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Torts Cases Hammontree v. Jenner (3) Facts.

Defendant was driving home from work when he experienced an epileptic seizure and crashed his car through the wall of a bicycle shop owned by Hammontree and her husband (Plaintiff). Defendant had a history of epilepsy. Defendant was under the constant care of a neurologist. The Neurologist testified that he believed it was safe for Defendant to operate a motor vehicle, even though it was impossible for Defendant to drive during an epileptic seizure. Plaintiff sued Defendant for personal injuries and property damage arising out of the automobile accident. The trial court refused to give the jury an instruction on strict absolute liability. The jury returned a verdict in favor of Defendant. Plaintiff appealed. Synopsis of Rule of Law. Liability of a driver, suddenly stricken by an illness rendering him unconscious, for injury resulting from an accident occurring during that time rests on principles of negligence. Issue. Is Defendant liable to Plaintiff for injuries sustained in a car crash resulting from Defendants unexpected epileptic seizure, even though doctors told Defendant that it was safe for him to drive? Held. No. Judgment for Defendant affirmed. * Liability of a driver, suddenly stricken by an illness rendering him unconscious, for injury resulting from an accident occurring during the illness time rests on principles of negligence. The trial court was right to refuse to allow a jury instruction that would have held Defendant responsible for the injuries to Plaintiff on a theory of strict liability. * Plaintiff seeks to have the court adopt a standard of strict liability. Plaintiff cites cases where a manufacturer was held strictly liable in tort when an article he placed on the market, knowing that it is to be used without inspection for defects, proves to have a defect, which causes injury. Plaintiff argues that only a driver who is affected by a physical condition, which would render him unconscious, and who is aware of this condition can anticipate the hazards and foresee the dangers. Thus the liability of the driver should be predicated on strict liability. * The court refuses to superimpose the absolute liability of products liability cases upon drivers under the circumstances here. Manufacturers in products liability cases are engaged in the business of distributing goods to the public for a profit and thus should bear the cost of injuries from defective products. * To invoke a rule of strict liability on users of the streets and highways, without also establishing in substantial detail how this new rule should operate, would only contribute confusion to the automobile accident problem. It is up to the legislature to enact a comprehensive plan for the compensation of automobile accident victims in place of or in addition to the law of negligence. * The jury instruction was also refused because it does not except from its ambit the driver who suddenly is stricken by an illness or physical condition which he had no reason to anticipate and of which he had no prior knowledge. Christensen v. Swensen (18)

Facts: Swenson (D) worked for Burns (D1) as a gate security guard at the Geneva Steel Plant. Guards were expected to eat while on post and most brought their lunches, but they were permitted unscheduled fifteen minute breaks during which they frequently purchased food at the Frontier Cafe across the street from the plant. Swenson was returning from the cafe to her post when she hit a motorcycle driven by Christensen (P). Christensen sued to recover for personal injuries, and claimed that Burns was liable under the doctrine of respondeat superior. Burns moved for summary judgment, asserting that Swenson had not been acting within the scope of her employment. The trial court granted Burns motion, and appellate court affirmed, and the Utah Supreme Court granted cert. Issue: Is the fact that an employees tortious act was committed outside the property of the employer a per se bar to recovery under respondeat superior? Holding and Rule: No. The fact that an employees tortious act was committed outside the property of the employer is not a per se bar to recovery under respondeat superior. Birkner test for determining whether an employee was acting within the scope of her employment for liability under respondeat superior: 1) The employees conduct must be of the general kind the employee is hired to perform, that is, the employee must be about the employers business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor. 2) The employees conduct must occur substantially within the hours and ordinary spatial boundaries of the employment. 3) The employees conduct must be motivated, at least in part, by the purpose of serving the employers interest. Roessler v. Novak (24) Facts: -Roessler, diagnosed as having a perforated viscus (ruptured abdominal organ) at a walk in clinic, went to Sarasota Medical E.R. -Diagnostic scans of abdomen examined by Dr. Lichtenstein, a radiologist at Sarasota, working as an independent contractor for SMH. - After surgery, Roessler had to stay in the hospital for 2 months for complications including renal failure, brain abscesses and a heart condition; (obviously somewhat attributable to Lichtenstein) - Alleged that Licht. didnt read scans correctly and was negligent in not including an abdominal abscess in diagnosis of scans. -Argued that Sarasota was vicariously liable, even though Licht. Was an independent contractor for SMH radiology. Procedure: -Trial court ruled in favor of summary judgment for Sarasota, citing that there was no misunderstanding the facts and there was no legal basis for the claim. -Roessler appealed the FL court of appeals. Issue: -Is a hospital vicariously liable under the apparent authority policy for independent contractors it has hired and who are negligent? Holding: -Reversed and remanded for jury trial-

-Held that summary judgment was premature and that Sarasota medical had not proven that there was no basis for the suit. It ruled that a jury trial was to take place. Reasoning: -Sarasota argued that having independent contractors excused them from vicarious liability due to their contract stating such.

-Court ruled that SMH radiology only worked with Sarasota, their only admin. And bldgs were on Sarasota property, and that SMH had apparent authority which is the precedent that the court followed. - Apparent authority defined as the principal holding its agent out to be an authority. - Doctrine as it relates: A principal should be estopped to deny authority in an agent that was obviously placed in same agent earlier. - Sarasota cant hold SMH out to be an authority and then change their tune come litigation. -Three criteria for Apparent Authority 1. Representation by the principal 2. Reliance on representation by a third party 3. Change in opinion by third party as to reliance

Brown v. Kendall (35) 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. 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. At trial for Plaintiffs 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 Defendants 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.

Adams v. Bullock (39)

Facts: -Bullock owns a trolley service in Dunkirk which runs using an overhead wire system. - Adams, a young boy (plaintiff) was playing on a bridge that overran the wire for the trolley. -Swinging an 8 foot wire his wire came into contact with the other wire, nearly five feet below the bridge. - He was shocked and burned Procedure: -Adams sued and won in trial court and the appellate court upheld victory -Bullock appealed to NYs highest court the court of appeals. Issue: -Did the company perform its duty to avoid all perils associated with its lines, or was it negligent? Holding: -Reversed Reasoning: -The company had the line nearly 5 feet below the bridge; no one could have reached it normally -The child could have used that wire to touch the other one from anywhere, up a tree, etc. -Its not reasonable to expect a company to foresee everything. This never could have been anticipated. -Defendant had taken all reasonable precautions under circumstances

United States v. Carroll Towing Co (43) Facts. Appellant owned a barge, which was chartered by a railroad company. The barge, with a cargo of flour owned by the United States, was moored to the end of the pier. Appellant chartered a tug company, Carroll Towing Co. (Appellee) to drill out one of the barges. Appellee went aboard the barge and readjusted its mooring lines. The barge broke free of the mooring lines due to this readjustment. The Barge hit a tanker, and the tankers propeller broke a hole in the barge. The barge careened, dumped her cargo, and sank. No one was aboard at the time. Appellee argued that if someone was aboard the barge to observe it leaking after it broke free, the cargo and the barge could have been saved. Issue. At issue is whether the Appellants should be held partly liable for damage to the barge and for the lost cargo by not having an attendant aboard the barge when it broke free from the pier. Held. Appellants held partly liable. The court applied the burden was less than the injury multiplied by the probability formula and found that the burden of having an attendant aboard the barge was less than the gravity of injury of a runaway barge multiplied by the

probability that the barge would break free if unattended.

Bethel v. New York City Transit Authority (49) Facts: Bethel (P) was riding on a New York City Transit Authority (NYCTA, D) bus and sustained personal injuries when the wheelchair accessible seat collapsed beneath him. Bethel could not prove that the defendant actually knew of the defect. Plaintiff relied on a theory of constructive notice and offered as evidence a computer printout of a repair record that showed that the seat had been fixed or adjusted recently and that a proper inspection would have revealed the defect that was responsible for the collapse of the seat. The court instructed the jury with the highest standard of care owed by a common carrier. The court entered judgment in favor of Bethel under the constructive notice theory and the Appellate Division affirmed without addressing the standard of care. The NYCTA appealed. Issue: What is the duty owed by a common carrier? Holding and Rule: The duty owed by a common carrier is the objective reasonable person standard. That standard, which is based on a relative sliding scale of the factual situation and how a reasonable person will act under the same or similar facts is itself flexible enough to permit courts and juries to fully take into account any ultrahazardous nature of a tortfeasors activity. Thus the old rule is no longer viable and a common carrier should merely be held to the same standard of care of the reasonable person. Disposition: Remanded for a new trial. Notes: This case overturns the former high standard of care owed by common carriers.

Baltimore and Ohio R.R. v. Goodman (60)

Facts. Plaintiff was driving his truck and was killed by a train operated by Defendant running at a rate of speed not less than sixty miles per hour. Plaintiffs estate argued that he had no practical view beyond a section house until he was about twenty feet from the rail, or twelve feet from danger. Defendants engine was obscured by said section house. Plaintiff had been driving at ten or twelve miles per hour, but slowed down to five or six miles per hour as he neared the crossing. The railroad line was straight, it was daylight, and Plaintiff was familiar with the crossing. Plaintiff brought suit against Defendant. Defendant argued that Plaintiffs own negligence caused his death. Defendant requested a directed verdict, however it was denied. The jury found for the Plaintiff. This decision was affirmed by the Circuit Court of Appeals. Defendant appealed. Issue. Not knowing whether or not a train was coming, did Plaintiff assume the risk when he crossed the train track without first exiting his vehicle and checking? Held. Yes. Judgment reversed. * Plaintiff is responsible for his own death. Plaintiff knows that he must stop for the train. If a driver cannot be sure if a train is dangerously near, then he must stop and get out of

his vehicle to check. If he does not, he fails to meet the standard of conduct required of a careful driver and is responsible for his injuries. * The question of due care is left to the jury. However, when the standard is clear, the Courts should lay it down once and for all.

Pokora v. Wabash Ry. CO (63) Synopsis of Rule of Law. Standards of prudent conduct should be cautiously framed when the rule of law is imposed. Facts. The Plaintiffs 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 Plaintiffs 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.

Andrews v. United Airlines (65) Synopsis of Rule of Law. Common carriers owe both a duty of utmost care and the vigilance of a very cautious person towards its passengers. The jury is equipped to decide whether an airline has a duty to do more than warn passengers about the possibility of falling luggage. Facts. During a mad scramble, a briefcase fell from an overhead compartment of Defendant and seriously injured Plaintiff. It is not clear who opened the overhead compartment. Plaintiff does not claim that Defendants personnel were involved. Rather, Plaintiff claims that her injury was foreseeable and that Defendant did not prevent it. The district court dismissed the suit on summary judgment. Plaintiff appealed. Issue. Is it proper for the jury to hear Plaintiffs claim of negligence against Defendant, that the injury was foreseeable and Defendant was negligent in not preventing it? Held. Yes. Summary judgment is not proper in this case. Reversed and remanded. * Defendant is a common carrier and as such owes both a duty of utmost care and the

vigilance of a very cautious person towards its passengers. Though Defendant is responsible for any, even the slightest, negligence and is required to do all that human care, vigilance, and foresight reasonably can do under all circumstance, it is not an insurer of its passengers. * In this case, Plaintiff introduced testimony of two witnesses. The first witness disclosed that Defendant had received 135 reports of items falling from overhead bins. As a result of this, Defendant added a warning to its passengers as part of their arrival message. The second witness then stated that the warning was ineffective because passengers could not see the contents of the overhead compartments, no baggage nets were used and/or Defendant did not limit the overhead compartments to lightweight objects. * Defendant used Plaintiffs 135 incident figure to point out the low incidence of injuries as incontrovertible proof that the safety measures suggested by Plaintiff were not necessary and would only add additional cost and inconvenience to airline passengers. * The question is whether or not a warning is enough to safeguard airline passengers from baggage falling out of overhead bins. Given the heightened duty of Defendant, a common carrier, the court thought the question ought to go to the jury. A reasonable jury might conclude Defendant should have done more. A reasonable jury might also conclude that Defendant did enough. In any case, summary judgment is inappropriate. Trimarco v. Klein (68) 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 enclosures glass door led to Plaintiffs 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 care 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. Martin v. Herzog (74) Synopsis of Rule of Law. Jurors have no dispensing power by which they may relax the duty that one traveler on the highway owes under the statute to another.

Facts. The decedent (Plaintiff) was killed when Defendants automobile crashed into Plaintiffs buggy. The accident was at night, when it was dark, and Plaintiff was operating his buggy without any lights, in violation of a statute. Defendant requested a ruling that the absence of lights on Plaintiffs buggy was prima facie evidence of contributory negligence. The trial court refused Defendants request. The jury found Defendant liable and Plaintiff free from contributory negligence. The appellate court reversed the trial courts judgment. Plaintiff appealed the appellate courts ruling. Issue. Does the jury have the dispensing power by which they may relax the duty that one traveler on the highway owes under the statute to another? Held. No. The appellate courts verdict is sustained. * The unexcused omission of the statute is negligence in itself, or negligence per se. In this case, there was an excuse for Plaintiff to be driving without lights. Lights are intended for the guidance and protection of other travelers on the highway. Jurors should not have been permitted to treat the omission of lights either as innocent or as culpable. Plaintiffs omission of lights was a wrong. Being unexcused, it was also a negligent wrong. No license should have been conceded to the tiers of facts to find it anything else. * In this case, the court also distinguishes the question of negligence and the question of causation. It is not enough that Plaintiff was negligent in failing to light his buggy. For Plaintiff to be negligent, his negligence must also be the cause of the accident. A plaintiff who travels without lights does not forfeit the right to recover damages unless the absence of lights is at least a contributing cause of the incident. Negligent conduct does not always equate to contributory negligence. Discussion. The jury may not discount a breach of a statutory duty. The question of duty is a question of law. The jury is the trier of facts. Plaintiff wrongfully violated a statute intended for the protection of Defendant. Plaintiff is negligent per se. The only thing left to determine is causation and injury. If Plaintiffs failure to light the buggy was the cause of the accident, then it is contributory negligence. Tedla v. Ellman (77) Synopsis of Rule of Law. Where a statutory general rule of conduct fixes no definite standard of care to protect life, physical safety or property but merely codifies or supplements a common-law rule (always subject to limitations and exceptions); or when the statutory rule of conduct regulates conflicting rights and obligations in a manner calculated to promote public convenience and safety, then the statute, in the absence of clear language to the contrary, does negate the limitations and exceptions which judicial decisions have attached to the common-law duty. It should not be construed as an inflexible command that the general rule of conduct intended to prevent accidents must be followed even under conditions when observance might cause accidents. Facts. While walking along a highway, Plaintiffs were struck by a passing automobile, operated by the Defendant. Tedla was injured and Bachek was killed. Because there was significantly less traffic there, Plaintiffs were walking to the right of the centerline of the road at the time of the accident. This was a violation of a state statute. Issue. Were Tedla and her brother guilty of contributory negligence?

Held. Court affirmed judgment, when Plaintiffs failure to observe a statutory rule of the road did not constitute contributory negligence as a matter of law. Discussion. The court in Tedla appears to promote a flexibility of statutory interpretation where The general duty is established by the statute, and deviation from it without good cause is a wrong and the wrongdoer is responsible for the damages resulting from his wrong. Nevertheless, the court opined that it would contravene common sense and the general welfare to assume reasonably that the Legislature intended that a statute enacted for the preservation of the life and limb of pedestrians must be observed when observance would subject them to more imminent danger. ***Difference between Martin and Tedla, Tedla looks at the statute as a guideline of conduct rather than a definitive standard of care Negri v. Stop & Shop, Inc. (86) Subject Matter: Appeal of a slip-and-fall personal injury case. Facts: Negri (P) slipped and hit her head on the floor in a Stop and Shop (D) grocery store. There were broken jars of dirty and messy baby food nearby. A witness had not heard any jars break in that area for approximately twenty minutes before the accident and the aisle had not been cleaned for at least 50 min. The trial court found in favor of P and D appealed. On appeal, the Appellate Division reversed in favor of D and P appealed. Issue: Is circumstantial evidence sufficient to permit a jury to determine whether a dangerous condition existed long enough to give the store sufficient notice to discover and remedy the condition? Holding and Rule: Yes. The circumstantial evidence presented enabled P to establish a prima facie case that the store had constructive notice of the hazardous condition. The evidence was sufficient to withstand summary judgment in favor of D and it was error to dismiss the complaint. A store has a duty to protect invitees from known or concealed dangerous conditions. The circumstantial evidence permitted the inference that D had constructive notice of the dangerous condition of the floor. Disposition: Reversed. Gordon v. American Museum of Natural History (86) Facts: In this case, a guy was leaving the museum and he was going down the steps and he slipped on the 3rd stair and saw a piece of wax paper that came from the concession stand outside of the museum that the museum had contracted to have present. The plaintiff says that the defendant should have had constructive notice or actual notice of the dangerous condition presented by the paper on the steps. The case went to the jury on the theory that the defendant had actual or constructive notice of the dangerous condition presented by the paper on the step. Procedural History: The jury found for the plaintiff and the appellate level affirmed. Issue: Did the appellate level err? Holding: Yes. Order is reversed and the certified question is answered in the negative (no constructive or actual notice) Reasoning:

1. There is no evidence in the record that the had actual or constructive notice of the paper and the case should not have gone to the jury on that theory. 1. Constructive noticea defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendants employees to discover and remedy it. 2. Record contains no evidence that anyone including plaintiff observed the piece of paper before the accident. 3. Plaintiff did not describe the paper as dirty or worn which would have provided some indication that it was there for a while 4. On the evidence presented, the piece of paper could have been deposited there only minutes or seconds prior to the plaintiffs fall. Byrne v. Boadle (90) Synopsis of Rule of Law. A plaintiff must persuade a jury that more likely than not the harm-causing event does not occur in the absence of negligence. The plaintiff does not have to eliminate all other possible causes for the harm, nor does the fact that the defendant raises possible non-negligent causes for the harm defeat plaintiffs effort to invoke res ipsa loquitur (Latin for the thing speaks for itself). The key is that a reasonable jury must be able to find that the likely cause was negligence. Facts. Defendants shop was adjacent to the road on which Plaintiff was walking, and the barrel appeared to have fallen, or was dropped from the shop. Issue. Was the mere fact of the incident occurring, i.e., the barrel having fallen from the shop, sufficient to presume negligence? Held. The court allowed the case to proceed because of the nature of the harm-causing event and Defendants relationship to it, i.e., as it was Defendants responsibility to control the contents of his warehouse, the accident itself is evidence of negligence. Discussion. A plaintiff seeking to rely on res ipsa loquitur must connect the defendant to the harm. Initially, courts interpreted the control element narrowly, requiring the plaintiff to show that the defendant likely had exclusive control over the harm-causing instrumentality. This element has been liberalized and it is now enough for a plaintiff to get the issue to a jury on res ipsa loquitur if he can provide evidence showing that the defendant probably was the responsible party even if the defendant did not have exclusive control. Further, most jurisdictions no longer require the plaintiff to prove that he did not contribute to his harm. McDougald v. Perry (92) 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 Defendants truck fell out of its carrier, was run over by the rear wheels of the Defendants truck and then collided with the Plaintiffs 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 Ybarra v. Spangard (99) Synopsis of Rule of Law. The doctrine of res ipsa loquitur applies with equal force in cases wherein medical and nursing staffs take the place of machinery and may, through carelessness or lack of skill, inflict, or permit the infliction of, injury upon a patient who is thereafter in no position to say how he received his injuries. Facts. Plaintiff was diagnosed with appendicitis and was scheduled for surgery. After being given an injection, and in the course of preparation for surgery members of the surgical team adjusted Plaintiff, so that his back rested against two hard objects. After surgery, Plaintiff complained of neck and back pain. He testified that prior to the operation he had never had any such pain, nor had he suffered any injury that might have been the cause. His condition worsened, eventually resulting in paralysis. The evidence established that his condition was the result of trauma. He brought suit. Issue. Would the application of the doctrine of res ipsa loquitur have been appropriate in this case, thus rendering the trial courts judgment of nonsuit improper? Held. Yes. The Supreme Court of California reversed the lower courts ruling because the res ipsa loquitur doctrine applied to Defendants, because they had control over Plaintiffs body and instrumentalities that might have caused the injuries which Plaintiff sustained. Discussion. In explaining the applicability of res ipsa loquitur, the Supreme Court of California provided a very broad interpretation of res ipsa loquitur, stating: [t]he doctrine of res ipsa loquitur has three conditions: (1) the accident must be of a kind which ordinarily does not occur in the absence of someones negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. It is

applied in a wide variety of situations, including cases of medical or dental treatment and hospital care. The courts application of the doctrine carries particular significance within the parameters of medical malpractice claims: [w]here a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. ***prosser interpretation is element based, Wigmore is more policy based Sheeley v. Memorial Hospital (106) Facts: Sheeley (P) gave birth and received an episiotomy. Sheeley developed complications and sued the physician and Memorial Hospital (D). P sought to introduce the testimony of an expert witness to establish the standard of care and D objected on the grounds that an expert witness must be in the same field as the defendant physician. The trial court sustained and entered a directed verdict in favor of D. P appealed. Issue: 1) What are the criteria for determining whether an expert witness is qualified to testify regarding the standard of care in the medical field? 2) Is the appropriate standard of care regarding cases in the medical field based on the standard of reasonable care in the same or similar locality, or on a national standard? Holding and Rule: 1) Any doctor with knowledge of the procedure acquired through experience, observation, association, or education is competent to testify about the requisite standard of care. In deciding whether to qualify an expert the court should consider a physicians resources, practice area, and experience, but no one issue should be determinative. 2) The appropriate standard of care regarding cases in the medical field is based on a national standard of reasonable care. Policy: The same or similar locality rule has come under attack because it legitimizes a low standard of care in smaller communities; furthermore the standard failed to address the conspiracy of silence that has prevented plaintiffs from obtaining expert testimony. The old standard is no longer applicable in view of the present day realities of the medical profession and modern transportation and communication. Disposition: For P. Janice Sides, et al. v. St. Anthony's Medical Center (115) I. Facts and Holding[4] Physicians performed a lumbar laminectomy with spinal fusion on Janice Sides, the appellant in this case, in June 2003 at respondent St. Anthony's Medical Center. Sides alleged that she became infected with Escherichia Coli ("E. Coli") during the procedure. She filed suit under a res ipsa loquitur theory claiming that an infection of E. Coli at the site of surgery does not occur without negligence. The trial court dismissed her petition stating that Missouri case law precludes a plaintiff from using expert testimony to support res ipsa loquitur in a medical malpractice case. The Missouri Court of Appeals, Eastern District, affirmed the trial court's ruling on the same grounds. In overturning the Court of Appeals, the Missouri Supreme Court adopted the position

asserted by Restatement (Second) of Torts 328D (1965),[5] joining the majority of jurisdictions taking this view. As a result, a plaintiff in Missouri can now employ an expert witness in a medical malpractice claim proceeding under a theory of res ipsa loquitur. II. Legal Background and Instant Decision In Missouri, the common law doctrine of res ipsa loquitur is applicable when "(a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; and (c) the defendant possesses superior knowledge or means of information as to the cause of the occurrence."[6] The Missouri Supreme Court has only once addressed the contours of the doctrine as applied to the medical malpractice field. In Hasemeier v. Smith,[7] the defendant doctor notified the plaintiff and his pregnant wife that their fetus was dead in her womb and needed to be surgically removed immediately.[8] During the operation, the doctor discovered that the fetus was alive and delivered a healthy baby.[9] However, the wife did not survive the operation.[10] The husband sued, alleging the physician was negligent under a theory of res ipsa loquitur.[11] The plaintiff did not attempt to use an expert witness; instead, he simply averred that because the doctor was incorrect about the condition of the fetus, the surgery was unnecessary.[12] Thus, the plaintiff maintained that because of the doctor's mistake, his wife died. The Supreme Court held that the plaintiff could not continue under a theory of res ipsa loquitur because the doctrine requires that "laymen know, based on their common knowledge or experience,"[13] that the death of the woman would not have occurred but for negligence on the part of the doctor. The Supreme Court found that inference beyond the knowledge of laymen.[14] Building upon Hasemeier, other lower Missouri courts interpreted the case to mean that "a plaintiff cannot use expert testimony to establish a res ipsa loquitur case in a medical malpractice action."[15] In the present case, the Supreme Court rejected these interpretations as incorrect because the plaintiff in Hasemeier never attempted to offer expert testimony.[16] Instead, the Court reinterprets Hasemeier and holds that the case stands for the principle that "a jury of lay persons could not find negligence under a res ipsa loquitur theory where the medical issue is not one within their understanding."[17] Therefore, the Supreme Court held, if an expert witness can "bridge the gap between the jury's common knowledge and the complex subject matter that is 'common' only to experts in a designated field," then there is no reason to disallow such testimony.[18] With the use of such expert testimony, "jurors can be made to understand the higher level of common knowledge and, after assessing the credibility of both plaintiff's and defendant's experts, can decide whether to infer negligence from the evidence."[19] Explicitly laying out how this holding affects the doctrine of res ipsa loquitur, the Supreme Court elaborated: Where a plaintiff is unable to show which specific act of negligence of the defendants caused his or her injury, but is able to show that all the potential causes are within the control or right to control of defendants, and that they have greater access to knowledge about the cause of the injury than does plaintiff, and a medical expert testifies that such injury does not occur in the absence of negligence of the defendants, then a prima facie case for medical malpractice has been made.[20]

Matthies v. Mastromonaco (119) Facts: Ms. Matthies (P) fell in her apartment at a residence for senior citizens and broke her right hip. Mastromonaco (D), an orthopedic surgeon, prescribed bed rest rather than surgery. Mastromonaco reviewed the X-Rays and decided against pinning Matthies hip because she was elderly, frail, and in a weakened condition and the surgery would be risky. P also suffered from osteoporosis and her bones were too porous to hold the screws. D felt that bed rest, though controversial, could heal Ps fracture and restore the right leg to limited functionality. P sued D for malpractice. Ps expert testified that bed rest was inappropriate and that it should only be done when the patient is terminally ill or in a vegetative state, due to the risk that the fracture could dislocate as in Ps case. P asserted that she would not have consented to bed rest if D had told her of the probable effect of the treatment on her life. The trial court entered judgment in favor of P and D appealed. Issue: Must a doctor obtain a patients consent before implementing a nonsurgical course of treatment? Holding and Rule: Under the doctrine of informed consent, a doctor must obtain a patients consent before implementing a nonsurgical course of treatment. Historically, failure to obtain informed consent to an invasive procedure such as surgery was treated as a battery. Later courts saw the need for a patients consent to be derived from the right of self determination. In a claim for negligence, the issue is the physicians deviation from the standard of care. The court held that the issue was whether the physician adequately presented the material facts so that the patient could make an informed decision. Under this standard, a physician is obligated to disclose only that information which is material to a reasonable patients informed decision. The court held that D was under a duty to inform P of medically reasonable treatment alternatives and their probable risks and outcomes. Disposition: Affirmed.

Harper v. Herman, 499 N.W.2d 472 (131) Facts: Harper (P) was one of four guests on Hermans (D) boat. Harper and Herman did not know each other prior to the outing and Harper had been invited by another guest. Herman took the group to a popular recreation spot with which he was familiar. D asked if P was going in. P said yes and dove into two or three feet of water unannounced. P severed his spinal cord rendering him a quadriplegic. P sued D and the trial court granted summary judgment for D. P appealed and the judgment was reversed. D appealed. Issue: What duty does a social host owe to a guest? Holding and Rule: A special relationship is required for an affirmative duty to exist. Under the Restatement (Second) of Torts, a special relationship can be found when that other person is deprived of normal opportunities of self-protection, and under this rule, this special relationship could only exist if Herman had custody of Harper under circumstances in which Harper was deprived of normal opportunities to protect himself.

In this case the court found that the record did not establish that Harper had been either particularly vulnerable or that he had lacked the ability to protect himself. From the Restatement (Second) of Torts: There are many dangers, such as those of fire and water, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child. If a child is expected to understand the inherent dangers of water, so should a 20-year-old adult. Disposition: Judgment for D reinstated reversed and remanded. Farwell v. Keaton (136) Synopsis of Rule of Law. Courts have been slow to recognize a duty to render aid to a person in peril. When such a duty has been found, it has been predicated upon the existence of a special relationship between the parties; in such a case, if defendant knew or should have known of the other persons peril, he is required to render reasonable care under all circumstances. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiffs interests. Facts. Richard Farwell, 18, and his friend David Siegrist, 16, had a few beers while waiting for a friend to finish work. When teenage girls walked by they attempted conversation without success. The girls complained to friends that they were being followed, and six boys chased Farwell and Siegrist back to a trailer lot. Siegrist escaped, but Farwell was severely beaten. Siegrist found him under a car, put ice on his head and then drove around for two hours, stopping at drive-in restaurants. Farwell went to sleep in the back of the car and around midnight Siegrist drove him to his grandparents home, where he left him in the back of the car after an attempt to arouse him. Farwell died three days later from the beating and there was evidence that prompt medical attention could have prevented this. The jury found for the Plaintiff in an action for Farwells death, but the court of appeals reversed on the ground that Siegrist had not assumed any duty to aid Farwell. Issue. Did the appellate court err in reversing the trial courts ruling in favor of Plaintiff? Held. Yes. The Supreme Court of Michigan reversed and reinstated the jury verdict, finding that Defendant had an affirmative duty to aid, because he had a special relationship with the deceased, he knew or should have known of the peril the deceased was in, and he could have rendered assistance without endangering himself. Discussion. Farwell and Siegrist were companions on a social venture. As such, a special relationship existed between the parties. Implicit in such a common undertaking is the understanding that one will render assistance to the together when he is in peril if he can do so without endangering himself. Siegrist knew or should have known when he left Farwell, who was badly beaten and unconscious, in the back seat of his car that no one would find him before morning. Under these circumstances, to say that Siegrist had no duty to obtain medial assistance or at least to notify someone of Farwells condition and whereabouts would be shocking to humanitarian considerations and fly in thecae of the commonly accepted code of social conduct. Therefore, on appeal, the court reversed and reinstated the jury verdict, finding that Defendant had the affirmative duty to aid, because he had a special relationship with the

deceased, he knew or should have known of the peril the deceased was in, and he could have rendered assistance without endangering himself. Randi W. v. Muroc Joint Unified School District (142) Facts: -This case of 1st impression was tried before the supreme court of CA as a case of negligence. -The plaintiff, Randi, accused four schools districts writing letters of recommendation for a teacher they knew to have a history of sexual misdeeds with students -Randi alleged that she was sexually assaulted by Gadams, an assistant principal who had received a job at her school.

-The previous school districts knowingly concealed Gadams past allegations and resignations for sexual misconduct with students. Procedure: -The only issues discussed here are those of misrepresentation and fraud.

-The superior court granted demurrers on both counts to defense, court of appeals reversed. -Plaintiff appealed to supreme court. Issue:

Under CA law, does negligence arise from non-disclosure of past sexual misconduct when a teacher sexually assaults a student at a new school after being hired due to letters of recommendation not explaining his resignations and allegations of sexual misconduct? Holding:

Yes, it does. The schools had a duty to inform the hiring school of those qualities that could possibly cause harm to a third party.

Reasoning: -Did defendants owe a duty of care? -Defendant argued that there was no special relationship present that required them to disclose.

-Court held in previous cases that if you begin to communicate information, you are required to deliver all pertinent information.

-The court, as this is 1st impression, applies the general standard for existence of duty.

1. Foreseeability of harm to the plaintiff, and connection b/t harm and defendant. 2. Availability of insurance or alternate courses of conduct. 3. Public policy considerations (moral blame, preventing future harm, etc.)

4. Foreseeability: 5. 1. Assault was reasonably foreseeable. 2. Defendants actions form a causal connection to the assault. 6. Availability of Insurance 7. 1. Had it to cover; standard business liability. 2. The defendants had alternate courses of conduct they could have pursued: 1. They could have refused to write. 2. They could have written a full disclosure. 3. They could have written a nocomment. 8. Public Policy 9. 1. The write owes to a third person not to misrepresent the facts; 1. Not disclosing the whole truth is in fact, lying, or misrepresenting.If it is understood to be the whole. 2. Morally blameworthy 1. Could be characterized. 10. Misleading or Misrepresentation? 11. 1. The fact that omissions were made in this case allows for the exception to the rule excluding liability for mere non-disclosure or failure to act. Notes and Questions:

1. This suggests that the court take a broader view. The jury can look at the instant circumstances; the instant parties to assume reasonable, but eh court is expected to look more generally. Not the principal parties, but a similar circumstance. What effect would this have generally? What would the effect of this happening generally entail? 1. Makes for a subjective definition of foreseeability. 2. The difference between Morgan and Garcia is that Morgan showed and omission, an oversight; Garcia showed misrepresentation, or misleading information. Garcia does not govern this case b/c in Garcia, there was a special relationship b/t the woman and the parole officer. 3. I dont think this would be held in the same esteem, as the moral blameworthiness of the act was taken into account in Randi. The inability to hand things in on time can be fixed; sexual assault cannot be undone. 1. Also, no physical harm and no special relationship. (Has to be personal injury)

2. Once again, personal suits may be relevant, but convicting under omissions could be random. 4. Yes, in attempting to communicate, you must reveal all information that is pertinent, otherwise you are deceiving, as the third party believes your half-truth to be the whole truth. 5. The harm is that the child could be wildly violent or manic. Think the omen- The child could be much more of a commitment than the foster parents could endure- Think autism. 6. The Hopkins approach is more general, and not party specific. Though it does ask the nature of the parties relationship, it doesnt consider the likelihood of ones conduct affecting the other or whether there were grounds for necessity in this specific circumstance. *** Compared with Harper, both are similar in that there is no duty to disclose in both, but if you begin to disclose information, it needs to be accurate and reliable. Tarasoff v. Regents of University of California (151) Synopsis of Rule of Law. A defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks that make the conduct unreasonably dangerous. When the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, liability is imposed only if the defendant bears some special relationship to the dangerous person or to the potential victim. Facts. In October 1969, Prosenjit Poddar (Poddar) murdered Tatiana Tarasoff (Tarasoff). Plaintiffs, Tatianas parents, contended that only a short time prior, Poddar had expressed his intention to do so. This, they alleged, he had confided to his therapist, Dr. Lawrence Moore, a psychologist employed by University of California. They further alleged that Dr. Moore had warned campus police of Poddars intentions, and that the police had briefly detained him, but then released him. Plaintiffs asserted two grounds for their action: the failure to confine Poddar, in spite of his expressed intentions to kill Tarasoff, and failure to warn Tarasoff or her parents. Defendants maintained that they owed no duty of care to the victim, and were immune from suit. Issue. Did Defendants owe a duty to the victim thus making them liable for the harm that ensued? Held. The court held that Plaintiffs could amend their complaint so as to bring a valid cause of action against therapists and Regents of University of California for breach of duty to exercise reasonable care. * The court concluded that the police did not have the requisite special relationship with Tarasoff, sufficient to impose a duty to warn her of her Poddars intention. Discussion. In Tarasoff, the Supreme Court of California addressed a complicated area of tort law concerning duty owed. Their analysis required a balancing test between the need to protect privileged communication between a therapist and his patient and the protection of the greater society against potential threats. The court began its analysis by addressing the special relationship required that imposes a duty on an individual to

control another. A duty of care may arise from either (a) a special relation between the actor and the third person which imposes a duty upon the actor to control the third persons conduct, or (b) a special relation between the actor and the other which gives to the other a right of protection. This consideration was critical to the circumstances in Tarasoff. As a general proposition, [w]hen a hospital has notice or knowledge of facts from which it might reasonably be concluded that a patient would be likely to harm himself or others unless preclusiv e measures were taken, then the hospital must use reasonable care in the circumstances to prevent such harm. More specifically, the court explained, [i]n attempting to forecast whether a patient presents a serious danger of violence, a court does not require that a therapist, in making that determination, render a perfect performance; the therapist need only exercise that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances. * The court had to address the contending policy consideration, first noting [o]nce a therapist determines, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. While the discharge of this duty of due care will necessarily vary with the facts of each case, in each instance the adequacy of the therapists conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. Thus, the court concluded, [a] physician may not reveal the confidence entrusted to him in the course of medical attendance unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community. * Finally, with respect to the potential liability of the police, the court explained that, pursuant to state statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion was abused. There is a line between discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not. Section 820.2 affords immunity only for basic policy decisions. Thus, immunity was afforded to the police.

Uhr v. East Greenbush Central School District (161) Synopsis of Rule of Law. A statutory duty does not per se confer a private right of action Facts. Plaintiff was inflicted by scoliosis. The New York Education Law Article, Section 905 requires school authorities in New York to examine students between ages eight and sixteen for scoliosis at least once a year. In the 1992-1993 school year, Plaintiff was screened for scoliosis, but the test was negative. In the following year, Plaintiff was not screened. However, in 1995, as a ninth grader, an examination for scoliosis illustrated that she had the infliction. An examination by an orthopedic doctor concluded that her scoliosis had progressed to the point that surgery was required, instead of the braces that can often be utilized when the condition is diagnosed earlier. Plaintiff sued the Defendant under Section 905 and for common law negligence. Issue. Does Section 905, authorize a private right of action?

Held. No. Judgment affirmed. * A statutory command does not necessarily carry with it a right of private enforcement by means of tort litigation. When a statute itself expressly authorizes a private right of action there is no need for further analysis. * When a statute is silent, as it is here, courts have had to determine whether a private right of action may be fairly implied. The test for a private right of action is: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and, (3) whether creation of such a right would be consistent with the legislative scheme. In this case, Plaintiff has satisfied the first two parts, and the court focuses on the third requirement * Plaintiff argued that a private right of action is necessary for enforcement of the statute. However, the Legislature has vested the Commissioner with the power to withhold public funding from noncompliant school districts. Thus, the legislature clearly contemplated administrative enforcement of the statute. * In Section 905(2), states that the school district shall not suffer any liability to any person as a result of making such test or examination. Therefore, Section 905 (2) is compelling evidence that the Legislature did not intend to provide a private right of action. However, Plaintiff claims that Section 905(2) only applies when there was an examination, not when Defendant fails to perform an examination. Plaintiff interprets the statute as conferring immunity for misfeasance, but not nonfeasance. The court disagreed. * The court in Bello v. Board of Education stated in dicta that the legislature did not intend to impose liability either for the making of the tests, or for the failure to make the tests. Shortly after Bello, the Legislature amended Section 905 (2), but only to require parental notification and not to confer a private right of action. This is strong evidence of the Legislatures conclusion that the court in Bello correctly interpreted the statutes failure to confer a private right of action. * There is also the concern of cost to the school districts. Orthopedists agreed to volunteer their time and expertise to train school personnel on the simple examination procedure. The Legislature did not intend that the districts bear the potential liability for a program that benefits a far wider population. * Plaintiffs did not state a cause of action for common law negligence Discussion. A statutory duty does not per se confer a private right of action. If a statute is silent as to a private right of action, then the three-pong test should be applied.

Strauss v. Belle Realty Co. (168) Summary of Case Facts The plaintiff was a tenant in a building. A failure at a power station resulted in a twentyfive hour city-wide blackout. During the blackout, the plaintiff, while descending to the basement (a common area) to get water, slipped and fell on the stairs and sustained an injury as a result of being unable to light his way. While the plaintiff did have privity of contract with the power company for his space in the building, the landlord had privity of contract with the power company for the common areas. The plaintiff alleged negligence against the landlord, in failing to maintain the stairs or warn of their

dangerous condition, and negligence against the power company in the performance of its duty to provide electricity. Issue Does the power company owe a duty of care to a tenant who suffered injury in a common area where only his landlord had privity of contract with the power company? Holding and Law No. The extension of liability requested here would stretch the limits of acceptability. To extend liability beyond those plaintiffs with a contractual relationship with the utility would almost allow for crushing liability against utility providers. Court basically says, for public policy reasons, they will limit liability to privity of contract. The plaintiff in this case will need to seek redress from the landlord (contractual relationship with the party responsible for the common area in question). ***Different from Randy W because in Randy W, there is a more manageable group of people subject to peril. How big the group injured seems to play a part in parceling out liability.

Reynolds v. Hicks (176) Facts: Hicks got married and there were a lot of people at the reception including underage nephew Steven. Steven consumed alcohol at the reception and then drove his sisters car. He then got into a car accident with Reynolds and Reynolds sued the Hicks claiming that they were negligent in knowingly serving alcohol to under age guests. Hicks moved for summary judgement on the grounds that WA did not extend social hist liability to situations where intoxicated under age guest s harm third parties. Procedural History: Trial court granted Hicks motion and the appellate court certified the case directly to the Washington Supreme Court. Issue: Does a social host who serves alcohol to an underage driver owe a duty of care to a third person injured by the intoxicated minor? Holding: No. Reasoning:

Hanson v. Friendheld that minor that is injured from intoxication has a cause of action against the social host that supplied him with the alcohol. Reynolds argues that this should be extended to a cause of action for third persons. Such an expansion is not warranted by WA law. This court has been reluctant to extend the same kind of liability to social hosts that is extended to commercial vendors Social host liability will have more far reaching implications because there are only a limited number of bars, liquor stores, etc., but there are a lot of adult residents that throw parties. It is unrealistic to expect a couple like the one in this case to monitor their guests on their wedding day

Vince v. Wilson (182) Facts: Wilson bought her grandnephew a car. Gardner was the salesman and at the time she bought the car, she knew that grandnephew had no license and that he failed several times and she informed Gardner and Ace Auto Sales about this several times. Wilson also knew that he used drugs and drank. Grandnephew got into accident that injured his passenger and passenger sued Wilson, Ace and Gardner for negligently entrusting an auto to an incompetent driver. Procedural History: Trial court directed verdict for Ace and Gardner and the jury returned a verdict against Wilson. Passenger () appealed the directed verdicts and Wilson appealed the jury verdict against her. Issue: Does doctrine of negligent entrustment apply to people that knowingly provide funding to incompetent drivers and to persons that knowignly sell autos to incompetent drivers? Holding: Yes. Reasoning: General rule is that negligent entrustment applies to combined negligence of incompetent driver and car owner who lends car to incompetent driver. says it should include those who provide funding to incompetent driver and those who sell cars to incompetent drivers. The s argue that it should be limited to car owners who lend their cars. Courts in other states have interpreted the rule more broadly than the s in this case. Restatement rule covers sellers, lessors, donors and lenders. The cases that s use to support their position is highly criticized by legal scholars. The trial court erred in directing a verdict for Ace and Gardner. Carter v. Kinney (188) Facts: The Kinneys (D) hosted a bible study meeting at their home. The sessions were sponsored by the Northwest Bible Church and participants signed up for the sessions at the church. The sessions were hosted at various times at the church and at the homes of other members. Carter (P) came to one of the morning sessions, slipped on a patch of ice in the driveway, and broke his leg. Kinney had shoveled the driveway the previous evening and was not aware that ice had formed overnight. D did not receive any financial or other benefit from P in connection with the bible study meeting. P sued D and the trial court granted Ds motion for summary judgment, holding that P was a licensee and that D did not have a duty to warn P of a dangerous condition of which D was not aware. P appealed. Issue: What is the duty of a possessor to a licensee? Holding and Rule: The duty of a possessor to a licensee is to make safe only dangers of which the possessor is aware. Social guests are licensees. The court held that it was irrelevant that D had invited P because there was no material benefit motive and it was not extended to the public. D had not thrown open their premises to the public. Disposition: Affirmed. Notes: A person is not an invitee merely because that person was invited. On exams, always classify each person in a fact pattern as an invitee, licensee, or trespasser and analyze the duty owed to each person.

Heins v. Webster County (194) Facts: Man goes to visit his daughter at the hospital she works at. He says he is there to arrange him playing the part of Santa Clause. He is about to go out to lunch and he opens the main entrance door for his wife and then he slips and falls on the ice and snow that accumulated by the door. Procedural History: The court found that he was a licensee not an invitee, because he went to see his daughter, and so they entered judgment in favor of the hospital. Issue: Should the court abolish the common law classification of licensee and invitee and require a duty of care to all nontresspassers? Holding: Yes. Reasoning: A number of jurisdictions have abandoned this common law classification. MA and CA supreme courts have abandoned the distinction for the policy reason that a visitors status should not determine the duty that a landowner owes him This case exemplifies the kind of frustration the common law distinction raises If Heins had been visiting a patient, he would be an invitee Because he was visiting daughter who worked there, he was a licensee The common law distinction should not be able to protect a landowner from liability when he would otherwise be held to a standard of reasonable care There are 7 factors for determining whether a landowner has exercised reasonable care: they are in the case (see below) Dissent: It is not the courts function to create liability where the law does notin this case, a landowner owes a duty of care to an individual who may be engaging in activities on the property without the landowners knowledge or express permission.

Posecai v. Wal-Mart Stores (204) Synopsis of Rule of Law. Under the duty-risk analysis, the plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, i.e., that the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached. Under the duty-risk analysis, all inquiries must be answered in the affirmative for plaintiff to recover. Facts. Plaintiff was robbed in the parking lot of a Sams Club, owned by Wal-Mart Stores (Defendant). Plaintiff sued, contending that Defendant was negligent in failing to provide adequate security in the parking lot considering the high level of crime in the surrounding area. The trial judge ruled for Plaintiff. Defendant appealed. Issue. Was the risk of harm suffered by Plaintiff foreseeable to Defendant thus imposing sole liability for damages? * Should Louisiana adopt a different test for foreseeability?

Held. No. The court reversed the judgment of the court of appeals, entered judgment in favor of the Defendant. The court concluded that Defendant owed no duty to protect Plaintiff from being robbed in Defendants parking lot, because it was not foreseeable. * Yes. The court adopted a new standard, a balancing test formulated in California and adopted by Tennessee, in which courts balance the foreseeability of harm to a potential plaintiff and the burden of imposing a duty on a business to protect against the criminal acts of third persons. Discussion. Posecai illustrates the standard framework in analysis of tort law that is the four elements of duty, breach, causation and harm. With regard to duty, the court offers a broad explanation: [a] threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. The court may consider various moral, social, and economic factors, including the fairness of imposing liability; the economic impact on the defendant and on similarly situated parties; the need for an incentive to prevent future harm; the nature of defendants activity; the potential for an unmanageable flow of litigation; the historical development of precedent; and the direction in which society and its institutions are evolving. * Once a duty is established, a second issue arises with respect to proximate cause: foreseeability, i.e., whether the defendant should have reasonably foreseen, as a risk of her conduct, the general consequences or type of harm suffered by the plaintiff. As the Posecai notes, [t]he foreseeability of the crime risk on the defendants property and the gravity of the risk determine the existence and the extent of the defendants duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed. * Finally, with respect to the new standard the court adopted, the court explained that [t]he balancing test addresses the interests of both business proprietors and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of third persons. In determining the duty that exists, the foreseeability of harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against that harm. In cases in which there is a high degree of foreseeability of harm and the probable harm is great, the burden imposed upon defendant may be substantial. Alternatively, in cases in which a lesser degree of foreseeability is present or potential harm is slight, less onerous burdens may be imposed. Under this test, the high degree of foreseeability necessary to impose a duty to provide security, will rarely, if ever, be proven in the absence of prior similar incidents of crime on the property.

A.W. v Lancaster County School District (211) FACTS A.W. (plaintiff) is the mother of C.B., a kindergarten student at a school within the Lincoln Public Schools (LPS) (defendant). A.W. sued LPS after C.B. was sexually assaulted in a restroom at his school, alleging that LPS was negligent in allowing the assault to occur. LPS employees witnessed Joseph Siems, the man who committed the assault, enter the school, noted that he posed a danger, and attempted to determine his purpose at the school, but failed to keep track of his location. While Siems was at large within the school, C.B. was permitted to use a school restroom alone, after which he reported that

Siems had sexually assaulted him. The district court dismissed LPS on summary judgment, holding that it did not owe a duty to protect C.B. from the sexual assault, that the assault against C.B. was not foreseeable, and that LPS took reasonable steps to protect students against reasonable acts of violence. Broadbent v. Broadbent (217) 1995 Venue: Facts: Posture: Issue: Holding: Rule: AZ SC Defendant is watching her own son swimming in the pool, but leaves to answer the phone. When she comes back, he's on the bottom of the pool, and he's got severe brain damage. Father sues as conservator of son. Dismissed at trial, dismissal affirmed on appeal. Does parental immunity bar this suit? No. Remanded to trial. A parent is not immune to tort liability towards his or her children solely by virtue of the relationship. Parents are not liable if they acted as a reasonable and prudent parent in the situation would have. Because we thought children needed so much discipline, we used to immunize parents against lawsuits by their kids. We've been chipping away against parental immunity over the years: first killing by stabbing and thrusting were prohibited, then negligence (except where the alleged negligent act was an exercise of parental authority). There were some reasons for this: 1. 2. 3. 4. Not wanting to disturb domestic tranquility The danger of fraud and collusion in such suits Awarding damages to children will deplete family resources If the child predeceases the parents, the parents could inherit the damage award anyway 5. Not wanting to interfere with parental discipline and control None of those reasons is as compelling as the need to protect children: injuries are more disruptive than lawsuits. And really, this stuff is just about insurance: family resources are not at stake. Also, parental discretion is not absolute. Parents owe a parental duty to their children. So the real question here is whether a reasonable and prudent parent would have left a 2.5-year-old unattended by the pool. That determination will require a trial.


Riss v. New York (228) Synopsis of Rule of Law. The court refused to hold the government liable, in the absence of legislation, or to carve out an area of tort liability for police protection to members of the public. Facts. Appellant had been terrorized for months by a rejected suitor, a man named Pugach. This involved threats of serious injury and death. Appellant consistently sought the protection of police. She eventually became engaged to another man, and during a party celebrating her engagement, the rejected suitor called her threatening that it was her last chance. She contacted police again, but they did not act. Pugach hired an assailant to throw lye into Appellants face. She was blinded in one eye, lost most of her sight in the other, and her face was permanently disfigured. She brought an action against the police department for failing to protect her. The trial court dismissed her action, and the Appellate division affirmed. Issue. Was the city liable for its failure to provide special protection for a member of the public, who had been subject to constant threats, repeatedly requested such protection, and eventually suffered egregious harm when those threats were carried out? Held. No. The court cited policy considerations when it held that the protection afforded citizens is a general one, and it was not within the purview of the court to require police protection of the public. Discussion. Governmental immunity protects the government from tort liability. Traditionally such immunities were complete and prevented any tort suits against the government. The general immunity provision at issue here is founded on policy considerations, or as the court put it, such immunity involved the provision of a government service to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers (emphasis added). * A tertiary issue the court raised concerned the proper means by which the scope of public responsibility might be broadened in the context of rising crime and other societal problems. The court defers to the legislative process, specifically stating: [t]o foist a presumed cure for these problems by judicial innovation of a new kind of liability in tort would be foolhardy indeed and an assumption of judicial wisdom and power not possessed by the courts. Based on this rationale, the court concluded, [t]here is no warrant in judicial tradition or in the proper allocation of the powers of government for the courts, in the absence of legislation, to carve out an area of tort liability for police protection to members of the public.

Lauer v. City of New York (237) 2000 Venue: NY Ct. App. A kid dies of a brain aneurism. A preliminary report indicates that it's homicide by blunt trauma, and the dad becomes the prime suspect. Later, the ME determines that it was natural causes, but fails to correct the report, so the investigation continues for years. The dad has suffered quite a bit in


the meantime. Posture: Issue: Holding: All sorts of claims dismissed at trial, but the Appellate Division reinstates negligent infliction of emotional distress. Can a member of the public recover from a municipality for its employee's negligence? No. The Appellate Division is reversed, and the claim dismissed. Discretionary acts (exercise of authority vested in the public official) are not a source of liability. Ministerial acts (acts required in accordance with a governing rule) may, but not necessarily: that a wrong is ministerial merely removes immunity.


To recover damages, there must be a duty. And that duty must be to a specific person, not to society at large. There was a statutory violation here, Reasoning: but the intent of the statute was for the protection of society at large, not this plaintiff. No civil liability to an individual arises if a government agent is merely neglectul in carrying out actions on behalf of society in general.

Friedman v. State of New York (243) 1986 Venue: Facts: Posture: NY Ct. App. Friedman, Cataldo, and Muller are all injured in "crossover collisions," in locations where maybe there should have been a median. All three trials result in judgments for plaintiffs. Appellate division affirms judgment for Friedman, rejects both Cataldo and Muller. Narrowly: 1. Is there evidence in the record supporting the finding for Friedman? 2. Does the evidence in the record more closely comport with the trial court's findings or with the Appellate Division's? More broadly: under what circumstances is the municipal authority liable for failure to install a median? Holding: Friedman and Muller win (affirmed and reversed), Cataldo loses (affirmed). A governmental body is liable when its study of a traffic condition is plainly inadequate, or when there's no reasonable basis for its plan. Rule: If the state is made aware of a dangerous condition, it must study it and make a plan. Once a plan has been made, there's a duty to carry it out in a reasonable period of time. Also, the state is under a continual duty to


review the plan. We don't want to just substitute jury decisions for legislative determinations. We also require more than a battle of experts. Reasoning: For Cataldo, the legislature's determination that no barrier needed to be installed was reasonable. For the others, though, there was a determination that a barrier was needed, and the state delayed unreasonably.

Cope v. Scott (249) Prepared by Candice Facts: Cope was driving on a road and collided with another driver on a sharp turn. He sued the national park service and the other driver, claiming that the service failed to maintain the road adequately and failed to put up warning signs. This place where the collision occurred was recorded as a high accident area and recommended that the road be repaved using coarse aggregate to prevent skidding. It was listed as the 33rd thing on the priority sheet to be fixed out of 80. There were 2 slippery when wet signs near the accident but we dont know how close and the service moved for summary judgment arguing that its inaction was discretionary and therefore exempt from suit under the FTCA. Issue: Is failure to maintain roadway discretionary and exempt from suit under FTCA and is its failure to post warning signs discretionary and exempt under FTCA? Holding: Yes and No. Reasoning:

There is a two step test that the court uses to determine whether an action is exempt from suit under the discretionary function exemption of the FTCA. Is there a federal statute or regulation or policy specifically prescribing a course of action for the employee to follow? If so, then an employee has no choice. The only question to ask is if the employee followed the directiveif so, exempt from suit under FTCA. If not, then opens the govt. up to suit. In this case, there was no specific prescription If the activity does involve choice, the question is: Is the challenged discretionary act of a government employee of the nature and quality that congress intended to shield from tort liability? If they involve the exercise of political, social, or economic judgment, then they are exempt from suit under FTCA. Cant just have a hint of policy considerations, must be fraught with them to be exempt from suit under FTCA. With regard to the claim that the road was not adequately maintained, the two step test shows that this is exempt from suitthere are policy considerations and there are no specific prescriptions In terms of the sign argument, there is no specific prescription and the discretion involved in posting signs is not the kind of

discretion protected by the discretionary function exemption to the FTCAnot fraught with policy considerations Falzone v. Busch (260) Supreme Court of NJ 1965 Prepared by Dirk Facts: -Falzone alleges two counts in this personal injury claim. 1. Charles was struck, while standing on the side of the road in a field, by defendants car. A. He alleges negligence on the part of the driver.

2. Mabel, his wife, was sitting in his car, at the time of the accident close to where Charles was struck, and the car came dangerously close to hitting her.

B. This scared her so bad that she became ill and required medical attention.

Procedure: -The trial court granted summary judgment for the defendant on the second count, holding that it had to follow the NJ rule that where there is no physical impact, there is no claim. -The NJ supreme court certified the claim for review before the court of appeals had a chance to review the case. Issue: -Under NJ law, does a non-physically impacted plaintiff have a cause of action against the negligence of a driver when the fear of being hit caused her illness and medical need? Holding: -Yes, she has a claim and the court overruled unanimously the precedent of Ward, which was outdated. Reasoning: -The court began by explaining the three reasons that Ward established for non-impact claims. P.265. -The court then attacks the first point by explaining that there were inconsistencies in the law regarding Ward.

-NJ courts around and after Ward had established circumstances where a plaintiff could recover without a direct impact. P.266

-In cases where the actual physical injury is slight and the mental injury is the obvious cause of action, there is a claim. It only takes a small physical injury to justify a claim. -If the emotional disturbance is caused intentionally, there is a cause of action.

-In a case where the plaintiff was attempting to avoid a negligently caused circumstance created by the defendant, and there is a slight physical injury, she has a claim. -The court attacks the second point simply claiming that we would have no common law if we followed Wards reasoning. P.266 bottom. -Court attacks the third point by claiming, among other points: p.267

-In terms of fraud, we have a structured justice system that is meant to root out false claims.

-We are also to trust modern science and medicine to assist in this filtering. -Difficulty of proof should not prohibit a plaintiff from trying her claim. -Nor should the possibility of fraud prohibit those meritorious claims from being filed. -Nor should the fear of expansion of litigation drive the possibility for a claim. -Finally, the possibility that a plaintiff may delay a claim and thereby the defendant may not be aware of an accident in order to protect evidence should not bar claims. -The court also holds that Ward runs counter to all popular opinion. All secondary sources are against the non-impact policy of Ward.p.267 bottom. -Ward is overruled and the court gives one caveat:

-If a plaintiff brings a claim that is delayed, it may affect damage potential, as it could be seen as an intentional ploy to block the defendant from finding any evidence that may have been time-sensitive. -The court holds that the injury must be reasonable and immediate;

Metro North v. Buckley (268) Facts of the Case Michael Buckley was exposed to insulation dust containing asbestos while employed as a pipefitter by Metro-North Commuter Railroad Co. Buckley feared he would develop cancer, of which periodic medical check ups have revealed no evidence of an asbestos related disease. Buckley filed suit under the Federal Employers' Liability Act (FELA), which permits a railroad worker to recover for an "injury . . . resulting from" his employer's "negligence." He sought damages for negligently inflicted emotional distress and to cover the cost of future check ups. The District Court dismissed Buckley's case because since there had been no "physical impact" from his exposure, the FELA did not permit recovery for his emotional injury. Buckley's medical monitoring claim was not discussed. In reversing, the Court of Appeals held that that his contact with the insulation dust was considered a physical impact that, when present, permits a FELA plaintiff to recover for accompanying emotional distress. Furthermore, Buckley could recover the costs of check ups made necessary by the exposure.

Question May railroad workers invoke the Federal Employers' Liability Act to sue their employers for emotional distress due to asbestos, or some other disease- causing carcinogen, exposure if it has not made them ill? Conclusion Decision: 7 votes for Metro-North Commuter R.R. Co., 2 vote(s) against Legal provision: Federal Employers' Liability No. In an opinion authored by Justice Stephen Breyer, the Court ruled that railroad workers cannot invoke the Federal Employers' Liability Act to sue their employers for emotional distress due to asbestos, or some other disease- causing carcinogen, exposure unless, and until, they manifest symptoms of a disease. Furthermore, workers are not legally entitled to recover medical monitoring costs insofar as they are contingent upon an underlying injury. Gammon v. Osteopathic Hospital of Maine, 534 A.2d 1282 (Maine 1987) Prepared by Candice (276) Facts: When his father died at a hospital, made arrangements for the funeral home to make arrangements. opened a bag that was supposedly filled with his fathers personal effects but saw a bloodied severed leg in the bag. He suffered an immediate traumatic reaction. He began to have nightmares and his relationship with his family took a turn for the worse. After several months his emotional state improved, but he still had nightmares. He never sought treatment and he did not present medical evidence at trial. Procedural History: The trial court granted a directed verdict on the plaintiffs negligence claim for severe emotional distress. Issue: May a recover for emotional or psychic injuries negligently inflicted by the defendant without any evidence of physical injury? Holding: Yes. Reasoning: A defendant may be liable for any foreseeable emotional or psychic harms he negligently causes A persons psychic wellbeing is as much entitled to legal protection as his physical wellbeing In the past, courts have limited recovery for emotional harms to certain categories of cases, usually involving physical harm In cases with no physical injury, the court required a showing of Physical impact Objective manifestation Underlying or accompanying tort Or special circumstances

The court finds that these limitations are arbitrary and should not bar the s recovery These are artificial devices employed by courts to protect against fraudulent claims and undue burden on the defendant This court thinks that the trial process is well suited to protect against fraudulent claims Furthermore, the concept of foreseeability imposes an adequate limit on the defendants liability A defendant is bound to foresee emotional harm only when such harm reasonably could be expected to befall the ordinary sensitive person The high probability that a person will suffer emotional harm from the mishandling of a family members corpse should allay any fears of fraudulent claims

Portee v. Jaffee (280) Prepared by Candice Facts: A boy lived with his mother in an apartment complex. The boy got trapped in the elevator between the elevator door and the wall of the elevator shaft. The elevator was activated and the boy was dragged up to the third floor. Police came and came and the police worked for 4 hours to free the boy. His mother was there and watched as the boy moaned and cried and flailed his arms and she was restrained from touching him and he died while still trapped. became severely depressed and self destructive. She slashed her wrist and required physical therapy and extensive counseling and psychotherapy. Procedural History: The trial court granted summary judgment for defendants on claims by plaintiff for mental and emotional distress. The Supreme Court reviewed the dismissal. Issue: May a plaintiff maintain a cause of action for NIED caused by witnessing the death of a close relative? Holding: YES. Reasoning:

This case requires the court to remedy a violation of a duty of care while avoiding speculative results or punitive liability The focus is on the injured personal interestin this case the emotional tranquility that comes with the knowledge that ones child is safe CA identified 3 factors that would determine whether an emotional injury would be compensable because foreseeable (Dillon): Whether the plaintiff was located near the scene of the accident The court says that this will generally follow if the second factor is met Whether shock resulted form the direct and contemporaneous sensory observation of the accident as opposed to learning from 3rd parties It is necessary that the victim witnessed the accident because this acts to limit the defendants liability for emotional harm inflicted upon his victims close relatives

When a plaintiff witnesses the accident at the scene it is likely that he has suffered a traumatic sense of loss that will cause severe emotional distress Whether the plaintiff and the victim were closely related This is essential, because the genuine suffering that flows from harm to close relatives starkly contrasts with everyday emotional setbacks The court agrees that these three factors support a cause of action The court says that an additional factor is the severity of the injuryit has to be death or serious injury The risk of an extraordinary reaction to a slight injury does not justify the imposition of liability

Johnson v. Jamaica Hospital (289) Prepared by Candice Facts: In this case, s daughter was born and kept in the hospital for further treatment. came to see her a week later, and the baby was discovered missing. When she was missing, brought suit for the emotional distress brought about by the defendants negligence. The baby was recovered by the police 4 months later. Procedural History: Trial court denied the s motion to dismiss the parents action for failure to state a cause of action. Appellate court affirmed. Issue: Is there a cause of action in this case? Holding: No. Reasoning: No cause of action was stated in this case for the following reasons:

According to Bovsun, damages may be recovered for indirect psychic injuries in limited circumstances Can recover if they were in the zone of danger, and their injuries result from contemporaneous observation of serious physical injury or death caused by defendants negligence. Parents in this case did not establish this s say that the hospital had a direct duty to thembut there is not a direct duty to them. See Kalina in which the court held that parents were interested bystanders to whom no direct duty was owed (circumcision on the wrong day case) Court summarized Palsgraf saying that if it was a wrong to the son it was not a wrong in relation to the plaintiffs far removed Direct injury was sustained by the infant In the absence of such a duty, there cannot be liability Policy reason: allowing recovery in this case would invite open ended liability for indirect emotional injury suffered by families in every instance where their relative experiences negligent care The Johnson and Lando exceptions do not apply either In Johnson: exception was there because there is a duty to transmit truthfully information concerning a relatives death or funeral

In Lando: exception for the mishandling of or failure to deliver a dead body with the consequent denial of access to the family Dissent: A flood of litigation here is unlikely, because this is not a common occurrence, and the burden on the defendants in this case is not so great as to foreclose liability altogether.

Nycal Corporation v. KPMG Peat Marwick LLP (p.299) 1998 Venue: MA SC Plaintiff buys a major interest in Gulf, relying on KPMG's annual report. Gulf files for bankruptcy... perhaps that annual report painted a sunnier picture than was warranted? KPMG, however, knew nothing about the purchase plan. Summary judgment for the defendant at trial. Is KPMG liable for this harm? No. Affirmed. There's no legal duty if the defendant had no knowledge that the plaintiff (or a small group to which the plaintiff belongs) would rely on the information. In other words, there's no general duty of care here.


Posture: Issue: Holding: Rule:

Straight up application or R2T 552. We could rely on near-privity (which there isn't here) or foreseeability (which is also disfavored), but no. And ultimately, it's the client, not the auditor, who is responsible: if the client Reasoning: deceives the auditor, what can be done?

532 Madison Avenue Gourmet Foods Inc. v. Finlandia Center Inc. (310) 2001 Venue: Facts: NY Ct. App. A section of a building's wall collapses onto Madison Ave. Big safety concerns, and they result from a remodeling project. The area is closed for about 2 weeks. This clobbered businesses there. Dismissed at trial (no duty of care). Actually, there are several cases consolidated here. What is a landholder's duty in negligence when a plaintiff's sole injury is lost income, and what about public nuisance also? No duty about economic loss, but there is duty regarding nuisance. Dismissal is affirmed. Liability depends on duty. There wasn't one here.

Posture: Issue: Holding: Rule:

It's up to the courts to say where duties begin and end, and there are various factors to consider (proliferation of claims, public policies, etc.). Tort law is a means of apportioning risks and allocating the burden of loss. Foreseeability alone does not make a duty: you need something running directly to the injured party. Reasoning: Landowners who engage in activities that might injure neighbors are obligated to use reasonable care not to injure them. But this doesn't extend to protecting them from loss of business. Yes, this is a somewhat arbitrary policy: they all are. Emerson v. Magendantz 1997 Venue: RI SC The Emersons have a child, decide they don't want more (for financial reasons). Mrs. Emerson has tubal ligation, but it doesn't work. They have another child, who turns out to have congenital issues (i.e., not caused by the tubal ligation). There seems to have been a suit, but it's not clear if there even was a verdict at trial, from the materials we've got. Might just be a question "certified" to the court? Two: 1. Is does negligence in performing sterilization give a cause of action when the patient subsequently becomes pregnant and delivers a child? 2. What is the nature of the damages? Yes, and you can recover for basically everything but emotional distress associated with the birth of a healthy child. Oh, and also not the costs of raising the child to maturity... 1: Negligent performance of a sterilization procedure is a tort for which recovery can be allowed. If a physician is on notice that children would be disabled, the damages might include the full cost of raising the child. Rule: 2: The "limited benefit rule" covers medical expenses (of the failed sterilaztion, the sequel to make it stick, the pregnancy, prenatal, delivery, and postnatal care), loss of wages, and loss of consortium. Just traditional tort principles, really. But we're not going to do emotional stuffs. R2T 920 suggests offsetting the damages by any benefits conferred. Children are a joy. Plus, it's not possible to say at this stage Reasoning: whether there was a net loss or gain. (!?!) And anyway, the fact that the parents are keeping the child, instead of giving for adoption, says that they're happy on balance. (!?!?!)






Dissent: This is just medical malpractice. The "joy" factor is a conclusionary deception by the court. Women have a constitutional right to make choices about having children.

Stubbs v. City of Rochester, 226 N.Y. 516, 124 N.E. 137 (1919). Facts: The City of Rochester (D) supplied clean water for drinking, and water known to be contaminated with sewage for fighting fires. The drinking water became contaminated with the unclean water through Rochesters negligence. At the same time the city increased an increase in cases of typhoid fever. Stubbs (P) contracted typhoid fever and sued D for negligence. The trial court entered a nonsuit for D, which was affirmed by the Appellate Division, and P appealed. Issue: If more than one possible causes of harm exist, and the defendant would be liable for one of them, what must the plaintiff show in order to recover? Holding and Rule: If more than one possible causes of harm exist, and the defendant would be liable for one of them, the plaintiff must establish with reasonable certainty that the cause of the injury was the one for which the defendant was liable. A plaintiff is not required to eliminate all other possible sources. It would be impossible to prove the time when P contracted typhoid, and then locate every individual who had contact with P to establish that each was free from the disease. P gave evidence of his habits, his home surroundings, and his method of living, and medical testimony indicated that his illness was caused by drinking contaminated water. The court held that this case was not so lacking in proof as a matter of law that the complaint should have been dismissed.

Disposition: Reversed, new trial granted.

Zuchowicz v. United States Synopsis of Rule of Law. If (a) a negligent act was deemed wrong because the act increase the chances that a particular type of accident would occur; and (b) a mishap of that very sort did happen, this is enough to support a finding by a tier of fact that the negligent behavior caused the harm. Facts. Plaintiff filed a prescription for the drug, Danocrine. The prescription erroneously instructed Plaintiff to take 1600-milligrams of Danocrine per day. This was twice the maximum recommended dosage. Plaintiff took the 1600-milligram dose each day for a month and experienced abnormal weight gain, bloating, hot flashes, night sweats, a racing heart, chest pains, dizziness, headaches, acne, and fatigue. She was told not to take the drug anymore. She was diagnosed with primary pulmonary hypertension (PPH). She was expected to live two and a half more years. She was on the waiting list for a heart lung transplant when she became pregnant. Because she was pregnant, she was ineligible for a heart lung transplant. She gave birth to her son and died a month later. Plaintiff claims that she developed PPH because of the overdose of Danocrine and

brought suit against Defendant under the Federal Tort Claims Act. * Expert testimony revealed that Danocrine was responsible for Plaintiffs PPH. The doctor did not rule out all other possible causes of PPH, but he did exclude all other causes of secondary pulmonary hypertension. Expert testimony also ruled out all previously known drug related causes of PPH. The progression and timing of Plaintiffs disease in relation to her overdose supported a finding of drug-induced PPH. * Judgment for Plaintiff. Defendant appealed. Issue. Did Plaintiff present sufficient evidence that the overdose of Danocrine caused her illness? Held. Yes. Judgment affirmed. * The trier of fact could have concluded that Plaintiffs PPH was, more likely than not, caused by Danocrine. Expert testimony was presented and supported a finding of druginduced PPH to a reasonable medical certainty. There was not a long latency period between the onset of symptoms and the patients exposure to the drug. * However, in order to prove causation, it is necessary that the fact finder be able to conclude, more probably than not, that the overdose was the cause of Plaintiffs illness and ultimate death. The mere fact that the exposure to Danocrine was likely responsible for the disease does not suffice. * If (a) a negligent act was deemed wrong because the act increase the chances that a particular type of accident would occur; and (b) a mishap of that very sort did happen, this is enough to support a finding by a tier of fact that the negligent behavior caused the harm. When such a strong casual connection exists, the burden shifts to Defendant to show that the wrongful conduct was not a substantial cause. Discussion. It is not enough to say that the Danocrine was the cause of Plaintiffs PPH. If it can be proven that a standard dosage of Danocrine would have caused Plaintiffs PPH, then it was not the overdose of Danocrine that caused Plaintiffs PPH. Plaintiff must show that it was the overdose itself. Because this is difficult to prove, the following test was used: If (a) a negligent act was deemed wrong because the act increase the chances that a particular type of accident would occur; and (b) a mishap of that very sort did happen, this is enough to support a finding by a tier of fact that the negligent behavior caused the harm. Plaintiff satisfied her burden and the burden thus shifts to Defendant.

Hymowitz v. Eli Lilly & Co (327) Synopsis of Rule of Law. Where identification of the manufacturer of a drug that injures a plaintiff is impossible, New York courts will apply a market share theory, using a national market, to determine liability and apportionment of damages. Facts. The Food and Drug Administration approved the manufacture and marketing of the drug diethylstilbestrol (DES) in 1941 for use as a generic drug in the prevention of miscarriages. Approximately 300 companies manufactured the drug, and as it was generic no single company held patent. It was found later that DES created a high risk of vaginal cancer in some female children of women who had used the drug. Because so many companies manufactured and marketed the drug, over several years and for varying lengths of time, it was often impossible for potential plaintiffs to identify exactly

which company had manufactured the particular batch that the plaintiff had ingested. The cases at bar were brought by multiple plaintiffs, the daughters of women who had used DES. At trial, the manufacturers moved for summary judgment on the grounds that it could not be determined with specificity they any one of them was responsible for the injuries sustained by a particular plaintiff. The motions were denied and the Appellate Division affirmed. New Yorks highest court reviewed. Issue. What is the method to be employed to apportion liability in a products liability case involving a generic drug when it is impossible to determine which manufacturer produced the drug that caused the harm suffered by plaintiffs? Held. The court affirmed the lower courts denial of summary judgment and adopted a national market-share theory for apportioning liability. Dissent. In dissent, New York Court of Appeals Judge Mollen writes, I respectfully disagree with the majoritys conclusion that there should be no exculpation of those defendants who produced and marketed DES for pregnancy purposes, but who can prove, by a preponderance of the evidence, that they did not produce or market the particular pill ingested by the plaintiffs mother, but instead would retain the principle of imposing joint and several liability upon those defendants which cannot exculpate themselves. Mollen believes that the majoritys approach I would retain the principle of imposing joint and several liability upon those defendants which cannot exculpate themselves. Thus, he dissents. Discussion. The modern template for the adjudication of products liability claims was provided in MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916), where the New York Court of Appeals held that the manufacturer of any negligently manufactured product capable of serious harm owed a duty of care in the design, inspection, and fabrication of the product, a duty owed not only to the immediate purchaser but to all persons who might foreseeably come into contact with the product. The DES case, however, presented a unique problem: the identification, for purposes of determining liability, of the exact manufacturer responsible for the plaintiffs harm. Generally, as the court in Hymowitz observed, In a products liability action, identification of the exact defendant whose product injured the plaintiff is generally required. However, as here, such identification is sometimes difficult. The court thus concluded, Where two defendants breach a duty to the plaintiff, but there is uncertainty regarding which one caused the injury, the burden is upon each such actor to prove that he has not caused the harm. As a result, there may be broad apportionment of blame. As the court states, Successive tort-feasors may be held jointly and severally liable for an indivisible injury to a plaintiff. The court must then evaluate different approaches to in assigning responsibility, beginning first with alternative liability: Use of the alternative liability doctrine generally requires that the defendants have better access to information than does the plaintiff, and that all possible tort-feasors be before the court. It is also recognized that alternative liability rests on the notion that where there is a small number of possible wrongdoers, all of whom breached a duty to the plaintiff, the likelihood that one of them injured the plaintiff is relatively high, so that forcing them to exonerate themselves, or be held liable, is not unfair. The high number of possible tort-feasors in Hymowitz makes this approach impractical, however. Similarly, the theory of concerted action falls short: The theory of concerted action, in its pure form provides for joint and several liability on the part of all defendants having an understanding, express or tacit, to participate in a common plan or

design to commit a tortious act. However, the fact that the manufacturers were simultaneously engaged in the manufacture of the drug is not indicative of communal interest or action, as the court states, Parallel activity, without more, is insufficient to establish the agreement element necessary to maintain a concerted action claim. Recognizing the circumstances of the case at bar, the court thus crafts a new approach for apportionment of responsibility: Given this unusual scenario, it is more appropriate that the loss be borne by those that produced the drug for use during pregnancy, rather than by those who were injured by the use, even where the precise manufacturer of the drug cannot be identified in a particular action. Thus, the court adopted a market share theory, using a national market, for determining liability and apportioning damages in the diethylstilbestrol (DES) cases. Doe v. Manheimer (1989) Proximate Cause: Superceding causes Facts: P was working as a meteor reader and as raped on property owned by D. There were overgrown bushes and tall grass that shielded the area from view. The neighborhood as a high crime area. Another rape had occurred about three months earlier and Ds mother had been robbed 14 mos. earlier on Ds property. Ps expert claimed that the physical configuration of the specific site increased the risk of violent crimes between strangers by creating a protective zone that reduced visibility and thus served as an inducement for crime. History: P brought an action for personal injuries claiming D should have known of the need to remove the overgrown vegetation because of the high crime in the area. Jury found for P in the amount of $540,000. The court set aside the jurys verdict on Ds motion for directed verdict. The trial court ruled that the overgrowth did not cause the injury. As a matter of law jury could not find that Ds maintenance of the overgrowth was a substantial factor in the rape and thus P had failed to establish proximate cause. Issue: Is D landowner liable for a rape that took place on his property behind overgrowth that shielded the view from the street? Holding: Proximate cause is for the jury to decide. Trial courts judgment can stand only if there s no room for reasonable disagreement on the question of proximate cause. P must establish that Ds conduct legally caused the injuries. The harm P suffered cannot reasonably be understood as within the scope of the risk created by Ds conduct. The court does not accept Ps that it was within the scope of risk that the condition of Ds land might catalyze a criminal assault. Restatement 442B contemplates reasonably foreseeable intervening misconduct, rather than all that actually proceeds from a situation created by D. There was no evidence that D had any past experience that might have led him to act on an association between overgrowth and criminal activity. The harm suffered by P is not of the same general type that allegedly made D negligent. Tripping or falling over untrimmed hedges would have been within the scope of risk of Ds negligence. Reasoning: Proximate cause: an actual cause that is a substantial factor in the resulting harm. Substantial factor test: reflects the fundamental inquiry to all proximate cause questions: whether the harm that occurred was of the same general nature as the foreseeable risk created by Ds negligence.

Restatement (second) 442B: A negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where a harm is intentionally caused by a third person and is not within the scope of the risk created by a defendants conduct. In such a case, the third person has deliberately assumed control and all responsibility for the consequences of his act is shifted to him. Benn v. Thomas (1994) Proximate cause: Unexpected harm

Facts: P had a history of heart disease and died of a heart attack 6 days after being in an accident caused by Ds negligence. Ps expert said accident was the straw that broke camels back. D argued that it probably would have happened without the accident because of the preexisting condition. History: Court of appeals agreed that trial courts refusal to instruct on eggshell P constituted reversal error. D appealed. Issue: Did the trial court err in refusing to instruct the jury on the eggshell P? Holding: D argues Ps instruction was inappropriate because it concerned damages not proximate cause. Court holds that the eggshell P instruction is equally a rule of proximate cause. The proximate cause instruction failed to convey the existing law that the jury should have applied to the case. Court affirms the decision of the court of appeals and reverses the judgment of the district court. Reasoning: Eggshell P Rule: requires D to take his P as he finds him, even if it means he must compensate P for harm an ordinary person would not have suffered. This rule rejects the limit of foreseeability that courts ordinarily require in the determination of proximate cause. It imposed full liability for the full extent of those injuries, not merely those that were foreseeable to D. A tortfeasor whose act, superimposed upon a prior latent condition, results in an injury, may be liable in damages for the full disability. In Re Polemis and Furness, Withy & Co (1921) Proximate cause: Unexpected harm Facts: The owners of a ship sought to recover damages from D, who chartered the ship. Stevedores, for whose conduct D was responsible, were moving benzene from one hold to another and through their negligence the ship as set on fire and totally destroyed. History: The case was heard by arbitrators who found that the stevedores could not reasonably have anticipated that their negligence would result in the total destruction of the ship. D appealed Issue: Is the damage so remote from the negligence that it could not be reasonably foreseen as a consequence? Holding: Court held that the owners were entitled to their full loss from D. Appeal is dismissed. Reasoning: It is immaterial that the damage could not have been reasonably anticipated. To determine whether an act is negligent, it is important to determine whether any reasonable person would foresee that the act would cause damage. If he would not, then its not negligent. If the act would or might probably cause damage, the

fact that the damage it causes is not the kind of damage that one would expect is immaterial, so long as the damage is traceable to the negligent act. If you have a direct cause w/unforeseeable harm, D is liable. Most courts do not agree with this decision. Overseas Tankship v. Morts Dock (Wagon Mound) (1961) Proximate cause: Unexpected harm Facts: P owned a wharf and were refitting a ship. At a different wharf, Ds ship was taking on bunkering oil. A large quantity of oil spilled into the bay and some of it concentrated on Ps property. P stopped all operations until he could assess the danger. After discussions with D, P felt they could resume operations. Two days after resuming operations, oil under or near the wharf was ignited and a fire spread causing extensdive damage to the wharf and Ps equipment. History: Trial court awarded judgment to P and the Supreme Court dismissed Ds appeal. Issue: Should D be held liable for negligence in spilling oil, although the consequences were unforeseeable? Holding: The appeal should be allowed and Ps action as related to damage caused by negligence of D should be dismissed. Reasoning: It is not consonant with the ideas of justice and morality that for an act of negligence, however slight, which results in a trivial foreseeable damage, the actor should be liable for all consequences, however unforeseeable and grave, so long as they can be said to be direct. To hold D liable for consequences however unforeseeable of a careless act, if, but only if, he is at the same time liable for some other damage, however trivial, appears to be neither logical nor just. The essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen. Foreseeability becomes the effective test. Most courts follow Wagon Mound rather than Polemis. Wagon Mound and Polemis are pretty famous. May want to mention by name on exam.

Palsgraf v. Long Island R.R. Co., Ct. of App. of N.Y., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928). Facts Mrs. Palsgraf (P) was standing on a Long Island Railroad (D) train platform when two men ran to catch a train. The second man was carrying a small package containing fireworks. He was helped aboard the train by one guard on the platform and another on the train. The man dropped the package which exploded when it hit the tracks. The shock of the explosion caused scales at the other end of the platform many feet away to fall, striking and injuring Palsgraf. Palsgraf brought a personal injury lawsuit against Long Island Railroad and the railroad appealed the courts judgment in favor of Palsgraf. The judgment was affirmed on appeal and Long Island Railroad appealed. Issues 1. How is the duty of due care that is owed determined? 2. To whom does a party owe the duty of due care?

Holding and Rule (Cardozo Zone of Danger rule) 1. A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. 2. A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger. The court held that the conduct of Long Island Railroads guard was wrongful in relation to the man carrying the parcel, but not in relation to Palsgraf standing far away. No one was on notice that the package contained fireworks which when dropped could harm a person as far from the zone of danger as Palsgraf. To find negligence there must first be a finding that a duty was owed and breached, and that the injury could have been avoided if the defendant had been following that duty. The orbit of the danger or risk associated with a danger or risk is that which a reasonable person would foresee. Even if the guard had intentionally taken the package and thrown it he would not have threatened Palsgrafs safety from the appearances of the circumstances to a reasonable person. Long Island Railroads liability for an inadvertent or unintentional act cannot be greater than it would be if the act had been intentional. Disposition Reversed judgment for Long Island Railroad. Dissent (Andrews) Everyone owes the world at large the duty of refraining from acts that may unreasonably threaten the safety of others. In determining proximate cause the court must ask whether there was a natural and continuous sequence between the cause and effect and not whether the act would reasonably be expected to injure another. The court must consider that the greater the distance between the cause and the effect in time and space, the greater the likelihood that other causes intervene to affect the result. In this case there was no remoteness in time and little in space. Injury in some form was probable. Notes The majority adopted the principle that negligent conduct resulting in injury will lead to liability only if the actor could have reasonably foreseen that the conduct would cause the injury. In a 4-3 opinion by Cardozo, the court held that the Long Island Railroad attendants could not have foreseen the possibility of injury to Palsgraf and therefore did not breach any duty to her. Andrews asserted that the duty to exercise care is owed to all, and thus a negligent act will subject the actor to liability to all persons proximately harmed by it, whether or not the harm is foreseeable. Both opinions have been widely cited to support the two views expressed in them. The reasoning in this case was that Long Island Railroad did not owe a duty of care to Palsgraf insofar as the package was concerned. Cardozo did not reach the issue of proximate cause for which the case is often cited. There is no general principle that a railroad owes no duty to persons on station platforms not in immediate proximity to the

tracks, as would have been the case if Palsgraf had been injured by objects falling from a passing train. Price v. Blaine Kern Artista, Inc. case brief PRICE v BLAINE KERN ARTISTA, INC FACTS Pl. alleges a caricature mask of George Bush created by Def. that he wore during employment as an entertainer was defective due to absence of a safety harness to support his neck and head under heavy weight. He was injured when a patron pushed him from behind, causing the weight of the mask to strain and injure his neck. ISSUE Is the patrons push that caused the Pl.s fall an unforeseeable superseding cause (which would absolve Def. from liability)? RULES While criminal or tortious third-party conduct typically severs the chain of proximate causation between a Pl. and Def., the chain remains unbroken when the third partys intervening intentional act is reasonably foreseeable. APPLICATION The trier of fact could reasonably find that BKA should have foreseen the possibility or probability of some sort of violent reaction, such as pushing, by intoxicated or politically volatile persons, ignited by the sight of a (caricature) of a (political figure). CONCLUSION A genuine issue of material fact remains with respect to the issue of legal and proximate cause of Pl.s injuries - reverse directed verdict - remand for trial. McClenahan v. Cooley case brief McCLENAHAN v COOLEY FACTS -D drove his car to a public parking lot of a bank, while in the bank, he left his keys in the ignition, and a thief spotted them left there, stole the car, began driving it, was later involved in a high speed chase. -D eventually ran a red light in a very busy intersection and slammed into another vehicle broadside killing P.s pregnant wife and later on the child. -Another young child in the vehicle had substantial injuries yet survived. D was employed as a law enforcement officer. RULES In order for there to be a cause of action for common law negligence, the following elements must be established. 1) A duty of care owed by the Def. to the Pl. 2) Conduct falling below the applicable standard of care amounting to a breach of that duty. 3) An injury or loss. 4) Causation in fact; and 5) Proximate, or legal, cause. -There is no requirement that a cause to be regarded as the proximate cause of an injury be the sole cause, the last cause, or the nearest to the injury, provided it is a substantial factor in producing the end result.

An intervening act will not exculpate the original wrongdoer of liability, provided that the negligent intervening act could not have been reasonably anticipated. It is only where misconduct was to be anticipated, and taking the risk of it was unreasonable, that liability will be imposed for consequences to which such intervening acts contributed. APPLICATION As a result, the decisions with regard to foreseeability as it relates to proximate cause and intervening cause should properly be submitted to a jury. ` WEEMS v HY-VEE FOOD STORES, INC. FACTS -The plaintiff slipped and fell on Defendants drug store floor, afterwards he experienced lower back pain. -Eighteen months later P visited a doctor in response to the back pain. -As a result of the treatment he received at the doctor he developed an infection which turned into spinal meningitis. He later recovered from the disease. -The plaintiff seeks damages for injuries as a result to the fall including the meningitis. ISSUE Can a plaintiff receive damages for injuries that resulted from a fall but worsened by a third party? HOLDING Yes, the defendant will be liable for the adverse results of medical treatment unless the treatment is extraordinary or the harm is outside the risks incident to the medical treatment. RULES -Defendant would be relieved from responsibility for the resulting damages under the rejected jury instruction if the jury determined the treatment was a superseding cause. -The rule that a tortfeasor is responsible for injuries which result from his/her negligence is not absolute. [exception]: when an intervening act turns into a superseding cause. -If an independent force intervenes after the original negligent conduct and plays a substantial role in creating a particular injury to the Pl., the original tortfeasor will be relieved from responsibility for the latter injury under narrowly-defined circumstances. (If these are met, the intervening act becomes the superseding cause of the injury.) (In order for an intervening act to become a superseding cause, it must not have been a normal consequence of the original tortfeasors acts or must not have been reasonably foreseeable.) [If the negligent actor is liable for anothers bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the others injury reasonably requires, irrespective of whether such acts are done in a proper or negligent manner.] APPLICATION It is immaterial in our analysis that the later injury in this case, spinal meningitis, was a rare side effect of the medical treatment. -Epidural block = common treatment --> spinal meningitis = known risk of procedure.

CONCLUSION Not possible to conclude that the epidural block treatment was a superseding cause. Palsgraf v. Long Island R.R Synopsis of Rule of Law. Chief Justice Cardozo, writing for the majority held that negligence is based on the foreseeability of the harm between the parties. Justice Andrews, writing for the minority stated that each person owes an absolute duty of care; i.e. each person must refrain from acts (foreseeable or not) that unreasonably threaten the safety of others. Facts. Mrs. Palsgraf (Plaintiff) was standing on a platform after she bought a ticket from Long Island R.R. (Defendant). Two men ran to catch a train that was pulling out from the platform. The first man jumped aboard. The second man, who was carrying a package, attempted to jump aboard the car, however he was unsteady. A guard on the train, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind at the same time. In this act, the package the man was carrying was dislodged and fell upon the rails. The package contained fireworks, but there was nothing from its appearance to give notice of its contents. The fireworks exploded when they fell. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The stales struck Plaintiff, causing injuries for which she sues. Plaintiff sued Defendant. Plaintiff was awarded damages. Defendant appealed. Issue. Does a Defendant owe a duty of care to Plaintiff who is outside the reasonably foreseeable zone of danger? Held. No. Judgment reversed. * A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. A defendant owes a duty of care only to those plaintiffs who are in the reasonably foreseeable zone of danger. * If no hazard is apparent to the eye of ordinary vigilance, an act innocent and harmless does not become a tort because it happened to be wrong with reference to someone else. The conduct in relation to Defendants guard was wrong in relation to the man carrying the parcel. * However, it was not wrong in relation to Plaintiff who was standing so far away. There was no indication that the parcel contained fireworks. There was no showing by Plaintiff that the act had such great possibilities of danger as to entitle a party to protection against that act. * For there to be a finding of negligence there must first be a finding that Defendant owes a duty to Plaintiff and that the injury could have been avoided by the Defendant. * The plaintiff must prove that her rights were violated and the duty that Defendant owed to her was transgressed. It is not enough that Plaintiff merely prove that a duty that was owed to another was transgressed. While it is clear that Defendant violated its duty to the person carrying the fireworks, Defendant did not violate any foreseeable duties to Plaintiff. * It was unforeseeable that a package being carried would explode and cause any damage to Plaintiff. Even if the guard had intentionally taken the package and thrown it, he would not have threatened Plaintiffs safety. Defendants liability for an intentional act cannot be greater when an act is inadvertent or unintentional.

Dissent. (Justice Andrews) Everyone owes the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. In determining proximate cause the court must ask itself whether there was a natural and continuous sequence between the cause and effect, and not whether the act would reasonably be expected to injure another. If not for the explosion, she would not have been injured. Discussion. This case identifies two ways to determine if a duty is owed to Plaintiff: (1) the Cardozo method; and (2) the Andrews method: * (C.J. Cardozo) Negligence is based on the foreseeability of harm between the parties. C.J. Cardozos opinion is the majority view and is referred to as the zone of danger view. Thus liability for negligence is limited to what was foreseeable and what duties were owed that were reasonably foreseeable prior to the negligent act. Thus to recover, a plaintiff must be a foreseeable plaintiff and be in the zone of danger. * (J. Andrews) Each person owes an absolute duty of care; each person must refrain from acts (foreseeable or not) that unreasonably threaten the safety of others. Under J. Andrews view, everyone is a foreseeable plaintiff. Fritts v. McKinne (452) Prepared by Dirk Facts: Fritts and friend Manus were drinking one night, and proceeded to get behind the wheel. There is dispute as to who was driving the car, but it hit a tree going 70 and flipped. Fritts sustained a Lefort II fracture, in which all of his major facial bones were broken. Fritts underwent surgery to repair these fractures, and the Dr. attempted a tracheostomy to allow him to breath, however he began gushing blood after the attempt, and died 3 days later. Procedure:

At trial, Plaintiff claims that the MD negligently failed to find the right artery. Defendant claimed that due to unusual anatomy, the artery was in the neck when it should have been in his chest. Defendant also asserted comparative negligence that he was drunk driving or drunk riding. Finally, defendant asserted that due to drug and alcohol abuse, Fritts life span was shortened, therefore damages should be smaller. Plaintiff objected to aany mention of drugs or alcohol. The court denied the objection, and subsequently, Fritts drunk history was put on trial (try the deceased) The jury instructions stated that it is the duty of drivers to use ordinary care to prevent his own injury or that of others. Jury found for the Dr. Issue:

Under OK law, does a comparative negligence defense work when the plaintiff, through drunkenness, ended up in the hospital, which prompted the operation which ended his life? Holding:
No. The reason for hospitalization is irrelevant, even if self-induced. Reasoning:

The court holds that no matter the reason for being in the hospital, the plaintiff still deserves non-negligent medical care. They also hold that the defense of the artery rupturing inevitably was proper. However, the negligence in the automobile accident was irrelevant. There are only a few circumstances where patient conduct can constitute comparative negligence: p.461 The surgery was five days after the accident; alcohol was not an issue here. The court also held that the jury instructions were invalid. The evidence of history can affect the damages however; That was an adequate defense for damage mitigation.

Exculpatory Clause at Snow Resort Held to Violate Public Policy Description

Connecticut high court held that a clear and well-drafted exculpatory clause signed by patrons at a snow resort violated public policy. The law disfavors blanket exceptions from negligence when the public has a right to expect a safe operation. Contracts Exculpatory Clauses; Enforceability; Public Policy CASE SUMMARY

Topic Key Words


Hanks went snowtubing for the first time at Powder Ridge Ski Resort. He signed a wellwritten, clear agreement that held that he would not hold the resort operator liable for any injuries he suffered. He was seriously injured and required multiple surgeries. He sued the resort operator for negligence. The suit was dismissed as Hanks had signed the exculpatory clause. He appealed.


Reversed. The exculpatory clause in the contract was clear and well drafted. It stated that the patron understood the he would "fully assume all risks associated with snowtubing, even if due to the negligence" of the resort operators. The law does not favor contract provisions that relieve a party from negligence. Even when such clauses are clear, they may violate public policy. Whether they do depends on the totality of the circumstances and the backdrop of current social expectations. Such a clause is an adhesion contract-there is no bargaining about the issue, which makes it disfavored. Further, the resort was open to the public-anyone age six and above could go snowtubing, which creates the impression that it is a safe recreational opportunity. The plaintiff paid a fee and expected to have safe recreation that was under the control of the resort operator. Hanks could have no knowledge of the safety of the resort but, like other members of society, expected it to be safe. Hanks v. Powder Ridge Restaurant Corp., 885 A.2d 734 (Sup. Ct., Conn., 2005)


Murphy v. Steeplechase Amusement Co (470)

Synopsis of Rule of Law. One who takes part in a sport accepts the dangers that are inherent in it so far as they are obvious and necessary. Facts. Defendant maintains an amusement park. The Flopper is an attraction at Defendants park. It consists of a moving belt, running upward on an inclined plane, on which passengers sit or stand. Many patrons are unable to keep their footing because of the movement of the belt and are thrown backwards or aside. Plaintiff visited Defendants park and stepped upon the moving belt of The Flopper. As he did so, he felt what he describes as a sudden jerk, and was thrown to the floor. His wife in front of him and friends behind him were thrown at the same time. Plaintiff suffered a fractured kneecap. Plaintiff sued Defendant for negligence. In his claim for negligence, Plaintiff argued that the belt was dangerous to life and limb in that it stopped and started violently and suddenly and was not properly equipped to prevent injuries to people who were using it without knowledge of its dangers. Plaintiff also argued that The Flopper was operated at a fast and dangerous speed and shoul d have been supplied with proper railing or guard. The lower court returned a verdict for Plaintiff. Defendant appealed. Issue. Is Defendant (an amusement park) liable for damages to Plaintiff who is hurt on a ride when it is reasonably foreseeable that some danger is involved? Held. No. Judgment reversed. New trial granted. * The sudden jerk experienced by Plaintiff is irrelevant because the risk of a jerk was a fall. Plaintiff knew he was subjecting himself to a jerk. A jerk was the very hazard that was invited and foreseen. * One who takes part in a sport accepts the dangers that are obvious and necessary. In this case, Plaintiff stepped on The Flopper to be jerked and thrown. It was obvious for Plaintiff to see the possibility that he might fall down. Moreover, people expected The Flopper to jerk and try to knock them down. It was necessary aspect of the rides success as evidenced by its name, The Flopper. * It is a different case if the dangers inherent in the sport were obscure or unobserved, or so serious as to justify the belief that precautions of some kind must have been taken to avert them. This is not the case. * Plaintiff claims he fell on wood and that the padding was defective or inadequate. He is strongly contradicted by the photographs and witness testimony. The padding should have

been kept in repair to break the force of any fall. However the case did not go to the jury for inadequate or defective padding. It went to the jury for the sudden jerk of the ride. Discussion. In this case, Plaintiff assumed the risk of a sudden jerk when he stepped on the moving belt of The Flopper. It was fairly obvious what the ride entailed and there were no hidden surprises. Plaintiff assumed the risk of a sudden jerk. Defendant is not liable to Plaintiff on a theory of negligence for an obvious and necessary sudden jerk.

Davenport v. Cotton Hope Plantation Horizontal Property Regime, 333 S.C. 71, 508
S.E. 2d 565 (South Carolina 1998)

Prepared by Candice Facts: was injured while going down a flight of stairs in his apartment complex. There were 3 stairwells that offered access, but used the middle stairs because they were closest to his apartment. For 2 months before his fall he had been reporting to that the floodlights in the stairwell were not working, but he still used the stairs. The night he fell, he thought he was stepping on a stair but it was actually a shadow caused by the broken light. Procedural history: trial court entered verdict for based on assumed risk and also held that if comparative negligence applied, the would be more negligent than the . Court of appeals reversed both points, and appealed. Issue: Does assumption of risk act as a complete bar to recovery where a state has adopted a modified comparative negligence system? Holding: No, unless the degree of fault arising therefrom is greater than the defendants negligence. Reasoning: Four requirements to establishing a defense of assumption of risk:
1. 2. 3. 4.

must have knowledge of the facts constituting a dangerous condition must know the condition is dangerous must appreciate the nature and extent of the danger must voluntarily expose himself to the danger

Suspect Who Fled Liable for Injury Suffered by Police Chasing Him Description Topic
Connecticut high court held that a suspect who was chased by a policeman into the woods was liable to the officer and his employer for the cost incurred when the officer fell and was injured. The firefigher's rule did not protect the defendant against liability. Torts

Key Words

Negligence; Duty of Care; Property; Firefighter's Rule CASE SUMMARY


Levandoski, a policeman, was breaking up a loud party at a house when the defendant, Cone, who was at the party, grabbed what appeared to be a bag of marijuana, and took off running. Levandoski chased him into the woods, fell from a ledge and was seriously injured. Levandoski sued Cone for negligence and his employer, the town, intervened on his side to seek reimbursement of workers' compensation benefits paid to Levandoski. The jury held for the plaintiffs and awarded damages. Cone appealed.


Affirmed. The common-law "firefighter's rule" provides that a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee and is owed a duty of care by the property owner that is less than that owed to an ordinary invitee. Thus, the landowner generally owes the firefighter or police officer injured on his property only the duty not to cause injury to him willfully or wantonly. The issue here is whether the rule should be extended beyond the scope of premises liability so as to bar a police officer from recovering, based on negligence, from a tortfeasor who is neither an owner nor a person in control of the premises. Defendant contends that the rule should apply in this instance, but it does not. He had been ordered to stop and failed to do so. He knew he was being chased over unlit property, so he knew that the officer chasing him could be injured when running through unfamiliar land.

Rylands v. Fletcher (506)

Synopsis of Rule of Law. A person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. Facts. Plaintiff owned and operated a mine adjacent to which Defendant constructed an artificial pond. The latter caused a mineshaft collapse, which resulted in a flood, and damaged Plaintiffs operation. The plaintiff sued, the matter was brought before an arbitrator to independently establish facts. The trial court found for Plaintiff; the appellate court affirmed; Defendant appealed to the House of Lords, which also affirmed. Issue. Was the use of Defendants land unreasonable and thus was he to be held liable for damages incurred by Plaintiff? Held. The lower court judgment was affirmed, stating in essence that the Defendants use of the land was unreasonable, engaged in without proper caution, and resulted in harm to the Plaintiff. Concurrence. The concurrence states more clearly the rule to be applied (see above), noting also that more than the due care which was owed to plaintiff, at issue was the factual

determination of damage: [w]hen one person in managing his own affairs causes, however innocently, damage to another, it is obviously only just that he should be the party to suffer. Discussion. The Rylands court considers the manner in which the Defendant used the land and concluded such use was non-natural what modern courts have described as inconsistent land use, i.e., when a party inflicts non-reciprocal risks on another. Nineteenth century English law was stricter than current law, in which trespass liability ordinarily requires the physical intrusion onto property, and nuisance law requires continuing and permanent activity (such as industrial activity that causes airborne polluti

MacPherson v. Buick Motor Co (551)

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.
Facts Reason Rules

o Pl - Siegler o Df - Kuhlman What happened? o Basically, Aaron Kuhlman was driving the gas truck and hit a highway chain link fence. o The gas trainer became detached and landed upside down on Capital Lake Drive without any lights. Car Ignites o Later Carol Houses carmysteriously ignited the gas and died in an explosion. Died In Flames o Seventeen-year-old Carol J. Housedied in the flames of a gasoline explosion when her car encountered a pool of thousands of gallons of spilled gasoline. She was driving home from her afterschool job in the early evening of November 22, 1967, along Capitol Lake Drive in Olympia; it was dark but dry; her car's headlamps were burning.

Trial Courts Error o The court refused to give an instruction on res ipsa loquitur (the thing speaks for itself). Reasoning o This should be strict liability. o Transporting Gas is an inherently dangerous activity. o If an explosion occurs the evidence will be destroyed. o The rule of strict liability rests not only upon the ultimate idea of rectifying a wrong and putting the burden where it should belong as a matter of abstract justice, that is, upon theone of the two innocent parties whose acts instigated or made the harm possible, but it also rests on problems of proof. RS 519. General Principle (1) One 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 such harm. (2) Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous. RS 520. Abnormally Dangerous Activities In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others; (b) Whether the gravity of the harm which may result from it is likely to be great; (c) Whether the risk cannot be eliminated by the exercise of reasonable care; Then regular negligence would apply (d) Whether the activity is not a matter of common usage; Things that go outside normal activity. (e) Whether the activity is inappropriate to the place where it is carried on; and Try to find a place that is more appropriate. (f) The value of the activity to the community. The activity of buying gasoline benefits mankind. Strict Liability ** Gives us the incentive to relocate. ** Gives us the incentive to reduce the activity.

Rylands v. Fletcher
Synopsis of Rule of Law. A person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. Facts. Plaintiff owned and operated a mine adjacent to which Defendant constructed an artificial pond. The latter caused a mineshaft collapse, which resulted in a flood, and damaged Plaintiffs operation. The plaintiff sued, the matter was brought before an arbitrator to independently establish facts. The trial court found for Plaintiff; the appellate court affirmed; Defendant appealed to the House of Lords, which also affirmed. Issue. Was the use of Defendants land unreasonable and thus was he to be held liable for damages incurred by Plaintiff? Held. The lower court judgment was affirmed, stating in essence that the Defendants use of the land was unreasonable, engaged in without proper caution, and resulted in harm to the Plaintiff.

Concurrence. The concurrence states more clearly the rule to be applied (see above), noting also that more than the due care which was owed to plaintiff, at issue was the factual determination of damage: [w]hen one person in managing his own affairs causes, however innocently, damage to another, it is obviously only just that he should be the party to suffer.

MacPherson v. Buick Motor Co (551)

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.

Escola v. Coca Cola Bottling Co. of Fresno (557)

Synopsis of Rule of Law. A manufacturer incurs absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to humans. Facts. Plaintiff was a waitress, and one of her duties was to stock the refrigerator with bottles of Coca-Cola. On one occasion, a bottle exploded in Plaintiffs hand as she was putting it into the refrigerator, causing serious injury. Plaintiff sued Defendant, claiming that Defendant was negligent in selling bottles containing said beverage which on account of excessive pressure of gas or by reason of some defect in the bottle was dangerous.and likely to explode. The jury returned a verdict for Plaintiff. Defendant appealed.

Issue. Is Defendant absolutely liable for its failure to inspect a bottle of Coca-Cola that proves to have a defect that causes injury to Plaintiff? Held. Yes. Judgment affirmed. * Using the doctrine of res ipsa loquitur, the majority inferred negligence upon Defendant. Concurrence. (Justice Traynor) A manufacturer incurs absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to humans. * Irrespective of privity of contract, the manufacturer is responsible for an injury caused by an article, to any person who comes in lawful contact with it. Even if there is no negligence, public policy demands that responsibility be placed where it will most effectively reduce the hazards of life and health inherent in defective products that reach the market. * Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as the cost of doing business. * If public policy demands that a manufacturer of goods be responsible for its quality regardless of negligence, there is no reason not to fix that responsibility openly. * The liability of the manufacturer to an immediate buyer injured by a defective product follows without proof of negligence from the implied warranty of safety attending the sale. * Consumers will no longer need to be wary of products. The manufacturers obligation to the consumer must keep pace with the changing relationship between them. Discussion. The majority held that the inference of negligence under the doctrine of res ipsa loquitur shifted the burden of proof to the Defendant. In J. Traynors concurring opinion, Defendant is strictly liable to Plaintiff. Plaintiff need not utilize the doctrine of res ipsa loquitur.

Soule v. General Motors Corporation

Venue: Facts: Posture: Issue: CA SC Plaintiff's car collides with another vehicle. The left front wheel breaks free, collapses rearward, smashes the floorboard and her feet. Verdict for plaintiff at trial, affirmed on appeal. May a product's design be found defective because it fails to meet an ordinary consumer's expectation of safety, even if the question of how safely the product should have performed is unanswerable by the common experience of its users?


No. But the error was not prejudicial, so affirmed. xop are irrelevant in a case this complex. In cases where they are relevant, expert testimony is not needed. The standard is that the plaintiff must show: 1. That the product failed to perform as safely as an ordinary consumer would expect 2. That the defect existed when the product left the manufacturer's possession 3. That the defect was a "legal cause" of the plaintiff's "enhanced injury" 4. That the product was used in a reasonably foreseeable manner. In a highly complex design case, it doesn't make sense to give weight to ordinary peoples' expectations. It's just not expectable. Consumers govern their actions by their expectations of product safety, so where products are simple, it makes sense to use this as a standard for whether the product performed acceptably. But a complex product may still be defective if its design embodies excessive preventable danger.


The consumer expectations test is only fit for cases where the everyday experience of a product's users permits a conclusion that the design violated minimum safety assumptions. This precludes the use of expert testimony: by definition, experts offer knowledge outside Reasoning: ordinary experience. Manufacturers are not insurers of products: they are liable in tort only when a defect in their products causes injury The theory of defect here was one of technical and mechanical detail. An ordinary consumer couldn't reasonably be expected to have thoughts along these lines. At the same time, though, the consumer expectations theory wasn't a big deal here, and didn't affect the outcome.

Camacho v. Honda Motor Co., 741 P.2d 1240 (Colorado 1987) (585) Prepared by Candice Facts: A man bought a Honda motorcycle in March 1978 and got in an accident with a car and suffered severe leg injury. He sued claiming that the absence of crash bars to protect the legs made the product defective under a strict liability analysis. Two mechanical engineers said that effective leg protection devices were available in March 1978 and that the crash bars that were available from manufacturers other than Honda would have reduced or completely avoided the injuries that the man suffered. Procedural History: Trial court granted summary judgment for Honda, and court of

appeals affirmed saying that the danger would have been fully anticipated by or within the contemplation of the ordinary user or consumer. Issue: Did the trial court and the court of appeals apply the right test in determining whether a product has a design defect that causes it to be in a defective condition that is unreasonably dangerous? Holding: No. Reasoning:

This court adopts the crashworthiness doctrine that saysa motor vehicle manufacturer may be liable in negligence or strict liability for injuries sustained in a motor vehicle accident where a manufacturing or design defect though not the cause of the accident, caused or enhanced the injuries. Hondas argument that motorcycle manufacturers should be exempt from liability under the crashworthiness doctrine because serious injury to users of that product is foreseeable must be rejected. The court, in determining the extent of the liability of a product manufacturer for a defective product adopted the doctrine of strict products liability set forth in 402A. Honda says that comment i shows that they are not strictly lilable, because that comment says that the rule that the court uses only applies when the defective condition of the product makes it unreasonably dangerous to the user or consumerthe trial and court of appeals applied this consumer contemplation test in dismissing the s claims. This court says that in Pust the court recognized that requiring a party who seeks recovery on the basis of an alleged defective product to establish that the product is unreasonably dangerous appropriately places reasonable limits on the potential liability of manufacturers However, the court also notes that in Pust, it was held that the fact that the dangers of a product are open and obvious does not constitute a defense to a claim alleging that the product is unreasonably dangerousthe approach that the trial and appeals court used is similar to the open and obvious test that was rejected in Pust The court says that a test the balances the risks and benefits of a product to determine whether the product design is unreasonably dangerous should be used. Danger-Utility Test: balance the following factors: the usefulness and desirability of the productits utility to the user and the public as a whole the safety aspects of the productthe likelihood that it will cause injury and the probable seriousness of the injury the availability of a substitute product what would meet the same need and not be as unsafe

the manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility the users ability to avoid danger by the exercise of care in the use of the product the users anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions the feasibility on the part of the manufacturer of spreading the loss by setting the price of the product or carrying liability insurance The court determined that there was not enough info to make a determination and said that there was competing information about certain thingsthe court remanded to the trial court for a determination consistent with this opinion.

DISSENT: This justice thought that the court of appeals correctly affirmed the trial courts order. This justice thinks that the test applied by the trial and court of appeals should be used (the consumer contemplation test) Consumer Contemplation Test: Is the article sold dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics? If YES, then it is unreasonably dangerous. This justice thinks that the test employed by the majority is more useful in drug cases.

Hood v. Ryobi American Corp (600)

Synopsis of Rule of Law. An adequate warning need not always explain in encyclopedic detail what will happen if a warning is not followed. Facts. Plaintiff purchased a miter saw made by Ryobi (Defendant). Warnings were clearly posted on the saw, which indicated the user should operate the saw only when the blade guards are in place. The day after the purchase, Plaintiff began to use the saw but found that the blade guard prevented the blade from passing through a piece of wood that was four inches in height. Plaintiff removed the guards despite the warnings. The warnings were explicit but did not tell the operator why or how injury would occur if the guards were removed. With the guards removed, Plaintiff used the saw and was injured when the blade flew off the saw; Plaintiffs thumb was partially amputated and his right leg was lacerated. Plaintiff admits that he read the owners manual and most of the warning labels before using the saw. He claims however that he believed the blade guards were intended solely to prevent a users clothing or fingers from coming into contact with the saw. Plaintiff contends that he was unaware that removing the guards would cause the spinning blade to detach from the saw. Plaintiff sued Defendant for products liability for failure to warn and defective design. The

court entered summary judgment for Defendant finding that in the face of adequate warnings, Plaintiff altered the saw and caused his own injury. Plaintiff appealed. Issue. Must an adequate warning always explain what will happen if a warning is not followed? Held. No. Judgment affirmed. * Maryland does not require an encyclopedic warning; a warning need only be one that is reasonable under the circumstances. A manufacturer need not warn of every mishap or source of injury that the mind can imagine that could flow from a product. * Plaintiff assumes that the cost of a more detailed warning label is minimal and claims that such a warning would have prevented his injuries. However, this ignores the effect that such detailed warnings have on consumers and users of products; detailed warnings undermine the effectiveness of them and the warning losses its communicative value. * In this case, Defendants warnings were clear and numerous. The warnings said that serious injury could result from the removal of the guards. These warnings were conspicuous and acknowledged by Plaintiff when he removed the guards. * Furthermore, it is not likely that someone would remove the guards. There has only been one similar accident in the last fifteen years.

Vassallo v. Baxter Healthcare Corp (621)

Synopsis of Rule of Law. A manufacturer will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product. Facts. Plaintiff underwent breast implantation surgery in 1977. The silicone breasts that Plaintiff received were silicone gel manufactured by Heyer Schulte Corporation. Through a series of corporate transactions, Baxter (Defendant) assumed responsibility for breast implant product manufactured by Heyer. In 1992, Plaintiff complained of chest pains and underwent a mammogram. The mammogram had revealed that the breast implants had possibly ruptured. They were removed in 1993 and were replaced with saline implants. During the course of this surgery, the surgeon noted permanent scaring on Plaintiffs pectoral muscles, which Plaintiff attributed to the silicone gel. The implants themselves were encapsulated in scar tissue with multiple nodules of silicone granulomas. Dissection of the scar tissue revealed that the left implant has ruptured and the right implant has several pinholes in it through which silicone gel could escape. During trial evidence indicated that by 1977, Heyer Schulte knew its implants were not consistent as far as durability or destructibility. Heyer did not warn of the consequences of gel migration in the body. Heyer also did not disclose to Plaintiff the potential complications associated with breast implants. Plaintiff stated that if she had known that the implants could cause permanent scarring, chronic inflammation and problems to her immune system, she would not have gone ahead with the procedure. The trial court returned a verdict for Plaintiff. Defendant appealed. Issue. Should Defendants products liability be conditioned on Defendants actual or constructive knowledge of the risks of the product? Held. Yes. Judgment affirmed because Defendant did have actual or constructive knowledge. * Under the Restatement Third, an overwhelming majority of jurisdictions supports the proposition that a manufacturer has a duty to warn only of risks that were known or should

have been known to a reasonable person. * A manufacturer also has a duty to perform reasonable testing prior to marketing a product and to discover risks and risk avoidance measures that testing would reveal. * Defendant will not be held liable under the implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product. * A manufacturer will be held to the standard of knowledge of an expert in the appropriate field and will remain subject to a continuing duty to warn of risks discovered following the sale of the product at issue. Jones v. Ryobi Ltd. (637) -P injured hand when it got caught in printing press at work. D manufacturer made the guard with a guard that automatically switched off the press if the guard is removed. Employers, however, would frequently remove the guard to increase production, which was the case here. Rule: When a third partys modification renders a safe product unsafe, the seller is relieved of liability even if the modification is foreseeable. Even if the distributor saw the guard missing he is not responsible because his liability is not extended to defects that were not present when the press was sold.

Liriano v. Hobart Corp (641)

Synopsis of Rule of Law. The duty to warn is not necessarily obviated merely because a danger is clear. Facts. Plaintiffs hand was caught in a meat grinder while he was working. He was severely injured. He sued the manufacturer then brought a third-party action against plaintiffs employer. At the time of sale, the machine came equipped with a safety guard, but the guard was removed while in possession of Plaintiffs employer. The apparatus carried no safety warning indicating that it should be operated only with the safety guard attached. The issue that went before the jury was the failure to warn claim. The jury found for Plaintiff, and liability was apportioned among all three parties. Issue. Does a reasonable manufacturer have a duty to warn even when the danger at issue is an obvious one? Held. The court affirmed the judgment, concluding that failure-to-warn liability was valid and applied as a matter of law to the facts of the present case. Discussion. The Restatement (Third) of Torts deals directly with product liability, listing three types of claim available to a putative plaintiff: (1) manufacturing defect; (2) design defect; or a (3) defect by reason of inadequate warnings or instructions. Liriano concerns the third, with the majority opinion addressing the issue of obviousness as a matter of law providing a shield to potential defendants whose products could cause injury. The majority opinion in Liriano addresses both issues of responsibility and causation, and, very importantly, which areas are reserved for the court and which are better suited to a jury. The court notes that the evolution of the laws position with regard to standards of conduct has been shifting from court-imposed standards towards enlarging the sphere of the jury. As the majority opinion states: [j]udges should be very wary of taking the issue of liability away from juries, even in situations where the relevant dangers might seem obvious, and

especially when the cases in question turn on particularized facts. In line with a clearly fact-based approach to determining the standard of care due, and thus what would constitute negligence, the Liriano court also applied a totality of circumstances analysis, observing [t]he Plaintiff was only seventeen years old at the time of his injury and had only recently immigrated to the United States. He had been on the job for only one week. He had never been given instructions about how to use the meat grinder. The court reasoned that it would not have been such a stretch for the defendant to have anticipated such or similar circumstances and guarded against injury through the nominal precaution of providing a warning label. Finally, with regard to causation, the court explained: [w]hen a defendants negligent act is deemed wrongful precisely because it has a strong propensity to cause the type of injury that ensued, that very causal tendency is evidence enough to establish a prima facie case of cause-in-fact. Thus, the court reasoned, [e]ven if [the state court] would consider the danger of meat grinders to be obvious as a matter of law, that obviousness did not substitute for the warning.