of the concession stand at the United States Post Office Building. The concession
operator failed to use his cane while walking from his stand to the bathroom when the
accident occurred. At trial, the Plaintiff's suit was dismissed.

Issue. Was it reasonable for a blind man to walk from his place of employment to the
restroom without the use of his cane?

Held. The concession operator was not negligent and therefore the trial courts' ruling is
upheld.

Discussion. Because the blind operator, Burson, had worked at the vending stand for
several years and because he testified that he does not use a cane for short trips within
familiar buildings, Burson was not acting negligently when he bumped into the Plaintiff.
The court also looked at the testimony of the director of the Division of Blind Services
who said that nine out of ten blind persons do not use their canes when moving about
familiar surroundings. The court also considered Burson's testimony that he had special
training in moving about without a cane. Burson's actions were reasonable for a blind
person, working in a familiar setting, with special training on moving about without the
use of a cane.
77 Robinson v. Lindsay
Robinson v. Lindsay

Citation. 598 P. 2d 392 (1979).

Brief Fact Summary. The plaintiff, an eleven-year-old girl, lost the use of her thumb as
a result of a snowmobile accident. The driver of the snowmobile was a thirteen-year-old
boy.

Synopsis of Rule of Law. When a child causes injury by engaging in dangerous or adult
conduct, they are held to an adult standard of care.

Facts. This case was brought on behalf of Kelly Robinson, a minor, for the injuries she
sustained during a snowmobile accident that cost her the use of her thumb. The driver of
the snowmobile at the time of the accident was a thirteen-year-old boy. A jury verdict
was entered in favor of the boy and a new trial was ordered.

Issue. Whether to apply an adult standard of care to acts of children who engage in adult
behavior.

Held. Children who engage in hazardous activity are to be held to the same standard of
care that an adult would be held to.

Discussion. Courts have traditionally given children a flexible standard of care to

determine their negligence. Children are expected to exercise the degree of care and
discretion that is reasonable of a child of their particular age. The standard looks at the
age of the child, intelligence, maturity, training and experience. But there are some
circumstances where it is appropriate to apply an adult standard. When operating a
motorized vehicle, or taking part in a dangerous activity, children should be held to an
adult standard of care because this will discourage them from engaging in the activity.
When a child operates a motorized vehicle, he should be held to an adult standard of care
because the chances of injury and accident are increased.
78 Breunig v. American Family Ins. Co.
Breunig v. American Family Ins. Co.

Citation. 173 N.W. 2d 619 (1970).

Brief Fact Summary. The Plaintiff, Breunig (Plaintiff), was injured in a car accident
when Erma Veith (Ms. Veith), the Defendant, American Family Ins. Co.'s (Defendant)
insured, drove her car into the Plaintiff's truck after suffering a schizophrenic attack.

Synopsis of Rule of Law. It is unjust to hold a person to a reasonable person standard in

evaluating their negligence when a mental illness comes on suddenly and without
forewarning causing injury to another.

Facts. Ms. Veith was driving home when she saw a white light on the back of the car
ahead of her and followed it for three or four blocks. The next thing she recalled she was
lying in a field on the side of the road. At trial, a psychiatrist testified that Ms. Veith told
him that she believed God took control of the car and she stepped on the gas when she
saw the Plaintiff's truck coming towards her because she knew she would become
airborne. The psychiatrist testified that while driving her car, Ms. Veith was not able to
operate the vehicle with a conscious mind because she suffered from a schizophrenic
reaction of which she had no forewarning.

Issue. Whether mental illness is an exception to the reasonable person standard.

Held. Although generally insanity is not a defense to negligence, when the insanity is
unforeseen and unavoidable, it is unjust to hold a person responsible for the conduct that
caused the injury.

Discussion. The effect of mental illness on liability depends on the nature of the insanity.
The illness or hallucination must affect the person's ability to understand and act with
ordinary care. For insanity to be an exception to liability, there must also be an absence of
notice or forewarning that the person might be subject to the illness or insanity. In
situations where the insanity or illness is known, liability attaches. But in this case, where
the driver was suddenly overcome by a disability that incapacitated her from conforming
her conduct to that of a reasonable person, the general policy is too broad. It is unjust to
hold a person responsible for conduct that they are incapable of avoiding.
79 Heath v. Swift Wings, Inc.
Heath v. Swift Wings, Inc.

Citation. 252 S.E. 2d 526 (1979).

Brief Fact Summary. Pilot error caused an airplane crash, killing the pilot and the
passengers.

Synopsis of Rule of Law. A professional standard of care is not a subjective standard, it

is an objective standard predicated on the rules and guidelines of the profession.

Facts. This suit is the result of an airplane crash that charges the pilot with negligence.
The pilot and his passengers all died as a result of the crash. According to the widow of
the passenger, the pilot spent a long time loading and reloading the small aircraft prior to
take off. There was evidence that the plane was not properly balanced. At trial, an expert
testified that in his opinion the pilot should have used flaps to aid in the takeoff and
should have made a controlled landing shortly after takeoff. In the expert's opinion, had
the pilot taken these measures, the crash would have been avoided. The jury found there
was no pilot error after receiving a jury instruction containing a definition of negligence
that focused on the defendant's own experience and training.

Issue. Whether professionals should be held to an industry standard of care or one that is
predicated on their individual experiences and training.

Held. The proper standard of care for professional negligence is an objective standard,
using minimum industry standards and not looking into the individual's actual training or
experience. The jury instruction instead created a subjective standard by focusing on the
defendant's personal training.

Discussion. The jury instructions in this case imposed a subjective standard by asking the
jury to decide if the pilot acted in a reasonably prudent manner given the pilot's own
particular experience and training. Instead, the pilot's actions are to be measured by an
industry standard that is applicable to all pilots. By using an objective standard the court
avoids imposing a different standard of care for each case.
80 Hodges v. Carter
Hodges v. Carter

Citation. 80 S.E. 2d 144 (1954).

Brief Fact Summary. The Plaintiff, Hodges (Plaintiff), is suing the Defendants, his
former attorneys (Defendants), alleging that they negligently prosecuted his insurance
claims against out of state insurance companies when the attorneys failed to properly
serve the complaints.

Synopsis of Rule of Law. Attorneys are not liable for errors in judgment or mistakes of
law if they are made in good faith and the attorney uses reasonable care and diligence that
other attorneys similarly situated would use.

Facts. The Plaintiff lost his drug store in a fire in 1948 and subsequently filed four
separate insurance claims pursuant to policies he held. The four claims were denied and
the Plaintiff then sought recovery in the courts. In four separate actions, the Defendants
served each insurance company through the Commissioner of Insurance. The insurance
companies claimed improper service of process and the trial courts concluded that service
was proper. However, that decision was appealed and reversed by the Supreme Court of
North Carolina. In 1952, the Plaintiff then filed this suit against the Defendants alleging
they were negligent in prosecuting his actions. The trial court found for the Defendants
and the Plaintiff now appeals.

Issue. Whether Plaintiff's attorneys were negligent in failing to properly serve the
Plaintiff's complaints against his insurance companies.

Held. The Defendants were not negligent in the prosecution of Plaintiff's cases against
the insurance companies.

Discussion. An attorney is not liable for an error of judgement or for a mistake made on a
point of law, when that point of law has not been settled by the highest court in the
jurisdiction. An attorney is liable for loss to the client that results from a lack of
knowledge or skill that would ordinarily be possessed by others in the profession, failure
to use reasonable care and diligence and failure to exercise good faith. Because the
Defendants followed a custom that had been in place in North Carolina regarding service
of process for twenty years and because the Defendants had obtained a judicial
declaration from the Superior Courts that the Commissioner's acceptance of service
subjected the insurance companies to the court's jurisdiction, they did not act negligently
in prosecuting the Plaintiff's case.
81 Boyce v. Brown
Boyce v. Brown

Citation. 77 P.2d 455 (1938).

Brief Fact Summary. Nannie Boyce (Ms. Boyce) suffered pain and disability seven
years after the Defendant, Brown (Defendant), placed a metal screw in her ankle. The
Plaintiffs, Nannie and Berlie Boyce (Plaintiffs), sued the Defendant.

Synopsis of Rule of Law. Medical malpractice can only be shown where, by expert
testimony, it is established that the doctor acted outside of the community norms in their
treatment of the patient.

Facts. Ms. Boyce sought the services of the Defendant, a medical doctor, to reduce a
fracture of her ankle. The Defendant performed the operation, using a metal screw to
keep the bones in place. Seven years latter, the Ms. Boyce returned to the defendant
complaining of pain in her ankle. The Defendant examined the ankle and wrapped it
before sending her home. For the next two years, the ankle continued to worsen and Ms.
Boyce eventually saw a second doctor who surgically removed the screw, offering Ms.
Boyce a full recovery. The Plaintiffs sued the Defendant for malpractice, claiming he was
negligent in not removing the screw when Ms. Boyce returned to his office seven years
after surgery. At trial, the second doctor testified to the condition of Ms. Boyce's ankle at
the time she was seen by him, but could not say if the Defendant acted outside the scope
of proper medical standards when the Plaintiff was seen two years prior.

Issue. Whether the Defendant was negligent when he failed to remove the screw from the
Ms. Boyce's ankle.

Held. The expert testimony could not establish that the Defendant acted outside of the
community standards and therefore the Defendant did not commit malpractice.

Discussion. Medical doctors are required to possess the degree of skill and learning
possessed by an average member of the medical profession in good standing in the
community in which they practice and apply that skill and knowledge with reasonable
care. To be liable for malpractice, a doctor must have used a treatment that the medical
community where the doctor practices forbids, or have neglected to do something that
community standards would require. To successfully allege malpractice, a plaintiff must
offer expert testimony on the community standards of medical care. In this case, because
the expert testimony could not establish that the Defendant acted outside of the
community medical standards when the Ms. Boyce returned seven years after surgery, the
Defendant cannot be found guilty of malpractice.
82 Morrison v. MacNamara
Morrison v. MacNamara

Citation. 407 A.2d 555 (1979).

Brief Fact Summary. The Plaintiff, Morrison (Plaintiff), was injured when he fell after
undergoing a medical test. The test was administered to the Plaintiff while he was
standing.

Synopsis of Rule of Law. A national standard of care is a more modern method for
measuring whether a doctor has committed negligence.

Facts. The Plaintiff patient was given test for a urinary tract infection. The test was
administered while the Plaintiff was standing. The Plaintiff had an adverse reaction to the
test and fell, hitting his head. The Patient suffered permanent loss of his senses of smell
and taste as a result of his fall. At trial, the Plaintiff provided expert testimony from a
doctor practicing in Michigan. The doctor stated that the test is always performed while
the patient is sitting or prone. The trial court refused to allow the testimony and held that
the expert testimony for medical malpractice cases must come from a doctor who
practices in the community where the malpractice is alleged, in this case Washington
D.C.

Issue. Whether to use a community based standard or a national standard when

determining a professional standard of care.

Held. The locality rule for expert testimony in medical malpractice cases is antiquated
and unnecessary. The court adopts a national rule.

Discussion. The locality rule developed to protect rural doctors who lacked means of
transportation and communication by which they could acquire the same set of skills as
urban doctors. But the policy behind the locality rule does not hold true of doctors in the
District of Columbia and the disparity between doctors in urban and rural areas has
mostly been eliminated. Furthermore, due to the uniformity of the proficiency
certifications that are required by national boards, a national standard is more practical.
83 Scott v. Bradford
Scott v. Bradford

Citation. 606 P.2d 554 (1979).

Brief Fact Summary. After suffering from complications of surgery, the Plaintiff, Mss.
Scott (Plaintiff), seeks recovery from the Defendant doctor alleging he failed to inform
her of the risks.

Synopsis of Rule of Law. To establish a breach of duty of informed consent, a patient

must establish they would not have elected treatment had they been made aware of the
risks.

Facts. The Defendant performed a hysterectomy on the Plaintiff. Before the surgery, the
Plaintiff signed a routine consent form. After the hysterectomy, the Plaintiff experienced
incontinence as a result a complication of the hysterectomy. The problem was corrected
by three subsequent surgeries performed by a different doctor. The Plaintiff alleges that
the Defendant failed to inform her of the risks involved or the alternatives to the
hysterectomy. The Plaintiff testified that if she had known of the risk of incontinence, she
would not have elected the surgery.

Issue. Whether the Plaintiff must establish that a reasonable person would not have
elected treatment if informed of the risks, or if they must merely show that they would
not have elected treatment.

Held. To sustain a cause of action in a theory of informed consent, a patient must show
that:

• the physician failed to inform the patient of a material risk

• the patient, if informed, would not have elected the treatment

• the risks that were not disclosed resulted in injury to the patient.

Discussion. In a departure from the rule established in an earlier case, the court reasoned
that if the patient can show they would not have elected the procedure had they been
properly informed, then a malpractice case against the doctor can be maintained. The
former rule established an objective standard for informed consent that required the
patient to establish that a reasonable person in their position would have refused
treatment. The court elects to follow a subjective standard in this case to maintain a
patient's right of self-determination.
84 Moore v. The Regents of the University of California
Moore v. The Regents of the University of California

Citation. 793 P. 2d 479 (1990).

Brief Fact Summary. The Plaintiff, Moore (Plaintiff), alleges financial injury when cells
removed from his spleen were used to create commercial genetic products.

Synopsis of Rule of Law. The principles of informed consent extend to disclosing

unrelated interests of the physician because that information is material to the patients
decision.

Facts. The Plaintiff was diagnosed with leukemia in 1976. Following the diagnosis, the
Plaintiff underwent treatment by one many Defendants, Dr. Golde, a doctor at University
of California Los Angeles (UCLA) Medical Center. Based on test results, Dr. Golde
recommended that the plaintiff have his spleen removed. The patient underwent the
recommended surgery and subsequent follow up treatment. The spleen was then used for
unrelated research and the Plaintiff's cells were used to create a cell line licensed for
commercial development. The Plaintiff filed a complaint alleging, inter allia, conversion
and lack of informed consent and breach of fiduciary duty for failing to disclose the
financial interests of Dr. Golde in the plaintiff's spleen. The trial court dismissed the
complaint and the court of appeals reversed.

Issue. Whether Dr. Golde's failure to disclose his financial interests to the Plaintiff was a
breach of fiduciary duty and therefore created a lack of informed consent.

Held.

• Physicians must disclose personal interests, which are unrelated to the

patient's health and may effect the physician's professional judgment.

• The failure to disclose those interests can lead to a cause of action for
lack of informed consent.

Discussion. Consent consists of three principles. First, an adult has the right to exercise
control over his body. Second, a patient's consent to treatment must be informed to be
effective. Third, a physician has a fiduciary duty to disclose all information that is
material to the patient's decision. Normally, the duty requires the physician to inform the
patient of the risks involved in medical care, however, the principles of informed consent
are broad enough to require physicians to disclose their personal interests. The scope of
informed consent is guided by the patients need to have all information material to their
decision.
85 Pokora v. Wabash Ry. Co.
Pokora v. Wabash Ry. Co.

Citation. 292 U.S. 98 (1934).

Brief Fact Summary. After coming to a stop at a train crossing where the intersection
with the road was obscured, the Plaintiff, Pakora's (Plaintiff) truck, was hit by an
oncoming train.

Synopsis of Rule of Law. Standards of prudent conduct should be cautiously framed

when the rule of law is imposed.

Facts. The Plaintiff's truck was hit by an oncoming train at a railroad crossing. The
crossing consisted of four tracks. To the north, boxcars blocked the field of vision and the
Plaintiff stopped his truck before continuing forward. He proceeded slowly, looking and
listening for a whistle or a bell. Hearing none, the Plaintiff pulled ahead to the main track
where his vehicle was struck by a passenger train.

Issue. Whether the Plaintiff's actions were prudent given the circumstances.

Held. The driver acted within the standards of prudent conduct.

Discussion. There is no duty to get out of the vehicle to inspect the intersection after the
driver both stopped and looked and listened for an oncoming train. Requiring a driver to
stop at an uncontrolled or obscured intersection is practical and prudent. But to form a
rule of law that states the driver has a duty to exit the vehicle and inspect the intersection
is both impractical and possibly dangerous. It is not the role of the judiciary to determine
what is prudent behavior in extraordinary circumstances. That is for the jury to decide.
86 Osborne v. McMasters
Osborne v. McMasters

Citation. 41 N.W. 543 (1889).

Brief Fact Summary. A woman died as a result of ingesting poison from an unlabeled
bottle purchased at the Defendant, McMaster's (Defendant) drug store. The Defendant
was required by law to label all poisons.

Synopsis of Rule of Law. If a person neglects to perform a duty imposed by either

statute or common law and that law is designed for the protection of others, then the
evidence of the act or omission constitutes negligence per se.

Facts. A clerk working in the Defendant's drug store sold an unlabeled bottle of poison to
the Plaintiff, Osborne's (Plaintiff) wife. Not knowing that the drug was poisonous, the
Plaintiff's wife took the drug and died. By statute the clerk was required to label the drug
as poison and by failing to do so, he broke the law.

Issue. Whether the Defendant was negligent in failing to abide by the statutory
requirement to label all poisons.

Held. The Defendant was negligent. The non-performance of a legal duty constitutes
negligence per se.

Discussion. When a statute imparts a specific duty for the specific protection of others
and a person neglects to perform that duty, it is evidence of negligence per se. This is also
true when there is a clear duty imposed by common law that requires the exercise of due
care.
87 Stachniewicz v. Mar-Cam Corp.
Stachniewicz v. Mar-Cam Corp.

Citation. 488 P.2d 436 (1971).

Brief Fact Summary. The Plaintiff, Stachniewicz (Plaintiff), was injured during a
barroom brawl with customers at the Defendant, Mar-Cam Corp's (Defendant) drinking
establishment.

Synopsis of Rule of Law. Negligence per se results when a statute or regulation has been
violated and that violation results in injury to a member of the class that the legislation
was meant to protect and the harm is of the kind that the legislation was intended to
prevent.

Facts. The Plaintiff suffered severe head injuries when he was injured during a barroom
brawl. The assailants had been at the bar drinking for over two hours when the fight
erupted. A state statute forbids people from giving alcoholic beverages to anyone visibly
drunk. A state licensing regulation forbids licensed bar owners from permitting disorderly
conduct or visibly intoxicated persons upon the licensed premises. The trial court held
that the Defendant's violations of both the statute and the regulation did not constitute
negligence per se.

Issue. Whether the violations of the statute or the regulation constitutes negligence per
se.

Held.

• The violation of the statute was not negligence per se.

• The violation of the regulation is negligence per se.

Discussion.

• The statute makes it illegal to give an alcoholic beverage to someone

already intoxicated. It is impossible to determine whether the injury
sustained was the result of the drink given after intoxication occurred, or if
the injuries would have occurred without that drink.

• The regulation, on the other hand, is drafted to prevent injuries and

abuses associated with the types of disturbances connected with bars and
intoxication. Because the Plaintiff was within the class of persons the
regulation sought to protect and because the injuries he sustained were of
the type of harm the regulation sought to avoid, the violation of the
regulation can be used as evidence of negligence per se.
88 Ney v. Yellow Cab Co.
Ney v. Yellow Cab Co.

Citation. 117 N.E.2d 74 (1954).

Brief Fact Summary. The Defendant, Yellow Cab Co.'s (Defendant), cab was stolen
from the street side where its driver had left it running, unlocked and unattended. While
driving the stolen cab, the thief struck and damaged the Plaintiff, Ney's (Plaintiff)
vehicle.

Synopsis of Rule of Law. If the harm resulting from negligence is foreseeable, then an
intervening criminal act does not break the chain of causation.

Facts. A cab driver, working for the Defendant, left his cab parked with the ignition
running and the car unlocked. A thief stole the vehicle and while fleeing the scene, struck
and damaged the Plaintiff's car. By leaving the car running and unlocked on the street, the
Defendant's driver violated a section of the Uniform Traffic Act.

Issue. Whether the legislative intent of the Uniform Traffic Act was to protect persons in
the Plaintiff's class from the type of property damage caused by the violation.

Held. The statute is a public safety measure meant to protect the public from the
foreseeable harm caused by leaving an unlocked, running car, unattended. A violation of
that statute is evidence of negligence per se.

Dissent. The legislative intent was to prevent injury caused by an unattended vehicle that
is not properly secured from moving on its own and doing damage. The statue is not an
antitheft statute. It is recognized that one can leave a vehicle unattended temporarily and
not be negligent as long as one takes proper precautions to secure the car from
uncontrolled movement. If that car is then set in motion by the willful and negligent act
of a third party, then it is the third party's negligence that is the proximate cause of the
injury resulting.

Discussion. It is foreseeable that if you leave your car unlocked and running on the curb,
a thief might take it and in doing so cause damage. Since the legislative intent of the
statute was to protect the public and the act of the Defendant's driver put the public at
risk, then the risk is the type of foreseeable harm that the legislature intended to prevent
and the Defendant is liable.
89 Perry v. S.N. and S.N.
Perry v. S.N. and S.N.

Citation. 973 S.W.2d 301 (1998).

Brief Fact Summary. The parents of two children who were sexually abused at their day
care center filed a complaint against friends of the alleged abusers for failing to report the
abuse. In failing to report, the defendants violated a section of the Family Code.

Synopsis of Rule of Law. A cause of action in negligence per se requires that there be an
underlying duty at common law.

Facts. The plaintiffs allege that the defendants were negligent per se because they failed
to report the defendant's sexual and physical abuse of the plaintiff's children to child
welfare agencies as required by the Family Code. The defendants, friends of the alleged
child abuser and day care operator, allegedly witnessed the abuse of the plaintiffs and
other children, but said nothing to authorities. In failing to report, they violated the
Family Code. The code requires a person to file a police report if they have reason to
believe that a child's physical or mental health is at risk due to abuse.

Issue. Whether the defendants breached a duty to the plaintiffs when they violated the
Family Code.

Held. There cannot be negligence per se without an underlying common law duty.

Discussion. Although the plaintiff's children are within the class of persons the
legislation is intended to protect and the harm they suffered is of the type the legislation
intended to prevent, the defendants here are not negligent per se for their violation of the
Family Code. To sustain a cause of action for negligence per se, the defendant must owe
the plaintiff a pre-existing duty of care in common law of which the violation of
legislation is evidence of the negligence. In this case, the duty extends solely from the
Family Code and there is no preexisting duty at common law between these defendants
and the plaintiffs. To hold a person liable for a duty that is only imposed by legislation
would create a new type of tort liability.
90 Martin v. Herzog
Martin v. Herzog

Citation. 126 N.E. 814 (1920).

Brief Fact Summary. The plaintiff, Elizabeth Martin's (Plaintiff) husband William
Martin, was driving a buggy after dark without using lights. He was killed when the
Defendant, Herzog's (Defendant) car collided with the buggy.

Synopsis of Rule of Law. If the plaintiff's negligence is a contributory cause of the

injury, then he cannot recover for the negligence of the defendant.

Facts. The Plaintiff's husband was killed as a result of a collision between the buggy he
was driving and the Defendant's car. The decedent was driving the buggy at night without
lights on in violation of a criminal statute.

Issue. Whether the decedent's violation of a criminal statue, which constitutes

contributory negligence, precludes the Plaintiff's recovery.

Held. The decedent's negligence was a contributory cause of his injury and so the
Plaintiff cannot recover for the negligence of the defendant.

Discussion. The purpose of the statue was to protect travelers on the roads at night. The
fact that the Plaintiff violated this statue is negligence in itself and cannot be ignored as a
contributing factor in the accident. The decedent's negligent failure to use lamps or lights
on his buggy must be considered as a cause of the accident in light of the fact that the
accident took place after sunset on a dark road. The trier of fact must consider the
decedent's negligence.
91 Zeni v. Anderson
Zeni v. Anderson

Citation. 243 N.W.2d 270 (1976).

Brief Fact Summary. The Plaintiff, Zeni (Plaintiff), was injured when she was hit by the
Defendant, Anderson's (Defendant), car on her way to work. The Plaintiff was not using a
sidewalk, but a snow path, and was therefore in violation of a statute requiring
pedestrians to use sidewalks where available.

Synopsis of Rule of Law. The violation of a statute creates a rebuttable presumption of

negligence, which can be overcome by providing an adequate excuse as to why the statue
was ignored.

Facts. The Plaintiff was hit by the Defendant's car while walking to work one winter
morning. The Plaintiff, instead of using the sidewalk, was walking along a well-used
pedestrian snow path with her back to oncoming traffic. The Defendant, having defrosted
her windows and scraped them that morning, was traveling within the speed limit down
the busy street when she hit the Plaintiff with her car. There was testimony at trial that the
Defendant's windows were clouded over and that the snow path that the Plaintiff used
was safer than the sidewalk on cold icy days. By using the snow path instead of the
sidewalk, Plaintiff was in violation of a state statute, which required the use of sidewalks
where provided and where they are not, pedestrians must walk on the side of the road
facing oncoming traffic.

Issue. Whether the Plaintiff's failure to use the sidewalk constituted contributory
negligence.

Held. In a civil action for damages, violation of a statute creates a rebuttable presumption
of negligence.

Discussion. Violation of a statute creates a rebuttable presumption of negligence, which

can be overcome by showing that there was an adequate excuse or reason for such action
under the circumstances of the case. The court declines to attach contributory liability to
the Plaintiff because it was shown at trial that using the sidewalk would put the Plaintiff
in danger of falling.
92 Goddard v. Boston & Maine R.R. Co.
Goddard v. Boston & Maine R.R. Co.

Citation. 179 Mass. 52, 60 N.E. 486 (Mass. 1901)

Brief Fact Summary. An individual slipped on a railroad platform and sustained certain
injuries.

Synopsis of Rule of Law. A railroad is not liable for negligence, if the negligent action
may have been perpetrated by a passenger of the railroad.

Facts. The Plaintiff, Wilfred H. Goddard (the "Plaintiff"), brought suit against the
Defendant, Boston & Maine Railroad Co. (the "Defendant"), after falling on a banana
peel lying on one of the Defendant's railroad platforms. The Plaintiff fell right after
disembarking from the train.

Issue. None.

Held. "The banana skin upon which the plaintiff stepped and which caused him to slip
may have been dropped within a minute by one of the persons who was leaving the
train."

Discussion. This case offers an early discussion about negligence.

93 Anjou v. Boston Elevated Railway Co.
Anjou v. Boston Elevated Railway Co.

Citation. 94 N.E. 386 (1911).

Brief Fact Summary. The Plaintiff, Anjou (Plaintiff), slipped and fell on a banana peal
left on the Defendant, Boston Elevated Railway Co.'s (Defendant), train platform.

Synopsis of Rule of Law. Circumstantial evidence can be used to establish proof of

negligence.

Facts. The Plaintiff, a passenger on the defendant's railway, injured herself when she
slipped and fell on a banana peel. The Plaintiff had been following behind one of the
railroad's uniformed workers when she slipped. The banana peal was described as black,
dry and gritty and appeared as if it had been trampled on.

Issue. Whether the Defendant is negligent.

Held. The Defendant was negligent in not removing the banana peal.

Discussion. Because the appearance of the banana peal suggested that it had been on the
ground for some time, it could be inferred that the peal had been seen and could have
been removed by one of the employees of the railway. This fact distinguishes this case
from Goddard, as there is evidence upon which to base a conclusion that the peal was not
dropped a moment before the Plaintiff's fall by another passenger. Here, the railway
employees had time to pick up the hazard and they did not.
94 Joye v. Great Atlantic and Pacific Tea Co.
Joye v. Great Atlantic and Pacific Tea Co.

Citation. 405 F.2d 464 (1968).

Brief Fact Summary. The Plaintiff, Joye (Plaintiff), slipped and fell on a banana peal in
the Defendant, Atlantic and Pacific Tea Co.'s (Defendant), store.

Synopsis of Rule of Law. If there is no evidence to establish that the defendant had
notice of the hazard, then the plaintiff cannot prove negligence.

Facts. The Plaintiff was injured when he slipped and fell on a banana peal in the
Defendant's store. The banana peal was brown and sticky with bits of dirt and sand on it.
The floor around the peal was also dirty.

Issue. Whether the Defendant had sufficient notice of the hazard to be found negligent.

Held. The circumstantial evidence is insufficient to determine whether the Defendant had
notice of the banana peal on the floor.

Discussion. The evidence presented shows that the floor was not swept for up to thirty-
five minutes. Also, by the condition of the banana, there was no way to determine how
long it had been on the floor. Without evidence that the store had, or should have had
notice of the hazard, the Plaintiff cannot prove negligence.
95 Ortega v. Kmart Corp.
Ortega v. Kmart Corp.
th
Citation. 114 Cal. Rptr. 2d 470, 26 Cal.4 1200, 36 P.3d 11 (Cal. 2001)

Brief Fact Summary. An individual slipped and fell on a puddle of milk left on the floor
of a store. Neither the individual nor the store was sure for how long the milk had been
on the floor.

Synopsis of Rule of Law. "[P]laintiffs may demonstrate the storekeeper had constructive
notice of the dangerous condition if they can show that the site had not been inspected
within a reasonable period of time so that a person exercising due care would have
discovered and corrected the hazard."

Facts. While shopping at one of the Defendant, Kmart Corp.'s store (the "Defendant"),
the Plaintiff, Richard M. Ortega (the "Plaintiff"), slipped on a puddle of milk on a floor
near a refrigerator. The Plaintiff suffered a substantial knee injury, including torn
ligaments. The Plaintiff sued the Defendant for his injuries. During his testimony, the
Plaintiff could not remember much about the milk or how long it was on the floor for.
Although he did not know how long the milk was on the floor, the Plaintiff argued that
the Defendant had not inspected the floor in a reasonable amount of time prior to the
accident. A Kmart employee testified that the milk would have probably been mopped up
within 15-30 minutes, but it could have been on the floor for up to 2 hours. The jury
awarded the Plaintiff $47,200 in damages.

Issue. Did the dangerous condition, the spilled milk, exist long enough for a reasonably
prudent person to have discovered it? In other words, did the Defendant have constructive
knowledge?

Held. The court first observed "[i]t is well established in California that although a store
owner is not an insurer of the safety of its patrons, the owner does owe them a duty to
exercise reasonable care in keeping the premises reasonably safe." Ordinary care is
exercised by a store owner "making reasonable inspections of the portions of the
premises open to customers, and the care required is commensurate with the risks
involved." If the store involved is "a self-service grocery store where customers are
invited to inspect, remove, and replace goods on shelves, 'the exercise of ordinary care
may require the owner to take greater precautions and make more frequent inspections
than would otherwise be needed to safeguard against the possibility that such a customer
may create a dangerous condition by disarranging the merchandise' and creating
potentially hazardous conditions." The Plaintiff has the burden to prove "the owner had
notice of the defect in sufficient time to correct it". A Plaintiff need not demonstrate
"actual knowledge where evidence suggests that the dangerous condition was present for
a sufficient period of time to charge the owner with constructive knowledge of its
existence." Circumstantial evidence can be used to prove this knowledge. The owner is
under an obligation to "inspect the premises or take other proper action to ascertain their
condition, and if, by the exercise of reasonable care, the owner would have discovered
the condition, he is liable for failing to correct it."
96 Ortega v. Kmart Corp.
• The court concluded "that plaintiffs still have the burden of producing
evidence that the dangerous condition existed for at least a sufficient time to
support a finding that the defendant had constructive notice of the hazardous
condition." Also, that "plaintiffs may demonstrate the storekeeper had
constructive notice of the dangerous condition if they can show that the site
had not been inspected within a reasonable period of time so that a person
exercising due care would have discovered and corrected the hazard."

Discussion. This case illustrates the duty owed by a store to those who shop in the store.
97 Jasko v. F.W. Woolworth Co.
Jasko v. F.W. Woolworth Co.

Citation. 494 P.2d 839 (1972).

Brief Fact Summary. The Plaintiff, Jasko (Plaintiff), was injured when she slipped and
fell on a slice of pizza in the Defendant, F.W. Woolworth Co.'s (Defendant), store.

Synopsis of Rule of Law. When the defendant engages in a business that is prone to
hazardous mishaps, then the nature of the business serves to put the business on notice of
possible injuries.

Facts. The Plaintiff was injured when she slipped and fell on a slice of pizza in the
Defendant's store. The pizza was sold over the counter to patrons shopping in the store.
The area around the pizza counter was tiled.

Issue. Whether the Plaintiff must show that the store had notice of a dangerous condition.

Held. Notice of a dangerous condition need not be shown in cases where the business
itself creates the hazard.

Discussion. The store's method for selling slices of pizza created a foreseeable risk of
danger. The slices were sold on wax paper to standing patrons and therefore it was
foreseeable that food would drop on the floor. It was also foreseeable that if there were
food on the floor it would be hazardous. No further evidence is needed to show notice to
the storeowner because the risk that someone might slip is a recognized danger under
these circumstances.
98 H.E. Butt Groc. Co. v. Resendez
H.E. Butt Groc. Co. v. Resendez

Citation. 988 S.W.2d 218 (Tex. 1999)

Brief Fact Summary. The manner that grapes were displayed in a supermarket was at
issue.

Synopsis of Rule of Law. "As a matter of law, [ ] the mere fact that a store has a
customer sampling display cannot, without more, be evidence of a condition on the
premises that poses an unreasonable risk of harm."

Facts. The Respondent, Maria Resendez (the "Respondent"), was shopping in one of the
Petitioner, H.E. Butt Groc. Co.'s (the "Petitioner" or "HEB") grocery stores, when she
slipped near certain displays of grapes. The Respondent sued the Petitioner alleging that
the grape displays posed an unreasonable risk of harm that caused her injuries. The trial
court ruled in favor of the Respondent, and the Court of Appeals affirmed. The Petitioner
supermarket had two grape displays, one for sale and one for sampling. Each display had
a three inch railing and there were floor mats around the display tables. The bowl of
grapes for sampling sat on ice and was level.

Issue. "Can mere display of produce for customer sampling constitute an unreasonable
risk of harm to customers?"

Held. Yes, but not here. The court observed that to recover, the Respondent must prove
"that (1) HEB had actual or constructive knowledge of a condition on the premises, (2)
the condition posed an unreasonable risk of harm, (3) HEB did not exercise reasonable
care to reduce or to eliminate the risk, and (4) HEBs failure to use such care proximately
caused her injuries." The court observed that unlike [Corbin v. Safeway Stores, Inc.], no
evidence was presented demonstrating that the "display created an unreasonable risk of
customers falling on grapes." In [Corbin], there was more evidence than just a display.
The grapes were displayed "in a slanted bin over a linoleum tile floor with no protective
floor mat--that created an unreasonable risk of customer falls from grapes falling on the
floor."

Discussion. Negligence will not be found unless a condition posed an unreasonable risk
of harm.
99 Byrne v. Boadle
Byrne v. Boadle

Citation. 159 Eng.Rep. 299 (1893).

Brief Fact Summary. The plaintiff was injured when a barrel of flour fell out of the
defendant's shop window and knocked him down.

Synopsis of Rule of Law. Res Ipsa Loquitur means the thing speaks for itself. The fact
that some types of accidents occur, proves negligent cause with no more evidence
needed.

Facts. The plaintiff was injured when a barrel of flour fell out of the defendants shop
window and knocked him down.

Issue. Whether the defendant's negligence caused the barrel of flour to fall out of his
shop window.

Held. The fact that a barrel of flour fell from a shop window demonstrates that some
negligence caused it. Thus, the accident "speaks for itself."

Discussion. Because the barrel was in the custody of the defendant, who owned the shop
from which the barrel was being lowered out of, he is the responsible party for the
manner in which the barrel was lowered. Barrels don't just fall out of shop windows by
themselves so the fact that the accident took place is enough to show negligence.
100 McDougald v. Perry
McDougald v. Perry

Citation. 716 So.2d 783 (1998).

Brief Fact Summary. The Plaintiff, McDougald (Plaintiff), was injured when the spare
tire flew off of the Defendant, Perry's (Defendant) trailer and hit the Plaintiff's
windshield.

Synopsis of Rule of Law. Res Ipsa Loquitur applies to rare occurrences where the
accident itself is evidence upon which to base an inference of negligence.

Facts. The Plaintiff was injured when the spare tire on the Defendant's truck fell out of its
carrier, was run over by the rear wheels of the Defendant's truck and then collided with
the Plaintiff's windshield. The Defendant testified that the tire was held in place by its
own weight and by a chain that was usually attached to the trailer of the truck with a
latch. The defendant also testified that on the day of the accident the chain was attached
with only a nut and bolt, but that he did a pre-trip inspection on the trailer and found no
problems. However, the chain did have a loose link that lead to the release of the tire. At
trial, the jury was instructed on Res Ipsa Loquitur, but on appeal the court found error in
this instruction and held that the jury should not have been allowed to consider the
doctrine.

Issue. Whether the doctrine of Res Ipsa Loquitur applies to the accident.

Held. The doctrine of Res Ipsa Loquitur applies.

Discussion. The mere fact that the accident occurred does not always warrant the
application of the doctrine. But in rare instances the fact that the accident occurred, along
with a showing of an immediate precipitating cause, permits the inference of negligence.
In this case, the spare tire would not have come loose had the Defendant exercised
reasonable care when inspecting his vehicle and therefore Res Ipsa Loquitur applies and
the Defendant is liable
101 Larson v. St. Francis Hotel
Larson v. St. Francis Hotel

Citation. 188 P.2d 513 (1948).

Brief Fact Summary. The Plaintiff, Larson (Plaintiff), was injured when an armchair
thrown from a window of the Defendant, St. Francis Hotel (Defendant), struck her.

Synopsis of Rule of Law. Res Ipsa Loquitur does not apply unless the object that caused
the accident is under the exclusive control of the defendant and under ordinary
circumstances using ordinary care, the accident would not have happened.

Facts. The Plaintiff was walking along the sidewalk outside of the Defendant's hotel
when she was struck and knocked unconscious by an armchair. It is assumed that the
armchair came from one of the hotel room windows.

Issue. Whether the doctrine of Res Ipsa Loquitur applies and Defendant is negligent.

Held. Res Ipsa Loquitur does not apply.

Discussion. For the doctrine to apply, California law requires that: (i) there was an
accident; (ii) the object that caused the accident was under the exclusive control and
management of the defendant and (iii) had the defendant been using ordinary care, in the
course of ordinary events, the accident would not have happened.

• The doctrine can have no application when there is evidence of divided

responsibility and the accident can have several causes, some of which the
Defendant is not responsible for. In the case of hotel rooms and their
furnishings, the hotel itself has no control over the furniture, the guests do.
Furthermore, this is a case where despite the Defendant using ordinary
care in the ordinary course of events, the accident would still have
occurred
102 Ybarra v. Spangard
Ybarra v. Spangard

Citation. 154 P.2d 687 (1944).

Brief Fact Summary. The patient underwent surgery for an appendectomy and woke
with severe shoulder pain that worsened and eventually caused atrophy and paralysis.

Synopsis of Rule of Law. Some injuries speak for themselves and the fact that they
occurred is proof of negligence.

Facts. The Plaintiff, Ybarra (Plaintiff), a patient of the Defendants, various doctors
(Defendants), underwent an appendectomy and woke from the anesthesia with arm and
shoulder pain. The pain worsened over the next several days and spread down his arm.
The condition worsened until the Plaintiff suffered paralysis and atrophy in the muscles
around his shoulder.

Issue. Whether the doctrine of Res Ipsa Loquitur applies and Defendants are negligent.

Held. The doctrine does apply.

Discussion.

• The doctrine of Res Ipsa Loquitur is best applied in a situation like this
where the Plaintiff has no way of knowing which Defendant or which
instrument injured him. Like the woman walking down the street who is
struck by an object falling from a building, the Plaintiff in this case,
having been unconscious during the injury, can have no knowledge of who
or what injured him. The fact that he has the injury speaks for itself that
negligence occurred.

• In a case where there are multiple defendants, some of whom may or

may not share liability, the burden falls to them to sort out who bore the
responsibility for the negligence since the Plaintiff can have no way of
knowing.
103 Sullivan v. Crabtree
Sullivan v. Crabtree

Citation. 258 S.W.2d 782 (1953).

Brief Fact Summary. The passenger in a truck was killed when the truck swerved and
went off the road and down a steep embankment. The driver of the truck was unable to
determine the exact cause of the accident.

Synopsis of Rule of Law. The doctrine of Res Ipsa Loquitur creates a burden on the
defendant to show a reasonable explanation for the injury. The strength of that burden
depends on the facts of each case and the strength of the inference created.

Facts. Mr. and Mrs. Sullivan, the Plaintiffs' (Plaintiffs), adult son was killed when the
truck he was a passenger in went off a steep embankment and crushed him. The
Defendant, Crabtree (Defendant), was driving the truck at the time and testified that there
could have been several reasons that the truck went off the road and down the
embankment, including brake malfunction. The day was clear and sunny, but there was
loose gravel and broken pavement on the road.

Issue.

• Whether the doctrine of Res Ipsa Loquitur applies to this case.

• Whether by application of the doctrine of Res Ipsa Loquitur, the

Defendant is guilty of negligence.

Held.

• Res Ipsa Loquitur does apply to this case.

• It is for the trier of fact to determine the strength of the inference of

Defendant's negligence.

Discussion.

• The doctrine of Res Ipsa Loquitur does not generally apply to motor
vehicle accidents, but in cases such as this, where the cause of the accident
is within the driver's control and the accident is not one that would
normally occur without negligence, the doctrine may be applied.

• The determination of what procedural effect the application of the

doctrine of Res Ipsa Loquitur has is done on a case-by-case basis. A
defense to the doctrine requires that reasonable evidence be shown that the
accident was not caused by the defendant's negligence. The weight of this
burden on the defendant depends on the strength of the inference that the
circumstances create.
104

C
H
A
P
T
E
R

V
.

C
a
u
s
a
t
i
o
n

I
n
105 Perkins v. Texas and New Orleans Railroad Co.
Perkins v. Texas and New Orleans Railroad Co.

Citation. 147 So2d 646 (1962).

Brief Fact Summary. The husband of the Plaintiff, Ms. Perkins (Plaintiff), was a
passenger in a car when a train at a railway crossing struck the car. The Plaintiff's
husband was killed.

Synopsis of Rule of Law. The defendant's negligence must be a substantial factor in the
cause of the harm for liability to attach.

Facts. The Plaintiff's husband was killed in a collision between the car he was a
passenger in and a freight train operated by the Defendant, New Orleans Railroad Co. At
the intersection of the road and rail crossing where the accident occurred, a large
warehouse obstructed the view of both the car's driver and the train's engineer and
brakeman. The train's engineer and brakeman were aware of the obstruction and while
approaching the intersection rang the train's bell and whistle and put its headlights on.
The intersection also had warning signals to warn drivers of approaching trains. These
signals were operating at the time of the accident. Of the three railway employees in the
forward engine of the train only two, the brakeman and a fireman saw the car emerge
from the intersection. The third, the engineer did not see the car due to the obstructed
view, but applied the emergency brakes when his companions alerted him to the presence
of the car. At the time of the accident the train was between 30 to 60 feet from the car.
Both parties have conceded that the driver of the car, who was also killed, was negligent
in driving upon the train track with the signal lights on. The parties have also conceded
that the train was traveling at 37 miles per hour when the self-imposed speed limit for the
intersection was 25 miles per hour.

Issue. Whether the negligence of the Defendant was a substantial factor in causing the
accident.

Held. The train's speed was not a substantial factor in the cause of the accident.

Discussion. By traveling twelve miles over the self-imposed speed limit, the engineer
was negligent. The engineer testified that even at a rate of 25 mph, the train could not
have avoided the car. Based on this testimony, the court finds that the speed of the train
was not a substantial factor in the crash. Because the accident would have occurred even
if the train had been traveling within the speed limit, the negligence of the train's operator
is not a substantial factor in the collision.
106 Reynolds v. Texas & Pac. Ry. Co.
Reynolds v. Texas & Pac. Ry. Co.

Citation. 37 La.Ann. 694 (1885).

Brief Fact Summary. The Plaintiff, Reynolds (Plaintiff), was injured when she fell
down an unlit stairway while exiting the Defendant, Texas & Pac. Ry. Co.'s (Defendants)
train.

Synopsis of Rule of Law. If the defendant's negligence is of a character naturally leading

to the character of the injury, then causation is established.

Facts. The Plaintiff was injured when she fell down an unlit stairway while exiting
Defendant's train at night. Because the train was running late, the passengers were told to
hurry and exit the train. In doing so the Plaintiff lost her footing and fell.

Issue. Whether the negligence of the Defendant caused the injury to the Plaintiff.

Held. The Defendant's negligence was a cause of the Plaintiff's injury.

Discussion. While it is possible that the Plaintiff might have fallen had she exited the
train during the daylight, the possibility is not sufficient to divest the Defendant of
liability for its negligence. The Defendant's negligence was of a character naturally
leading to the character of the Plaintiff's injury and therefore causation is established.
107 Gentry v. Douglas Hereford Ranch, Inc.
Gentry v. Douglas Hereford Ranch, Inc.

Citation. 962 P.2d 1205 (1998).

Brief Fact Summary. The Plaintiff, John Gentry (Plaintiff), brought this action on behalf
of his wife, who was shot in the head when a rifle accidentally went off when its owner
slipped. The Defendants were the Douglas Hereford Ranch, Inc (Douglas Hereford
Ranch) and Bacon (Bacon) an employee of the ranch (Defendants).

Synopsis of Rule of Law. Causation requires proof of proximate cause and cause in fact
for liability to attach.

Facts. The Plaintiff's wife was shot in the head and died when a hunting rifle was
accidentally discharged. The gun went off when Bacon, the guns owner, slipped while
ascending the Douglas Hereford Ranch's porch stairs. At trial, Bacon testified that he was
unable to say what caused his fall. Douglas Hereford Ranch was not found liable at trial.

Issue. Whether Douglas Hereford Ranch's negligence caused the Plaintiff's injury.

Held. Douglas Hereford Ranch cannot be liable for the Plaintiff's injury.

Discussion. Because there was no way for either the Plaintiff or the Defendants to say
whether a condition of the porch stairs caused the fall that lead to the accident, Douglass
Hereford Ranch cannot be found liable for the Plaintiff's injury. The evidence does not
establish that the condition of the porch step was a cause in fact of the Plaintiff's injury.
108 Kramer Service, Inc. v. Wilkins
Kramer Service, Inc. v. Wilkins

Citation. 186 So. 625 (1939).

Brief Fact Summary. The Plaintiff, Wilkins (Plaintiff), received a cut on his forehead
due to the negligence of the Defendant, Kramer Service, Inc. (Defendant). The cut did not
heal and developed into skin cancer. The Plaintiff seeks damages for the resultant cancer.

Synopsis of Rule of Law. In cases where the causal link between negligence and injury
is based on subject matter that is beyond the experience and observation of laypersons,
expert testimony must be considered to determine whether the link is sufficient to attach
liability.

Facts. The Plaintiff was injured while staying in the Defendant's hotel as a guest. The
injury occurred when the Plaintiff opened a door and a piece of glass fell from a broken
transform. The condition of the transform had existed long enough to assume the
Defendant had notice of it. The accident resulted in a cut on the Plaintiff's forehead that
did not heal and eventually became cancerous. At trial, two medical experts testified. One
said there was only a one in one hundred chance that the Plaintiff's original injury would
result in cancer and the other said it was impossible.

Issue. Whether the jury can consider the expert testimony on whether the Defendant's
negligence caused the Plaintiff's cancer.

Held. Expert testimony must be considered by the fact finder when deciding if a
substantial a link exists between the negligence and the injury when the subject matter is
beyond the scope of lay knowledge.

Discussion. It is not enough that negligence and injury occur at the same time, there must
be a causal link between them. The possibility of an injury occurring as a result of
negligence is also not enough of a link. In cases where the subject matter is beyond the
experience or observation of laymen, courts must depend on medical testimony to
determine whether the causal link has a substantial enough foundation to find liability.
The jury must be allowed to consider the expert testimony when deciding whether to
award damages for the Plaintiff's cancer in addition to his original injury.
109 Herskovits v. Group Health Cooperative of Puget Sound
Herskovits v. Group Health Cooperative of Puget Sound

Citation. 664 P.2d 474 (1983).

Brief Fact Summary. Due to the Defendant, Group Health Cooperative of Puget Sound's
(Defendant), failure to promptly diagnose the decedent's lung cancer, the decedents
chances of surviving went from 39% to 25%. The Plaintiff in this matter, Edith
Herskovits (Plaintiff), is the decedent's estates personal representative.

Synopsis of Rule of Law. Even if the total chances of survival are below 50%, a
negligent Defendant is liable for the reduced chance of survival directly caused by the
negligence.

Facts. The Plaintiff is seeking to recover from the Defendant for failing to timely
diagnose the decedent's lung cancer. The Defendant's failure to diagnose the decedent's
lung cancer on his first visit to the hospital caused his chance of survival to go from a
39% to a 25% chance.

Issue. Whether, due to the Defendant's negligence, a decrease in the chances of survival
that are already lower than 50% is actionable negligence.

Held. A reduced chance of survival, no matter what the percentage, is an actual harm.
The Defendant's negligence caused a reduction in the decedent's chances of survival and
therefore a causal link is established between the negligence and the harm.

Discussion. Once the plaintiff demonstrates that the defendant's negligence caused a
decrease in chance of survival, there is sufficient information to determine whether the
negligence was a substantial factor in the resultant harm. The court notes that a reduction
in the opportunity to recover due to negligence does not mean that the jury must award
full damages to the plaintiff's estate, but rather only award damages based on premature
death i.e. lost wages.
110 Daubert v. Merrell Dow Pharmaceuticals, Inc.
Daubert v. Merrell Dow Pharmaceuticals, Inc.

Citation. 43 F. 3d 1311 (1995).

Brief Fact Summary. The Plaintiffs, Daubert and other minors (Plaintiffs), suffered limb
reduction birth defects. They claim the defects were caused when their mothers ingested
drugs manufactured by the Defendant, Merrell Dow Pharmaceuticals, Inc. (Defendant),
while they were pregnant.

Synopsis of Rule of Law. To be admissible, expert scientific testimony that is derived

from research done for the purpose of litigation must show that the conclusions were
reached after following recognized scientific methods of research.

Facts. The minor Plaintiffs were injured when their mothers ingested drugs manufactured
by the Defendant. According to the Plaintiffs' experts, the drug manufactured by the
Defendant caused the deformities. However, the majority of the scientific field does not
agree that the drug causes limb deformities and the Federal Drug Authority (FDA)
continues to approve of its use in pregnant women.

Issue. Whether the expert testimony offered by the Plaintiffs is admissible.

Held. The Plaintiffs' expert testimony is not admissible.

Discussion.

• When it comes to expert testimony and scientific theory, it is hard for the
courts to determine what is a fact and what is a scientific theory
admissible in court.

• Federal Rule of Evidence 702 (Rule 702) is now the standard for
admitting expert scientific testimony. Under Rule 702, there are several
factors to consider when determining whether expert testimony is
admissible:

i. Whether the theory is generally accepted in the scientific community;

ii. Whether the theory/method has been subjected to peer review and publication;

iii. Whether the theory/method has been tested or can be tested;

iv. Whether the potential or known rate of error is acceptable.

• It is the court's responsibility to resolve disputes among the respected

and credentialed scientists about matters within the scientists' expertise
and to reject testimony if it is not obtained by the scientific method.
111 Daubert v. Merrell Dow Pharmaceuticals, Inc.
• If expert testimony is shown to be the result of research conducted for
the purpose of litigation, the expert must show precisely how they reached
their conclusions and point to an objective source to show they followed
the scientific method as it is practiced by at least a recognized minority in
their field. Because the Plaintiffs' experts cannot do this, the testimony is
not admissible.

• The Plaintiffs' experts did not conduct their research independent of the
litigation and the theories have not been published in scientific journals or
reviewed by peers, thought there has been ample time to do so because the
theories and litigation has been around for a decade.

• Furthermore, under Rule 702, the Plaintiffs must show that the evidence
they offer would assist the trier of fact in determining a factual issue. The
Plaintiffs cannot show causation directly and attempt to show it through
circumstantial evidence provided by their experts. The testimony cannot
establish that the defects were not caused by an independent cause, since
limb reduction defects occur in the babies of mothers who did not take the
drug. The Plaintiffs' experts cannot say that the drug more than doubled
their risk of the defect, only that there was a statistical relationship
between he drug and the birth defect.
112 Hill v. Edmonds
Hill v. Edmonds

Citation. 270 N.Y.S.2d 1020 (1966).

Brief Fact Summary. The Plaintiff Hill, (Plaintiff), was injured when the car he was
riding in collided with a tractor left in the road without its lights on.

Synopsis of Rule of Law. When two separate acts of negligence produce a single harm,
each tortfeasor is wholly responsible for the harm even though his act alone may not have
caused it.

Facts. The Plaintiff was injured when the car the Plaintiff was riding in hit a tractor truck
left parked in the road without its lights on. The driver of the car testified that she saw the
tractor ahead of her before the collision and so may have been negligent in causing the
accident. At trial the court dismissed the complaint against the owner of the tractor due to
the testimony of the car's driver.

Issue. Whether two separate tortfeasors can be liable for one injury that could not have
resulted without the negligence of both parties.

Held. Multiple tortfeasors are each responsible for the entire injury and the complaint
against the tractor's owner must be reinstated.

Discussion. The accident would not have happened had the tractor's owner not left the
tractor in the road without its lights on. Because the harm could not have resulted without
the negligence of both the driver of the car and the tractor's owner, they both may be
responsible for the injury.
113 Anderson v. Minneapolis, St. P. & S.St. M. R.R. Co.
Anderson v. Minneapolis, St. P. & S.St. M. R.R. Co.

Citation. 179 N.W. 45 (1920).

Brief Fact Summary. A forest fire resulted in the destruction of the Plaintiff, Anderson's
(Plaintiff), property. The fire had two origins, one cause was due to the negligence of the
Defendant, Minneapolis, St. P. & S. St. M.R.R. Co. (Defendant), the other cause was
unknown.

Synopsis of Rule of Law. When the injury is caused by multiple acts of negligence, but
only one tortfeasor is known, that party is still liable for the injury.

Facts. A forest fire resulted from the negligence of the Defendant. The fire combined
with another of unknown origin and together the fires caused damage to the Plaintiff's
property.

Issue. Whether the Defendant's negligence was a substantial or material cause of the
damage to Plaintiff's property.

Held. The Defendant is still liable for its negligence even though the fire it caused
combined with another to result in damage to the Plaintiff's property.

Discussion. The jury instructions directed the jury to determine that if they found the fire
set by the Defendant's train to be materially or substantially responsible for the Plaintiff's
damage, either alone, or in connection with the other fire, then the defendant is liable.
The Defendant's argued, based on [Cook v. Minneapolis, St. P. & S.S.M. Ry. Co., 74
N.W. 561], the jury should have been instructed that if they found the unknown fire was
of more superior force, then the Defendant would not be liable since the fire it was
responsible for would not have caused the damage to Plaintiff's property, but for the
negligence of someone else. The court rejected this argument reasoning that the Cook
case makes sense if you have two fires from known origins because the result is joint and
several liability. However, Cook does not work in cases where the other fire is from an
unknown source because it leaves the Plaintiff with no possible recovery.
114 Summers v. Tice
Summers v. Tice

Citation. 199 P.2d 1 (1948).

Brief Fact Summary. Plaintiff was injured when he was shot in the eye during a hunting
expedition. Two defendants negligently shot in his direction at the same time.

Synopsis of Rule of Law. When there is negligence by multiple parties, and one party
can only have caused the plaintiff's injury, then it is up to the negligent parties to absolve
themselves if they can.

Facts. The plaintiff was shot in the eye during a hunting trip. Both defendants shot in the
plaintiff's direction at the same time while trying to shoot a quail. The plaintiff's injury
was caused by one shot.

Issue. Whether two tortfeasors can both be liable when the injury can only have been
caused by one of them.

Held. It is up to the tortfeasors to prove they were not responsible for the injury, since
both were negligent towards the plaintiff.

Discussion. The plaintiff should not be deprived of his recovery from negligent
defendants just because he cannot know which defendant actually shot him. Because both
of the defendants were negligent and both were wrongdoers, then it is their burden to
absolve themselves if they can. If the rule were that the plaintiff must choose one or the
other tortfeasor and that tortfeasor escaped liability by pointing to the second tortfeasor,
then second tortfeasor can do the same and leave the plaintiff without recovery.
115 Sindell v. Abbott Laboratories
Sindell v. Abbott Laboratories

Citation. 607 P.2d 924 (1980).

Brief Fact Summary. The Plaintiff, Sindell (Plaintiff), developed cancer as a result of a
drug her mother took while pregnant.

Synopsis of Rule of Law. In certain circumstances where the plaintiff is unable to

identity the actual tortfeasor and it is unjust to preclude them from recovery, then the
group responsible for the overall harm can be held liable.

Facts. The Plaintiff's mother took synthetic estrogen while pregnant with the Plaintiff. As
a result of receiving the drug in-utero, the Plaintiff developed cancer as an adult. The
drug was manufactured by the Defendants, five drug companies (Defendants) and by
about 195 other companies not named in the suit. The Defendants together produced 90%
of the drug. The Plaintiff is unable to identify which company produced the actual drug
her mother took.

Issue. Whether the Defendants are liable for the Plaintiff's cancer.

Held. The Defendants are liable for the injury to Plaintiff.

Discussion.

• This case is unlike others in which the plaintiff is unaware of the identity
of the tortfeasor. First, there is a large number of possible tortfeasors, the
majority of which are not named defendants. Second, the industry
responsible for the production of this drug is large, so holding all of the
manufacturers responsible becomes impractical.

• There are strong policy reasons for fashioning liability to the Defendants.
First, the Plaintiff was innocent of any wrongdoing and has no way of
knowing which of the drug manufactures caused her injury. Second, the
manufacturers of such drugs should be culpable for producing a drug that
has harmful effects to future generations. Third, the manufactures are in a
better position to bear the cost of such harm and they are in the best
position to discover and guard against future harm.

• If the Plaintiff joins a substantial share of the manufactures into the

lawsuit, the chances of the actual tortfeasor escaping liability is greatly
reduced. To determine damages, each manufacturer's liability will depend
on the share it had in the market for the drug unless that defendant can
show that it could not have made the product that Plaintiff's mother
ingested. In this way, each manufacturer is liable for an equivalent portion
of the injury as to its share of the defective drug it manufactured.
116

CHAPTER VI.
Proximate Or
Legal Cause
117 Atlantic Coast Line R. CO. v. Daniels
Atlantic Coast Line R. CO. v. Daniels

Citation. 70 S.E. 203 (1911).

Brief Fact Summary. None provided.

Synopsis of Rule of Law. To limit a potentially limitless chain of causes, we must look
to the proximate cause of the injury and draw arbitrary lines to limit liability.

Facts. N/A

Issue. N/A

Held. To limit a potentially limitless chain of causes, we must look to the proximate
cause of the injury and draw arbitrary lines to limit liability.

Discussion. Questions of cause and effect create potentially limitless liability so courts
must draw a line to sever the liability of a tortfeasor at a reasonable place in a chain of
events. Otherwise, a tortfeasor could theoretically claim the injury would not have
happened if the plaintiff had not been born at all.
118 Ryan v. New York Central R.R. Co.
Ryan v. New York Central R.R. Co.

Citation. 91 Am.Dec. 49 (1866).

Brief Fact Summary. Due to the Defendant, New York Central R.R. Co.'s (Defendant)
negligence, a fire started in a populated area and spread to the Plaintiff, Ryan's (Plaintiff)
home, destroying it and several other properties.

Synopsis of Rule of Law. Parties are not liable for the remote results of their negligence,
only the proximate consequences.

Facts. A woodshed on the Defendant's property caught on fire from one of the
Defendant's rail engines. The fire spread and consumed the Plaintiff's property. Several
other properties were also destroyed and valiant efforts were made to save the homes.

Issue. Whether the spread of the fire to the Plaintiff's home is a proximate or remote
result of the Defendant's negligence.

Held. The spread of the fire was a remote result and not a foreseeable consequence to the
burning of one building.

Discussion. The building that catches fire due to the Defendant's negligence, is a
foreseeable consequence. But the spread of the fire to other properties is not necessarily a
proximate result since that result depends on several accidental occurrences.
Circumstances such as the degree of heat, the weather and the materials used to construct
the adjoining properties are all contributors to the result. None of these circumstances are
under the control of the Defendant. Therefore, the burning of the Plaintiff's property is a
remote result of the Defendant's negligence and liability does not attach.
119 Bartolone v. Jeckovich
Bartolone v. Jeckovich

Citation. 103 A.D.2d 632 (1984).

Brief Fact Summary. The plaintiff suffered whiplash and other injuries as a result of a
car crash. His injuries aggravated a pre-existing schizophrenic condition.

Synopsis of Rule of Law. The defendant must take the plaintiff as he finds him and
maybe liable fore aggravating pre-existing illnesses.

Facts. The plaintiff was injured as a result of a four-car pileup caused by the defendant's
negligence. Although the plaintiff's initial injuries were relatively minor, whiplash and
lower back pain, the incapacity resulted in aggravating a pre-existing paranoid
schizophrenic condition, which has completely debilitated the plaintiff's life.

Issue. Whether the defendant is liable for the schizophrenic condition of the plaintiff.

Held. The defendant is liable for aggravating the plaintiff's pre-existing psychological
condition.

Discussion. The evidence demonstrates that the plaintiff lead a normal active life before
suffering minor physical injuries in the car accident. Expert medical testimony explained
how the injuries lead the plaintiff to exhibit schizophrenic behaviors. The defendant must
take the plaintiff as they find him. The plaintiff must demonstrate a predisposition to the
resultant psychological illness and in this case he did.
120 In re Arbitration Between Polemis and Furness, Withy & Co., Ltd.
In re Arbitration Between Polemis and Furness, Withy & Co., Ltd.

Citation. 3 K.B. 560 (1921).

Brief Fact Summary. While discharging cargo from a ship, a wooden plank fell causing
a spark to ignite the petrol the ship carried. The resulting fire destroyed the ship.

Synopsis of Rule of Law. The exact way in which damage or injury results need not be
foreseen for liability to attach, the fact that the negligent act caused the result is enough.

Facts. The owners of a vessel chartered its use to the Appellants for the purposes of
carrying, among other things, petrol to Casablanca. While unloading the cargo in
Casablanca, a wooden plank fell into the hold containing the petrol and caused an
explosion. The fire completely destroyed the vessel. The owners, charging the chatterers
with negligence, claimed the value of the vessel from the charterers. The charterers
responded that the fire was a remote consequence of their actions, so they are not
responsible. The case was referred to arbitration and the arbitrators found that the fire
was caused when the wooden plank hit metal and caused a spark. The arbitrators agreed
with the charterers that the spark was an unforeseen consequence of the original
negligence and therefore the destruction of the vessel was a remote consequence. The
only damage the charterers should be liable for is the approximate damage done to the
vessel by the falling wooden plank, not the damage done by the fire. The owners sought
review.

Issue. Whether the charterer's negligence was a proximate cause of the fire.

Held. The fire was a foreseeable consequence of the negligence.

Discussion. The finding that the spark was too remote to confer liability on the charterers
was based on the contention of the charterers that the fire was an unforeseen consequence
of the falling wooden plank. The actual anticipations of the negligent party are irrelevant
when considering whether the resulting damage is remote. In this case, the fire was a
direct result of the negligent act and therefore the charterers are liable for the fire. That
damage that might result when a wooden plank falls while discharging cargo is a
foreseeable consequence of the negligence, whatever that damage might be.
121 Overseas Tankship v. Morts Dock & Engineering Co., Ltd. "Wagon Mound No. 1"
Overseas Tankship v. Morts Dock & Engineering Co., Ltd. "Wagon
Mound No. 1"

Citation. Privy Council, 1961.

Brief Fact Summary. The defendants negligently caused oil to spill into the Port of
Sydney and do minimal damage to the plaintiff's wharf. The oil subsequently caused a
fire when molten metal dropped into the water and ignited cotton waste floating in the
port.

Synopsis of Rule of Law. The natural consequences rule is overruled and reasonable
foreseeability test is adopted.

Facts. The Plaintiff, Morts Dock & Engineering Co., Ltd. (Plaintiff), operated a dock in
the Port of Sydney. The Defendants were the owners of the vessel Wagon Mound
(Defendants). Wagon Mound was moored 600 feet from the Plaintiff's wharf when, due
the Defendant's negligence, she discharged furnace oil into the bay causing minor injury
to the Plaintiff's property. However, the oil was ignited when molten metal dropped from
the wharf and came into contact with cotton waste floating on the water's surface. The
fire seriously damaged the wharf and two ships docked there.

Issue. Whether the fire that destroyed the Plaintiff's wharf was a foreseeable consequence
of the Defendant's negligence.

Held. The injury to Plaintiff's property, though a direct result of the defendant's
negligence, was an unforeseeable consequence and liability does not attach.

Discussion. The natural consequences rule leads to instances where a negligent party is
liable for both the direct trivial foreseeable damage and all unforeseeable and grave
consequences too. This takes the law beyond the principle that a man should be liable for
the probable consequences of his actions. The prior rule has led to much confusion and
inconsistent results in the law. In some cases, the negligent actor is held responsible for
results that might be natural or probable and are therefore deemed to be foreseeable to the
reasonable man, when they are in fact not foreseeable. The Defendant is liable for the fire
if the injury by fire is a foreseeable consequence of their negligence.
122 Overseas Tankship Ltd. V. Miller Steamship Co. "Wagon Mound No. 2"
Overseas Tankship Ltd. V. Miller Steamship Co. "Wagon Mound No.
2"

Citation. Privy Council 1966.

Brief Fact Summary. The defendants negligently caused oil to spill into the Port of
Sydney. This spill did minimal damage to the plaintiff's ships. The oil subsequently
caused a fire when molten metal dropped into the water and ignited cotton waste floating
in the port. The fire destroyed the ships.

Synopsis of Rule of Law. If a party did nothing to prevent the injury, he is liable for the
foreseeable consequences of his actions, even if the consequences are remote.

Facts. The defendants are the owners of the vessel Wagon Mound, which was moored
600 feet from a wharf. The plaintiffs are owners of ships docked at the wharf. Due to the
defendant's negligence, furnace oil was discharged into the bay causing minor injury to
the plaintiff's ships. However, the oil was then ignited when molten metal dropped from
the wharf and came into contact with cotton waste floating on the water's surface. The
fire that resulted seriously damaged the wharf and two of the plaintiff's ships.

Issue. Whether the fire, which was found to be foreseeable to the reasonable man, was
reasonably foreseeable to the extent liability attaches.

Held. If a reasonable man can foresee and prevent the risk, then he is liable for the
foreseeable damages.

Discussion. Based on the trial court's findings, it is true that the Wagon Mound's
operators would have foreseen that oil spilling into the harbor had a possibility of causing
a fire, but would have only a very low probability. A fire could only result under
exceptional circumstances. However, because the risk of fire was foreseeable, the
defendants bore a duty to prevent the risk, even if the risk was a remote possibility.
123 Palsgraph v. Long Island R.R. Co.
Palsgraph v. Long Island R.R. Co.

Citation. 162 N.E. 99 (1928)/.

Brief Fact Summary. A railway guard employed by the Defendant, the Long Island R.R.
Co. (Defendant), caused a man to drop a package of fireworks upon the tracks. The
fireworks caused an explosion and the force of the explosion caused a scale at the other
end of the station to fall on the Plaintiff, Ms. Palsgraph (Plaintiff) and injure her.

Synopsis of Rule of Law. A negligent party only owes a duty to the party who was
directly wronged by them.

Facts. While waiting on the platform of the Defendant's train station for her train to
arrive, the Plaintiff was struck and injured when the station's large scales fell on her. The
scales fell when a large explosion occurred. The explosion was the result of a package of
fireworks hitting the rails. The man carrying the package dropped the fireworks when he
was assisted onto a moving train by one of the train guards.

Issue. Whether the Defendant's negligence was a proximate cause of the Plaintiff's injury.

Held. When the Defendant's guard attempted to assist the man with the package onto the
train, the guard committed an act of harm on the man. The Plaintiff, on the other had, was
several feet away and there was no warning that the guard's action could harm a person
standing on the opposite side of the rail platform. The guard's actions did not violate a
right or an interest of the Plaintiff's and so the Defendant owes no duty to the Plaintiff
because the wrong was not done to her, but to another.

Dissent. The theory of negligence posed by the dissent looks not at the duty, but at the
proximate cause of the injury to the Plaintiff. If an act unreasonably threatens the safety
of others, the party responsible for the act is liable for all of the proximate consequences,
even if they are outside of the "orbit" of danger. The dissent points out that limiting the
legal duty owed by the Defendant to just the man entering the train and not the other
passengers is too narrow. Some wrongs are to the public at large because due care is a
duty imposed on all of society to protect each other from unnecessary danger. If an
unreasonable risk is taken, then its consequences are not confined to individuals.

Discussion. The "orbit" of the duty here is the "orbit" of foreseeability. The defendant's
guard was negligent when he dislodged the package from the man carrying the fireworks.
It was not foreseeable that this act could cause injury to the Plaintiff, who was several
feet away from the initial injury. The guard owed no duty of care to the people on the
platform generally, and could not have known the nature of the contents of the package.
The harm to the Plaintiff was the unforeseeable result of harm caused to another person.
Furthermore, by dislodging the package from the man's arms, the guard could not have
expected the harm to carry a risk to people standing several feet away on the platform.
The plaintiff cannot predicate her injury upon the wrong done to someone else. The duty
124 Palsgraph v. Long Island R.R. Co.
the Defendant owed is defined by the risk reasonably perceived. The reasonable person
would not perceive that the risk created by dislodging a package while attempting to help
a passenger onto a train would carry with it a duty to persons several feet away.
125 Yun v. Ford Motor Co.
Yun v. Ford Motor Co.

Citation. 647 A.2d 841 (1994).

Brief Fact Summary. A car struck the plaintiff's father when he attempted to retrieve a
spare tire and support brackets from the highway after they had fallen off.

Synopsis of Rule of Law. An intervening cause, which is an unforeseeable or

extraordinary event, breaks the chain of causation.

Facts. The plaintiff was driving her van when the spare tire came loose from its holding
and came off of the van. The plaintiff and her father Chang, who was a passenger,
stopped the van when they heard the tire come off. Chang got out and crossed the
highway to retrieve the tire and other parts of the support bracket. On his way back to the
van Chang was hit by a car and killed.

Issue. Whether the decedent's conduct was reasonably foreseeable or if it was so out of
the ordinary that it broke the chain of causation.

Held. The decedent's actions where senseless and liability for his injuries should not
attach.

Dissent. The issues of proximate cause and intervening cause should be left to the jury
for factual determination. In cases where reasonable persons may differ the issue should
go to the jury. A jury might find that it was reasonably foreseeable that the tire would
dislodge and fall onto the roadway while the van was in operation and that someone
might try to retrieve those parts.

Discussion.

• Proximate cause is any cause that in the continuous sequence, unbroken

by an intervening cause, produces the resultant injury and without which
injury would not have occurred.

• The defect in the spare tire did not cause Chang's injuries, the injury
occurred after he recklessly crossed the highway. The spare tire created
circumstances upon which the subsequent intervening negligence
occurred, but there was no proximate cause between the defect in the
product and the injury.

• The manufacture of the spare tire holder is also not responsible for the
decedent's injuries. The facts show that the plaintiff and Chang had the
opportunity to fix the holder thirty days before the accident occurred.

• As a matter of public policy, the court can decide the issue of proximate
cause, which is usually reserved for the trier of fact, when the injury is so
126 Yun v. Ford Motor Co.
extraordinary that it cannot be an expected result. This is such a case as
the harm caused to the plaintiff is so unexpected.
127 Derdiarian v. Felix Contracting Corp.
Derdiarian v. Felix Contracting Corp.

Citation. 414 N.E.2d 666 (1981).

Brief Fact Summary. After suffering an epileptic seizure, the driver of a car crashed into
the Defendant, Felix Contracting Corp.'s (Defendant), worksite and hit the Plaintiff,
Derdiarian (Plaintiff), who was severely burned by liquid enamel as a result.

Synopsis of Rule of Law. Intervening acts of a third person do not automatically sever
liability between the plaintiff and the defendant. The liability survives if the intervening
act is a normal or foreseeable consequence of the circumstances created by the
defendant's negligence.

Facts. The Plaintiff was severely burned while working as a subcontractor on street
repairs. The accident occurred when the driver of an automobile traveling down the street
where Plaintiff was working suffered an epileptic seizure and hit the Plaintiff causing him
to fly through the air. When the Plaintiff landed, liquid enamel was splattered on his face
and body. The Plaintiff became engulfed in flames.

Issue. Whether the intervening act of the car accident severs the Defendant contractor's
liability.

Held. The injury to the Plaintiff is a foreseeable consequence of the negligence of the
defendant.

Discussion. The Defendant was negligent in not properly protecting the worksite where
the Plaintiff was working. It is a naturally foreseeable consequence that a car might enter
the worksite and injure a worker. The precise nature of the injury need not be foreseeable.
The fact that a car could enter the unprotected worksite is a natural, normal and
foreseeable risk created by the Defendant's failure to protect the site.
128 Watson v. Kentucky & Indiana Bridge & R.R. Co.
Watson v. Kentucky & Indiana Bridge & R.R. Co.

Citation. 126 S.W. 146 (1910).

Brief Fact Summary. The Plaintiff, Watson (Plaintiff), was injured when a third party lit
a match and ignited gasoline vapor causing an explosion. The gasoline vapor was the
result of the derailing of a rail car owned by the Defendant, Kentucky & Indiana Bridge
& R.R. Co. (Defendant).

Synopsis of Rule of Law. If an intervening act is merely unforeseeable it does not sever
the liability of the primary negligent party. However, if the intervening act is so
unexpected or extraordinary that the primary tortfeasor could not and ought not to have
anticipated it, then liability is severed.

Facts. The Defendant railroad's tank car filled with gasoline derailed and spilled its
contents into the street where the Plaintiff was a bystander. A third party struck a match
igniting the gasoline vapor and causing the explosion, which injured the Plaintiff. There
was conflicting testimony at trial over whether the third party started the fire while
lighting a cigar, or whether he dropped the match with the intention of igniting the gas.

Issue. Whether the intervening act of the third party was a contributing cause, or the
proximate cause of the Plaintiff's injury.

Held. A foreseeable intervening act severs liability only if it is so unexpected or

extraordinary that the defendant could not and ought not to have anticipated it.

Discussion.

• If the third party inadvertently lit the match, then the negligence of the
Defendant is a proximate cause of the Plaintiff's injury because it is
reasonably foreseeable that someone might light a cigar on the street. In
this instance the explosion could not have occurred without the gasoline
first having been spilled.

• If the act of the third party was intentional and done with the purpose of
lighting the gasoline, then the Defendant is not liable because the
Defendant could not have foreseen that someone would maliciously light a
match with the purpose of causing an explosion. Because such an act is
not reasonably foreseeable, the Defendant had no way to guard against it.
129 Fuller v. Preis
Fuller v. Preis

Citation. 322 N.E.2d 263 (1974).

Brief Fact Summary. Following a collision with the defendant, the decedent suffered
head injuries causing multiple serious epileptic seizures. After several months he
committed suicide.

Synopsis of Rule of Law. An intentional intervening act like suicide does not sever the
causal relationship with the primary tortfeasor, when it is shown that the decedent was
incapable of resisting the impulse to kill themselves as a result of the tortfeasor.

Facts. The decedent, Dr. Lewis, was in good health physically and mentally before he
suffered head injuries as a result of a collision with the defendant. After the collision, the
decedent suffered epileptic seizures and unconsciousness. Eventually Dr. Lewis took is
own life.

Issue. Whether the decedent's suicide was an irresistible impulse caused by injuries he
suffered due to the defendant's negligence.

Held. An act of suicide does not preclude liability on the tortfeasor, it is not a
superseding cause.

Discussion. If the act of suicide is a foreseeable result of the defendant's negligence, then
the defendant may be liable for the suicide even though suicide is an intentional act. To
be held liable, the evidence must show that the decedent was incapable of resisting an
impulse to destroy themselves due to the negligent act.
130 McCoy v. American Suzuki Motor Corp.
McCoy v. American Suzuki Motor Corp.

Citation. 961 P.2d 952 (1998).

Brief Fact Summary. The Plaintiff, McCoy (Plaintiff), was injured when he was
attempting to help at an accident sight and was hit by a car.

Synopsis of Rule of Law. The rescue doctrine may apply in products liability cases.

Facts. The Plaintiff was struck by a car while offering assistance at the scene of a car
accident. The Plaintiff was following behind the driver of a Suzuki motor vehicle when it
crashed. A state trooper arrived at the scene soon after and asked the Plaintiff to put flares
on the road, which the Plaintiff did. After the accident scene and the injured parties were
removed, the Plaintiff headed back to his car along the shoulder of the road carrying a lit
flare in his roadside hand. He was then struck from behind by a passing car. The state
trooper had pulled away and left the scene when the hit and run occurred. The Plaintiff
sued various Defendants including the driver and the passenger of the Suzuki, the State
for the negligence of the trooper and American Suzuki Motor Company along with its
parent Suzuki Motor Company (Defendants).

Issue. Whether the rescue doctrine protects the Defendant from claims brought under a
theory of products liability.

Held. Products liability, like any other tort, is subject to the rescue doctrine.

Discussion.

• The rescue doctrine allows an injured rescuer to sue the party that caused
the danger. The tortfeasor owes a duty to the rescuer that is similar to the
duty they owed to the party injured in the first place. The doctrine also
negates the presumption that the rescuer assumes risk of injury when
undertaking a dangerous rescue as long as the rescuer does not act
recklessly.

• The rescue doctrine requires that:

i. The defendant acted negligently towards the person rescued and the negligence caused
the danger to the rescuer,

ii. The danger was imminent,

iii. A reasonably prudent person would have concluded that the danger existed and

iv. The rescuer acted with reasonable care.

131 McCoy v. American Suzuki Motor Corp.
• In this case, the court found that the Plaintiff met the requirements to
achieve rescuer status.

• The rescuer doctrine was developed for public policy reasons because
rescuers should be anticipated and should not be barred from bringing suit.
There is no reason that this policy should not apply to situations where a
manufacturer causes the danger. Therefore, for the rescuer to show
causation, they only need to show that the defendant proximately caused
the danger and that they were injured as a result of their actions as rescuer.

• It is a possibility that Suzuki's negligence caused the Defendant driver's

accident and therefore they should not be protected from liability to the
Plaintiff.
132 Kelly v. Gwinnell
Kelly v. Gwinnell

Citation. 96 N.J. 538, 476 A.2d 1219 (1984).

Brief Fact Summary. Zak provided Gwinnell with alcoholic beverages and then allowed
him to drive home. Gwinnell was involved in a head on collision with Kelly on his way
home. Kelly sued Gwinnell and Zak for negligence. The trial court granted Zak's motion
for summary judgment.

Synopsis of Rule of Law. Social hosts who allow guests to become intoxicated and then
drive, may be liable for injuries caused by the guest's negligent drunk driving.

Facts. Two of the Defendants were Zak and Gwinell (Defendants). Gwinnell drove Zak
to Zak's home, where Gwinell consumed alcoholic beverages. Zak walked Gwinnell to
his car, where he chatted with him and watched him drive off. On his way home,
Gwinnell was involved in a head on collision with the Plaintiff, Kelly (Plaintiff), who
was seriously injured. Plaintiff sued the Defendants. The trial court granted Zak's motion
for summary judgment, ruling as a matter of law that a host is not liable for the
negligence of an adult social guest who has become intoxicated at the guest's house. The
appellate court affirmed.

Issue. Is a host who serves liquor to a guest, knowing that the guest is intoxicated and
will be operating a motor vehicle, liable for injuries inflicted on a third party when the
injuries are a result of negligence and the negligence is caused by the intoxication?

Held. Yes. Judgment reversed and remanded.

• Tortfeasors are generally held liable for injuries that occur in the
ordinary course of events from their negligence if the negligence was a
substantial factor in bringing about the injuries. Zak provided his guest
with liquor, knowing the guest would be driving later. Viewing the facts
most favorably for the plaintiff (in light of the summary judgment motion)
it is reasonable to conclude that Zak continued to serve Gwinnell after he
was becoming visibly drunk. A reasonable person in Zak's position could
foresee that unless he stopped providing Gwinnell with alcoholic
beverages, Gwinnell was likely to injure someone while operating his car.

• The remaining question is if this Court should impose a duty to prevent

such a risk. Although imposing a duty may interfere with accepted
standards of social behavior, this Court believes that the just compensation
of drunk driving victims along with its deterrent effect outweigh the
opposing policy considerations.

Dissent. This type of liability imposition is best left up to the legislature. Unlike
commercial licensees who serve alcoholic beverages, average social hosts have less
knowledge in determining levels of intoxication, don't always serve guests directly, and
133 Kelly v. Gwinnell
have no insurance to spread the cost of liability. Additionally, it is not clear from the
majority's decision to what length a host must go to prevent an intoxicated guest from
driving.

Discussion. The majority's decision to impose a duty on social hosts was based both on
fairness and policy considerations.
134 Enright v. Eli Lilly & Co.
Enright v. Eli Lilly & Co.

Citation. 77 N.Y.2d 377, 570 N.E.2d 298, 568 N.Y.S.2d 550 (N.Y.App.1991).

Brief Fact Summary. The Plaintiff, Patricia Enright on behalf of Karen Enright an infant
(Plaintiff), sued the Defendants, various manufacturers of DES (Defendants), for damage
done to her because of a premature birth. This premature birth was allegedly the result of
damage to Patricia Enright's mother's reproductive system, which was damaged due to in
utero exposure to DES.

Synopsis of Rule of Law. Causes of action are not recognized for children who have
injuries which were caused by a preconception tort committed against the mother.

Facts. Plaintiff's grandmother took a prescription pill called DES intended to prevent
miscarriage during pregnancy. Plaintiff's grandmother gave birth to Patricia Enright, who
alleges she developed abnormalities of her reproductive system due to exposure to DES.
These abnormalities allegedly resulted in the premature birth of Plaintiff, who suffers
from cerebral palsy and other disabilities attributed to her premature birth. Plaintiff's
claims were dismissed by the trial court. The appellate court affirmed the dismissal of the
negligence, breach of warranty, and fraud causes of action, but reinstated the strict
liability count.

Issue. Can a plaintiff recover under a strict liability theory for injuries sustained during
birth that were the result of abnormalities in her mother's reproductive system caused by
the mother's in utero exposure to DES?

Held. No. Judgment reversed.

• Due to the widespread tragic effects of DES, the legislature has removed
legal barriers to tort recovery. Instead of the usual tolling of the statute of
limitations for exposure to toxic substances when the exposure occurs, the
legislature changed the law to allow the limitations period to begin to run
upon discovery of the injury. Additionally, the legislature has allowed for
liability to be imposed upon DES manufacturers in proportion to their
share of the national DES market when plaintiffs find it impossible to
identify the manufacturer of the drug that caused her injuries.

• In the present case, the Court is asked to recognize a cause of action not
available in other contexts simply because this is a DES case. Previous
cases have determined that causes of action do not lie in favor of children
for injuries suffered as a result of a preconception tort committed against
the mother [Albala v. New York, 54 N.Y.2d 269, 429 N.E.2d 786]. This
Court does not believe that the public interest in providing a remedy for
those injured by DES is stronger than the public interest in providing
remedies for those injured by other means.
135 Enright v. Eli Lilly & Co.
• Plaintiff also argues that previous decisions involved negligence cases
and that a different result might be obtained under a strict products
liability theory. This Court finds that public policy considerations counsel
against allowing such causes of action. First, these causes of action could
not be confined without drawing artificial boundaries, as the effects of
DES exposure may extend for generations. More importantly, such
extensive liability might hinder the creation and availability of important
prescription drugs.

Discussion. Part of the reasoning for not allowing tort actions through multiple
generations is the issue of foreseeability. While a reasonable person could foresee that
injuries would occur to those directly exposed to DES, it is more difficult to foresee that
injuries would occur to multiple later generations.
136

C
H
A
P
T
E
R

V
I
I
.

J
o
i
n
t
137 Bierczynski v. Rogers
Bierczynski v. Rogers

Citation. 239 A.2d 218 (Del.1968).

Brief Fact Summary. Bierczynski and Race were involved in an automobile race. Race
crashed his car into a vehicle driven by Cecil and Susan Rogers. Susan Rogers sued both
Bierczynski and Race under a negligence theory. The jury found both liable. Bierczynski
appealed based on the fact that he was not involved in the accident.

Synopsis of Rule of Law. When two or more individuals are wrongdoers acting in
concert and their actions injure a third party, all may be liable for concurrent negligence,
regardless of which of the individuals directly caused the injury.

Facts. The Plaintiffs, Cecil and Susan Rogers (Plaintiffs), brought a negligence action
against the Defendants, Race and Bierczynski (Defendants), for a car accident caused by
a high speed race Bierczynski and Race were involved in. The evidence showed that
Bierczynski and Race came down a hill side by side-by-side at twice the legal limit when
they approached Plaintiffs' car. Race tried to get his car back into the eastbound lane, but
lost control and careened into Plaintiffs' car. Bierczynski remained in the proper lane at
all times, and his car never came into contact with the Plaintiff's vehicle. The jury found
that Race and Bierczynski were each negligent and that the negligence of each was a
proximate cause of the accident. The defendant Bierczynski appealed the verdict. Race
joined with Plaintiffs in upholding the judgment below.

Issue. Can a participant in a street race be found liable for negligence when his vehicle
did not come into contact with the injured non-participant?

Held. Yes. Judgment affirmed.

• In many states, the violation of statutes prohibiting automobile racing is

negligence per se. Although Delaware has no such statute, automobile
racing constitutes a negligent act because a reasonably prudent person
would not engage in such conduct. All parties engaged in automobile
racing on the highway are "wrongdoers acting in concert." Each
participant is liable for injuries caused because he has induced and
encouraged the tort. This Court holds that participation in a motor vehicle
race on a public highway is an act of concurrent negligence, with each
participant being liable for any injuries to non-participants.

Discussion. Because both Defendants are at fault and they have concert of action,
Bierczynski is negligent even though his car did not come into contact with the Plaintiffs.
138 Coney v. J.L.G. Industries, Inc.
Coney v. J.L.G. Industries, Inc.

Citation. 97 Ill.2d 104, 454 N.E.2d 197, 73 Ill.Dec. 337 (1983).

Brief Fact Summary. A wrongful death action based on strict products liability was
brought against the Defendant, J.L.G. Industries (Defendant). Defendant claims that the
deceased committed contributory negligence, the deceased's employer was also negligent
and that the adoption of comparative negligence should eliminate joint and several
liability.

Synopsis of Rule of Law. Joint and several liability is still applicable when contributory
negligence is replaced by comparative negligence.

Facts. A wrongful death action was brought by the Plaintiff, Coney on behalf of Clifford
Jasper (Plaintiff). Jasper died operating a hydraulic aerial work platform manufactured by
the Defendant. The action was based on strict products liability. Defendant argued that
Jasper had committed contributory negligence and that his employer had also contributed
to Plaintiff's injuries through negligence.

Issue. Does the doctrine of comparative negligence or fault eliminate joint and several
liability?

Held. No. Judgment affirmed and remanded with directions.

• Joint and several liability holds each tortfeasor responsible for the
Plaintiff's entire injury. Defendant argues that joint and several liability
was a corollary to contributory negligence and is no longer necessary with
the adoption of comparative negligence.

• Most jurisdictions have retained joint and several liability with the
adoption of comparative negligence. There are several reasons for this
approach. The ability to apportion fault on a comparable basis does not
cause an indivisible injury to become divisible. When a plaintiff is not
guilty of any negligence, he would be forced to bear a portion of the loss if
one of the tortfeasors is unable to pay his share of damages. When a
plaintiff is partially negligent, his negligence relates only to a lack of due
care for his own safety in comparison to the defendant's lack of due care
for the safety of others. Only the defendant's action is tortuous. Finally,
elimination of joint and several liability would have a deleterious effect on
the ability of a plaintiff to obtain adequate compensation. Based on these
observations, the Court concludes that comparative fault does not
eliminate joint and several liability.

Discussion. Joint and several liability allows a plaintiff to pursue all, some, or only one
of his tortfeasors for the full amount of damages. Contributory negligence bans recovery
139 Coney v. J.L.G. Industries, Inc.
for a plaintiff if he is at all at fault for the injuries he sustains, while comparative
negligence only reduces the plaintiff's recovery by his own percentage of negligence.
140 Bartlett v. New Mexico Welding Supply, Inc.
Bartlett v. New Mexico Welding Supply, Inc.

Citation. 98 N.M. 336, 648 P.2d 794 (N.M. App.1982).

Brief Fact Summary. The Plaintiff, Jean Bartlett (Plaintiff), sued the Defendant, new
Mexico Welding Supply, Inc. (Defendant), for damages that occurred during a car
accident. The jury found that Defendant was 30% responsible for the damages, with
another unknown driver being 70% responsible. Plaintiff moved that the full judgment
should be entered against Defendant. Defendant applied for an interlocutory appeal.

Synopsis of Rule of Law. Under New Mexico comparative negligence law, joint and
several liability is not applicable to force one concurrent tortfeasor to pay the entire
amount of damages.

Facts. This case revolves around an automobile accident involving three vehicles. The
lead car signaled a right turn, then turned into and pulled out of a service station in a
quick motion. Plaintiff slammed on her brakes to avoid hitting the lead car. The
Defendant's truck was behind Plaintiff. Defendant applied his brakes, but skidded into
Plaintiff's car. The driver of the lead car was unknown. Plaintiff sued Defendant on a
negligence theory and Defendant claimed that the negligence of the lead car caused or
contributed to the damage. The jury, in response to special questions, determined that
Plaintiff's damages were $100,000 and that Defendant's negligence contributed to the
damages to the extent of 30%. Plaintiff moved that judgment be entered in their favor for
$100,000. The trial court denied the motion and ordered a new trial. The appellate court
granted Defendant's application for an interlocutory appeal.

Issue. In a New Mexico comparative negligence case, is a concurrent tortfeasor liable for
the entire damage caused by concurrent tortfeasors under a joint and several liability
theory?

Held. No. Judgment reversed. Case remanded with instructions to enter judgment against
Defendant for 30% of Plaintiff's damages.

• The retention of joint and several liability for concurrent tortfeasors has
been retained in most pure negligence states. This retention rests on two
grounds, neither of which is defensible.

• The first ground is the concept that a plaintiff's injury is "indivisible" in

the sense that there was, but one wrong and each defendant's negligence is
a proximate cause of the entire indivisible injury. This court finds that this
theory is obsolete and based merely on common law technicalities.

• The second ground is that joint and several liability must be retained
because a plaintiff should not be forced to bear the risk of being unable to
collect his judgment. The Court points out that when only one defendant is
involved, the plaintiff bears the risk of this defendant being insolvent.
141 Bartlett v. New Mexico Welding Supply, Inc.
Therefore, there is no reason to shift the risk when multiple defendants are
involved.

Discussion. This case represents a different approach to determining damages in a

comparative negligence case involving multiple tortfeasors. In jurisdictions that retain
joint and several liability, defendants that pay more than their fair portion may recover
from other joint tortfeasors on either a pro-rata or comparative-fault basis.
142 Bundt v. Embro
Bundt v. Embro

Citation. 48 Misc.2d 802, N.Y.S.2d 872 (1965).

Brief Fact Summary. The Plaintiffs, five passengers injured in a two car accident
(Plaintiffs), brought a negligence action against Defendants for an automobile accident.
The Defendants were the drivers of the two cars and a contractor repairing the highway
obstructing a stop sign (Defendants). Defendants moved to amend their answers to add
the defense of discharge and satisfaction because Plaintiffs recovered a judgment against
the state for the same injuries.

Synopsis of Rule of Law. The defense of discharge and satisfaction provides that
multiple judgments cannot be satisfied against multiple defendants for the same tort.

Facts. This case involves an action by five plaintiffs, who were passengers in one of two
automobiles that collided. Actions were brought against the drivers, as well as a
contractor repairing the highway who negligently obstructed a stop sign. Defendants
moved to amend their answers to add the defense of discharge and satisfaction because
Plaintiffs recovered a judgment for the same injuries against the State of New York.

Issue. Is the defense of discharge and satisfaction applicable to prevent multiple

judgments from being satisfied against different tortfeasors when one judgment has
already been satisfied?

Held. Yes. Leave to amend granted to Defendants.

• Joint and several liability allows for one who has been injured by the
joint wrong of several parties to recover against any or all of the parties.
However, while there may be several suits and recoveries, there can only
be one satisfaction. This is based on the fact that the consequences of the
wrongful act are indivisible, limiting injured individuals to a single
satisfaction.

• This court does not agree with Plaintiff's argument that this rule is not
applicable to a Court of Claims judgment. A New York Act provides that
by waiving sovereign immunity, the state is in the same position as a
private individual. Therefore, if the state and the Defendants are joint
tortfeasors and the judgment has been satisfied by the state, the defense of
discharge and satisfaction is applicable.

Discussion. The defense of discharge and satisfaction prevents double recovery from a
single injury. While states are immune as sovereign at common law, states are free to
waive this immunity and grant courts jurisdiction to determine claims against it.
143 Cox v. Pearl Investment Co.
Cox v. Pearl Investment Co.

Citation. 168 Colo. 67, 450 P.2d 60 (1969).

Brief Fact Summary. The Plaintiffs, Mr. and Mrs. Fox (Plaintiffs) sued the Defendant,
Pearl Investment Company, (Defendant) for injuries sustained when Mrs. Cox fell on
property owned by Defendant. At trial, it was shown that the tenant of the property had
paid the Plaintiffs in exchange for a covenant not to sue. The trial court found in favor of
the Defendant on a summary judgment motion based on the covenant not to sue.

Synopsis of Rule of Law. The court will look to the intent of the parties to the contract
when determining if a covenant not to sue releases all tortfeasors who may have liability.

Facts. Plaintiffs sought recover for injuries sustained when Mrs. Cox fell on property
owned by the Defendant. At trial, it was shown that the tenant, Goodwill Industries, had
previously paid Plaintiffs $2,500 in consideration of plaintiffs' execution of a Covenant
Not to Proceed with Suit. The trial court found in favor of Defendant on a motion for
summary judgment based on the common law rule that the release of one tortfeasor
releases all others who may have liability.

Issue. Does a covenant not to sue release all other tortfeasors who may have liability,
regardless of the wording of the covenant?

Held. No. Judgment reversed and cause remanded.

• The covenant that Plaintiffs executed expressly reserved the right of

Plaintiffs to sue any other person against whom they may assert a claim.
Under previous Colorado case law [Price v. Baker, 143 Colo. 264, 352
P.2d 90] covenant's not to sue were rigidly ruled to bar suit against all
tortfeasors regardless of the wording of the covenant. This Court
determines that this rule is harsh and illogical, depriving litigants of full
compensation for injuries caused by wrongdoers.

• Under traditional contract law, the manifest intent of the parties to a

contract should be given effect. A covenant that releases one party from
suit, but expressly reserves the right to sue others should not be treated
otherwise. The danger of double compensation should not be an excuse for
barring claims against joint tortfeasors.

Discussion. Under a covenant not to sue the right to sue is retained, but there is an
agreement not to enforce it. If the plaintiff sues, the defendant has a counterclaim for
breach of covenant.
144 Elbaor v. Smith
Elbaor v. Smith

Citation. 845 S.W.2d 240 (Tex.1992).

Brief Fact Summary. The Plaintiff, Ms. Smith (Plaintiff), brought claims against
multiple defendants for medical malpractice. Plaintiff entered into Mary Carter
agreements with several defendants, in which the defendants effectively settled before
trial, then participated in the trial as defendants assisting the plaintiff in her suit against
the remaining defendant. The remaining defendant challenged the validity of the Mary
Carter agreements.

Synopsis of Rule of Law. The Texas Supreme Court has voided the validity of Mary
Carter agreements based on public policy considerations.

Facts. The Plaintiff suffered serious injuries as a result of an automobile accident and
required significant medical attention. She was treated at various times by Dr. Syrquin,
Dr. Elbaor, Dr. Stephens and Dr. Gatmaitan. Plaintiff filed medical malpractice claims
against the Defendants, all four above doctors, D/FW Medical Center, and Arlington
Community Hospital (ACH), (Defendants) due to a fused ankle that resulted from
treatment. Prior to trial, Plaintiff settled and dismissed her claim against D/FW Medical
Center and non-suited her claim against Dr. Gatmaitan. She also entered into "Mary
Carter" settlement agreements with Dr. Syrquin, Dr. Stephens and ACH. The agreements
provided that they would pay plaintiff a total of $425,010, remain as defendants,
participate in the trial, and be paid back all or a portion of the settlement money out of the
recovery against Dr. Elbaor. Dr. Elbaor requested the agreements be voided, or the
settling Defendants be dismissed from trial. The trial court denied the requests and
proceeded with trial. The jury awarded Plaintiff damages in the amount of $2,253,237,
allocating responsibility between Dr. Elbaor (88%) and Dr. Syrquin (12%). The trial
court entered judgment against Dr. Elbaor for $1,872,848. The Court of Appeals
affirmed.

Issue. Are Mary Carter agreements void as against public policy?

Held. Yes. Judgment reversed and remanded for new trial.

• Mary Carter agreements are agreements where a plaintiff enters into a

settlement agreement with one defendant and goes to trial against the
remaining defendants. The settling defendant remains a party and
guarantees the plaintiff a minimum payment, which may later be offset by
an excess judgment recovered at trial. These agreements create an
incentive for the settling defendant to assist the plaintiff in receiving a
sizably recovery.

• The trial court recognized this incentive and took remedial measures to
mitigate the effects of the agreement. These measures included
reapportioning preemptory challenges, changing the order of proceedings
145 Elbaor v. Smith
to favor the adverse Defendant, allowing counsel to explain the
agreements to the jury and instructing the jury regarding the agreements.

• Throughout the trial the settling Defendant's attorneys sat with Dr.
Elbaor's attorneys, but vigorously assisted the plaintiff in placing the
majority of the blame on Dr. Elbaor.

• This Court believes that Mary Carter agreements do not accomplish what
most court approved agreements do, help to promote settlement. Although
allowing for partial settlement, Mary Carter agreements nearly always
ensure a trial will occur. Many jurisdictions have chosen to tolerate these
agreements, some with protective measures such as those taken by the trial
court.

• This Court believes that the negative effects of Mary Carter agreements
outweigh any potential benefits. They create a false sense of adversity
between plaintiff and one co-defendant, with the parties actually being
allied. They also pressure the settling defendant to contribute discovery
material, peremptory challenges, trial tactics and supportive witness
examination. Remedial measures cannot overcome these effects. Because
the public policy favoring fair trials outweighs that of favoring partial
settlements, the Court declared Mary Carter agreements void as violative
of sound public policy.

Dissent. The trial court went to great lengths to ensure that the agreements were not
hidden from the jury and did not unduly favor the Plaintiff. As long as two parties to the
trial remain antagonistic, the adversarial process should still effectively result in
discovery of the truth.

Discussion. The dissent's opinion represents the majority view in the United States, with
most jurisdictions allowing for Mary Carter agreements.
146 Knell v. Feltman
Knell v. Feltman

Citation. 85 U.S.App.D.C. 22, 174 F.2d 662 (U.S.App.D.C. 1949).

Brief Fact Summary. Plaintiffs were passengers in a car driven by Knell, when the car
collided with a taxicab owned by Feltman. Plaintiffs sued Feltman, who filed a third-
party complaint against Knell for contributory negligence. The court ordered contribution
by Knell to Feltman. Knell claims that contribution is not warranted because joint
liability was not established.

Synopsis of Rule of Law. As long as concurrent tortfeasors are not intentional

wrongdoers, contribution will be enforced regardless of whether or not a joint judgment
is entered against them.

Facts. This case involves a car accident. The Plaintiffs, Evelyn Langland (Mrs.
Langland) and her husband (Plaintiffs), were guest passengers in a car driven by Kenneth
Knell. The car they were riding in collided with a taxicab owned by the Defendant, Ralph
Feltman (Feltman) and operated by his employee. Mrs. Langland was seriously injured in
the accident. The Plaintiffs sued the Defendant to recover damages. The Defendant filed
a third-party complaint against Knell, claiming the accident was caused by his sole or
contributing negligence. The jury found both the Defendant and Knell negligent. The
court awarded judgment in favor of Plaintiffs against the Defendant for $11,500, and
upon payment, judgment in favor of Defendant against Knell for $5,750. Knell appeals,
claiming that the right of contribution exists only between tortfeasors liable in common to
the plaintiff and his liability to the Plaintiffs was not established by the judgment because
the Plaintiffs did not include him in the suit.

Issue. Is a joint judgment against tortfeasors who commit a tort through concurrent
negligence a prerequisite for enforcement of contribution?

Held. No. Judgment affirmed.

• Knell's argument that contribution can only be enforced if both

tortfeasors are judgment debtors to the plaintiff fails for two reasons. First,
it is at odds with the Rule 14(a) of the Federal Rules of Civil Procedure
(FRCP), which allows a defendant to bring into the action any person who
may be liable to him for damages regardless of if the plaintiff seeks
judgment against him. Second, it is illogical, as the right to contribution
cannot be based upon a selection of defendants by the plaintiff.

• Based on the Merryweather holding [Merryweather v. Nixan, 8 term

Rep. 186, 101 Eng.Rep. 1337 (K.B.1799)], a majority of American courts
have held that there can be no contribution between joint or concurrent
tortfeasors. However, this Court feels that this is a misinterpretation of
Merryweather, differentiating between intentional wrongdoers and those
whose unpurposed negligence results in a tort. This Court holds that so
147 Knell v. Feltman
long as the concurrent tortfeasors are not intentional wrongdoers,
contribution will be enforced regardless of whether or not a joint judgment
is entered against them.

Discussion. A substantial majority of states now permit contribution among joint

tortfeasors, either by statute or judicial decision.
148 Yellow Cab Co. of D.C., Inc. v. Dreslin
Yellow Cab Co. of D.C., Inc. v. Dreslin

Citation. 86 U.S.App.D.C. 327, 181 F.2d 626 (U.S.App.D.C.1950).

Brief Fact Summary. A negligence claim combined with a cross-claim for contribution
arose out of a car accident between the Appellee, Dreslin (Appellee) and the Appellant,
Yellow Cab Co. (Appellant). A declaratory judgment allowed Appellant to receive
contribution for several judgments against Appellee, except for contribution for injuries
sustained by Appellee's wife, Mrs. Dreslin.

Synopsis of Rule of Law. In order to receive contribution, joint liability must be present.

Facts. A taxicab owned by the Appellant and an automobile driven by the Appellee
collided. Appellee's wife and others in his car were injured. They sued Appellant for the
resulting damages. Appellee joined in the suit, claiming loss of consortium and medical
expenses for Mrs. Dreslin and damages to his automobile. Appellant claimed
contributory negligence against Appellee and cross-claimed against him for damages to
the taxicab and contribution for sums recovered by other plaintiffs. The jury determined
that the collision was caused by concurrent negligence, with judgments being entered in
favor of all plaintiffs except Appellee. A declaratory judgment was also entered allowing
Appellant contribution against Appellee for several judgments except for that of his wife.
Yellow cab appealed this decision.

Issue. Is contribution disallowed from a husband for damages claimed by his wife due to
a lack of joint liability between the husband and the other tortfeasor as to the wife?

Held. Yes. Judgment affirmed.

• Based on common law, neither husband nor wife is liable for tortious
acts by one against the other. The right of contribution arises out of a
common liability. In order to obtain contribution, the injured plaintiff from
which the right of contribution develops, must have a valid cause of action
against the party from whom contribution is sought. Because the plaintiff
could not bring a valid cause of action against her husband, no joint
liability occurs and the Appellant has no right to contribution.

Discussion. The common law rule that husband and wife cannot bring tortious claims
against one another is based on public policy considerations of preserving "domestic
peace and felicity."
149 Slocum v. Donahue
Slocum v. Donahue

Citation. 44 Mass.App.Ct. 957, 693 N.E.2d 179 (Mass.App.Ct. 1998).

Brief Fact Summary. The Plaintiffs, the Slocums (Plaintiffs) filed a civil action against
the Defendants, Robert F. Donahue and Dolores J. Donahue (Defendants), for negligence
resulting in the vehicular death of their son. The Donahues filed a third-party complaint
against Ford Motor Company (Ford) claiming Ford was negligent in the car design and
requesting contribution or indemnification. The trial court denied the third-party
complaint on summary judgment.

Synopsis of Rule of Law. Indemnification is only allowed when the defendant is

vicariously or derivatively liable for the wrongful act of another. Contribution is not
allowed under this statute when a settlement agreement is reached in good faith.

Facts. Robert Donahue pled guilty to a motor vehicle homicide resulting in the death of
the Plaintiff's eighteen-month-old son. The Plaintiffs filed a civil action against the
Defendants claiming negligence and gross negligence. The Defendants filed a third-party
complaint against Ford, denying negligence and seeking contribution and indemnification
based on Ford's negligence. The Defendants' expert was prepared to testify that the
driver's side floor mat was defective, allowing it to interfere with the vacuum booster,
which caused the power breaks to fail. Prior to trial, Ford and the Plaintiffs signed a
settlement agreement releasing Ford from any claim. Ford then moved for summary
judgment asserting that all claims for contribution were extinguished by the settlement
agreement and that there is no basis for the Defendants' claims for indemnity. The trial
court dismissed the third-party complaint and the Defendants appealed.

Issue. Was it appropriate for the trial court to dismiss the third-party complaint for
contribution and indemnification on a motion for summary judgment?

Held. Yes. Judgment affirmed.

• Pursuant to G.L. c. 231B, § 4, a release given in good faith to one of two

or more persons liable in tort for the same injury, discharges the tortfeasor
from liability for contribution to any other torfeasor. The Defendants
claim that the settlement was not made in good faith because the amount
of the settlement was for less than the value of the case and because Ford
allegedly told the Plaintiffs it would allow them to use its experts.

• The Court believes there were facts to allow the trial court to determine
the settlement was fair and reasonable. Even if the settlement was low, it
was reasonable to think a jury might find no liability on the part of Ford,
given the facts that Robert Donahue pleaded guilty in the criminal case
and admitted to drinking from a bottle of vodka in the car prior to the
accident. This Court also states that the Defendants' contention that the
Plaintiffs' use of experts originally retained by Ford is evidence of
150 Slocum v. Donahue
collusion is invalid because it is equally evidence that the Plaintiffs settled
with Ford because they believe it was not responsible for their son's death.

• The right to indemnity allows someone without fault who is compelled

by law to defend himself to recover from the wrongdoer the entire amount
of loss. The right to indemnity is allowed only when the indemnitee is
vicariously or derivatively liable for the wrongful act of another. Robert
Donahue was found negligent in this case and his liability is not vicarious.
Therefore, he is not entitled to indemnification by Ford.

Discussion. This case demonstrates the difference between contribution and

indemnification. Indemnification is only available when the defendant is not directly at
fault, such as in a respondeat superior case.
151 Bruckman v. Pena
Bruckman v. Pena

Citation. 29 Colo.App. 357, 487 P.2d 566 (Colo.App.1971).

Brief Fact Summary. The Plaintiff, Mr. Pena (Plaintiff), was injured in a car collision,
aggravating injuries caused in an earlier collision with the Defendant, Mr. Bruckman
(Defendant). The trial court instructed the jury that Defendant would be liable for all
damages if the jury was unable to apportion the injuries between the two collisions.
Defendant seeks a reversal based on the instruction.

Synopsis of Rule of Law. The plaintiff retains the burden of proof when claiming that a
second accident aggravated previous injuries sustained in an original accident.

Facts. On July 21, 1964 the Plaintiff was injured when the car he was riding in collided
with a truck driven by the Defendant. On June 11, 1965 Plaintiff was injured in a second
collision, aggravating injuries sustained in the first collision. The only Defendants named
in this suit were the driver and owner of the truck involved in the first collision. The jury
returned a verdict in favor of Plaintiff. The Defendant seeks a reversal claiming error on
one of the jury instructions.

Issue. Did the trial court err by instructing the jury that the defendant is liable for the
entire disability if the jury is unable to apportion the injuries between the two collisions?

Held. Yes. Judgment reversed and remanded.

• The trial court instructed the jury that it is their duty to apportion the
injuries aggravated by the second collision from those caused by the
second collision. Additionally, the court instructed that if apportionment
was not possible, the Defendants are liable for the entire disability. While
the first instruction is a correct statement of law, the second is not.

• The burden of proof is on the Plaintiff to establish that damages were

proximately caused by the negligence of the Defendant. The court's
instruction would place the burden on the defense to prove that damages
could be apportioned. This is an incorrect application of the law.

Discussion. The Defendant is still liable for aggravation of injuries caused in the first
collision, in addition to those original injuries.
152 Michie v. Great Lakes Steel Division, Nat'l Steel Corp.
Michie v. Great Lakes Steel Division, Nat'l Steel Corp.

Citation. 495 F.2d 213 (U.S.Ct.Appl.1974).

Brief Fact Summary. Multiple people filed a complaint against three corporations
claiming a nuisance for pollution. There was no assertion of joint action or conspiracy.
The corporation filed a motion to dismiss, claiming each appellee individually failed to
meet the $10,000 amount in controversy requirement for federal jurisdiction.

Synopsis of Rule of Law. Under Michigan law, multiple defendants may be found
jointly and severally liable when injuries cannot effectively be apportioned between
defendants.

Facts. The Appellees, thirty-seven people (Appellees), filed a complaint against the
Appellants, three corporations (Appellants), claiming that pollutants emitted by
Appellants represent a nuisance. Each Appellee individually claims damages ranging
from $11,000 to $35,000 from all three corporations jointly and severally. However, there
is no assertion of joint action or conspiracy against the Appellants. Appellants appealed a
denied motion to dismiss based on the claim that each Appellee individually failed to
meet the $10,000 amount in controversy requirement set forth in 28 U.S.C.A § 1332
(1970).

Issue. Under Michigan State law, may multiple defendants be jointly and severally liable
to multiple plaintiffs for individual injuries sustained from the action of all defendants
when the separate effects of defendants' actions are impossible to differentiate between.

Held. Yes. Judgment affirmed.

• Previous Michigan case law has stated that it is unfair to place the
burden on the injured party to prove the specific shares of harm done by
each tortfeasor [Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33
(1961)]. This Court believes that Michigan courts would follow the
Maddux holding, allowing the trier of fact to determine if liability is joint
or several. If the injury is indivisible and it is not practicable to apportion
the harm, the entire liability may be imposed on one or several tortfeasors.
The tortfeasor or tortfeasors who have liability imposed on them have the
right of contribution against other tortfeasors.

• The present case is one in which there is not concerted action, but the
independent acts of multiple actors combine to produce indivisible
harmful consequences. If the Appellees are able to prove injury and
liability as to the Appellants, Michigan law effectively shifts the burden of
proof as to which was responsible and to what degree. Therefore, each
Appellees complaint should be read as alleging $11,000 or more in
damages against each Appellant.
153 Michie v. Great Lakes Steel Division, Nat'l Steel Corp.
Discussion. Compare the decision in this case to that in Bruckman v. Pena, 29 Colo.App.
357, 487 P.2d 566 (Colo.App.1971). These cases represent different approaches to
identifying different tortfeasors and apportioning responsibility.
154 Dillon v. Twin State Gas & Electric Co.
Dillon v. Twin State Gas & Electric Co.

Citation. 85 N.H. 449, 163 A. 111 (1932).

Brief Fact Summary. The Plaintiff, Dillon (Plaintiff), sued as the administrator of
decedent's estate. Decedent was electrocuted when he lost his balance on a bridge and
grabbed a live wire maintained by the Defendant, Twin State Gas & Electric Co.
Defendant claims exception for a denial of its motion for a directed verdict based on a
lack of damages.

Synopsis of Rule of Law. A jury must determine if damages are available when a
decedent is killed by the negligence of defendant, but decedent would have died or been
seriously injured regardless of the negligence.

Facts. This action is for negligently causing the death of Plaintiff's intestate, a 14 year old
boy. The Defendant maintained electrical wires over a public bridge. The decedent and
friends often played on the bridge during the day. On one such occasion, the decedent
lost his balance while sitting on a horizontal girder and instinctively grabbed a hanging
wire. The wire was not insulated against contact and electrocuted the decedent. The
Defendant claims exception for a denial of its motion for a directed verdict based on
damages.

Issue. Should a motion for directed verdict based on failure to claim damages be upheld
when the injury caused by defendant in all likelihood only shortened decedent's life by a
matter of moments?

Held. No. Exception overruled.

• Defendant had no duty to protect decedent from falling. Its only liability
was in exposing decedent to the danger of the exposed wires. It is beyond
a doubt that if decedent had not touched the wires, he would have either
been killed or seriously injured.

• If decedent would have died from the fall, Defendant deprived him of a
life expectancy too short to be given pecuniary damages. The Defendant
would have been liable only for any conscious suffering found to have
been the result of the shock. If decedent would have been seriously injured
from the fall, Defendant would be liable only for the limited earning
capacity available to decedent as a result of his injuries. This
determination is an issue of fact that must be determined by the jury.

Discussion. The Court also held that the Defendant owed a duty to exercise reasonable
care to the decedent and that the question of the Defendant's negligence was for the jury.
155

C
H
A
P
T
E
R

V
I
I
I
.

D
u
t
y

O
f
156 Winterbottom v. Wright
Winterbottom v. Wright

Citation. 10 M. & W. 109, 152 Eng.Rep. 402 (Exchequer of Pleas, 1842).

Brief Fact Summary. The Defendant, Mr. Wright (Defendant), contracted with the
Postmaster General to keep coaches in working order. The Defendant failed to uphold his
duty and the Plaintiff, Mr. Winterbottom (Plaintiff), was injured as a result.

Synopsis of Rule of Law. A plaintiff cannot bring tort claims against a defendant for
nonfeasance that resulted from a contract which plaintiff was not privy to.

Facts. Plaintiff, a mail coach driver, was seriously injured when a vehicle broke down
due to lack of repair. Defendant had contracted with the Postmaster General to keep the
coach in safe and secure condition. Defendant failed to comply with this promise,
resulting in Plaintiff's injuries.

Issue. Does Defendant owe a duty of care to Plaintiff, such that he is liable for injuries
caused to Plaintiff caused by Defendant's negligence?

Held. No. Judgment for the Defendant.

• Lord Abinger, C.B. The plaintiff is not privy to the contract entered into
between the Defendant and the Postmaster General. Just as the Plaintiff
cannot sue on the contract, he cannot sue in tort claiming that Defendant
owes a duty to him.

• Lord Alderson, B. Not containing the right to recover to those who enter
into the contract would open up an endless and unstoppable allowance for
suit.

• Lord Rolfe, B. Although the Defendant took on a duty to maintain the

carriages, he undertook no duty towards the Plaintiff. The Plaintiff may be
without remedy, but this cannot influence the decision.

Discussion. This case was universally interpreted as applying to any negligence,

including misfeasance. It was later pointed out that the case actually only involved
nonfeasance.
157 MacPherson v. Buick Motor Co.
MacPherson v. Buick Motor Co.

Citation. 217 N.Y. 382, 111 N.E. 150 (N.Y.App.1916).

Brief Fact Summary. The Plaintiff, MacPherson (Plaintiff), bought a car from a retail
dealer, and was injured when a defective wheel collapsed. Plaintiff sued the Defendant,
Buick Motor Co. (Defendant), the original manufacturer of the car, on an action for
negligence. Defendant had purchased the faulty wheel from another manufacturer and
Defendant failed to inspect the wheel.

Synopsis of Rule of Law. If a product is reasonably expected to be dangerous if

negligently made and the product is known to be used by those other than the original
purchaser in the normal course of business, a duty of care exists.

Facts. The Plaintiff brought a negligence suit against the Defendant for injuries sustained
after he was thrown from his car when the wheel collapsed. Defendant had sold the
automobile to a retail dealer, who in turn sold it to Plaintiff. The wheel, which was sold to
Defendant by another manufacturer, was made of defective wood. Evidence suggested
that the defect could have been discovered through reasonable inspection, but no
inspection occurred.

Issue. Does Defendant owe a duty of care to anyone besides the immediate purchaser in
this case the retailer?

Held. Yes. Judgment affirmed.

• One line of cases has suggested that manufacturers owe a duty of care to
ultimate purchasers only when the product is inherently dangerous. Other
cases have suggested a duty of care is owed to foreseeable users if the
product is likely to cause injury if negligently made.

• In order for a duty of care to arise in relation to ultimate purchasers, two

criteria are necessary. First, the nature of the product must be such that it
is likely to place life and limb in danger if negligently made. This
knowledge of danger must be probable, not merely possible. Second, there
must be knowledge that in the usual course of events, the danger will be
shared by people other than the buyer. This may be inferred from the
nature of the transaction and the proximity or remoteness of the relation.

• In the present case, the manufacturer of a finished product placed this

product on the market to be used without inspection by its customers. If
the manufacturer was negligent and the danger could be foreseen, a
liability will follow.

Discussion. Judge Cardozo, writing for the majority, also stated that the need for caution
increases with the probability of danger.
158 H.R. Moch Co. v. Rensselaer Water Co.
H.R. Moch Co. v. Rensselaer Water Co.

Citation. 247 N.Y. 160, 159 N.E. 896 (N.Y.App.1928).

Brief Fact Summary. The Plaintiff, H.R. Moch Co.'s (Plaintiff) warehouse was damaged
by a fire. Plaintiff sued the Defendant, Rensselaer Water Co. (Defendant), for failing to
provide sufficient water to extinguish the fire, as Defendant had contracted to do with the
city. Defendant filed a demurrer to dismiss the complaint.

Synopsis of Rule of Law. A defendant's failure to act is not actionable under tort law
unless the defendant has a duty to act as to the plaintiff.

Facts. The Defendant entered into a contract with the city of Rensselaer to supply water
for a number of years. While the contract was in force Plaintiff's warehouse caught fire.
The Defendant was notified of the fire, but according to the complaint, failed to supply a
sufficient quantity of water with adequate pressure to extinguish the fire. It was also
claimed that Defendant was equipped to do so and had agreed in contract with the city
that it would. The Plaintiff brought suit as one for the breach of a statutory duty. The
Defendant made a motion in the nature of a demurrer to dismiss the complaint, which
was denied at Special Term. The Appellate Division reversed by a divided court.

Issue. Is the Defendant liable for damages to the Plaintiff for failing to supply sufficient
water during a fire as required by a contract with a separate entity?

Held. No. Judgment affirmed.

• If the Defendant had gone forward to a point at which inaction would

result in actively working an injury, a duty would arise to go forward.
However, in the present case, the Defendant's action at most can be
described as a refusal to "become an instrument for good." Any other
analysis would allow all citizens who might benefit from the supply of
water to hydrants to claim an action in tort any time water was negligently
withheld.

• The Plaintiff would have the court hold that the Defendant entered into a
duty of care relationship with everyone who could benefit from the
relationship. Such a holding would provide for an indefinite number of
potential beneficiaries once performance has begun. This court holds that
the action is not maintainable as one for a common-law tort.

Discussion. The Court's discussion hinges on the difference between an act and an
omission in tort law. An act of negligence is generally actionable so long as a duty of care
is present and damages occur. A failure to act, or an omission, is rarely actionable in tort
law.
159 Clagett v. Dacy
Clagett v. Dacy

Citation. 47 Md.App. 23, 420 A.2d 1285 (Md.App.1980).

Brief Fact Summary. The Appellants, were high bidders on a piece of property
(Appellants). However, the sale of the property failed due to improper procedures by the
Appellees, two attorneys (Appellees). The debtor regained the property and Appellants
sued the Appellees for losses incurred due to the Appellees' failure to exercise care and
diligence in the sale. The trial court sustained a demurrer by the Appellees, finding that
no such duty existed.

Synopsis of Rule of Law. A plaintiff must be in privity with an attorney or be a third-

party beneficiary to a contract in order to maintain an action for professional negligence.

Facts. The Appellants were the high bidders for property at a foreclosure sale, but both
times the Appellees conducting the sale failed to follow proper procedure. Due to this, the
sale was set aside. The debtor eventually discharged the loan and Appellants lost the
opportunity to acquire the property. They sued the Appellees to recover the loss that
resulted from their inability to resell the property at a profit. The action claimed that the
Appellees owed the Appellants a duty to use care and diligence and to conduct the sale
properly and carefully. The trial court sustained the Appellees' demurrer without leave,
concluding that no such duty existed.

Issue. Do the attorneys owe the bidders a duty of care when the attorneys were employed
by the mortgagee, and not the bidders?

Held. No. Judgment affirmed.

• There is an exception to the strict privity requirement for maintaining an

action against an attorney. This exception allows a true third party
beneficiary to sue an attorney for negligence regarding a contract made to
the beneficiary's benefit. This exception is of limited application, most
often being based on the drafting of wills or other documents that have a
long or delayed effect.

• These actions appear to be based solely on contract and do not permit

third parties to sue attorneys on a pure negligence theory. One reason is
the judicially imposed limitations upon who attorneys may represent.
Taking into account the fact that attorneys generally may not represent
adverse parties, it would be illogical to assume that duties or obligations
inherent in the attorney-client relationship are extended to third parties
who an attorney would be unable or unlikely to represent. In the present
case, the Appellees could not lawfully represent both the mortgagee and
the bidders. Therefore, a duty of care will not be extended to the bidders.
This court holds that no duty of care and diligence exists from which an
action for damages may be maintained.
160 Clagett v. Dacy
Discussion. The privity limitation on negligence suits is still strictly applied for attorneys
in most jurisdictions.
161 Hegel v. Langsam
Hegel v. Langsam

Citation. 29 Ohio Misc. 147, 55 Ohio Ops.2d 476, 273 N.E.2d 351 (OH.C.C.P.1971).

Brief Fact Summary. A Chicago University (the University) failed to look after one of
its students and the student began using drugs and associating with criminals. The parents
sued the university for failing to maintain order on campus and contributing to the
delinquency of a minor.

Synopsis of Rule of Law. A university is under no duty to act in order to ensure that its
students are behaving appropriately.

Facts. The Defendants, Langsham and other school officials (Defendants), made a
motion for judgment on the pleadings. The Plaintiffs, Mr. and Mrs. Hegel (Plaintiffs),
claim that their seventeen-year-old daughter was enrolled at the University, where she
was allowed to associate with criminals, be seduced, become a drug user, be absent from
her dormitory and was not returned to her parents' custody on demand. Plaintiffs cite
O.R.C. 3345.21 requiring a university to maintain law and order on campus and O.R.C.
2151.41 making it a crime to contribute to the delinquency of a minor in support of their
cause.

Issue. Is a University liable for the failure to effectively monitor and control its students?

Held. No. Defendants' motion for judgment on the pleadings granted.

• In this court's opinion, the Plaintiffs have completely misconstrued the

duties of a university. No one is required to attend, but rather attendance is
granted to those who meet specific requirements and are presumed to be
sufficiently mature to conduct themselves appropriately. Neither statute
cited by the Plaintiffs has any bearing on the facts in this case. The
Plaintiffs have failed to state a cause of action.

Discussion. This is another example of the common law's approach to a failure to act.
Only when a special relationship exists between the defendant and the injured party, is a
failure to act by the defendant considered an actionable tort.
162 L.S. Ayres & Co. v. Hicks
L.S. Ayres & Co. v. Hicks

Citation. 220 Ind. 86, 40 N.E.2d 334 (1942).

Brief Fact Summary. The Plaintiff, (Hicks), a six-year-old boy, fell and got his fingers
caught in an escalator at the Defendant, L.S. Ayres & Co.'s (Defendant) store. Defendant
unreasonably delayed in stopping the escalator, aggravating the injury.

Synopsis of Rule of Law. Under the common law, certain special relationships give rise
to a duty to assist or rescue injured individuals.

Facts. Plaintiff, a six-year-old boy was with his mother at the Defendant's department
store (defendant) when he fell and got his fingers caught in Defendant's escalator. The
court found that Defendant unreasonably delayed stopping the escalator, aggravating the
Plaintiff's injuries. Judgment was for the Plaintiff, with a new trial denied. The Defendant
appeals, requesting a new trial.

Issue. Is a department store under a duty to assist an invitee who is in peril?

Held. Yes. Judgment reversed with directions to sustain Defendant's motion for a new
trial.

• It is clear that there is no general duty to go to the rescue of someone

who is in peril. However, certain relationships between parties may
impose duties to rescue that would not otherwise exist. In some
jurisdictions, a duty to rescue has been held to apply where one party is so
injured as to render him helpless and the injury occurred due to the
instrumentality under the control of another.

• The present case does not require this court to go so far. Based on
previous holdings, it is clear that a duty to rescue arises in certain
situations. These include when the person proceeded against is a master or
invitor, or when the injury resulted from the use of an instrumentality
under the control of the defendant. These situations give rise to a duty to
rescue even if the original injury was not the fault of the defendant.

• In this case, the Plaintiff was an invitee and he received the initial injury
using an instrumentality under the control of the Defendant. This is a
sufficient relationship to place a duty upon the Defendant.

• The duty did not arise, however, until after the original injury occurred.
Therefore, Defendant cannot be charged with its prevention, but only its
failure to exercise reasonable care to avoid aggravation of the injury. The
jury should have been limited in assessing damages to the injuries that
were the proximate result of the Defendant's actionable negligence.
163 L.S. Ayres & Co. v. Hicks
Discussion. Other special relationships imposing a duty to rescue are well recognized
besides those mentioned by this court. Some include common carriers and passengers,
innkeepers and guests and temporary legal custodians and their charge.
164 J.S. and M.S. v. R.T.H.
J.S. and M.S. v. R.T.H.

Citation. 155 N.J. 330, 714 A.2d 924 (1998).

Brief Fact Summary. A neighbor sexually abused two young girls and admitted to the
abuse. As part of a tort action, the parents of the girls brought suit against the wife of the
abuser, claiming that her negligence was a cause of the abuse. The wife answered by
claiming that she owed no duty to the girls and if she did her actions were not a
proximate cause of their injuries.

Synopsis of Rule of Law. A spouse owes a duty to prevent sexual abuse by his or her
spouse if they have actual knowledge or a special reason to know that the spouse is likely
to abuse or is abusing an identifiable victim. Failure to act on this duty is a proximate
cause of the minor's injuries.

Facts. Two young girls, ages twelve and fifteen, spent considerable amounts of time with
their neighbor at his horse barn. The neighbor sexually abused both girls for more than a
year. After the neighbor's conviction and imprisonment, the Plaintiffs, the girls, along
with their parents (Plaintiffs), brought this action against the Defendants, the neighbor
and his wife (Defendants), for damages. Plaintiffs claimed that the wife's negligence
rendered her liable for the girls' injuries. The husband conceded liability. The wife denied
she could be found negligent. The wife claimed she owed no duty to the Plaintiffs and
that any negligence on her part was not the proximate cause of injuries sustained by the
Plaintiffs. The trial court entered summary judgment on behalf of the Defendants. On
appeal, the Appellate Division reversed the order and remanded, granting the Plaintiffs
extended discovery. The Supreme Court of New Jersey granted Defendants' petition for
certification.

Issue. Did the wife owe Plaintiffs a duty to ensure they were not sexually abused by her
husband, and if so, can her negligence be considered a proximate cause of their injuries?

Held. Yes. Judgment of the Appellate Division affirmed.

• The imposition of a duty is a question of fairness and public policy. The

court must balance several related factors, including the foreseeability and
severity of the underlying risk of harm, the opportunity and ability to
exercise care to prevent the harm, the relationships among the parties and
the societal interest in the proposed solution. Foreseeability is based on
defendant's knowledge of the risk of injury, and may be either actual or
constructive.

• Sexual abuse is a type of conduct that is difficult to identify, anticipate or

predict. Whether or not sexual abuse committed by a husband is
foreseeable to the wife depends on many factors, including previous
committed offenses and age-inappropriate comments or behavior. These
considerations call for a particularized foreseeability standard, examining
165 J.S. and M.S. v. R.T.H.
empirical evidence and common knowledge to determine if a wife had
actual knowledge or special reason to know her husband was abusing or
likely to abuse an identifiable victim.

• The Court must also take into consideration the defendants' interest in a
stable marital relationship, supported in the common law doctrine of
interspousal immunity. Even granting this consideration, it is clear that
society and the Legislature have mandated that the protection of children
from sexual abuse outweighs any marital interest. The Legislature's
imposition of N.J.S.A. 9:6-8.10, requiring any person who has cause to
believe that a child has been subject to abuse to report such abuse; and
"Megan's Law," N.J.S.A. 2C:7-1 to -11, requiring notification and
registration requirements for sex offenders, exemplify this mandate. Based
on these considerations, the Court finds that there is a compelling basis for
the imposition of a duty on a wife whose husband poses a threat of
sexually abusing children

• A second, related issue to consider is that of proximate causation.

Proximate causation requires that liability only be applied when causes are
so closely connected with the result and are significant enough to justify
legal responsibility. In the present case, it seems clear that a wife's failure
to prevent or warn of her husband's sexual abuse or propensity therefore,
would result in the occurrence or continuation of the abuse.

• The Court holds that if a spouse has actual knowledge or special reason
to know of a likelihood of her spouse engaging in sexual abuse against a
particular person, this spouse has a duty to take reasonable steps to prevent
or warn of the harm. Additionally, a breach of this duty constitutes a
proximate cause of the resulting injury.

Discussion. Issues involving foreseeability and proximate causation are often closely
entwined with similar facts being used to prove or disprove each.
166 Tarasoff v. Regents of University of California
Tarasoff v. Regents of University of California

Citation. 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976).

Brief Fact Summary. Posenjit Poddar (Mr. Poddar), the patient of the Defendants, four
psychiatrists (Defendants), threatened to kill the Plaintiffs, Mr. and Mrs. Tarasoff's
(Plaintiffs) daughter, Tatiana Tarasoff (Tatiana). Mr. Poddar was briefly detained, but
then released. Mr. Poddar did in fact kill Tatiana. The Plaintiffs filed suit claiming that
Defendants should be liable for Tatiana's death because they failed to warn her or them
about the patient's threat.

Synopsis of Rule of Law. Once a therapist determines or should have determined that
the patient poses a serious danger of violence, he bears a duty to exercise reasonable care
to protect the foreseeable victim of the danger.

Facts. Mr. Poddar was a patient of Dr. Lawrence Moore (Dr. Moore), at Cowell
Memorial Hospital of the University of California. Dr. Moore was one of the four
Defendants. During one of their sessions, Mr. Poddar informed Dr. Moore that he
intended to kill Tatiana because she turned down his romantic advances. Dr. Moore had
the campus police detain Mr. Poddar, but he was released shortly thereafter. Despite a
disagreement between the psychiatrists at the hospital, no further action was taken to
detain Mr. Poddar. Two months later, Mr. Poddar shot and repeatedly stabbed Tatiana,
killing her. The Plaintiffs brought a wrongful death suit against the Defendants who
failed to detain Mr. Poddar. The court rejected the contention that Defendants could be
liable for this inaction because California Government Code Section 856 provided tort
immunity with regard to these decisions. Plaintiffs also claimed Defendants should be
liable for Tatiana's death because they failed to warn her or them about Mr. Poddar's
threat.

Issue. Are Defendants liable if it is found that their negligent failure to warn Tatiana or
others proximately situated, resulted in the death of Tatiana?

Held. Yes. Leave to amend complaint to state a cause of action against Defendants for
breach of duty to exercise reasonable care to protect Tatiana.

• Defendants contend that they owed no duty of care to Tatiana or her

parents and were free to act in careless disregard of Tatiana's life and
safety. Although well established in common law that one person has no
duty to control the conduct of another or to warn those endangered by this
conduct, certain exceptions are judicially made for defendants that stand in
some special relationship to either person. Plaintiffs' pleadings assert a
special relation between Mr. Poddar and Defendants, that which arises
between a patient and his doctor or psychiatrist.

• California decisions have previously recognized a duty in such cases

when the doctor stood in a special relationship to both the patient and the
victim.
167 Tarasoff v. Regents of University of California
However, based on this court's view and other jurisdictions, there is no
reason to limit the duty to such situations.

• Defendants contend that the imposition of a duty to third persons is

unfair because therapists cannot accurately predict whether or not a patient
will resort to violence. The Court states that a therapist need not have
perfect performance, but rather only needs to exercise the "reasonable
degree of skill, knowledge, and care ordinarily possessed and exercised by
members of that professional specialty under similar circumstances."
Based on this, the Court's view is that once a therapist does determine or
should have determined the patient poses a serious danger of violence, he
bears a duty to exercise reasonable care to protect the foreseeable victim
of that danger.

• Defendants also argue that such a duty would impede the free and open
communication essential to psychotherapy. They claim that the giving of a
warning would constitute a breach of trust. However, the public interest of
safety from violent assault must be weighed against this. The Legislature
in Evidence Code section 1024 has held there is no doctor-client privilege
if the doctor believes the patient is dangerous to the person or property of
another. This Court agrees with this balancing test.

Discussion. The "reasonable degree of skill, knowledge and care ordinarily possessed"
standard is the same as that generally applied to malpractice cases for professionals.
168 State of Louisiana ex rel. Guste v. M/V Testbank
State of Louisiana ex rel. Guste v. M/V Testbank

Citation. 752 F.2d 1019, cert. denied, 477 U.S. 903 (5th Cir.1985).

Brief Fact Summary. Two ships collided, causing toxic chemicals to be released into the
environment and causing the United States Coast Guard (Coast Guard) to close a
Mississippi River outlet. Numerous lawsuits were filed by those affected by the closing
of the outlet. The district court granted a motion for summary judgment on all claims for
economic loss unaccompanied by physical damage to property.

Synopsis of Rule of Law. The majority rule does not allow recovery for economic loss,
unless physical damage to property occurs.

Facts. On the evening of July 22, 1980, the M/V Sea Daniel, an inbound bulk carrier, and
the M/V Testbank, an outbound container ship, collided on the Mississippi River.
Containers aboard the Testbank were damaged and lost overboard. During the wreck,
hydrobromic acid and pentachlorophenol (PCP), were released into the environment. The
Coast Guard closed the outlet until August 10, 1980 and all fishing, shrimping and related
activities were temporarily suspended. Numerous lawsuits representing the affected
parties were filed and consolidated before the same judge in the Eastern District of
Louisiana. Defendants moved for summary judgment on all claims for economic loss
unaccompanied by physical damage to property. The district court granted the summary
judgment and on appeal a panel of this court affirmed. Judge Wisdom specially concurred
urging reexamination en banc, with which the court agreed.

Issue. Is physical damage to a proprietary interest still a prerequisite to recovery for

economic loss in cases of unintentional maritime tort?

Held. Yes. Decision of district court granting summary judgment to defendants on all
claims for economic losses unaccompanied by physical damage is affirmed.

• The well settled present rule is demonstrated in Robins [Robins Dry

Dock v. Flint, 275 U.S. 303 (1927)]. This case, stated broadly, denied a
plaintiff recovery for economic loss if that loss resulted from physical
damage to property in which he had no proprietary interest. The reason for
this rule is strictly pragmatic, otherwise liability would be virtually open-
ended.

• Plaintiff tries to confine Robins to losses suffered from the inability to

perform contracts between a plaintiff and others. However, if a plaintiff
connected to the damage by contract is denied recovery, it is indisputable
that others more remotely situated cannot recover.

• Plaintiffs further urge that the present rule is arbitrary and unfair and
should be replaced by a rule allowing the trier of fact to determine
questions of remoteness. The court feels that doing away with the present
bright line rule would create a situation where there is no determinable
169 State of Louisiana ex rel. Guste v. M/V Testbank
measure on the limit of foreseeability, forcing the trier of fact to make an
arbitrary judgment.

• Although the present bright line rule may result in unjust decisions for
some plaintiffs, this court feels that it is justified when compared to other
options. The bright line rule allows for extensive losses, such as the losses
in the present case to be spread over first party or loss insurance. If
liability were to be spread by a new rule, the change would create a shift to
more costly third party insurance to protect defendants.

• Plaintiff's final contention is that the damages that occurred can be

characterized as damages caused by a public nuisance. To do so, would
create a nearly impossible task of determining who in the community
suffered a pecuniary loss so great to justify distinguishing his losses from
similar losses suffered by others. Based on these conclusions, the
pragmatic approach of not allowing claims for economic loss
unaccompanied by physical damage to property is affirmed.

Dissent. Circuit Judge Wisdom, with whom Rubin, Politz, Tate and Johnson, Circuit
Judges, join:

• Robins is out of step with modern tort doctrine and works injustice on
innocent victims. The dissenters would analyze the plaintiff's claims under
conventional tort principles of foreseeability and proximate cause. This
would cause a case-by-case analysis, but would be worth the extra costs
and time for an increase in justice

• In the Robins case, the court prevented plaintiffs who were neither
proximately nor foreseeably injured by a tortious act from recovery. These
facts are not applicable to the present case. I would confine Robins to its
facts and apply the principles of negligence, foreseeability, and proximate
causation to the present case and require that the claimant prove particular
damages.

Circuit Judge Rubin, with whom Wisdom, Politz and Tate, Cricuit Judges, join:

• Robins should not be extended beyond its actual holding and is not
applicable to the present case

Concurrence. The dispute resolution system of the courts is not equipped to manage
disasters of the magnitude of this case. To allow unnumbered claimants under plaintiff's
suggestion may visit destruction on multiple enterprises.

Discussion. This case represents the clear American majority rule, but disagreement
persists.
170 Daley v. LaCroix
Daley v. LaCroix

Citation. 384 Mich. 4, 179 N.W.2d 390 (1970).

Brief Fact Summary. The Defendant, LaCroix (Defendant), wrecked his car shearing off
a utility pole and creating an electrical explosion at the Plaintiffs, the Daleys' house
(Plaintiffs). Plaintiffs claimed, in addition to property damage, that two family members
suffered severe emotional disturbance as a result of the accident. The trial court granted a
directed verdict on the ground that Michigan law denies recovery for emotional
disturbance without a showing of physical impact.

Synopsis of Rule of Law. Michigan courts now recognize an action for negligently
caused emotional disturbance regardless of a showing of physical impact.

Facts. On July 16, 1963 the Defendant was driving near the Plaintiffs' farm when his
vehicle left the highway, traveled 63 feet in the air, and sheared off a utility pole. Several
high voltage lines snapped, striking the electrical lines leading into Plaintiffs' house and
causing a great electrical explosion. The Plaintiffs claimed, in addition to property
damage, that Estelle Daley suffered traumatic neurosis, emotional disturbance and
nervous upset and that Timothy Daley suffered emotional disturbance and nervousness as
a result of the explosion. The Court of Appeals affirmed the trial court's grant of a
directed verdict on the ground that Michigan law denies recovery for negligently caused
emotional disturbance absent a showing of physical impact.

Issue. Should Michigan continue to require some impact upon the person in order to
recover for negligently caused emotional disturbance?

Held. No. Reversed and remanded.

• Michigan courts have routinely denied recovery for negligently caused

emotional disturbance without accompanying physical injury or physical
consequences, except in rare circumstances. This rule is based on the fear
of plaintiffs inventing injuries, creating endless litigation.

• This Court believes that based on changed circumstances and factual and
scientific information available today the common law "impact"
requirement should no longer apply in Michigan. The court held that when
defendant's negligence creates a definite and objective physical injury as a
result of emotional distress, the plaintiff may recover damages without any
physical contact upon the plaintiff at the time of the mental shock.

• Several limitations are applicable to this new holding. First, defendant's

standard of conduct is measured by reactions to be expected of normal
persons. Second, plaintiff has the burden of proof that the physical harm
complained of is a natural consequence of the alleged emotional
disturbance, proximately caused by defendant's conduct.
171 Daley v. LaCroix
• In the present case, it is necessary to determine if there is sufficient
evidence to create a jury question, considering the evidence in the light
most favorable to plaintiffs. Although only lay testimony was offered for
Timothy Daley, a jury could reasonably infer a causal relation between
Defendant's negligence and the injuries alleged. Estelle Daly's claim was
supported by expert testimony, and again presents a question for the jury.

Dissent. This is not a case where it is appropriate to adopt a new rule of law. Plaintiffs in
this case suffered, if anything, an indefinite and subjective injury. The dissenting judge
would affirm the trial court's grant of directed verdict.

Concurrence. Judge Kelly concurred with Judge Brennan's dissent.

Discussion. In the past, compensation had been allowed for emotional disturbance
without physical impact in limited circumstances, such as the negligent mishandling of
corpses.
172 Thing v. La Chusa
Thing v. La Chusa

Citation. 48 Cal.2d 644, 771 P.2d 814, 257 Cal.Rptr. 865 (1989).

Brief Fact Summary. The Plaintiff, Maria Thing's (Plaintiff) son was struck by an
automobile and injured. Plaintiff did not witness the accident, but arrived at the scene
shortly thereafter. Plaintiff sued the Defendant, James La Chusa (Defendant), for
negligent infliction of emotional distress.

Synopsis of Rule of Law. The California Supreme Court has ruled that a plaintiff must
be present when an injury occurs and be closely related to the injured party to recover
damages for a claim of negligent infliction of emotional distress.

Facts. On December 8, 1980, John Thing, a minor, was struck by an automobile operated
by the Defendant. The Plaintiff, John Thing's mother was nearby, but neither saw nor
heard the accident. Plaintiff's daughter informed her of the injury to her son. Plaintiff
rushed to the scene, where she found her son bloody and unconscious. Plaintiff sued the
Defendant, alleging she suffered great emotional disturbance, shock and injury to her
nervous system as a result of the emotional stress she suffered. Plaintiff also alleged that
these injuries were proximately caused by the Defendant's negligence. The court granted
Defendant's motion for summary judgment ruling as a matter of law that Plaintiff could
not establish a claim for negligent infliction of emotional distress because she did not
contemporaneously and sensorily perceive the accident. The Court of Appeals overruled
the trial court's grant of summary judgment.

Issue. Did the Court of Appeal correctly hold that a mother who did not witness a car
accident in which her son was injured could recover damages for the emotional distress
she suffered when she arrived at the accident scene?

Held. No. The Judgment of the Court of Appeal is reversed.

• Originally in California, the right to recovery for emotional distress was

allowed only if the victim himself was injured or if the plaintiff was in the
"zone of danger" of the accident. This was overruled in Dillon, [Dillon v.
Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 F.2d 912 (1968)] when the
court established a test based on whether the defendant should have
reasonably foreseen the injury to plaintiff. This test takes into account
whether the plaintiff was located near the scene of the accident, if the
shock resulted from a direct emotional impact upon the plaintiff from the
sensory observance of the accident and if the plaintiff and victim were
closely related.

• Future cases went on to distinguish between direct victim cases and

bystander cases, with direct victims being individuals whose emotional
distress is reasonably foreseeable as a consequence of the conduct of the
173 Thing v. La Chusa
defendant. The courts have had difficulty applying the Dillon and direct
victim standards, however.

• This court concludes that a clear-cut rule would be more effective in this
area. Therefore a plaintiff may recover damages for emotional distress
caused by observing the negligently inflicted injury of a third person only
if: (1) the plaintiff is closely related to the victim; (2) the plaintiff is
present at the scene at the time the injury occurs and is then aware of the
injury being caused to the victim; (3) as a result suffers serious emotional
distress beyond which would be expected of a disinterested witness. In the
present case, Plaintiff was not present at the scene of the accident,
therefore, she cannot establish a right to recover for her emotional distress.

Concurrence. Chief Justice Lucas and Justices Panelli and Arguelles concur. Justice
Kaufman concurred, but thought that Dillon should be overruled and liability confined to
those in the zone of danger and put in fear of their own safety.

Discussion. A similar cause of action, intentional infliction of emotional distress, is

punitive in nature rather than negligent infliction of emotional distress, which is
compensatory.
174 Endresz v. Friedberg
Endresz v. Friedberg

Citation. 24 N.Y.2d 478, 248 N.E.2d 901, 301 N.Y.S.2d 65 (N.Y.App.1969).

Brief Fact Summary. Mrs. Endresz was seven months pregnant when she was injured in
an automobile accident with Friedberg, causing her twins to be delivered stillborn. The
Plaintiffs, members of the Endresz family (Plaintiff), sued the Defendant, Friedberg
(Defendant), for among other things, the wrongful death of each child.

Synopsis of Rule of Law. New York does not allow a cause of action for the wrongful
death of unborn children.

Facts. Janice Endresz was seven months pregnant when she was injured in an automobile
accident. Two days later she delivered stillborn twins. Four actions in negligence were
brought by the Plaintiffs against the Defendant, the first two for the wrongful death of
each child. Plaintiffs claimed damages for loss of anticipated care, comfort and support
during the minority and majority of each infant and medical, hospital, and funeral
expenses for the children. The court at Special Term dismissed the first two suits for
wrongful death.

Issue. May a wrongful death suit be brought in New York for causing the negligent death
of a yet unborn child?

Held. No. Judgment affirmed.

• This Court has already decided that wrongful death actions cannot be
maintained for the death of an unborn child. Legislative Acts regarding
wrongful death suits refer to decedents and one must have been born
before they can be a decedent.

• This court's decision in Woods v. Lancet, 303 N.Y. 349, 353, 102 N.E.2d
691, 693, 27 A.L.R.2d 1250 recognized a cause of action for a viable child
in utero who is injured by a tort and later born with injury. This decision
does not require the Court to reinterpret wrongful death to provide
compensation for distributees of a stillborn fetus.

• In wrongful death suits for unborn children, the proof of pecuniary injury
is extremely vague. To allow for such recovery would permit a windfall
because the mother may sue for her suffering as a result of the stillbirth
and the father may sue for loss of her services and consortium.

Dissent. If no right of action is permitted, there is a wrong inflicted for which there is no
remedy. Allowing a right of action when a fetus is injured and later born, but not
allowing one when the injury leads to stillbirth, leads to incongruous results.

Concurrence. Justice Keating concurred.

175 Endresz v. Friedberg
Discussion. Today a majority of states allow a civil claim for the wrongful death of an
unborn child.
176 Procanik by Procanik v. Cillo
Procanik by Procanik v. Cillo

Citation. 97 N.J. 339, 478 A.2d 755 (1984).

Brief Fact Summary. The Plaintiff, Peter Procanik (Plaintiff), was born with multiple
birth defects, the result of his mother's German Measles that the Defendants, Dr. Cillo
and other doctors (Defendants), negligently failed to diagnose. Plaintiff sued Defendants
claiming general damages for emotional distress and for an impaired childhood because
the Defendants negligently deprived his parents of the choice of terminating the
pregnancy. Plaintiff also claims special damages for the extraordinary medical expenses
he will incur.

Synopsis of Rule of Law. An infant plaintiff may recover special damages for the
extraordinary medical expenses he will incur, but may not recover general damages for
emotional distress or for an impaired childhood.

Facts. During the first trimester of Mrs. Procanik's pregnancy with the Plaintiff, she
consulted the Defendants who informed her that she had been recently been diagnosed
with measles. He ordered a test for German measles and the resulted were indicative of a
past infection of Rubella. The Defendants negligently interpreted these results and told
Mrs. Procanik that she had become immune to German Measles as a child. Actually, the
past infection disclosed by the test was the German Measles that caused Mrs. Procanik to
consult Defendants. Mrs. Procanik allowed her pregnancy to continue, not realizing that
an accurate diagnosis of German Measles during pregnancy was likely to result in
congenital rubella syndrome for her unborn child. Plaintiff was born with multiple birth
defects. Plaintiff brought suit, claiming that the doctors negligently deprived his parents
of the choice of terminating the pregnancy. He requested general damages for his pain
and suffering and for his parents' impaired capacity to cope with his problems. Plaintiff
also seeks special damages for the extraordinary expenses he will incur due to his
condition. The Law Division granted Defendants' motion to dismiss, and the Appellate
Division affirmed. The Supreme Court of New Jersey granted certification.

Issue. May an infant recover general damages for emotional distress or for an impaired
childhood caused by a doctor's negligent deprivation of his parent's choice of terminating
the pregnancy?

• May an infant plaintiff recover as special damages for the extraordinary

medical expenses attributable to his affliction?

Held. No. Yes. Judgment of the Appellate Division is affirmed in part, reversed in part,
and the matter is remanded.

• Originally, a doctor's negligence in diagnosing a condition that might

cause her to give birth to an impaired child was not actionable by either
the parent or the child. This was due to the court's inability to reach
damages when attempting to value life with impairments against the
177 Procanik by Procanik v. Cillo
nonexistence of life itself. Another factor in early decisions was a
reluctance to recognize the availability of abortions.

• Later cases addressed these issues. In Berman [Berman v. Allan, 80 N.J.

421, 404 A.2d 8 (1979)] the court refused to allow a parent's claim for
medical expenses to be incurred during the childrearing under the theory
that such an allowance would permit the parents to reap all the benefits of
childhood while the defendant paid all of the expenses. More recent cases
allowed for the parents' right to compensation for the extraordinary
expenses of raising an impaired child.

• In the present case, analysis of the action begins with whether the
Defendants owed a duty to the Plaintiff. The Defendants do not deny such
a duty and the Court finds that one exists. The Court also assumes the
Defendants were negligent in treating the mother and that the negligence
deprived the parents of the choice of terminating the pregnancy.

• Policy considerations have led this court to decline to recognize any

cause of action for an infant's wrongful life. The problem is that the
Plaintiff claims not that he should not have been born with defects, but
rather that he should not have been born at all. This Court finds that there
is no rational way to compare a lack of existence with the pain and
suffering of Plaintiff's impaired existence in order to all recovery for his
emotional distress or diminished childhood. However, this Court does find
that recovery of the cost of extraordinary medical expenses is recoverable
by either the parents or the infant, but not both. The infant can wait until
his majority to recover medical expenses.

Discussion. Unlike wrongful death suits for unborn child, few jurisdictions allow actions
for wrongful life.
178

CHAPTER
IX. Owners
And
Occupiers
Of Land
179 Taylor v. Olsen
Taylor v. Olsen

Citation. 282 Or. 343, 578 P.2d 779 (1978).

Brief Fact Summary. The Plaintiff, Mrs. Taylor (Plaintiff), was injured when her car
collided with a tree that had fallen across the road. The tree had fallen from the property
of the Defendant, Marion Olsen (Defendant). The trial court directed a verdict for
Defendant.

Synopsis of Rule of Law. The standard of care a landowner owes in relation to roadside
trees is reasonable care to prevent an unreasonable risk of harm.

Facts. Plaintiff brought an action against the Defendant for damages she sustained when
her car struck a tree, which had recently splintered and fallen across the road. Defendant
was alleged to be in possession of the location from where the tree fell. Plaintiff appeals
from a judgment entered on the directed verdict from Defendant.

Issue. Is a landowner liable for damages caused when a tree on her property falls into a
public roadway, when there was no previous evidence to suggest that the tree is not
structurally sound?

Held. No. Judgment affirmed.

• Except in extreme circumstances, the Court holds that the standard of

care a landowner owes in relation to roadside trees is reasonable care to
prevent an unreasonable risk of harm. In the present case, Defendant was
using the land for logging purposes and had logged trees adjacent to the
tree in question. There was no surface evidence on the tree to suggest that
it was decayed. There was no evidence to suggest that chopping or drilling
into the trunk would have been an expected way to examine a standing
tree. Therefore, it was not error for the court to direct a verdict for the
Defendant.

Discussion. Most courts hold that there is no duty on the landowner to protect persons
outside the property in regard to most land conditions that arise in the state of nature.
180 Salevan v. Wilmington Park, Inc.
Salevan v. Wilmington Park, Inc.

Citation. 45 Del. (6 Terry) 290, 72 A.2d 239 (1950).

Brief Fact Summary. The Plaintiff, Salevan (Plaintiff), was injured when a foul ball hit
out of the Defendant, Wilmington Park, Inc.'s (Defendant) ballpark, struck Plaintiff in the
back. Plaintiff brought suit against Defendant for personal injuries.

Synopsis of Rule of Law. Landowners who use their land in an artificial way must take
reasonable precautions to protect the public traveling adjacent to the land.

Facts. The Defendant owned land, which was rented as a ballpark and facilities. The
Plaintiff brought suit against Defendant for personal injuries he sustained when struck in
the back by a baseball while walking past the Defendant's ballpark.

Issue. Does defendant, as landowner, have the duty to exercise reasonable care in the use
of his land so as to prevent injury to travelers using the adjacent sidewalk?

Held. Yes. Judgment entered for Plaintiff.

• The Plaintiff does not claim that Defendant is an insurer of persons using
the sidewalk adjacent to his ballpark. Rather, Plaintiff contends that
Defendant's failure to take reasonable precautions to safeguard the public
was negligence.

• Because of the inherent nature of baseball, a landowner must take

reasonable precautions to protect the traveling public, with reasonableness
depending on the facts and circumstances of each particular case. The
Defendant in this case did take some precautions, such as erecting a ten-
foot fence to keep balls within the park. Nonetheless, two or three balls
per game on average left the park and entered the area where Plaintiff was
walking when he was injured.

• It seems clear from the evidence that the Defendant's precautions were
insufficient and that the Defendant knew or should have known that the
precautions were insufficient.

Discussion. When a landowner alters the condition of his land, it becomes artificial and
the owner must exercise reasonable care for the protection of those outside the premises.
181 Sheehan v. St. Paul & Duluth Ry. Co.
Sheehan v. St. Paul & Duluth Ry. Co.

Citation. 76 Fed. 201 (7th Cir.1896).

Brief Fact Summary. The Plaintiff, Sheehan (Plaintiff), was trespassing upon the
Defendant, St. Paul & Duluth Ry. Co.'s (Defendant) railway, when Plaintiff's foot became
stuck. Defendant's train crew did not see Plaintiff until it was too late to stop the train and
Plaintiff was injured.

Synopsis of Rule of Law. Railroad companies are under a constant and strict duty of care
to individuals at railway crossings, but are not bound to any act or service in anticipation
of trespassers at other points along the track.

Facts. The Plaintiff was walking on the Defendant's railroad track when his foot slipped
and became caught on the rail. As Defendant's train approached, Plaintiff was unable to
extricate his foot. Defendant's train crew did not see Plaintiff until it was too late to stop
the train and therefore Defendant's train ran over Plaintiff's foot. The trial court entered a
directed verdict for Defendant and Plaintiff appeals.

Issue. Is a railroad company under a duty to anticipate trespassers upon its tracks, such
that it will be liable for injuries that occur thereon?

Held. No. Judgment affirmed.

• Defendant was neither a passenger on the train nor crossing at a public

crossway at the time of his injury. Therefore, Defendant was a trespasser.
The railroad company is obligated to exercise some degree of care for
trespassers upon its property and will be liable if the trespasser is wantonly
injured in the operation of the railroad.

• Because of the hazardous nature of railroad operation, railroad

companies are held to a duty of constant and strict care in relation to
individuals at a street crossings or other places where the railroad is on
notice that individuals cross. However, at all other points along a railroad
track the railroad company has a right to a free track and is not bound to
anticipate trespassers. Trespassers at these points assume all risks of
condition that may be found there.

• The obligation of the railroad company to a trespasser arises at the

moment of the trespasser's discovery and is a duty to make all reasonable
efforts to avert injury. The Defendant's train crew made sufficient efforts
to avert injury in the present case.

Discussion. The constant and strict care standard that arises at railroad crossings is
described as a positive duty, while the duty to avert injury to discovered trespassers is a
negative duty.
182 Barmore v. Elmore
Barmore v. Elmore

Citation. 83 Ill.App.3d 1056, 403 N.E.2d 1355, 38 Ill.Dec. 751 (Ill.App.1980).

Brief Fact Summary. The Plaintiff, Barmore (Plaintiff), visited the home of the
Defendants, Thomas Elmore Sr. (Thomas Sr.), Esther Elmore and Thomas Elmore Jr.
(Thomas Jr.) (Defendants), to discuss business of the Masonic Lodge. During the visit,
Plaintiff was attacked and stabbed by Thomas Elmore Jr. Plaintiff filed suit against the
Defendants, claiming they were negligent in failing to protect him from a dangerous
condition on their premises.

Synopsis of Rule of Law. Social guests are considered licensees. Premises owners have
a duty to warn licensees of hidden dangers unknown to the licensee, but known to the
owner.

Facts. Plaintiff visited the home of Thomas Sr. and Esther Elmore to discuss the business
of the Masonic Lodge. Both Plaintiff and Thomas Elmore Sr. were officers of the lodge.
During the visit, Thomas Jr., Thomas Sr.'s 47 year old son, advanced towards Plaintiff
with a steak knife. Thomas Sr. tried to restrain his son while Plaintiff left the house, but
Thomas Jr. got away from his father and stabbed the Plaintiff several times in the chest.
Plaintiff filed suit against the Defendants claiming that they were negligent in failing to
protect him from a dangerous condition on their premises. Plaintiff appeals from an order
of the Circuit Court directing a verdict in favor of the Defendants.

Issue. Are Defendants entitled to a directed verdict based on Plaintiff's status as a

licensee?

Held. Yes. Judgment is affirmed.

• The duty that Defendants owed to Plaintiff depends largely on his

classification as either an invitee or a licensee. A social guest is a licensee,
and generally must take the premises as he finds them. The owner of the
premises has the duty to warn a licensee of any hidden dangers unknown
to the guest, of which the owner has knowledge. Also, the owner must
refrain from injuring his guest willfully or wantonly. To be classified as an
invitee, the person must go onto the owner's land in furtherance of the
owner's business. As to an invitee, the owner has a duty to exercise
reasonable care in keeping the premises reasonably safe for use by an
invitee.

• Plaintiff claims that because he was conducting the business of a

fraternal organization during his visit, he attained the status of an invitee.
In this case, the evidence suggests that the primary benefit of Plaintiff's
visit was to the fraternal organization of which both were members, rather
than to the Defendants. Therefore the Plaintiff is best categorized as a
licensee.
183 Barmore v. Elmore
• Because Plaintiff is a licensee, Defendants' only duty was to warn him of
hidden dangers unknown to Plaintiff of which Defendants had knowledge.
Although Defendants knew that their son had a prior history of mental
problems, he had committed no violent acts in ten years. Based on the
evidence, it is clear that Thomas Sr. and Esther Elmore did not know or
have reason to know of the possibility that Thomas Jr. would commit a
criminal act toward Plaintiff.

Discussion. The court in this case affirmed the directed verdict, believing that the
evidence, viewed in favor of the Plaintiff, so overwhelmingly favored the Defendants that
no contrary verdict could ever stand.
184 Campbell v. Weathers
Campbell v. Weathers

Citation. 153 Kan. 316, 111 P.2d 72 (1941).

Brief Fact Summary. The Plaintiff, Campbell (Plaintiff), entered the business of the
Defendant, Weathers (Defendant) and without purchasing any items, used the restroom.
Plaintiff was injured when he stepped into an open trap door on the way to the restroom.
Plaintiff sues for negligence.

Synopsis of Rule of Law. If an individual enters a store with the intention of then, or at
some other time, doing business with that store, he is an invitee.

Facts. The Defendant operated a lunch counter and cigar stand. The Plaintiff entered
Defendant's business, stood by the front counter without making any purchases, then
went to the back of the building to use the toilet. Plaintiff stepped into an open trap door
in a dark hallway and was injured. Plaintiff sued for negligence and the trial court
sustained Defendant's demurrer to the evidence. Plaintiff appeals.

Issue. Was the trial court correct in determining that the plaintiff was not an invitee and
that defendant was entitled to judgment?

Held. No. The order sustaining the demurrer of the Defendant is reversed.

• The first issue is to determine if Plaintiff was a trespasser, a licensee, or

an invitee. It was conceded that Defendant was the operator of a business
open to the public. Plaintiff had been a customer of the Defendant for a
number of years. He had used the hallway and toilet on numerous
occasions and had never been told that it was not for public use.

• This Court refuses to advance the theory that a regular customer is not an
invitee simply because the customer has not made a purchase on the
particular occasion on which he is injured. Based on the facts of this case
Plaintiff is an invitee.

Discussion. The Court was quick to point out that if an individual were to enter a place of
business solely on a personal errand or to advance his own interests he would not be
considered an invitee.
185 Whelan v. Van Natta
Whelan v. Van Natta

Citation. 382 S.W.2d 205 (Ky.App.1964).

Brief Fact Summary. The Plaintiff, Whelan (Plaintiff), entered the Defendant, Van
Natta's (Defendant) store, made a purchase and then asked if he could have a box.
Defendant told Plaintiff to enter a back room to get the box. Plaintiff was injured when he
fell into an unseen stair well in the unlit back room.

Synopsis of Rule of Law. A land possessor is only subject to the liability of another as
an invitee for harm sustained while he is on the land within the scope of his invitation.

Facts. The Plaintiff entered Defendant's grocery store and purchased some cigarettes.
Plaintiff then asked Defendant if he could have a box for his son. Defendant, busy at the
counter, told Plaintiff to go into the backroom to retrieve a box for himself. Plaintiff went
into the backroom, which was unlit at the time. While searching for a box, Plaintiff fell
into an unseen stair well and was injured. The trial court gave judgment for the Defendant
and Plaintiff appeals.

Issue. Was the trial court correct in its determination that the status of the Plaintiff
changed from invitee to licensee after he went into the storage room to obtain a box?

Held. Yes. Judgment affirmed.

• The Court bases its decision solely on the Torts Restatement [Torts,
Restatement of the Law, Second, Chapter 13, Section 332, page 67]. The
Restatement provides that a visitor retains his status of an invitee only
while he is on the part of the land to which his invitation extends.
Therefore, the visitor's status changes to a licensee if the shopkeeper
invites him to visit an area outside of the part of the shop where business
is conducted.

Discussion. An invitee can also become a trespasser if the owner of the land does not
consent to the individual remaining on the land, or if the individual enters a part of the
property that he was not permitted to enter upon.
186 Rowland v. Christian
Rowland v. Christian

Citation. 69 Cal.2d 108, 443 P.2d 561, 70 Cal.Rptr. 97 (1968).

Brief Fact Summary. The Plaintiff, Rowland (Plaintiff), was injured when a cracked
handle on a water faucet broke while Plaintiff was using the Defendant, Christian's
(Defendant) bathroom. Defendant knew of the faulty handle, but failed to inform
Plaintiff. Plaintiff filed suit for injuries.

Synopsis of Rule of Law. California abolishes the traditional classifications of

trespassers, licensees and invitees and instead applies ordinary principles of negligence in
these cases.

Facts. Plaintiff was a social guest at Defendant's apartment. Plaintiff used Defendant's
bathroom, where he was injured when a cracked handle on the water faucet broke and
severed tendons and nerves in his right hand. Evidence showed that Defendant had
known the handle was cracked for two weeks, but failed to inform Plaintiff of its
condition. Plaintiff appeals from a summary judgment for the Defendant.

Issue. Was the trial court correct in granting summary judgment for the Defendant based
on Plaintiff's status as a licensee?

Held. No. Judgment reversed.

• Based on historical considerations placing land ownership in a

disproportionately high place, this and other courts have generally
departed from the concept that an individual is liable for injuries caused by
his carelessness. The categorization of injured parties as trespassers,
licensees, and invitees produces confusion and conflict and are not
justified in our modern society.

• The traditional classifications do not reflect the major factors, which

should determine when immunity should be conferred. Some of these
factors include the closeness of the connection between the injury and the
defendant's conduct, the moral blame attached to defendant's conduct, the
policy of preventing future harm, and prevalence and availability of
insurance.

• The Court overturns these traditional classifications and instead will

apply ordinary principles of negligence in cases such as the one at hand. In
the present case, viewing the facts in a light most favorable to Plaintiff, a
trier of fact could reasonably have concluded that a failure to warn or
repair the condition constituted negligence.

Dissent. In the dissenters view, it was not proper for the majority to overturn a long
standing, well supported rule without the instruction of the Legislature. The previous
rules provided stability and predictability and supplied a reasonable and workable
187 Rowland v. Christian
approach. The new approach will require decisions on a case-by-case basis and could
open the door to potentially unlimited liability.

Discussion. There is considerable agreement amongst modern courts that the general
negligence standard should be applied to all persons invited or permitted on the premises.
However, there is less agreement regarding the treatment of trespassers.
188 Borders v. Roseberry
Borders v. Roseberry

Citation. 216 Kan. 486, 532 P.2d 1366 (1975).

Brief Fact Summary. The Plaintiff, Gary Borders (Plaintiff), was injured when he
slipped and fell on icy steps while visiting a tenant at the Defendant, Roseberry's
(Defendant), house. Defendant knew of a condition that caused water to drip onto the
steps and freeze there. Plaintiff sued Defendant for injuries sustained.

Synopsis of Rule of Law. A landlord has no duty to social guests of his tenant to repair a
known condition at the tenant's residence, unless one of six exceptions is present.

Facts. The Defendant was the landlord of a single-family house. At this house, water
dripped from the roof onto the front steps of the house, where the water froze on the front
steps. The Plaintiff was a social guest at the house when he slipped and fell on the
accumulated ice, injuring himself. Defendant knew of the condition in question, but had
failed to remedy it. The trial court found for the Defendant as a matter of law. Plaintiff
appeals.

Issue. Did the trial court commit reversible error in concluding as a matter of law that a
landlord is under no obligation or duty to a social guest of his tenant to repair a known
condition at the tenant's residence?

Held. No. Judgment affirmed.

• Traditionally, the law has placed the burden of maintaining the premises
on the lessee tenant. This rule has resulted from the view that when land is
leased to a tenant, the lessee acquires an estate in the land and the lessor
retains only a reversionary interest. Therefore, a landlord generally has no
liability in regard to either the tenant or to others entering the land for
defective conditions thereon.

• This general rule of non-liability is subject to the following six

exceptions: (1) Undisclosed dangerous conditions known to lessor and
unknown to lessee; (2) Conditions dangerous to persons outside the
premises; (3) Premises leased for admission to the public; (4) Parts of land
retained in lessor's control which lessee is entitled to use; (5) Where the
lessor contracts to repair; (6) Negligence by the lessor in making repairs.

• This Court finds that none of the above cited exceptions existed in the
present case. Plaintiff contends that the law should be changed to make the
landlord liable for injuries resulting from a defective condition on the
leased premises where the landlord has knowledge of that condition. This
Court does not believe that a departure from the established rules of law is
justified.
189 Borders v. Roseberry
Discussion. The Court's description of landlord non-liability and the exceptions thereto
represents an accurate picture of the law in most states.
190 Pagelsdorf v. Safeco Ins. Co. of America
Pagelsdorf v. Safeco Ins. Co. of America

Citation. 91 Wis.2d 734, 284 N.W.2d 55 (1979).

Brief Fact Summary. Plaintiff was injured when tenant's balcony rail collapsed while
she was helping tenant move. Plaintiff sued landlord for landlord's failure to repair the
balcony. Judgment was entered for defendant landlord based on a landlord's general
immunity to liability from tenants and visitors.

Synopsis of Rule of Law. Under Wisconsin law, a landlord owes to his tenant or anyone
on the premises with the tenant's consent a duty to exercise ordinary care.

Facts. The Defendant, Richard Mahnke (Defendant), owned a two-story duplex with four
balcony porches. Defendant rented the upper unit to the John Blatnner and Mary
Katherine Blatnner (Mrs. Blatnner). The Plaintiffs in this matter were Carol Pagelsdorf
(Mrs. Pagelsdorf) and James Pagelsdorf (Plaintiffs). Mrs. Pagelsdorf was assisting Mrs.
Blattner to move some furniture. Mrs. Pagelsdorf leaned against the railing of the second
floor balcony and it collapsed, injuring her. The railing had a dry rot condition and should
have been replaced. Judgment was entered on the verdict, dismissing the complaint.
Plaintiffs appeal.

Issue. Did the trial court err in failing to instruct the jury that Defendant owed Mrs.
Pagelsdorf a duty to exercise ordinary care in maintaining the premises?

Held. Yes. Judgment reversed and cause remanded.

• This court previously abolished the distinction between licensees and

invitees [Antoniewicz v. Reszcynski, 70 Wis.2d 836, 854-55, 236 N.W.2d
1, 10 (1975)]. However, the landlord is generally not liable to tenants
unless one of the exceptions applies and no exception applies in this case.

• Following the traditional rule, the Plaintiff would not be entitled to an

instruction that Defendant owed Mrs. Pagelsdorf a duty of ordinary care.
The Court believes that public policy calls for abandonment of the
previous rule and adoption of a standard that landlords are under a duty to
exercise ordinary care in the maintenance of the premises.

• The policies discussed in Antoniewicz support, in the present case, the

Court's decision to abandon the landlord's cloak of immunity to tenants
and visitors. The modern day apartment lease is viewed as a contract
rather than a conveyance. The Court has implied a warranty of habitability
in such contracts. It would be anomalous to apply a warranty of
habitability to landlords, yet immunize them from liability from injuries
resulting from a failure to comply with such a warranty.
191 Pagelsdorf v. Safeco Ins. Co. of America
Discussion. An implied warranty of habitability requires a lessor to deliver the premises
to the lessee in a habitable condition. Generally, the only recourse for a landlord's failure
to comply with this warranty is a right to withhold rent until repairs are made.
192 Kline v. 1500 Massachusetts Ave. Apartment Corp.
Kline v. 1500 Massachusetts Ave. Apartment Corp.

Citation. 141 U.S.App.D.C. 370, 439 F.2d 477 (U.S.App.D.C. 1970).

Brief Fact Summary. The Plaintiff, Kline (Plaintiff) a lessee of Defendant, 1500
Massachusetts Ave. Apartment Corp. (Defendant), was assaulted and robbed in a
common hallway of Defendant's apartment. Defendant was on notice that assaults were
occurring in the hallway, but nonetheless stopped employing a doorman. Plaintiff sued
for injuries sustained.

Synopsis of Rule of Law. Landlords have a duty to take steps to protect tenants from
foreseeable criminal acts committed by third parties in common areas of landlord's
property.

Facts. Plaintiff was a lessee of Defendant. While in the common hallway of Defendant's
apartment, Plaintiff was assaulted and robbed, sustaining serious injuries. A doorman had
been employed in the past, but the entrances were unguarded at the time of Plaintiff's
assault. Defendant was on notice of an increasing number of assaults and robberies being
perpetrated against tenants in the common hallways of the building. Plaintiff sued for the
injuries she sustained. The District Court found in favor of the Defendant. Plaintiff
appeals.

Issue. Was the District Court correct in ruling that there is no duty for a landlord to take
steps to protect tenants from foreseeable criminal acts committed by third parties?

Held. No. Judgment reversed and remanded.

• As a general rule, private individuals do not have a duty to protect others

from criminal attacks. This standard has sometimes been applied in the
past to landlord-tenant law. However, in this jurisdiction certain duties
have been assigned to the landlord because of his control of common areas
used by all tenants. Although these duties have traditionally been applied
to physical defects, the duty also applies in the present case because he is
the only party who has the power to make the necessary repairs or to
provide the necessary protection.

• Other relationships between parties such as innkeeper-guests and carrier-

passenger have resulted in similar rules. The common theme amongst
these relationships is that the ability of one of the parties to provide for
their own protection has been limited in some way by his submission to
control of the other. Where, as in the present case, the landlord is on notice
that crimes have occurred in a common area exclusively within his
control, the crimes are likely to happen again and he has the exclusive
power to take preventive action, the landlord is under a duty to take steps
to protect tenants from foreseeable criminal acts.
193 Kline v. 1500 Massachusetts Ave. Apartment Corp.
Dissent. Justice MacKinnon's dissent omitted.

Discussion. The Court was quick to point out that the landlord is not the insurer of the
safety of his tenants, but only has the duty to take those measures within his power,
which can reasonably expected to mitigate the risk of intruders.
194

C
H
A
P
T
E
R

X
.

D
a
m
a
g
e
s
195 Anderson v. Sears, Roebuck & Co.
Anderson v. Sears, Roebuck & Co.

Citation. 377 F.Supp. 136 (U.S.Dist.Ct.Louis. 1974).

Brief Fact Summary. Plaintiff, a young child, was severely burned during a house fire
caused by the Defendants' negligent manufacture of a heater. The jury awarded plaintiff
$2,000,000 in compensatory damages and the defendants moved for remittitur.

Synopsis of Rule of Law. Under the maximum recovery rule, a court will overrule a
jury's determination of damages only if the damages exceed the maximum amount the
jury could reasonably find based upon all of the evidence.

Facts. The Plaintiff, Helen Britian (Plaintiff), was severely burned as a young child when
her home was destroyed by a fire. The blaze was caused by a heater negligently
manufactured by the Defendants, Sears and Controls Company of America (Defendants).
The jury awarded plaintiff $2,000,000 in compensatory damages. Defendants moved for
remittitur.

Issue. Was the trial court correct in determining that the verdict of the jury did not exceed
the maximum amount which the jury could reasonably find based on the maximum
recovery rule?

Held. Yes. Defendant's motions for a remittitur are denied.

• The maximum recovery rule is intended to protect the role of the jury as
finder of facts. Judges must determine only the maximum award that the
jury could reasonably have reached, based on all of the evidence as to each
element of damages.

• In the present case, five elements of damages are applicable: (i) past
physical and mental pain; (ii) future physical and mental pain; (iii) future
medical expenses; (iv) loss of earning capacity and permanent disability
and (v) disfigurement. This Court examines each of these elements
individually, determining the maximum amount of damages available
under each based on the evidence available. Considering each of these
elements in unison, this Court determines that the maximum jury award
supported by the evidence is $2,980,000. Therefore, the jury's damage
award is valid.

• The Defendants also argue that the introduction of photographs of the

Plaintiff was inflammatory and that the presence of the child in the
courtroom inflamed or prejudiced the jury. The photographs were
allowable because part of Plaintiff's claim for damages was for
disfigurement and humiliation. Also, the presence of Plaintiff was not
inappropriate because Plaintiff was well behaved and quiet during all
courtroom proceedings.
196 Anderson v. Sears, Roebuck & Co.
Discussion. A motion for remittitur is a request for the court to lower the damages levied
against a defendant. If granted, the plaintiff may generally either accept the remittitur or
request a new trial.
197 Richardson v. Chapman
Richardson v. Chapman

Citation. 175 Ill. 2d 98, 676 N.E.2d 621 (1997).

Brief Fact Summary. The Plaintiffs were the driver of a car, Keva Richardson
(Richardson) and the passenger, Ann McGregor (McGregor)(Plaintiffs). The car was
stuck by a semi-trailer driven by the Defendant, Chapman, an employee of
Tandem/Carrier (Defendants). A directed verdict was entered on behalf of Plaintiffs in
regard to liability. Defendants appeal the jury's assessment of damages.

Synopsis of Rule of Law. Courts may order a remittitur of damages when a jury's
assessment of damages is excessive based on the evidence.

Facts. While the Plaintiffs were stopped at a traffic light, their car was struck by a semi-
trailer driven by Chapman, an employee of Tandem/Carrier. Plaintiff Keva Richardson
suffered incomplete quadriplegia as a result of the accident. Plaintiff Ann McGregor
suffered a laceration on her forehead which left a slight scar. The trial court directed a
verdict in favor of the Plaintiffs on the question of liability. The jury returned verdicts in
favor of Richardson and McGregor in the amounts of $22,358,814 and $102,215
respectively. The intermediate court rejected Defendants' challenges to the amounts of
damages.

Issue. Was the intermediate appellate court incorrect in determining that the damages
awarded by the jury were excessive?

Held. Yes. Judgment of the appellate court is affirmed in part, reversed in part, and
vacated in part.

• Defendants first challenge testimony introduced by Richardson

concerning the calculation of the present value of her future economic
losses. Defendants claim that the expert, Professor Linke, used non-
neutral, actual figures in his description of present cash value. Professor
Linke used a differential between two rates, computing an upper bound
and a lower bound. The Court concluded that Professor Linke's
computations did not undercompensate or overcompensate Richardson.

• Defendants also argue that the sum of the future medical costs found by
the jury, is not supported by the evidence because it exceeded the larger of
the two figures provided by Professor Linke. Richardson argues in
response that the larger award may be attributable to expenses not
specifically included in Professor Linke's calculations. The Court found
that the award of $1.5 million, more than the higher of the two figures,
was excessive and that it is appropriate to reduce this amount by $1
million by way of remittitur. The court did not agree with Defendants that
the remainder of the award of damages shocks the conscious such as to
force this Court to reduce said amount.
198 Richardson v. Chapman
• Defendants also contend that the jury's award of damages to Mrs.
McGregor is excessive. Mrs. McGregor was not seriously injured in the
accident, incurring only a laceration on her forehead that left a slight scar.
The Court believes that an award for $100,000 is excessive based on these
facts, and reduces said amount to $50,000.

• Dissent. The dissenting judge concurs with the general opinion of the
majority, disagreeing only with the majority's remittitur of Mrs.
Richardson's and Mrs. McGregor's damages. In regard to Mrs. Richardson,
Professor Linke's calculations represented only Mrs. Richardson's
minimum care needs. The jury should have been allowed to arrive at a
higher value based on the evidence. In regard to Mrs. McGregor, the
majority's remittitur of her pain and suffering award is arbitrary. In both
instances the majority substituted its own subjective judgment for the
jury's evaluation of the evidence.

Discussion. The majority is hesitant to substitute its' opinion for that of the trier of fact in
determining damages. Because the determination of damages is a question for the trier of
fact, the court will only issue a remittitur if the damages shock the judicial conscious.
199 Montgomery Ward & Co., Inc. v. Anderson
Montgomery Ward & Co., Inc. v. Anderson

Citation. 334 Ark. 561, 976 S.W.2d 382 (1998).

Brief Fact Summary. The Appellee, Anderson (Appellee), was sent by the Appellant,
Montgomery Ward & Co., Inc. (Appellant), to the University of Arkansas for Medical
Sciences (UAMS) hospital for treatment, after she fell at Appellant's store. Appellee
reached an agreement with UAMS, discounting her bill by fifty percent. Appellant moved
to prohibit Appellee from presenting her total UAMS bill as proof of her medical
expenses, Appellee claimed that the collateral source rule would prohibit Appellant from
introducing evidence of the discount.

Synopsis of Rule of Law. The collateral source rule prevents the introduction of
evidence of payments received by an injured party from sources collateral to the
wrongdoer.

Facts. The Appellee was injured while shopping at the Appellant's store. Appellee was
sent by Appellant to the UAMS hospital to be treated. Appellee had reached an
agreement with UAMS that UAMS would discount her bill by fifty percent. Appellant
moved in limine to prohibit appellee from presenting the total amount billed by UAMS as
proof of her medical expenses, asking that her evidence be limited to the actual amount
that she was responsible to pay. Appellee claimed that the collateral source rule would
prohibit Appellant from introducing evidence of the discount. The trial court denied the
motion in limine.

Issue. Was the trial court correct in determining that the forgiveness of a debt for medical
services is a collateral source to be sheltered by the rule?

Held. Yes. Judgment affirmed.

• A trial court must apply the collateral source rule to exclude evidence of
payments received by an injured party from sources collateral to the
wrongdoer. This rule applies unless the evidence of the benefits from the
collateral source is relevant for a purpose other than the mitigation of
damages.

• In a previous case [Bell v. Estate of Bell, 318 Ark. at 490, 885 S.W.2d at
880 (1994)], this same Court found that although the defendant argued that
the collateral source rule is inequitable because it results in double
recovery for the plaintiff, public policy supports the rule because the
plaintiff, rather than the alleged torfeasor, should be entitled to the benefit
of the collateral source. This is especially true due to the fact that the
claimant has usually incurred the detriment of the collateral source, in the
form of things such as paid insurance premiums or lost sick leave. The
Court finds that the policy allowing for the collateral source rule is equally
applicable in the present case.
200 Montgomery Ward & Co., Inc. v. Anderson
Discussion. The Court pointed out four situations in which the collateral source rule is
inapplicable: (1) to rebut plaintiff's testimony that he was compelled by financial
necessity to return to work prematurely or forego additional medical care; (2) to show
that the plaintiff had attributed his condition to some other cause, such as sickness; (3) to
impeach plaintiff's testimony that he had paid his medical expenses himself; (4) to show
that the plaintiff actually continued to work instead of being out of work.
201 Zimmerman v. Ausland
Zimmerman v. Ausland

Citation. 266 Or. 427, 513 P.2d 1167 (1973).

Brief Fact Summary. The Plaintiff, Zimmerman (Plaintiff), obtained a $7,500 jury
verdict for damages incurred during an automobile accident caused by the Defendant,
Ausland (Defendant). These damages included a permanent injury based on torn
cartilage, preventing Plaintiff from engaging in strenuous physical education activities.

Synopsis of Rule of Law. In order to recover for permanent injuries, a plaintiff has a
duty to mitigate those damages by submitting to treatment that would cure the damages if
a reasonable person would do so under the same circumstances.

Facts. Plaintiff was injured during an automobile accident caused by the negligence of
Defendant. Plaintiff obtained a jury verdict for $7,500, including damages for permanent
injury based on torn semilunar cartilage in her knee. The jury found that she would no
longer be able to engage in the strenuous physical education activities she had previously
engaged in during her work as a substitute teacher.

Issue. Did the trial court err by submitting to the jury the issue of whether plaintiff
sustained a permanent injury and in instructing the jury on plaintiff's life expectancy
based on Standard Mortality Tables?

Held. No. Judgment affirmed.

• It is well established that a plaintiff in a personal injury case cannot

claim permanent injury damages if the permanent injury could have been
avoided by submitting to treatment by a physician when a reasonable
person would do so under the same circumstances. The standard applied is
whether an ordinary, prudent person would have submitted to a surgical
operation. Several factors are considered in this analysis, including the risk
involved, the probability of success and the expenditure of money or effort
required.

• In the present case defendant did not request an instruction on mitigation

of damages. Nonetheless, if the facts are such that the Plaintiff failed to
mitigate her damages as a matter of law, the Plaintiff would not be entitled
to claim damages for permanent injury. The Court concludes that the
evidence supporting Defendant's contention that Plaintiff was required to
submit to surgery were not so clear and convincing to make it proper for
this Court to decide those questions as a matter of law.

Discussion. The duty to mitigate is not a true duty, but actually a rule that does not allow
recovery of damages the plaintiff could have avoided.
202 Cheatham v. Pohle
Cheatham v. Pohle

Citation. 789 NE.2d 467 (Ind. 2003)

Brief Fact Summary. After a divorce, an ex-husband circulated certain nude pictures of
his ex-wife to various people. The ex-wife was awarded compensatory and punitive
damages after bringing suit.

Synopsis of Rule of Law. The portion of the punitive damage statute, requiring 75% of a
punitive damage award be placed in a fund, does not work a taking.

Facts. The Appellant, Doris Cheatham (the "Appellant"), and the Appellee, Michael
Pohle (the "Appellee"), were divorced in 1994. After the divorce, the Appellee retained
certain nude pictures of the Appellant and other pictures of the two parties engaged in a
consensual sexual act. The Appellee distributed certain of the nude photographs to 60
persons in the small community in which they both lived and worked. The Appellee
added certain personal information about the Appellant on the pictures. The Appellant
brought suit alleging invasion of privacy and intentional infliction of emotional distress.
A jury awarded the Appellant $100,000 in compensatory damages and $100,000 in
punitive damages. Indiana's statute authorizing an award of punitive damages was
Indiana Code section 34-51-3-6. One provision of the statute required 75% of any
punitive damage award be paid to the Indiana state treasury, to be deposited in a fund for
violent crime victims. The Appellant argued that the portion of section 34-51-3-6
requiring 75% of punitive damages be paid to the treasurer, violated the Takings Clause
in the United States Constitution ("Constitution") and the Indiana State Constitution.

Issue. Whether section 34-51-3-6's provision requiring 75% of any punitive damage
award be paid to the state treasury, violates the Constitution and the Indiana State
Constitution?

Held. The court first observed that the purpose of a punitive damage award is "not to
make the plaintiff whole or to attempt to value the injuries of the plaintiff. Rather,
punitive damages, sometimes designated 'private fines' or 'exemplary damages,' have
historically been viewed as designed to deter and punish wrongful activity. As such, they
are quasi-criminal in nature." Pursuant to [BMW of N. Am. Inc. v. Gore], state legislatures
are granted "broad discretion in authorizing and limiting the award of punitive damages,
just as they do in fashioning criminal sanctions." Along these lines, it has been held civil
plaintiffs, like victims in a criminal case, have no right to receive punitive damages. The
court observed, "[f]or our purposes, the essential point is that because punitive damages
do not compensate the plaintiff, the plaintiff has no right or entitlement to an award of
punitive damages in any amount. Unlike a claim for compensatory damages, the trier of
fact is not required to award punitive damages even if the facts that might justify an
award are found."

• The court observed, "any interest the plaintiff has in a punitive damages
award is a creation of state law. The plaintiff has no property to be taken
except to
203 Cheatham v. Pohle
the extent state law creates a property right." The state of Indiana chose "to
define the plaintiff's interest in a punitive damages award as only twenty-five
percent of any award, and the remainder is to go to the Violent Crime Victims'
Compensation Fund." Accordingly, "there is no taking of any property by the
statutory directive that the clerk transfer a percentage of the punitive damages
award to the Fund."

Discussion. This case makes it clear that punitive damages are not the property of whom
they are awarded, unless the state legislature makes such a determination.
204 State Farm Mutual Automobile Insurance Co. v. Campbell
State Farm Mutual Automobile Insurance Co. v. Campbell

Citation. 123 S.Ct. 1513 (2003)

Brief Fact Summary. A car accident occurred resulting in the death of one individual,
and the incapacitation of another. The insurance company of the driver at fault, who was
not injured, acted inappropriately, and the driver sued the company and was awarded a
substantial amount of compensatory and punitive damages.

Synopsis of Rule of Law. When analyzing the validity of a punitive damage award, the
three guideposts from [BMW v. Gore] must be applied. Those include: "(1) the degree of
reprehensibility of the defendant's misconduct; (2) the disparity between the actual or
potential harm suffered by the plaintiff and the punitive damages award; and (3) the
difference between the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases."

Facts. While driving with his wife, Curtis Campbell ("Mr. Campbell") (collectively
referred to as the "Campbells") attempted to pass six vans on a two-lane highway. By
doing so, however, Mr. Campbell was driving on the wrong side of the highway. An
accident ensued, and one individual was killed and another permanently disabled. Mr.
Campbell and his wife were unscathed. It was determined that Mr. Campbell's unsafe
pass caused the accident. Nonetheless, the Petitioner, Mr. Campbell's insurer, State Farm
Mutual Automobile Insurance Co. (the "Petitioner"), contested liability and declined
offers to settle with the estate of the deceased and with the permanently injured
individual. The Campbells' policy limit was $50,000. The Petitioner assured the
Campbells that "their assets were safe, that they had no liability for the accident, that
[State Farm] would represent their interests, and that they did not need to procure
separate counsel." The case eventually went to trial, and a jury found that Mr. Campbell
was 100% at fault and a judgment of $185,849 was entered against him. Initially, the
Petitioner refused to pay the excess $135,849 above the policy limits. Additionally, State
Farm would not post a bond to allow Mr. Campbell to appeal the verdict. The Campbells
retained their own counsel for the appeal. The estate of the deceased and the individual
that was incapacitated, agreed not to satisfy their claims against Mr. Campbell, it he were
to bring a "bad faith action against State Farm and to be represented by Slusher's and
Ospital's attorneys." Slusher and Ospital were the representatives of the deceased and the
incapacitated victims of the accident. In 1989, the Utah Supreme Court denied Mr.
Campbell and his wife's appeal, and State Farm satisfied the entire judgment. Despite the
outcome of the appeal, Mr. Campbell and his wife filed suit against the Petitioner,
alleging "bad faith, fraud, and intentional infliction of emotional distress." The jury
awarded the Campbell's $2.6 million in compensatory damages and $145 million in
punitive damages. The trial court reduced the compensatory award to $1 million and the
punitive award to $25 million. The Utah Supreme court reinstated the punitive award.

Issue. "[W]hether, [based on the circumstances], an award of $145 million in punitive

damages, where full compensatory damages are $1 million, is excessive and in violation
205 State Farm Mutual Automobile Insurance Co. v. Campbell
of the Due Process Clause of the Fourteenth Amendment to the Constitution of the
United States"?

Held. Yes, the reinstatement of the $145 million dollar punitive damage award was
excessive. The court first recognized there are procedural and substantive constitutional
limitations on compensatory and punitive damages awards. Specifically "[t]he Due
Process Clause of the Fourteenth Amendment prohibits the imposition of grossly
excessive or arbitrary punishments on a tortfeasor." Based on [BMW v. Gore], courts are
instructed to examine three "guideposts" when construing the validity of a punitive
damage award: "(1) the degree of reprehensibility of the defendant's misconduct; (2) the
disparity between the actual or potential harm suffered by the plaintiff and the punitive
damages award; and (3) the difference between the punitive damages awarded by the jury
and the civil penalties authorized or imposed in comparable cases." The court discussed
each in turn.

• The court first discussed the "reprehensibility of the defendant's

misconduct," which it says is the most important of the guideposts.
Reprehensibility is judged "by considering whether: the harm caused was
physical as opposed to economic; the tortious conduct evinced an indifference
to or a reckless disregard of the health or safety of others; the target of the
conduct had financial vulnerability; the conduct involved repeated actions or
was an isolated incident; and the harm was the result of intentional malice,
trickery, or deceit, or mere accident." The court then criticized the Utah
Supreme Court's condemning of the Petitioner "for its nationwide policies
rather than for the conduct directed toward the Campbells." Further, the
majority recognized the Utah Supreme court "awarded punitive damages to
punish and deter conduct that bore no relation to the Campbells' harm." The
court also found that the punitive damage award could not be upheld under the
guise that State Farm was a recidivist.

• The court then construed the second guidepost and refused to "impose a
bright-line ratio, which a punitive damages award cannot exceed." However,
the majority recognized "[o]ur jurisprudence and the principles it has now
established demonstrate, however, that, in practice, few awards exceeding a
single-digit ratio between punitive and compensatory damages, to a significant
degree, will satisfy due process." Moreover, "[i]n the context of this case, we
have no doubt that there is a presumption against an award that has a 145- to-1
ratio." The court recognized that the $1 million compensatory award was
complete compensation, especially since the damages in the case before
itwere entirely economic and not physical.

• The third and final guidepost concerned the "the disparity between the
punitive damages award and the 'civil penalties authorized or imposed in
comparable cases. ' " The court observed, "[t]he most relevant civil sanction
under Utah state law for the wrong done to the Campbells appears to be a
$10,000 fine for an act of fraud, [ ] an amount dwarfed by the $145 million
206 State Farm Mutual Automobile Insurance Co. v. Campbell
punitive damages award." The court refused to look at criminal penalties in
making their assessment.

Dissent. Justice Antonin Scalia ("J. Scalia") filed a dissenting opinion adhering to his
view expressed in his "dissenting opinion in [BMW of North America, Inc. v. Gore], that
the Due Process Clause provides no substantive protections against 'excessive' or
'unreasonable' awards of punitive damages."

• Justice Clarence Thomas ("J. Thomas") also filed a dissenting opinion

arguing "the Constitution does not constrain the size of punitive damage
awards."

• Justice Ruth Bader Ginsburg ("J. Ginsburg") entered a dissenting opinion

arguing that punitive damages awards are the prerogative of the states. J.
Ginsburg recognized that "[w]hen the Court first ventured to override state-
court punitive damages awards, it did so moderately." However, she argued
"[t]oday's decision exhibits no such respect and restraint. No longer content to
accord state-court judgments 'a strong presumption of validity,' [ ] the Court
announces that 'few awards exceeding a single-digit ratio between punitive
and compensatory damages, to a significant degree, will satisfy due process.' "
As such, "I would not join the Court's swift conversion of those guides into
instructions that begin to resemble marching orders."

Discussion. This case offers a good example of how the [BMW v. Gore] factors should
be applied.
207

CHAPTE
R XI.
Wrongful
Death
And
Survival
208 Moragne v. States Marine Lines, Inc.
Moragne v. States Marine Lines, Inc.

Citation. 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).

Brief Fact Summary. Petitioner brought a wrongful death claim on behalf of her dead
husband. Previous case law had determined that maritime law does not afford a cause of
action for wrongful death. The United States Supreme Court (Supreme Court) took the
case to determine if the previous case law was still applicable.

Synopsis of Rule of Law. The Supreme Court overturns it's previous holding in The
Harrisburg and allows for a wrongful death action in maritime law.

Facts. Edward Moragne, a longshoreman, was killed while working on a vessel in

navigable waters. The Petitioner, the deceased's widow (Petitioner), brought a wrongful
death suit in state court against the Respondent, States Marine Lines, Inc., (Respondent),
the owner of the vessel. The Supreme Court took this case to determine if it's decision in
The Harrisburg, 119 U.S. 199 (1886), that maritime law does not afford a cause of action
for wrongful death, is still acceptable law.

Issue. Should the Supreme Court continue to apply the holding of The Harrisburg, that
maritime law does not afford a cause of action for wrongful death?

Held. No. Judgment reversed and remanded.

• The holding of The Harrisburg has little justification except in primitive

legal history. The historical reason for the rule was the felony-merger
doctrine, where in England civil recovery was not allowed in felony cases
because the tort and felony merged as an offense against the Crown. This
rule never existed in America, but the American courts adopted the
common law rule that wrongful death actions were not actionable.

• Legislatures both here and in England began to show disapproval for the
rule, with every State here eventually enacting wrongful-death statutes.
These statutes make it clear that there is no public policy against allowing
recovery for wrongful deaths. Based on these facts, this Court overrules
the holding in The Harrisburg. The law applied in personal-injury cases
will govern questions that arise in death cases. This Court will not
determine whether the beneficiaries are entitled to recover at this time.

Discussion. At common law, a personal cause of action in tort did not survive the death
of its possessor. However, this applied only to a victim's own personal claims and did not
include a dependant's injuries that he suffered from the victim's death.
209 Selders v. Armentrout
Selders v. Armentrout

Citation. 190 Neb. 275, 207 N.W.2d 686 (1973).

Brief Fact Summary. Plaintiffs sued for the wrongful death of their three children.
Defendants asserted that damages are limited to pecuniary loss, while plaintiffs asserted
that loss of society, comfort, and companionship of the children are compensable.

Synopsis of Rule of Law. Under Nebraska law, the loss of society, comfort and
companionship are recoverable for a child's death in a wrongful death suit.

Facts. Three children, aged 15, 13, and 9, were killed in an automobile accident due to
the negligent conduct of the defendants. The defendants contended that the measure of
damages is limited to pecuniary loss, while plaintiffs asserted that the loss of society,
comfort, and companionship of the children are compensable elements of damage, along
with evidence of amounts invested in nurture, education, and maintenance. The trial court
instructed the jury that the damages allowed included only the monetary value of the
contributions and services, which the parents could reasonably have expected to receive
from the children less the reasonable cost to the parents of supporting the children.

Issue. Was the trial court proper in limiting the wrongful death award for plaintiffs to
their pecuniary loss?

Held. No. Judgment of trial court as to liability is confirmed, judgment as to damages is

reversed and remanded.

• The original pecuniary loss concept arose from a historical tradition

when children during minority were regarded as an economic asset to
parents. This resulted from the early age at when children would go to
work. Today, damages in wrongful death cases deal with a speculative
future life, based on a fictitious future that will never happen. To literally
limit wrongful death damages for a child to the monetary value of the
services the next of kin could have reasonably expect to receive would
result in the average child being of negative worth.

• In this state, statutes do not limit damages for wrongful death to

pecuniary loss, but this Court has imposed such a restriction. However, the
Court imposes no such limit for injuries to the marital relationship. We see
no reason for this discrepancy. Thus, the court held that the measure of
damages in a child's wrongful death suit shall include the loss of society,
comfort, and companionship of the child.

Dissent. The majority's opinion arbitrarily overrules 50 years of settled law for no clear
purpose.

Discussion. Pecuniary loss statutes that have the trier of fact determine the monetary
contribution that the decedent would have made during his lifetime to plaintiff are known
210 Selders v. Armentrout
as loss-to-survivors statutes. However, a growing number of states have followed the
principle case, allowing recovery for loss of companionship or consortium.
211 Murphy v. Martin Oil Co.
Murphy v. Martin Oil Co.

Citation. 56 Ill.2d 423, 308 N.E.2d 583.

Brief Fact Summary. The Plaintiff, Mrs. Murphy (Plaintiff), sued under both the
Wrongful Death Statute and the Survival Statute for injuries sustained by her husband
during a fire at the Defendant, Martin Oil Co.'s (Defendant) premises. Plaintiff's husband
survived for nine days, then died from his injuries.

Synopsis of Rule of Law. Damages for loss of property, loss of wages and the pain and
suffering of a decedent are allowed under survival statutes when the decedent later dies
from injuries which created the cause of action.

Facts. The Plaintiff's husband was injured in a fire on the Defendant's premises.
Plaintiff's husband survived for nine days, then died from his injuries. Plaintiff brought
suit under both the Wrongful Death Statute and the Survival Statute. The trial court
dismissed the Survival Statute Claim. The appellate court allowed the claim in part. Both
parties appealed to the State Supreme Court.

Issue. Can a plaintiff maintain an action under the Survival Statute for loss of property,
loss of wages and the pain and suffering of decedent when decedent died from the
injuries, which created the cause of action?

Held. Yes. Judgment affirmed insofar as it held that an action may be maintained for loss
of property and wages incurred during the interval between injury and death. Judgment
reversed insofar as it held that Plaintiff could not maintain an action for decedent's pain
and suffering.

• The Survival Statute [Illinois Survival Statute, Ill.Rev.Stat.1971, ch. 3,

par. 339 (1934)] is cited in support of Plaintiff's claim for damages for the
decedent's physical and mental suffering and loss of wages for the nine
day period following his injury and for the loss of his clothing worn at the
time of his injury. Previously, this Court has held that the Survival Statute
was intended to allow the survival of a cause of action only when a the
injured party died from something other than that which caused the
injuries which gave rise to the original cause of action.

• Actions under the Illinois Wrongful Death Act are limited to recovery of
pecuniary losses from loss of support to the surviving spouse or next of
kin. Professor Prosser has noted that the majority of jurisdictions now
allow an action for personal injuries in addition to an action under
wrongful death statutes [Prosser, Handbook of the Law of Torts 4th ed. at
901 (1971)]. This Court believes that decisions that allow an action for
fatal injuries in addition to wrongful death are preferable to the Court's
previous holdings. Therefore, previous holdings are overruled and actions
212 Murphy v. Martin Oil Co.
under both the Survival Statute and the Wrongful Death Statute will be
allowed.

Discussion. Under English common law personal tort actions died with the decedent, but
today survival statutes have modified these rules in almost every jurisdiction.
213

C
H
A
P
T
E
R

X
I
I
.

D
e
f
e
n
s
e
s
214 Butterfield v. Forrester
Butterfield v. Forrester

Citation. 11 East 60, 103 Eng.Rep. 926 (K.B. 1809).

Brief Fact Summary. The Plaintiff, Butterfield (Plaintiff), was injured when he rode his
horse into an obstruction placed into the road by the Defendant, Forrester (Defendant). A
witness said that if Plaintiff had not been riding hard, he would have been able to see and
avoid the obstruction.

Synopsis of Rule of Law. The plaintiff's failure to exercise reasonable and ordinary care
in this case is a complete bar to recovery from the defendant, initializing the concept of
contributory negligence.

Facts. The Defendant had put up a pole across a public road for the purpose of making
some repairs to his house. The Plaintiff, riding violently, did not see the pole and was
thrown from his horse by the pole, injuring himself. A witness stated that if the Plaintiff
had not been riding violently, he would have been able to see and avoid the pole. The
judge directed the jury that if they found that a person riding with reasonable and
ordinary care could have avoided the obstruction and if Plaintiff was not riding with
ordinary care, the jury should find a verdict for the Defendant. The jury found for
Defendant.

Issue. Is the defendant liable for injuries caused by his negligence when the plaintiff
could have avoided the injuries by exercising reasonable and ordinary care?

Held. No. Rule refused.

• Justice Bayley: If the Plaintiff had used ordinary care, he would have
seen the obstruction, so the accident happened entirely at his own fault.

• Chief Justice Lord Ellenborough: One person being in fault will not
dispense with another's using ordinary care for himself. The Plaintiff
cannot recover for casting himself on an obstruction made by the fault of
another if he did not use common and ordinary caution to be in the right.

Discussion. The Court's holding in this case is demonstrative of common law

contributory negligence, which completely bars recovery if plaintiff's negligence
contributed to the happening of the accident.
215 Davies v. Mann
Davies v. Mann

Citation. 10 M. & W. 547, 152 Eng.Rep. 588 (Exchequer 1842).

Brief Fact Summary. The Plaintiff, Davies (Plaintiff), had his ass illegally tethered
along a public highway. The Defendant, Mann (Defendant), came along the path at a
quick pace and ran down the ass, killing it. The judge instructed the jury that if the
proximate cause of the injury was due to the lack of proper conduct of the Defendant, an
action is maintainable.

Synopsis of Rule of Law. If the defendant had an opportunity to avoid the accident after
the plaintiff no longer had such an opportunity, and the defendant improperly did not
avoid the accident, he is liable. This initiated the last clear chance doctrine.

Facts. The Plaintiff had an ass grazing on the side of a public highway. The ass was
fettered, and the Plaintiff was some distance away. The Defendant's wagon came down
the path at "a smartish pace" and knocked down the ass, killing it. The judge instructed
the jury that even if leaving the ass fettered in the highway was an illegal act, if the
proximate cause of the injury was attributable to the lack of proper conduct on the part of
the Defendant, an action was maintainable for the Defendant. The jury found their verdict
for the Plaintiff.

Issue. Is a defendant liable for injuries caused by his negligence when the plaintiff's
negligence was also a cause of the injury?

Held. Yes.

• Chief Bench Lord Abinger: Even if the animal was unlawfully in the
road, if the Defendant could have avoided injuring the animal through
proper care, but failed to do so, he is liable for the consequences of his
negligence.

• Bench Parke: Defendant was bound to go along the road at a pace likely
to prevent mischief.

Discussion. The holding in this case has developed into the doctrine of last clear chance,
where if the defendant had the opportunity to avoid the accident after the opportunity was
no longer available to the plaintiff, the defendant has a duty to do so or else he will bear
the loss.
216 McIntyre v. Balentine
McIntyre v. Balentine

Citation. 833 S.W.2d 52 (Tenn.1992).

Brief Fact Summary. The Plaintiff, Harry McIntyre (Plaintiff) and the Defendant,
Clifford Balentine (Defendant), were involved in a car accident, with both parties being
partially responsible. The jury found for the Defendant based on the contributory
negligence doctrine. Plaintiff appealed and requested that the court adopt comparative
negligence.

Synopsis of Rule of Law. Tennessee adopts modified comparative negligence, allowing

plaintiffs to recover so long as their negligence does not exceed the negligence of the
defendant.

Facts. The Plaintiff and Defendant were involved in a motor vehicle accident, with
severe injuries resulting to Plaintiff. As Defendant traveled south on Highway 69 in
Savannah, Tennessee, Plaintiff pulled out of a truck stop. Shortly thereafter, Plaintiff's
truck struck Defendant's tractor. Both men had consumed alcohol the evening of the
accident. Plaintiff's blood alcohol content was measured at .17 and testimony suggested
that Defendant was speeding. Plaintiff brought a negligence action against Defendant and
the lessee of the truck. Defendant answered that Plaintiff was contributorially negligent,
in part due to operating his vehicle while intoxicated. The jury found the Plaintiff and
Defendant equally at fault, therefore, they ruled in favor of the Defendant. Plaintiff
appealed, alleging the trial court erred by refusing to instruct the jury regarding the
doctrine of comparative negligence. The Court of Appeals affirmed.

Issue. Should Tennessee adopt the doctrine of comparative negligence?

Held. Yes. Judgment reversed in part and affirmed in part (on a separate issue) and
remanded.

• The common law doctrine of contributory negligence has been traced to

Butterfield v. Forrester, [11 East 60, 103 Eng.Rep. 926 (1809)]. The
contributory negligence bar to recovery may have developed as on
outgrowth of issue pleading, where questions posed had to be answered
yes or no, leaving common law courts to award all or nothing.

• Tennessee has followed the general rule of barring recovery for

contributory negligence, allowing for exceptions for intentional conduct,
gross negligence, actions falling under the last clear chance doctrine, or
when plaintiff's negligence is remote. Based on the general acceptance of
comparative fault throughout the nation, the Court abandoned the unjust
doctrine of contributory negligence and adopts a system of comparative
fault.
217 McIntyre v. Balentine
• Two basic forms of comparative fault are used throughout the nation,
pure and modified comparative fault. Under the pure form, damages are
reduced in proportion to the amount of negligence attributed to the
plaintiff. The modified form is the same as pure, except plaintiffs recover
only if plaintiff's negligence either does not exceed does not exceed 50%,
or is less than 49% of defendant's negligence.

• This Court adopts the modified form of comparative fault in an effort not
to fully abandon the state's fault-based tort system. Therefore, so long as
plaintiff's negligence remains less than defendant's the plaintiff may
recover. To provide guidance to the trial courts, the court also held that the
doctrines of remote and contributory negligence are obsolete, as well as
the doctrine of joint and several liability. Also, in the case of multiple
tortfeasors, plaintiffs may recover as long as plaintiff's fault is less than the
combined fault of tortfeasors. The Uniform Contribution Among
Tortfeasors Act [T.C.A. §§ 29-11-101 to 106 (1980)] will no longer
determine the apportionment liability between co-defendants. Finally,
defendants answering allegations in negligence will be permitted to allege
that a non-party contributed to or caused the injury as an affirmative
defense and the trial court shall instruct the jury to assign a percentage of
the total negligence to this nonparty.

Discussion. Only four states continue to apply the common law doctrine that contributory
negligence as a complete bar to recovery.
218 Seigneur v. National Fitness Institute, Inc.
Seigneur v. National Fitness Institute, Inc.

Citation. 132 M.D. App. 271, 752 A.2d 631 (Md. App. 2000)

Brief Fact Summary. A member of a health club was injured during a consultation with
a trainer. The health club contract included an exculpatory clause.

Synopsis of Rule of Law. "In Maryland, unambiguous exculpatory clauses are generally
held to be valid in the absence of legislation to the contrary."

Facts. Gerilynne Seigneur ("Ms. Seigneur") was injured at a health club owned by
National Fitness Institute, Inc. ("National"). Ms. Seigneur was injured during an initial
evaluation. Ms. Seigneur chose National because they were recommended by her
chiropractor. Ms. Seigneur reported on her membership contract that she had a very bad
lower back, including a herniated disc and that she was generally in poor physical
condition. Ms. Seigneur filled out and signed a "Participation Agreement", which
included the following provision: "Important Information: I, the undersigned applicant,
agree and understand that I must report any and all injuries immediately to NFI, Inc. staff.
It is further agreed that all exercises shall be undertaken by me at my sole risk and that
NFI, Inc. shall not be liable to me for any claims, demands, injuries, damages, actions, or
courses of action whatsoever, to my person or property arising out of or connecting with
the use of the services and facilities of NFI, Inc., by me, or to the premises of NFI, Inc.
Further, I do expressly hereby forever release and discharge NFI, Inc. from all claims,
demands, injuries, damages, actions, or courses of action, and from all acts of active or
passive negligence on the part of NFI, Inc., its servants, agents or employees."

• During her initial evaluation, Ms. Seigneur felt a tear or a rip in her right
shoulder. Subsequent to the incident, Ms. Seigneur needed to have surgery on
her shoulder. Ms. Seigneur and her husband brought suit against National
based on a theory of vicarious liability. They alleged that National's employee
working with Ms. Seigneur when she hurt her shoulder was negligent.
National filed a motion to dismiss, which the court treated as a summary
judgment motion. National argued that the exculpatory clause in the contract
was valid and binding. Ms. Seigneur argued that it was a contract of adhesion
and the exculpatory clause void as against public policy.

Issue. Is the exculpatory clause in the fitness club's contract enforceable?

Held. Yes. The court first observed "there is no suggestion that the agreement between
NFI and Ms. Seigneur was the product of fraud, mistake, undue influence, overreaching,
or the like." Based on the language of the clause, the court held "that this contract
provision expresses a clear intention by the parties to release NFI from liability for all
acts of negligence."

• The court observed "[i]n Maryland, unambiguous exculpatory clauses are

generally held to be valid in the absence of legislation to the contrary." The
219 Seigneur v. National Fitness Institute, Inc.
court then discussed three exceptions to the general rule that exculpatory
clauses are enforceable. They include "(1) when the party protected by the
clause intentionally causes harm or engages in acts of reckless, wanton, or
gross negligence; (2) when the bargaining power of one party to the contract
is so grossly unequal so as to put that party at the mercy of the other's
negligence; and (3) when the transaction involves the public interest." The
court recognized that only the second and third exceptions are applicable here.

• As to the second, the court observed that the contract at issue was one of
adhesion. The court also observed that this fact alone, however, does not
demonstrate grossly unequal bargaining power. To illustrate its point, the
court recognized National had various competitors that provided the same
non-essential health club services that National provided. The court also
argued, Ms. Seigneur could have went to another health club, purchased her
own fitness equipment or exercised at home without fitness equipment.
Additionally, the exculpatory clause was prominently displayed and Ms.
Seigneur did not allege she was not aware of it.

• As to the third, the appropriate inquiry was to assess "whether the party
seeking exoneration offered services of great importance to the public, which
were a practical necessity for some members of the public." The court
observed that "courts have found generally that the furnishing of gymnasium
or health spa services is not an activity of great public importance nor of a
practical necessity." The court concluded that "there is no special legal
relationship and no overriding public interest which demand that this contract
provision, voluntarily entered into by competent parties, should be rendered
ineffectual." This conclusion was based on the observation that "[h]ealth clubs
are a good idea and no doubt contribute to the health of the individual
participants and the community at large. But ultimately, they are not essential
to the state or its citizens. And any analogy to schools, hospitals, housing
(public or private) and public utilities therefore fails. Health clubs do not
provide essential services." In assessing public policy, "[t]he ultimate
determination of what constitutes the public interest must be made considering
the totality of the circumstances of any given case against the backdrop of
current societal expectations."

• The court also recognized public policy "includes those transactions, not
readily susceptible to definition or broad categorization, that are so important
to the public good that an exculpatory clause would be 'patently offensive,'
such that 'the common sense of the entire community would ··· pronounce it'
invalid." Based on this definition of public policy, the court concluded
"[National] does not provide an essential public service such that an
exculpatory clause would be “patently offensive” to the citizens of Maryland."
220 Seigneur v. National Fitness Institute, Inc.
Discussion. The court also relies on certain factors enunciated by [Tunkl v. Regents of the
Univ. of California] to determine what effects the public interest. The court recognizes,
however, that due to the fluidity of the notion of public policy, reliance on only six
factors may be arbitrary. The [Tunkl] court stated: "It concerns a business of a type
generally thought suitable for public regulation. The party seeking exculpation is engaged
in performing a service of great importance to the public, which is often a matter of
practical necessity for some members of the public. The party holds himself out as
willing to perform this service for any member of the public who seeks it, or at least for
any member coming within certain established standards. As a result of the essential
nature of the service, in the economic setting of the transaction, the party invoking
exculpation possesses a decisive advantage of bargaining strength against any member of
the public who seeks his services. In exercising a superior bargaining power the party
confronts the public with a standardized adhesion contract of exculpation, and makes no
provision whereby a purchaser may pay additional reasonable fees and obtain protection
against negligence. Finally, as a result of the transaction, the person or property of the
purchaser is placed under the control of the seller, subject to the risk of carelessness by
the seller or his agents."
221 Rush v. Commercial Realty Co.
Rush v. Commercial Realty Co.

Citation. 7 N.J.Misc. 337, 145 A. 476 (1929).

Brief Fact Summary. The Plaintiff, tenant Rush (Plaintiff), was injured when she fell
through the floor of a detached privy. Plaintiff won a suit against the Defendant landlord,
Commercial Realty Co. (Defendant). The Defendant appealed.

Synopsis of Rule of Law. Implied assumption of the risk is applicable only when a
plaintiff voluntarily encounters a known risk.

Facts. Plaintiff was a tenant of the Defendant. The rented premises had a detached privy
for the use of two houses. Plaintiff went to the privy and fell through the floor or through
a trap door therein. Plaintiff fell nine feet into the accumulation at the bottom and had to
be removed with the use of a ladder. Defendant appeals the trial court verdict, claiming
that it erred in refusing a nonsuit and erred in refusing to direct a verdict for the
Defendant.

Issue. Did the trial court err by not directing a verdict in favor of the Defendant based on
Plaintiff's contributory negligence or assumption of the risk?

Held. No. Judgment affirmed.

• The building was under the control of the Defendant and it had a duty of
care for maintenance. The jury could reasonably find that the accident was
the result of Defendant's negligence. Therefore, the only applicable
questions are if Plaintiff assumed the risk or was contributorily negligent.
Plaintiff had no choice, but to use the bathroom and had no duty to go
elsewhere to do so. Therefore, using the facilities placed at her disposal
was not assumption of the risk. Whether it was contributory negligence to
step on the badly maintained floor was a question for the jury.

Discussion. Assumption of the risk requires actual knowledge of a particular risk,

appreciation of its magnitude and voluntarily encountering the risk.
222 Blackburn v. Dorta
Blackburn v. Dorta

Citation. 348 So.2d 287 (Fla.1977).

Brief Fact Summary. Three cases where consolidated by the Supreme Court of Florida
to determine if the doctrine of implied assumption of the risk was viable as an absolute
bar to recovery subsequent to adoption of comparative negligence.

Synopsis of Rule of Law. The concept of comparative negligence eliminates the need for
the affirmative defense of implied assumption of the risk.

Facts. Three cases where consolidated by the Supreme Court of Florida to determine if
the doctrine of implied assumption of the risk was viable as an absolute bar to recovery
subsequent to adoption of comparative negligence.

Issue. Is the doctrine of implied assumption of the risk still viable as an absolute bar to
recovery subsequent to adoption of comparative negligence?

Held. No. The affirmative defense of implied assumption of the risk is merged into the
defense of comparative negligence.

• In Hoffman v. Jones, 280 So.2d 431 (Fla1973), this Court held that
contributory negligence would no longer be a complete bar to negligence,
but rather would be considered in apportioning damages. However, in that
case the court left the viability of assumption of the risk for a future day.
The court notes that assumption of the risk is not a favored defense and
that it generally serves no purpose not covered by the doctrine of
contributory negligence or common law duty.

• Several categories of assumption of the risk have developed, including

(i) distinctions between express and implied; (ii) between primary and
secondary and (iii) between strict and implied. This Court's determination
deals with implied assumption of the risk.

• Primary assumption of the risk occurs when the defendant is not

negligent, either because he owed no duty to the defendant or because he
did not breach a duty owed. The concept grew out of the master-servant
relationship. This terminology is subsumed in the principle of negligence
itself. Thus there is no useful purpose in retaining it.

• Secondary assumption of the risk is an affirmative defense to an

established breach of duty owed by the defendant to the plaintiff. This
defense can be further divided into strict and qualified assumption of the
risk. Strict secondary assumption of the risk involves conduct, which is
reasonable, but nonetheless bars recovery. The court found nothing in
223 Blackburn v. Dorta
either case law or justice to validate this rule under the modern
comparative negligence scheme.

• Qualified secondary assumption of the risk is conduct that is

unreasonable and bars recovery. Such conduct can just as easily be
characterized as contributory negligence. This Court holds that the
principles of comparative negligence will be applied in any case where the
defense of implied assumption of the risk is asserted.

Discussion. Express assumption of the risk is a contractual obligation such as a release

signed by a plaintiff. This Court expressed no opinions on the subject.
224 Teeters v. Currey
Teeters v. Currey

Citation. 518 S.W.2d 512 (Tenn.1974).

Brief Fact Summary. The Defendant, Currey (Defendant), negligently performed a

surgery on the Plaintiff, Teeters (Plaintiff) that was intended to prevent future pregnancy.
Plaintiff did not discover the negligence until three years later when she gave birth.
Plaintiff sued and Defendant answered claiming the statute of limitations as a bar to
recovery.

Synopsis of Rule of Law. Under Tennessee law, the statute of limitations in medical
malpractice actions begins to run when the plaintiff discovers, or reasonably should have
discovered the negligent injury.

Facts. On June 6, 1970 the Plaintiff underwent surgery at the advice of her doctor to
prevent future pregnancy. On March 9, 1973, Plaintiff delivered a premature child, with
severe complications. Plaintiff initiated a malpractice suit, alleging that the Defendant's
previous surgery was negligently performed. This suit was initiated over three years after
the operation, but approximately eleven months after discovering the pregnancy. The
Defendant pleaded the statute of limitations in his answer.

Issue. Was the trial court correct in holding that the cause of action accrues when the
injury occurs, so as to begin the running of the statute of limitations?

Held. No. Judgment reversed and remanded.

• In Bodne v. Austin, [156 Tenn. 366, 2 S.W.2d 104 (1928)], the Court
held that the failure to discover the existence of a cause of action did not
prevent the running of the statute of limitations. However, this decision
was outdated and the court felt it was time to re-examine its past holdings.

• The purpose of statutes of limitations is to promote stability and to avoid

the burdens of defending stale claims. In recognition of these goals, the
courts have traditionally held that an action begins to accrue immediately
upon the infliction or occurrence of injury, regardless of a failure by the
plaintiff to discover his cause of action.

• In response to the results of this harsh rule, a majority of American states

have adopted the discovery doctrine. Under this doctrine, the statute does
not begin to run until the negligent injury is, or should have been
discovered. The court adopts the discovery rule for cases involving the
negligent performance of surgical procedures, so that the statute of
limitations commences to run when the patient discovers, or in the
exercise of reasonable care and diligence for his own health and welfare,
should have discovered the resulting injury.

Concurrence. Justice Harbison's concurrence is omitted.

225 Teeters v. Currey
Discussion. The statute of limitations is a complete bar to actions. The time period by
which to bring an action varies in length, with most states imposing a two or three year
limitation for actions sounding in tort.
226 Freehe v. Freehe
Freehe v. Freehe

Citation. 81 Wash.2d 183, 500 P.2d 771 (1972).

Brief Fact Summary. The Plaintiff, Clifford Freehe (Plaintiff), was injured on a
negligently maintained tractor owned by the Defendant, Hazel Knoblauch (Defendant),
his wife. Plaintiff had no interest in the tractor or the farming operation. Plaintiff brought
suit, Defendant claimed interspousal immunity.

Synopsis of Rule of Law. The Supreme Court of Washington abandoned the interspousal
immunity rule, allowing spouses to bring suit against one another in tort.

Facts. Plaintiff was injured on a tractor and sued for personal injuries. The tractor was
the separate property of his wife, the Defendant, along with all of the assets and income
of the farm on which the accident took place. Plaintiff has no interest in the farming
operation, nor is he employed by the Defendant. Plaintiff brought suit, claiming negligent
maintenance of the tractor and failure to warn of the tractor's unsafe condition. The trial
court granted Defendant's motion for summary judgment based on interspousal tort
immunity.

Issue. Was the trial court correct to grant defendant summary judgment based on
interspousal tort immunity?

Held. No. Judgment reversed and remanded.

• Interspousal immunity is a common law rule. It is based on the unity of

husband and wife, whereby a wife essentially became the chattel of her
husband upon marriage. This does not comport with modern reality and
therefore is not a valid premise to continue to allow interspousal tort
immunity.

• A second reason for interspousal immunity is the theory that tort suits
would destroy the peace and tranquility of the home. However, this court
believes that if a state of peace and tranquility exists, either no action will
be commenced or the spouses will allow the action to continue only as
long as their personal harmony is not in jeopardy.

• A third reason is that the injured spouse can resort to criminal and
divorce laws. However, these alternatives fail to compensate for the
damage done. It has also been argued that allowing such litigation would
flood the courts with matrimonial disputes. This has not proved to be true
in other States disallowing interspousal immunity.

• Defendant also argues that disallowing interspousal immunity would

encourage collusion and fraud due to liability insurance. However, the
227 Freehe v. Freehe
courts will not immunize tortfeasors from liability in a whole class of
cases due to the possibility of fraud.

• Finally, defendant argues that any change in interspousal immunity is a

matter for the legislature. Since the rule was not made or sanctioned by the
legislature, this Court feels free to intervene in the matter. Therefore, the
rule of interspousal immunity is abandoned.

Discussion. Interspousal immunity has been abandoned in a majority of states today.

228 Renko v. McLean
Renko v. McLean

Citation. 346 Md. 464, 697 A.2d 468 (Md.App.1997).

Brief Fact Summary. The Plaintiff, Natasha Renko (Plaintiff), was seriously injured
while a minor, when the Defendant, her mother Teresa McLean (Defendant) drove their
car into the back of another vehicle. Plaintiff sued Defendant requesting that the court
recognize an exception to the parent-child immunity doctrine.

Synopsis of Rule of Law. The parent-child immunity doctrine disallows suits between
children and parents for torts occurring during the child's minority.

Facts. The Plaintiff suffered serious injuries when her biological mother, the Defendant
drove the car both women were in into the back of another car. Plaintiff was seventeen at
the time. Plaintiff filed suit for negligent operation of a motor vehicle after her eighteenth
birthday. Her mother filed a motion to dismiss based on parent-child immunity and the
trial court entered judgment in favor of Defendant.

Issue. Should the court recognize an exception to the parent-child immunity doctrine,
allowing emancipated children to file actions against their parents for injuries occurring
in minority between fifteen and eighteen years of age?

Held. No. Judgment affirmed.

• The parent-child immunity doctrine serves to preserve the internal

harmony and integrity of the family unit, to prevent fraud and collusion
among family members and to prevent the threat that intra-familial
litigation will deplete family resources. Plaintiff launches a three-pronged
attack on the doctrine claiming that (1) adult children should be allowed to
maintain actions against their parents for injuries occurring in their
minority; (2) no contemporary justification exists to apply the doctrine to
these facts based on the availability of compulsory motor vehicle liability
insurance and (3) application of the doctrine violates Articles 19 and 24 of
the Maryland Declaration of Rights and the Fourteenth Amendment to the
United States Constitution (Constitution).

• In support of her first argument, Plaintiff points out that this Court has
permitted suits between parents and minor children in limited
circumstances, including suits by a minor child against a father's business
partner and suits where the parent is guilty of acts which show complete
abandonment of the parental relation. Plaintiff further contends that since
this Court has already permitted children to maintain actions against their
parents for acts occurring after the child reaches majority, the logical step
is to permit actions for acts that occur during minority. This Court does
not agree, believing that to do so would result in de facto abrogation of the
valuable parent-child immunity doctrine.
229 Renko v. McLean
• Plaintiff also contends that the presence of mandatory automobile
insurance causes there to be no rational objection to recovery by an
emancipated child in these circumstances. A majority trend agrees with
Plaintiff, finding that in these cases the action is not truly adversarial
because both parties seek recovery from the insurance carrier. However,
this Court notes that these suits create court situations that are not truly
adversarial because the insured has every incentive to lose. Additionally,
because of family medical insurance that would necessarily compensate
the injured child, families may be saddled with judgments they cannot
afford to pay.

• This Court finds no merit in Plaintiff's contention that the parent-child

immunity doctrine as applied to motor vehicle torts violates Articles 19
and 24 of the Maryland Declaration of Rights, along with the Fourteenth
Amendment of the Constitution.

Discussion. Although the parent-child immunity doctrine has not been abolished to the
same extent as the interspousal immunity doctrine, many courts allow for exceptions
when the policies supporting it are inapplicable.
230 Abernathy v. Sisters of St. Mary's
Abernathy v. Sisters of St. Mary's

Citation. 446 S.W.2d 599 (Mis.1969).

Brief Fact Summary. The Plaintiff, Abernathy (Plaintiff), allegedly sustained injuries
when the Defendant, Sisters of St Mary's (Defendant), employee negligently failed to
assist him as he moved from his bed to the bathroom. Plaintiff brought suit and the trial
court granted Defendant's motion for summary judgment based on the doctrine of
immunity for charitable organizations.

Synopsis of Rule of Law. The reasons for the common law rule of immunity for
nongovernmental charitable organizations are no longer applicable, therefore the
Supreme Court of Missouri abolished the rule.

Facts. The Plaintiff, Abernathy (Plaintiff), alleged that the Defendant's employee
negligently failed to assist him as he moved from his bed to the bathroom. This
negligence resulted in Plaintiff falling and sustaining multiple injuries. Defendant moved
for summary judgment, claiming that its status as a charitable institution provided it with
immunity for its torts. The motion was sustained and judgment was entered for the
Defendant.

Issue. Should nongovernmental charitable institutions be provided with immunity for

actions resulting from their negligence and the negligence of their employees?

Held. No. Judgment reversed and cause remanded.

• The doctrine of immunity for charitable organizations arose from the

belief that it was better for the individual to suffer than for society to be
deprived of the benefits of the charity. But today charities are big business,
with most carrying insurance to pay for torts. To continue to allow
immunity is not only unjust to the injured, but tends to breed neglect and
irresponsibility.

• Under the implied waiver theory, a person who accepts the benefit of a
charity impliedly agrees not to assert any actions against the charity.
However, this theory cannot be applied equally to all persons, especially
considering that those admitted to a charitable hospital may be
unconscious or under the age of consent.

• Under the trust fund theory because a charitable institution's funds are
given and held for charitable purposes, they cannot be used to pay
judgments resulting from tort claims. However, this theory deals only with
the right to satisfaction of a judgment, therefore is not applicable to justify
immunity from suit.

Concurrence. Justice Donnelly's concurrence is omitted.

231 Abernathy v. Sisters of St. Mary's
Discussion. A substantial majority of states have now abolished the charitable immunity
doctrine.
232 Ayala v. Philadelphia Board of Public Education
Ayala v. Philadelphia Board of Public Education

Citation. 453 Pa. 584, 305 A.2d 877 (1973).

Brief Fact Summary. The Appellants, William Ayala and William Ayala Jr. (William
Jr.) (Appellants), brought suit to recover damages after William Jr.'s arm was injured in a
shredding machine during class. The Appellee, Philadelphia Board of Education
(Appellee), asserted governmental immunity, and the Superior Court affirmed the
defense.

Synopsis of Rule of Law. The defense of governmental immunity is no longer applicable

in Pennsylvania.

Facts. The Appellants brought suit to recover damages for injuries sustained by William
Jr. when his arm was caught in a shredding machine in the upholstery class of the Carrol
School in Philadelphia. As a result of the injuries, William Jr.'s arm was amputated. The
Appellee asserted the defense of governmental immunity. The Superior Court affirmed
the defense, finding for Appellee.

Issue. Should Pennsylvania continue to apply the doctrine of governmental immunity?

Held. No. Judgment reversed and remanded.

• The doctrine of governmental immunity has its historical roots in English

law. The theory of respondeat superior created problems with government
employees, as the courts routinely denied relief because the King, as
employer, could commit no torts. This rule is unjust as applied to modern
American law, applying the burden of damages on the single individual
who suffers the injury, rather than distributing the damages among the
entire community constituting the government.

• This Court also rejects the fear of excessive litigation as justification for
the doctrine, as there is little empirical evidence to support the fear.
Equally unpersuasive is the argument that governmental units lack the
funds from which claims can be paid, as the availability of public
insurance disavows such concerns. Additionally, allowing causes of action
against governmental units should increase the concern for the welfare of
those who might be injured by its actions.

Dissent. Chief Justice Jones's and Justice Eagen's and O'Brien's dissents are omitted.

Concurrence. Justice Manderino's concurrence is omitted.

Discussion. In jurisdictions where governmental immunity is still applicable, a number of

courts have held that the state's authorization of a municipal corporation to purchase
liability insurance serves as an implied waiver of immunity.
233 Riss v. New York
Riss v. New York

Citation. 22 N.Y.2d 579, 240 N.E.2d 860, 293 N.Y.S.2d 897 (N.Y.appell.1968).

Brief Fact Summary. The Plaintiff, Linda Riss (Plaintiff), was continuously harassed by
a jilted lover, who eventually paid someone to throw lye in Plaintiff's face, seriously
injuring her. Plaintiff asked for protection from the police on multiple occasions, but
received little or no help.

Synopsis of Rule of Law. Police authorities are not liable for failing to provide special
protection to individuals threatened with harm.

Facts. Plaintiff was continuously terrorized by an attorney, Burton Pugach (Pugach), who
was in love with her. Pugach repeatedly threatened to kill or maim plaintiff. Plaintiff
informed the police, but received little or no help. After Plaintiff became engaged to
another man, she received a phone call telling her it was her last chance. Plaintiff again
contacted police, but was again refused help. The next day a criminal hired by Pugach
threw lye in Plaintiff's face, blinding her in one eye and permanently scarring her face.
After the assault, Plaintiff received constant police protection for the next three and one
half years. Plaintiff sued the Defendant, New York (Defendant), as a municipality for
faailure to provide her with special protection due to her circumstances. A divided
Appellate Division dismissed the complaint.

Issue. Was the Appellate Division correct in determining that a municipality is not liable
for failure to provide special protection when an individual is threatened with physical
harm, and the individual does eventually suffer harm due to the lack of protection?

Held. Yes. Judgment affirmed.

• To allow Plaintiff's cause of action based on these facts would require

this court to create a new and general duty of protection in the law of tort.
This would have the effect of determining how limited police resources
should be allocated without predictable limits. If any tort liabilities are
imposed in this area, it should be the decision of the legislature.

Dissent. Judge Keating state that the city's argument is that since we owe a duty to
everybody, we owe it to no one. The justification for not allowing a cause of action in
this case is that it would expose the state and municipality to limitless liability. There is
no empirical support for this claim. Indirectly, courts review administrative practices in
almost every tort case against the State or a municipality and can do the same in the
present case.

Discussion. Unlike the present case, if police authorities undertake responsibilities to

specific individuals and expose them to risks without adequate protection, tort actions are
allowed.
234 DeLong v. Erie County
DeLong v. Erie County

Citation. 89 A.D.2d 376, 455 N.Y.S.2d 887 (1982).

Brief Fact Summary. Emilia DeLong (Ms. DeLong) called 911 and in response to her
report of an intruder was assured that help was on the way. Police were directed to an
incorrect address and Ms. DeLong was stabbed to death. After Ms. Delong's death, the
Respondents, Dennis S. DeLong, Individually and as Administrator of the Estate of
DeLong (Respondents), brought suit.

Synopsis of Rule of Law. When a municipality voluntarily assumes a duty and

negligently performs the duty, the municipality may be held liable if its conduct
somehow increased the risk to defendant.

Facts. Ms. DeLong called 911 and reported an intruder attempting to break into her
house. The person taking her call assured her that help was on the way, but incorrectly
recorded Ms. DeLong's address. Ms. DeLong was stabbed to death by the intruder.
Evidence suggested that her life may have been saved if police had not been misdirected.
Respondents brought suit against the Appellants, including Erie County (Appellants).

Issue. When a municipality assumes a duty to a particular person, is the municipality

liable if it fails to perform in a non-negligent manner?

Held. Yes. Judgment affirmed.

• In addition to incorrectly recording Ms. DeLong's address, the call taker

failed to follow several instructions. Including (i) not asking for the name
of the caller; (ii) not determining the exact location of the call; (iii) not
addressing the caller by name and (iv) not repeating the address.
Additionally, in violation of operating procedures, no follow up action was
taken when the report came back as no such address.

• The establishment of the emergency call system does not create a duty.
However, the holding out of the 911 number as one to be called by those
in need, Ms. DeLong's placing of the call in reliance on this and her
further reliance when she was assured that help was on the way, does
create a duty. The voluntary assumption of a duty to act in this case
creates an obligation to act with reasonable care.

• Respondents remind this Court that failing to provide police protection

does not result in liability unless the police conduct in some way increased
the risk. While this is true, circumstantial evidence suggests that Ms.
DeLong waited in her house for a response to the 911 call, rather than
taken other protective measures.

Discussion. In contrast to the facts in Riss v. City of New York, [22 N.Y.2d 579, 240
N.E.2d 860, 293 N.Y.S.2d 897 (N.Y.appell.1968)] in the present case Respondent
235 DeLong v. Erie County
voluntarily assumed a duty and its failure to act with reasonable care increased the risk to
Ms. Delong.
236 Deuser v. Vecera
Deuser v. Vecera

Citation. 139 F.3d 1190 (8th Cir.1998).

Brief Fact Summary. Albert Deuser (Mr. Deuser), found to be drunk and obnoxious at a
fair, was arrested and then released by National Park Rangers. After being released, Mr.
Deuser wandered into a street and was killed. The Appellants, Mr. Deuser's survivors
(Appellants), brought a claim against the Appellees, the United States and certain
individuals including David Vecera (Mr. Vecera)(Appellees), under the Federal Tort
Claims Act (FTCA).

Synopsis of Rule of Law. The discretionary function exception to the FTCA disallows
civil suit against the United States when the conduct complained of was based upon the
exercise of a discretionary function or duty.

Facts. National Park Rangers were working a fair held on the grounds of the Jefferson
National Expansion Memorial in St. Louis. Rangers Mr. Vecera and Edward Bridges
observed Mr. Deuser grabbing women on the buttocks. The rangers warned Mr. Deuser
and then arrested him when he urinated in public. The rangers attempted to turn Mr.
Deuser over to the St. Louis police, but they were unable to process Mr. Deuser's arrest
due to their workload. The rangers decided to release Mr. Deuser away from the fair in a
parking lot. Mr. Deuser was left without money or transportation. At some time he was
killed by a motorist after wandering onto an interstate highway. At the time of Ms.
Deuser's death, his blood alcohol content was 0.214. The Appellants brought this
wrongful death action against the Appellees under the FTCA based on the allegedly
negligent acts of the park rangers. The trial court judge dismissed the case.

Issue. Did the action of the park rangers fall under the discretionary function exception to
the FTCA, so as to disallow a civil suit against the United States?

Held. Yes. Judgment affirmed.

• In enacting the FTCA, Congress chose to waive the sovereign immunity

enjoyed by the United States and give consent to be sued for damages
caused by the negligent or wrongful act or omission of any employee of
the United States acting within the scope of their employment. However,
under the discretionary function exception, the government is shielded
from civil liability for claims based on the exercise of a discretionary
function whether or not the discretion involved is abused.

• The Court first considered if the actions taken by the rangers were
discretionary, or, a matter of choice. For their guidance, the rangers had a
written Standard Operating Procedure (SOP) for arrests and the VP Fair
Operations Handbook (Handbook). The Handbook made it clear that the
rangers had wide latitude in making enforcement decisions and that arrests
237 Deuser v. Vecera
would be made only on a last resort basis due to the limited manpower
available.

• Under the SOP, the process for arrests is precise and mandatory. When
the rangers first arrested Mr. Deuser, the SOP was followed. After that it
was not followed, but releasing Mr. Deuser terminated the arrest. The
court concluded that terminating an arrest is similar to the decision
involved in making an arrest. Due to the infinite number of possible
scenarios, decisions of this kind must be within the discretion and
judgment of officers.

• The Court then determined if the judgment involved in terminating Mr.

Deuser's arrest was of the kind the discretionary function exception was
designed to shield. Based on the Handbook and the SOP, the court held
that the officer's conduct was grounded in social, economic, and political
policies and is a classic example of permissible exercise of policy
judgment.

Discussion. Claims in tort against the Federal Government are a major source of
litigation today.
238

C
H
A
P
T
E
R

X
I
I
I
.

V
i
c
a
r
i
o
u
s
239 Bussard v. Minimed, Inc.
Bussard v. Minimed, Inc.

Citation. 129 Cal.Rptr.2d 675, 105 Cal. App. 4th 798

Brief Fact Summary. After being exposed to a pesticide, an employee of a company left
work early, complaining of dizziness and lightheadedness. On her way home, the
employee was involved in a car accident.

Synopsis of Rule of Law. The 'going-and-coming rule' refers to how courts have not
construed the scope of the respondeat superior doctrine to reach an employee's daily
commute.

Facts. The Defendant, Minimed, Inc. (the "Defendant"), hired a pest control company to
rid its facility of fleas. The pest control company came one night. The next morning, one
of the Defendant's employees, Irma Hernandez ("Ms. Hernandez"), felt ill and left work
early. Prior to leaving, Ms. Hernandez told one of her supervisors she felt ok to drive.
Nine other workers went home early that day after complaining they felt ill. On the way
home, Ms. Hernandez rear ended the Plaintiff, Barbara Bussard (the "Plaintiff"). When
the police arrived, Ms Hernandez complained she felt dizzy and lightheaded before the
accident. The Plaintiff brought suit against Ms. Hernandez, alleging negligent driving,
and against the Defendant, alleging vicarious liability pursuant to the respondeat superior
doctrine. As to the vicarious liability cause of action, the Plaintiff alleged that Ms.
Hernandez was acting within the scope of her employment when driving home with
pesticide exposure. The trial court granted the Defendant summary judgment according to
the "going-and-coming" rule.

Issue. Did the 'going-and-coming' rule apply to the facts in this case?

Held. No. "Under the doctrine of respondeat superior, an employer is ordinarily liable for
the injuries its employees cause others in the course of their work. Respondeat superior
imposes liability whether or not the employer was itself negligent, and whether or not the
employer had control of the employee. The doctrine's animating principle is that a
business should absorb the costs its undertakings impose on others." The respondeat
superior doctrine "requires that the employee be acting within the course of her
employment, which case law defines expansively." Accordingly, "acts necessary to the
comfort, convenience, health, and welfare of the employee while at work, though strictly
personal and not acts of service, do not take the employee outside the scope of
employment." Additionally, "where the employee is combining his own business with
that of his employer, or attending to both at substantially the same time, no nice inquiry
will be made as to which business he was actually engaged in at the time of injury, unless
it clearly appears that neither directly nor indirectly could he have been serving his
employer." ' An employer can be found liable for both its employees negligence and
willful and malicious torts.

• Courts have not construed the scope of the respondeat superior doctrine to
reach an employee's daily commute. This is referred to as the 'going-and-
240 Bussard v. Minimed, Inc.
coming rule'. This rule is not absolute and has various exceptions. One of
which applies when "an employee endangers others with a risk arising from or
related to work." The applicable standard to determine whether this rule
applies, is a foreseeability standard. "'[F]oreseeability' as a test for respondeat
superior merely means that in the context of the particular enterprise an
employee's conduct is not so unusual or startling that it would seem unfair to
include the loss resulting from it among other costs of the employer's
business."

• Based on these principles, the court observed that a car accident stemming
from the "breathing [of] lingering pesticide fumes for several hours" is
foreseeable. In other words, an employee may not be in a position to drive
after being exposed to such fumes. As such, the trial court's decision was
incorrect. Further, "[a]lthough [Ms.] Hernandez's decision to drive home gave
[the Defendant] an opening to raise the going-and-coming rule, the rule did
not apply because her decision was a fortuity that must not obscure [the
Plaintiff's] central claim that [Ms.] Hernandez's job had contributed to the
accident."

Discussion. This case illustrates how courts apply the 'going-and-coming rule' when an
employee is driving.
241 O'Shea v. Welch
O'Shea v. Welch

Citation. 350 F.3d 1101 (10th Cir. 2003)

Brief Fact Summary. A store's employee got into an accident while driving to a district
office to deliver football tickets.

Synopsis of Rule of Law. The factors courts examine when "determining whether an
employee has embarked on a slight or substantial deviation" include "(1) the employee's
intent; (2) the nature, time, and place of the deviation; (3) the time consumed in the
deviation; (4) the work for which the employee was hired; (5) the incidental acts
reasonably expected by the employer; and (6) the freedom allowed the employee in
performing his job responsibilities."

Facts. The Defendant, John Welch (the "Defendant"), managed an Osco store. The
Defendant was driving to the Osco District office to deliver football tickets obtained from
a vendor, for distribution to Osco managers. While driving to the District office, the
Defendant made a decision to pull over to a service station, and while turning into the
service station, he hit the Plaintiff, O'Shea (the "Plaintiff"). The Plaintiff sued the
Defendant for negligence and Osco for vicarious liability. The District Court found that
no jury could conclude that the Defendant was acting within the scope of his
employment.

Issue. Whether the Defendant's conduct evidences a slight or substantial deviation?

Held. According to "Kansas law, an employer is only liable for injuries caused by an
employee acting within the scope of his employment." The court relied upon a jury
instruction to illustrate Kansas's vicarious liability law. The instruction stated "An
employee is acting within the scope of [his employment] when [he] is performing
services for which [he] has been [employed], or when [he] is doing anything which is
reasonably incidental to [his employment]. The test is not necessarily whether this
specific conduct was expressly authorized or forbidden by the employer[ ], but whether
such conduct should have been fairly foreseen from the nature of the [employment] and
the duties relating to it." The Plaintiff argued that the court should adopt the "slight
deviation" rule which it had previously done in workers compensation matters. This
analysis requires the deciding authority to determine "whether the employee was on a
frolic or a detour; the latter is a deviation that is sufficiently related to the employment to
fall within its scope, while the former is the pursuit of the employee's personal business
as a substantial deviation from or an abandonment of the employment." Further, "If an
employee wholly abandons, even temporarily, the employer's business for personal
reasons, the act is not within the scope of employment, and the employer is not liable
under respondeat superior for the employee's conduct during that lapse. A diversion from
the strict performance of a task is not an abandonment of responsibility and service to an
employer, unless the very character of the diversion severs the employment relationship.
Acts that are necessary to the comfort, convenience, health, and welfare of the employee
242 O'Shea v. Welch
while at work are not outside the scope of employment, if the conduct is not a substantial
deviation from the duties of employment."

• The court adopted a "slight deviation analysis" for this class of cases and
determined that it was a jury question. Courts have identified several factors
to be examined when conducting a "slight or substantial deviation" analysis.
The factors include: "(1) the employee's intent; (2) the nature, time, and place
of the deviation; (3) the time consumed in the deviation; (4) the work for
which the employee was hired; (5) the incidental acts reasonably expected by
the employer; and (6) the freedom allowed the employee in performing his job
responsibilities."

• The court observed that the purpose for the Defendant's stop on the side of
the road was to "get an estimate for non-emergency maintenance on a car used
for business." The court concluded that "[w]hile his stop was not for
emergency maintenance for his car, his stop for routine maintenance on a car
used for business purposes could be considered enough of a mixed purpose by
a jury to keep him within the scope of his employment with Osco."
Additionally, the court observed "[i]n terms of time and place, the accident
occurred minutes and feet from the direct route to Osco's District Office."
Further, "[b]ecause the accident occurred on this road, not at the service
station, a jury could decide that Mr. Welch had not yet abandoned his
employment for a personal errand at the time of the accident." Moreover, "[a]
jury could find that an employee in a managerial position was given some
freedom to attend to certain personal needs throughout the day."

• The court held "that a reasonable jury could conclude that [the Defendant]
was acting within the scope of his employment when he attempted to turn into
the service station."

Discussion. This case illustrates how difficult it is to determine the scope of an

individual's employment.
243 Murrell v. Goertz
Murrell v. Goertz

Citation. 597 P.2d 1223 (Okla.Appell.1979).

Brief Fact Summary. The Appellant, Murrell (Appellant) and Bruce Goertz (Goertz)
had an altercation that resulted in Goertz striking Appellant. The Appellant sued Goertz
and the Appellee, his employer Oklahoma Publishing Company (Appellee), claiming that
Appellee was liable under respondeat superior. Appellee and Goertz claim that Goertz
was an independent contractor.

Synopsis of Rule of Law. Those who employ independent contractors are not liable
under the doctrine of respondeat superior.

Facts. Goertz made a monthly collection for the delivery of Appellee's newspaper at the
Appellant's home. Appellant questioned Goertz regarding damage done to his screen
caused by the carrier throwing the newspaper into it. An argument began and Appellant
slapped Goertz, who then struck the Appellant, injuring him. Appellant claimed that
Goertz was a servant of Appellee either by agreement between the co-defendants or by
Appellee creating that belief in Appellant. Both Appellee and Goertz denied that Goertz
was Appellee's servant.

Issue. Was Goertz an independent contractor rather than a servant, thus removing
Appellee from liability under respondeat superior?

Held. Yes. Judgment affirmed.

• An independent contractor performs a certain service for another

according to his own methods and manner, with no control from his
employer except as to the result of the services. The decisive test for
differentiating between an independent contractor and a servant is the right
to control the physical details of the work.

• Appellant cites several policies that Goertz had to abide by in support of

his argument that he was the servant of Appellee. Appellee points out that
Goertz had no contact with Appellee and Westbrook, an independent
newspaper distributor for Appellee, stated that Goertz was responsible
only to him.

• This court finds that Goertz was hired as an independent carrier salesman
by Westbrook, who was also an independent contractor. The policies of
Appellee do not rise to the level of supervision to make Goertz Appellee's
servant.

Discussion. Independent contractors do their work on their own time, under no one's
direction, but their own.
244 Maloney v. Rath
Maloney v. Rath

Citation. 69 Cal.2d 442, 445 P.2d 513, 71 Cal Rptr. 897 (1968).

Brief Fact Summary. The Defendant, Ramona M. Rath's (Defendant) collision with the
Plaintiff, Kathleen Maloney (Plaintiff) was caused by a mechanic's negligent effort to
repair her brakes. The trial court rendered judgment in favor of the Defendant and the
Plaintiff appealed, claiming that the brake repair was a nondelegable duty.

Synopsis of Rule of Law. Generally when an activity carries the risk of death or serious
bodily injury on cannot avoid liability for negligent maintenance by delegating the
maintenance to an independent contractor.

Facts. The Defendant collided with the car of the Plaintiff. The accident was caused by
brake failure. Three months earlier the Defendant had her brakes overhauled by Peter
Evanchik (Mr. Evanchik), a mechanic. The trial court determined that Mr. Evanchik's
negligent repair effort was the cause of the accident and rendered judgment if favor of
Defendant. Plaintiff appealed.

Issue. Can a Defendant car owner delegate the responsibility of making a brake repair to
an independent contractor?

Held. No. Judgment reversed and remanded.

• Under strict liability, nondelegable duties exist to assure that injured

parties will be compensated by the person who caused the harm and may
be held liable for the negligence of his agent, regardless of whether the
agent was an employee or independent contractor. The Restatement of
Torts § 423 and § 424 provide that individuals who employ independent
contractors to maintain instrumentalities that carry a risk of serious bodily
harm or death or who employ contractors to provide for safeguards that
the individual was under a statutory or regulatory duty to provide, are
subject to liability for the negligence of the contractor. These sections
suggest that a nondelegable duty is appropriate in this case.

• The responsibility for minimizing the risk in this case falls on the car
owner. The owner was primarily benefited by the use of the car. The
owner chooses the contractor and can insist on one that is financially
responsible so the owner can demand indemnity. The owner's liability
insurance properly distributes the costs.

Discussion. Another common duty that is generally considered nondelegable is a

hospital's duty to provide emergency room care.
245 Popejoy v. Steinle
Popejoy v. Steinle

Citation. 820 P.2d 545 (Wym.1991).

Brief Fact Summary. Connie Steinle (Ms. Steinle) and her daughter, while they were on
the way to buy a calf, were involved in a car wreck with Richard Popejoy (Mr. Popejoy).
Ms. Steinle was killed in the accident. The Plaintiffs, Mr. Popejoy and Doris Popejoy
(Plaintiffs) brought a suit against the Defendants, personal representatives of Ms.
Steinle's husband's estate (Defendants), under a joint venture theory.

Synopsis of Rule of Law. An interest in profit is necessary in order to impose vicarious

liability on a party based on a joint venture theory.

Facts. Ms. Steinle, accompanied by her daughter and niece, were traveling to Douglas,
Wyoming to buy a calf for the daughter to raise on their ranch. During the trip, the truck
Ms. Steinle was driving collided with a vehicle driven by Mr. Popejoy. Ms. Steinle was
killed in the accident and Mr. Popejoy suffered injuries diagnosed as a muscle strain.
Approximately fifteen months later, Mr. Popejoy underwent two neurosurgeries to fuse
cervical vertebrae in response to continued pain in his neck and back. Mr. Popejoy
unsuccessfully tried to reopen Ms. Steinle's estate, which had been probated and closed a
year earlier. Plaintiffs then filed a creditor's claim against the estate of Ms. Steinle's
husband, William Steinle (Mr. Steinle), whom had died in the interim. After this claim
was rejected, Plaintiffs filed a claim against the Defendants, claiming that Mr. and Mrs.
Steinle were engaged in a joint venture when Ms. Steinle embarked on her business trip
to pick up the daughter's calf.

Issue. Can the trip to pick up Ms. Steinle's daughter's calf be characterized as a joint
venture with her husband, so as to impose vicarious liability on the Defendant's
representatives?

Held. No. Judgment affirmed.

• The terms joint venture and joint enterprise may be used interchangeably
in situations such as the facts at hand. The burden of establishing the
existence of a joint venture is upon the party asserting that the relationship
exists. The Restatement of Torts [Restatement (Second) of Torts § 491
comment c at 548 (1965)] establishes four elements of a joint venture as:
"(1) an agreement, express or implied, among the members of the group;
(2) a common purpose to be carried out by the group; (3) a community or
pecuniary interest in that purpose, among the members; and (4) an equal
right to voice in the direction of the enterprise, which gives a right of
equal control."

• Based on this statement and previous case law, an element of business,

commercial or profit motive, is a requisite for a joint venture. Evidence in
support of the Defendant's motion for summary judgment suggests that
246 Popejoy v. Steinle
Mr. Steinle did not ordinarily have any ownership interest in the cattle that
his daughters and wife raised and owned. Also, that the sales proceeds
from other livestock raised by the Steinle daughters in the past went
directly to the children.

• This evidence satisfied the requirement of establishing the nonexistence

of any genuine issue of material fact as to whether Mr. and Mrs. Steinle
were engaged in a joint venture. The burden then shifts to the party
opposing summary judgment. Plaintiff submitted evidence from a certified
public accountant convinced that Mr. and Mrs. Steinle were engaged in a
joint venture. However, the judge believed that only a pecuniary interest
and not an interest in profit was needed to show the existence of a joint
venture.

• No testimony suggested that anyone, but the daughter, had any pecuniary
or financial interest in the calf the mother and daughter were on the way to
purchase the day of the accident. The record shows that this trip was a
family undertaking. This holding avoids the imposition of a commercial
concept upon relationships not having these characteristics.

Discussion. A joint enterprise or venture allows for vicarious liability to imposed on

parties to the venture based upon theories of agency.
247 Shuck v. Means
Shuck v. Means

Citation. 302 Minn. 93, 226 N.W.2d 285 (1974).

Brief Fact Summary. An automobile owned by Hertz, leased to George A. Codling

(Codling) and driven by David Lynn Means (Means) struck an automobile in which
Shuck was a passenger. Means was uninsured and the parties stipulated he had been
negligent.

Synopsis of Rule of Law. Under the Minnesota Safety Responsibility Act (the Act),
when an owner gives permission to another to drive his car, who in turn gives permission
to a third party, the owner will be liable for accidents caused by the third person.

Facts. An automobile owned by Hertz, leased to Codling and driven by Means, struck an
automobile in which the Shuck was a passenger. Means was uninsured and the parties
stipulated that he had been negligent.

Issue. Is a car rental agency liable under the Act when one of its cars is leased to one
person, but operated by another in violation of the rental agreement?

Held. Yes. Judgment affirmed.

• Under the Act [Minn.St.1965, § 170.54], an owner-consent statute was

enacted establishing liability in the owner of a vehicle for accidents caused
by another driving the vehicle with the owners' express or implied
consent. The purpose of the Act was to give injured persons more
assurance of recovery and to encourage owners to purchase appropriate
liability insurance.

• In Foster v. Bock, 229 Minn. 428, 39 N.W.2d 862 (1949), this Court held
that it would not read into the statute that the particular driver must be
known by and his driving consented to by the owner. Proving a lack of
consent when a permittee allows a subpermittee to drive requires a
showing either that the car was being used by a permittee without the
owner's knowledge and contrary to his explicit instructions, or that the
subpermittee was driving without the permission of the permittee under
conditions that approach conversion or theft. Neither of these situations is
apparent under the present facts.

Discussion. The need for owner-consent statutes has lessened because of "omnibus
clauses" in standard automobile liability insurance clauses, providing that the insurance
applies to anyone using the automobile with the permission of the owner.
248 Smalich v. Westfall
Smalich v. Westfall

Citation. 440 Pa. 409, 269 A.2d 476 (1970).

Brief Fact Summary. A car driven by the Defendant, Felix Rush Westfall (Defendant),
was involved in an accident. The owner of and a passenger in the vehicle driven by
Defendant was killed in the accident. The Plaintiffs, Marco Smalich, Executor of the
Estate of Julia Smalich (Plaintiff), the deceased and other family members brought suit.
The trial court determined that recovery could not be allowed because the contributory
negligence of the Defendant must be imputed to the owner.

Synopsis of Rule of Law. This Court determines that contributory negligence will not be
imputed to the owner-passenger of a car, when the owner-passenger is the plaintiff.

Facts. A vehicle, owned by Julia Smalich and operated by the Defendant collided with
another vehicle driven by Stephanna Louis Blank (Blank). Julia Smalich died as a result
of the accident. The Plaintiffs brought suit against both the Defendant and Blank. The
trial jury found that Defendant's negligent operation of the automobile was a proximate
cause of the accident. The court en banc ruled that the contributory negligence of the
Defendant must be imputed to the owner of the vehicle, Julia Smalich as a matter of law
and that this precluded recovery.

Issue. Should a driver's negligence be imputed to a passenger, so as to bar the passenger

from recovery?

Held. No. Judgment vacated and record remanded.

• Only a master-servant or joint enterprise relationship should justify the

imputation of contributory negligence on a car passenger. In the ordinary
situation, it is clear that the passenger has no control over the physical acts
of the driver. It seems more reasonable to assume that a mutual
understanding exists between an owner-passenger and driver that driver
will use ordinary care and skill in driving, while remaining subject to the
commands of the owner-passenger in regard to things such as destination.

Concurrence. Justice Roberts said I am pleased that the Court partially repudiated the
imputed contributory negligence doctrine. However, courts have often failed to discern
the difference between imputing negligence when the owner-passenger is the defendant
and using it to impute contributory negligence when the owner-passenger is the plaintiff.
There is no justification for imputing contributory negligence in the second scenario.

Discussion. The discussion in the opinion refers to the so called "both-ways test",
whereby courts found that if negligence can be imputed, contributory negligence will also
be imputed. This test has been under a slow, but steady attack.
249

C
H
A
P
T
E
R

X
I
V
.

S
t
r
i
c
t
250 Rylands v. Fletcher
Rylands v. Fletcher

Citation. In the Exchequer Chamber, L.R. 1 Ex. 265, (1886).

Brief Fact Summary. Defendants constructed a reservoir to supply their mill. The
reservoir flooded a mine worked by plaintiff, through no fault of defendant.

Synopsis of Rule of Law. When a non-natural use of land is made, the defendant is
absolutely responsible for damages occurring to others due to the non-natural use.

Facts. Defendants were the owners of a mill. They constructed a reservoir on the land of
Lord Wilton nearby. Plaintiff was under lease from Lord Wilton to work coal mines on
land close to, but not adjoining the reservoir. The defendants employed a competent
engineer and contractors to plan and construct the reservoir. Old mine workings laid
beneath the reservoir, but defendants were under no personal fault in its construction.
Within a few days of final construction, one of the old mine shafts gave way and burst
downward, letting water into the plaintiff's mine.

Issue. Does the defendant owe an absolute duty to plaintiff for injuries that occur from
the non-natural use of defendant's land?

Held. Yes. Judgment affirmed.

• Justice Blackburn stated the plaintiff, though free from all blame, must
bear the loss in this case unless he can establish it was somehow the fault
of defendants. When a person brings something on his land that is
harmless as long as it remains there, but will naturally do mischief if it
escapes, he is liable for all natural consequences if it does escape. This is
true unless he can show the escape was plaintiff's fault, or perhaps the
consequence of vis major or an act of God.

• Lord Chancellor Cairns stated that if there had been a natural

accumulation of water on the defendant's land that escaped and did
mischief, plaintiff could not complain. Rather, it would be plaintiff's duty
to stop the flow of water from defendant's to plaintiff's land if he needed to
do so. However, when the use is a non-natural one, as in the present case,
the defendants act at their own peril and are absolutely responsible for the
result of their actions.

Concurrence. Lord Cranworth's concurrence is omitted.

Discussion. The non-natural use of land determination looks not only to the activity in
question, but also to the place and manner where it is maintained.
251 Miller v. Civil Constructors, Inc.
Miller v. Civil Constructors, Inc.

Citation. 272 Ill. App. 3d 263, 651 N.E.2d 239 (Ill. App. 2 Dist. 1995)

Brief Fact Summary. An individual was injured after being struck by a bullet near a
firing range.

Synopsis of Rule of Law. The factors courts examine when analyzing whether an
activity is ultrahazardous include: the "(a) existence of a high degree of risk of some
harm to the person, land or chattels of others; (b) likelihood that the harm that results
from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage; (e) inappropriateness of
the activity to the place where it is carried on; and (f) extent to which its value to the
community is outweighed by its dangerous attributes."

Facts. The Plaintiff, Gerald Miller (the "Plaintiff"), was shot during firearm practice by a
stray bullet. The Plaintiff alleged that the Defendants, Civil Constructors, Inc. (the
"Defendants"), "were strictly liable for injuries to plaintiff arising from purportedly
'ultrahazardous' activity for which defendants were legally responsible either because of
their control of the premises or their discharge of firearms."

Issue. "[W]hether the use of firearms ought to be classified as an ultrahazardous

activity"?

Held. The court observed, "[o]ur review of the authorities thus discloses that the
discharge of firearms resulting in injury ordinarily presents a question of negligence and
that the standard of care is ordinary care--one which may be equated to a high degree of
care because of the particular circumstances presented." The court then expressly
"adopt[ed] the use of the Restatement principles and factors as an aid in deciding this
type of question." Section 519 of the Restatement read "[o]ne who carries on an
abnormally dangerous activity is subject to liability for harm to the person, land or
chattels of another resulting from the activity, although he has exercised the utmost care
to prevent the harm." Section 520 of the Restatement lists several factors, which must be
considered in determining whether an activity is ultrahazardous. Those factors include the
"(a) existence of a high degree of risk of some harm to the person, land or chattels of
others; (b) likelihood that the harm that results from it will be great; (c) inability to
eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not
a matter of common usage; (e) inappropriateness of the activity to the place where it is
carried on; and (f) extent to which its value to the community is outweighed by its
dangerous attributes." All the factors do not have to be present for an activity to be
deemed ultrahazardous, but more than one must be. "The essential question is whether
the risk created is so unusual, either because of its magnitude or because of the
circumstances surrounding it, as to justify the imposition of strict liability even though
the activity is carried on with all reasonable care." Public policy considerations must also
be considered.
252 Miller v. Civil Constructors, Inc.
• The court observed "[t]he use of guns or firearms, even though frequently
classified as dangerous or even highly dangerous, is not the type of activity
that must be deemed ultrahazardous when the above-stated criteria are taken
into consideration." The court then stressed four reasons for this conclusion.
First, "the risk of harm to persons or property, even though great, can be
virtually eliminated by the exercise of reasonable or even 'utmost' care under
the circumstances". Second, "the use of firearms is a matter of common usage
and the harm posed comes from their misuse rather than from their inherent
nature alone." Third "the activity in this case was carried on at a firing range
in a quarry located somewhere near the City of Freeport." Fourth and finally,
"the target practice is of some social utility to the community; this weighs
against declaring it ultrahazardous where the activity was alleged to have been
performed by law enforcement officers apparently to improve their skills in
the handling of weapons."

Discussion. If an activity is deemed ultrahazardous, strict liability is imposed and the

elements of negligence need not be proven.
253 Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.
Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.

Citation. 916 F.2d 1174 (7th Cir. 1990).

Brief Fact Summary. The Defendant, American Cyanamid Co. (Defendant)

manufactured a dangerous chemical, which was spilled during transportation. The
Plaintiff, Indiana Harbor Belt R.R. Co. (Plaintiff) sued the Defendant, claiming that the
transportation of the chemical was an abnormally dangerous activity.

Synopsis of Rule of Law. The determination of whether an activity is abnormally

dangerous depends on the application of several factors, including if accidents cannot be
prevented by the exercise of ordinary due care.

Facts. Defendant was a major manufacturer of chemicals, including acrylonitrile.

Acrylonitrile is flammable at temperatures above 30 degrees Fahrenheit, is highly toxic,
and possibly carcinogenic. Defendant leased railroad cars to transport acrylonitrile to
purchasers. When one of these cars arrived at the Blue Island yard just south of Chicago,
it was noticed that acrylonitrile was gushing out of a bottom outlet on the car. Although
only about of a quarter of the acrylonitrile escaped, the Illinois Department of
Environmental Protection ordered the Plaintiff switching line to take decontamination
measures costing $981,022.75. One count of the complaint asserted that the
transportation of acrylonitrile in bulk through the Chicago metropolitan area is an
abnormally dangerous activity. The trial court found that strict liability applied and
granting summary judgment in favor of Plaintiff on that count.

Issue. Is the shipper of a hazardous chemical by rail strictly liable for the consequences
of a spill or other accident to the shipment?

Held. No. Judgment reversed and remanded.

• The question addressed here is a question of law, so no special deference

is granted to the trial court conclusion. Under the Restatement
[Restatement (Second) of Torts § 520 (1977)] six factors are considered in
deciding if an activity is abnormally dangerous: (1) is the probability of
the harm great; (2) is the harm that would ensue if the risk materializes
great; (3) can such accidents not be prevented by the exercise of due care;
(4) is the activity not a matter of common usage; (5) was the activity
inappropriate to the location where it took place; (6) is the value of the
activity to the community high.

• According to the evidence, acrylonitrile is the fifty-third most hazardous

chemical transported in high volume on the nation's railroads. Therefore,
the trial court's opinion would effectively dictate strict liability for all
fifty-two materials that rank higher.
254 Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.
• Additionally, this Court has been given no reason for believing that a
negligence standard is not adequate to remedy accidental spillage. In this
case, it seems clear that the leak was caused by carelessness. Plaintiff also
makes much of the fact that the spill occurred in a densely inhabited area.
However, the hubs of the railroad network are generally located in
metropolitan areas. Even if rerouting were feasible, it would be more
appropriate to place such a burden on the carriers rather than the shippers.

• Unlike storage cases dealing with abnormally dangerous activities, in

this case it is the manufacturers, rather than the actors, who are sought to
be held strictly liable. Abnormally dangerous activities are a property of
activities rather than substances in the contemplation of the law.

Discussion. Courts have ruled numerous activities abnormally dangerous in various

cases, including: pile driving, crop dusting, rocket testing, fireworks displays, hazardous
waste disposal, and oil wells.
255 Foster v. Preston Mill Co.
Foster v. Preston Mill Co.

Citation. 44 Wash.2d 440, 268 P.2d 645 (1954).

Brief Fact Summary. Vibrations from the Defendant, Preston Mill Co's (Defendant),
blasting operations caused the Plaintiff, B.W. Foster's (Plaintiff) mother mink to kill her
kittens. Plaintiff brought an action against Defendant claiming absolute liability.

Synopsis of Rule of Law. When strict liability is applicable, it will be confined to the
consequences, which lie within the extraordinary risk created by the abnormally
dangerous activity.

Facts. The Defendant conducted blasting operations that frightened a mother mink
owned by the Plaintiff and caused the mink to kill her kittens. Plaintiff brought an action
against Defendant claiming that Defendant was absolutely liable. The trial court found
for Plaintiff on the theory that once Defendant received notice of the effect its blasting
operations were having on the mink, it was absolutely liable for all damages thereafter
sustained.

Issue. Is Defendant liable for the death of the kittens under a theory of absolute liability?

Held. No. Judgment reversed.

• Strict liability is often imposed in blasting cases. However, the strict

liability should be confined to consequences lying within the extraordinary
risk of the abnormally dangerous activity. The extraordinary risk in this
case is not a risk that vibrations from the blast will cause wild animals to
kill their young. In fact, it was found by the trial court that Defendant's
blasting was not a nuisance to anyone except for Plaintiff's mink ranch.
Therefore, the exceedingly nervous disposition of the mink must be the
responsibility of the loss sustained.

Discussion. Although blasting is generally considered an abnormally dangerous activity,

courts generally will not apply strict liability to hypersensitive reactions to these
activities.
256 Golden v. Amory
Golden v. Amory

Citation. 329 Mass. 484, 109 N.E.2d 131 (1952).

Brief Fact Summary. The Plaintiffs, Golden and others (Plaintiffs), claim that
Defendant, Amory's (Defendants), negligence in maintaining a dike caused them real
estate damage after a hurricane resulted in a flood.

Synopsis of Rule of Law. Plaintiffs are not responsible under strict liability theories
when the damage caused was an unanticipated act of God.

Facts. The Defendants owned a hydroelectric plant. A hurricane caused the river on
which the plant was located to overflow and damage the real estate of the several
Plaintiffs. Plaintiffs brought suit claiming that negligence in the maintenance of the
Alden Street dike on the part of Defendants resulted in the damage to plaintiff's real
estate.

Issue. Are Defendants liable for maintaining a non-natural land use and the resulting
damage that occurred from this use?

Held. No. Exceptions overruled.

• Plaintiffs rely on the rule stated in Rylands v. Fletcher, In the Exchequer

Chamber, L.R. 1 Ex. 265, (1886), stating that a person is prima facie liable
for the escape of things that he collects on his lands. However, Rylands
clearly states that the rule does not apply to injury resulting from the act of
God. The hurricane and resulting flood in this case was clearly an act of
God.

Discussion. Because Plaintiffs were unable to anticipate the damages, it would be against
policy to hold them liable even under strict liability because nothing could have further
prevented the damages.
257 Sandy v. Bushey
Sandy v. Bushey

Citation. 124 Me. 320, 128 A. 513 (1925).

Brief Fact Summary. The Plaintiff, Sandy (Plaintiff), was injured when he was kicked
by the Defendant, Bushey's (Defendant), horse. Defendant knew that the horse had
vicious propensities.

Synopsis of Rule of Law. Contributory negligence is not a bar to recovery for an action
in strict liability.

Facts. The Plaintiff turned his mare and colt out in the pasture of a neighbor, which was
occupied by other horses, including the Defendant's three-year old colt. Plaintiff went to
the pasture to grain his mare and was kicked by defendant's horse, seriously injuring him.
Plaintiff brought this action to recover damages.

Issue. Is Defendant liable for Plaintiff's injuries even if Plaintiff displayed contributory
negligence?

Held. Yes. Motion overruled.

• Under the common law, the owners of domestic animals are not
responsible for injury done by them in a place they have a right to be
unless the owner knew of the animal had a vicious disposition. However,
if plaintiff proves the keeping of an animal, the animal's vicious
propensities and scienter on the part of the owner, the owner is strictly
liable for injuries that occur.

• The evidence in this case suggests that Defendant's horse had exhibited a
vicious and ugly disposition and that Defendant was on notice of this
disposition. The Defendant in response claims that Plaintiff cannot recover
because he is guilty of contributory negligence.

• In this state, contributory negligence is not a defense to an action for

strict liability. Because negligence is unnecessary to find liability,
something more than slight negligence or want of due care on the part of
the injured party is required to bar recovery. The facts must establish that
the injury was caused by the injured party unnecessarily and voluntarily
placing himself in the way of harm knowing the probable consequences of
his act, rather than by the keeping of the vicious animal. The facts in this
case do not allow for such a conclusion.

Discussion. Statutory sanction of a defendant's conduct often is held to confer immunity

from strict liability, such as in the case of injuries caused by dangerous animals at a zoo.
258

C
H
A
P
T
E
R

X
V
.

P
r
o
d
u
c
t
s
259 MacPherson v. Buick Motor Co.
MacPherson v. Buick Motor Co.

Citation. 217 N.Y. 382, 111 N.E. 150 (N.Y.App.1916).

Brief Fact Summary. The Plaintiff, Donald MacPherson (Plaintiff), bought a car from a
retail dealer and was injured when a defective wheel collapsed. The Plaintiff sued the
Defendant, Buick Motor Co. (Defendant), the original manufacturer of the car, on an
action for negligence. Defendant had purchased the faulty wheel from another
manufacturer and Defendant failed to inspect the wheel.

Synopsis of Rule of Law. If a product is reasonably expected to be dangerous if

negligently made and the product is known to be used by those other than the original
purchaser in the normal course of business, a duty of care exists.

Facts. Plaintiff brought a negligence suit against the Defendant for injuries sustained
after he was thrown from his car when the wheel collapsed. Defendant had sold the
automobile to a retail dealer, who in turn sold it to Plaintiff. The wheel, which was sold to
Defendant by another manufacturer, was made of defective wood. Evidence suggested
that the defect could have been discovered through reasonable inspection, but no
inspection occurred.

Issue. Does Defendant owe a duty of care to anyone besides the immediate purchaser
(retailer)?

Held. Yes. Judgment affirmed.

• One line of cases has suggested that manufacturers owe a duty of care to
ultimate purchasers only when the product is inherently dangerous. Other
cases have suggested a duty of care to foreseeable users if the product is
likely to cause injury if negligently made.

• In order for a duty of care to arise in relation to ultimate purchasers, two

criteria must be satisfied. First, the nature of the product must be such that
it is likely to place life and limb in danger if negligently made. This
knowledge of danger must be probable, not merely possible. Second, there
must be knowledge that in the usual course of events the danger will be
shared by people other than the buyer. This may be inferred from the
nature of the transaction and the proximity or remoteness of the relation.

• In the present case, the manufacturer of a finished product placed this

product on the market to be used without inspection by its customers. If
the manufacturer was negligent and the danger could be foreseen, a
liability will follow.

Discussion. This case was an early basis for the establishment of products liability.
260 Baxter v. Ford Motor Co.
Baxter v. Ford Motor Co.

Citation. 168 Wash. 456, 12 P.2d 409 (1932).

Brief Fact Summary. The Appellant, Baxter's (Appellant), eye was injured when the
windshield of his car shattered. Appellant claimed that the trial court improperly
excluded evidence in printed materials produced by the Respondent, Ford Motor
Company (Respondent), claiming that the windshield was shatterproof.

Synopsis of Rule of Law. Representations set forth by a manufacturer whose falsehood

cannot be readily detected by a buyer may be relied on by the buyer regardless of an
absence of privity of contract.

Facts. The Appellant purchased a model A Ford form St. John Motors, a Ford dealer,
who had purchased the automobile from the Respondent. Appellant claims that
representations were made to him by both the dealer and the manufacturer that the
windshield of the automobile was made of glass that would not shatter. Respondent's
windshield was struck by a pebble, causing small pieces of glass to fly into his eye,
resulting in the loss of his left eye and injuries to the sight of his right eye. The court took
the case from the jury and entered judgment in favor of the dealer and the Defendant.

Issue. Did the trial court correctly refuse to admit evidence against Respondent of
catalogues and printed materials regarding the quality of glass used in the windshield of
Appellant's car?

Held. No. Judgment reversed.

• Appellant was provided with materials created by Respondent that

claimed the windshield was made of shatter-proof glass. Respondent
claims there can be no implied or express warranty derived from these
materials because there is no privity of contract between Respondent and
Appellant.

• This case is similar to cases where plaintiffs have prevailed in suits for
being supplied with wrongly labeled drugs. In both cases, the injured party
would be unable to discover the inherent problem with the product. The
advent of radio and other marketing materials have rendered the rule of
caveat emptor unfair in many instances. To permit a manufacturer to
create demand for its product by representing they possess qualities that
they in fact do not, while barring recovery due to a lack of privity is
unjust. The court held that the printed matters were improperly excluded
and that Appellant had a right to rely upon these representations even
without privity of contract between Appellant and Respondent.
261 Baxter v. Ford Motor Co.
Discussion. The advent of modern advertising methods have made the traditional rule of
caveat emptor (let the buyer beware) unjust because of the unequal position of
manufacturers and buyers.
262 Henningsen v. Bloomfield Motors, Inc.
Henningsen v. Bloomfield Motors, Inc.

Citation. 32 N.J. 358, 161 A.2d 69 (1960).

Brief Fact Summary. The Plaintiff, Henningsen (Plaintiff), was injured when the
steering gear in her car failed. Plaintiff brought suit claiming negligence, but the case was
dismissed by the trial court due to a disclaimer contained in the sales contract for the car.

Synopsis of Rule of Law. Manufacturers cannot unjustly disclaim the implied warranty
of merchantability when such disclaimers are clearly not the result of just bargaining.

Facts. Plaintiff was injured when the steering gear in her car failed, causing the car to
turn sharply into a wall. The automobile had been manufactured by Chrysler Corporation
and sold by it to the Defendant, a retail dealer, Bloomfield Motors (Defendant). Plaintiff's
husband Mr. Henningsen purchased the car for Plaintiff. When he purchased the car, Mr.
Henningsen signed a contract containing 8 ½ inches of fine print on its back. This fine
print included a warranty clause, providing that neither manufacturer nor dealer gave any
warranties, express or implied, except for replacement of defective parts for a short
period. Negligence claims were dismissed by the trial court against both the manufacturer
and the dealer.

Issue. Can a manufacturer effectively disclaim an implied warranty of merchantability on

cars it places into commerce?

Held. No. Judgment reversed and remanded.

• An implied warranty of merchantability means that a thing sold is

reasonably fit for the general purpose for which it was manufactured and
sold. The codification of the Uniform Sales Act supports the use of
implied warranties as an operation of law. When such a warranty is
breached, strict liability is imposed and recovery does not depend on proof
of negligence or knowledge of a defect.

• Societal interests have eliminated the requirement of privity of contract

between a manufacturer and the ultimate consumer when products are
inherently dangerous to life and limb. Thus, the burden of losses is upon
those who are in a position to either control the danger or allocate the
losses when they occur.

• Contract law has long held that an individual who fails to read a contract
before signing it cannot relieve himself of the contract's burdens.
However, today standardized mass contracts have appeared. In the car
industry, all manufacturers have begun to produce disclaimers for their
cars, effectively eliminating any bargaining power for consumers who
wish to purchase such products. Such control and limitations are
detrimental to the public welfare and shall not be allowed. Therefore, the
263 Henningsen v. Bloomfield Motors, Inc.
Court adjudicated Chrysler's attempted disclaimer of an implied warranty
of merchantability to be invalid.

Discussion. Many codes and statutes protect consumers from unjust disclaimers today,
including the Uniform Commercial Code, the Magnuson-Moss Act and the Consumer
Product Safety Act.
264 Greenman v. Yuba Power Products, Inc.
Greenman v. Yuba Power Products, Inc.

Citation. 59 Cal.2d 57, 377 P.2d 897, 27 Cal.Rptr. 697 (1963).

Brief Fact Summary. The Plaintiff, William Greenman (Plaintiff), was injured when his
Shopsmith combination power tool threw a piece of wood, striking him in the head.
Plaintiff sued and the Defendant, Yuba Power Products, Inc. (Defendant) the
manufacturer, defended claiming that Plaintiff's breach of warranty claim was barred due
to his failure to give timely notice.

Synopsis of Rule of Law. Individuals injured by products with design or manufacturing

defects may bring suit under strict liability regardless of a failure to give timely notice to
the manufacturer for a breach of warranty.

Facts. The Plaintiff saw a Shopsmith combination power tool demonstrated by a retailer
and he studied a brochure prepared by the manufacturer. His wife bought him a
Shopsmith, and Plaintiff bought necessary attachments to use the Shopsmith as a lathe.
After working with the lathe several times without difficulty, it suddenly threw the piece
of wood he was working with out of the machine, striking him in the head inflicting
serious injuries. Approximately ten and one-half months later, Plaintiff gave the retailer
and the manufacturer written notice of claimed breaches of warranties and filed a
complaint alleging said breaches and negligence.

Issue. Is Plaintiff's action based on representations contained in the brochure barred

against the manufacturer due to a failure to give timely notice?

Held. No. Judgment affirmed.

• Plaintiff introduced substantial evidence from which to conclude that his

injuries were the result of defective design and construction of the
Shopsmith. However, the Defendant contends that Plaintiff did not give it
notice of a breach of warranty within a reasonable time. The Civil Code
provides that failure of the buyer to give the seller notice of a breach of
warranty within a reasonable time precludes liability [Civ.Code § 1769].
However, this notice requirement is inappropriate for this Court to adopt
in an action by injured consumers against manufacturers with whom they
have not dealt. Because the injured party is generally unaware of the
business practice justifying the rule, it would simply be an unfair "booby-
trap" for the unwary.

• Even if Plaintiff's claim for breach of warranty were barred, the

imposition of strict liability is appropriate in this case. From the evidence,
it can be shown (i) that the manufacturer placed a product on the market;
(ii) knowing that it is to be used without inspection for defects; (iii) that
proved to have a defect and (iv) that caused an injury. To establish
liability, it is sufficient that Plaintiff was injured while using the
265 Greenman v. Yuba Power Products, Inc.
Shopsmith in a way it was intended to be used, as a result of a defect in
design and manufacture.

Discussion. The Court in this case finds that an apparently applicable statute will not bar
recovery. Many of the products liability decisions tend to insure the protection of the
consumer over that of manufacturers.
266 Rix v. General Motors Corp.
Rix v. General Motors Corp.

Citation. 723 P.2d 195 (Mont. 1986).

Brief Fact Summary. Plaintiff was injured when the truck he was driving was rear-
ended by a 1978 GMC two-ton chasis-cab. Plaintiff brought suit against General Motors
Corp. (Defendant) on a theory of strict liability, as the manufacturer of the truck.

Synopsis of Rule of Law. A manufacturer cannot be held strictly liable for the danger
caused by one of its products, if it does not cause the defect in the product.

Facts. Plaintiff was injured when his pickup was hit from behind by a chasis-cab that had
been equipped with a water tank, after sale, by the Defendant dealership. Plaintiff brought
suit against Defendant under a theory of strict liability, and products liability, maintaining
that the product, which had been placed into the stream of commerce, was unreasonably
dangerous because of both manufacturing and design defects. At the trial in this matter,
the jury reached a verdict for Defendant, and Plaintiff appealed.

Issue. Whether strict liability is a proper manufacturing defect theory?

Held. Reversed and remanded.

• While this case was reversed and remanded, the court held, in line with
the jury instructions, that a manufacturer could not be held to strict
liability for manufacturing defect, when the product was not defective
when it left the manufacturer's assembly line. In this case, the truck was
not altered by the manufacturer, but by the dealer after sale. Thus, the
manufacturer could not be held strictly liable for a defect that was not
caused at its hands.

Discussion. This case goes into the theory of strict liability, in the context of products
liability.

• As a rule, when a manufacturer sends a product into commerce, he will

be held liable for any harm caused to the ultimate user or consumer.

• This rule does not apply, if the product is altered after it leaves the care
of the manufacturer, and it is fundamentally unfair to hold a manufacturer
liable on those grounds.
267 Prentis v. Yale Mfg. Co.
Prentis v. Yale Mfg. Co.

Citation. 421 Mich. 670, 365 N.W.2d 176 (1984).

Brief Fact Summary. The Plaintiff, Prentis (Plaintiff), was injured when the forklift he
was operating experienced a power surge, causing Plaintiff to fall to the ground. Plaintiff
sued the Defendant, Yale Mfg. Co. (Defendant), claiming a defect in design because the
forklift did not provide a seat or platform for the operator.

Synopsis of Rule of Law. In an action against the manufacturer of a product based upon
an alleged design defect, breach of implied warranty and negligence require proof of the
same elements and use of identical evidence.

Facts. Plaintiff was operating a forklift manufactured by the Defendant. The forklift was
a stand-up type, rather than a traditional sit down model. The forklift was equipped with a
"dead-man" switch, intended to prevent it from moving if the operator let go of the
controls. Plaintiff testified that he was aware that the battery was running low on the
forklift when the accident occurred. Plaintiff attempted to start the machine on an incline
and when the machine experienced a power surge it caused Defendant to fall to the
ground. The fall fractured Plaintiff's hip. Plaintiff brought suit, alleging a defect in design
of the forklift because it did not provide a seat or platform for the operator.

Issue. Did the trial court err by not instructing the jury on a breach of warranty theory in
addition to a negligent design theory?

Held. No. Judgment of the Court of Appeals is reversed and judgment of the trial court is
reinstated.

• Theories of products liability should never be confused with the

imposition of absolute liability. Regardless of whether a plaintiff is suing
on a theory of negligence or implied warranty, the plaintiff must prove
that something is wrong with the product itself that makes it dangerous.
Actions claiming defects in product design do not provide for a simple
test.

• Four approaches have been popularized in determining a defect in

product design cases. Negligent risk-utility analysis focuses on if the
manufacturer would be judged negligent if it had known of the dangerous
condition when the product was marketed. A second analysis compares
the risk and utility of the product at the time of trial. A third analysis
focuses on the consumer expectations for a product. The final analysis
combines the risk-utility and the consumer expectation analyses.

• The risk-utility balancing test is essentially a negligence standard,

analyzing if the manufacturer exposed the consumer to a greater risk than
he should have in choosing a particular design. This approach is supported
268 Prentis v. Yale Mfg. Co.
by the Model Uniform Product Liability Act (UPLA), published by the
Department of Commerce in 1979. This approach has much support for
design defects. First, design defects, unlike manufacturing defects, result
from documentable decisions by manufacturers that plaintiffs should be
able to learn of through discovery. Second, a negligence standard in these
cases encourages the design of safer products. Third, a verdict for the
plaintiff in a design defect case is essentially a ruling that the entire
product line is defective, depriving the public of the product. Finally, the
court believes that such a fault system provides for greater intrinsic
fairness.

• Because the standards for a breach of warranty claim and a design defect
claim are interchangeable, it would have only confused the jury to provide
an instruction on each, therefore, the trial court did not commit reversible
error by providing only a unified theory of negligent design.

Concurrence. Chief Justice Williams and Justices Brickley and Ryan concur. Justice
Cavanagh concurs in the result.

Discussion. The pure negligence, risk-utility standard adopted by the Court in this case is
applicable only to defective design cases and does not apply to defective manufacture
cases.
269 O'Brien v. Muskin Corp.
O'Brien v. Muskin Corp.

Citation. 94 N.J.169, 463 A.2d 298 (1983).

Brief Fact Summary. The Plaintiff, Gary O'Brien (Plaintiff), was injured when he dove
into an above ground pool designed and manufactured by the Defendant, Muskin Corp.
(Defendant). Plaintiff brought suit claiming that Defendant was strictly liable for the
defectively designed pool.

Synopsis of Rule of Law. Based on risk utility analysis, a defendant may be liable for a
design defect even if his product complied with the existing level of technological
advances at the time of design.

Facts. Plaintiff arrived uninvited at the home of Arthur and Jean Henry and dove into
their above ground pool made by Defendant. As Plaintiff's hands hit the vinyl lined pool
bottom, they slid apart and Plaintiff sustained injuries when his head hit the bottom. The
water in the pool was filled to a depth of approximately three and one-half feet and a
warning decal saying Do Not Dive appeared beneath the manufacturer's logo in letters
approximately one-half inch high. Plaintiff claimed that Defendant was strictly liable for
manufacturing and marketing a defectively designed pool, specifically because of the
slippery quality of the lining and inadequate warnings. The trial court limited the jury's
consideration to the adequacy of the warning.

Issue. Did the trial court err by not permitting the jury to determine if the risks of injury
associated with the pool so outweighed the utility of the product as to constitute a defect?

Held. Yes. Judgment reversed and remanded.

• At trial, Plaintiff produced a witness that testified that the wet vinyl used
in the pool was twice as slippery as the rubber latex used in in-ground
pools. The witness admitted that he knew of no above ground pool that
used any material for liner except for latex, but nonetheless contended that
vinyl should not be used even if no other material was available.
Defendant's witness testified that vinyl was the best material because it
allowed outstretched arms to glide, thus preventing the diver's head from
striking bottom.

• In contrast to manufacturing defects, the standard measure for design

defects is a comparison of the utility of the product with the risk of injury
that it poses to the public. Factors relevant to this decision include: (1) The
usefulness and desirability of the product; (2) The safety aspects of the
product; (3) The availability of a safer substitute product; (4) The ability
of the manufacturer to eliminate the unsafe character of the product; (5)
The user's ability to avoid danger; (6) The anticipated awareness of the
user of the inherent dangers of the product and their avoidability and (7)
The feasibility of the manufacturer spreading the loss.
270 O'Brien v. Muskin Corp.
• These factors also include the "state-of-the-art", or the scientific
knowledge available in the industry at the time the product was designed.
However, complying with the state-of-the-art does not provide an absolute
defense, as the burden is on the Defendant to prove that compliance with
this justifies placing a product on the market. Other considerations, such
as the relative need for the product, or if the product was an essential or a
luxury, might lead to the determination that the risk involved with the
product still outweighed its utility.

Dissent. Justice Schreiber's concurring and dissenting opinion omitted.

Concurrence. Justice Clifford concurring in the result.

Discussion. The majority of jurisdictions today use some form of risk utility analysis in
design defect cases.
271 Anderson v. Owens-Corning Fiberglass Corp.
Anderson v. Owens-Corning Fiberglass Corp.

Citation. 53 Cal.3d 987, 810 P.2d 549, 281 Cal.Rptr. 528 (1991).

Brief Fact Summary. The Plaintiff, Anderson (Plaintiff), was allegedly injured from
exposure to asbestos materials manufactured by the Defendant, Owens-Corning
Fiberglass Corp. (Defendant). Defendant answered by claiming it did not warn of
potential dangers because there was no scientific knowledge at the time of manufacture
that the product was potentially dangerous.

Synopsis of Rule of Law. Knowledge or knowability is a component of strict liability for

failure to warn.

Facts. The Plaintiff worked as an electrician at the Long Beach Naval Shipyard for 35
years. During this work, Plaintiff allegedly was exposed to asbestos while working near
others who were removing and installing insulation products aboard ships. Plaintiff filed
suit against Defendant alleging that Plaintiff's exposure to Defendant's asbestos products
resulted in his asbestosis and other lung ailments.

Issue. Is a Defendant in a products liability action based on a failure to warn of a risk of

harm allowed to present state of the art evidence that the Defendant had no knowledge of
the harm that could occur?

Held. Yes. Judgment of the Court of Appeals is affirmed.

• Defendant contends that if knowledge is irrelevant in a failure to warn

case, then a manufacturer's liability is absolute. Plaintiff claims that
imposing a knowledge requirement effectively adds a negligence standard
to a strict liability case.

• The strict liability doctrine has incorporated several other well-settled

rules from negligence law. A manufacturer defendant cannot effectively
warn against something that is unknowable. Differences are still apparent
between the strict liability standard applied in failure to warn cases and a
negligence standard. Specifically, the reasonableness of a defendant's
failure to warn is immaterial.

Dissent. Omitted.

Concurrence. Omitted.

Discussion. The majority in this case found that a manufacturer must provide warnings if
it is or should be aware of potential dangers, but to impose liability for failure to warn
when the manufacturer had no way of knowing of the potential danger is unjust.
272 Friedman v. General Motors Corp.
Friedman v. General Motors Corp.

Citation. 43 Ohio St.2d 209, 72 Ohio Ops.2d 119, 331 N.E.2d 702 (1975).

Brief Fact Summary. The Plaintiffs, Morton Friedman (Mr. Friedman) and his family
(Plaintiffs), were injured when their car, manufactured by the Defendant, General Motors
Corp. (Defendant), started with the transmission in the drive position and lurched
forward, causing an accident. Defendant claimed that Plaintiffs failed to introduce
sufficient evidence to overcome a motion for summary judgment.

Synopsis of Rule of Law. Plaintiffs may prove a manufacturing defect through the use of
circumstantial evidence, so long as a preponderance of the evidence establishes that the
accident was caused by the defect rather than other possibilities.

Facts. Mr. Friedman alleged that he turned the ignition on his seventeen month old
Oldsmobile while it was in drive, not expecting it to start. The car did start and leaped
forward, and Mr. Friedman was unable to control the car before it crashed. Mr. Friedman
and three members of his family were injured in the crash. Plaintiffs brought a claim
against the Defendant and the trial court granted Defendant's motion for summary
judgment, finding that Plaintiffs had not proved the car was defective. The appellate court
reversed the trial court's decision and Defendant appealed.

Issue. Did the Plaintiffs' introduce evidence of a sufficient quality to overcome

Defendant's motion for a directed verdict?

Held. Yes. Judgment of the Court of Appeals is affirmed.

• In Defendant's motion for summary judgment the court must construe the
evidence in favor of the Plaintiffs. For Plaintiff to prevail, they must prove
that the car manufactured by Defendant was defective, that the defect
existed when the car left the factory and that the defect was the proximate
cause of the injuries.

• A defect may be proven by circumstantial evidence. From the evidence

presented, a jury could have found that the defect was created by the
manufacturer, rather than a third party after delivery. Additionally, the
testimony could demonstrate that the car always started in park, so that the
Plaintiffs had no opportunity to discover the defect. Testimony of
witnesses could demonstrate that the car accelerated immediately when it
was started, resulting in the accident. Finally, the possibility that the
contacts in the neutral start switch were in the neutral or park position
even though the transmission was in drive was established. This would
allow the car to start in the drive position. Therefore, Plaintiffs established
a prima facie case of defect.
273 Friedman v. General Motors Corp.
Dissent. Justice Stern stated that the total evidence in this case only demonstrates that
something unusual happened and that a possible explanation is that the car had a defect.
Plaintiffs failed to submit sufficient evidence to infer that a defect existed at the time the
car left the defendant manufacturer.

Discussion. In a proper case, the principles behind res ipsa loquitur may be applicable to
satisfy the requirements of strict liability. However, as the dissent pointed out, the present
facts are not appropriate for such an application because other explanations for the
accident are available.
274 Daly v. General Motors Corp.
Daly v. General Motors Corp.

Citation. 20 Cal.3d 725, 575 P.2d 1162, 144 Cal.Rptr. 380 (1978).

Brief Fact Summary. Kirk Daly (the Decedent) was killed when he was thrown from his
car, which allegedly had a defective door latch. The Decedent was not using the shoulder
harness, did not have the door locked and was intoxicated at the time. The Plaintiffs,
Decedent's family members (Plaintiffs) brought suit.

Synopsis of Rule of Law. The principle of comparative negligence can be applied in

strict products liability cases to reduce a plaintiff's recovery.

Facts. The Decedent was thrown from his automobile because of an alleged defect of the
door latch, resulting in his death. Evidence suggested the driver did not use the shoulder
harness system, did not lock the door and that he was intoxicated. The jury found for the
Defendant, General Motors Corp. (Defendant).

Issue. Does the principle of comparative negligence apply to actions founded on strict
products liability?

Held. Yes. Judgment reversed.

• Strict liability has never been intended to be absolute liability, causing

the manufacturer to become the insurer of the safety of the product's user.
The Court previously determined that a plaintiff's negligence is a complete
defense when it comprises assumption of the risk.

• Here, the Plaintiffs argue that recognition of comparative fault principles

in strict products liability cases is an impossible merging of concepts
because strict liability is not founded on negligence or fault principles.
However, the Court refuses to resolve this issue based solely on linguistic
labels. The imposition of strict liability was intended to relieve injured
consumers from inherent problems of proof and to place the burden on
manufacturers rather than those who are powerless to protect themselves.
The Court believes that these goals will not be frustrated by the imposition
of comparative principles. Plaintiffs' recovery will be lessened only to the
extent that his own negligence contributed to the injury.

• Plaintiffs also argue that comparative principles will lessen a

manufacturer's incentive to produce safe products. This Court does not
believe this to be true, as exposure to liability will be lessened only by the
extent to which the plaintiff contributed to his injury and the manufacturer
cannot assume that the plaintiff will always be blameworthy. A further
benefit will be that the imposition of comparative principles will allow for
only a partial limit on recovery, where previously the only plaintiff-
negligence defense was assumption of the risk, which was a complete bar
275 Daly v. General Motors Corp.
to recovery. This unfair rule caused a contributorily negligent plaintiff to
be in a better position when claiming negligence than strict liability.

• A further objection to the imposition of strict liability is that jurors

cannot compare plaintiff's negligence with defendant's strict liability.
However, the court is convinced jurors are capable of such a task. The
court found final support for the adoption of comparative negligence in
strict liability cases in the provisions of the proposed Uniform
Comparative Fault Act [adopted by the Conference of Commissioners on
Uniform State laws (1997)].

Dissent. Omitted.

Concurrence. Omitted.

Discussion. The majority of jurisdictions today have applied comparative fault principles
to strict products liability cases.
276 Ford Motor Co. v. Matthews
Ford Motor Co. v. Matthews

Citation. 291 So.2d 169 (Miss.1974).

Brief Fact Summary. Earnest Matthews (Mr. Mathews) was dragged under a tractor and
killed when he started the tractor while standing next to it. The tractor started while in
gear, but was equipped with a safety switch designed to prevent this from occurring.

Synopsis of Rule of Law. A manufacturer is not liable for injuries caused by abnormal or
unintended use of its product, only if such use is not reasonably foreseeable.

Facts. Mr. Matthews was standing beside his tractor when he started it and the tractor
was in gear at the time. The tractor, manufactured by the Appellant, Ford Motor
Company (Appellant), was equipped with a starter safety switch designed to prevent the
tractor from being started while in gear. When the tractor started, Mr. Matthews was
dragged underneath a disc attachment, killing him. The Appellee, the administratrix
(Appellee) brought suit, claiming that the plunger connected with the safety switch was
defective, allowing the tractor to be started in gear. The trial court found for the Appellee
and Appellant appealed.

Issue. Was Mr. Matthews' act of standing on the ground and starting the tractor a misuse
of the product so as to be an absolute limitation on Appellant's liability?

Held. No. Judgment affirmed.

• Appellant relies on the Restatement [Restatement (Second) of Torts §

402A], which states in part that a seller is not liable for injury that results
from abnormal handling. Several cases are also cited by Appellant, but in
each case the accident was caused by misuse, with the court finding either
no defect or that the defect played no part in the accident.

• The injury in question was not caused by Mr. Matthews negligently

standing beside the tractor when he started it. Rather, if any negligence
occurred on Mr. Matthews' part, it was not checking to make sure the
tractor was in gear. In the present case, even if Mr. Matthews were guilty
of negligence for this failure, the negligence was foreseeable by Appellant
and this is not a bar to an action based on strict liability for a
manufacturing defect.

Discussion. If the deceased had used the tractor in an unforeseeable and abnormal way,
the manufacturer would not be subject to liability. In this case, the Court found that not
checking to make sure the tractor was not in gear was foreseeable.
277 Medtronic, Inc. v. Lohr
Medtronic, Inc. v. Lohr

Citation. 518 U.S. 470, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996).

Brief Fact Summary. The Plaintiff, Lora Lohr (Plaintiff), required emergency surgery
when a pacemaker manufactured by the Defendant, Medtronic, Inc. (Defendant), failed.
Plaintiff sued under state laws alleging negligence and strict liability. Defendant
answered by moving the case to federal court and claiming preemption of state law by a
federal act.

Synopsis of Rule of Law. A federal law enacted by Congress will not be held to preempt
existing state law unless is the clear intent of Congress to legislate exclusively in the area.

Facts. The Plaintiff was equipped with a pacemaker made by the Defendant. Three years
later, the pacemaker failed due to a defect in the lead, requiring emergency surgery.
Plaintiff filed suit in a Florida State Court, alleging negligence and strict liability.
Defendant removed the case to federal court and filed a motion for summary judgment,
claiming that 21 U.S.C. § 360k(a) preempted the state common law claims. The trial
court dismissed the entire complaint. The 11th Circuit affirmed in part and reversed in
part. Both parties sought review by the United States Supreme Court (Supreme Court).

Issue. Does the Medical Device Amendments of 1976 (the Act) [90 Stat. 539 (1976)]
preempt a state common law negligence action against the manufacturer of an allegedly
defective medical device?

Held. No. Affirmed in part and reversed in part.

• The states have traditionally exercised their police powers to protect the
health of their citizens. However, the Federal Government has
increasingly played a role in health protection. The Act requires rigorous
pre-market approval for products such as the pacemaker in question.
However, the Act grandfathered in devices on the market before 1976 and
permitted devices that are substantially equivalent to pre-existing devices
to avoid approval. The pacemaker at issue in this case was a device
deemed substantially equivalent.

• This Supreme Court is presented with the task of interpreting a statutory

provision that preempts state law. In doing so, we follow two
presumptions. First, when Congress is preempting a law in a field
generally governed by the states, the Supreme Court assumes that the
powers of the state are not to be preempted unless that was the clear
purpose of Congress. Second, the scope of the preemption statute must
reflect a clear understanding of congressional purpose.
278 Medtronic, Inc. v. Lohr
• Defendant's argument that Congress intended to bar all common law
claims based on medical devices with the Act is implausible. This
interpretation would provide complete immunity for design defect liability
for the entire industry. The legislative history of the Act in no way
supports this argument.

• Plaintiff claims that the Act does not preempt her negligent design claim
because the Act imposes no requirement on the design of Defendant's
pacemaker. In the alternative, Plaintiff claims that even if the Act does
provide requirements, it does not preempt state rules that duplicate these
federal requirements.

• The Plaintiff's common law claims are not preempted by the Act. These
claims are general state common-law requirements that every
manufacturer use due care to avoid foreseeable dangers in its products and
inform users of potentially dangerous risks involved in their use. These
general requirements in no way reflect the concerns Congress expressed
regarding regulation of specific devices in the Act.

Discussion. If Congress had clearly intended to preempt state law, the Supreme Court
would have no choice and the manufacturer would only have to abide by the federal law.
In this case, the Supreme Court determined that Congress had not expressed a clear
intention to preempt these state common laws.
279 Peterson v. Lou Bachrodt Chevrolet Co.
Peterson v. Lou Bachrodt Chevrolet Co.

Citation. 61 Ill.2d 17, 329 N.E.2d 785 (1975).

Brief Fact Summary. The Plaintiff, James Peterson's (Plaintiff) children were injured
when they were struck by a used car. The Plaintiff sued the Defendant, Lou Bachrodt
Chevrolet Co. (Defendant), alleging that the used car was defective when it left the
Defendant's lot.

Synopsis of Rule of Law. Strict products liability will not be applied to the seller of
previously used products.

Facts. Maradean Peterson (Maradean) and her brother, Mark Peterson (Mark) where
struck by a car while walking home from school. Maradean died as a result of the
accident and Mark suffered severe injuries, including amputation of a leg. The
automobile that struck the Maradean and Mark was purchased used from the Defendant
Lou Bachrodt Chevrolet Co. (defendant). The Plaintiff, father of the children, brought
suit against the driver of the car, its owners, and the Defendant.

Issue. Can the strict products liability applied to a retailer also be imposed on a defendant
who is outside the original producing and marketing chain?

Held. No. Judgment of the Appellate Court is reversed.

• Plaintiff claims that at the time the automobile in question left

Defendant's control it was not reasonably safe for driving and that these
defective conditions were a proximate cause of the injuries that occurred.

• Strict liability has previously been applied to retailers, justified on the

ground that their position in the market allows them to place pressure on
the manufacturer to enhance the product's safety. In the present case there
is no claim that the defects existed when the product left the manufacturer
or that the defects were created by the used car dealer. Under these facts,
the court saw no justification in effectively causing used car dealers to
become the insurers against defects.

Dissent. Justice Goldenhers stated that the application of strict liability is intended to
place the burden of losses on those who have created the risk and reaped profit by placing
the product into the stream of commerce. There is no justification for not applying the
same standard to used car dealers.

Discussion. The majority of courts have declined to place the burdens of strict liability on
the sellers of used products.
280 Hector v. Cedars-Sinai Medical Ctr.
Hector v. Cedars-Sinai Medical Ctr.

Citation. 180 Cal.App.3d 493, 225 Cal.Rptr. 595 (Cal.Appell.1986).

Brief Fact Summary. The Plaintiff, Frances Hector (Plaintiff), claimed that strict
product liability was applicable to the Defendant, Cedar-Sinai Medical Ctr. (Defendant)
in relation to the implantation of a defective pacemaker.

Synopsis of Rule of Law. Hospitals are not subject to strict liability for a defective
product provided to a patient during treatment when the hospital is a provider of services
rather than a seller of a product.

Facts. The Plaintiff filed a complaint against the Defendant alleging personal injury from
the implantation of a defective pacemaker. The complaint contained three causes of
action: negligence, strict liability and breach of warranty. All three causes were dismissed
in favor of Defendant. Plaintiff appealed.

Issue. Did the trial court err in finding that Defendant was exempt from the application of
the strict products liability doctrine?

Held. No. Judgment affirmed.

• The imposition of strict products liability has been expanded from

manufacturers to include retailers. However, retailers play an integral part
in the production or marketing enterprise, or at least enable the product to
get from the manufacturer to the consumer. Plaintiff maintains this appeal
on the theory that the hospital is a supplier of pacemakers and this should
be subject to the same strict liability standard as other suppliers.

• The difference between those to whom strict liability has been applied
and hospitals is that the former are simply conduits in distribution, while
the latter provides services as a healer of illnesses. The main function of
the hospital is to furnish trained personnel and specialized facilities, while
the items used are simply instruments to accomplish the objective of
treatment.

• Additionally, policy considerations counsel against imposition of strict

products liability in such areas. Unlike manufacturers and retailers, the
Defendant does not select the pacemaker and is in a poor position to test it
or inquire about its function. Also, increased liability in this area would
result in higher costs for health care. Because the hospital is not a seller, it
cannot be held strictly liable for injuries to the Plaintiff because of defects
in the pacemaker.

Discussion. Strict liability is generally not applicable to services. In cases that involve
characteristics of both a sale and a service, the courts will not apply strict liability if the
transaction is predominately a service.
281

C
H
A
P
T
E
R

X
V
I
.

N
u
i
s
a
n
c
e
282 Philadelphia Electric Company v. Hercules, Inc.
Philadelphia Electric Company v. Hercules, Inc.

Citation. 762 F.2d 303 (3rd Cir.1985).

Brief Fact Summary. The Plaintiff, Philadelphia Electric Company (Plaintiff),

purchased land that was originally owned by Pennsylvania Industrial Chemical
Corporation (PICCO) and subsequently the Defendant, Hercules, Inc. (Defendant),
assumed all liabilities of PICCO. Plaintiff brought suit against Defendant for public
nuisance and private nuisance resulting from pollutants on the land left from PICCO.

Synopsis of Rule of Law. A subsequent bona fide purchaser of land cannot claim private
nuisance against a previous owner for damage done to the land. A Plaintiff cannot claim a
tort action for public nuisance against a Defendant unless the Plaintiff can claim
particular damages suffered due to an interference with a public right.

Facts. The Plaintiff purchased property from Gould that was originally owned by
PICCO. Plaintiff owned land adjacent to the PICCO land and had ample opportunity to
examine the land it purchased. Subsequently, Defendant became the successor to PICCO
and expressly assumed all obligations and liabilities of PICCO. The Pennsylvania
Department of Environmental Resources (DER) discovered pollutant materials similar to
those once produced by PICCO seeping into the Delaware River and ordered Plaintiff to
eliminate the situation. Plaintiff brought suit against Defendant for damages and an
injunction to abate any further pollution. The district court granted both. The suit was
based on private nuisance, public nuisance and indemnity. The relationship between
Plaintiff and Defendant was treated by the court as one of vendor and remote vendee of
land. The sale of the site was subject to the rule of caveat emptor, being between two
commercial corporations with no misrepresentation or concealment and full opportunity
to inspect.

Issue. Does the Plaintiff have a cause of action against Defendant for private nuisance,
public nuisance, or common law indemnity?

Held. No. Judgment reversed.

• The Restatement [Restatement (Second) of Torts, § 821D] defines a

private nuisance as "a nontrespassory invasion of another's interest in the
private use and enjoyment of land." For this case, the court assumes that
Defendant is liable for a private nuisance, with the crucial question being
to whom they are liable. The parties cite no case that permits a purchaser
of real property to recover from a seller on a private nuisance theory for
conditions that existed on the land transferred. To recover on a private
nuisance theory, plaintiff must show there was a breach of duty. In this
case, the duty Defendant owed was to neighbors, not the Plaintiff
purchaser. To allow Plaintiff to recover on a private nuisance theory
would circumvent the rule of caveat emptor.
283 Philadelphia Electric Company v. Hercules, Inc.
• The Restatement [Restatement (Second) of Torts, § 821B(1)] defines a
public nuisance as "an unreasonable interference with a right common to
the general public." A public nuisance is a criminal offense, consisting of
an interference with the rights of the community at large. However, courts
have allowed tort actions for a public nuisance when the plaintiff suffers a
particular damage. Plaintiff argues that the expense it incurred in cleaning
up the pollutants is a particular damage. However, the harm common to
the general public in this case was the public right to clean water.
Therefore, Plaintiff lacks standing to claim indemnity or injunctive relief
for a public nuisance.

Discussion. Defendant would still be liable for a private nuisance to neighboring

landowners or a public nuisance for users of the Delaware River waters.
284 Morgan v. High Penn Oil Co.

Synopsis of Rule of Law. An intentional private nuisance occurs when a person either
acts for the purpose of unreasonably interfering with another person's enjoyment of their
land or knows that such interference is resulting from his conduct.

Morgan v. High Penn Oil Co.

Citation. 238 N.C. 185, 77 S.E.2d 682 (1953).

Brief Fact Summary. The use of the Plaintiff, Morgan's (Plaintiff) land, was allegedly
being interfered with by the Defendant, High Penn Oil Co.'s (Defendant), emission of
noxious gases. Plaintiff brought suit for private nuisance, requesting temporary damages
and an injunction.

Facts. Plaintiff owned a tract of land on which he had a dwelling, a restaurant, and
accommodations for thirty-two trailers. The Defendant owned the adjoining tract of land
on which it operated an oil refinery. Plaintiff claimed that for some hours, on two to three
days a week, the refinery emitted nauseating gases and odors that rendered persons of
ordinary sensitivities on his land uncomfortable and sick. Plaintiff put Defendant on
notice of the situation and demanded that he abate it, but Defendant failed to do so.

Issue. Did the trial court err by not granting Defendant's motion for a compulsory nonsuit
on the claim that the refinery was so maintained and operated as to create a nuisance?

Held. No. Judgment affirmed. A new trial was ordered because of an error in instructions
to the jury.

• Defendant argues that the evidence is insufficient to establish either an

actionable or an abatable private nuisance. Plaintiff asserts that private
nuisances are classified either as nuisances per se or at law, or nuisances
per accidens or in fact. The Defendant claims correctly that that an oil
refinery is a lawful enterprise and therefore cannot be a nuisance at law.

• However, the Defendant incorrectly asserts that an oil refinery cannot

become a nuisance in fact unless it is constructed or operated in a
negligent manner. A nuisance in fact may be created or maintained
without negligence. A person may be subject to liability for an intentional
invasion of one's use and enjoyment of their land if his conduct is
unreasonable under the circumstances. A person may be liable for an
unintentional invasion when his conduct is negligent, reckless, or
ultrahazardous.

• An intentional invasion occurs when the person knows that the nuisance
is resulting from his conduct, regardless of the care or skill exercised to
prevent the injury. Interpreting the evidence in the light most favorable to
the Plaintiff, it supports a finding that the Defendant intentionally and
285 Morgan v. High Penn Oil Co.
unreasonably caused noxious gases to escape onto Plaintiff's property so
as to impair in a substantial manner his use and enjoyment of the land.
This entitles Plaintiff to recover temporary damages. Additionally, using
the same standard, the evidence is sufficient to show that Defendant
intends to operate its oil refinery in the same manner and thus the issuance
of an injunction is appropriate.

Discussion. Unlike in the present case, when the Defendant has committed an
unintentional interference, negligence is the basis of liability.
286 Carpenter v. The Double R Cattle Company, Inc.
Carpenter v. The Double R Cattle Company, Inc.

Citation. 108 Idaho 602, 701 P.2d 222.

Brief Fact Summary. The Plaintiffs-Appellants, Adrian Carpenter, Ruth Carpenter and
others (Plaintiffs), brought suit against the Defendants-Respondents, the Double R. Cattle
Company, Inc. and others (Defendants), claiming that the operation of its cattle feedlot
constituted a nuisance. Defendants prevailed at the trial level and the Appellate Court
reversed based on a new subsection of the Restatement allowing for damages when the
harm is serious and payment is feasible.

Synopsis of Rule of Law. Idaho law does not follow subsection b of the Restatement
allowing for the payment of damages when the gravity of the harm is outweighed by the
utility of the conduct, yet the harm is serious and the payment is feasible without forcing
discontinuation of the business.

Facts. The Plaintiffs were homeowners living near the Defendants' cattle feedlot. The
Plaintiffs contend that the feedlot had been expanded to accommodate the feeding of
9,000 cattle and that the accumulation of manure, water pollution, odor, insect
infestation, dust and noise caused by the feedlot constituted a nuisance. The jury and trial
court made findings, concluding that the feedlot did not constitute a nuisance. The Court
of Appeals reversed, based on a new subsection of the Restatement [Restatement
(Second) of Torts, Section 826(b)] allowing for a nuisance even when the gravity of harm
is outweighed by the utility of the conduct, so long as the harm is serious and the
payment of damages is feasible, without forcing the business to discontinue.

Issue. Did the trial court err by not giving a jury instruction based on the new subsection
of the Restatement?

Held. No. Judgment of the District Court is affirmed.

• The new subsection of the Restatement does not represent the law in
Idaho. The Appellate Court's decision was based on language in our
decision in Koseris v. J.R. Simplot Co., 82 Idaho 263, 352 P.2d 235
(1960). However, this language was clearly dictum. Idaho's economy
depends on the benefits of agriculture, lumber, mining, and industrial
development. To do away with the utility of conduct and other factors
would place an unreasonable burden on these industries.

Dissent. Justice Bistline wrote that the Court of Appeals was correct in attempting to
modernize the law of nuisance in Idaho. While it is desirable to allow a serious nuisance
to continue when the utility of the operation causing the nuisance is great, those directly
effected deserve some compensation. The new subsection of the Restatement adds a
method of compensating those who suffer without discontinuing the beneficial business.
The majority forgets that the cost of a product includes external costs, including damages
done to the environment.
287 Carpenter v. The Double R Cattle Company, Inc.
Discussion. In order to create a nuisance, the harm must be the kind that would be
suffered by a normal person in the community. A hypersensitive individual cannot claim
a nuisance when the harm done to him would not affect an average person.
288 Winget v. Winn-Dixie Stores, Inc.
Winget v. Winn-Dixie Stores, Inc.

Citation. 242 S.C. 152, 130 S.E.2d 363 (1963).

Brief Fact Summary. The Plaintiffs, Winget and others (Plaintiffs), brought suit alleging
that the operation of the Defendant, Winn-Dixie Stores, Inc's (Defendant), adjoining
grocery supermarket constituted a nuisance due to its location and the manner of its
operation.

Synopsis of Rule of Law. A business that meets all municipal requirements regarding the
establishment of the business and is not constructed in such a manner as to interfere with
the rights of others, cannot constitute a nuisance based on its location.

Facts. The Plaintiffs brought an action for damages sustained from the location and
operation of the Defendant's grocery supermarket. The Plaintiffs claimed that Defendant's
store operation constituted a nuisance and in addition to damages, requested an order
restraining Defendant from using the property for a grocery business or for any other
business purpose. The trial court gave judgment for the Plaintiffs in the sum of $5,000,
and denied the request for injunctive relief. Defendant appealed.

Issue. Did the trial judge properly refuse Defendant's motions for a directed verdict and a
new trial?

Held. The trial court properly refused Defendant's motion for a directed verdict and
improperly refused its motion for a new trial.

• Plaintiffs claim that Defendant's supermarket was a nuisance because of

its location and the manner of its operation. The Defendant's grocery
supermarket met every requirement of the municipal authorities and under
the facts it cannot be held that the location of the business constituted a
nuisance.

• However, a lawful business may constitute a nuisance if the business is

conducted in an unreasonable manner so as to unreasonably interfere with
the lawful use and enjoyment of others' property. In the present case,
Plaintiffs contend that the influx of traffic and the trash trucks and street
sweepers operated at late night hours constitutes a nuisance. The traffic
influx occurs during reasonable hours and the operation of the trash
removal is the usual operation of the city. These activities do not
constitute a nuisance when the relative rights of the parties are examined.

• Other allegations by Plaintiffs did require submission to the jury, such as

the operation of fans blowing on Plaintiffs' property, floodlights shining
on Plaintiffs' property and trash that was allowed to escape onto Plaintiffs'
property. These activities were properly submitted to the jury and
Defendant's motion for a direct verdict on these facts was properly denied.
289 Winget v. Winn-Dixie Stores, Inc.
• Defendant also contends that a new trial should be granted based on the
improper admission of testimony relating to depreciation in Plaintiffs'
property value. If there is no public or private nuisance created by the use
of property, no damage recovery can be allowed for diminution in
property value. The testimony regarding property value should have been
stricken and Defendant's should be granted a new trial based on this error.

Discussion. A business that is lawfully operated still may constitute a nuisance if it

unreasonably interferes with the use and enjoyment of the property of others.
290 Boomer v. Atlantic Cement Co., Inc.
Boomer v. Atlantic Cement Co., Inc.

Citation. 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (N.Y.Appell.1970).

Brief Fact Summary. The Plaintiffs, Boomer and other neighboring land owners
(Plaintiffs), brought a nuisance action against the Defendant, Atlantic Cement Co., Inc.'s
(Defendant) neighboring cement plaint, claiming damages and an injunction due to dirt,
smoke, and vibrations interfering with their property rights.

Synopsis of Rule of Law. This court balances the equities between the two parties,
refusing to close down a large cement plant even though it creates a nuisance, but
allowing neighbors to recover present and future damages created by the nuisance.

Facts. Defendant operated a large cement plant. Plaintiffs brought an action for an
injunction and damages, alleging injury to their property from dirt, smoke, and vibrations
created by the plant. At trial a nuisance was found, temporary damages were allowed, but
an injunction was denied.

Issue. Was the trial court correct in denying Plaintiffs an injunction when Defendant's
activities are found to create a nuisance, but the value of Defendant's operation exceeds
the nuisance created?

Held. No. Order reversed and case remanded.

• There is a growing public concern for the control of air pollution. The
threshold question in this case is if the Court should resolve the litigation
between the parties now, or attempt to use this private litigation to define
broad public objectives. This court finds that an effective policy for the
elimination of air pollution is beyond the scope of this court's jurisdiction.

• The doctrine applied in New York has been that when a nuisance is
found and there has been substantial damage demonstrated by the
complaining party, an injunction will be granted regardless of a marked
disparity between economic consequences. Following the doctrine in this
case would have the effect of closing Defendant's large plant immediately.

• One alternative would be to issue an injunction, but postpone it until a

future date, allowing Defendant the opportunity to develop technical
advance to eliminate the nuisance. However, the rate of research is beyond
the control of the Defendant and a court would be hard pressed based on
equitable principles to close this plant based if it is unable to develop such
technology.

Dissent. Judge Jasen stated that he did not agree with the majority's new doctrine of
permanent damages rather than an injunction when substantial property rights have been
impaired. The majority effectively licenses a continuing wrong, with little incentive for
291 Boomer v. Atlantic Cement Co., Inc.
the wrong to be eliminated. Additionally, the imposed servitude on Plaintiffs' land for a
private use rather than a public use is unconstitutional.

Discussion. Most courts take an approach similar to the majority's in nuisance cases
where an injunction is requested, balancing the equities on a case by case basis.
292 Spur Industries, Inc. v. Del E. Webb Development Co.
Spur Industries, Inc. v. Del E. Webb Development Co.

Citation. 108 Ariz. 178, 494 P.2d 700 (1972).

Brief Fact Summary. The Plaintiff, Del E. Webb Development Co. (Plaintiff), brought
suit for an injunction of the Defendant, Spur Industries, Inc.'s (Defendant), feedlot based
on a public nuisance claim. Defendant had been established in the area long before
Plaintiff built residential property nearby.

Synopsis of Rule of Law. When a developer has brought into a previously agricultural or
industrial area the population, which makes the granting of an injunction necessary, the
developer must indemnify the enjoined business if the impending injunction was
foreseeable by the developer.

Facts. The Defendant had operated a cattle feedlot in an urban area outside of Phoenix
since before 1950. In 1959 the Plaintiff began to develop Sun City, a residential
community, some distance from Defendant. The development expanded, until 1967,
when Sun City was with 500 feet of Defendant. Plaintiff brought suit requesting a
permanent injunction of Defendant's operations, claiming that remaining lots were unfit
for residential development because of the operation Defendant's feedlot. The trial court
granted Plaintiff's injunction request. Defendant appealed and Plaintiff cross-appealed.

Issue. When the operation of a business is lawful in the first instance, but becomes a
nuisance because of a nearby residential area, may the business be enjoined by an action
brought by the developer of the residential area?

• If the nuisance may be enjoined, may the developer be required to

indemnify the operated of the business, which must move or cease
operation?

Held. Yes. Judgment affirmed in part, reversed in part, and remanded.

• Plaintiff's suit alleged that Defendant's feedlot was a public nuisance

because of flies and odor created by the feedlot. Some courts have held
that in balancing of the conveniences cases such as this, damages are the
only remedy. However, this Court has no difficulty in finding that the
operation of Defendant's feedlot is an enjoinable public nuisance. If
Plaintiff were the only party injured, his claim would be barred by the
doctrine of coming to the nuisance. However, Defendant's operation is
both a public and private nuisance for the citizen's of Sun City. Therefore,
the trial court was correct in permanently enjoining operation of
Defendant's feedlot.

• It follows neither equitably or legally that Plaintiff is free of liability if

he is the cause of the damage that Defendant will sustain from the
permanent injunction. Because Plaintiff brought people to the nuisance to
the
293 Spur Industries, Inc. v. Del E. Webb Development Co.
foreseeable detriment to Defendant, Plaintiff must indemnify Defendant
for the reasonable cost of either moving the business or shutting down.

Discussion. The majority rule is that a plaintiff is not barred from recovery in either
public or private nuisance law because he comes to the nuisance. However, this is not an
absolute law when other factors are more or less balanced.
294

C
H
A
P
T
E
R

X
V
I
I
.

D
e
f
a
m
a
t
i
o
n
295 Belli v. Orlando Daily Newspapers, Inc.
Belli v. Orlando Daily Newspapers, Inc.

Citation. 389 F.2d 579, cert. denied 393 U.S. 825, 89 S.Ct. 88, 21 L.Ed.2d 96 (1968) (5th
Cir. 1967).

Brief Fact Summary. The Defendant, Orlando Daily Newspapers, Inc. (Defendant),
published an article claiming that the Plaintiff, Belli (Plaintiff), an attorney, took
advantage of an agreement with the Florida Bar Association (the Association), charging a
large clothing bill to the Association. The article was false, and Plaintiff brought a
defamation suit.

Synopsis of Rule of Law. If the meaning of an article is capable of two interpretations,

one being defamatory and the other not, it is for the jury to determine the meaning of the
article based on all of the evidence.

Facts. The Plaintiff was a nationally prominent attorney. Another attorney, Mr. Handley,
had a conversation with a columnist for the Defendant in which he related a story he had
heard regarding Plaintiff. The story was that Plaintiff and his wife ran up a large clothing
bill at a Florida hotel, at the expense of the Association. The columnist published the
story with embellishments and the story turned out to be false. The Plaintiff brought an
action for libel and slander. The District Court dismissed Plaintiff's complaint for failure
to state a claim.

Issue. Was the District Court correct that the determination of whether a statement is a
libel or slander per se is solely for the court?

Held. No. Judgment reversed and remanded.

• When a publication is false and not privileged and is such that its natural
and proximate consequence necessarily causes an injury to a person in his
personal, social, official, or business relations or life, wrong and injury are
assumed and the publication is actionable per se. If the meaning is so
unambiguous as to only reasonably bear one interpretation, it is for the
judge to say if the meaning is defamatory or not. If the meaning is capable
of multiple interpretations, it is for the jury to determine the meaning,
considering al the circumstances.

• Defendant's claimed that the article did not hurt Plaintiff in his
profession because the article only showed that the agreement was more
favorable to Plaintiff than to the Association. Based on this argument,
Defendant is barely able to make a case that the article could be
interpreted as non-defamatory.

• Plaintiff contends that the article portrays him as having committed

trickery and deception against the Association. This portrayal has negative
implications toward Plaintiff's profession. This Court agrees that the
296 Belli v. Orlando Daily Newspapers, Inc.
article had the capability of carrying a defamatory meaning. Regardless,
First Amendment constitutional rights of free press impel the Court to not
place itself in the role of the jury. Therefore, the final determination
should have been made by the jury.

Discussion. The Court in this case felt that the facts strongly suggested the article was
defamatory, but refused to exercise the role of the jury due to First Amendment
constitutional considerations.
297 Grant v. Reader's Digest Ass'n
Grant v. Reader's Digest Ass'n

Citation. 151 F.2d 733 (2nd Cir. 1945).

Brief Fact Summary. An article was published by the Defendant, Reader's Digest Ass'n
(Defendant), claiming that the Plaintiff, Grant (Plaintiff), represented the Communist
party. Plaintiff brought a libel suit. The trial court dismissed the suit for insufficiency in
law on the face of the claim.

Synopsis of Rule of Law. It is not necessary that the majority of people would find an
article to be damaging to Plaintiff's reputation so long as some people would reasonably
find in damaging.

Facts. The Defendant published an article alleging that Plaintiff represented the
Communist Party in Massachusetts. Plaintiff brought a libel suit claiming that the article
was untrue and malicious. The trial court dismissed the complaint for insufficiency in law
upon its face.

Issue. Was the trial court correct to determine as a matter of law that it is not libelous in
New York to write that a lawyer has acted as an agent of the communist party and is a
believer of its aims?

Held. No. Judgment reversed and remanded.

• The interest at stake is that of the person assailed. This person may value
his reputation amongst those who do not embrace the prevailing moral
standards. It is not enough to say that "right-thinking" people would not
believe this article to be damaging to plaintiff's reputation. So long as
some people feel so, it is sufficient to consider the cause of action, even if
these people may be "wrong-thinking."

Discussion. Even if the thinking is that of a small part of the community, there must be
an element of discredit or disgrace in order for the cause to be actionable.
298 Kilian v. Doubleday & Co., Inc.
Kilian v. Doubleday & Co., Inc.

Citation. 367 Pa. 117, 79 A.2d 657 (1951).

Brief Fact Summary. An article written in the first person described acts of cruelty
committed by the Plaintiff, Killian (Plaintiff) an army Colonel. The events were actually
witnessed by other individuals and relayed to the author. Plaintiff brought a libel action,
and the Defendant, Doubleday & Co., Inc. (Defendant), answered claiming truth.

Synopsis of Rule of Law. Specific charges cannot be defended through a claim of truth
by a showing of Plaintiff's general bad character.

Facts. A book was created from the writings of disabled veterans taking an English
course. One of the veterans, O'Connell, wrote a story in the first person that was actually
based on stories that were described to him by other soldiers who allegedly witnessed
them. The story described acts of cruelty and unauthorized punishments administered by
Plaintiff. At the end of the story, Dr. Wolfe, the professor of the course, added a footnote
claiming that Plaintiff was convicted of permitting cruel and unusual punishment and
received a reprimand and a small fine for his crime. Plaintiff brought suit for libel and
Defendant answered by claiming truth as a defense.

Issue. Did the trial court err by submitting to the jury the question of whether the
publication was substantially true?

Held. Yes. Judgment reversed and a new trial awarded.

• Plaintiff was acquitted of knowingly permitting the imposition of cruel

and unusual punishments and was convicted only of permitting these
punishments negligently. Defendant argued that the article is a true
account of the events as observed by the author. In support of this claim,
Defendant presented three witnesses that had been under Plaintiff's
command. However, the author admitted that he was never under
Plaintiff's command at Lichfield.

• In order to support a defense of truth, it is only necessary to prove that

the article was substantially true. However, a Plaintiff's general bad
character can not justify specific charges. None of the evidence was
capable of proving that any of the events narrated by O'Connell actually
occurred.

Discussion. Truth is an absolute defense to charges of defamation.

299 Neiman-Marcus v. Lait
Neiman-Marcus v. Lait

Citation. 13 F.R.D. 311 (N.Y.Dist.Ct.1952).

Brief Fact Summary. The Defendants, Lait and others (Defendants), wrote an article
making accusations about three groups of employees at the Plaintiff, Neiman-Marcus's
(Plaintiff), department store. Plaintiff and representatives of each of these groups brought
a libel suit.

Synopsis of Rule of Law. A large group of individuals cannot bring a libel claim unless
the allegedly libelous statement makes specific defamatory statements against an
individual member of the group.

Facts. The Defendants were the authors of a book entitled U.S.A. Confidential. The book
made claims against Plaintiff who operated a department store in Texas. Plaintiff alleges
that the article libeled and defamed three groups of its employees. Plaintiff sued in the
following groups: (1) Nine individual models that constitute the entire group of models;
(2) Fifteen salesmen suing on behalf of twenty-five salesman; and (3) Thirty saleswomen
suing on behalf of 382 saleswomen.

Issue. Can a designated group of individuals sue for libel when less than all of the
designated group are libeled?

Held. No. Complaint dismissed with leave to file separate complaints.

• It was alleged that most of Plaintiff's salesmen were gay. This is not a
cause of action in New York, and Defendants' motion to dismiss as to this
claim is denied.

• The allegations against Plaintiff saleswomen were general allegations

against an extremely large group. No specific individual is named in the
statement. No case has been cited that that would support a cause of action
by a member of any group of such magnitude. This Court holds as a
matter of law that no reasonable man would take the writer seriously and
conclude that the publication references any individual saleswoman. This
court grants the two other groups leave to file separate complaints.

Discussion. If a single member of a large group presents particular circumstances that

point to that member as the person defamed, that individual may have a cause of action.
300 Bindrim v. Mitchell
Bindrim v. Mitchell

Citation. 444 U.S. 1040, 100 S.Ct. 713, 62 L.Ed.2d 675 (Cal.Appell.1979).

Brief Fact Summary. The Defendants were Gwen Mitchell (Ms. Mitchell) and
Doubleday Publishing (Defendants). Ms. Mitchell wrote a novel allegedly based on the
Plaintiff, Dr. Paul Bindrim's (Plaintiff), psychological techniques, including a nude
marathon. Plaintiff brought an action for libel. Defendants claimed the novel was a work
of fiction and the character could not reasonably be identified as Plaintiff.

Synopsis of Rule of Law. The issue of whether or not a character is a representation of

the Plaintiff in question is if a reader with knowledge of the surrounding circumstances
could reasonably understand that the words referred to the plaintiff.

Facts. The Plaintiff, a licensed psychologist, used a "nude marathon group therapy"
technique to help rid individuals of their psychological inhibitions. Ms. Mitchell, a
successful novelist, registered in this program, signing a contract with Plaintiff to not
disclose what occurred at the workshop. Ms. Mitchell contracted with Doubleday for a
novel based on the nude-therapy technique. Plaintiff brought a libel action against the
Defendants, claiming he was defamed by the depiction. The jury found for Plaintiff at
trial and the court granted a motion for a new trial conditioned on Plaintiff accepting a
remittitur. Both Plaintiff and Defendants appealed.

Issue. Was there sufficient evidence to show that the Plaintiff was identified as the main
character in the novel?

Held. Yes. Judgment affirmed.

• The only real differences between Plaintiff and the novel

characterization were physical appearance and the fact that the main
character was a psychiatrist rather than a psychologist. There is
overwhelming evidence that the main character could be identified as the
Plaintiff.

• Defendants contend that the labeling of the book as a novel bars any
claim that the characters are representations of actual, nonfictional
persons. However, the test is whether a reasonable person reading the
book would understand that a fictional character therein is a description of
the Plaintiff.

• Defendants also question if there is publication for libel when the

communication is only to one person or a small group of people. This is
based on the limited recognition of Plaintiff by readers who know him.
However, it is clear that publication is sufficient for defamation even when
the publication is to only one person other than the person defamed.

Dissent. Presiding Judge Files wrote that the fictional therapist in Ms. Mitchell's book is
conspicuously different from the Plaintiff. The only similarity is the nude encounter
301 Bindrim v. Mitchell
therapy. Only three witnesses testified they recognized Plaintiff and the only
characteristic they recognized was the therapy practiced.

Concurrence. The fictional setting does not insure immunity when a reasonable person
would find the fictional character to be a portrayal of the Plaintiff.

Discussion. The reference to the plaintiff, known as the colloquium, need not address the
plaintiff by name if it is reasonably understood as referring to him.
302 Shor v. Billingsley
Shor v. Billingsley

Citation. 4Misc.2d 857, 158 N.Y.S.2d 476 (1956).

Brief Fact Summary. The Defendant, Billingsley (Defendant), ad-libbed a defamatory

statement about the Plaintiff, Shor (Plaintiff) on a radio broadcast. Plaintiff brought a
defamation suit.

Synopsis of Rule of Law. Defamation broadcast on the radio is actionable as either libel
or slander, regardless of whether it is read from a script or ad-libbed.

Facts. The Plaintiff sued the Defendant for an ad-libbed remark on a nationwide radio
telecast. Defendant said that he wished he had as much money as Plaintiff owes.

Issue. Can an action based on a telecast not read from a prepared script be actionable as
libel or slander?

Held. Yes. Motion to dismiss is denied.

• Considering the large audience reached by radio today, the broadcast of

defamatory utterances is as potentially harmful as a publication by writing.
The element of damage is historically the basis for common law
defamation. Therefore, both logic and policy support the conclusion that
defamation by radio should be actionable per se.

• Delivery of the same statement over a microphone at a stadium would

still be treated as slander because of a history of past decisions. But the
Court was not equally powerless to address defamation in the new media
of radio and television.

Discussion. This matter is generally regulated by statute today, with most statutes
providing that any defamation broadcasted is to be treated as slander.
303 Terwilliger v. Wands
Terwilliger v. Wands

Citation. 17 N.Y. 54, 72 Am.Dec. 420 (N.Y.Appell.1858).

Brief Fact Summary. The Plaintiff, Wands (Plaintiff), brought a slander action against
the Defendant, Terwilliger (Defendant), claiming the Defendant made statements
accusing the Plaintiff of having intercourse with a married woman and trying to keep this
woman's husband in jail.

Synopsis of Rule of Law. Special damages must be claimed in a slander suit that is not
slander per se. Only pecuniary injuries affecting one's character will suffice.

Facts. The Plaintiff proved at trial that the Defendant suggested that the Plaintiff was
going to a Mrs. Fuller's house to have intercourse, that this woman was a bad woman, and
that the Plaintiff was doing everything in his power to keep Mrs. Fuller's husband in the
penitentiary so that he could have free access to Mrs. Fuller. The Plaintiff brought an
action for slander. A motion for nonsuit was sustained by the trial court.

Issue. Did the Plaintiff prove special damages, as is required when a slander cause of
action is not slander per se?

Held. No. Judgment affirmed.

• The Plaintiff claims that he suffered poor health and was unable to attend
to business after hearing of the Defendant's reports. Special damages must
have been the natural, immediate and legal consequences of the slander in
question. It is said that special damages in general are whenever a person
is prevented by the slander from receiving what would otherwise be
conferred on him, even if it would have been gratuitous. In the present
case, there is no proof that the Plaintiff's character was injured. A sickness
caused by fear of harm to character does not suffice, therefore the special
damages relied on in this case do not support an action.

Discussion. Four types of slander are actionable without proof of special damages under
the common law. These are imputations (i) of a major crime; (ii) of a loathsome disease;
(iii) affecting one's business trade, profession, or office; (iv) of serious sexual
misconduct.
304 Economopoulos v. A.G. Pollard Co.
Economopoulos v. A.G. Pollard Co.

Citation. 218 Mass. 294, 105 N.E. 896.

Brief Fact Summary. The Plaintiff, Economopoulos (Plaintiff), sued the Defendant,
A.G. Pollard Co. (Defendant) because its clerks falsely accused him of stealing. No one
was present who spoke the language that the accusation took place in except for the
Plaintiff and the clerk.

Synopsis of Rule of Law. To maintain a defamation cause, publication of the defamatory

statement must occur to some one other than the person defamed.

Facts. A clerk of the Defendant told the Plaintiff in English that the Plaintiff had stolen a
handkerchief. The Plaintiff spoke Greek, so a Greek clerk told the Plaintiff the same thing
in Greek. No evidence showed that any third person heard the charge except the floor
walker. The Plaintiff brought a tort charge for maliciously accusing him of larceny by
words spoken.

Issue. Can publication occur when no third person hears the slanderous statement except
persons who do not speak the same language?

Held. No. Exceptions overruled.

• There was no evidence that anyone, but the Plaintiff was present when
the first clerk spoke to the Plaintiff in English. There was no evidence that
anyone present except the Plaintiff understood the words spoken by the
second clerk. Therefore, no publication was made.

Discussion. Publication in defamation cases does not refer to any sort of writing, but
rather means communication of the words to some other person than the person defamed.
305 Carafano v. Metrosplash.Com, Inc.
Carafano v. Metrosplash.Com, Inc.

Citation. 339 F.3d 1119 (9th Cir. 2003)

Brief Fact Summary. An unidentified individual posted a profile of an actress on a

dating service website. The actress did not know about the posting. The profile included
vulgar and embarrassing information.

Synopsis of Rule of Law. 47 U.S.C. §230(c)(1) provided the dating service in this matter
immunity from suit.

Facts. Matchmaker.com ("Matchmaker") was a for profit, internet dating service.

Individuals that participated in the service posted anonymous profiles and were allowed
to contact other individuals with postings via electronic mail. Each profile contained
personal information, plus one or more pictures of the member. Members were also
required to fill out detailed questionnaires that included both essay and multiple choice
questions. Matchmaker reviewed the pictures for impropriety, but did not review the
profiles. On October 23, 1999, an unknown individual posted a "trial" personal profile for
the Plaintiff, Christianne Carafano a/k/a Chase Masterson (the "Plaintiff"), in the Los
Angeles section of Matchmaker. A "trial" profile could be posted without a fee for a
weeks. The Plaintiff did not authorize or initially know about a posting under her name.
The Plaintiff was a successful actress, and various pictures of her were available on the
internet. Several of those pictures were posted on the profile. Certain embarrassing and
inappropriate information was included in the profile. First, that the Plaintiff read
"Playboy/Playgirl" to learn about current events. Second, that she was looking for a one
night stand. Third, that the Plaintiff "was looking for a 'hard and dominant' man with 'a
strong sexual appetite' and that she 'liked sort of be [ ]ing controlled by a man, in and out
of bed.' " An e-mail address was also provided in the profile. An automatic reply to that
e-mail provided anyone that responded to the Plaintiff's profile with the Plaintiff's home
telephone number and address. Beginning on October 31, 1999, the Plaintiff, unaware
that the profile was on the internet, began receiving sexually explicit messages by all
mediums of communication, in response to the profile. As a result of these messages, the
Plaintiff and her son felt unsafe, and stayed away from Los Angeles for a long period of
time. On November 6, 1999, an assistant of the Plaintiff Siouxzan Perry ("Ms. Perry"),
learned about the website and the Plaintiff instructed her to contact Matchmaker to
remove the profile. The profile was blocked on November 8, 1999 and removed the
following morning.

• The Plaintiff filed suit against Matchmaker and another Defendant, its
corporate successor Metrosplash.Com, Inc. (the "Defendants"), in California.
The suit was brought in state court alleging various causes of action including
"invasion of privacy, misappropriation of the right of publicity, defamation,
and negligence." The case was removed to federal court and the district court
granted the Defendants' motion for summary judgment. Although summary
judgment was granted, the Defendant's contention that it was immune under
47 U.S.C. §230(c)(1) was rejected by the district court.
306 Carafano v. Metrosplash.Com, Inc.
Issue. Whether the Plaintiff's claims are barred by 47 U.S.C. § 230(c)(1)?

Held. Yes. 47 U.S.C. §230(c)(1) stated "[n]o provider or user of an interactive computer
service shall be treated as the publisher or speaker of any information provided by
another information content provider." The result of this provision was to grant "most
Internet services immunity from liability for publishing false or defamatory material so
long as the information was provided by another party." This provision resulted in
internet publishers being treated differently from print, television and radio publishers.
There were two purposes for this immunity: "to promote the free exchange of information
and ideas over the Internet and to encourage voluntary monitoring for offensive or
obscene material." Courts have defined "interactive computer service" very broadly and
"information content provider" very narrowly, in order to further these two goals.
Accordingly, an " 'interactive computer service' qualifies for immunity so long as it does
not also function as an 'information content provider' for the portion of the statement or
publication at issue."

• The court relied upon [Batzel], which "provided immunity to the operator of
an electronic newsletter who selected and published an allegedly defamatory
e-mail over the Internet." The court observed that "the Batzel decision joined
the consensus developing across other courts of appeals that § 230(c) provides
broad immunity for publishing content provided primarily by third parties."
The majority found that although certain of the content on the individual
members' profiles was formulated based on the members' responses to the
questionnaire, the Defendants immunity was not breached. The selection of
the content was left entirely to the member. The court observed, "Matchmaker
cannot be considered an 'information content provider' under the statute
because no profile has any content until a user actively creates it."
Accordingly, the majority found that Matchmaker's role was analogous to "the
customer rating system" involved in [Gentry v. eBay, Inc.]. The court in
[Gentry] found that eBay was not transformed into an "information content
provider" solely because it "compil[ed] false and/or misleading content
created by the individual defendants and other coconspirators." On the same
note, "the fact that Matchmaker classifies user characteristics into discrete
categories and collects responses to specific essay questions does not
transform Matchmaker into a 'developer' of the 'underlying misinformation.' "

• The court in [Gentry] observed, "[T]he fact appellants allege eBay is an

information content provider is irrelevant if eBay did not itself create or
develop the content for which appellants seek to hold it liable. It is not
inconsistent for eBay to be an interactive service provider and also an
information content provider; the categories are not mutually exclusive. The
critical issue is whether eBay acted as an information content provider with
respect to the information that appellants claim is false or misleading."
Relying on [Gentry], the court recognized "critical information about
Carafano's home address, movie credits, and the e-mail address that revealed
her phone number were transmitted unaltered to profile viewers. Similarly, the
profile directly reproduced the most sexually suggestive comments in the
307 Carafano v. Metrosplash.Com, Inc.
essay section, none of which bore more than a tenuous relationship to the
actual questions asked. Thus Matchmaker did not play a significant role in
creating, developing or 'transforming' the relevant information."

Discussion. This case illustrates how internet publishers are treated differently from
publishers in print television and radio.
308 Ogden v. Association of the United States Army
Ogden v. Association of the United States Army

Citation. 177 F.Supp. 498 (D.C.1959).

Brief Fact Summary. Plaintiff brought suit for an allegedly libelous book that was
originally published at a time that would have caused the statute of limitation to have
accrued, but more copies had been published since then.

Synopsis of Rule of Law. Under the single publication rule, written material containing
defamatory matter gives rise to only one cause of action for libel. This cause accrues at
the time of the original publication, and the statute of limitation runs from that date.

Facts. A book containing allegedly libelous material was published in November, 1955.
This suit was filed on June 25, 1959. The District of Columbia has a 1-year statute of
limitations for defamation.

Issue. Does the District of Colombia apply the single publication rule?

Held. Yes. Defendant's motion for summary judgment granted

• Under the common law, every sale or delivery of libelous matter was a
new publication, allowing a new cause of action to accrue. Under modern
conditions, this would allow for an unnecessary multiplicity of suits. The
number of copies of the offending publication that are published will be a
factor in determining the amount of recoverable damages. However, the
original publication of the defamatory material causes the statute of
limitations to run.

Discussion. This case reflects the majority rule in American jurisdictions today.
309 New York Times v. Sullivan
New York Times v. Sullivan

Citation. 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

Brief Fact Summary. The Petitioner, the New York Times (Petitioner), printed an
advertisement that included false statements relating to the Respondent, L.B. Sullivan, an
elected official's (Respondent) conduct. The Respondent brought suit for defamation and
the trial court found in his favor.

Synopsis of Rule of Law. The First Amendment of the United States Constitution
(Constitution) requires proof of actual malice for libel actions brought by public officials
against critics of their official conduct.

Facts. The Respondent was one of three elected Commissioners of Montgomery,

Alabama. His duties included supervision of the police department. The Respondent
brought suit against the Petitioner, alleging that he was libeled by statements made in a
full-page advertisement carried by the Petitioner. The advertisement included allegations
that armed police in Montgomery surrounded the State Capitol when students gathered
there to protest and that Dr. Martin Luther King has repeatedly been harassed by police in
the south. The Plaintiff was not mentioned by name, but claimed that the statements
attributed misconduct to him as supervisor of the Montgomery Police Department. A jury
at Circuit Court awarded respondent damages of $500,000 and the Supreme Court of
Alabama affirmed.

Issue. Are States limited in their power to award damages in a libel action brought by a
public official against critics of his official conduct?

Held. Yes. Judgment reversed and remanded.

• It is clear from the facts that some of the statements made in the
advertisement were not accurate. However, an important purpose behind
the First Amendment of the Constitution is to allow for uninhibited debate
of public issues. It has been established that States or the federal
government may not hinder debate of public issues through criminal
statutes. This First Amendment constitutional protection is also applicable
to civil libel actions. Safeguards are particularly important in this area
because of the lack of indictment requirements and the lower burden of
proof in civil cases.

• Because of these constitutional concerns, the Supreme Court of the

United States (Supreme Court) holds that a public official may not recover
for defamatory falsehood relating to his official conduct unless he proves
the statement was made with actual malice. Actual malice is defined as
knowledge that the statement was false or acting with reckless disregard as
to whether it was false or not. This privilege includes matters of public
concern, public men, and candidates for office.
310 New York Times v. Sullivan
• In the present case, there is no evidence that the statement printed by the
Petitioner indicated malice at the time of publication. Further, the
Petitioner's failure to retract the statement in this case is not adequate
evidence of malice for constitutional purposes.

Concurrence. Omitted.

Discussion. The majority of courts that have considered the implications of this case have
determined that the privilege is limited to expressions of opinion and does not include
misstatements of fact.
311 St. Amant v. Thompson
St. Amant v. Thompson

Citation. 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968).

Brief Fact Summary. During a televised speech, the Defendant, St. Amant (Defendant),
quoted material from a third person that falsely accused the Plaintiff, Thompson
(Plaintiff), of criminal activities. The trial court found in favor of the Plaintiff. The
appellate court reversed. The Louisiana Supreme Court affirmed the trial court's decision.

Synopsis of Rule of Law. In order to prove reckless disregard for the truth, there must be
sufficient evidence to show that the defendant entertained serious doubts as to the truth of
his publication.

Facts. The Defendant made a televised political speech during which he read questions
and answers he had previously asked a union member. The answers falsely charged the
Plaintiff, a deputy sheriff, with criminal conduct. The trial judge awarded damages for
defamation. The intermediate appellate court reversed, finding that the Defendant had not
acted with actual malice. The Louisiana Supreme Court reversed, finding sufficient
evidence that the Defendant acted with reckless disregard for the truth. The United States
Supreme Court (Supreme Court) granted certiorari.

Issue. Was the Supreme Court of Louisiana correct in its determination that defendant
acted with reckless disregard for the truth?

Held. No. Judgment reversed and remanded.

• The Supreme Court accepts the Louisiana courts determinations that the
material published was false and that the Plaintiff was a public official for
the purpose of this case. Therefore, the actual malice standard is
applicable. It is clear that the Defendant had no personal knowledge of the
Plaintiff's activities, but rather relied only on the union member's affidavit.
He failed to verify the information, mistakenly believing that he had no
responsibility for the broadcast because he was quoting someone else's
words.

• In order to meet the actual malice standard, the Defendant must have a
high degree of awareness of the statements probable falsity. This standard
is not measured by whether a reasonably prudent man would have
published the material or would have investigated before publishing.
Rather, there must be sufficient evidence to show that the Defendant
entertained serious doubts as to the truth of his publication.

• A defendant cannot insure a favorable verdict by simply stating that he

published with a belief that the statement was true. The jury must instead
determine if the publication was made in good faith. However, in this case
312 St. Amant v. Thompson
the evidence against the Defendant was insufficient to meet the reckless
disregard requirement for actual malice.

Dissent. Justice Abe Fortas (J. Fortas) argued that the Defendant has a duty to check the
reliability of a statement.

Concurrence. Justices Hugo Black (J. Black) and Justice William Douglas (J. Douglass)
stated there should be an absolute privilege in defamation cases involving public figures.

Discussion. In support of its decision, the Supreme Court points out that it is essential to
protect some erroneous publications in order to ensure that the First Amendment of the
Constitution is upheld.
313 Harte-Hanks Communications, Inc. v. Connaughton
Harte-Hanks Communications, Inc. v. Connaughton

Citation. 491 U.S. 657 (1989)

Brief Fact Summary. A newspaper story about a bribery scandal surrounding an

incumbent candidate for a municipal judgeship, accused another candidate for the same
judgeship, of influencing the grand jury investigating the alleged bribes.

Synopsis of Rule of Law. Although a precise definition of actual malice cannot be

fashioned, it is clear that the publisher must have a " 'high degree of awareness of ...
probable falsity,' or must have 'entertained serious doubts as to the truth of his
publication.' "

Facts. The Respondent, Daniel Connaughton (the "Respondent"), was an unsuccessful

candidate for a municipal judgeship in Hamilton, Ohio. The Petitioner, Harte-Hanks
Communications, Inc. (the "Petitioner"), was the publisher of the Journal News, a
newspaper that supported the reelection of the incumbent municipal judge, James Dolan
("Mr. Dolan"). A month before the election, which took place on November 8, 1983, Mr.
Dolan's Director of Court Services resigned and was arrested for bribery. On November
1, 1983, a grand jury was investigating the bribery charges. On the same date, the Journal
News ran a story quoting one of the grand jury witnesses who said the Respondent "used
'dirty tricks' and offered her and her sister jobs and a trip to Florida 'in appreciation' for
their help in the investigation.' " The Respondent brought suit and the jury found that the
November 1, 1983 story was both defamatory and false. Additionally, it was determined
that the story was published with actual malice. The jury awarded the Respondent $5000
in compensatory damages and $195,000 in punitive damages. The Court of Appeals
affirmed, and concluded after considering the "evidence supporting each of the jury's
special verdicts" that "neither the finding that the story was defamatory nor the finding
that it was false was clearly erroneous."

Issue. Did the Court of Appeals appropriately follow [Bose Corp. v. Consumers Union of
the United States, Inc.] and "exercise independent judgment and determine whether the
record establishes actual malice with convincing clarity" in the case before it?

Held. Justice John Paul Stevens ("J. Stevens"), writing for the majority, first discussed
whether the Court of Appeals "actually applied a less severe standard [than the actual
malice standard] that merely required a showing of " 'highly unreasonable conduct
constituting an extreme departure from the standards of investigation and reporting
ordinarily adhered to by responsible publishers.' " The majority found certain evidence
that the Court of Appeals did apply a lesser standard. It also recognized that "Petitioner is
plainly correct in recognizing that a public figure plaintiff must prove more than an
extreme departure from professional standards and that a newspaper's motive in
publishing a story-- whether to promote an opponent's candidacy or to increase its
circulation-- cannot provide a sufficient basis for finding actual malice." To satisfy the
actual malice standard, at a minimum, the statements must have been made with a
reckless disregard of the truth. Although a precise definition cannot be fashioned, it is
314 Harte-Hanks Communications, Inc. v. Connaughton
clear that the publisher must have a " 'high degree of awareness of ... probable falsity,' or
must have 'entertained serious doubts as to the truth of his publication.' " J. Stevens
observed "it is clear that the conclusion concerning the newspaper's departure from
accepted standards and the evidence of motive were merely supportive of the court's
ultimate conclusion that the record 'demonstrated a reckless disregard as to the truth or
falsity of Thompson's allegations and thus provided clear and convincing proof of 'actual
malice' as found by the jury.' " As such, J. Stevens concluded the Court of Appeals
applied the correct substantive standard.

• The court next considered whether the Court of Appeals considered the
factual record in full. This expansive review is necessary because as the
majority observed "[t]here is little doubt that 'public discussion of the
qualifications of a candidate for elective office presents what is probably the
strongest possible case for application of the New York Times rule' ".
Accordingly, the "reviewing court must 'examine for [itself] the statements in
issue and the circumstances under which they were made to see ... whether
they are of a character which the principles of the First Amendment ...
protect'". The majority "agree[d] with the Court of Appeals that the evidence
did in fact support a finding of actual malice," but reached the conclusion in a
different manner.

• The court concluded "the evidence in the record in this case, when reviewed
in its entirety, is 'unmistakably' sufficient to support a finding of actual
malice."

Discussion. This court offers in interesting discussion about the function of a reviewing
court when faced with a defamation matter.
315 Gertz v. Robert Welsh, Inc.
Gertz v. Robert Welsh, Inc.

Citation. 418 U.S. 323 (1974).

Brief Fact Summary. The Defendant, Robert Welsh, Inc. (Defendant), published an
article that charged that the Plaintiff, Gertz (Plaintiff), an attorney, framed a police officer
and was a communist. The Defendant sued the Plaintiff for libel.

Synopsis of Rule of Law. The New York Times rationale does not extend to private
individuals.

Facts. The Plaintiff, a reputable attorney, was retained by the Nelson family to bring a
civil suit against Richard Nuccio (Nuccio), a policeman who had previously been
convicted of second-degree murder for the death of young Nelson. The Defendant
published an article entitled "Frame-Up: Richard Nuccio and the War On Police" that
purported to show that Nuccio was innocent, that his prosecution was a communist
frame-up and that the Plaintiff was an architect of the frame-up. The article also falsely
charged that the Plaintiff was a communist and had engaged in communist activities. The
editor of the article did not do an independent investigation, but had relied on its author's
extensive research. The Plaintiff filed a libel action and won a jury verdict for $50,000.
The court refused to enter judgment on the verdict on the ground that the New York
Times standard protects discussion of any public issue without regard to the stature of the
person defamed. The decision was affirmed on appeal because the Plaintiff failed to show
that the Defendant acted with actual malice as defined by New York Times. The Plaintiff
appealed.

Issue. May a newspaper or broadcaster publish defamatory falsehoods about an

individual who is neither a public official nor a public figure and claim a constitutional
privilege against liability for the injury inflicted by those statements?

Held. No. Judgment reversed.

• The First Amendment of the United States Constitution (Constitution)

requires that we protect some falsehoods in order to protect speech that
matters. The need to avoid self-censorship by the news media is, however,
not the only societal value at issue. If it were, the Supreme Court of the
United States (Supreme Court) would have embraced long ago the view
that publishers and broadcasters enjoy an unconditional and indefeasible
immunity from liability for defamation. Some tension necessarily exists
between the need for a vigorous and uninhibited press and the legitimate
interest in redressing wrongful injury. In Supreme Court's continuing
effort to define the proper accommodation between these competing
concerns, the Supreme Court have been especially anxious to assure to the
freedoms of speech and press that "breathing space" essential to their
fruitful exercise.
316 Gertz v. Robert Welsh, Inc.
• The New York Times standard defines the level of constitutional
protection appropriate to the context of defamation of a public person.
Those who, by reason of the notoriety of their achievements or the vigor
and success with which they seek the public's attention, are properly
classed as public figures and those who hold governmental office may
recover for injury to reputation only on clear and convincing proof that the
defamatory falsehood was made with knowledge of its falsity or with
reckless disregard for the truth. Despite the substantial abridgment of the
state law right to compensation for wrongful hurt to one's reputation, the
Supreme Court has concluded that the protection of the New York Times
privilege should be available to publishers and broadcasters of defamatory
falsehood concerning public officials and public figures.

• In the tort of defamation, public figures are different than private

individuals. There is a need for the balancing of interests: the need to
avoid self-censorship by the media and the interest in allowing
compensation for harm resulting from defamation. A public figure or
official has greater access to the media to counteract false statements than
private individuals normally enjoy. A private individual is more
vulnerable to injury and needs greater protection. Therefore, the New
York Times rationale does not extend to private individuals.

Dissent. Justice Byron White (J. White) argued that the law of defamation and the right
of the ordinary citizen to recover for false publication injurious to his reputation have
been almost exclusively the business of state courts and legislatures. J. White further
argued that the Supreme Court has federalized major aspects of libel law by declaring
unconstitutional in important respects the prevailing defamation law in all or most of the
50 States. Punitive damages may not be recovered by showing malice in the traditional
sense of ill will; knowing falsehood or reckless disregard of the truth will now be
required. In these circumstances, the law has heretofore put the risk of falsehood on the
publisher where the victim is a private citizen and no grounds of special privilege are
invoked. The Supreme Court would now shift this risk to the victim, even though he has
done nothing to invite the calumny, is wholly innocent of fault and is helpless to avoid
his injury. The press today is vigorous and robust. To J. White it is quite incredible to
suggest that threats of libel suits from private citizens are causing the press to refrain
from publishing the truth.

Concurrence. Justice Harry Blackman (J. Blackmun) argues that the Supreme Court
today refuses to apply New York Times to the private individual, as contrasted with the
public official and the public figure. It thereby fixes the outer boundary of the New York
Times doctrine, and says that, beyond that boundary, a State is free to define for itself the
appropriate standard of media liability so long as it does not impose liability without
fault.

Discussion. In this case, the Supreme Court limits the application of the New York Times
standard to public officials and figures only. A private individual need not show that a
defendant acted with actual malice.
317 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

Citation. 472 U.S. 749 (1985).

Brief Fact Summary. Dun & Bradstreet, Inc. (Petitioner) sent a report to five
subscribers, regarding the credit rating of Greenmoss Builders, Inc. (Respondent). The
report was proven false, and Defendant brought suit for libel, based on the harm it
incurred as a result of the erroneous report.

Synopsis of Rule of Law. The First Amendment does not protect the speech of a non-
media party, when its actions create slander and/or libel against another private party.

Facts. Petitioner sent a credit report to five subscribers, indicating that Respondent had
filed a voluntary petition for bankruptcy. The report was false, the result of the
Petitioner's use of a 17-year-old high school student to review the bankruptcy
proceedings. Respondent was actually in good credit standing, but one of its employees
had, indeed, filed bankruptcy. When respondent learned of the error, it called Petitioner,
explained the error, and asked for a correction. Petitioner sent out a notice of the mistake,
but refused to disclose its subscribers, and Respondent brought suit for liable. Respondent
was awarded $50,000.00 in damages, and $300,000.00 in punitive damages. The trial
court granted a new trial, but Respondent appealed to the Supreme Court of Vermont,
which reinstated the verdict, maintaining that the constitutional requirements for a suit for
libel did not apply to a non-media defendant. The Supreme Court of the United States
granted certiorari.

Issue. Whether the first amendment rights of the maker of an expression, concerning
public issue, preclude it from being sued for libel, when it is not a media defendant?

Held. Affirmed.

• In reaching its conclusion, the Court focused on content, form, and

context, in considering whether the Defendant's speech was protected by
the First Amendment. In this case, the Court found that the Defendant, a
private subscription service, was not reporting on an issue of public
concern when it made its report regarding the Plaintiff, and as such, it
could not seek protection under the First Amendment.

Dissent. Justice Brennan dissented, noting that although this type of speech is not central
to the meaning of the First Amendment, punitive damage awards should be restrained.

Discussion. While the First Amendment affords media defendants great protection, when
they are reporting on issues of "public concern", non-media defendants cannot use that
same protection when their actions cause damages to private parties.
318 Philadelphia Newspapers, Inc. v. Hepps
Philadelphia Newspapers, Inc. v. Hepps

Citation. 475 U.S. 767 (1986).

Brief Fact Summary. Hepps (Plaintiff) brought suit against Philadelphia Newspapers,
Inc. (Defendant), after it published a series of articles alleging that Plaintiff had links to
organized crime, and had used their position to exercise influence over the government.

Synopsis of Rule of Law. A private party cannot bring suit against a newspaper for
slander or libel, without bearing the burden of showing falsity and fault, before
recovering damages.

Facts. Plaintiff was the principal stockholder of General Programming, Inc. (GPI), a
corporation engaged in franchising convenience stores. Defendant published a series of
articles, alleging that Plaintiff had exercised undue influence over the governmental using
its ties to organized crime. Plaintiff brought suit based on slander. At the jury trial of the
matter, a verdict was found for the Defendant. The Supreme Court of Pennsylvania
remanded the case, holding that it was not unconstitutional to hold that the Defendant
must bear the burden of showing the truth of the statements. The Supreme Court granted
certiorari.

Issue. This case considers whether a media defendant must bear the burden of proving
the truth of statements it publishes, when they are attacked as libel by a private Plaintiff.

Held. Reversed.

• The court held that the Plaintiff must prove the truth or, actually, the
falsity of the statements alleged as slanderous, to recover damages. While
the Plaintiff is a private figure, the Defendant is protected by its First
Amendment freedom of press rights against a suit for slander, Dhen a
plaintiff cannot prove that it published false statements and, thereby
showing that it was at fault.

Dissent. The dissent held that a private-party plaintiff should not have to bear the burden
of showing certain statements to be false, in order to recover damages based in slander.
According to Justice Stevens, "deliberate, malicious character assassination is not
protected by the First Amendment to the United States Constitution." The First
Amendment does not require the target of defamation to prove his assailant was at fault.

Discussion. The First Amendment affords a newspaper great leniency in what it

publishes. In this case, the Plaintiff could not prove that the Defendant had knowingly
printed false statements, and thus, the Defendant could not be held liable for slander.
319 Milkovich v. Lorain Journal Co.
Milkovich v. Lorain Journal Co.

Citation. 497 U.S. 1 (1990).

Brief Fact Summary. Milkovich (Petitioner) brought suit against Lorain Journal Co.
(Respondent), when it published an article, which implied Petitioner had lied under oath
in a judicial proceeding.

Synopsis of Rule of Law. The First Amendment does not preclude a newspaper from
being sued for libel, when a plaintiff can show that statements published were an attack
on reputation.

Facts. Milkovich was the wrestling coach at Maple Heights High School in Ohio. During
the 1974 season, the team was involved in an altercation at a home match, during which
several people were injured. After the altercation, the Ohio High School Athletic
Association (OSHAA) placed the team on probation. Then, several parents and students
sued the OSHAA, in the Court of Common Pleas, seeking a restraining order of the
probation, on the grounds that due process had not been afforded to the members of the
team. The court overturned the conviction and, the next day, Respondent published an
article alleging that Petitioner had lied so the probation would be overturned. Petitioner
brought suit, alleging defamation.

Issue. Whether a newspaper can be held liable for defamation, when it publishes an
article about a private figure which, albeit opinion, was designed as a character attack?

Held. Reversed.

• The Court reversed the lower court ruling that the article constituted a
constitutionally protected opinion, and held that while the First
Amendment does guarantee uninhibited speech, the important social
values underlying the law of defamation recognize a strong interest in
preventing and redressing character attacks.

Discussion. The First Amendment gives great leniency to newspapers and their
journalists; however, the constitution also recognizes that defamation can exist, when an
article is published specifically to attack another's character.
320 Sindorf v. Jacron Sales Co., Inc.
Sindorf v. Jacron Sales Co., Inc.

Citation. 341 A.2d 856 (Md. App. 1975).

Brief Fact Summary. Sindorf (Plaintiff) brought suit against his former employer,
Defendant, for defamation, after he learned that Defendant had made derogatory remarks
about him to his new employer.

Synopsis of Rule of Law. While a conditional privilege may exist, when two parties are
discussing another party they have in common, and there is truth to the discussion, the
question of whether the communication was made out of malice is still a proper question
for a jury.

Facts. Plaintiff, Defendant's former employee, resigned after a dispute as to his sales
practice. After Plaintiff sought employment with a competitor, Defendant's Vice
President called Plaintiff's new employer and made derogatory insinuations regarding
Plaintiff's honesty. Plaintiff brought suit for defamation. The trial court held that the
conversation between Plaintiff's current and former employers was privileged, and
directed verdict for Defendant. Plaintiff appealed.

Issue. This case considers whether a conditional privilege exists in defamation suits
where the Plaintiff is a former employee of the Defendant.

Held. Reversed.

• The court reversed the judgment, holding that a privilege may exist
where the truth is in question. The question of malice must be for a jury,
and Plaintiff may be afforded the opportunity to bring suit.

Discussion. When considering whether a communication was made with malice, the
question will be presented to a jury for determination.
321

C
H
A
P
T
E
R

X
V
I
I
I
.

P
r
i
v
a
c
y
322 Joe Dickerson & Associates, LLC v. Dittmar
Joe Dickerson & Associates, LLC v. Dittmar

Citation. 34 P.3d 995 (Colo. 2001)

Brief Fact Summary. A private investigator published an article in a newsletter about an

alleged fraud perpetrated by someone he was investigating. The alleged perpetrator of the
fraud sued, charging that the private investigator profited off her likeness.

Synopsis of Rule of Law. The elements of the tort of invasion of privacy by

appropriation of another's name or likeness are: "(1) the defendant used the plaintiff's
name or likeness; (2) the use of the plaintiff's name or likeness was for the defendant's
own purposes or benefit, commercially or otherwise; (3) the plaintiff suffered damages;
and (4) the defendant caused the damages incurred."

Facts. The Defendants, Joe Dickerson & Associates, LLC and Joe Dickerson ("Mr.
Dickerson") (the "Defendants"), were hired to investigate the Plaintiff, Rosanne Marie
(Brock) Dittmar (the "Plaintiff"), during a custody dispute. While conducting his
investigation into the custody issue, Mr. Dittmar noticed something improper in the way
the Plaintiff came to possess certain bearer bonds. Mr. Dittmar provided the authorities
with what he learned during his investigation. As a result, the Plaintiff was charged with,
and convicted of, theft of the bearer bonds. Mr. Dickerson published a newsletter called
"The Dickerson Report", in which he discussed various aspects of financial fraud. The
article at issue here was entitled "Fraud-DuJour Five Cases, 100%+ Recovery". In this
article, Mr. Dickerson discussed among other instances of fraud, how the Plaintiff came
to fraudulently be in possession of the bearer bonds. Mr. Dickerson discussed his
investigation of the Plaintiff, and included the Plaintiff's name and photograph. The
Plaintiff sued the Defendants on various tort theories, including "defamation, outrageous
conduct, and invasion of privacy by appropriation of another's name or likeness." The
trial court granted the Defendants summary judgment on all claims. The trial court
specifically recognized Colorado had not explicitly adopted invasion of privacy by
appropriation of another's name or likeness. Additionally, "even assuming the tort was
cognizable under Colorado law, Dittmar 'present[ed] no evidence that her name or
likeness had any value.' " The Court of Appeals agreed with the trial court, and found that
"this tort requires the defendant to appropriate certain values associated with the
plaintiff's name or likeness: 'In order for liability to exist, the defendant must have
appropriated to his or her own use or benefit the reputation, prestige, social or
commercial standing, public interest or other values of the plaintiff's name or likeness.' "

Issue. "[W]hether the tort of invasion of privacy based on appropriation of another's

name or likeness is cognizable under Colorado law"?

• "[I]f yes, whether an appropriation claim requires evidence that the plaintiff's
name has an exploitable value"?

• "[W]hether the article constituted constitutionally protected speech"?

323 Joe Dickerson & Associates, LLC v. Dittmar
Held. Yes. "[T]he tort of invasion of privacy by appropriation of another's name or
likeness is cognizable under Colorado law." This tort's elements are "(1) the defendant
used the plaintiff's name or likeness; (2) the use of the plaintiff's name or likeness was for
the defendant's own purposes or benefit, commercially or otherwise; (3) the plaintiff
suffered damages; and (4) the defendant caused the damages incurred."

• Mr. Dickerson argued that the Plaintiff "presented no evidence that her name
and likeness had any value." The court observed, quoting [Motschenbacher v
R.J. Reynolds Tobacco Co.], that "[i]t is true that the injury suffered from an
appropriation of the attributes of one's identity may be 'mental and subjective'-
-in the nature of humiliation, embarrassment and outrage. However, where the
identity appropriated has a commercial value, the injury may be largely, or
even wholly, of an economic or material nature." Accordingly, the court
refused to require a Plaintiff to prove that their name or likeness had any
value, when only seeking personal damages.

• The Defendants additionally argued that since the article at issue related to
an issue of public concern, it was constitutionally protected speech. The court
observed, "[i]n the context of invasion of privacy by appropriation of name
and likeness, there is a First Amendment privilege that permits the use of a
plaintiff's name or likeness when that use is made in the context of, and
reasonably relates to, a publication concerning a matter that is newsworthy or
of legitimate public concern." The court also recognized that, "[i]n many
situations, however, it is not altogether clear whether a particular use of a
person's name or likeness is made for the purpose of communicating news or
for the purpose of marketing a product or service." To determine whether the
use of ones likeness was commercial in nature "courts must determine
whether the character of the publication is primarily noncommercial, in which
case the privilege will apply, or primarily commercial, in which case the
privilege will not apply." Pursuant to this test, "an article that has commercial
undertones may still be protected if it concerns a legitimate matter of public
concern."

• The court observed they had "found no precedent where a convicted felon
has brought a tort claim of wrongful appropriation of her identity based upon
the defendant's republication of truthful information about her conviction."
The court then defined commercial speech as "speech that proposes a
commercial transaction". Further, it recognized that a "profit motive does not
transform a publication regarding a legitimate matter of public concern into
commercial speech." The court concluded "that the defendant's publication
was primarily noncommercial because it related to a matter of public concern,
namely the facts of the plaintiff's crime and felony conviction." Additionally,
"[i]n the context of a discussion of the plaintiff's crime and felony conviction,
which are legitimate matters of public concern, the use of her name and
picture cannot be described as a primarily commercial usage of her identity."
It was also irrelevant that the article in question did not appear in a traditional
newspaper. The court then held "the publication of a plaintiff's name and
324 Joe Dickerson & Associates, LLC v. Dittmar
likeness in connection with a truthful article regarding the plaintiff's felony
conviction is privileged."

Discussion. "In a seminal law review article, William Prosser described invasion of
privacy as a complex of four related torts: (1) unreasonable intrusion upon the seclusion
of another; (2) publicity that places another in a false light before the public; (3) public
disclosure of embarrassing private facts about another; and (4) appropriation of another's
name or likeness."
325 Sanders v. American Broadcasting Companies, Inc., et al.
Sanders v. American Broadcasting Companies, Inc., et al.

Citation. 20 Cal. 4th 907, 978 P.2d 67, 85 Cal. Rptr.2d 909 (Cal. 1999)

Brief Fact Summary. An undercover reporter obtained a job at a "telespsychic"

company. The undercover reporter audio and video taped certain interactions she had
with an employee of the "telepsychic company".

Synopsis of Rule of Law. The court held "where the other elements of the intrusion tort
are proven, the cause of action is not defeated as a matter of law simply because the
events or conversations upon which the defendant allegedly intruded were not completely
private from all other eyes and ears."

Facts. The Defendants, were Stacy Lescht ("Ms. Lescht"), a reporter and her employer
American Broadcasting Companies, Inc. (the "Defendants"). Ms. Lescht obtained
employment as a "telepsychic" with the Psychic Marketing Group (PMG). The Plaintiff,
Mark Sanders (the "Plaintiff") was also employed by PMG. Ms. Lescht wore a wire while
working in one of PMG's offices and videotaped, with a hat cam, various conversations
between herself, and other coworkers, including the Plaintiff. The Plaintiff brought suit
alleging various causes of action including "the tort of invasion of privacy by intrusion."
The jury found for the Plaintiff on the invasion of privacy by intrusion action, but the
Court of Appeal reversed finding that a defense to another cause of action, a violation of
Penal Code section 632, established that the Plaintiff had no reasonable expectation of
privacy in his workplace conversation because they could be overheard by others in the
office.

Issue. "May a person who lacks a reasonable expectation of complete privacy in a

conversation because it could be seen and overheard by coworkers (but not the general
public) nevertheless have a claim for invasion of privacy by intrusion based on a
television reporter's covert videotaping of that conversation?"

Held. Yes. The court relied upon [Shulman v. Group W Productions, Inc.] and "adhere[d]
to the view suggested in Shulman: privacy, for purposes of the intrusion tort, is not a
binary, all-or-nothing characteristic. There are degrees and nuances to societal
recognition of our expectations of privacy: the fact that the privacy one expects in a given
setting is not complete or absolute does not render the expectation unreasonable as a
matter of law." The court observed that seclusion is not an absolute construct and "[l]ike
'privacy,' the concept of 'seclusion' is relative. The mere fact that a person can be seen by
someone does not automatically mean that he or she can legally be forced to be subject to
being seen by everyone." Further, "[p]rivacy for purposes of the intrusion tort must be
evaluated with respect to the identity of the alleged intruder and the nature of the
intrusion."

• "[D]ecisions on the common law and statutory protection of workplace

privacy show that the same analysis applies in the workplace as in other
settings; consequently, an employee may, under some circumstances, have a
326 Sanders v. American Broadcasting Companies, Inc., et al.
reasonable expectation of visual or aural privacy against electronic intrusion
by a stranger to the workplace, despite the possibility that the conversations
and interactions at issue could be witnessed by coworkers or the employer."

• The court concluded "that in the workplace, as elsewhere, the reasonableness

of a person's expectation of visual and aural privacy depends not only on who
might have been able to observe the subject interaction, but on the identity of
the claimed intruder and the means of intrusion." Accordingly, "a person who
lacks a reasonable expectation of complete privacy in a conversation, because
it could be seen and overheard by coworkers (but not the general public), may
nevertheless have a claim for invasion of privacy by intrusion based on a
television reporter's covert videotaping of that conversation."

• "In an office or other workplace to which the general public does not have
unfettered access, employees may enjoy a limited, but legitimate, expectation
that their conversations and other interactions will not be secretly videotaped
by undercover television reporters, even though those conversations may not
have been completely private from the participants' coworkers." Instead, the
court says that any analysis of a legitimate expectation of privacy must be
done on a case by case basis. Further, "liability under the intrusion tort
requires that the invasion be highly offensive to a reasonable person,
considering, among other factors, the motive of the alleged intruder."

Discussion. It is important to recognize the court refused to hold that "investigative

journalists necessarily commit a tort by secretly recording events and conversations in
offices, stores or other workplaces."
327 Hall v. Post
Hall v. Post

Citation. 323 N.C. 259, 372 S.E.2d 711

Brief Fact Summary. Certain true and accurate facts about the adoption of a child were
published in two newspaper articles. The publication of the stories allegedly caused
certain persons emotional distress.

Synopsis of Rule of Law. "[C]laims for invasions of privacy by publication of true but
'private' facts are not cognizable at law in this State."

Facts. The Plaintiffs, Susie Hall and her adoptive mother Mary Hall (the "Plaintiffs"),
brought an action against the Defendant, Rose Post (the "Defendant"), a reporter for the
Salisbury Post. The Defendant authored a story published in the July 18, 1984 edition of
the Salisbury Post, concerning the abandonment of a baby. The individuals who
abandoned the baby, Aledith Gottschalk ("Mrs. Gottschalk") and Clarence Maxson ("Mr.
Maxson"), allegedly made arrangements for a babysitter named Mary Hall to keep the
baby for a few weeks. After those few weeks, Mr. Maxon told Mrs. Gottschalk that
adoption papers were signed. The alleged abandonment took place in September of 1967.
Mrs. Gottschalk was married to Lee Gottschalk ("Mr. Gottschalk") in 1984, and they
wished to find Mrs. Gottschalk's adopted child. The July 18, 1984 article discussed the
details of their unsuccessful search for the baby, and informed the paper's readers about
the hotel where Mr. Gottschalk and Mrs. Gottschalk were staying. Somebody called Mr.
Gottschalk and Mrs. Gottschalk at the hotel referenced in the first article, and informed
them about the whereabouts of the missing child. A second article, dated July 20, 1984,
authored by the Defendant, talked about how Mr. Gottschalk and Mrs. Gottschalk found
the child and documented the Plaintiffs' involvement in the child's life. The Plaintiffs
alleged that they fled there home in order to avoid public attention resulting from the
articles and that each experienced substantial amounts of emotional and mental distress.

Issue. "[W]hether claims for tortious invasion of privacy by truthful public disclosure of
'private' facts concerning the plaintiffs are cognizable at law in North Carolina"?

Held. No. For the purposes of this decision, the court only concerned itself with the
"private facts branch of the invasion of privacy tort." In other words, the branch of the
invasion of privacy tort referred to as "the public disclosure of public facts." This was an
issue of first impression for the court. The court recognized that all the facts published in
the two articles were true and accurate in every respect. According to the Restatement,
liability under this tort attached "where the matter publicized is of a kind that (a) would
be highly offensive to a reasonable person, and (b) is not of legitimate concern to the
public." Four elements must be proven to recover under this cause of action including:
"(1) publicity; (2) private facts; (3) offensiveness; and (4) absence of legitimate public
concern." As to the fourth, the court observed "[i]n determining what is a matter of
legitimate public interest, account must be taken of the customs and conventions of the
community; and in the last analysis what is proper becomes a matter of the community
328 Hall v. Post
mores. The line is to be drawn when the publicity ceases to be the giving of information
to which the public is entitled, and becomes a morbid and sensational prying into private
lives for its own sake, with which a reasonable member of the public, with decent
standards, would say that he has no concern."

• The court first observed "decisions of the Supreme Court of the United
States, scholarly articles and the Restatement make it clear that the private
facts branch of the invasion of privacy tort is, at the very best, constitutionally
suspect." Second, "the constitutionally suspect private facts branch of the
invasion of privacy tort will almost never provide a plaintiff with any
advantage not duplicated or overlapped by the tort of intentional infliction of
emotional distress and possibly by other torts such as trespass or intrusive
invasion of privacy." Based on these two observations, the court concluded
"that any possible benefits which might accrue to plaintiffs are entirely
insufficient to justify adoption of the constitutionally suspect private facts
invasion of privacy tort which punishes defendants for the typically American
act of broadly proclaiming the truth by speech or writing."

Concurrence. The concurring justice agreed with the majority, and felt that summary
judgment was appropriately entered against the Plaintiffs. However, the justice did "not
concur in the reasoning of the majority which leads it to 'reject the notion of a claim for
relief for invasion of privacy by public disclosure of true but 'private' facts.' " The
concurring justice agreed with the Court of Appeals, which found that the "the resolution
of the conflicting rights [freedom of the press, secured by the First Amendment, and an
individual's right to be left alone] lies in the "application of a 'newsworthiness' or 'public
interest' standard in determining what publications are constitutionally privileged and
what publications are actionable." " In determining whether something was of legitimate
public concern, the concurrence advocated the adoption of the Restatement standard set
forth above. The justice would have concluded the article did not constitute "morbid and
sensational prying into private lives for its own sake." Instead, the stories were of a public
interest and concern because Mrs. Gottschalk "returned to Salisbury in search of her
daughter, whom she had abandoned seventeen years earlier."

Discussion. "A review of the current tort law of all American jurisdictions reveals cases
identifying at least four types of invasion of four different interests in privacy: (1)
appropriation, for the defendant's advantage, of the plaintiff's name or likeness; (2)
intrusion upon the plaintiff's seclusion or solitude or into his private affairs; (3) public
disclosure of private facts about the plaintiff; and (4) publicity which places the plaintiff
in a false light in the public eye."
329 Cantrell v. Forest City Publishing Co.
Cantrell v. Forest City Publishing Co.

Citation. 419 U.S. 245 (1974).

Brief Fact Summary. Mrs. Cantrell and her children (Plaintiffs) brought suit against
Forest City Publishing Co. (Defendant), when its publication, The Plain Dealer,
published a feature story stressing Plaintiffs' poverty.

Synopsis of Rule of Law. The First Amendment does not preclude a plaintiff from
recovering against a media defendant who uses falsehoods in reporting on a matter of
public concern.

Facts. In 1967, Mrs. Cantrell's husband was killed during a collapse of a bridge. The
Plain Dealer covered the story, focusing on the death of Mr. Cantrell and its impact on his
family. Several months thereafter, the Plain Dealer returned to write a follow-up on the
family. They went to Plaintiffs' residence, spoke with the children, and took pictures.
Mrs. Cantrell was not home when the reporters appeared. Later, an article was published,
stressing the family's poverty and the impact of the bridge disaster. The article also
alluded to Mrs. Cantrell's presence and attributed characteristics to her expression that did
not take place. Mrs. Cantrell and her children brought suit, claiming they had been
depicted in a false light, under the theory of invasion of privacy. After trial, the district
court denied Plaintiffs' demand for punitive damages, but allowed some damages for
Mrs. Cantrell. The court of appeals found that the district court should not have allowed
recovery, and reversed maintaining that verdict should have been directed. The Supreme
Court of the United States granted certiorari.

Issue. Whether the court of appeals acted appropriately when it set aside a jury verdict on
an invasion of privacy claim, when the Defendant was a media publisher?

Held. Reversed.

• The Supreme Court held that the paper did publish falsehoods, and as
such, was liable for the actions of its reporters, for damages sustained by
the Plaintiffs.

Discussion. While reporters can claim First Amendment privilege when they report on
issues of public concern, they may not hide behind this privilege when their stories
knowingly represent Plaintiffs in a false light.
330 Hustler Magazine v. Falwell
Hustler Magazine v. Falwell

Citation. 485 U.S. 46 (1988).

Brief Fact Summary. After Hustler Magazine and Larry Flynt (Petitioners) published an
advertisement, depicting Jerry Falwell (Respondent) as having his "first time" in an
outhouse with his month, the reverend brought suit based on invasion of privacy, libel
and intentional infliction of emotional distress.

Synopsis of Rule of Law. When an advertisement parodying a public figure depicts facts
which no reasonable person could take as true, that figure cannot prevail under a theory
of emotional distress.

Facts. The November 1983 issue of Hustler Magazine featured a parody of an

advertisement for Campari Liqueur that had the name and picture of Respondent, and was
entitled "Jerry Falwell talks about his first time." The parody was designed to mimic
other Campari ads, which pointed to the idea of the "first time" someone tasted Campari
Liqueur. The parody depicted Respondent's first time as a drunken, incestuous encounter
with his mother in an outhouse. Respondent brought suit against Petitioners, alleging
invasion of privacy, libel and intentional infliction of emotional distress. The district
court and the United States Court of Appeals for the Fourth Circuit found for Petitioner
on the defamation and invasion of privacy claims, on the basis that no reasonable person
would consider the parody as true. The same courts held for Respondent on the issue of
intentional infliction of emotional distress. The Supreme Court of the United States
granted certiorari.

Issue. This case considers whether an award of damages for intentional infliction of
emotional distress to the victim of a parody is consistent with the First Amendment
freedom of the press.

Held. Reversed.

• The Court found that to uphold the judgment of the lower courts would
affect all political satire. Public officials and public figures were held
unable to recover in emotional distress, when they could not prove that the
publication was made knowingly, with actual malice. A parody, while
admittedly in bad taste, is not considered malicious.

Discussion. The important rule to understand here is how the court's decision turned on
Respondent's status. If Respondent had been a private individual, arguably, his right of
privacy would have allowed him to recover for emotional distress. Because Respondent
was a public figure, he could not prevail in defamation, nor could he claim emotional
distress.
331

C
H
A
P
T
E
R

X
I
X
.

C
i
v
i
l

R
i
g
h
t
s
332 Ashby v. White
Ashby v. White

Citation. 92 Eng.Rep. 126 (Court of King's Bench, 1702).

Brief Fact Summary. After a free burgess of a corporation was precluded from voting,
he brought suit to recover as to the injuries he suffered.

Synopsis of Rule of Law. When the actions of one party hinder the rights of another, that
party may be found liable.

Facts. Ashby (Plaintiff) a free burgess, was precluded from being able to exercise his
right to vote, by the actions of another, and he brought suit when he sustained injury.

Issue. This question presents among the first issues grounded in civil rights.

• The issue of this case is whether one party may recover damages when
one of his civil rights is hindered by the action of another.

Held. Chief Justice Holt held that a plaintiff ought to be allowed to recover, because the
right to vote is a common law right and thus, an obstruction of that right should give rise
to a cause of action.

Dissent. The majority in the Court of King's Bench actually held that the verdict for the
Plaintiff should be reversed.

Discussion. When the actions of one person serve to hinder the rights of another, a cause
of action may arise.
333 Camp v. Gregory
Camp v. Gregory

Citation. 67 F.3d 1286 (7th Cir. 1995).

Brief Fact Summary. After a child, Anthony Young (Young), had been placed under the
guardianship of the Department of Children and Family Services (DCFS), was killed, his
aunt, Elnora Camp, (Plaintiff) brought suit, contending the child was denied substantive
due process, when the DCFS failed to place him in a safe environment.

Synopsis of Rule of Law. A state may be held liable for the deprivation of a child's
rights, but state officials may not be held liable when they are acting in their capacity.

Facts. Plaintiff assumed guardianship of Young after his mother's medical condition
rendered her unable to care for her child. Plaintiff realized she could not provide the
supervision that Young needed and petitioned the state to allow DCFS to assume
guardianship of the boy. After Young was assigned a social worker, Gregory, he was
returned to his aunt's care. Thereafter, Plaintiff wrote to Gregory, requesting that better
supervision be provided. Her requests went unanswered and, within three months, Young
was killed. Plaintiff brought suit, alleging that Young had been denied substantive due
process when Gregory ignored the court's order of supervision. The district court
dismissed the suit, believing Gregory was shielded form liability for his decision on
Young's placement. Plaintiff appealed.

Issue. Whether the state and its social worker had a duty to protect their charge when
they assumed guardianship of a child?

Held. Affirmed.

• The Seventh Circuit affirmed the decision of the district court, however,
its grounds were different. The Seventh Circuit found there was a positive
duty to protect Young, which had been breached. However, the court also
found that Gregory was acting as a state official and was due qualified
immunity for his actions.

Discussion. The important consideration arising from this case is that a state may be held
liable for the deprivation of a child's rights, but state officials may not be held liable when
they are acting in their capacity.
334 Memphis Community School Dist. v. Stachura
Memphis Community School Dist. v. Stachura

Citation. 477 U.S. 299 (1986).

Brief Fact Summary. After a seventh grade teacher (Respondent) was suspended for
showing sexually explicit materials in his life-science course, he brought suit alleging he
was deprived of liberty and property without due process.

Synopsis of Rule of Law. When dealing with the violation of constitutional rights,
compensatory damages are available for measurable harms suffered.

Facts. Respondent was a seventh grade teacher in Petitioner's school. After several
parents complained about his teaching methods, Respondent was suspended. Although he
was later reinstated, Respondent brought suit alleging deprivation of his civil rights. The
district court and court of appeals found the Petitioner liable and awarded Respondent
compensatory and punitive damages. Petitioner appealed, and the Supreme Court of the
United States granted certiorari to consider whether damages were appropriate when they
were awarded for the "deprivation of any constitutional right."

Issue. Whether damages are appropriate whenever a constitutional right is violated?

Held. Reversed and Remanded.

• The Supreme Court reversed and remanded for a new trial, strictly to
deal with the issue of compensatory damages. The Court found that
compensatory damages may include pecuniary losses, as well as injuries
such as impairment of reputation, but they could not necessarily be for the
"deprivation of a constitutional right," without a showing that harm was
suffered for that deprivation.

Concurrence. Justice Marshall concurred, noting that in some cases, the violation of a
constitutional right may cause harm sufficient to allow reparation.

Discussion. Compensatory damages are available when a civil right, such as life, liberty
or property, has been violated. However, without showing that an injury has occurred, the
deprivation of a constitutional right, alone, may not lead to a separate class of damages.
335

CHAPTER XX.
Misuse Of Legal
Procedure
336 Texas Skaggs, Inc. v. Graves
Texas Skaggs, Inc. v. Graves

Citation. 582 S.W.2d 863 (Tex. Civ. App. 1979).

Brief Fact Summary. Sharon Graves (Plaintiff) brought suit against Texas Skaggs, Inc.
(Defendant), her former employer, after they prosecuted her on two checks she had
already paid.

Synopsis of Rule of Law. When a defendant determines to prosecute another individual,

without probable cause, and that person can prove malice, an action for malicious
prosecution may be upheld.

Facts. Plaintiff worked for Defendant, a grocery, until she was fired. Thereafter, she
continued to buy groceries at the store. After she and her husband separated, Plaintiff was
unaware he had cleaned out her checking account, and she wrote two checks, totaling
$34.70, to the store, which were returned insufficient. As soon as she realized the
mistake, she made a deal to pay the checks, "as soon as she could get the money," and
she did this in a reasonable time. After the checks were paid, the store manager filed an
incident report and had Plaintiff arrested under the state's hot check law. Plaintiff then
filed suit, based on misuse of legal process. At trial, the jury found that Defendant did not
have probable cause in prosecuting Plaintiff, and awarded her damages. Defendant
appealed.

Issue. Whether a plaintiff has a viable cause of action based on malicious prosecution,
when that plaintiff has written and acknowledged checks for which there were
insufficient funds?

Held. Affirmed. In affirming the judgment of the lower court, the Texas Court of Civil
Appeals looked at the elements for a cause of action for malicious prosecution:

• a criminal prosecution must be instituted by the defendant against the

plaintiff. In this case, Defendant instituted prosecution on bad checks,
against Plaintiff;

• the proceedings must be terminated in favor of the plaintiff. Defendant's

prosecution of Plaintiff was terminated, because she had paid the checks,
and they could not produce them;

• there should be an absence of probable cause for the proceeding.

Defendant did not have probable cause in prosecuting Plaintiff. She was
well-known to the employees of the store, the checks she wrote were
small, and she immediately made restitution for them;

• Malice. Defendant's manager was determined to prosecute Plaintiff,

regardless of the fact that she had made payment on the checks; and
337 Texas Skaggs, Inc. v. Graves
• Damages. Plaintiff sustained damage to her reputation as she was
arrested and paraded through the store as a thief, in front of friends and
former coworkers.

Discussion. All of the above-enumerated damages must be taken into consideration when
considering whether a cause of action for malicious prosecution will stand.
338 Friedman v. Dozorc
Friedman v. Dozorc

Citation. 312 N.W.2d 585 (Mich. 1981).

Brief Fact Summary. After Dozorc (Defendant) sued Dr. Friedman (Plaintiff) for
medical malpractice and lost, Plaintiff counter-sued for misuse of legal process.

Synopsis of Rule of Law. Just because a defendant prevails in a personal injury action, it
does not necessarily lend to a claim against plaintiff's council for misuse of process.

Facts. Leona Serafin entered Outer Drive Hospital, where she was referred to Plaintiff
for urological consultation. Plaintiff recommended kidney-stone surgery, after which
Mrs. Serafin died from a rare blood disease. Defendant, an attorney, filed a malpractice
action on behalf of the deceased's husband. After the posture of the case, the judge
entered a directed verdict because the blood disease was the cause of death. Then,
Plaintiff brought suit against Defendant, based on misuse of process. The trial court
granted summary judgment for Defendant, which was affirmed, in part, and reversed in
part by the court of appeals.

Issue. Whether an attorney owes a duty to a potential defendant, to properly research a

claim before bringing suit, a breach of which duty would lead to a cause for misuse of
process?

Held. The judgment of the trial court was reinstated.

• In reaching its conclusion, the Supreme Court of Michigan held that an

attorney is not an insurer to his client's adversary that his client will win
litigation. An attorney has a duty to represent his client zealously; and he
may, without being guilty of malicious prosecution, pursue litigation, the
outcome of which he unsure.

Discussion. While malicious prosecution may be a proper claim to bring for frivolous
law suits, the Plaintiff must still show actual malice. If an attorney brings a suit, on behalf
of his client, that he does not know the outcome of, without malice, he cannot be guilty of
malicious prosecution.
339 Grainger v. Hill
Grainger v. Hill

Citation. 132 Eng.Rep. 769 (Court of Common Pleas, 1838).

Brief Fact Summary. Plaintiff brought suit after Defendant had him arrested when
Defendant accelerated payments on a mortgage that he had due to them.

Synopsis of Rule of Law. Abuse of process in order to extort an outcome from another
party is actionable.

Facts. Plaintiff mortgaged his vessel to Defendant, with an agreement to repay within a
certain time period. Defendant sought to compel Plaintiff to give up title to the vessel,
without which he could not work, and threatened him with prison if he did not comply or
pay the mortgage in full. When Plaintiff refused, Defendant had him arrested, and
Plaintiff brought suit.

Issue. This case is among the first cases, which considers whether abuse of legal process
is actionable in a court of law.

Held. The Court of Common Please held that Plaintiff did have a cause of action, and
thus denied nonsuit. Additionally, the court held this cause was an action for abusing the
process of law, by applying it to extort property.

Discussion. Abuse of process, in order to extort property, or apply duress is actionable.

340

C
H
A
P
T
E
R

X
X
I
.

M
341 Swinton v. Whitinsville Savings Bank
Swinton v. Whitinsville Savings Bank

Citation. 42 N.E.2d 808 (Mass. 1942).

Brief Fact Summary. Plaintiff brought suit after he bought a house from Defendant,
which was later found to be infested by termites.

Synopsis of Rule of Law. This case fails to extend tort liability for nondisclosure in a
contract situation.

Facts. Plaintiff bought a house from Defendant, which he intended to occupy with his
family. After learning the house was infested by termites, Plaintiff brought suit based on
nondisclosure, claiming that Defendant breached its duty to Plaintiff when it knowingly
failed to disclose the condition of the property. Plaintiff sought damages in tort, based on
a duty-breach negligence standard. The lower court demurred Plaintiff's declaration, and
Plaintiff appealed.

Issue. This case considers whether nondisclosure in a contractual situation can also lead
to tort damages.

Held. Affirmed.

• The court found the Defendant was not liable for failure to disclose a
non-apparent defect, when it may not have known of the defect. The
demurrer of Plaintiff's declaration that Defendant knowingly failed to
disclose the condition of the property was proper.

Discussion. While a seller is contractually obligated to disclose non-apparent defects, he

may not be held liable, in tort, for nondisclosure, without a showing of malice.
342 Griffith v. Byers Constr. Co. of Kansas, Inc.
Griffith v. Byers Constr. Co. of Kansas, Inc.

Citation. 510 P.2d 198 (Kan. 1973).

Brief Fact Summary. After Plaintiffs learned that the soil of their properties had a saline
condition, they brought suit against Byers Construction Co. of Kansas, Inc. (Defendant),
based on breach of implied warranty of fitness and fraud in concealment of a material
matter.

Synopsis of Rule of Law. When a defendant is aware of a material condition that will
affect a plaintiff's buying condition, and he conceals that condition, he may be guilty of
fraudulent concealment, in tort, as well as breach of implied warranty of fitness.

Facts. Defendant developed and advertised a subdivision as a residential area. Prior to

development of the subdivision, the land was a part of an abandoned oil field, which
contained saltwater disposal areas. Despite the saline content of the soil, Defendant
marketed and developed the land in such a manner that a purchaser could not discover the
presence of the areas of salt. After houses were constructed, attempts to landscape the
land failed, and the homeowners brought suit based on the fact that Defendant knew or
should have known of the content of the soil and fraudulently concealed that fact. The
district court entered summary judgment for Defendant, and Plaintiffs appealed.

Issue. This case explores whether concealment of the condition of land, which was
known by Defendant, was fraudulent concealment in tort.

Held. The Supreme Court of Kansas affirmed the summary judgment regarding the
implied warranty of fitness, and reversed the summary judgment as to the claim of fraud
in concealment.

• In reaching its conclusions, the court held that the implied warranty of
fitness was not breached, because the land could still be used for its
purpose, which was to house residential dwellings. However, the court
found, because Defendant knew or should have known of the condition of
the soil, it fraudulently concealed that fact.

Discussion. The implied warranty of fitness can only be breached if the vendor knows of
the particular use the vendee plans for the property. Because the vendee did not specify
that they would landscape, the warranty was not breached. However, because the vendor
was aware of a material defect of the land, which caused it to be unfit for ordinarily use,
their failure to disclose that defect was actionable under fraudulent concealment.
343 Derry v. Peek
Derry v. Peek

Citation. 14 App.Cas. 337 (House of Lords, 1889).

Brief Fact Summary. Plaintiff brought suit after it bought shares in Defendant's
company, under the belief that Defendant would have the right to use steam power, as
opposed to other companies, which would not.

Synopsis of Rule of Law. Misrepresentation, alone, is not sufficient to prove deceit.

Facts. Plaintiff received a prospectus regarding the incorporation of Defendant's

company, which highlighted that the company would have the right to use steam or
mechanical power. After receiving the prospectus, Plaintiff bought shares of the
company, relying on the allegations of the prospectus, and believing that the company
had the absolute right to use steam or mechanical power. The board of trade refused to
allow steam or mechanical power, and the company was wound up, unable to complete
its work. Thereafter, Plaintiff brought suit against Defendant for fraudulent
misrepresentations. The trial judge dismissed the action, after coming to the conclusion
that the directors knew that the use of steam or mechanical power was contingent on the
board of trade and it was not unreasonable or deceitful for them to rely on the board. On
appeal, the dismissal was reversed, because the court found that the Defendants may have
reasonably believed the prospectus and, because they did not have reasonable grounds for
what they wrote in the prospectus, they should be held liable for Plaintiff's reliance.
Defendant appealed.

Issue. Whether it is deceit when a company forms a prospectus to solicit investors, which
later proves to be wrong?

Held. Reversed.

• The House of Lords reversed the judgment of the court of appeals, and
reinstated the judgment of the lower court. The court found this to be an
action of deceit, under which the establishment of misrepresentation alone
is not enough to prove liability. In this case, Plaintiff relied on the
prospectus, which may have been misrepresentation, but Defendants
reasonably believed they could glean approval of the board of trade and
should not be held liable for their later failure to do so.

Discussion. An action of deceit will only stand in a court when a plaintiff can show not
only misrepresentation, but also that defendants knew they would be unable to follow
through with their representations.
344 International Products Co. v. Erie R.R. Co.
International Products Co. v. Erie R.R. Co.

Citation. 155 N.E. 662 (N.Y. 1927).

Brief Fact Summary. Erie R.R. Co. (Plaintiff) bought insurance when it was assured by
International Products Co. (Defendant) that its goods were stored at a certain location,
and it later learned that the goods had been stored at another location, where they were
ultimately destroyed.

Synopsis of Rule of Law. A cause of action for negligent statements may be upheld
when a plaintiff is harmed by relying on a defendant's words.

Facts. Plaintiff entered into a deal with Defendant to receive and store its goods until
they could be shipped. According to the terms of their arrangement, once the goods were
stored, Plaintiff was to buy insurance for the goods. After Plaintiff inquired about the
location of the goods, and was told where they were by Defendant, Plaintiff obtained
insurance for that location. The goods actually arrived later, and were stored at a different
location, where they were destroyed by fire. Plaintiff brought suit for restitution in the
amount they would have received had the goods been properly insured. The trial court
and appellate divisions directed verdict for the Plaintiff, and Defendant appealed.

Issue. This case considers whether liability stems from negligent language.

Held. Affirmed.

• While previous law (see Derry v. Peek) held that no cause of action for a
mere statement would be maintainable, the court in this case found that the
denial of such a cause of action undermines notions of fairness. The court
found that the Defendant had a duty to speak with care, when it knew that
Plaintiff was acting in reliance of its statement, which from the terms of
the agreement was apparent in this case.

Discussion. This case overrules Derry v. Peek, and says that a cause of action for
misrepresentation may be upheld when a defendant can be reasonably assured that a
plaintiff is acting in reliance of his words.
345 Winter v. G.P. Putnam's Sons
Winter v. G.P. Putnam's Sons

Citation. 938 F.2d 1033 (9th Cir. 1991).

Brief Fact Summary. After becoming critically ill from eating mushrooms designated as
safe in The Encyclopedia of Mushrooms, published by G.P. Putnam's Sons (Defendant),
Plaintiffs brought suit for misrepresentation, alleging that the book contained erroneous
and misleading information.

Synopsis of Rule of Law. A publisher will not be held liable for misrepresentation when
it publishes a book of another's work.

Facts. Plaintiffs bought a copy of The Encyclopedia of Mushrooms to help them collect
and eat wild mushrooms. After relying on the descriptions in the books, Plaintiffs ate
some mushrooms, which rendered them critically ill, and they both required liver
transplants. Plaintiffs brought suit based on misrepresentation against Defendant, as
publishers of the book. The district court granted summary judgment, and Plaintiffs
appealed.

Issue. Whether liability for misrepresentation extends to a publisher of a book?

Held. Affirmed.

• In affirming the judgment of the district court, the United States Court of
Appeals for the Ninth Circuit held that a publisher does not have a duty to
act as a guarantor for the contents of all books that it publishes.

Discussion. Summary judgment was proper in this case, because holding defendant liable
for the actions of an author would create an implicit guarantorship among all publishers
of all books.
346 Hanberry v. Hearst Corp.
Hanberry v. Hearst Corp.

Citation. 276 Cal.App.2d 680 (Cal. App. 1969).

Brief Fact Summary. After Plaintiff slipped and sustained several injuries from a
"slippery and unsafe" pair of shoes, she brought suit against Defendant, who had awarded
the shoes the "Good Housekeeping's Consumers' Guaranty Seal."

Synopsis of Rule of Law. While a publisher may not be held liable for
misrepresentations by an author, an advertiser who gives a consumer guarantee may be
held liable when a product does not live up to that guarantee.

Facts. Plaintiff bought a pair of shoes, relying on the Good Housekeeping Seal of
Approval, that the shoes were certified good and that the advertising claims for them
were truthful. After purchasing the shoes, Plaintiff slipped and fell and sustained several
physical injuries. She brought suit against Defendant that had awarded the consumer
guaranty. The district court dismissed Plaintiff's case and she appealed.

Issue. Whether a magazine that gives a consumer guaranty to a product will later be held
liable when a product does not live up to that guaranty?

Held. Reversed.

• The appellate court reversed the dismissal, because a consumer guaranty

seal purposefully induces consumers, such as Plaintiff, to rely on it in
buying a product.

Discussion. The important consideration in this case is the consumer guaranty. While a
publisher or advertiser of a product cannot usually be held liable for its defects, if it gives
a consumer guaranty which induces members of the public to buy its products, it will
generally be held to the terms of that guaranty, because it has extended a duty to the
public by making said guaranty.
347 Richard v. A. Waldman and Sons, Inc.
Richard v. A. Waldman and Sons, Inc.

Citation. 232 A.2d 307 (Conn. 1967).

Brief Fact Summary. After a Plaintiff bought land relying on a survey from Waldman
and Sons, Inc. (Defendant), he brought suit when he realized the survey lines were
incomplete and that his house was too close to the boundary line of the property.

Synopsis of Rule of Law. In a contract for sale, a defendant may be held liable, in tort,
for representations upon which a plaintiff is induced to rely.

Facts. Plaintiff bought a lot according to a plan prepared by Defendant, which showed a
side yard of 20 feet, in accordance with the minimum requirements for the lot according
to the local zoning regulations. After Plaintiff received delivery of the deeds, he
discovered that that the house was only 1.8 feet from the boundary, instead of the
required 20 feet. Plaintiff brought suit, based on allegations of false representation in
connection with the sale of the land. Plaintiff obtained a judgment for damages and
Defendant appealed.

Issue. Whether a Defendant is liable for misrepresentation, when it did not realize of the
mistake of fact until after it completed a sale to Plaintiff.

Held. Affirmed.

• The court affirmed the judgment of the lower court, maintaining that
Plaintiffs purchased the land because he relied on Defendant's
representations, and Defendant had a duty to insure that their
representations were correct.

Discussion. A defendant seller has an affirmative duty to insure that its representations,
which may induce a plaintiff to make a purchase, are correct. When a plaintiff is injured
by his reliance on defendant's representations, a cause of action for those damages may
be upheld.
348 Credit Alliance Corporation v. Arthur Andersen & Co.
Credit Alliance Corporation v. Arthur Andersen & Co.

Citation. 483 N.E.2d 110 (N.Y. 1985).

Brief Fact Summary. This is an appeal to the Court of Appeals of New York from two
cases which both took on the issue of accountant liability to third parties for disclosures
made in financial reporting.

Synopsis of Rule of Law. Accountants will not be held liable to third parties who rely on
their financial statements absent privity, or a showing that the accounting firm knew or
should have known that the party would rely on their statements in extending credit.

Facts. The facts of both cases are as follows:

• In Credit Alliance Corp. v. Arthur Anderson & Co., Plaintiffs brought

suit against Arthur Anderson & Co. (Defendant) for failure to conduct
investigations in accordance with proper auditing standards, when
Plaintiffs relied on Defendant's financial reports in lending money to
another party. The lower courts denied Defendant's Motion to Dismiss and
certified a question to the court of appeals, regarding whether their order
was correct.

• In European Am. Bank & Trust Co. v. Strahs & Kaye, the bank brought
suit against Defendant for exaggeration of another company's assets,
which Plaintiff relied on in lending money to an insolvent company. In
that case, the appellate division reversed a dismissal of Plaintiff's
complaint on the grounds that Defendant knew or should have known that
Plaintiff was relying on their statements. A similar question was certified
to the court of appeals for decision.

Issue. Whether an accountant may be held liable, absent privity, to a third party who
relies to his detriment on a negligently prepared financial statement?

Held. The holdings of the two cases differ:

• In Credit Alliance, the court held that there was no privity and that
Defendant could not have known that a form report, which it presented to
its client would eventually be relied upon by Plaintiff.

• In European Am., the court held that under its facts, the Defendant knew
it was preparing reports that would be used to obtain credit, and they were
liable to Plaintiff to the extent of their reliance.

Discussion. In analyzing the holding of these cases, it is important to see the distinction.
The Defendant in European Am. was aware that their financial statements would be used
by outside creditors. In Credit Alliance, Defendant prepared form reports, which it gave
349 Credit Alliance Corporation v. Arthur Andersen & Co.
to its clients. It did not reasonably know that those reports would be given to another
party.
350 Citizens State Bank v. Timm, Schmidt & Co.
Citizens State Bank v. Timm, Schmidt & Co.

Citation. 335 N.W.2d 361 (Wis. 1983).

Brief Fact Summary. Plaintiff brought suit against Defendant after it relied on
Defendant's financial statements in extending cash to a company, which later went
bankrupt.

Synopsis of Rule of Law. Accountants may be held liable to third parties when it is
foreseeable that they will rely on the accountant's reporting.

Facts. Defendant prepared the financial statements of Clintonville Fire Apparatus, Inc.
(CFA), and certified that it prepared its statements in accordance with generally accepted
accounting principals. CFA obtained loans from Plaintiff, relying on Defendant's
statements. Defendant later discovered mistakes, totaling $400,000.00, in Plaintiff's
statements and notified creditors that called all of their loans due. CFA went into
receivership and was later liquidated and dissolved. Plaintiff brought suit against
Defendant for amounts still owed on loans they made in reliance of their statements. The
trial court granted summary judgment and the court of appeals affirmed.

Issue. Whether an accountant can be held liable to a creditor when that creditor relies on
the accountant's financial reporting in extending credit to a company that is later found to
be insolvent?

Held. Reversed and remanded.

• In coming to its holding, the Supreme Court of Wisconsin considered

prior case law which held that an accountant could not be held liable to a
party not in privity. The Court decided to overrule prior case law, holding
that absent a showing that public policy was to the contrary, it was not
unfair to hold an account liable for another party's damages sustained in
reliance on the accountant's reports.

Discussion. The holding in this case is in line with other case law. While an accountant
may not be held liable when damages are unforeseen to another party, he may be held
liable when it is foreseeable that another party will rely on his reports.
351 Ultramares Corporation v. Touche
Ultramares Corporation v. Touche

Citation. 174 N.E. 441 (N.Y. 1931).

Brief Fact Summary. Ultramares (Plaintiff) made loans to accountant's (Defendant's)

clients after relying on Defendant's financial statements. Defendant's client went bankrupt
and plaintiff brought suit seeking to extend liability to the accountant for negligence in
financial reporting and, alternatively, seeking recovery on a fraud theory.

Synopsis of Rule of Law. An accountant may be liable to a third party who relies on his
financial reporting, if that third party can prove that the reports were confected by
fraudulent means.

Facts. Defendant prepared certified balance sheets for its clients that disbursed them to
several companies, including the Plaintiff. Relying on the certification of the financial
statements, Plaintiff extended credit to Defendant's client that went bankrupt one month
later. Plaintiff brought suit based on a third party theory of liability, which was struck
down by the Court of Appeals of New York, which noted that under such circumstances,
permitting recovery by parties such as the Plaintiff would have been to impose a duty
upon accountants that would be enforceable by an indeterminate class of potential
plaintiffs. The court of appeals determined whether the defendant was liable, in tort, for
fraudulent misrepresentation.

Issue. Whether fraud in inducement or misrepresentation can be extended to an

accountant by a third party who relies on the accountant's reporting to extend credit.

Held. Reversed.

• On this theory of liability the court of appeals reversed and

recommended new trial. The court found that the Defendant could be held
liable for fraud, if Plaintiff could prove Defendant did not fulfill its duty of
inspection when it certified its client's financial reports.

Discussion. This case presents the seminal opinion regarding accountant liability. A third
party, not in privity, may not sue an accountant for damages sustained by negligent
reporting, but it may bring suit for damages, if it can prove fraudulent reporting.
352 Williams v. Rank & Son Buick, Inc.
Williams v. Rank & Son Buick, Inc.

Citation. 170 N.W.2d 807 (Wis. 1969).

Brief Fact Summary. Plaintiff brought suit against Rank & Son Buick, Inc. (Defendant),
for misrepresentation, when Plaintiff bought a car, purported to have air-conditioning, but
did not.

Synopsis of Rule of Law. A plaintiff's reliance will be considered when determining

whether he sustained damages from a misrepresentation.

Facts. Plaintiff bought a car from Defendant, and the salesperson told him the car was
air-conditioned. Several days after he bought the car, Plaintiff realized the knobs that
were marked "air" were for ventilation, not air-conditioning. Plaintiff brought suit for
fraudulent misrepresentation and received a judgment for $150.00 in damages. Defendant
appealed.

Issue. This case considers the issue of reliance in oral misrepresentation.

Held. Reversed.

• The court reversed the judgment of the lower court, maintaining while
the oral misrepresentation was made, Plaintiff failed to mitigate his
damages, by not examining the car himself, to determine the presence of
air condition. In such a case, the Plaintiff could not claim reliance on the
misrepresentation, especially when a reasonable man would have
inspected the vehicle before purchase.

Dissent. Justice Wilkie dissented, holding that the fraudulent misrepresentation, in itself,
gave the Plaintiff a cause, regardless of reliance.

Discussion. While, in misrepresentation cases, a plaintiff who is fraudulently induced

may recover damages, the court will also consider the role of the plaintiff's reliance, in
comparison to the reliance made by a reasonable man.
353 Saxby v. Southern Land Co.
Saxby v. Southern Land Co.

Citation. 63 S.E. 423 (Va. 1909).

Brief Fact Summary. Plaintiff brought suit against Defendant after he bought a farm,
based on defendant's representations that the farm had more timberland than it actually
did.

Synopsis of Rule of Law. When a representation is actually an opinion, a plaintiff cannot

claim to rely on it in seeking damages, if plaintiff later learns that defendant's estimate
was not exact.

Facts. Plaintiff contracted to purchase the Winslow farm, under the representation that
the far contained at least 150 acres of pine timber, of which 20 acres had been burned.
After acquiring the farm, Plaintiff learned there were about 120 acres in timber, of which
60 acres had been burned over. Plaintiff brought suit for fraudulent representations,
which was dismissed. Plaintiff appealed.

Issue. This case considers whether a statement of opinion will hold a defendant liable
when a plaintiff relies on it in acquiring land.

Held. Affirmed.

• The court, considering the facts of the agreement between Plaintiff and
Defendant, found that no fraudulent misrepresentations were made.
Defendant opined as to the acreage of timber and burned land, as well as
to soil quality. These statements were opinion, and the court found it
unfair to hold defendant to the exact value of the land, when the future
quality of the land could not be determined at the time of the sale.

Discussion. Statements of opinion are not fraudulent representations in the sense that a
plaintiff can recover if an opinion does not meet expectations.
354 Vulcan Metals Co. v. Simmons Mfg. Co.
Vulcan Metals Co. v. Simmons Mfg. Co.

Citation. 248 Fed. 853 (2nd Cir. 1918).

Brief Fact Summary. Simmons Mfg. Co. (Plaintiff) brought suit against Vulcan Metals
Co. (Defendant) after it relied on Defendant's representations as to the quality of
machinery purchased, as well as representations that the machinery had not been put on
the market for sale.

Synopsis of Rule of Law. While a plaintiff cannot bring an action for misrepresentation
based on an opinion, the line becomes blurred when representations as to the status of the
product are also made.

Facts. Defendant marketed machinery to be used for the manufacture of vacuum

cleaners. When dealing with Plaintiff, Defendant made representations of the quality of
the machinery, as well as the fact that the cleaners had never been put on the market or
offered for sale. After the cleaners proved not to be what Plaintiff had bargained for, they
brought suit based on misrepresentations. The trial court directed verdict for Plaintiff and
Defendant appealed.

Issue. Whether a plaintiff can recover, in misrepresentation, for statements beyond the
quality of a product?

Held. New trial ordered.

• In considering the facts of this case, the court held that Plaintiff could not
prevail against Defendant, in misrepresentation, for the claims it made
about the quality of the cleaners, but Plaintiff may be able to prevail in its
claims against Defendant for its representations that the product had not
been put on the market. Those claims were not opinion, but fact, and could
be considered misrepresentations.

Discussion. When considering misrepresentation, it is important to distinguish between

statements of opinion and fact, in determining whether a defendant can be held liable.
355 Sorenson v. Gardner
Sorenson v. Gardner

Citation. 334 P. 2d 471.

Brief Fact Summary. The Defendants, Mr. and Mrs. Gardner (Defendants), sold the
Plaintiffs, Mr. and Mrs. Sorenson (Plaintiffs), a piece of property. The Plaintiffs sued the
Defendants for deceit, alleging they misrepresented the value of the property.

Synopsis of Rule of Law. The tort of deceit is committed if one makes a representation
of law that would lead a reasonable person to a set of factual assumptions that would lead
to the legal conclusion.

Facts. The Defendants sold the Plaintiffs a house. They told the Defendants that the
house was constructed in a workmanlike manner and met all code requirements and that
the pump could deliver 950 gallons of water per hour.

• The Plaintiffs sued the Defendants and were awarded, by the jury, a
judgment of $2,000.

• The court instructed the jury to find that damages were the difference
between the value of the house as represented to the Plaintiffs by the
Defendants and the actual value of the house. In determining the value of
the house as represented, the jury was instructed to use, only statements
made by the Defendants.

• The Defendants appealed, alleging that the jury received the wrong
instructions on how to award damages and that they were not liable for the
misrepresentations as they were legal conclusions or statements of
opinion, and that they were third parties to the transaction and made no
representations to the Plaintiffs.

Issue. Are the Defendant's liable for the statements in question?

• Did the court err in instructing the jury how to award damages?

Held. Yes, on both counts.

• The rule is that misstatements of law do not make the speaker liable for
the misrepresentation because people are presumed to know the law. This
is not a defense to the Defendant's statements about the construction of the
house because they are not, so much, making a legal conclusion as making
a statement that would lead a reasonable person to believe certain facts -
that the house was constructed in a workmanlike manner. As for the
statement about the well, there is no question, given that the Defendant's
gave an exact figure that was a statement of fact, not an opinion.
356 Sorenson v. Gardner
• The Court did not consider the question of the Defendants being third
parties because their counsel did not raid this objection during trial.

• As for the instructions, the correct instructions were the difference

between the fair market value of the property if it were as it was
represented and the price paid. The jury did not get the information it
needed to determine if the Plaintiffs had any losses at all, therefore, this
case shall be reversed and remanded.

Discussion. The court ponders the problem of representations of fact and representations
of law. They acknowledged the basic, though perhaps unreasonable, assumption, that all
people are presumed to know the law and thus, there can be no action for
misrepresentation of the law. Their reasoning allows for persons who were deceived by
statements concerning the law to recover if those statements induced the persons to
believe certain facts that were incorrect.
357 McElrath v. Electric Investment Co.
McElrath v. Electric Investment Co.

Citation. 141 N.W. 380.

Brief Fact Summary. The Plaintiff, McElrath (Plaintiff), and the Defendant, Electrical
Investment Co. (Defendant), made a contract for the Plaintiff to lease, for a term of years,
a summer house the Defendant owned. The Defendant stated that over the next year, an
electric railroad would be built to the area near the summer house. No electric rail road
was built and the Plaintiff sued.

Synopsis of Rule of Law. False representations, known to be false, that certain events
will occur, if they were designed to induce some action in the hearer, may be the basis for
a case of deceit.

Facts. The Plaintiff sued the Defendant for fraud and deceit based on a statement that the
Defendant made during negotiations for a contract to lease a summer house.

• The Defendant stated that during the next summer, the Minneapolis, St.
Paul, Rochester & Debuque Electric Traction Company would build an
electric rail road to the area where the summer house was located. They
stated that this would make the area a major attraction for the area and the
Plaintiffs would turn a profit on renting the summer house.

• No railroad was built. The Plaintiff sued the Defendant, alleging, they
knew no railroad would be built and made the statement to induce the
Plaintiff to lease the summer house.

Issue. Can the statements made by the Defendant, concerning the construction of the
railroad be the basis for a case of deceit?

Held. Yes.

• The Defendant contends that the statements were statements of future

intent, and thus, not the proper basis for a case of deceit. However, if the
statements were know by the maker to be false and were said for the
purpose of making the Plaintiff enter in to a contract, then they can be held
liable for deceit.

• The statements about the area becoming a major attraction and the
profits the Plaintiff could make by subleasing the summer house were
mere conjecture and not a basis for an action for deceit.

Discussion. If a person makes a statements of future plans, knowing that they are false, in
order to induce someone to take certain actions, those statements can be the basis for an
action for deceit.
358 Burgdorfer v.Thielemann
Burgdorfer v.Thielemann

Citation. 55 P.2d.1122.

Brief Fact Summary. The Plaintiff and the Defendant made a contract to buy land. The
Plaintiff alleged that the Defendant misrepresented the value of the land and agreed to
pay off a mortgage on the land when the Defendant had no such intent.

Synopsis of Rule of Law. Failure to follow the Statute of Frauds (SOF) is not a defense
in a case alleging deceit.

Facts. The Plaintiff and the Defendant made a contract for the Plaintiff to buy and the
Defendant to sell land.

• In the negotiations for the sale, the Plaintiff alleged that the Defendant
said the value of the land was much higher than it was. The Defendant
said another party offered to buy the property for a certain amount of
money when no such offer had been made.

• The Plaintiff further, alleged that the Defendant told the Plaintiff he
would pay off the $500 mortgage on the land, but the Defendant had no
intent of doing so and that he, in fact, did not do so.

• During negotiations, the Plaintiff told the Defendant that the Plaintiff had
little experience and knowledge in real estate and that he trusted the
Defendant to tell him what he needed to know.

• At trial, the Defendant denied all the allegations of the Plaintiff,

including the promise to pay off the mortgage.

• The trial court ruled in favor of the Plaintiff. The Defendant appealed
alleging the court erred in allowing the Plaintiff to testify about the
promise to pay off the mortgage because it could not be accomplished in a
year and fell under the SOF. The Defendant also appealed the court's not
granting the Defendant's motions for dismissal and directed verdict.

Issue. Was it reversible error to allow the Plaintiff to testify about an agreement that fell
within the SOF?

• Did the trial court err in not granting the Defendant's motions for
dismissal and direct verdict?

Held. No, on both counts.

• An action for deceit is proved by showing the defendant made a

statement in order to induce action in the plaintiff that defendant knew to
be false. In this case, one of the Plaintiff's complaints is that the Defendant
said he
359 Burgdorfer v.Thielemann
would pay off the mortgage when the Defendant had not intention of
doing so. The cases the Defendant cites in support of his appeal do not
deal with the tort of deceit, but rather conflict found in contract. The SOF
s is not a defense to a charge of deceit.

• The Defendant supports his appeals having to do with the motions for
directed verdict by citing cases with similar facts, tried in equity, where
the appeals court heard the cases de novo and declined to find for the
Plaintiff. We, a court of law do not decide questions of fact. That is for the
jury. Rather we determine whether or not there is enough evidence to
support a jury's finding. We find that there was sufficient evidence for the
jury's findings.

Dissent. The SOF does not apply here, at all. The record indicates that the Defendant
intended to pay off the mortgage right away. Therefore, it did not take more than one year
to accomplish and the statute of frauds does not apply.

• It is error to say that the SOF does not apply to cases alleging deceit. The
purpose of the SOF is to protect against fraud and perjury in cases that
stemmed directly or indirectly from the oral promise. This purpose would
be defeated if the claimant could claim deceit and not have to follow the
SOF.

Discussion. A finding of deceit, while possible to derive from a set of facts that would
lead to a breach of contract, case, is not the same as a breach of contract case and the
same rules do not apply.
360 Hinkle v. Rockville Motor Co., Inc
Hinkle v. Rockville Motor Co., Inc

Citation. 278 A.2d 42.

Brief Fact Summary. The Defendant, Rockville Motor Co., Inc. (Defendant), sold the
Plaintiff, Hinkle (Plaintiff) a car, claiming it was "new". In fact, it had about 2000 miles
on it and had been in an accident, where the body was severed. The Plaintiff sued the
Defendant for the costs the Plaintiff would incur to fix the car.

Synopsis of Rule of Law. In a case of fraud or deceit, plaintiff need not show the actual
value of the misrepresented item at the time of purchase to make a case. It is enough that
plaintiff show there was deceit and that plaintiff incurred damages as a result of the
deceit.

Facts. The Plaintiff bought a car from the Defendant. The Defendant told the Plaintiff
that the car was new. In fact, there were 2000 miles on the speedometer and the car had
been in an accident.

• The Plaintiff noticed the mileage on the speedometer as he was driving

the car home. He returned to the Defendant's place of business. The
Defendant agreed to refund the Plaintiff the amount of his first payment in
exchange for him signing a release from further claims except for breach
of warranty.

• The Plaintiff found out, a few months later, that the car had been in an
accident. He sued the Defendant and had an expert witness testify as to the
amount of money the repairs would cost.

• The Defendant moved for and received a directed verdict from the trial
court on the basis that the Plaintiff has not given any evidence as to the
value of the car, as represented by the Defendant.

Issue. Was the trial court correct in granting the directed verdict in favor of the
Defendant?

Held. No.

• A review of Maryland case law shows a variety of ways a plaintiff in a

case of deceit may establish what his damages are: "(1) If the defrauded
party is content with the recovery of only the amount that he actually lost,
his damages will be measured under that rule; (2)if the fraudulent
representation also amounted to a warranty, recovery may be had for loss
of the bargain because a fraud accompanied by a broken promise should
cost the wrongdoer as much as the latter alone; (3) where the
circumstances disclosed by the proof are so vague as to cast virtually no
light upon the value of the property had it conformed to the
361 Hinkle v. Rockville Motor Co., Inc
representations, the court will award damages equal only to the loss
sustained.; and (4) where the damages under the benefit-of-the-bargain
rule are proved with sufficient certainty, that rule will be employed.""

• In this case, the Plaintiff made a prima fascia case for deceit and showed
that he sustained damages in having to repair his car.

Discussion. This case shows that it is only necessary to show that the Defendant
committed deceit and that the Plaintiff suffered damages because of it in order to recover.
362

CHAPTER XXII.
Interference With
Advantageous
Relationships
363 Ratcliffe v. Evans
Ratcliffe v. Evans

Citation. 2 Q.B. 524 (1892).

Brief Fact Summary. False and malicious information is published in a county

newspaper about a boiler maker business.

Synopsis of Rule of Law. General damages need to be proven in order to receive

compensation for false and malicious statements.

Facts. Ratcliffe and Sons (Plaintiff), an engineer and boiler maker business, argue that a
publisher of a county newspaper (Defendant) falsely and maliciously published certain
words indicating the Ratcliffe and Sons was no longer in business. The trial court
awarded Plaintiff monetary damages for Defendant's false statement purposely made
about the Plaintiff, which was intended to, and did in fact, cause him damage. The trial
court declared that the only proof at trial of damage consisted of general loss of business
without specific proof of the loss of any particular customers or orders. The appealed
because Plaintiff failed to show any special damages for its injuries.

Issue. Whether special damages need to be proven at trial to receive compensation for
false and malicious publication of Plaintiff's business affairs?

Held. (Justice Bowen). No. Plaintiffs are not required to prove special damages in order
to receive compensation for false and malicious publication of its business affairs.
Plaintiffs are only required to show general damages. Defendant's appeal is dismissed.

Discussion. The court seems to reserve the requirement of proving special damages to
more complex defamation cases. The opinion, however, fails to outline which cases
would require a showing of special damages.
364 Horning v. Hardy
Horning v. Hardy

Citation. 373 A.2d. 1273.

Brief Fact Summary. The Plaintiff, Albert C. Hardy (Plaintiff), brought suit against the
Defendants, William B. Martin, Phyllis Martin (the Martins), Joseph P. Horning, Jr. and
Lawrence E Horning (the Hornings), claiming that the Defendants had committed
trespass on the Plaintiff's land and seeking ejectment and damages. The Hornings filed a
cross claim against the Martins, from whom, they had purchased the land and a counter
claim against the Plaintiff for malicious interference with the contracts between them and
the Martins.

Synopsis of Rule of Law. In order for there to be a case of slander of title, the plaintiff
must prove that the defendant made statements he knew to be false for any reason or
made statements he knew might be false for the purpose of harming the plaintiff.

Facts. The Martins claimed ownership to a tract of land. They made a contract to sell it to
the Hornings. During the contract negotiations, the Plaintiff claimed ownership of the
land. The Plaintiff's council sent a letters to the Hornings and the Martins, warning them
of the Plaintiffs claim on the land and threatening suit. Negotiations soon broke down.

• The Hornings filed a counter claim against the Plaintiff for slander of
title with their contract with the Martins and a cross claim against the
Martins for breach of warranty.

Issue.

• Who has title to the land in question?

• Are the Hornings entitled to a judgment against the Martins?

• Do the Hornings have a case against the Plaintiff for malicious

interference with their contract with the Martins?

Held. The Martins have rightful title to the land in question.

• At trial, the Plaintiffs claimed title through a title deed and through
adverse possession. The court found that the Plaintiff did not have a claim
to title through adverse possession because they had not used the land in a
way that would give them title through adverse possession. While the trial
court found problems and unanswered questions with the chain of title on
the land in question, the Plaintiff failed to prove his case. A person wins a
case such as this on the strength of his title, not on the weakness of the
opponent's title.

• Because title belongs to the Martins, the Hornings are not entitled to a
judgment in their favor on the cross claim.
365 Horning v. Hardy
• The Hornings do not have a case of slander of title against the Plaintiffs.
The Plaintiff had the privilege of informing the Hornings and the Martins
that they might have title and in pursuing this case to find out one way or
another. They did not act, knowing that they did not have title, nor did
they act for the purpose of harming the Martins or the Hornings.

Discussion. The Horning's claim for slander of title did not succeed because the Plaintiff
did, reasonably believe that he had title to the land in question. The court determined that
the Plaintiff had enough evidence pointing to that conclusion to bring the suit. (Notice
that there is no mention of a motion to dismiss.) The Plaintiff was privileged to bring the
suit to protect the claim he believed he had on the property.
366 Testing Systems, Inc. v. Magnaflux Corp
Testing Systems, Inc. v. Magnaflux Corp

Citation. 251 F. Supp. 286.

Brief Fact Summary. The Plaintiff, Testing Systems, Inc. (Plaintiff) and the Defendant,
Magnaflux Corp. (Defendant), are both engaged in the same trade. The Defendant
published statements saying the United States Government had tested the Plaintiff's
product and the Defendant's product and found the Defendant's product to be 40% more
effective. This statement was untrue.

Synopsis of Rule of Law. For a party to sustain an action for trade libel, they must show
that the defendant made statements that are false and that these statements led to a loss of
business.

Facts. The Plaintiff and the Defendant are both in the business of making products to be
used in non-destructive testing.

• The Plaintiff alleges that the Defendant circulated written material

among the Plaintiff's current and potential customers, that the United
States Government had tested both the Plaintiff's and the Defendant's
product and found the Defendant's product to be 40% more effective.
Also, the Defendant's agent said, in a loud voice at a manufacturer's
convention "[Plaintiff's] stuff is no good and the government is throwing it
out."

• The Plaintiff sued the Defendant for trade libel. The trial court dismissed
the Plaintiff's case because the Plaintiff failed to show damages.

Issue. Should the Defendant's motion to dismiss the Plaintiff's claim for failure to state a
case be upheld?

Held. Yes, unless the Plaintiff can amend the claim to include specific clients he lost
because of the Defendant's slander, within thirty days.

• Normally, puffery and comparison between one's own product and

another's product is not actionable. Saying one's own product is superior to
a competitor is mere opinion. In this case, however, the Defendant made
specific claims about the government testing both products, finding the
Plaintiff's to be inferior and deciding to use the Defendant's product
instead. These are specific claims that are untrue and are actionable.

• In a case where the Defendant's actions are "libelous per se" the Plaintiff
need not specify damages.

• This case does not reach the level of "libelous per se". Therefore, the
Plaintiff must specify what damages the Plaintiff has suffered by stating
the loss of particular customers name or showing a loss of profits after the
statements that can be traced back to the statements.
367 Testing Systems, Inc. v. Magnaflux Corp
Discussion. Here, the court makes it clear that absent a showing of libel per se (The court
fails to say what, exactly that is.) one of the elements to sustain a case of trade liable is a
showing of damages.
368 Lumley v. Gye
Lumley v. Gye

Citation. 2 El. & Bl. 216, 118 Eng. Rep. 749 (1853).

Brief Fact Summary. Defendant intentionally and maliciously interferes with a business
contract causing one party to refuse to perform.

Synopsis of Rule of Law. Intentional and malicious interference with a business

relationship is a violation of a right, which provides a cause of action for a plaintiff.

Facts. Plaintiff, manager of the Queens Theatre for performing operas, entered into a
contract with a female performer to perform within the theatre at a designated time. The
performer agreed to perform at no other theatre during the period of the contract.
Defendant maliciously enticed and procured the female performer not to perform for
Plaintiff.

Issue. Whether the Plaintiff has a cause of action against a person who maliciously
interferes with a business contract which caused Plaintiff to sustain damages as a result of
the broken contract.

Held. (Justice Erle). Yes. Plaintiff has a cause of action against a person who maliciously
interferes with a business contract and causes Plaintiff to sustain damages as a result of
the broken contract. The Defendant violated Plaintiff's rights by intentionally and
maliciously created a situation which caused the female performer to break her contract
with Plaintiff. There are many cases that would support a cause of action under such a
scenario. Judgment for Plaintiff.

Discussion. The court makes one who breaks a contract equally liable as one who
intentionally and maliciously cause the interference with a contract.
369 Bacon v. St. Paul Union Stockyards Co.
Bacon v. St. Paul Union Stockyards Co.

Citation. 201 N.W. 326.

Brief Fact Summary. The Plaintiff, Bacon (Plaintiff), worked in the Defendant, St. Paul
Union Stockyards Co.'s (Defendant), place of business for several years. The Defendant
barred him from working there with any employer who would hire him. The Plaintiff,
maintaining the Defendant wrongfully barred him from the Defendant's place of business,
sued.

Synopsis of Rule of Law. The Plaintiff's showing of the Defendant's actions and the
damages suffered by the Plaintiff because of them, overcome the Defendant's motion for
dismissal of the Plaintiff's claim of libel.

Facts. For several years, the Plaintiff worked in and around the stockyards, managed by
the Defendant. The Defendant excluded the Plaintiff from the stockyards and did not
allow him to work there for any company.

• The Plaintiff sued the Defendant. The trial court dismissed his case.

Issue. Did the trial court err in dismissing the Plaintiff's claim?

Held. Yes.

• The Plaintiff showed that the Defendant performed certain actions and
those actions led to the Plaintiff's damages-his loss of employment. The
Defendant may have defenses for his actions, but the Defendant can show
them at trial.

Discussion. One cannot get more concise than in this case. The court said that a showing
by a plaintiff that the defendant acted a certain way and because of a defendant's actions a
plaintiff suffered damages, is enough to survive a motion to dismiss.
370 Della Penna v. Toyota Motor Sales, U.S.A., Inc.
Della Penna v. Toyota Motor Sales, U.S.A., Inc.

Citation. 902 P.2d 740.

Brief Fact Summary. The Plaintiff, Della Penna (Plaintiff), is a distributor of

automobiles. The Defendant, Toyota Motor Sales, U.S.A., Inc. (Defendant), made a
policy disallowing the sale and distribution of the Lexis line of cars outside the United
States. The Defendant published a list of "offenders", parties supposedly guilty of this
practice and told its franchise owners not to do business with them, threatening
punishment if they did.

Synopsis of Rule of Law. Showing that there was an interference with an economic
relationship is not enough to make a case for the tort of "interference with economic
relations". One must show that the interference was one that is outside what is considered
normal and proper business dealings.

Facts. The Plaintiff is a distributor of automobiles. The Defendant made a policy

whereby no United States Toyoda dealer could sell Lexis cars to parties outside the
United States.

• The Defendant compiled a list of parties who broke this policy and
distributed it to all the franchise owners. The Defendant said that if the
franchise owners did business with the parties on the list, they would face
sanctions from the Defendant, up to and including, the loss of the
franchise.

• The Plaintiff's name was on the list of offenders. The Plaintiff lost much
of its business because the Plaintiff was on the list.

• The Plaintiff sued the Defendant. The trial court gave the jury an
instruction that, for the jury to rule in favor of the Plaintiff, they must find
that the Defendant's actions were "wrongful". The court defined
"wrongful" as "outside the act of legitimate business transactions". The
jury ruled in favor of the Defendant. This was a departure from the usual
instructions that required ". . .the defendant [to] intentionally engage[ ] in
acts designed to interfere with or disrupt the relationship"

Issue. Was the trial court's instruction to the jury in error?

Held. No.

• Throughout history, there has been confusion over the tort of

"interference with economic relations". Many acts that might interfere
with economic relations are merely participation in a competitive
economic system. In order to recover for a disruption of economic
relationship, one must prove that the acts that lead to the disruption were
wrong - beyond what one
371 Della Penna v. Toyota Motor Sales, U.S.A., Inc.
would normally do to increase one's own business. Mere evidence that the
disruption happened is not enough to make a case for the tort of
interference with economic relations.

Concurrence. The judge agreed with the court's decision, but not with their conclusion
that the trial court's instructions were correct. He also found them to be too vague and not
helpful in defining what actions constitute behavior in a competitive economy and what
actions constitute tortuous interference.

Discussion. This case brings out two principles having to do with the tort of interference
with an economic relationship: Malicious motives are not enough to prove the tort and
neither is the mere existence of the disruption.
372 Adler, Barish, Daniels, Levin and Creskoff v. Epstein
Adler, Barish, Daniels, Levin and Creskoff v. Epstein

Citation. 393 Ad.2d 1175.

Brief Fact Summary. The Plaintiff, Adler, Barish, Daniels, Levin and Creskoff
(Plaintiff) is a law firm. The Defendants, Epstein and others (Defendants) are former
salaried associates. The Plaintiffs brought an action for injunctive relief to keep the
Defendants from soliciting the Plaintiff's clients to have the Defendants handle their
current legal projects.

Synopsis of Rule of Law. Soliciting a law firm's clients to break their contracts with the
firm and hire the solicitor instead is commercial speech not protected by the First
Amendment of the United States Constitution (Constitution). The injured party may find
relief in tort.

Facts. The Plaintiff is a law firm. The Defendants were salaried associates of the
Plaintiff. The Defendants decided to leave the Plaintiff's employ and start their own firm.
The Defendants met personally with clients whose cases they worked on while in the
Plaintiff's employ. The Defendants told the clients they were leaving the firm and invited
them to break their contracts with the Plaintiff and have the Defendants be their attorneys
instead. The Defendants also sent a mass mailer out to all the Plaintiff's current clients
that the Defendants had worked for. The mailer included a form to fill out that would
break their contract with the Plaintiff and a retention agreement for Defendants' new firm.
The Defendants also took out a $150,000 line of credit at a bank. As security, they listed
the value of the work they were doing for the clients as attorneys in Plaintiff's employ at
$500,000. The Plaintiff sued for an injunction, preventing the Defendants from contacting
the clients and soliciting them to hire the Defendants' new firm. The trial court granted
the injunction. The Court of Appeals reversed. The Plaintiff appealed to the Supreme
Court of Pennsylvania.

Issue. May the Plaintiff find relief in tort?

• Are the Defendants activities commercial speech protected by the First

Amendment of the Constitution?

Held. Yes, on the first count. No, on the second.

• The Plaintiff's activities are not protected by the First Amendment of the
Constitution. While the First Amendment of the Constitution does protect
commercial speech, that protection does not extend to this kind of targeted
campaign directed at the Plaintiff's clients who had active legal matters
pending. The First Amendment of the Constitution protects a lawyer's
right to advertise truthfully to the general public. The Defendants may
advertise to the public at large, which would include Plaintiff's clients, that
they are available to provide legal services. As it stands, the Code of
Professional Responsibility forbids lawyers from soliciting business from
373 Adler, Barish, Daniels, Levin and Creskoff v. Epstein
non-lawyers who have not sought out legal services and other kinds of
commercial speech of a sensitive nature may be regulated without
offending the First Amendment of the Constitution. Furthermore, the in
person solicitations that the Defendants engaged in, could put the clients
on the spot and pressure them to choose the Defendants over the Plaintiff,
thus, hindering their ability to make an intelligent, informed decision.

• Since the Court determined that the Defendant's activities are not
protected by the First Amendment of the Constitution, the Court turned to
whether the Plaintiff is entitled to relief. The common law has recognized,
since Lumley v. Gye, the tort of intentional, unprivileged interference with
contractual relations. It is clear that the Defendants sought to interfere with
the contractual relationship between the Plaintiff and its clients. In light of
what society continues proper, the court found that the Defendants action
offended the "rules of the game". The Plaintiff trusted the Defendants to
work as its agent to serve these clients. In turn, the Defendants betrayed
the Plaintiff's trust by trying to take the client's business away from the
Plaintiff

• Dissent. The Defendants' activities did not put undue pressure on the
clients to choose their services over the Plaintiff. Rather, it gave the clients
the option to have the Defendants represent them. Rather, their solicitation
gave the clients the chance to make an informed, intelligent decision that
the First Amendment of the Constitution is trying to protect.

Discussion. The court's decision, as opposed to exploring the relationship between the
tort of intentional interference with contractual relations and excepted business practice
in a competitive market economy, explores the relationship between the tort and the First
Amendment constitutional protection of commercial speech.
374 Brimelow v. Casson
Brimelow v. Casson

Citation. 1 Ch. 302 (1923).

Brief Fact Summary. A union representative intentionally induced a breach of contract

entered into between a chorus group manger and various theatres.

Synopsis of Rule of Law. Intentional interference with a contractual agreement may,

depending on the circumstance, be legally justified.

Facts. A manager of a chorus group underpaid members of the chorus group for their
various performances. A representative from the Actors' Association, a performance
union, persuaded owners of theatres to cancel contracts held with the manager of the
chorus group until higher wagers were paid to the chorus group members. A bill of equity
was brought on behalf of the manager and other owners of the group against the
representative of the union to enjoin them from inducing the breaches of contract.

Issue. Whether there is a legal justification for an intentional interference with a

contractual agreement?

Held. (Justice Russell). Yes. There may be a legal justification for an intentional
interference with a contractual agreement. "[p]rima facie interference with a man's
contractual rights and with his right to carry on his business as he wills is actionable; but
it is clear on the authorities that interference with contractual rights may be justified; a
fortiori the inducing of other not to contract with a person may be justified." The union
was forced to take extreme measures to end the practice of underpayment of the chorus
group members. These extreme measures included inducing the proprietors of theaters to
either break existing contracts or to refuse to enter into contracts. The manager of the
chorus group had a duty fix the problem of underpayment of the members. Therefore,
even though there is no bright-line rule for such cases, the circumstances in this case
allow for legal justification for interference with a contractual agreement. The action to
enjoin the union from interfering with the contract is dismissed with costs.

Discussion. This case is quite interesting because the Chancery Division makes a ruling
not by using any concrete rule set out by law or in other cases, but, the court, seems to go
with a moral or gut feel as to how to decide this case. The court is doubtful that the
manager of the chorus group would receive any "sympathy or support [from] decent men
and women."
375 Harmon v. Harmon
Harmon v. Harmon

Citation. 404 A.2d 1020.

Brief Fact Summary. The Plaintiff, Richard Harmon (Plaintiff), sued the Defendants,
Harold C. Harmon and Virginia S. Harmon (Defendants), Plaintiff's brother and sister in
law, for allegedly inducing the Plaintiff's mother by fraud and undue influence, to transfer
property to the Defendants, effectively disinheriting the Plaintiff.

Synopsis of Rule of Law. A party who, due to alleged wrongful interference from
another, may seek relief in tort for the loss of the expectation of gain.

Facts. The Plaintiff sued the Defendants, the Plaintiff's brother sister-in-law, for using
fraud and undue influence, to induce their mother to transfer property to the Defendants.
This effectively disinherited the Plaintiff. The mother in question was eighty seven years
old and in ill health. The mother had said, on other occasions, that she wanted the
Plaintiff and the Defendants to share the property, equally. The Plaintiff sued the
Defendant. The Plaintiff's case was dismissed.

Issue. May an expected legatee find relief in tort for wrongful interference with his
intended legacy?

Held. Yes. A plaintiff may sue in tort for interference causing the loss of an expected
interest. While it is true, that without the alleged undue influence, the Plaintiff's mother
may will her property to whomever she wants, the alleged interference has cost the
Plaintiff the expectation of the inheritance completely. The Plaintiff may sue, now, before
his mother has died so that the events that led to this suit will still be fresh in the
witnesses' minds and the court could hear from the mother.

Discussion. A person may sue for the loss of expected gain as well as the loss for actual
gain caused by wrongful interference by a third party.
376 Neibuhr v. Gage
Neibuhr v. Gage

Citation. 99 Minn. 149, 108 N.W. 884 (1906).

Brief Fact Summary. Plaintiff seeks recovery for damages resulting from duress and
identifies the recovery as that found under remedies for deceitful practices.

Synopsis of Rule of Law. The remedy for deceitful practices is the same for actions of
duress.

Facts. This action was brought to recover damages, which the Plaintiff claims he suffered
when he was forced to transfer certain shares of stock in a corporation to the Defendant
under duress. The trial court ruled in favor of the Plaintiff and denied the Defendant's
Motion for Judgment Notwithstanding the Verdict, but granted a new trial. The
Defendant contends that if the contract resulted from duress it was voidable, and the sole
remedy of the injured party was to either rescind and to restore the benefits, and then
bring an action at law for the property he lost, or bring an action in equity. Both parties
appealed.

Issue. Whether a party, who has been injured by duress, is entitled to the same remedies
as one who has been injured by deception?

Held. (Justice Elliott). Yes. A party injured by duress is entitled to same remedies as one
who has been injured by deception. There can be no distinction made between duress and
deception. The damages caused by the wrongdoer in either case is the same. The
remedies available to one who has been induced to part with his property or execute a
contract by ordinary fraud are well understood. One may keep what he has received
under the contract and bring an action to recover the damages which he has sustained by
reason of the fraud, or he may rescind the contract by his own act, and sue at law for what
he parted with by reason of the fraud, or he may sue in equity for a rescission of the
contract by the court and recover what he parted with upon such conditions as the court
may deem equitable. If he seeks equitable relief, he must proceed promptly and comply
with all conditions which equity imposes. If he elects to rescind by his own act and sue at
law for what he parted with by reason of the fraud, he must do all that he reasonably can
to place the Defendant in status quo. The action granting a new trial is reversed, with
directions to the trial court to enter a judgment in favor of the Plaintiff upon the verdict.

Discussion. The court views the word "deceit" as a synonymous with the word "duress."
"Fraud is ordinarily accomplished by deceit, but it is also accomplished by many other
practices. As commonly understood, fraud is a wrong accomplished by deception but
duress is a species of fraud in which compulsion in some form takes the place of
deception in accomplishing the injury."
377 Freeman & Mills, Inc. v. Belcher Oil Company
Freeman & Mills, Inc. v. Belcher Oil Company

Citation. 900 P.2d 669.

Brief Fact Summary. Freeman & Mills (Plaintiff) is awarded a tort remedy under its
breach of contract claim.

Synopsis of Rule of Law. Tort and breach of contract remedies should not be awarded
under the same claim unless the claim contains independent issues that support a claim
for each type of remedy.

Facts. A jury verdict was granted in favor of Plaintiff in its breach of contract action
against Belcher Oil Company (Defendant) for failing to pay accounting fees to Plaintiff
as part of a service agreement between the two parties. The jury awarded the Plaintiff
compensatory and punitive damages. The punitive damages were awarded as a remedy
under tort law since Defendant denied the existence of the contract and acted with
oppression, fraud, or malice. The court of appeals did not find a special relationship
between the parties, which would justify a tort theory, and therefore, reversed and
remanded the case on the issue of the Plaintiff's breach of contract claim. The court
reexamined the ruling in Seaman's Direct Buying Service, Inc. v. Standard Oil Co., 36
Cal. 3d 752 (1984), which allowed, in breach of contract case, a tort cause of action for
bad faith denial of contract.

Issue. Whether a party to a contract may recover in tort for another party's bad faith
denial of the contract's existence?

Held. (Justice Lucas). No. A party to a contract may not recover in tort for another party's
bad faith denial of the contract's existence. The holding in Seaman's Direct Buying
Service, Inc. v. Standard Oil Co. is overruled. Seaman's Direct Buying Service has left
many courts confused as to the scope and application of its holding. If there is no
independent duty arising from principles of tort law, then tort recovery should not be
considered an added remedy under breach of contract cases. If bad faith denials of
liability within the scope of Seaman were included in breach of contract cases, then
potentially every contract breach could also include a tort remedy. The judgment of the
court of appeals is affirmed.

Discussion. Even though the court decides not to include tort remedies with breach of
contract remedies, it does reserve tort remedies in implied covenant in insurance cases
and civil remedies created by legislation.
378 Nash v. Baker
Nash v. Baker

Citation. 522 P.2d 1335 (1974).

Brief Fact Summary. A mother (Appellant) brings an action on behalf of her minor
children against a woman who allegedly lured their father away from their family.

Synopsis of Rule of Law. Minor children do not have a cause of action against a woman
who lures their father away from their family.

Facts. The mother of five minor children, brings this action on behalf of her children and
in her own right alleging that a women lured her husband away by providing him with "a
finer home, sexual charms, and other inducements." The Appellant sought to recover
actual and punitive damages for alienation of the father's affections, interference with
their family relationships, and loss of consortium.

Issue. Whether any cause of action may be maintained on behalf of the minor children of
a marriage against a woman who entices away their father from the marital home?

Held. (Justice Romang). No. A cause of action may not be maintained on behalf of the
minor children of a marriage against a woman who entices their father from the marital
home. Common law did not recognize a child's right to sue his or her father in this
situation. The fact that the spouse has an action for alienation of affections, loss of
consortium, or criminal conversations does not require that a cause of action be given to
the child. The judgment of the lower court is affirmed.

Discussion. The court does not clearly state why a child could not bring this type of
action. It simply rejects Prosser's predictions that future cases may allow for a cause of
action because there has been an increase in the number of parents that have had a
divorce and remarried. One reason may be that the court intended to prevent an overload
of these types of case in court as a result of the increase in failed marriages, which the
court predicts will continue to increase.
379

CHAPT
ER
XXIII.
Torts In
The Age
Of
Statutes
380 Burnette v. Wahl
Burnette v. Wahl

Citation. 588 P.2d 1105 (1978).

Brief Fact Summary. Minor children brought an action against their mother for
emotional and psychological injury.

Synopsis of Rule of Law. The law does not provide any cause of action for children
claiming emotional and psychological injury resulting from the actions of a parent failing
to carry out his or her duties.

Facts. Plaintiffs are five minor children, aged two through eight who, through their
guardian, are bringing actions against their mothers (Defendants) for emotional and
psychological injury, caused by the failure of Defendants to perform their parental duties.
Plaintiffs appeal from orders of dismissal.

Issue. Whether children, claiming emotional and psychological injury, resulting from a
parent failing to carry out parental duties, have an action under tort law?

Held. (Justice Holman). No. Children do not have an action under tort law for emotional
and psychological injury resulting from a parent failing to carry out his or her parental
duties. These tort actions may impede the social agencies' abilities to carry out plans for
these children. These agencies are designated by statute to aid children, for whom there is
no hope of reestablishing a relationship with their respective families. Therefore, this is
not a proper case for tort litigation. Allowing these tort actions, do not solve the social
problem in the manner in which the legislature intended it to be resolved. The judgment
of the trial court is affirmed.

Dissent. The dissenting opinions are as follows:

• (Justice Lent). The community should conclude that the emotional harm,
which Plaintiffs suffered is monetarily compensable.

• (Justice Linde). The Plaintiffs have stated a claim of injury because they
suffered severe mental and emotional injuries as a result of being deserted
and abandoned by a parent that acted maliciously, intentionally, and with
cruel disregard of the consequences. This is conduct, which the legislature
has declared to be a crime, and may upon proper proof hold the parent
responsible in damages for these severe mental and emotional injuries.

Concurrence. The concurring opinions are as follows:

• (Justice Tongue). In cases involving physical injuries, the doctrine of

intra-family tort immunity has been abandoned by this court. However,
this does not mean that the doctrine should be abandoned when mental and
emotional injuries are alleged.
381 Burnette v. Wahl
• (Justice Lent). Plaintiff has failed to state a claim for outrageous conduct.

Discussion. The court seems to suggest that for a child to be successful in a claim for
emotional and psychological injuries, he or she must also provide some sort of physical
injury as well.
382 Nearing v. Weaver
Nearing v. Weaver

Citation. 670 P.2d 137 (Or. 1983).

Brief Fact Summary. An abuse prevention statute created an independent cause of

action under tort law that could be raised at the same time as a negligence action.

Synopsis of Rule of Law. Statutes may create an independent cause of action that would
allow a plaintiff to bring an action in negligence as well as other independent tort actions
by the statute's intended beneficiaries who were injured.

Facts. In 1977, the Legislative Assembly enacted the Abuse Prevention Act (Act) to
strengthen legal protection for persons threatened with assault by a present or former
spouse or a cohabitant. The means chosen for this purpose included the use of temporary
restraining orders, injunctions, and temporary child custody orders, and mandatory
provisions for a warrantless arrest upon probable cause of a person believed to have
violated such an order. Henrietta Nearing and her two children (Plaintiffs), alleged that
Martin Weaver (Weaver), the children's father and Ms. Nearing's husband, unlawfully
entered their home and assaulted their family. A restraining order was issued against
Weaver. After the order was issued, Weaver again illegally entered Plaintiffs' home,
assaulting the Plaintiffs and damaging their home. Plaintiffs state that that police officer
called to the home declined to arrest Weaver because he had not seen the husband on the
premises. Plaintiff also alleges that Weaver continued to seek entry into the home.
Plaintiffs' complaint states that the police officers of St. Helens, New Orleans
(Defendants), had knowledge that Weaver violated his restraining order. In addition, they
allege that the proximate result of their failure to arrest Weaver, was that Ms. Nearing
suffered acute emotional distress, difficulty sleeping, and psychological impairment. The
case is on appeal from the circuit court's summary judgment for Defendants, affirmed by
the court of appeals.

Issue. Whether Defendants can be held liable under the ordinary tort elements of a
negligence action and held liable for duties owed to the Act's intended beneficiaries?

Held. (Justice Linde). Yes. Defendants can be held liable under the ordinary tort elements
of a negligence action and for duties owed to the Act's intended beneficiaries. Officers
who knowingly fail to enforce a judicial order under the Act are potentially liable, under
tort law, for resulting harm to the psychiatric and physical health of the intended
beneficiaries of the judicial order. The Act imposes a specific duty by statute for the
benefit of individuals previously identified by a judicial order. The restraining order
clearly established a duty of Defendants toward the Plaintiffs under the Act. "[The Act]
prescribes that a peace officer 'shall arrest and take into custody a person without a
warrant' when the officer has probable cause to believe that an order under the statute has
been served and filed and that the person has violated the order." The widespread refusal
or failure of police officers to remove persons involved in episodes of domestic violence
resulted in the legislature revising the law to require mandatory arrest to prevent
violations of restraining orders. This case presents a specific duty of the Defendants
383 Nearing v. Weaver
toward Plaintiffs. The decision of the court of appeals affirming the summary judgment
must be reversed and the case remanded to the circuit court for further proceedings.

Dissent. (Justice Peterson). The majority opinion is inconsistent with a number of recent
decisions of this court. The court should be slow to hold public bodies and their
employees liable for damages arising from the failure to perform the duty imposed by this
Act. The majority's utterance is the first time that any strict liability doctrine has been
discussed or considered. On its own, the majority has converted the case to one of strict
liability without any argument by the parties.

Concurrence. (Justice Linde). The court's result was correct. However, the doctrine of
stare decisis mandates that the court follow precedent and reject the creation of strict
liability tort based upon a violation of this Act.

Discussion. It is difficult to determine whether the court, in this case, created a strict
liability tort, as suggested by the dissenting opinion, for the alleged actions or whether the
court is merely using the Act as its iron fist in assessing the facts of this particular case.
In its own defense, the court states that the decision did not create strict liability because
the liability is not absolute and that there are potential defenses. The court, however, does
not provide what kind of defenses could be raised which would provide a clear distinction
between this case and other cases dealing with strict liability.
384 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics

Citation. 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619.

Brief Fact Summary. Petitioner alleged damages resulting from a federal agent acting
unlawfully.

Synopsis of Rule of Law. Actions for damages may be brought against federal agents
acting unlawfully as they carry out their duties of the United States.

Facts. Petitioner's complaint alleged that agents of the Federal Bureau of Narcotics
(Respondents) acting under claim of federal authority, entered his apartment and arrested
him for alleged narcotics violations. The agents manacled Petitioner in front of his wife
and children, threatened to arrest the entire family, and searched the apartment. Petitioner
also alleges that the arrest was conducted with unreasonable force and without probable
cause. Petitioner sought $15,000.00 in damages for "great humiliation, embarrassment,
and mental suffering." The district court, on Respondents' motion, dismissed the
complaint on the ground, inter alia, that it failed to state a cause of action. The court of
appeals affirmed.

Issue. Whether a federal agent acting under color of his authority gives rise to a cause of
action for damages consequent upon his unconstitutional conduct.

Held. (Justice Brennan). Yes. An action for damages may be brought against federal
agents acting under the color of their authority but acting unconstitutionally. The
judgment is reversed. "The Fourth Amendment [of the United States Constitution]
provides that: '[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures shall not be violated . . . .'" Therefore,
those who have their rights violated under the Fourth Amendment by a federal agent
require protection under the Constitution. The Court has consistently ruled that "where
federally protected rights have been invaded, it has been the rule from the beginning that
courts will be alert to adjust their remedies so as to grant the necessary relief." The Fourth
Amendment, however, does not provide any monetary damages for injuries suffered as a
result of a federal agent acting unconstitutionally. However, when there is a general right
to sue under a federal statute, a court "may use any available remedy to make good the
wrong done." Petitioner is entitled to a cause of action and to recover monetary damages.
The court of appeals is reversed and remanded.

Dissent. The dissenting opinions are as follows:

• (Justice Burger). The Court's holding "judicially create[d] a damage

remedy not provided for by the Constitution and not enacted by
Congress."
385 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
• (J. Black). "[n]either Congress nor the State of New York has enacted
legislation creating such a right of action. For [the Court] to do so is …an
exercise of power that the Constitution does not give."

Concurrence. (J. Harlan). "[t]he federal courts do have the power to award damages for
violation of 'constitutionally protected interests.'"

Discussion. The Court recognizes an all encompassing remedy, under the Constitution,
that would enable federal courts to "use any available remedy to make good the wrong
done."
386 Alexander v. Sandoval
Alexander v. Sandoval

Citation. 532 U.S. 275 (2001)

Brief Fact Summary. The state of Alabama amended its Constitution to require all
driving tests to be administered in English. The constitutionality of this amendment was
at issue.

Synopsis of Rule of Law. Congress did not intend to create "a private right to enforce
regulations promulgated under § 602."

Facts. The Petitioner, James Alexander (the "Petitioner"), was the director of Alabama's
Department of Public Safety (the "Department"). The Department received grants of
financial assistance from both the United States Department of Justice ("DOJ") and
United States Department of Transportation. As such, the Department was subject to Title
VI of the Civil Rights Act of 1964 ("Title VI"). Section 601 of Title VI states, no person
shall, "on the ground of race, color, or national origin, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any program or
activity". Section 602 allowed federal agencies to promulgate regulations to "effectuate
the provisions" of §601. The DOJ adopted a regulation forbidding recipients of funding
from "utilize[ing] criteria or methods of administration which have the effect of
subjecting individuals to discrimination because of their race, color, or national origin
....". The state of Alabama amended a provision in its Constitution to make English "the
official language of the state of Alabama". Under the auspices of this amendment, and in
the name of public safety, the Department required all state driver's license tests be
administered in English. The Respondent, Sandoval (the "Respondent"), a class
representative, brought a class action suit to enjoin the English only driver's tests, arguing
that they violated the DOJ regulation, because they discriminated against non-English
speakers due to their national origin. The District Court enjoined the license test policy.
The Court of Appeals affirmed the District Court. Both the District Court and Court of
Appeals rejected the argument that Title VI did not create a private cause of action.

Issue. Can individuals bring a private cause of action "to enforce disparate-impact
regulations promulgated under Title VI of the Civil Rights Act of 1964"?

Held. No, "we have found no evidence anywhere in the text to suggest that Congress
intended to create a private right to enforce regulations promulgated under § 602." Judge
Antonin Scalia ("J. Scalia"), writing for the majority of the Supreme Court of the United
States ("Supreme Court"), first observed three aspects of Title VI that must be treated as
certainties. First, "private individuals may sue to enforce § 601 of Title VI and obtain
both injunctive relief and damages." Second, §601 only forbids intentional
discrimination. Third, for the purposes of this case, the Supreme Court assumed
"regulations promulgated under § 602 of Title VI may validly proscribe activities that
have a disparate impact on racial groups, even though such activities are permissible
under § 601." The majority relied upon [Central Bank of Denver, N.A. v First Interstate
Bank of Denver, N.A.] which found a "private plaintiff may not bring a [suit based on a
387 Alexander v. Sandoval
regulation] against a defendant for acts not prohibited by the text of [the statute]".
Accordingly, here, the Supreme Court found that a private right of action must be based
on §602.

• J. Scalia then discussed the Supreme Court's past precedents concerning

private rights of actions. The majority observed "[t]he judicial task is to
interpret the statute Congress has passed to determine whether it displays an
intent to create not just a private right but also a private remedy."
Accordingly, statutory intent is significant and the majority refused to create a
private cause of action Congress did not intend. J. Scalia then found that legal
context should only be considered to clarify the text.

• As such, the majority began and ended their "search for Congress's intent
with the text and structure of Title VI." The court observed the text of §602
did not include "rights creating" language stressed in past precedent. To the
contrary, §602 limits agencies to "effectuat [ing]" rights already created by §
601." Additionally, "[s]tatutes that focus on the person regulated rather than
the individuals protected create 'no implication of an intent to confer rights on
a particular class of persons.' " The majority then observed, "[s]ection 602 is
yet a step further removed: It focuses neither on the individuals protected nor
even on the funding recipients being regulated, but on the agencies that will
do the regulating."

• Additionally, J. Scalia concluded the methods §602 provided to enforce its

authorized regulations, did not "manifest an intent to create a private remedy".
Section 602 allowed agencies "to enforce their regulations either by
terminating funding to the 'particular program, or part thereof,' that has
violated the regulation or 'by any other means authorized by law[.]" J. Scalia
went through various other regulations and observed "[w]hatever these
elaborate restrictions on agency enforcement may imply for the private
enforcement of rights created outside of § 602… they tend to contradict a
congressional intent to create privately enforceable rights through § 602
itself."

Discussion. This case provides an interesting discussion about how Congress interprets
statutes that arguably allow for private causes of action.
388 De Falco v. Bernas
De Falco v. Bernas

Citation. 244 F.3d 286 (2d Cir. 2001)

Brief Fact Summary. A township engaged in certain practices to ensure that the
purchasers of a tract of land did certain things with the land.

Synopsis of Rule of Law. "To establish a RICO claim, a plaintiff must show: '(1) a
violation of the RICO statute, 18 U.S.C. § 1962; (2) an injury to business or property; and
(3) that the injury was caused by the violation of Section 1962.' "

Facts. The Plaintiffs, Mr. and Mrs. Defalco and others (the "Plaintiffs"), sought to
develop certain land in the Township of Delaware, Sullivan County, New York, New
York. The Defendants, Bernas and others (the "Defendants"), were certain public
officials and private individuals, involved with the Township of Delaware's local
governance. After the Plaintiffs purchased the land, the Defendants threatened and
intimidated the Plaintiffs to give over the property or employ certain individuals. The
Defendants threatened to withhold certain developmental permits if the aforementioned
demands were not met. The Plaintiffs brought suit under 18 U.S.C. §1962(c) of the
Racketeer Influence and Corrupt Organizations Act ("RICO").

Issue. Was a RICO violation established?

Held. Partially. "To establish a RICO claim, a plaintiff must show: '(1) a violation of the
RICO statute, 18 U.S.C. § 1962; (2) an injury to business or property; and (3) that the
injury was caused by the violation of Section 1962.' " Section 1962 "makes it unlawful
for any person employed by or associated with any enterprise engaged in, or the activities
of which affect, interstate or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering
activity.... "Further, "[t]o establish a violation of 18 U.S.C. § 1962(c) then, a plaintiff
must show "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering
activity." A RICO enterprise "includes any individual, partnership, corporation,
association, or other legal entity, and any union or group of individuals associated in fact
although not a legal entity." Racketeering activity "is broadly defined to encompass a
variety of state and federal offenses including, inter alia, murder, kidnapping, gambling,
arson, robbery, bribery and extortion." Further, a " 'pattern of racketeering activity'
requires at least two acts of racketeering activity, one of which occurred after the
effective date of this chapter and the last of which occurred within ten years ... after the
commission of a prior act of racketeering activity." Additionally, "to establish a violation
of 18 U.S.C. § 1962(c), a plaintiff must establish that a defendant, through the
commission of two or more acts constituting a pattern of racketeering activity, directly or
indirectly participated in an enterprise, the activities of which affected interstate or
foreign commerce."

• The Court analyzes each of §1962's elements. First, whether the Town of
Delaware can be treated as a RICO enterprise. The court concluded that
389 De Falco v. Bernas
"[t]he requirement of distinctiveness between the defendants and the
enterprise [ ] was met here." Specifically, "[t]he jury could reasonably have
concluded that the RICO persons [the Defendants] were a separate and
distinct assortment of public officials, private individuals and corporations
who used their political power to influence the Town of Delaware's exercise
of governmental authority over the plaintiffs' development." Additionally, the
court observed governmental units have in the past been deemed a RICO
enterprise. As such, "the jury could reasonably have concluded that the Town
of Delaware's grant or denial of approval for aspects of the plaintiffs'
development was conditioned upon complying with the demands of Dirie, the
Town Supervisor, and others with influence." Further, that the "jury here
could have reasonably found that the Town of Delaware was a 'passive
instrument' through which the defendants wielded power for their personal
benefit and, accordingly, was a RICO enterprise."

• Second, the court concluded there was sufficient impact on interstate

commerce. The court recognized, "one of the extortionate demands caused
DeFalco to break an $8800 contract with the Walczak Lumber Company, an
out-of-state logger located in Clifford, Pennsylvania."

• Third, the court analyzed whether there was a requisite amount of

"Participation in the Conduct of the Town's Affairs". This phrase has been
interpreted to mean "participation in the operation or management of the
enterprise." It was not necessary that somebody had primary responsibility.
The court observed, "[t]he jury specifically found that [the individual
defendants] each "conducted or participated in the conduct of the affairs of the
Town of Delaware through a pattern of racketeering activity," and the record
here contains ample evidence from which a reasonable jury could have found
that Dirie and the Bernas defendants each had some part in directing the Town
of Delaware's affairs."

• Fourth, the court construed whether two predicate acts were established for
each of the Defendants. One of the requisite acts important here was extortion.
The Hobbs Act defines extortion as "the obtaining of property from another,
with his consent, induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right." The court observed "[i]n this
Circuit, '[t]he cases interpreting the Hobbs Act have repeatedly stressed that
the element of 'fear' required by the Act can be satisfied by putting the victim
in fear of economic loss.' " Additionally, "[t]he absence or presence of fear of
economic loss 'must be considered from the perspective of the victim, not the
extortionist; the proof need establish that the victim reasonably believed: first,
that the defendant had the power to harm the victim, and second, that the
defendant would exploit that power to the victim's detriment.' " The court
concluded "that extortion by Dirie through threats of economic loss was
shown in the instant case."
390 De Falco v. Bernas
• The court then addressed whether a "pattern of racketeering activity" was
established. It observed that to establish a pattern, "a plaintiff must also make
a showing that the predicate acts of racketeering activity by a defendant are
'related, and that they amount to or pose a threat of continued criminal
activity.' " Further, "[t]he continuity necessary to prove a pattern can be either
'closed-ended continuity,' or 'open-ended continuity.' " The court observed,
"[a]lthough closed-ended continuity is primarily a temporal concept, other
factors such as the number and variety of predicate acts, the number of both
participants and victims, and the presence of separate schemes are also
relevant in determining whether closed-ended continuity exists." The court
concluded that the Plaintiffs did not establish 'closed-ended continuity'
because the predicate acts did not occur within a long enough period of time.

• "In assessing whether or not the plaintiff has shown open-ended continuity,
the nature of the RICO enterprise and of the predicate acts are relevant."
Further, "[i]n assessing whether or not the plaintiff has shown open-ended
continuity, the nature of the RICO enterprise and of the predicate acts are
relevant." On the other hand "where the enterprise primarily conducts a
legitimate business, there must be some evidence from which it may be
inferred that the predicate acts were the regular way of operating that
business, or that the nature of the predicate acts themselves implies a threat of
continued criminal activity." The court concluded "[i]n short, there was
sufficient evidence from which a reasonable jury could conclude that the
escalating nature of the Bernas defendants' demands-- such as their
demanding an increasing interest in the gravel pit--indicated that they had no
intention of stopping once they met some immediate goal. Based on this
evidence, the jury could reasonably have concluded that the Bernas
defendants would have continued extorting the plaintiffs into the future.
Accordingly, the scheme was not 'inherently terminable' and the jury could
reasonably have found that the nature of the Bernas' predicate acts themselves
implied a threat of continued criminal activity."

• The court finally addressed the proximate causation issue and found that the
causal connection was too weak.

Discussion. This case offers an interesting discussion about Civil RICO actions.
391 Pulliam v. Coastal Emergency Svcs.
Pulliam v. Coastal Emergency Svcs.

Citation. 509 S.E.2d 307.

Brief Fact Summary. Mrs. Pulliam (Plaintiff) died of bacterial pneumonia and
bacteremia after being negligently handled by a hospital physician.

Synopsis of Rule of Law. The Virginia damage cap neither violates the United States
Constitution or the Virginia Constitution.

Facts. Plaintiff died of bacterial pneumonia and bacteremia after being negligently
handled by a hospital physician. She was survived by her husband and son. After a jury
trial based on the medical malpractice of the medical malpractice of the hospital
physician, the jury awarded $2,045,000.00 which was reduced to $1,000,000.00 pursuant
to a Virginia statute's damage cap. Plaintiff argues that the cap is unconstitutional.

Issue. Whether the medical malpractice cap imposed by the Virginia statute is
constitutional?

Held. (Chief Justice Carrico). Yes. The cap is constitutional despite the Plaintiffs various
arguments stating otherwise: the cap does not violate the Seventh Amendment right to a
jury trial, it was not arbitrarily drafted by the legislature, it does not amount to the taking
of property under the Fifth Amendment, the statute is supported by the rational basis
standard to withstand Due Process and Equal Protection challenges, and there is no merit
in the Plaintiff's argument that the statute is a violation of the separation of powers or
invades the province of the judiciary. The damage cap awarded in the lower court is
affirmed.

Concurrence. (Justice Kinser). Medical malpractice caps create an unwarranted injustice

in certain situations.

Discussion. The court makes it clear that constitutional challenges to damage caps are
quit difficult to win.
392

CHAPTER XXIV.
Compensation Systems
as Substitutes for Tort
Law
393 Blankenship v. Cincinnati Milacron Chemicals, Inc.
Blankenship v. Cincinnati Milacron Chemicals, Inc.

Citation. 433 N.E.2d 572 (Ohio 1982).

Brief Fact Summary. Plaintiffs seek to be compensated by Defendant as a result of

working in hazardous conditions.

Synopsis of Rule of Law. An employer cannot immunize himself from liability of

intentional torts.

Facts. Plaintiffs, eight current or former employees of Cincinnati Milacron Chemicals,

Inc., (Defendant) brought an action against Defendant, alleging that as a result of failing
to warn of, report, and correct hazardous conditions in their work environment, they had
been exposed to "to fumes of certain chemicals" which "rendered them sick, poisoned,
and permanently disabled." The Plaintiffs also allege that the Defendant's "omissions
were intentional, malicious, and in willful and wanton disregard of the duty to protect the
health of employees." The trial court dismissed on the ground that the action was barred
by a relevant section of the Ohio Constitution and the Ohio Workers' Compensation Act,
which offered an employer and his employees total immunity from civil suit. Plaintiffs
appealed and the court of appeals affirmed the lower court ruling.

Issue. Whether the Workers Compensation Act was intended to cover an intentional tort
committed by employers against their employees?

Held. (Justice Brown). No. "[w]here an employee asserts in his complaint a claim for
damages based on an intentional tort, . . . the substance of the claim is not an injury . . .
received or contracted by any employee in the course of or arising out of his employment
within the meaning of Ohio law." Intentional and unintentional torts occurring on the job
can be categorized into two completely different risks. An unintentional tort is a natural
risk of employment. The Workers' Compensation Act does not immunize employers from
civil liability for their intentional torts and an employee may resort to a civil suit for
damages.

Dissent. The dissenting opinions are as follows:

• (J. Homes). "[t]ort actions should be permitted against employers only in

cases of actual intent to injure the employees."

• (J. Krupansky). "[t]here should be no judicial creation of an intentional

misconduct exception to the employers' tort immunity because there is no
express exception in the Ohio Workers' Compensation Act."

Discussion. The court states that the Ohio Workers' Compensation Act can only apply to
unintentional torts.