Table of Contents

Index...............................................................................................................................10 CHAPTER I. Development Of Liability........................................................................16 Anonymous...................................................................................................................17 Weaver v. Ward............................................................................................................18 Brown v. Kendall..........................................................................................................19 Cohen v. Petty...............................................................................................................21 Spano v. Perini Corp.....................................................................................................22 CHAPTER II. Intentional Interference With Person Or Property..................................24 Garratt v. Dailey............................................................................................................25 Spivey v. Battaglia........................................................................................................27 Ranson v. Kitner...........................................................................................................28 McGuire v. Almy..........................................................................................................29 Talmage v. Smith..........................................................................................................30 Cole v. Turner...............................................................................................................31 Wallace v. Rosen..........................................................................................................32 Fisher v. Carrousel Motor Hotel, Inc............................................................................34 I de S et ux. v. W de S...................................................................................................35 Western Union Telegraph Co. v. Hill...........................................................................36 Big Town Nursing Home, Inc. v. Newman..................................................................38 Parvi v. City of Kingston..............................................................................................39 Hardy v. LaBelle's Distributing Co...............................................................................40 Enright v. Groves..........................................................................................................41 Whittaker v. Sandford...................................................................................................42 State Rubbish Collectors Ass'n v. Siliznoff..................................................................43 Slocum v. Food Fair Stores of Florida..........................................................................44 Harris v. Jones...............................................................................................................45 Taylor v. Vallelunga.....................................................................................................46 Dougherty v. Stepp.......................................................................................................47 Bradley v. American Smelting and Refining Co..........................................................48 Herrin v. Sutherland......................................................................................................50 Rogers v. Board of Road Com'rs for Kent County.......................................................51 Glidden v. Szybiak........................................................................................................52 Compuserve, Inc. v. Cyber Promotions, Inc.................................................................53 Pearson v. Dodd............................................................................................................54 CHAPTER III. Privileges...............................................................................................55 O'Brien v. Cunard S.S. Co............................................................................................56 Hackbart v. Cincinnati Bengals, Inc.............................................................................57 Mohr v. Williams..........................................................................................................58 De May v. Roberts........................................................................................................59 Katko v. Briney.............................................................................................................60 Hodgeden v. Hubbard...................................................................................................61 Bonkowski v. Arlan's Department Store.......................................................................62 Surocco v. Geary...........................................................................................................63

Vincent v. Lake Erie Transp. Co..................................................................................64 Sindle v. New York Transit Authority..........................................................................65 CHAPTER IV. Negligence.............................................................................................66 Lubitz v. Wells..............................................................................................................67 Blyth v. Birmingham Waterworks Co..........................................................................68 Gulf Refining Co. v. Williams......................................................................................69 Chicago B. & Q.R. Co. v. Krayenbuhl.........................................................................70 Davison v. Snohomish County.....................................................................................71 United States v. Carroll Towing Co..............................................................................72 Vaughan v. Menlove.....................................................................................................73 Delair v. McAdoo.........................................................................................................74 Trimarco v. Klein..........................................................................................................75 Cordas v. Peerless Transportation Co...........................................................................76 Roberts v. State of Louisiana........................................................................................77 Robinson v. Lindsay.....................................................................................................78 Breunig v. American Family Ins. Co............................................................................79 Heath v. Swift Wings, Inc.............................................................................................80 Hodges v. Carter...........................................................................................................81 Boyce v. Brown............................................................................................................82 Morrison v. MacNamara...............................................................................................83 Scott v. Bradford...........................................................................................................84 Moore v. The Regents of the University of California.................................................85 Pokora v. Wabash Ry. Co.............................................................................................86 Osborne v. McMasters..................................................................................................87 Stachniewicz v. Mar-Cam Corp....................................................................................88 Ney v. Yellow Cab Co..................................................................................................89 Perry v. S.N. and S.N....................................................................................................90 Martin v. Herzog...........................................................................................................91 Zeni v. Anderson...........................................................................................................92 Goddard v. Boston & Maine R.R. Co...........................................................................93 Anjou v. Boston Elevated Railway Co.........................................................................94 Joye v. Great Atlantic and Pacific Tea Co....................................................................95 Ortega v. Kmart Corp...................................................................................................96 Jasko v. F.W. Woolworth Co........................................................................................98 H.E. Butt Groc. Co. v. Resendez..................................................................................99 Byrne v. Boadle..........................................................................................................100 McDougald v. Perry....................................................................................................101 Larson v. St. Francis Hotel.........................................................................................102 Ybarra v. Spangard.....................................................................................................103 Sullivan v. Crabtree....................................................................................................104 CHAPTER V. Causation In Fact..................................................................................105 Perkins v. Texas and New Orleans Railroad Co.........................................................106 Reynolds v. Texas & Pac. Ry. Co...............................................................................107 Gentry v. Douglas Hereford Ranch, Inc.....................................................................108 Kramer Service, Inc. v. Wilkins..................................................................................109 Herskovits v. Group Health Cooperative of Puget Sound..........................................110

Daubert v. Merrell Dow Pharmaceuticals, Inc............................................................111 Hill v. Edmonds..........................................................................................................113 Anderson v. Minneapolis, St. P. & S.St. M. R.R. Co.................................................114 Summers v. Tice.........................................................................................................115 Sindell v. Abbott Laboratories....................................................................................116 CHAPTER VI. Proximate Or Legal Cause...................................................................117 Atlantic Coast Line R. CO. v. Daniels........................................................................118 Ryan v. New York Central R.R. Co............................................................................119 Bartolone v. Jeckovich................................................................................................120 In re Arbitration Between Polemis and Furness, Withy & Co., Ltd...........................121 Overseas Tankship v. Morts Dock & Engineering Co., Ltd. "Wagon Mound No. 1"122 Overseas Tankship Ltd. v. Miller Steamship Co. "Wagon Mound No. 2".................123 Palsgraph v. Long Island R.R. Co...............................................................................124 Yun v. Ford Motor Co................................................................................................126 Derdiarian v. Felix Contracting Corp.........................................................................128 Watson v. Kentucky & Indiana Bridge & R.R. Co.....................................................129 Fuller v. Preis..............................................................................................................130 McCoy v. American Suzuki Motor Corp....................................................................131 Kelly v. Gwinnell........................................................................................................133 Enright v. Eli Lilly & Co............................................................................................135 CHAPTER VII. Joint Tortfeasors.................................................................................137 Bierczynski v. Rogers.................................................................................................138 Coney v. J.L.G. Industries, Inc...................................................................................139 Bartlett v. New Mexico Welding Supply, Inc.............................................................141 Bundt v. Embro...........................................................................................................143 Cox v. Pearl Investment Co........................................................................................144 Elbaor v. Smith...........................................................................................................145 Knell v. Feltman..........................................................................................................147 Yellow Cab Co. of D.C., Inc. v. Dreslin.....................................................................149 Slocum v. Donahue.....................................................................................................150 Bruckman v. Pena.......................................................................................................152 Michie v. Great Lakes Steel Division, Nat'l Steel Corp.............................................153 Dillon v. Twin State Gas & Electric Co.....................................................................155 CHAPTER VIII. Duty Of Care.....................................................................................156 Winterbottom v. Wright..............................................................................................157 MacPherson v. Buick Motor Co.................................................................................158 H.R. Moch Co. v. Rensselaer Water Co.....................................................................159 Clagett v. Dacy............................................................................................................160 Hegel v. Langsam.......................................................................................................162 L.S. Ayres & Co. v. Hicks..........................................................................................163 J.S. and M.S. v. R.T.H................................................................................................165 Tarasoff v. Regents of University of California.........................................................167 State of Louisiana ex rel. Guste v. M/V Testbank......................................................169 Daley v. LaCroix.........................................................................................................171 Thing v. La Chusa.......................................................................................................173 Endresz v. Friedberg...................................................................................................175

Procanik by Procanik v. Cillo.....................................................................................177 CHAPTER IX. Owners And Occupiers Of Land.........................................................179 Taylor v. Olsen............................................................................................................180 Salevan v. Wilmington Park, Inc................................................................................181 Sheehan v. St. Paul & Duluth Ry. Co.........................................................................182 Barmore v. Elmore......................................................................................................183 Campbell v. Weathers.................................................................................................185 Whelan v. Van Natta...................................................................................................186 Rowland v. Christian..................................................................................................187 Borders v. Roseberry..................................................................................................189 Pagelsdorf v. Safeco Ins. Co. of America...................................................................191 Kline v. 1500 Massachusetts Ave. Apartment Corp...................................................193 CHAPTER X. Damages................................................................................................195 Anderson v. Sears, Roebuck & Co.............................................................................196 Richardson v. Chapman..............................................................................................198 Montgomery Ward & Co., Inc. v. Anderson..............................................................200 Zimmerman v. Ausland..............................................................................................202 Cheatham v. Pohle......................................................................................................203 State Farm Mutual Automobile Insurance Co. v. Campbell.......................................205 CHAPTER XI. Wrongful Death And Survival.............................................................208 Moragne v. States Marine Lines, Inc..........................................................................209 Selders v. Armentrout.................................................................................................210 Murphy v. Martin Oil Co............................................................................................212 CHAPTER XII. Defenses.............................................................................................214 Butterfield v. Forrester................................................................................................215 Davies v. Mann...........................................................................................................216 McIntyre v. Balentine.................................................................................................217 Seigneur v. National Fitness Institute, Inc..................................................................219 Rush v. Commercial Realty Co..................................................................................222 Blackburn v. Dorta......................................................................................................223 Teeters v. Currey.........................................................................................................225 Freehe v. Freehe..........................................................................................................227 Renko v. McLean........................................................................................................229 Abernathy v. Sisters of St. Mary's..............................................................................231 Ayala v. Philadelphia Board of Public Education......................................................233 Riss v. New York........................................................................................................234 DeLong v. Erie County...............................................................................................235 Deuser v. Vecera.........................................................................................................237 CHAPTER XIII. Vicarious Liability............................................................................239 Bussard v. Minimed, Inc.............................................................................................240 O'Shea v. Welch..........................................................................................................242 Murrell v. Goertz........................................................................................................244 Maloney v. Rath..........................................................................................................245 Popejoy v. Steinle.......................................................................................................246 Shuck v. Means...........................................................................................................248 Smalich v. Westfall.....................................................................................................249

CHAPTER XIV. Strict Liability...................................................................................250 Rylands v. Fletcher.....................................................................................................251 Miller v. Civil Constructors, Inc.................................................................................252 Indiana Harbor Belt R.R. Co. v. American Cyanamid Co..........................................254 Foster v. Preston Mill Co............................................................................................256 Golden v. Amory........................................................................................................257 Sandy v. Bushey..........................................................................................................258 CHAPTER XV. Products Liability...............................................................................259 MacPherson v. Buick Motor Co.................................................................................260 Baxter v. Ford Motor Co.............................................................................................261 Henningsen v. Bloomfield Motors, Inc.......................................................................263 Greenman v. Yuba Power Products, Inc.....................................................................265 Rix v. General Motors Corp........................................................................................267 Prentis v. Yale Mfg. Co..............................................................................................268 O'Brien v. Muskin Corp..............................................................................................270 Anderson v. Owens-Corning Fiberglass Corp............................................................272 Friedman v. General Motors Corp..............................................................................273 Daly v. General Motors Corp......................................................................................275 Ford Motor Co. v. Matthews.......................................................................................277 Medtronic, Inc. v. Lohr...............................................................................................278 Peterson v. Lou Bachrodt Chevrolet Co.....................................................................280 Hector v. Cedars-Sinai Medical Ctr............................................................................281 CHAPTER XVI. Nuisance...........................................................................................282 Philadelphia Electric Company v. Hercules, Inc........................................................283 Morgan v. High Penn Oil Co......................................................................................285 Carpenter v. The Double R Cattle Company, Inc.......................................................287 Winget v. Winn-Dixie Stores, Inc...............................................................................289 Boomer v. Atlantic Cement Co., Inc...........................................................................291 Spur Industries, Inc. v. Del E. Webb Development Co..............................................293 CHAPTER XVII. Defamation......................................................................................295 Belli v. Orlando Daily Newspapers, Inc.....................................................................296 Grant v. Reader's Digest Ass'n....................................................................................298 Kilian v. Doubleday & Co., Inc..................................................................................299 Neiman-Marcus v. Lait...............................................................................................300 Bindrim v. Mitchell.....................................................................................................301 Shor v. Billingsley......................................................................................................303 Terwilliger v. Wands..................................................................................................304 Economopoulos v. A.G. Pollard Co............................................................................305 Carafano v. Metrosplash.Com, Inc.............................................................................306 Ogden v. Association of the United States Army.......................................................309 New York Times v. Sullivan......................................................................................310 St. Amant v. Thompson..............................................................................................312 Harte-Hanks Communications, Inc. v. Connaughton.................................................314 Gertz v. Robert Welsh, Inc.........................................................................................316 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc...................................................318 Philadelphia Newspapers, Inc. v. Hepps.....................................................................319

Milkovich v. Lorain Journal Co..................................................................................320 Sindorf v. Jacron Sales Co., Inc..................................................................................321 CHAPTER XVIII. Privacy...........................................................................................322 Joe Dickerson & Associates, LLC v. Dittmar.............................................................323 Sanders v. American Broadcasting Companies, Inc., et al.........................................326 Hall v. Post..................................................................................................................328 Cantrell v. Forest City Publishing Co.........................................................................330 Hustler Magazine v. Falwell.......................................................................................331 CHAPTER XIX. Civil Rights.......................................................................................332 Ashby v. White...........................................................................................................333 Camp v. Gregory.........................................................................................................334 Memphis Community School Dist. v. Stachura..........................................................335 CHAPTER XX. Misuse Of Legal Procedure...............................................................336 Texas Skaggs, Inc. v. Graves......................................................................................337 Friedman v. Dozorc....................................................................................................339 Grainger v. Hill...........................................................................................................340 CHAPTER XXI. Misrepresentation.............................................................................341 Swinton v. Whitinsville Savings Bank.......................................................................342 Griffith v. Byers Constr. Co. of Kansas, Inc...............................................................343 Derry v. Peek..............................................................................................................344 International Products Co. v. Erie R.R. Co.................................................................345 Winter v. G.P. Putnam's Sons.....................................................................................346 Hanberry v. Hearst Corp.............................................................................................347 Richard v. A. Waldman and Sons, Inc........................................................................348 Credit Alliance Corporation v. Arthur Andersen & Co..............................................349 Citizens State Bank v. Timm, Schmidt & Co.............................................................351 Ultramares Corporation v. Touche.............................................................................352 Williams v. Rank & Son Buick, Inc...........................................................................353 Saxby v. Southern Land Co........................................................................................354 Vulcan Metals Co. v. Simmons Mfg. Co....................................................................355 Sorenson v. Gardner....................................................................................................356 McElrath v. Electric Investment Co............................................................................358 Burgdorfer v.Thielemann............................................................................................359 Hinkle v. Rockville Motor Co., Inc............................................................................361 CHAPTER XXII. Interference With Advantageous Relationships..............................363 Ratcliffe v. Evans........................................................................................................364 Horning v. Hardy........................................................................................................365 Testing Systems, Inc. v. Magnaflux Corp...................................................................367 Lumley v. Gye............................................................................................................369 Bacon v. St. Paul Union Stockyards Co.....................................................................370 Della Penna v. Toyota Motor Sales, U.S.A., Inc........................................................371 Adler, Barish, Daniels, Levin and Creskoff v. Epstein...............................................373 Brimelow v. Casson....................................................................................................375 Harmon v. Harmon.....................................................................................................376 Neibuhr v. Gage..........................................................................................................377 Freeman & Mills, Inc. v. Belcher Oil Company.........................................................378

Nash v. Baker..............................................................................................................379 CHAPTER XXIII. Torts In The Age Of Statutes.........................................................380 Burnette v. Wahl.........................................................................................................381 Nearing v. Weaver......................................................................................................383 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics...................385 Alexander v. Sandoval................................................................................................387 De Falco v. Bernas......................................................................................................389 Pulliam v. Coastal Emergency Svcs...........................................................................392 CHAPTER XXIV. Compensation Systems as Substitutes for Tort Law.....................393 Blankenship v. Cincinnati Milacron Chemicals, Inc..................................................394

.......... Rogers.........291 Borders v. Wahl........................................................................... Embro.......................................... P.......................................................373 Alexander v.............................................. CO...............................................................143 Burgdorfer v.................... Inc.....................................................82 Bradley v.................... Paul Union Stockyards Co........................ Forrester...........223 Blankenship v.....................381 Bussard v... v................114 Anderson v........ & S....................................370 Barmore v..Thielemann.......................................................................................... Jeckovich.............196 Anjou v....... Boadle..............................................334 Campbell v..141 Bartolone v........................................Index Abernathy v....................................................................................38 Bindrim v.240 Butterfield v.................................... Barish............ White................................................ Daniels...................... Six Unknown Named Agents of Federal Bureau of Narcotics.............................. Dorta.. Inc........... Newman................................... New Mexico Welding Supply.. Epstein......................233 Bacon v............................... Forest City Publishing Co.215 Byrne v...................................................... Daniels...................................................................................... v............. Inc..........................183 Bartlett v...................................................................394 Blyth v.........185 Cantrell v. Inc............ Minimed.................................................................................79 Brimelow v...R.............................387 Anderson v.......... M.................. Elmore......152 Bundt v........................................ Levin and Creskoff v............................................................................................. Roebuck & Co..................... Mary's..... Co.............................. Inc………………………………………………………………................................359 Burnette v.......................................................189 Boyce v......................................... Ford Motor Co......................... Arlan's Department Store....................138 Big Town Nursing Home........................................................................................94 Anonymous………………………………………………………………………………17 Ashby v............. Boston Elevated Railway Co..261 Belli v......... Cincinnati Milacron Chemicals......................296 Bierczynski v......301 Bivens v..... Orlando Daily Newspapers........................................................................................ Atlantic Cement Co............................................................................................................330 Carafano v............................ Sears............385 Blackburn v..........118 Ayala v......................... Birmingham Waterworks Co..... Kendall............................. Brown........ Casson................. Sandoval…………………………………………………………………........St........68 Bonkowski v..................................................48 Breunig v..................................306 .................... Sisters of St............................................................ American Family Ins. Roseberry................... R................................. Minneapolis................................................333 Atlantic Coast Line R.........................................................................272 Anderson v................................ Mitchell............................................ St........ Inc........................... American Smelting and Refining Co...................................................................................... MetroSplash...........231 Adler......19 Bruckman v...................................... St............................................62 Boomer v...........................100 Camp v......................................... Weathers...........375 Brown v............................................ Philadelphia Board of Public Education............................................................................................................120 Baxter v...........................................................................com.................... Co............................................................. Inc……………………………………………………........................................ Gregory....... Pena................................. Owens-Corning Fiberglass Corp....

................................................. Szybiak...........................................................................................................................59 Delair v......................Carpenter v....... Belcher Oil Company......155 Dougherty v...................139 Cordas v.... J.............. Inc....160 Cohen v............ Inc......................... Preis...................53 Coney v........... Erie County........................................................... General Motors Corp...93 ..... Pearl Investment Co.............................. Mann...............135 Enright v................................................ Peerless Transportation Co........................... Cyber Promotions........................................216 Davison v......................... Eli Lilly & Co.................................................. Inc................ Preston Mill Co..........................................................378 Friedman v.........................................................................273 Fuller v.............41 Fisher v.....................................111 Davies v..31 Compuserve................... Roberts.................. Boston M....................................................................... Krayenbuhl................................. Friedberg.... Petty.................................A............... Vecera.....................................21 Cole v..... Inc............................74 Della Penna v.............................. Co……………………………………………………………......................................................................................................... v. The Double R Cattle Company..................................................................... Inc......... Turner.....................................................................................................175 Enright v............................................................................................................. A........237 Dillon v....................................... Dacy................... Carrousel Motor Hotel..................................................................................................... U.................................................................287 Cheatham v................... Toyota Motor Sales...... Schmidt & Co..........344 Deuser v......339 Friedman v....... Bernas……………………………………………………………………........... Inc............... General Motors Corp....................................................... v.............G..................................................................................................................................................... Inc....................... v...................... Industries........318 Economopoulos v................................ Smith........316 Glidden v.....................................................52 Goddard v....... Douglas Hereford Ranch.....................................G....................R..25 Gentry v.........................................................145 Endresz v................................. Arthur Andersen & Co.................................................................... LaCroix.......235 Derdiarian v.................. Dailey.349 Daley v.... Inc.................... Inc.......... Dozorc............................................................................108 Gertz v.............................S....................................... Robert Welsh............................ & Q................................................................... Inc......................................... Peek..................R...............128 Derry v......................................................................................... Stepp. Matthews..........................389 De May v....71 De Falco v........ Inc................ McAdoo............. Twin State Gas & Electric Co... Timm..............171 Daly v........351 Clagett v.......................................................... v...........................76 Cox v............................................................ Groves...............................................256 Freehe v...... Inc.......................................... Merrell Dow Pharmaceuticals......................... Co..............................................................................................................275 Daubert v... Pollard Co................................. Pohle………………………………………………………………….........227 Freeman & Mills.............................. Greenmoss Builders...............................................................277 Foster v................................................................…203 Chicago B........ Freehe...............................305 Elbaor v... Snohomish County................. v.........................................34 Ford Motor Co......371 DeLong v........144 Credit Alliance Corporation v.....................................................................................................................................47 Dun & Bradstreet....................................................................................L....................... Felix Contracting Corp...............................................130 Garratt v...........................................70 Citizens State Bank v.................................

.................. Swift Wings..40 Harmon v................................................263 Herrin v................................................................................ Wells................................. 260 ..................133 Kilian v.......... Inc........................................................................ v.........................................Golden v..................................................................................................................... Hicks.................................................... Wilkins...............57 Hall v.........................98 Joe Dickerson & Associates..............................................................361 Hodgeden v...................................................................................................... v.......... Francis Hotel............................95 Katko v.................. Inc......................................... v........ Post…………………………………………………………………………............ Reader's Digest Ass'n.... Inc...........110 Hill v...........................376 Harris v...............R......121 Indiana Harbor Belt R...................................................................... Briney................... Co....................................................................................162 Henningsen v.......................................... Connaughton……………………………............ Ltd..............................299 Kline v............................................ Apartment Corp......................................35 In re Arbitration Between Polemis and Furness.......................... Gye.......................................... v.....80 Hector v.................................................. LaBelle's Distributing Co..........................................81 Horning v..............347 Hardy v................158.99 Heath v....... Moch Co. R......................................... Inc.45 Harte-Hanks Communications.................... Byers Constr..................343 Gulf Refining Co....102 Lubitz v.........................165 Jasko v...................................................................................................................... Feltman.............................…328 Hanberry v................................. Yuba Power Products............................................... Resendez…………………………………………………….......... W de S..……............................................ Buick Motor Co.... St..........61 Hodges v....................... Gwinnell........................................H.................................................................................................................. Hubbard........... v..........67 Lumley v......323 Joye v.....................................................................................................331 I de S et ux................................281 Hegel v.........109 L.......................................……314 H........... LLC v........................ Sutherland......................... Inc....................................R.T... Bloomfield Motors. Hearst Corp........................ Hardy.........147 Kramer Service.................................................50 Herskovits v......................................................................................265 Griffith v...................... Co................................................................... Butt Grocery Co....365 Hustler Magazine v.......................................257 Grainger v...... Cincinnati Bengals............................159 Hackbart v.. Harmon.......... Amory....... Cedars-Sinai Medical Ctr............ Langsam..340 Grant v.................. v..................... Group Health Cooperative of Puget Sound.. v.............S............113 Hinkle v........... Jones............ Inc..............................................193 Knell v........... Co.............................................. Falwell.................... Woolworth Co.... F..................... v................................ of Kansas................................... Inc.......................... Doubleday & Co.............. Edmonds............ Great Atlantic and Pacific Tea Co............... Inc. Dittmar……………………………………...................................................................................................... Rockville Motor Co.............. Hill............................163 Larson v................ Williams.... 1500 Massachusetts Ave....... Withy & Co.......... Rensselaer Water Co......................345 J...................... and M........................................................W... Carter...S......................................... Ayres & Co................................... Erie R................................S..................60 Kelly v.....254 International Products Co........ E.................. v.................................................................69 H..........298 Greenman v................................... American Cyanamid Co.............................................................................................................................. v.................................369 MacPherson v.......................R..................................................... Inc..............................

.......................270 Ogden v.....................................................................244 Nash v....................................................................... Inc.........................................S...............................................86 Popejoy v........... Hercules.........200 Moore v......... V.................................................. Rath..... Cunard S.. Ltd............. Lohr....................... Muskin Corp.................................................................................................................................56 O'Brien v........................87 O’Shea v....383 Neibuhr v.......................................................... Lou Bachrodt Chevrolet Co................................................191 Palsgraph v............ Weaver.............................................................245 Martin v.............................................. Great Lakes Steel Division.................................. States Marine Lines..............................106 Perry v............................................. Williams...................................................................... Co.. High Penn Oil Co.....278 Memphis Community School Dist................................... Co........................................................................54 Perkins v.............................................. Almy...........N.....…242 Overseas Tankship Ltd................................................................................... Co......... Long Island R................................ American Suzuki Motor Corp......................... Anderson......................................................................... Co......................................209 Morgan v...................................335 Michie v.............................................................39 Pearson v....................................... Herzog..................................................123 Overseas Tankship v.....................................................89 O'Brien v...........90 Peterson v...............268 ...........................283 Philadelphia Newspapers...................................................................... City of Kingston......... Baker.................................................. v...................... The Regents of the University of California.. McMasters.............377 Neiman-Marcus v..................319 Pokora v........... Safeco Ins..... Welch…………………………………………………………………….... and S..............246 Prentis v.............................................................. Inc..................................................... Inc.... Goertz.................................................................................124 Parvi v........ Balentine................ Association of the United States Army.280 Philadelphia Electric Company v.......252 Mohr v...........................................................212 Murrell v.............................................. Nat'l Steel Corp.........................N.....101 McElrath v................................... of America...................................................358 McGuire v................. Inc.. Gage.................... Inc……………………………………………………….............. Stachura.......................................... Yale Mfg....................................................122 Pagelsdorf v..................................................... v........................................................ Martin Oil Co....................................................................................................................................................................................................................................................... CO............R................................................................................. Yellow Cab Co.......................................85 Moragne v.................................. Electric Investment Co................310 Ney v......83 Murphy v. Lorain Journal Co........ Miller Steamship Co...309 Ortega v.................................. Texas and New Orleans Railroad Co.........................58 Montgomery Ward & Co......................................... Sullivan..153 Milkovich v.................................... MacNamara...................................Maloney v.... v............................... Hepps... Steinle..300 New York Times v... Lait......................... Wabash Ry....................................................... Kmart Corp……………………………………………………………………96 Osborne v...............................................................................................................................217 Medtronic.......................................................285 Morrison v................................................................... Inc..........131 McDougald v........... Morts Dock & Engineering Co.................... Civil Constructors............. v...........379 Nearing v................................... Dodd..................................... Perry.........................29 McIntyre v................................................320 Miller v.....................91 McCoy v... S.............................................................

............................................................................................... Billingsley.............................251 Salevan v.......205 State of Louisiana ex rel.. Christian............354 Scott v....................119 Rylans v............................229 Reynolds v....................................................................... Coastal Emergency Svcs................................................249 Sorenson v.......... New York.............................. Jacron Sales Co...................................................................... Bradford....................................... Inc....................... Chapman........................ Westfall.................................................................................................................................. v...........................177 Pulliam v............................................ American Broadcasting Companies................. Food Fair Stores of Florida.....116 Sindle v........................................... Lindsay.................................................................................................................. Amant v.. Crabtree......................................................................................................................... Guste v................... Gardner............222 Ryan v........................356 Spano v......................................................169 State Rubbish Collectors Ass'n v.......................................312 Stachniewicz v........................................................................................... Abbott Laboratories....................................................................................................................................................................................................................................... Bushey................65 Sindorf v....................................................................51 Rowland v......................................................198 Riss v..............104 Summers v.......................................248 Sindell v...................303 Shuck v....................................................................... Geary...............................Procanik by Procanik v............187 Rush v...........115 Surocco v..................................................................... Waldman and Sons............... Mar-Cam Corp................................................78 Rogers v............................................................................. Whitinsville Savings Bank........................................... Inc……………………………………326 Sandy v..... Thompson.......44 Smalich v.... Texas & Pac............... v.........364 Renko v..................... Means.....43 Sullivan v...............................293 St..... Inc............................................... Auto Ins............... Co........................................................... A..........182 Shor v.... Siliznoff................................... Inc........ Evans.................................. Co................. Perini Corp...................... New York Central R............................................................................150 Slocum v....84 Seigneur v... General Motors Corp..... Tice...219 Selders v................................. Battaglia............342 .............................................................................. National Fitness Instiute Inc………………………………………………....................................................................................................258 Saxby v.63 Swinton v............................. Southern Land Co....................22 Spivey v....................................................... New York Transit Authority................... Webb Development Co..................................321 Slocum v..................................................................... M/V Testbank........... McLean............. Board of Road Com'rs for Kent County....................................................................................................................88 State Farm Mut...................................27 Spur Industries.............................................267 Roberts v............................... Commercial Realty Co................ Del E......210 Sheehan v............................................................................................107 Richard v.................................................................................... Ry......... Co............................................................................ Armentrout......234 Rix v............................................................... Fletcher.................................................................................. Kitner..........181 Sanders v.............................77 Robinson v................ Wilmington Park........R........... Campbell………………………………………….............................................................................................. Cillo........... Paul & Duluth Ry..................................................... Donahue...............348 Richardson v.......... Inc...................................................................... St.. Co...................28 Ratcliffe v........................................................... State of Louisiana.........392 Ranson v....

...........................................................................180 Taylor v........................................................................................................64 Vulcan Metals Co.................353 Winget v..........30 Tarasoff v....... Putnam's Sons......202 ..................92 Zimmerman v.................................................................................. of D.................................................................... Smith................................... Van Natta........…32 Watson v........ Ward..................................................352 United States v................75 Ultramares Corporation v.............................................................Talmage v............................................ La Chusa.... Kentucky & Indiana Bridge & R....................................304 Testing Systems................................................................................... Ford Motor Co................................................ G.............................C. Lake Erie Transp........................................................... Dreslin................. v....................................................... Vallelunga........... Wright........................... Co...................... Rosen……………………………………………………………………....337 Thing v.............346 Winterbottom v..................46 Teeters v........................................................173 Trimarco v........................................................... Hill..................................................................................................... Inc.......................................................... Inc........................................................................................................... Carroll Towing Co.............. v.........167 Taylor v......................73 Vincent v...........................................................................................367 Texas Skaggs................129 Weaver v.... Ausland......................................... Inc...P.............. Touche............................................. Wands........ Magnaflux Corp.................................... Spangard.........126 Zeni v..... v..................157 Ybarra v......................... Inc...R...................................................................................................... Simmons Mfg.....186 Whittaker v............................................................................................ v.....................................72 Vaughan v...............289 Winter v................ Regents of University of California..................... Winn-Dixie Stores.......................... Inc......................... Sandford..........................................................................................36 Whelan v..................................................................................................................149 Yun v........... v.103 Yellow Cab Co.................................................18 Western Union Telegraph Co............................................. Graves................... Klein.........355 Wallace v...................................... Co.. Currey..................................................................................42 Williams v........................................... Olsen.......................................... Anderson........ Rank & Son Buick....................225 Terwilliger v.............................. Menlove...... Co..................

.

CHAPTER I. Development Of Liability .

" Accordingly. None. even though the injury was not intentional and was in the course of defending oneself. None. if an individual is building a home. King's Bench 1466 Brief Fact Summary. . and in the course of this defense a third party is injured. even though the house was lawfully being built and the builder did not intend for the damage to occur. Issue. This case offers a very early description of a duty and a breach of duty. the neighbor has a cause of action. Facts. Additionally. if somebody defends themselves when another party assaults them. that third party would have a cause of action. None. None. The judge observed that an individual must go about his/her business in such a way that "by his deed no injury or damage is inflicted upon others.16 Anonymous Anonymous Citation. Synopsis of Rule of Law. Discussion. and a piece of wood falls on the individual's neighbor's home. Held.

finding Defendant had failed to prove he was totally blameless. Plaintiff brought suit for assault and battery. • One may escape liability for an injury he has inflicted when he was utterly faultless in inflicting the injury. 1466). This case shows the beginnings of possible defenses in the tort system. that it is the Defendant's burden to plead and prove this defense. Synopsis of Rule of Law. It is important to note. Rep. Edw. Discussion. The Court affirmed the award. When injury results from one's actions. Defendant discharged his weapon. Defendant accidentally injured Plaintiff. This marks a progression from Anonymous [Y. one the court found he failed to carry. he will be held liable for that injury unless he can prove no fault whatsoever in the matter. In the course of a military skirmishing drill. Facts. Plaintiff brought suit against Defendant. but it is his burden to prove his total lack of fault. Defendant argued that he was not liable for the injury because it was unintentional and was not his fault.B. 1616). placitum 18 (K. Brief Fact Summary. IV. Hobart 134. Issue. Yes. Although Defendant had no intention that it did so. in which a more absolute rule was stated.]. folio 7. Was Plaintiff properly awarded damages despite Defendant's argument that the injury was inflicted by accident? Held.17 Weaver v.B. Ward Weaver v. 284 (K.B. . Two members of a military unit were involved in a drill. Ward Citation. however. his weapon caused injury to Plaintiff. While discharging his weapon during the drill. Plaintiff demurred and was awarded damages. 80 Eng.

it is the Plaintiff's burden to prove the Defendant has acted with fault. Defendant was required to prove that he acted with extraordinary care to avoid liability. Discussion. . When a Defendant unintentionally injures another while undertaking a lawful act. a new trial is necessary to place the burden of proof properly upon the Plaintiff. Defendant accidentally injured Plaintiff while trying to separate two fighting dogs. Defendant beat the dogs with a stick and accidentally injured the Plaintiff in the process. Defendant was required to prove that he used ordinary care. This case shows further evolution of the fault concept in tort law. At trial for Plaintiff's action for assault and battery. Two dogs began fighting and their owners attempted to separate them. • When a trial court instructs a jury that the Defendant is required to prove he acted with due care to avoid liability. Plaintiff brought suit against the Defendant for assault and battery. Kendall Citation. (6 Cush. Facts.18 Brown v. Issue. • The requisite standard of care is the same for accidental injuries resulting from lawful actions. Synopsis of Rule of Law. Kendall Brown v. Brief Fact Summary. the Plaintiff must prove that the Defendant acted without due care as adapted to the exigencies of the circumstances. 60 Mass. whether the actions are characterized as necessary or merely permissible. the Court instructed the jury that if beating the dogs with a stick was a necessary act.) 292 (Mass. Was the Trial Court correct in instructing the jury that there is a distinction between necessary lawful actions and permissible lawful actions such as would require different levels of care for the undertaking of each? • Was the trial court correct in instructing the jury that it was Defendant's burden to prove that he acted consistent with the applicable level of care when he unintentionally injures another? Held. not only is lack of fault a defense to such a tort action. The Court reversed the verdict and ordered a new trial due to erroneous jury instructions. whether the actions are characterized as necessary or merely permissible. The trial court further instructed the jury that if beating the dogs with a stick was merely a permissible act. 1850). Now. In an effort to do so. The requisite standard of care is the same for accidental injuries resulting from lawful actions.

19 Brown v. Kendall • This case also endeavors to hone the definition of fault. The Court identifies the appropriate standard of care for lawfully actions unintentionally causing injury. .

Did the trial court properly direct a verdict in favor of the Defendant based upon evidence of the fainting spell? Held. Issue.20 Cohen v. 65 F. Petty Citation.D. Discussion. Plaintiff suffered injuries when Defendant lost control of the car and drove it off the road. on the strength of which the trial court directed a verdict for Defendant. Cir. 62 App. and that this is what caused the accident.C. 187. 1933). that he had no reason to expect that such a fainting spell would occur. The trial court's directed verdict was upheld. • A motorist suddenly stricken with illness causing loss of control of an automobile resulting in injuries to another is not guilty of negligence when he had no reason to anticipate the illness. When a Plaintiff fails to show any actionable negligence on the part of the Defendant. . Brief Fact Summary. Facts. Yes. Plaintiff sued Defendant for negligence and claimed Defendant was speeding at the time of the accident. but Defendant's uncontested evidence showed that he fainted just before losing control of the car. Plaintiff and his sister testified that the car was traveling at an excessive speed.C. This case introduces the issue of foreseeability into the question of fault. unforeseeable illness. No longer inquiring solely whether Defendant intended to cause injury. Synopsis of Rule of Law. Plaintiff was injured while riding in a car driven by Defendant. Defendant proffered uncontested evidence that he lost control of the car because he fainted immediately prior to the accident. An essential component of its holding is that a motorist suffering from such an attack must have had no reason to anticipate the onset of a fainting spell. and the Defendant's uncontested evidence shows the injury resulted from a sudden. a verdict is properly directed for the Defendant. Plaintiff and his sister were riding in the back of a car driven by Defendant with Defendant's wife in the passenger seat. Petty Cohen v.2d 820 (D. the Court was required to consider whether Defendant had reason to foresee causing the injury.

Brief Fact Summary.2d 11. Plaintiffs' property was allegedly damaged as a result of blasting operations undertaken by Defendants.Y. Was the Appellate Division correct in upholding the appellate term's reversal of the verdict in favor of the Plaintiff because there was no evidence of negligence on the part of the Defendant? Held. The Appellate Division's decision was reversed and the cause was remanded to the Appellate Division for an inquiry into the weight of the evidence with respect to the cause of the damages. Because blasting is an abnormally dangerous activity. Perini Corp.S. but not in New York.21 Spano v.Y. Discussion. These notions of strict or absolute liability for blasting and other "ultra hazardous" or . on remand. but Defendants won reversal of the verdict on appeal. Plaintiffs brought suit to recover for these damages.2d 527. public policy requires that the costs of the damage resulting to innocent parties be borne by those undertaking the blasting. Defendants set off a large quantity of dynamite that allegedly damaged Plaintiffs' property. This was the rule in the majority of jurisdictions at the time. even when they have not behaved negligently. Plaintiffs brought suit. Plaintiffs thus sought to recover on the theory that those engaged in blasting are subject to liability for damages resulting from the blasting even in the absence of a showing of negligence.2d 15 (N.D. No.2d 516.Y. • Public policy requires that those engaging in abnormally dangerous or ultra hazardous activity bear the cost of the damages such activity inflicts upon innocent parties. Plaintiffs were awarded a verdict at trial.Y. 1969). Spano v. In the case blasting operations. In the course of constructing a tunnel. Facts. 33 A.S. Synopsis of Rule of Law. This case helps reintroduce concepts of no-fault liability to the law of torts. 302 N. Perini Corp. • The majority rule that those engaged in blasting are subject to liability for the resulting damages is adopted. failure to prove negligence will not bar recovery when damage to an innocent party results from the blasting. Plaintiffs relied instead upon a theory of absolute liability for blasting operations and received a favorable verdict. 25 N. but were unable to show that Defendants had acted negligently. supplanting New York's previous rule that proof of negligence was required for recovery in such cases unless a physical trespass also occurred. but that verdict was reversed on appeal. Issue.2d 31. 304 N. 250 N. claiming negligence but failing to offer any evidence that Defendants failed to exercise reasonable care.E. Citation.

• This case also marks an interesting example of public policy analysis. "abnormally dangerous" activity would seem to buck the trend toward requiring fault or wrongdoing as a prerequisite to recovery. Perini Corp. The Court explicitly mentions public policy and places great emphasis upon its relevance in finding the appropriate rule.22 Spano v. This is illustrative of some of the many competing issues in the law of torts. many of which will be addressed later and in greater detail. .

Intentional Interference With Person Or Property .23 CHAPTER II.

or cause apprehension. a Defendant's age is relevant only insofar as it demonstrates the Defendant's likely degree of knowledge based upon his experience and understanding. the judge believed the testimony of Defendant.2d 1091 (Wash. This case introduces some of the many critical distinctions at play in analyzing intent. 279 P. it appears that the trial court focused . a five year-old boy. • With respect to intentional torts. Discussion. and 3) the intent that may be inferred from what the Defendant knew was substantially certain to result.24 Garratt v. Plaintiff alleged that Defendant. Knowledge of a grave risk that such contact or apprehension could occur is insufficient. Issue. 1955). The Court discusses at least three discernible classes of intent: 1) the intent to commit the act of moving the chair.2d 197. Synopsis of Rule of Law. causing her to be injured. Dailey Citation. based upon his experience and understanding. Dailey Garratt v. but the trial court found he was instead trying to prevent injury and had no intention of injuring or embarrassing her. or embarrassment to a Plaintiff warrant dismissal of the Plaintiff's claim for assault and battery? • Is a Defendant's age relevant in determining whether or not he has committed an intentional tort? Held. Does the finding that a Defendant did not intend to cause offensive contact. In this case. Plaintiff alleged that Defendant intentionally moved a chair as she was about to sit down so as to injure Plaintiff. and Plaintiff appealed. that the injury would result from his actions. The relevant intent for the purposes of assault and battery may be found from evidence establishing that Defendant knew to a substantial certainty that contact or apprehension of contact would result from his actions. or embarrassment to Plaintiff. • The requisite intent for assault and battery substantial certainty that contact or apprehension of contact would result from his actions. finding that he did not act with any intent to cause offensive contact. Knowledge of a grave risk that such contact or apprehension could occur is insufficient. The Trial Judge dismissed the case on the strength of these findings. Facts. Plaintiff brought suit for assault and battery against Defendant. injury. a five year-old boy. injury. A Defendant's age in such a case is relevant only insofar as it demonstrates Defendant's likely degree of knowledge based upon his experience and understanding. 2) the intent to injure. 46 Wash. At trial. Brief Fact Summary. The Court reversed the trial court's dismissal of the case and remanded the case for a determination of the extent to which Defendant knew. embarrass. moved a chair away just as she was about to sit down in it.

which would clearly allow liability in a far greater array of situations.25 Garratt v. Dailey exclusively upon the second category. placed greater emphasis upon the third category. This Court. . and dismissed the case when it could not be found. however.

multiple issues of intent are implicated in this case. intentional touch does not mean that one taking such an action has committed assault and battery as a matter of law if physical injury results. No. Brief Fact Summary. She sued Defendant under negligence and assault and battery theories.26 Spivey v. During a break at work. one is deemed to intend that which is substantially certain to follow from his actions but need not intend to cause actual injury or harm. unsolicited hug" that ultimately caused Plaintiff to suffer from partial facial paralysis. Defendant intended to touch Plaintiff. and warranted dismissal of the case because it had been filed after the statute of limitations for assault and battery had expired. 1972). Battaglia Citation. Was the trial court correct in granting summary judgment for Defendant on the theory that his actions constituted assault and battery as opposed to negligence as a matter of law? Held. Discussion. the critical issue is Defendant's knowledge of the likelihood that injury would result. Once again. it is only assault and battery as a matter of law when a reasonable person would have believed that physical injury was substantially certain to follow. constituted assault and battery as a matter of law. 258 So. but certainly did not intend to cause her facial paralysis. Issue. Synopsis of Rule of Law. Relying upon a similar case.2d 815 (Fla. Defendant argued that his actions were strictly intentional. Plaintiff experienced sharp pains that culminated in partial facial paralysis. The trial court agreed and granted summary judgment for Defendant. The grant of summary judgment was reversed to allow Plaintiff to proceed with her claim for negligence. . Later. • Knowledge of a risk that physical injury could result from an unsolicited. Facts. Defendant argued that the acts complained of were strictly intentional and the suit was barred. Defendant put his arm around Plaintiff and pulled her toward him. With respect to assault and battery. Again. Knowledge of a risk of harm is not sufficient to establish the requisite intent. Rather. Plaintiff brought suit for assault and battery and negligence. Because the suit was brought after the statute of limitations for intentional torts had run. Defendant put his arm around Plaintiff and pulled her head toward him in a "friendly. Battaglia Spivey v. a Defendant's knowledge of the likely extent of any potential damage also becomes important.

This case focuses upon the intent relevant to liability. Defendants argued that they believed they were merely hunting a wolf. Kitner Citation.Ct. No. because the animal's wolf status was not relevant to Defendants' admitted intent to kill it. Discussion. which is what caused the damages to Plaintiff.27 Ranson v. Were Defendants entitled to relief from a jury verdict that they were liable for the value of the dog due to their good faith. regardless of whether they have acted in good faith. but argued that they were not liable because they did so out of a good faith belief that it was a wolf. and that they should therefore not be held liable.App. Brief Fact Summary. While hunting for wolves. . Parties are liable for damages caused by their own mistaken understanding of the facts. he is liable for that damage. Facts. Kitner Ranson v. Defendants admitted to killing Plaintiff's dog. and thus should not be held liable. The Court is unmoved by this argument. Plaintiff sued Defendants for the value of his dog after they killed it while hunting wolves. mistaken belief that the dog was a wolf? Held. even if he would not have committed the act causing the damage but for a good faith but mistaken belief. 241 (Ill. Defendants claimed it was an accident occasioned by the dog's uncanny resemblance to a wolf. Defendants came across Plaintiff's dog and killed it. The jury found them liable for the value of the dog. Issue. 1889). 31 Ill. Synopsis of Rule of Law.App. The jury's verdict was affirmed. • When one damages another. did not intend to kill anyone's dog.

28 McGuire v. Almy

McGuire v. Almy
Citation. 297 Mass. 323, 8 N.E.2d 760 (Mass. 1937). Brief Fact Summary. Plaintiff was employed as a caregiver for Defendant, a mentally ill but physically fit woman. During one of Plaintiff's shifts, Defendant caused a loud disturbance and told Plaintiff she would kill her if she entered her room. Plaintiff entered the room anyway, was physically attacked by Defendant, and sued for assault and battery. Synopsis of Rule of Law. The insane are liable for their torts to the same extent as the sane, except for certain torts requiring malice of which they are incapable. Facts. Plaintiff sued Defendant for assault and battery for damages inflicted during a physical attack. Plaintiff was working as a nurse for Defendant, an insane person, at the time, and was aware of Defendant's propensity for violent behavior. The general rule for the insane at the time was that the insane were liable for their torts to the same extent as the sane. The jury returned a verdict for the Plaintiff. Issue. Did the trial court err in refusing to direct a verdict for Plaintiff for assault and battery because Defendant was insane when she attacked Plaintiff? Held. No. The verdict was upheld and the award sustained. • In order to be liable for intentionally damaging another, an insane person must have been capable of the same level of intent and have possessed the same level of intent as would give rise to liability for a sane person. Discussion. Much like [Garratt v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (Wash. 1955)] held with respect to children, the Court in this case declines to carve out a specific exception to general conceptions of intent for the insane. Rather, the Court applies general standards of intent to the insane, with the caveat that insanity could preclude one's capacity to intend certain types of actions in certain circumstances.

29 Talmage v. Smith

Talmage v. Smith
Citation. 101 Mich. 370, 59 N.W. 656 (Mich. 1894). Brief Fact Summary. Defendant discovered several boys playing on top of sheds on his property. Defendant demanded that they get down and most complied quickly, but Plaintiff and a few others remained on the roofs. Defendant threw a stick in the direction of a few boys on one of the roofs, but the stick missed those boys and struck and injured Plaintiff. Synopsis of Rule of Law. A Defendant's intent to cause physical contact with one party can be considered intent to commit battery against a second party when unreasonable force is used because the Defendant has no right to commit such an act. Facts. Defendant threw a stick toward one member of a group of several boys to get them to leave his property. The stick missed the first boy and struck Plaintiff in the eye. Plaintiff sued and recovered on a jury verdict. The jury was instructed that Defendant could be liable if he threw the stick with the intent to hit the first boy or Plaintiff and did so with force that was unreasonable under the circumstances Issue. Was the jury properly instructed that Defendant could be liable if he intended to hit either boy and used unreasonable force? Held. Yes. The judgment was affirmed, with costs. • When a Defendant intends to inflict harmful or offensive contact upon one party but instead inflicts such contact upon another, he is liable for the resulting injury. Discussion. This case introduces the doctrine of transferred intent. As the Court explains, the doctrine is based upon the notion that one should not be allowed to escape liability for wrongdoing simply because someone other than the intended target was injured. This shows once again that tort law is not overly preoccupied with intent to cause a specific injury to a specific party - the overriding concern is with wrongful conduct.

30 Cole v. Turner

Cole v. Turner
Citation. 6 Modern Rep. 149, 90 Eng. Rep. 958 (Nisi Prius 1704). Brief Fact Summary. No facts are given. Synopsis of Rule of Law. The lightest angry touch constitutes battery. A gentle touch made in close quarters with no ill intention is not a battery. A forceful or reckless touch, in close quarters is a battery. Facts. As indicated above, no facts are given. This case only sets forth recitations of law. Issue. Under what circumstances and with what mindsets may a touching constitute battery? Held. Any degree of touching coupled with angry mindset qualifies as battery. • A light degree of touching in circumstances that may make avoiding such a touch difficult is not a battery in the absence of negative intent. • A reckless or violent touching is a battery, even under circumstances that make avoiding physical contact difficult. Discussion. These early pronouncements on battery demonstrate the elements at play in determining whether a battery has occurred. Far from being a simple matter, one must look to the parties' states of mind, the degree of contact, and their surroundings in analyzing whether a battery has occurred. It is also noteworthy that these pronouncements suggest that a party's intentions are the most important factor in the battery analysis, as an angry mindset can render even the most minimal contact a battery.

31 Wallace v. Rosen

Wallace v. Rosen
Citation. 765 N.E.2d 192 (Ind. App. 2002) Brief Fact Summary. A student's parent was standing at the top of a staircase in a school talking to her daughter and some of her daughter's friends. During the conversation, a fire alarm went off and while the students were evacuating, the parent fell down the stairs. The parent alleged that a teacher pushed her down the stairs. Synopsis of Rule of Law. The Plaintiff failed to show that the trial court abused its discretion by not reading the jury a civil battery instruction. Facts. The Defendant, Rosen (the "Defendant"), was a high school teacher. On April 22, 1994, the high school had a fire drill while classes were being conducted. None of the teachers knew about the fire drill in advance. The Plaintiff, Wallace (the "Plaintiff'), was at the school on the day of the fire drill delivering homework to her daughter Lalaya. The Plaintiff was speaking with Lalaya and two of her friends on the top of a staircase when the fire alarm went off. The Plaintiff alleged that during the course of the fire drill, the Defendant pushed her down the stairs. The Defendant admitted to touching the Plaintiff's back to get her attention, but says she did not push her down the stairs. The trial court judge refused to instruct the jury about civil battery. The trial court ruled in favor of the Defendant, and the Plaintiff appealed. Issue. Should the court have given the jury an instruction about battery? Held. No. The court first set forth the Indiana Pattern Jury Instruction for the intentional tort of civil battery. It reads: "A battery is the knowing or intentional touching of a person against [his] [her] will in a rude, insolent, or angry manner." The court also observed that a battery is an intentional tort, and it went on to discuss the differences between negligent acts, reckless acts and intentional acts. The court further recognized "[t]he intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law forbids. The defendant may be liable although intending nothing more than a good-natured practical joke, or honestly believing that the act would not injure the plaintiff, or even though seeking the plaintiff's own good." • More than one witness testified that the Defendant touched the Plaintiff on her back before she fell. This touch caused the Plaintiff to fall and injure herself. However, not all touching rises to the level of civil battery. "For battery to be an appropriate instruction, the evidence had to support an inference not only that Rosen intentionally touched Wallace, but that she did so in a rude, insolent, or angry manner, i.e., that she intended to invade Wallace's interests in a way that the law forbids." The court also relied upon Professors Prosser and Keaton's observations about battery. The court observed "The conditions on the stairway of Northwest High School during the fire drill were an example of Professors Prosser and Keeton's 'crowded world.' Individuals

32 Wallace v. Rosen standing in the middle of a stairway during the fire drill could expect that a certain amount of personal contact would be inevitable. Rosen had a responsibility to her students to keep them moving in an orderly fashion down the stairs and out the door. Under these circumstances, Rosen's touching of Wallace's shoulder or back with her fingertips to get her attention over the noise of the alarm cannot be said to be a rude, insolent, or angry touching." Discussion. The judge relied greatly on Professor Prosser and Keeton's writings about the intentional tort of battery. The Professor's stated, "[I]n a crowded world, a certain amount of personal contact is inevitable and must be accepted. Absent expression to the contrary, consent is assumed to all those ordinary contacts which are customary and reasonably necessary to the common intercourse of life, such as a tap on the shoulder to attract attention, a friendly grasp of the arm, or a casual jostling to make a passage.... The time and place, and the circumstances under which the act is done, will necessarily affect its unpermitted character, and so will the relations between the parties. A stranger is not to be expected to tolerate liberties which would be allowed by an intimate friend. But unless the defendant has special reason to believe that more or less will be permitted by the individual plaintiff, the test is what would be offensive to an ordinary person not unduly sensitive as to personal dignity…. "

33 Fisher v. Carrousel Motor Hotel, Inc.

Fisher v. Carrousel Motor Hotel, Inc.
Citation. 424 S.W.2d 627 (Tex. 1967). Brief Fact Summary. At a professional conference held in Defendant's hotel, one of Defendant's employees seized a plate from the Plaintiff's hand, shouting that a "Negro could not be served in the club". Defendant's employee did not make physical contact with Plaintiff, but the event was witnessed by many of Plaintiff's colleagues. Plaintiff sought actual and punitive damages for assault and battery. Synopsis of Rule of Law. A Plaintiff may recover for battery even when not physically touched so long as the Defendant committed an unwanted an intentional invasion of the inviolability of the Plaintiff's person. Facts. Plaintiff sued for assault and battery when Defendant's employee forcibly removed a plate from Plaintiff's hand, but did not actually make physical contact with Plaintiff. The jury returned a verdict of $400 for actual damages and $500 in punitive damages. The trial court, however, set aside the verdict because no actual physical contact was made with Plaintiff. Issue. Did the trial court correctly set aside the jury's verdict because no actual physical contact was made with the Plaintiff? • May actual damages stemming from mental suffering be awarded when no physical contact occurred? Held. The trial court's decision was reversed and the verdict reinstated. • Unwanted and intentional invasion of one's person through dispossession of an object is battery even in the absence of physical contact. • Actual damages for mental suffering stemming from battery may be awarded even when no physical contact is made. Discussion. The Court distills battery as a tort concerned primarily with personal dignity, not merely personal space. However, the Court repeatedly refers to offenses to "the person", implying that some nexus with physical contact must be present in cases of battery. The Court suggests that any objects grasped by a person are considered part of "the person" for the purposes of battery. Other courts have sometimes referred to such objects as "appurtenances".

34 I de S et ux. v. W de S

I de S et ux. v. W de S
Citation. Y.B.Lib.Ass. folio 99, placitum 60 (Assizes 1348). Brief Fact Summary. Defendant W de S went to the home of Plaintiffs I de S and M de S at night to purchase wine. Upon finding the door closed, Defendant beat the door with a hatchet until M de S stuck her head outside and told him to stop. W de S swung the hatchet toward M de S but did not strike her, and Plaintiffs sued for assault. Synopsis of Rule of Law. Physical contact is not a necessary element of an action for assault. Facts. Plaintiffs sued Defendant for assault after he swung a hatchet at but did not strike M de S. Defendant pled not guilty on the ground that there was no physical contact. An inquest into the matter confirmed that no physical contact had occurred. The inquest concluded that no harm was thus done and dismissed the case. Issue. Did the fact that no physical contact occurred mean that no harm was done, warranting dismissal of the case? Held. No. The Court reversed the decision of the inquest and awarded damages. • Assault may be found and damages awarded in the absence of physical contact. Discussion. Not unlike Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967), this case shows that interference with one's person is actionable, and that this need not include actual physical contact. • Neither the inquest nor the Court appears to have made any inquiry into the state of M de S's mind as W de S swung his hatchet toward her. Her state of mind, as the victim of an alleged assault, will become relevant in later assault cases.

Defendant's employee allegedly offered to fix the clock in exchange for sexual favors and unsuccessfully reached out to grab her. the alleged assailant may have been so far away from the party claiming assault that it would be impossible to reasonably believe battery was imminent. Did the trial court err in submitting the question of whether assault had occurred to the jury? Held. there may be some circumstances when no reasonable person could possibly apprehend imminent battery. Hill Western Union Telegraph Co. Facts. Defendant was attempting to avoid liability on the ground that its employee could not have succeeded in touching Plaintiff's wife. v. however. On one occasion when Plaintiff's wife requested that he repair the clock. such an argument is largely irrelevant to the tort of assault. whether an assault has occurred is a question for a jury. that the employee was acting beyond the scope of his employment if he committed assault and Defendant was thus not liable for his actions. Assault requires only that the victim be put in apprehension of imminent battery. even had he tried.App. Synopsis of Rule of Law.35 Western Union Telegraph Co. Civ. As a corollary to this rule. • When the evidence shows that a party could have made an effort to reach out and touch another in an offensive. The physical evidence also suggested that Defendant's employee would have been unlikely to be able to touch Plaintiff's wife as described. 25 Ala. Defendant's employee routinely provided repairs to the clock located in Plaintiff's business. As the Court explains. App. When Plaintiff sued for assault. No. The Court reversed the verdict on this ground. there must be an intentional and unlawful offer or attempt to touch another's person in a harmful or offensive manner such that it creates a well-founded apprehension of imminent battery. Issue. One accused of assault must also appear to have the present ability to commit the battery if not prevented. The trial court found that whether assault had been committed was a question for the jury. 1933). Defendant denied the allegations and argued the physical evidence showed he could not have reached Plaintiff's wife. but denies Plaintiff's wife's version of events. • The Court also found. 709 (Ala. The Court found the trial judge properly submitted the question to the jury. Plaintiff sued Defendant for assault on the grounds that its employee made offensive remarks to his wife and attempted to grab her when she came into its store. Hill Citation. Defendant's employee admitted to having been mildly intoxicated at the time. 150 So. unwanted manner and may or may not have had the apparent ability to do so at the time. who found for Plaintiff. Brief Fact Summary. 540. For assault to occur. v. Discussion. For example. Or the alleged assailant could have been in such an obviously .

36 Western Union Telegraph Co. . v. However. Hill weakened or vulnerable position that such a belief would be impossible. when it simply appears that actual battery might have been difficult or unlikely. it is for the jury to decide whether the party claiming assault could have had the requisite apprehension of imminent battery.

Newman Citation. Was the jury wrong to find Plaintiff had been falsely imprisoned? • Was the award of punitive damages improper under these circumstances? Held. except the award was found excessive. punished. a retiree. had his personal belongings seized. v. However. despite the fact that his admission papers indicated his presence was strictly voluntary. Newman Big Town Nursing Home. Discussion. when Plaintiff attempted to leave on numerous occasions. Synopsis of Rule of Law. denied privileges. he decided he wished to leave. was checked into Defendant's nursing home at the behest of his nephew. punitive damages may be appropriately awarded. it has committed false imprisonment. Plaintiff was even able to identify a contractual provision specifically demonstrating the Defendant's knowledge that it acted in disregard of his rights. Plaintiff accepted the remittitur proposed by the court of appeals.App. False imprisonment is one person's direct restraint of another's physical liberty in the absence of sufficient legal justification. v. he was denied use of a telephone.37 Big Town Nursing Home. the admission papers indicated that Plaintiff's presence was strictly voluntary and he could leave at any time. and moved to a wing of the home for drug addicts and the insane. The relative simplicity of the case allows the Court to set forth the precise elements of the tort of false imprisonment. Facts. He was also transferred to an area reserved for drug addicts and the insane. • When a Defendant's acts giving rise to actual damages are undertaken wrongfully. intentionally. Inc. Issue. 1970). Brief Fact Summary. and was forcibly restrained and returned to the home on the occasions when he escaped. he was restrained. A few days after Plaintiff was checked into Defendant's nursing home. However. Plaintiff brought suit for false imprisonment and was awarded actual and punitive damages. 461 S. • When a nursing home detains a retiree against his will despite an agreement that his presence is voluntary and has no other legal justification for the physical detention. Inc.W.2d 195 (Tex. and without regard to the rights of the Plaintiff. This is a rather straightforward false imprisonment case. The jury's verdict was upheld. Upon checking in. . Plaintiff.

who was intoxicated. Plaintiff admitted. Did the trial court correctly dismiss Plaintiff's false imprisonment claim because Plaintiff had no recollection of confinement? Held.Y. that such a dignitary insult is actionable so long as the victim is aware of it as it occurs.Y. Synopsis of Rule of Law.Y. Issue. 394 N. No.2d 161 (N. The trial court's decision was reversed to allow a jury to consider whether the Plaintiff was conscious of the confinement at the relevant times. and his failure to recall the confinement defeats his case. City of Kingston Parvi v. City of Kingston Citation.E. The Court explains. . It is thus possible to maintain a cause of action for false imprisonment despite lacking any recollection of confinement. however. Discussion. He set forth no evidence such as would allow a conclusion that he was conscious of his confinement at the relevant time. This case hones the elements of the false imprisonment action. the trial court dismissed his claim for false imprisonment. Plaintiff sued for false imprisonment. however. but recollection of that consciousness is not. Consciousness of confinement is a necessary element of false imprisonment. This being a dignitary tort. A Plaintiff is required to prove consciousness of the confinement as a prerequisite to recovery. 362 N. that he had no recollection of actually having been in police custody on the evening in question. 41 N. Police officers for the Defendant City of Kingston took custody of Plaintiff. where he was struck by a car and injured. Because Plaintiff could not remember having been confined. Brief Fact Summary. it would not make sense to allow recovery when an insult to one's dignity is not realized. which is the relevant question in actions for false imprisonment. Although he had little or no recollection of the entire evening. The failure to recall one's confinement does not mean that one was not conscious of such confinement at the time.2d 553. Plaintiff utterly failed to make even a prima facie case for false imprisonment. Dissent. Plaintiff found himself on the New York Thruway. After he was deposited on a golf course.S.2d 960. Facts.38 Parvi v. The failure to recall the insult does not erase the harm inflicted. 1977). Plaintiff brought suit against Defendant for false imprisonment after he was taken into custody by its police officers and was later injured. and drove him outside the city limits instead of arresting him.

and was never told she could not leave. The jury's verdict was upheld. No. and admitted that she would have entered the manager's office even had she not been lured there. during which time Plaintiff did not ask or attempt to leave and was not told she could not leave. Under the guise of giving her a tour of the store. had stolen a watch. Was the jury wrong to find that Plaintiff had not been restrained against her will? Held. the actions or words must rise to the level of unlawful restraint against one's will to be actionable. the store manager lured Plaintiff into his office and closed the door behind him. 203 Mont. LaBelle's Distributing Co. never asked or attempted to leave. The manager closed the door behind him. Another of Defendant's employees told store management that she had seen Plaintiff steal a watch from the store. a recently hired temporary employee at Defendant's jewelry department. Brief Fact Summary. Plaintiff later brought suit for false imprisonment. The Court found that Plaintiff was not unlawfully restrained against her will because she would have entered the office voluntarily. Discussion. 661 P.39 Hardy v. 263. However. Citation. claiming she was being given a tour as a new employee. The manager was eventually satisfied that Plaintiff had not committed the theft. the facts of the underlying case did not demonstrate that any such words were used. The manager. Issue. 1983). and others questioned Plaintiff for 20 to 45 minutes. at least one uniformed police officer. The Court acknowledges that words can suffice to create the kind of unlawful restraint as could give rise to false imprisonment. it appears Plaintiff may have held a subjective belief that she was not allowed to leave the manager's office. at least one uniformed police officer. LaBelle's Distributing Co. . Facts. Plaintiff had been recently hired as a temporary employee in Defendant's jewelry department. The jury found for Defendant. Creating circumstances that may engender such a belief does not rise to the level of false imprisonment without further words or actions confirming such a belief. While actions or words may give rise to a claim of false imprisonment.2d 35 (Mont. Hardy v. Synopsis of Rule of Law. and others. Rather. The store manager invited Plaintiff into his office. and Plaintiff was ultimately questioned in the room for 20 to 45 minutes by the manager. An employee of Defendant informed Defendant that Plaintiff.

When Defendant officer saw a dog running without a leash in violation of an ordinance. the defense would have been valid. 560 P. Facts. a police officer spied a dog running without a leash in violation of Defendant city's local ordinance. Issue. and when she failed to do so he placed her under arrest.App. however. As the facts elucidate. he searched for its owner. Conviction of the crime for which one is arrested bars a subsequent claim for false imprisonment. App. The officer told Plaintiff he would arrest her if she didn't turn over her license. which Plaintiff refused to give. 1977). The officer's arrest of Plaintiff was therefore unlawful and the verdict was proper. Plaintiff again failed to do so. Ct. Yes. The officer told Plaintiff he would arrest her if she did not surrender her driver's license. Was the jury correct in returning a verdict for Plaintiff despite her subsequent conviction for violation of the leash ordinance? Held. The judgment was affirmed. the defense will often be raised that Plaintiff was ultimately convicted of a crime. 39 Colo. While Plaintiff was ultimately convicted of a crime. Defendant. . Probable cause to believe that one crime has been committed does not provide blanket authority for an officer to arrest someone for any other crime. Synopsis of Rule of Law. Plaintiff was later convicted of violating the leash ordinance. that the conviction must mirror the basis of the arrest.40 Enright v. Discussion. Had the officer in this case arrested Plaintiff solely for violation of the leash ordinance. and the officer placed her under arrest. Plaintiff brought suit for false imprisonment. Groves Citation. Brief Fact Summary. instead telling the officer her address. After determining the dog belonged to Plaintiff. which is not a crime. Groves Enright v. he located her and demanded her driver's license without explaining why. and the jury awarded her $500 in actual damages and $1000 in punitive damages. Plaintiff refused. she was not convicted of the crime for which she was arrested. In an action for false imprisonment involving police officers. This case makes it clear. 39. but does not provide a defense when there was probable cause to arrest for a different crime.2d 851 (Colo. the officer located Plaintiff and demanded her driver's license. after which she was convicted of violating the leash ordinance. When he determined Plaintiff to be the owner. she was arrested for failing to produce her driver's license to the officer.

Issue. Refusing to provide one with the means to overcome a physical barrier can constitute restraint such as can give rise to a claim for false imprisonment. but this does not mean actual physical force must be used. 110 Me. the court instructed the jury that while physical restraint was a necessary element of false imprisonment. Yes. The boats in question were under the control of Defendant and were necessary to provide Plaintiff with the means to reach the shore. Defendant refuse to let Plaintiff use a boat to reach the shore and said it was up to her husband to decide whether she should be allowed to do so. Synopsis of Rule of Law. Sandford Citation. Discussion. Plaintiff decided she would like to leave the group and return to the United States. Sandford Whittaker v. She sued Defendant for false imprisonment. 1912). Physical restraint can be found in the refusal to grant one the means to overcome a barrier to free movement. . Brief Fact Summary. and she remained on board against her will except for brief. While false imprisonment is not so broad a concept as to allow recovery when one merely persuades another to restrict his own movements by appealing to his morals or reason. Facts. actual physical force need not have been used. Although Plaintiff was occasionally allowed to leave the yacht briefly. supervised excursions until she finally obtained release through a writ of habeas corpus. the fact that the Defendant caused the impediment to exist and controlled the means to remove it meant that his refusal to do so constituted false imprisonment. 399 (Me. The verdict was upheld.41 Whittaker v. In this case. Upon arrival. Defendant offered to grant them passage aboard his yacht and promised that they would not be detained when Plaintiff expressed concern that he would refuse to let her leave the ship. in response to which Defendant offered transportation via his yacht and assured her she would not be detained. Did the trial court properly instruct the jury that actual physical force is not required for a case of false imprisonment to succeed? Held. but Plaintiff decided she would like to leave the group and return to the United States with her children. 85 A. 77. Defendant refused to grant her use of a boat to reach the shore. said that it was up to Defendant to decide. This case addresses the grey area in which a physical impediment to a Plaintiff's free movement existed and a Defendant refused to remove it. Plaintiff and her husband were members of a religious group headed by Defendant and based in Tel Aviv. When they arrived. nor is it so narrow that actual physical force must have been used. she was always supervised and was only able to reach the United States after she secured a writ of habeas corpus. in turn. Plaintiff's husband. particularly when one has sole control over those means. At trial. Plaintiff was a member of a religious organization of which her husband was a minister and Defendant was the head. Physical as opposed to moral restraint is required for false imprisonment. The group was based in Tel Aviv.

including physical injury. Synopsis of Rule of Law. One who behaves outrageously in causing severe emotional distress to another is liable for the damages stemming from that emotional distress. and demanded that he attend a meeting of the association. a non-member of Plaintiff association. The verdict was sustained. in response to which Defendant attended Plaintiff's meeting and signed notes promising to pay.2d 282 (Cal. intends to cause such distress and does so. and Defendant argued they were unenforceable and counter-sued for intentional infliction of mental distress. collected garbage from a company Plaintiff claimed was within its domain. The Court focuses upon the role of a jury and its likely capabilities in reaching this decision.42 State Rubbish Collectors Ass'n v. The jury returned a verdict in favor of Defendant for both the notes and the intentional infliction of mental distress. Siliznoff Citation. he is liable for the emotional distress and the bodily harm resulting therefore. Defendant also alleged that he was only allowed to leave that meeting after he signed notes promising to pay the money demanded. . It is a question for the jury whether outrageous conduct has caused emotional distress and physical injury. Facts. and attempts to use the outrageousness standard to limit that possibility. even though Plaintiff caused no actual physical damage? Held. Discussion. The Court is clearly concerned about unleashing a whole new range of causes of action.2d 330. Defendant claimed they were invalid and counter-sued for intentional infliction of mental distress. 240 P. When Plaintiff sued to collect on the notes. 38 Cal. Plaintiff's agent allegedly demanded that Defendant surrender the money derived from the collection or suffer physical consequences. When one acts outrageously. Defendant collected garbage from a company Plaintiff claimed was properly subject to collection by one of its members. Brief Fact Summary. Issue. Defendant. Plaintiff sued Defendant to force payment of the notes. Siliznoff State Rubbish Collectors Ass'n v. 1952). the Court makes paramount the question of whether one has engaged in outrageous conduct such as would warrant imposition of liability for resulting emotional and physical damages. Was the jury correct to find Plaintiff liable for the damages resulting from Defendant's mental suffering. Defendant alleged that agents of Plaintiff threatened him with physical violence if he did not make an arrangement to pay Plaintiff's member the money derived from the collection. Yes. There exists a cause of action for intentional infliction of emotional distress for serious threats of physical violence whether or not such threats technically rise to the level of assault. Recognizing that a jury may not be equipped to accurately track the cause of a physical injury.

taken aback by the comment upon her bodily odor. . The Court felt compelled. The Court recognized that a trend toward allowing causes of action for intentional infliction of emotional distress was emerging. brought suit for intentional infliction of emotional distress. a customer in Defendant's store. • Mere insults or general abuse do not rise to the requisite level of outrageousness to allow for recovery for infliction of severe emotional distress. Facts. and claimed the insulting characterization of her bodily scent led to a heart attack and exacerbated heart disease. Plaintiff brought suit for intentional infliction of emotional distress. Brief Fact Summary. Yes. Synopsis of Rule of Law. Issue. Plaintiff. 100 So. Was the trial court correct to find that the Plaintiff's allegations were insufficient to state an independent cause of action? Held. an insulting comment upon someone's bodily odor.2d 396 (Fla. is found not to be sufficiently outrageous as to give rise to a cause of action for intentional infliction of emotional distress. Plaintiff was a customer in Defendant's store and asked an employee the price of an item. In this case. the concept of outrageousness is further defined. Food Fair Stores of Florida Slocum v. 1958). The judgment was affirmed. The employee responded that "[i]f you want to know the price. • The conduct complained of must be substantially certain to result in severe emotional distress. • Only such conduct as exceeds all bounds permissible in society can give rise to an independent claim for intentional infliction of emotional distress. inquired as to the price of a certain item. with the result that garden-variety insults are excluded from the conduct that can give rise to such a claim. and the trial court dismissed for failure to state a cause of action. Food Fair Stores of Florida Citation. Mere expressions of insults or general abuse are not actionable unless it can be shown that they were intended to bring about severe emotional distress. to place some limitations upon such claims. you'll have to find out the best way you can…" because "you stink to me". The employee insulted her by responding that "[i]f you want to know the price.43 Slocum v. however. The trial court dismissed the case for failure to state a cause of action. you'll have to find out the best way you can…" because "you stink to me". This particular example. Plaintiff. Discussion.

. Was the Appellate Court correct to reverse the verdict based upon its finding that there was insufficient evidence from which the jury could conclude that the wrongful conduct caused the distress and that the distress was severe? Held. • The severity of the emotional distress must be proven by the Plaintiff and must also be considered in light of the totality of the circumstances. and was aware that Plaintiff suffered from a speech impediment causing him to stutter. Synopsis of Rule of Law. Plaintiff asked him on numerous occasions to stop. In addition to clearly setting forth the elements of intentional infliction of emotional distress. Discussion. 281 Md. Plaintiff sued for intentional infliction of emotional distress. despite or perhaps as a reaction to the concurrent trend toward allowing its recognition. but admitted that Defendant was not the only one who mocked him and that he had had problems with other supervisors in the past. 2) the conduct must be extreme and outrageous. Plaintiff sued Defendant for intentional infliction of emotional distress. 560. causing him to feel distress.App. For intentional infliction of emotional distress: 1) the conduct must be intentional or reckless. The environment and characteristics of the individuals involved must be taken into account. Defendant supervised Plaintiff at an automobile factory and frequently mimicked his stuttering condition while at work. • In determining whether conduct is outrageous. the Court places a heavy burden upon the Plaintiff to demonstrate the causation and severity of that distress. and 4) the emotional distress must be severe. Defendant was Plaintiff's supervisor at a factory. 380 A. • Whether conduct can be considered outrageous is initially a question for the judge. 1977). Yes. 3) the wrongful conduct must cause the distress. When reasonable people could form different opinions as to whether conduct was outrageous. Brief Fact Summary.2d 611 (Md. The jury returned a verdict in Plaintiff's favor.44 Harris v. it is a question for the jury. but he persisted. Defendant frequently mocked Plaintiff and his condition on the job. The reversal of the verdict was affirmed. Facts. but this was reversed on appeal. This case demonstrates once again that this is a difficult tort to prove. Issue. Jones Harris v. the totality of the circumstances must be considered. Jones Citation.

Discussion. Facts. When a Defendant is not even aware of the Plaintiff's presence or does not commit the acts causing the distress with the intention of causing Plaintiff such distress. the dismissal was proper. Plaintiff Taylor witnessed Defendants intentionally attacking and beating her father. she must establish that the Defendant intentionally caused her to suffer from severe emotional distress. The dismissal was affirmed.2d 910 (Cal. Vallelunga Citation. Taylor failed to allege that the Defendants knew she was present for the event or that they intended the beating to cause her to suffer distress. Because Taylor suffered no physical injuries herself. The trial court granted the Defendants' motion to dismiss Taylor's claim and Taylor appealed. App. While Gerlach sued for his physical damages.App. No.45 Taylor v. . the Defendant has not intentionally inflicted emotional distress upon the Plaintiff. Because Taylor did not allege the Defendants knew she was present or intended her to suffer from emotional distress. When a Plaintiff seeks to recover for emotional distress but does not allege any physical damage. Did the trial court err in dismissing Taylor's complaint for intentional infliction of emotional distress? Held. Vallelunga Taylor v. she is required to prove that the emotional distress was intentionally inflicted upon her by the Defendant. she could only recover for emotional distress if the Defendants' actions met the requirements for an intentional infliction of emotional distress claim. The Court focuses on the Plaintiff's failure even to allege the Defendants were intending to cause her to suffer emotional distress. Brief Fact Summary. Plaintiff Gerlach alleges Defendants physically attacked him and Plaintiff Taylor. Issue. Gerlach sued for damages stemming from his physical injuries while Taylor sued for the emotional distress she suffered from witnessing the attack. 1959). 339 P. Plaintiff Gerlach. Synopsis of Rule of Law. there are no allegations with regard to their intent to injure Plaintiff Taylor. alleges she witnessed the attack.2d 107. 171 Cal. Taylor sued to recover for the emotional distress she experienced as a result of witnessing the event. Gerlach's daughter. While it was alleged that the Defendants intended to injure Plaintiff Gerlach. Ct. For one to recover for emotional distress when she has experienced no physical injury.

Although the Court acknowledges that the actual damages suffered by the Plaintiff were probably minimal. The case was reversed for a new trial. 18 N. The actions taken upon the land and the effects of those actions are relevant in calculating damages. and will grant it once liability is proven. but the entry upon another's land without authorization always qualifies as a trespass. The trial court instructed the jury that no trespass had occurred and the jury found for Defendant. Plaintiff sued Defendant for trespass. Discussion. Defendant and his survey team entered Plaintiff's land for the purpose of conducting a survey.46 Dougherty v. Every unauthorized entry upon another's land qualifies as a trespass. 1835).C. Did the Trial Court properly instruct the jury that no trespass had occurred because there was no palpable damage to the land? Held. Stepp Dougherty v. Defendant and his team did not do any damage to or mark the trees or shrubbery upon the property. Defendant entered Plaintiff's land to perform a survey. Brief Fact Summary.C. This case demonstrates the distinction between liability and damages in tort. but did not mark trees or cut timber. Issue. Facts. . regardless of the degree of damage done in the process. Synopsis of Rule of Law. this has no bearing upon whether a trespass was committed in the first place. The jury returned a verdict for Defendant. 371 (N. The Court also noted that the law infers some damage results from such a wrong. The trial court instructed the jury that no damage had been inflicted and thus no trespass occurred. Stepp Citation. Plaintiff sued for trespass. No.

particles that quickly dissipate may give rise to a nuisance action while particles that are deposited and do not pass away may give rise to an action in trespass. the prior rule that any trespass whatsoever entitles a landowner to nominal or punitive damages is no longer appropriate or workable in these circumstances. to be deposited upon Plaintiffs' property. such a rule is inappropriate and unworkable with respect to wide-ranging pollutants. Bradley v. Trespass is the interference of one's right to exclusive possession of land. and enjoyment of their land by gaseous and particulate emissions? Held. Plaintiffs. and the United States District Court for the Western District of Washington certified the matter for the Supreme Court of Washington. • Quickly dissipating particles interfere only with one's use and enjoyment and are thus properly subject to nuisance law. American Smelting and Refining Co. Defendant's smelter caused various gases and particulate matter. Are Plaintiffs entitled to nominal or punitive damages as a matter of law due to the interference with their exclusive possession. while nuisance is the interference with one's right to exclusive use and enjoyment of land. A trespass plaintiff must now prove actual damages to recover.2d 677. Citation.47 Bradley v. Actual damages must now be proven to sustain a trespass claim. Accordingly. an association of landowners on an island. • Nuisance involves the interference with one's right to exclusive use and enjoyment of property. American Smelting and Refining Co. Issue. imperceptible to the naked eye. Defendant American Smelting and Refining Co. The matter was remanded with instructions that actual damages needed to be shown for recovery. use.2d 782 (Wash. the operator of a nearby smelter. Facts. Plaintiff sued to recover for trespass and nuisance. The parties filed cross-motions for summary judgment. No. Brief Fact Summary. • Particles that remain deposited and do not quickly pass away interfere with one's exclusive possession of land and are thus the subject of the law of trespass. 1985). • Trespass occurs when one interferes with another's right to exclusive possession of property. 104 Wash. As a result of its operations. for trespass and nuisance due to gaseous and particulate emissions. operated a smelter near the Plaintiff Bradley's property. 709 P. • Although trespass entitled a plaintiff to nominal and punitive damages as a matter of law at common law. However. . sued Defendant. Synopsis of Rule of Law.

Discussion. no matter how minimal. The Court is clearly mindful that the common law rule would require recovery of at least nominal damages for any trespass. however. and paying particular attention to policy considerations of safeguarding industries against widespread and unnecessary litigation. Based upon these facts.48 Bradley v. the Court requires that actual and substantial damages be shown for one to recover for trespass. . American Smelting and Refining Co.

fired his shotgun at birds flying over Plaintiff's land. land extends upwards and downwards. 74 Mont. claiming damages of $10. 587. and was ultimately awarded $1 in nominal damages. Discussion. Brief Fact Summary. The judgment was affirmed. but it does suggest that the degree of protection diminishes the further from the ground it gets. • Air space. as the intrusion upon Plaintiff's land occurred merely a few feet off the ground. Sutherland Herrin v. .49 Herrin v. Did the trial court err when it granted Plaintiff nominal damages for the discharge of a shotgun over his land? Held. • Under Blackstone's interpretation. The Court confirms that the air space over one's land is subject to protection against trespass. Defendant. The Court is not called upon to determine how far such protection might extend. He fired his shotgun at ducks flying over Plaintiff's land. Plaintiff sued for trespass to his land. 241 P. Interference with the airspace over one's property can give rise to an action for trespass. No. 328 (Mont. 1925). Defendant was hunting while standing on someone else's property. Sutherland Citation. giving its owner rights in its air space. Facts. The Defendant timely appealed. Plaintiff sued for trespass. Issue. Plaintiff was granted a default judgment. Synopsis of Rule of Law. while hunting. is nearly as subject to protection as is the ground. at least near the ground.

When Plaintiff's husband was later mowing the area. Once consent or license to a structure or chattel's presence upon one's land is effectively terminated. The judgment was reversed and remanded. but in so doing agreed to remove the fence after the winter months when it was necessary. However. Had the injury occurred during the winter months. Plaintiff sued for trespass and negligence. The license and agreement rendering the snow fence's presence initially lawful did not bar an action for its presence after it should have been removed. Pursuant to a license. Discussion. due to the expiration of the license period. . Defendant did not remove the fence at the end of winter. The Court recognizes that the fence was properly on the property in the first instance and was thus not originally a trespass. No. 661. Issue. the fence's continued presence ripened into a trespass. and the damages became recoverable. Facts.W. he was injured by a collision with the fence and ultimately died. Defendant failed to remove the fence after winter as agreed. Defendant obtained a license to place a snow fence upon Plaintiff's husband's property. and Plaintiff's husband was killed by an accident involving the fence's continued presence on his property. Brief Fact Summary. Synopsis of Rule of Law. This case demonstrates other possible dimensions of an intrusion upon another's land. The Plaintiff appealed. Board of Road Com'rs for Kent County Rogers v. no damages could have been sought in trespass.50 Rogers v. Was the Trial Court correct in dismissing the cause of action in trespass? Held.2d 358 (Mich. 30 N. Board of Road Com'rs for Kent County Citation. Plaintiff sued for trespass and negligence. Defendant placed a snow fence and posts upon Plaintiff's husband's property with the understanding that it would be removed at the end of winter. he may recover for damages resulting from its continued presence. finding that there was no basis for finding trespass. 319 Mich. When one consents to the presence of a structure or chattel on his property and that structure or chattel is not removed after the consent is revoked or terminated. 1947). the presence may revert to a trespass. The Trial Court dismissed the action.

Synopsis of Rule of Law. She approached the dog.2d 233 (N.51 Glidden v. encountered a dog owned by Defendants. Plaintiff. Some sort of damage must result from the interference because sufficient legal protection of the inviolability of possession of a chattel is found in the privilege to use reasonable force to maintain possession. In order to prove a case of trespass to chattels. • One who non-consensually uses or interferes with a chattel of another is guilty of trespass if the chattel is damaged. played with him and pulled his ears.H. 63 A. there must be damage to the chattel.H. The Court sets forth the essential elements of the tort and explains its distinction from trespass to land. No. 318. or bodily harm must result from the trespass. a four year-old girl. and she sued to recover for her injuries. trespass to chattels does not entitle one to nominal damages. A dog owned by Defendants bit Plaintiff. Szybiak Citation. the possessor is deprived of use for a substantial time. Facts. Issue. Defendants' inability to prove any damage to the dog doomed the invocation of trespass to chattels as a defense. Discussion. 1949). Plaintiff sued to recover for her personal injuries. albeit in the context of a defense to another action. This case introduces the tort of trespass to chattels. had committed trespass to chattels and was thus not entitled to recover. Was Plaintiff's approach upon and subsequent play with the dog trespass to chattels such as would bar recovery for her injuries? Held. Defendants contended that Plaintiff was guilty in committing a trespass by meddling with the dog and thus not entitled to recover. • Unlike trespass to land. Brief Fact Summary. 95 N. in playing with the dog. . a four year-old girl. The dog bit Plaintiff. or bodily harm is caused by the interference. the owner must be deprived of use of the chattel for a substantial period of time. Defendants argued that Plaintiff. Judgment was entered for the Plaintiff. Szybiak Glidden v.

Synopsis of Rule of Law. Plaintiff sought to enjoin Defendants from continuing in its efforts to send such unsolicited messages to its subscribers. Such a trespass may also be found when the chattel is damaged or devalued. Inc. the possessor is deprived of its use for a substantial period of time. Issue. Plaintiff employed measures to block Defendants' messages. Although Plaintiff implemented measures to filter out Defendants' unsolicited messages. Inc. Dispossession is only one example of an occasion in which trespass to chattels has occurred. Inc. The Court rejected Defendants' argument that a plaintiff must show actual dispossession of the chattel to find for a Plaintiff. Facts. but these measures were frequently circumvented. Yes. Despite Plaintiff's request that they cease to do so. Defendants argued that Plaintiff's computer equipment and service was not dispossessed. and interference therewith can be actionable. v. v. Electronic signals sent via a computer are sufficiently tangible to form the basis of a cause of action for trespass to chattels. and then sought a preliminary injunction to extend the duration of the blockage. Plaintiff obtained a temporary restraining order to block the messages. as this case demonstrates. Compuserve. or bodily harm results from the interference with the chattel. Discussion.52 Compuserve. Ohio 1997). Defendants distributed e-mail advertisements to Plaintiff's subscribers. Defendants reconfigured their messages so as to circumvent these measures and reach the intended targets. Cyber Promotions. . The preliminary injunction was granted.Supp. but Defendants continued. Defendants continually distributed unsolicited e-mail advertisements to the subscribers of Plaintiff. Is Plaintiff entitled to a preliminary injunction to block Defendants' messages despite the fact that the computer equipment and service were not being dispossessed? Held. 1015 (D. any actionable interference can give rise to a claim and. Rather. Cyber Promotions. an injunction. Citation. Brief Fact Summary. This case again addresses the extent of interference with chattels that must exist in order to be actionable. and that this prevented the issuance of such an injunction. Inc. Plaintiff requested that Defendants stop. 962 F.

repeatedly entered his office and removed various documents. The Court sets forth the elements of conversion. 23 L. denied. 947. Plaintiff sued for conversion. Conversion is the intentional exercise of control or dominion over a chattel that interferes with another's rights to control it with sufficient severity that the party exercising such control may fairly be required to pay for its full value. photocopied.Ed. 89 S. • The interference with Plaintiff's use of the files was not so severe as to warrant payment for their entire value. Synopsis of Rule of Law.2d 701. copy them. the interference must be severe. in which the measure of damages tends to be diminution in value. who published their contents. . Defendants published articles based upon information contained in documents stolen from Plaintiff's office. 1969). In this case. • The information in this case is not the sort of information properly protected under conversion. Dodd Citation.53 Pearson v. The Court explains that a lesser interference will fall into the realm of trespass to chattels.Ct. cert. Discussion. The interference with a Plaintiff's use must be far greater for the tort of conversion. 410 F. and the like.2d 465 (D. Dodd Pearson v. Staffers of Plaintiff. 2021. They made copies of the documents and distributed the copies to Defendants. Cir. Brief Fact Summary. The originals were returned to Plaintiff's office. The District Court ruled that the Defendants had committed conversion Issue. the information involved was internal correspondence and office records. Facts. No. and return the originals to the office. The files were removed at night. As a result of this relatively drastic remedy. noting its most striking feature to be its award of the entire value of property with which interference has occurred. Defendants would receive the information from Plaintiff's own employees. and returned to their usual place. who would temporarily remove the documents from Plaintiff's office. Was the District Court correct in finding that Defendants committed conversion by paying for and using the photocopies of Plaintiff's files? • Was the information contained in the files in question properly subject to protection under a lawsuit for conversion? Held. trade secrets. The District Court's decision was reversed.C. while conversion protects intellectual property. which necessitates an award of the entire value of the property in question.S. 395 U. a United States Senator.

P r i v i l e g e s .54 C H A P T E R I I I .

She sued for assault and negligence. Plaintiff suffered blistering and ulceration thereafter. Co.E.S. As the Court explains. Discussion. Co. Did the trial court err in directing a verdict for Defendant on the basis of consent? Held. but only overt acts and outward manifestations may demonstrate such consent or lack thereof. Citation. No. More importantly. Cunard S. Issue. . O'Brien v.S. and suffered from complications resulting in injury. When one's overt acts and outward manifestations of intent indicate consent to physical contact in light of the surrounding circumstances. she sued for assault and negligence. 28 N. 272. 1891). The defense of consent thus cannot be defeated on the basis of one's unexpressed feelings or intentions. the making of such physical contact is consensual and therefore lawful. This case introduces the defense of consent into the law of torts. 266 (Mass. The trial court directed a verdict for Defendant on the basis of consent. Synopsis of Rule of Law.55 O'Brien v. Facts. and alleged this was due to the vaccination. The judgment was affirmed. it sets forth the proper analysis of a claim of consent. When consent is used as a defense to an assault action. Plaintiff was given a vaccination while aboard on of Defendant's steamships. One must produce evidence to the effect that the other party had reason to know consent was not given. Cunard S. Brief Fact Summary. the totality of the circumstances must be considered. She was vaccinated while on the ship. and will be considered in light of the surrounding circumstances. Plaintiff was a passenger aboard one of Defendant's ships. Plaintiff had presented herself to Defendant's surgeon in the quarantine area and did not object when he indicated his intention to vaccinate her. such a defense will be analyzed according to the overt acts of the party attempting to defeat the defense. Nevertheless. 154 Mass.

Neither of the two complained to officials at the time of the injury. Facts. 100 S. it is possible for one to go beyond its customs and so be liable for injuries in tort. Defendant's player intentionally struck Plaintiff. 275.2d. a professional football player. Both continued to play in the game and did not make any complaints at the time. cert. but Plaintiff later sued to collect for his personal injuries. No. 931. Cincinnati Bengals. Despite the generally violent nature of professional football.2d 188 (10th Cir. was injured when one of Defendant's players intentionally struck him during a game.Ct. Even in an inherently violent situation such as a game of professional football. Was the Trial Court correct in finding that Plaintiff had no remedy at law due to the extremely violent nature of professional football? Held. The trial court clearly found that one engaging in professional football was aware of its dangers and therefore surrendered his rights to seek redress for injuries sustained in the process. but was not found to have intended to injure him. Discussion. The Court was called upon to analyze an implied consent defense. Inc. denied. The trial court took judicial notice of the violent nature of professional football and found that the only remedies available to Plaintiff would be those administered within the game. Synopsis of Rule of Law. The judgment was reversed and remanded for a new trial. Hackbart v.56 Hackbart v. that there is a question of scope to such consent. . Brief Fact Summary. 1979). Cincinnati Bengals. Issue. 601 F. The Court explains here. 444 U. there are rules prohibiting certain conduct such as the intentional striking of other players. Citation. and Plaintiff was entitled to a determination of whether his rights were violated. The very existence of such rules demonstrates that there are boundaries to what constitutes acceptable behavior in the sport.Ed. and the mere understanding of a sport's generally violent nature does not extinguish all rights to recover for truly egregious conduct that is beyond the pale even of what professional football commonly entails. 62 L.S. however. Plaintiff later sued to recover for his injuries. Inc. Plaintiff was injured by one of Defendant's players in a professional football game. Plaintiff.

Williams Citation. Reasonable latitude must be afforded a surgeon or physician in the course of medical procedures. Defendant was performing an operation upon Plaintiff's right ear when he decided that the condition was not so serious as to warrant the operation. Synopsis of Rule of Law. he performed the operation on the left ear. The judgment was affirmed. However. Brief Fact Summary. While implied consent for a surgeon or doctor to operate in emergency. Defendant's motion for a judgment notwithstanding the verdict was denied. whether a situation is sufficiently life threatening so as to warrant such consent is a question of fact for a jury. Facts. In the absence of express consent or implied consent justified by emergency. Issue. . Defendant was to operate on Plaintiff's right ear for a medical condition. Defendant discovered a more serious condition in her left ear. In the case of an emergency. Defendant determined that the condition did not require the operation. No. Did the trial court err when it denied Defendant's motion for judgment notwithstanding the verdict on the basis of consent? Held. life-threatening situations may exist. 95 Minn.W. 104 N. or can be found in the course of performing another procedure. but such discretion is not unfettered. the consent to perform one operation does not automatically operate as consent to perform other. implied consent exists to carry out procedures necessary to alleviate the problem. Plaintiff sued for battery and received a jury verdict. similar operations. life-threatening medical condition. Such a condition can exist independently. While Plaintiff remained under anesthetic. During the operation. Defendant also discovered a more serious condition in Plaintiff's left ear. 12 (Minn. he simply performed the operation while she remained under anesthetic. 1905). Rather than awaken Plaintiff to receive consent. 261. it is a question for a jury whether one has consented to a medical procedure. However. Without awakening her to receive consent. Discussion. Williams Mohr v.57 Mohr v. The Court here addresses the scope of consent and the related issue of implied consent in the medical context.

As the Defendants fostered this belief. after discovering Scattergood's identity. Roberts De May v. When Defendants arrived. De May introduced Scattergood as his assistant. 160. a doctor. Plaintiff Roberts had requested that Defendant De May. Roberts Citation. Plaintiff allowed both into her home and voiced no objection to Scattergood's presence. visit her house for medical purposes. The consent must be made with knowledge of the relevant facts to operate as a valid defense in a subsequent tort action. a doctor. Facts. Consent given under a misapprehension of pertinent facts is of no moment. Synopsis of Rule of Law. 1881). but later sued for deceit. Yes. Judgment was entered for the Plaintiff. Discussion.W. 146 (Mich. and Plaintiff did not protest or object to his presence. Issue. Consent given under false pretenses is not valid consent and will not operate as a defense to a subsequent action. Later. The judgment was affirmed. even though Scattergood was not a doctor and was not invited to Plaintiff's premises. Brief Fact Summary. Because he was sick and the roads were difficult to travel. 46 Mich. Plaintiff brought suit for deceit.58 De May v. visited the premises of Plaintiff. . De May brought Defendant Scattergood along to assist him. Defendants argued she had consented to Scattergood's presence. Defendant Scattergood. Should judgment have been entered for the Plaintiff even though she did not object to Scattergood's presence? Held. This case demonstrates that the mere expression of consent of itself is not necessarily sufficient. 9 N. He arrived along with a second person. who was not a doctor. it cannot give rise to a valid claim of consent. The consent to Scattergood's presence was clearly predicated upon the Plaintiff's mistaken belief that he was a physician. Defendant De May.

Dissent. The judgment was affirmed. Was the Trial Court correct to instruct the jury that such a trap could not be used except to prevent a trespasser from committing a felony of violence or punishable by death and to deny the motion for judgment notwithstanding the verdict? Held. no warning about the trap was posted. Discussion. A privilege to use means intended or likely to cause death or great bodily harm in order to prevent trespass to land or chattels exists only when the trespasser is committing a felony of violence or punishable by death. not a burglary such as this. Of paramount concern. and the gun fired at and injured Plaintiff when he entered the house. • Criminal liability may also result from the use of such traps. is the value of human life and well-being. Briney Katko v. Issue. but did not intend to injure anyone. Defendant testified that he had placed the trap because he was tired of people breaking into the farmhouse. Although "no trespass" signs were posted on the property. The Trial Court instructed the jury that such a spring gun trap was prohibited unless it was used to prevent a trespasser from committing a felony of violence or punishable by death. Brief Fact Summary. Briney Citation. and previous cases on the subject dealt with intrusions to a vineyard. The instructions made no provision for the possibility that the device was set with no intent to actually strike or harm an intruder. Plaintiff was injured in the process by a "spring gun" trap Defendant had set to thwart intruders. Plaintiff broke into a farmhouse owned but not occupied by Defendant to steal items he might find inside.59 Katko v. Facts. 183 N. but no indications of any traps therein. . There were "no trespass" signs posted around the farmhouse. Plaintiff broke into and entered a farmhouse owned but not occupied by Defendant for the purposes of theft. The jury returned a verdict for Plaintiff and the Trial Court denied motions for judgment notwithstanding the verdict. Unbeknownst to the Plaintiff. Defendant had set a shotgun trap inside.W. Synopsis of Rule of Law.2d 657 (Iowa 1971). No privilege exists to use force intended or likely to cause death or great bodily harm to prevent trespass to land or chattels unless the trespass threatens death or great bodily harm to the occupier or user of the land or chattel. but places important limitations upon those rights. Yes. Such was not the case here. It is therefore necessary that actions risking loss of human life or damage to well being are prohibited except under circumstances when another party has already created a risk to either. the Court explains. The Defendant appealed. The Court acknowledges one's rights to protect against trespasses. • The Trial Court's instructions were correct.

This case recognizes the privilege an owner of property has to recover that property when it is wrongfully taken. 46 Am. after Plaintiff drew a knife. leaving all rights to its possession with Defendants. The judgment was reversed and remanded. Defendants therefore were privileged to retake the property if this could be accomplished without unnecessary violence or breach of the peace. 1846).Dec. Defendants discovered that Plaintiff's credit and assets were not what he claimed and they sought to recover the stove. forcibly extracted the stove from his possession. . and the Defendants appealed. Hubbard Citation. of primary concern is the prevention of violence and breach of the peace. Plaintiff purchased a stove from Defendants on credit and took it away. He supplied Defendants with credit information to consummate the purchase and left with the stove. No. Discussion.60 Hodgeden v. Facts. Once again. even though Plaintiff misrepresented his credit. Issue. Hubbard Hodgeden v. 167 (Vt. and Plaintiff sued for assault and battery. 504. Synopsis of Rule of Law. Only if Defendants used unnecessary violence or breached the peace were they liable to Plaintiff. Defendants ultimately retook the stove by force. One has a right to retake property that is rightfully his so long as it can be done without unnecessary violence to the person and without creating a breach of the peace. The stove was passed to Plaintiff under false pretenses. Plaintiff was awarded $1. At trial for assault and battery. the court instructed the jury that Defendants were not entitled to use force to recover the stove. They eventually overtook him and. Was the trial court correct in instructing the jury that Defendants were liable to Plaintiff if they used any force at all in retaking the stove? Held. Brief Fact Summary. Plaintiff went to a warehouse owned by Defendants to purchase a stove. The most important aspect of this ruling is the limitation placed upon that privilege. 18 Vt. Defendants quickly discovered that Plaintiff's credit information was false and immediately set out to overtake him and recover the stove.

Plaintiff later sued Defendant and the store for false imprisonment and slander. Plaintiff had left Defendant department store after shopping.750. Arlan's Department Store Citation. Defendant approached Plaintiff in the parking lot and explained that someone had told him that she had placed jewelry in her purse and not paid for it. No. Issue. The jury returned a verdict for Plaintiff in the amount of $43.W.2d 347 (Mich. There are two important issues with respect to the privilege: 1) whether there was a reasonable belief that an item had been unlawfully taken. 88. Plaintiff had been shopping at the Defendant department store. Reversed and remanded for new trial. Defendant was satisfied by the presence of receipts that she had not stolen anything. If Defendant reasonably believed that Plaintiff had unlawfully taken items form the store.61 Bonkowski v. Facts. Satisfaction of both elements will provide a defense to a claim of false imprisonment. a security guard working for the store approached her in the parking lot and asked to see the contents of her purse. which she did. Was the trial court correct in denying the Defendants' motion for judgment notwithstanding the verdict on the basis of privilege? Held. Arlan's Department Store Bonkowski v. 12 Mich. Defendant Reinhardt. despite reports of another witness. This case introduces the shopkeeper or merchant's privilege to detain a suspected shoplifter for investigation. There exists a privilege for merchants or shopkeepers to detain those whom they reasonably believe to have unlawfully taken chattels for a reasonable investigation and thereby avoid liability for false imprisonment. 162 N. Synopsis of Rule of Law. He determined that. .App. App. Brief Fact Summary. he was privileged to detain the Plaintiff for a reasonable investigation. The trial court denied Defendants' post-trial motions. Discussion. and 2) whether the investigation undertaken in response to this belief was reasonable. Plaintiff had not stolen anything and returned to the store. 1968). Ct. He requested that she show him the contents of her purse.

The judgment was reversed. Plaintiffs sued to recover for the damages sustained by the destruction. . Yes. In such case. 3 Cal. Plaintiffs sued to recover for the damages to his property. The private rights of an individual in a house that is in danger of spreading flame to other houses and thus an entire city yield to the interest in protecting against such a spread. Discussion. Defendant had Plaintiffs' house destroyed in an effort to save many more buildings from a fire. Geary Surocco v. No recovery may be had for the damages flowing from such a necessary destruction. Geary Citation. Judgment was entered for Plaintiffs. 385 (Cal. and the Defendant appealed. Synopsis of Rule of Law. In cases involving a fire that is likely to spread. Was Defendant privileged to destroy Plaintiffs' house in order to halt the spread of the fire? Held.62 Surocco v. the Alcalde of San Francisco. Issue. 69.Dec. Otherwise tortious acts may be rendered non-tortious when necessity dictates that they be undertaken for the greater interests of society. one is privileged to destroy the house to stop the spread. the Court recognizes the common law privilege of necessity. destroyed Plaintiffs' house in an attempt to halt the progression of a fire in the city. 1853). In this case. Defendant. an individual is privileged to destroy the house when such destruction is necessary to halt the spread. 58 Am. Brief Fact Summary. Facts.

In the case of private necessity. Facts. the weather had grown so perilous that no tugboats could enter the area and remove the ship. 124 N. After a jury trial. Defendant's employees kept the boat moored to the dock. Issue. Yes. Did the trial court properly deny Defendant's motion for a new trial on the basis of necessity? Held.W. 221 (Minn. Synopsis of Rule of Law. however. 456. A massive storm prevented the arrival of tugboats to remove the steamship after the unloading. which resulted in damage to the dock. Co. Plaintiffs sued to recover for the damage caused by the ship's continued mooring. Discussion. The Court here distinguishes between public necessity for the greater good of society and private necessity for the good of one's own property. Rather than cast the ship adrift. One who takes actions to protect his property that result in damage to another's property is required to compensate for those damages. 109 Minn. . Defendant's steamship was moored to a dock owned by Plaintiffs to allow for the unloading of cargo. Co.63 Vincent v. 1910). while one may be entitled to use another's property and the act of so doing is thus not considered unlawful. By the time the unloading was complete. a verdict was entered for Plaintiffs. Defendant's steamship was moored to Plaintiffs' dock to unload cargo. even when the actions taken were necessary to prevent the destruction of his own property. compensation is not required for resulting damage. Defendant's employees kept the mooring intact. While necessity may sometimes require that one individual use the property of another to avoid destruction of his own property. any resulting damage must be compensated. Vincent v. Citation. the party whose property is damaged is entitled to compensation. Lake Erie Transp. The trial court denied Defendant's motion for a new trial. and Defendant appealed. Brief Fact Summary. Lake Erie Transp. Rather than risk the ship's loss or destruction by untying it from the dock. In the case of public necessity. The judgment was affirmed. which resulted in damage.

. At trial. • A parent. after he had inspected the damage. Plaintiff was a passenger on a school bus owned by Defendant transit authority and driven by Defendant Mooney. Discussion. • It is the Defendant's burden to plead and prove justification. 307 N. guardian. • One is justified in restraining or detaining another in a manner reasonable under the circumstances to prevent personal injury or damage to property. and evidence regarding such justification should not have been excluded in evaluating this claim of false imprisonment.64 Sindle v.2d 245. The judgment was reversed and remanded for a new trial. Ultimately. the Court focuses upon the bus driver's role as the supervisor of the students on the bus. Did the trial court abuse its discretion in excluding the evidence of justification proffered by Defendants? Held. Defendant bypassed the usual stops and took the Plaintiff and a few other students to a police station. New York Transit Authority Sindle v. Judgment was entered for Plaintiff and the Appellate Division affirmed and Defendants timely appealed. He stopped making the usual stops and delivered the students to the police. Brief Fact Summary. Defendant argued his actions were justified.2d 183 (N. but the trial court excluded evidence of justification. Synopsis of Rule of Law. Yes.Y. Finally. creating a special relationship between the parties. 33 N. Issue.S. 1973). New York Transit Authority Citation. 352 N.Y. or teacher entrusted with care of a child is justified in using that physical force reasonably necessary for discipline or the child's own welfare. Reasonable restraint or detention undertaken with the aim of preventing another from inflicting personal injury or damaging property is not unlawful. The Court introduces the defense of justification for the use of physical force. Students aboard the bus were behaving rather disobediently and causing damage to the bus despite Defendant's admonitions. Defendant repeatedly told them to behave. Defendant informed the students that he was taking them to the police.2d 293.Y. Several of the students aboard the bus were engaged in raucous behavior and caused damage to the bus.E. Facts. In finding justification. The Court also notes that the burden is on the Defendant to prove justification. Plaintiff sued for false imprisonment. but to no avail. Plaintiff was a student and passenger aboard a school bus owned by the transit authority and driven by Defendant.

65 C H A P T E R I V . N e g l i g e n c e .

A golf club is not so inherently dangerous that leaving it lying in a yard can constitute negligence. was accused of behaving negligently by leaving the club in the yard where children might play with it. 19 Conn. Sr. Jr. Something greater than the realization that some possible injury could result from leaving an item on the ground is required to sustain a negligence claim. striking the Plaintiff in the face and injuring her. Brief Fact Summary. Jr. Sr. and Wells. The demurrer as to the Plaintiff's action against Wells. 322. Defendant Wells.Sup. 1955). Wells. Defendant Wells.66 Lubitz v. was sustained. Wells Lubitz v. was accused of being negligent in swinging the golf club and failing to warn the Plaintiff that she might be struck. Plaintiff.. His son. No. Does leaving a golf club lying in a yard where children might find it qualify as negligence? Held. Wells. Issue. discovered the club. Jr. 113 A. Sr. picked up the club and swung it. Discussion. A golf club is not so inherently dangerous that leaving it where children could play with it and hurt themselves could constitute negligence. Jr. Jr.. Sr. who had left the club lying in his yard. Synopsis of Rule of Law. . it must be obviously or intrinsically dangerous. For the discarding of such an item to give rise to negligence. After Plaintiff was accidentally struck by a golf club wielded by Defendant Wells. and his friend. Sr. Facts. The Defendants brought a demurrer against the action stated against Wells. Wells Citation. she brought suit against Wells.2d 147 (Conn. left a gold club lying in his yard. Jr. were playing in the yard when Wells. Wells.

The jury was allowed to pass upon the question of the Defendants' negligence and returned a verdict for Plaintiff. Defendants had installed water mains along the street with hydrants located at various points. Plaintiff sued for negligence. there had been no problems with the plug. No. The mere fact that someone has been injured by another or another's property does not mean negligence has occurred. Birmingham Waterworks Co. This was properly characterized as an accident. which was caused by extraordinarily cold weather. Was the jury properly allowed to consider whether Defendants were guilty of negligence? Held. Blyth v. Plaintiff sued to recover for damages sustained when a water plug installed by the Defendants sprung a leak and doused the Plaintiff's house. Facts. Rather. The evidence showed that Defendants routinely took precautions against cold weather. 11 Exch. Citation. 156 Eng.67 Blyth v. one must act or fail to act in a way that someone of ordinary prudence would not act or fail to act. No evidence was entered showing any acts or failures to act on the part of Defendants such as could comprise negligence. The plug had been installed 25 years prior to the incident. there is no fault and no liability. One of the hydrants across from Plaintiff's house developed a leak as a result of exceedingly cold temperatures and caused water damage to the house. not as negligence. Rep. 1047 (Court of Exchequer 1856). Negligence is the failure to do something a person of ordinary prudence would do or the taking of an action that a person of ordinary prudence would not take. A mere accident that is not occasioned by the failure to take such an action or the taking of such an action does not qualify as negligence. Birmingham Waterworks Co. Issue. The Court distills the essence of basic negligence. Verdict was entered for Defendants. Prior to the incident. and that only due to a particularly and unforeseeably cold winter did any damage occur. Synopsis of Rule of Law. Discussion. 781. Brief Fact Summary. . Otherwise.

causing him great injury. Williams Gulf Refining Co. Was the damage inflicted upon Plaintiff foreseeable so as to give rise to a claim for negligence based upon the failure to take steps to safeguard against it? Held. Plaintiff was injured after a gasoline container delivered by Defendant exploded while he was trying to remove its cap. Issue. v. When Plaintiff went to refuel the tractor. The jury found Defendant liable for Plaintiff's injuries. Brief Fact Summary. arguing that the explosion was so unusual. The container had been in use for about nine years and was in a state of considerable disrepair. 183 Miss. v. was such that a reasonable person should have anticipated that its disrepair could cause an explosion and thus should have taken care to safeguard against such a result. 1938). The explosion occurred as a result of a spark caused by worn threads on the cap. extraordinary. Foreseeability of a harm is the existence of such a likelihood of damage so as to induce action to take care against it on the part of a reasonably prudent person. Plaintiff sued to recover for his personal injuries. 723. Synopsis of Rule of Law. and unforeseeable that they cannot be held liable for damages resulting from its occurrence. Defendant appealed. The Defendant delivered a gasoline container to Plaintiff for use in refueling a tractor. he removed the container's cap and the gasoline exploded. 185 So. such foreseeability as can give rise to negligence can be found when there exists sufficient likelihood of damage to induce a reasonably prudent person to take care against it.68 Gulf Refining Co. Williams Citation. as was known to Defendant. The judgment was affirmed. Yes. 234 (Miss. The state of the gasoline container. This case attempts to define the concept of foreseeability. Facts. As the Court explains. Discussion. . Defendant's failure to do so subjected it to liability.

and utility of the instrumentality as well as the ease of making it safer. necessitating a new trial. Discussion. In this case. a four year-old child. but these guidelines were frequently ignored. 89. Krayenbuhl Citation. Plaintiff.R. 65 Neb. Plaintiff was able to access it when he discovered it. 91 N. under all relevant circumstances. . The Court determines that the appropriate approach is to analyze the character. and the Defendant appealed. under all relevant circumstances. Krayenbuhl Chicago B. Plaintiff was injured while playing on the equipment. The Court tackles the difficult issue of the appropriate standard of care with respect to inherently dangerous but necessary instrumentalities of business. the trial judge improperly commented upon the evidence. When the Plaintiff came upon such equipment owned by the Defendant. Co. he has acted negligently and is liable for the damages resulting from that negligence. and sued for negligence. Synopsis of Rule of Law. & Q. v. a railroad company. Co. it was unlocked and the Plaintiff was injured while playing on it. Defendant had guidelines requiring that dangerous railroad equipment remain locked when not in use. With respect to dangerous instrumentalities.R. Probably. Was the Defendant negligent in failing to safeguard against the Plaintiff's injuries? Held.W. he has failed to take such precautions. Despite the fact that Defendant had rules requiring the equipment to be locked and inaccessible to members of the public. and utility of the instrumentality as well as the ease of making it safer must be taken into account in determining what degree of precaution is necessary so as not to be negligent. 880 (Neb.69 Chicago B. However. Trial resulted in a verdict for the Plaintiff. Brief Fact Summary. the character. When. the use of a lock to prevent public access to the equipment is such a minimal restriction upon the equipment's utility that the failure to keep such a lock in place likely amounted to negligence. & Q. location. one fails to take such precautions as would one of reasonable prudence. Facts. was injured while playing on dangerous equipment owned and operated by Defendant. location. 1902). One is negligent when. Defendant owned and operated railroad equipment. v. as would one of reasonable prudence. Issue.

however. For elevated causeways or viaducts. Brief Fact Summary. Synopsis of Rule of Law. While municipalities are required to maintain roads for public use. 109. Discussion. The verdict was for the Plaintiff. Issue. Snohomish County Davison v. The judgment was reversed with instructions to dismiss the action. Yes. Plaintiffs brought an action to recover for their damages. . Defendants argued that Plaintiffs were guilty of contributory negligence in operating their vehicle. there are limitations to the extent of safety that can be provided to all roads. at which point the car lost control and drove off the road. Plaintiffs suffered severe injuries and wrecked their automobile. in which only a certain degree of safety can reasonably be attained. Absolute safety cannot be guaranteed. Plaintiffs were driving their car across a bridge. over the guardrail. Facts. Did the trial court err in denying Defendants' motion on the basis of contributory negligence? Held. Snohomish County Citation. The Court points out. municipalities are required only to take such measures as are reasonable to prevent against injury. The Court further acknowledges that some roads can be rendered quite safe by the expenditure of additional money.70 Davison v. Plaintiffs suffered from damages after the car they were driving went off the road as they made a turn. There was insufficient evidence to warrant submitting the question of negligence to the jury. The Court acknowledges that municipalities have certain duties with respect to road maintenance. and the trial court denied Defendant's motion for judgment notwithstanding the verdict. arguing that the road was not sufficiently maintained so as to prevent the accident or at least diminish the damages. 149 Wash. Plaintiffs sued for the resulting damages. that for cases such as this. 422 (Wash. 270 P. 1928). a municipality is not negligent for failing to somehow make these roads safer.

1947). The ship ultimately sunk as a result. 2) the gravity of the injury resulting. and 3) the burden of necessary precautions. This case introduces Learned Hand's tripartite test for analyzing negligence. Issue. The trial court divided the damages between the Conner Company and Defendant. Nobody was aboard the ship or the tugboat to stop the lines from shifting. flour belonging to the United States. Facts. Citation. negligence has been committed. Brief Fact Summary.2d 169 (2d Cir. Discussion. In the event that a ship breaks its moorings. Carroll Towing Co. As a result.71 United States v. and sank. the ship broke free from the pier. Synopsis of Rule of Law. drifted. The ship's cargo. Yes. Carroll Towing Co. and the cargo was lost. Was Defendant negligent in failing to have a Bargee aboard the ship to prevent against such injury? Held. The United States sought compensation for the lost cargo. . To have no Bargee aboard the ship for a period of twenty-one hours was negligent. The Court explained that liability for negligence in such cases is dependent upon whether the burden of taking adequate precautions is less than the likelihood that an injury will occur multiplied by its gravity. was lost as a result. United States v. A ship owned by the Conner Company had its mooring lines shifted by a tugboat working for Defendant. collided with a tanker. 159 F. When the burden is less than that product. A tugboat working for Defendant caused the mooring lines of a ship carrying cargo owned by the United States to shift. its owner's duty is a function of 1) the probability that the ship will break away.

3 Bing. Yes. and explained that Defendant was bound to act as a reasonable man would have under the circumstances. and Plaintiff sued to recover for their value. Defendant was warned that there was a substantial possibility that the hay would ignite. Synopsis of Rule of Law. Defendant was warned that his haystacks posed a substantial risk of igniting and damaging Plaintiff's cottages. Held. and Defendant replied that he would "chance it". one must look only to whether one has acted as would a reasonably prudent person under similar circumstances. The ruling was discharged. Rather. Defendant paced a stack of hay near cottages owned by Plaintiff. but Defendant obtained a ruling on the ground that the jury should have been instructed to find negligence only if it found Defendant had not acted to the best of his own judgment. Menlove Citation. The jury found for Plaintiff. The standard of negligence is an objective one. Discussion. Was the trial court correct in instructing the jury that whether or not Defendant had been negligent was to be evaluated from an objective standpoint. Issue. The hay did ignite and damage Plaintiff's cottages. This case rejects the argument that a Defendant's particular sensibilities or weaknesses should be taken into account in evaluating negligence claims. not taking Defendant's intellectual limitations into account. The hay eventually did ignite and burn Plaintiff's cottages.C. and Plaintiff brought suit for negligence. The standard for negligence is an objective one. Facts. Brief Fact Summary. Menlove Vaughan v.) 467. One has behaved negligently if he has acted in a way contrary to how a reasonably prudent person would have acted under similar circumstances. (N. 132 Eng. Rep. . He disregarded these warnings and kept the hay in place.72 Vaughan v. 490 (Court of Common Pleas 1837). The trial court instructed the jury that the issue was whether the fire was occasioned by gross negligence.

and Defendant moved for a judgment notwithstanding the verdict. Drivers are required to know the condition of the parts of their vehicles that may become dangerous when their dangerous condition could be found through a reasonable inspection. 188 A. Plaintiff sued for negligence. Defendant's tire exploded as they were alongside one another. 392. 1936). Synopsis of Rule of Law. 324 Pa. McAdoo Delair v. While driving. The jury returned a verdict for Plaintiff. Facts. When Defendant drew alongside Plaintiff. a party is charged with that knowledge and is guilty of negligence when he ignores it and drives in spite of it. claiming that Defendant was negligent in driving on tires that were poorly maintained. Defendant attempted to pass Plaintiff as they were driving in their cars. The judgment was affirmed. Defendant attempted to pass Plaintiff. causing a collision. Discussion.73 Delair v. The jury was qualified to determine that the tires were in a dangerous state and that Defendant was negligent in driving upon them. Plaintiff sued Defendant for negligence. Brief Fact Summary. McAdoo Citation. one of his tires blew out. Was the trial court correct in refusing to grant Defendant's motion for a judgment notwithstanding the verdict on the ground that he did not know his tires were in a dangerous state? Held. Yes. . causing the cars to collide. Issue. 181 (Pa. The Court rules that those driving automobiles are required to take certain precautions to maintain them. When a reasonable inspection would disclose a dangerous condition in an automobile.

Y. The shattering of a bathtub enclosure's glass door led to Plaintiff's severe injury. When custom and practice have removed certain dangers. Klein Citation. No. Plaintiff sued to recover for his injuries.2d 52 (N. • Proof of the existence of a custom and practice coupled with evidence showing failure to adhere to it may establish liability. it remains a jury question whether one has acted with due care under particular circumstances.74 Trimarco v. Defendants owned the building in which this occurred. Brief Fact Summary. Although custom and practice can has definite relevance to whether or not one has acted with due care. adherence or non-adherence thereto is not conclusive proof of liability or innocence. However. 436 N. even after such custom and practice are established. Plaintiff sued for his personal injuries. 1982). and had used ordinary glass for the bathtub enclosure despite the common practice of using shatterproof glass in such cases. 451 N.Y.Y. the custom may be used as evidence that one has failed to act as is required under the circumstances.S. Synopsis of Rule of Law. Defendants owned the building in which the incident occurred. Klein Trimarco v. The Appellate Division reversed and dismissed the complaint. Issue. .2d 502. and received a substantial judgment. • Proof of the existence of a custom and practice coupled with evidence showing adherence to it may establish one has acted with due care. Plaintiff suffered severe injuries when the glass of a bathtub he was in shattered. and had used ordinary as opposed to shatterproof glass in constructing the enclosure.2d 98. Discussion. 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.E. This case demonstrates that custom and practice can be important in evaluating the appropriate standard of acre in negligence cases. 56 N. Facts.

Negligence is defined as the failure to exercise that care and caution which a reasonable and prudent person ordinarily would exercise under like conditions or circumstances. . Synopsis of Rule of Law. A driver working for the Defendant's taxi company. Held. (Defendant). a pedestrian. the law does not hold a person to the same standards as if he had opportunity for deliberate action. as his actions were in response to an emergency situation. In an emergency situation. Peerless Transportation Co. Issue. Citation. 27 N. now driverless. The car. The driver left the cab while it was still running and it subsequently ran up onto a sidewalk and injured the Plaintiff and her two children. Cordas (Plaintiff). Whether abandoning a running car is reasonable behavior. Reasonable and prudent action is based on the set of circumstances under which the actions took place. Facts.75 Cordas v.Y. jumped from a running taxi when a highwayman entered the taxi and demanded to be driven away while being chased by a recent victim. The driver was not negligent in this case. Discussion. ran up onto a sidewalk and injured the Plaintiff. Brief Fact Summary. The circumstances dictate what is or is not prudent action. jumped from his taxi while it was running to escape an armed highwayman who was being pursued by his victim. Cordas v. Peerless Transportation Co. Peerless Transportation Co. A taxi driver working for the Defendant. S 2d 198 (1941).

State of Louisiana Roberts v. The court also considered Burson's testimony that he had special training in moving about without a cane. fell and broke his hip when a blind man bumped him into. working in a familiar setting. Because the blind operator.76 Roberts v. Was it reasonable for a blind man to walk from his place of employment to the restroom without the use of his cane? Held. Issue. The concession operator was not negligent and therefore the trial courts' ruling is upheld. Burson. an elderly gentleman. with special training on moving about without the use of a cane. The Plaintiff. Burson was not acting negligently when he bumped into the Plaintiff. the State of Louisiana (Defendant). State of Louisiana Citation. The concession operator failed to use his cane while walking from his stand to the bathroom when the accident occurred. the handicap is considered part of the circumstances. the Plaintiff's suit was dismissed. Synopsis of Rule of Law. The handicapped are held to a reasonable standard of care for a person with their disability. had worked at the vending stand for several years and because he testified that he does not use a cane for short trips within familiar buildings. 2d 566 (1981). Burson's actions were reasonable for a blind person. Roberts (Plaintiff). The court also looked at the testimony of the director of the Division of Blind Services who said that nine out of ten blind persons do not use their canes when moving about familiar surroundings. At trial. sued the Defendant. Brief Fact Summary. 396 So. The Plaintiff. Discussion. Facts. . when he fell and broke his hip after being bumped into by the blind operator of the concession stand at the United States Post Office Building.

an eleven-year-old girl. The driver of the snowmobile at the time of the accident was a thirteen-year-old boy. he should be held to an adult standard of care because the chances of injury and accident are increased. 598 P. When operating a motorized vehicle. When a child operates a motorized vehicle. children should be held to an adult standard of care because this will discourage them from engaging in the activity. But there are some circumstances where it is appropriate to apply an adult standard. training and experience. 2d 392 (1979). Synopsis of Rule of Law. they are held to an adult standard of care. Lindsay Citation. The driver of the snowmobile was a thirteen-year-old boy. a minor. Whether to apply an adult standard of care to acts of children who engage in adult behavior. When a child causes injury by engaging in dangerous or adult conduct. for the injuries she sustained during a snowmobile accident that cost her the use of her thumb.77 Robinson v. Brief Fact Summary. Lindsay Robinson v. . Courts have traditionally given children a flexible standard of care to determine their negligence. Children who engage in hazardous activity are to be held to the same standard of care that an adult would be held to. Facts. Held. A jury verdict was entered in favor of the boy and a new trial was ordered. Issue. Discussion. maturity. The standard looks at the age of the child. This case was brought on behalf of Kelly Robinson. intelligence. or taking part in a dangerous activity. Children are expected to exercise the degree of care and discretion that is reasonable of a child of their particular age. The plaintiff. lost the use of her thumb as a result of a snowmobile accident.

78 Breunig v. the general policy is too broad. Co. In situations where the insanity or illness is known. Citation. At trial. Facts. it is unjust to hold a person responsible for the conduct that caused the injury. was injured in a car accident when Erma Veith (Ms. Brief Fact Summary. Co. there must also be an absence of notice or forewarning that the person might be subject to the illness or insanity. liability attaches. Whether mental illness is an exception to the reasonable person standard. 2d 619 (1970). 173 N. Veith was not able to operate the vehicle with a conscious mind because she suffered from a schizophrenic reaction of which she had no forewarning. American Family Ins. drove her car into the Plaintiff's truck after suffering a schizophrenic attack. Although generally insanity is not a defense to negligence. Synopsis of Rule of Law. Ms. The effect of mental illness on liability depends on the nature of the insanity. Breunig v. American Family Ins. The next thing she recalled she was lying in a field on the side of the road. For insanity to be an exception to liability. Veith). . It is unjust to hold a person to a reasonable person standard in evaluating their negligence when a mental illness comes on suddenly and without forewarning causing injury to another. Breunig (Plaintiff). the Defendant. Discussion. Veith was driving home when she saw a white light on the back of the car ahead of her and followed it for three or four blocks. Held. The psychiatrist testified that while driving her car. It is unjust to hold a person responsible for conduct that they are incapable of avoiding. The illness or hallucination must affect the person's ability to understand and act with ordinary care. when the insanity is unforeseen and unavoidable.W. a psychiatrist testified that Ms. The Plaintiff. Co. American Family Ins.'s (Defendant) insured. Ms. where the driver was suddenly overcome by a disability that incapacitated her from conforming her conduct to that of a reasonable person. Issue. Veith told him that she believed God took control of the car and she stepped on the gas when she saw the Plaintiff's truck coming towards her because she knew she would become airborne. But in this case.

2d 526 (1979). Facts. Citation. Discussion. Inc. Whether professionals should be held to an industry standard of care or one that is predicated on their individual experiences and training. According to the widow of the passenger. Issue. killing the pilot and the passengers. Instead. using minimum industry standards and not looking into the individual's actual training or experience. The proper standard of care for professional negligence is an objective standard. Pilot error caused an airplane crash. There was evidence that the plane was not properly balanced. an expert testified that in his opinion the pilot should have used flaps to aid in the takeoff and should have made a controlled landing shortly after takeoff. This suit is the result of an airplane crash that charges the pilot with negligence. the pilot's actions are to be measured by an industry standard that is applicable to all pilots. The jury instruction instead created a subjective standard by focusing on the defendant's personal training.E. By using an objective standard the court avoids imposing a different standard of care for each case. In the expert's opinion. it is an objective standard predicated on the rules and guidelines of the profession. Swift Wings. The jury found there was no pilot error after receiving a jury instruction containing a definition of negligence that focused on the defendant's own experience and training.79 Heath v. 252 S. Synopsis of Rule of Law. The pilot and his passengers all died as a result of the crash. Heath v. the pilot spent a long time loading and reloading the small aircraft prior to take off. At trial. Brief Fact Summary. Held. Inc. . had the pilot taken these measures. the crash would have been avoided. Swift Wings. The jury instructions in this case imposed a subjective standard by asking the jury to decide if the pilot acted in a reasonably prudent manner given the pilot's own particular experience and training. A professional standard of care is not a subjective standard.

Hodges (Plaintiff). 80 S. However. Synopsis of Rule of Law. Carter Citation. they did not act negligently in prosecuting the Plaintiff's case. The four claims were denied and the Plaintiff then sought recovery in the courts. The trial court found for the Defendants and the Plaintiff now appeals. Facts. An attorney is liable for loss to the client that results from a lack of knowledge or skill that would ordinarily be possessed by others in the profession. failure to use reasonable care and diligence and failure to exercise good faith.E. Carter Hodges v. Discussion.80 Hodges v. In 1952. The Plaintiff. the Plaintiff then filed this suit against the Defendants alleging they were negligent in prosecuting his actions. Attorneys are not liable for errors in judgment or mistakes of law if they are made in good faith and the attorney uses reasonable care and diligence that other attorneys similarly situated would use. In four separate actions. when that point of law has not been settled by the highest court in the jurisdiction. . alleging that they negligently prosecuted his insurance claims against out of state insurance companies when the attorneys failed to properly serve the complaints. that decision was appealed and reversed by the Supreme Court of North Carolina. The Defendants were not negligent in the prosecution of Plaintiff's cases against the insurance companies. Brief Fact Summary. is suing the Defendants. The Plaintiff lost his drug store in a fire in 1948 and subsequently filed four separate insurance claims pursuant to policies he held. the Defendants served each insurance company through the Commissioner of Insurance. his former attorneys (Defendants). Whether Plaintiff's attorneys were negligent in failing to properly serve the Plaintiff's complaints against his insurance companies. 2d 144 (1954). Held. The insurance companies claimed improper service of process and the trial courts concluded that service was proper. Issue. Because the Defendants followed a custom that had been in place in North Carolina regarding service of process for twenty years and because the Defendants had obtained a judicial declaration from the Superior Courts that the Commissioner's acceptance of service subjected the insurance companies to the court's jurisdiction. An attorney is not liable for an error of judgement or for a mistake made on a point of law.

Brown Citation. the Defendant cannot be found guilty of malpractice. a medical doctor. The expert testimony could not establish that the Defendant acted outside of the community standards and therefore the Defendant did not commit malpractice. Boyce) suffered pain and disability seven years after the Defendant. claiming he was negligent in not removing the screw when Ms. Medical malpractice can only be shown where. Boyce returned to the defendant complaining of pain in her ankle. At trial. Nannie Boyce (Ms. Brown Boyce v. Boyce a full recovery. .81 Boyce v. because the expert testimony could not establish that the Defendant acted outside of the community medical standards when the Ms. Nannie and Berlie Boyce (Plaintiffs). Boyce's ankle at the time she was seen by him. Brief Fact Summary. Boyce's ankle. placed a metal screw in her ankle. The Plaintiffs sued the Defendant for malpractice. the Ms. To successfully allege malpractice. Ms. Whether the Defendant was negligent when he failed to remove the screw from the Ms. Boyce sought the services of the Defendant. To be liable for malpractice. but could not say if the Defendant acted outside the scope of proper medical standards when the Plaintiff was seen two years prior. The Defendant examined the ankle and wrapped it before sending her home. the second doctor testified to the condition of Ms. sued the Defendant. Brown (Defendant). it is established that the doctor acted outside of the community norms in their treatment of the patient. or have neglected to do something that community standards would require. by expert testimony. In this case. 77 P. The Plaintiffs. Held. Boyce eventually saw a second doctor who surgically removed the screw. The Defendant performed the operation. Medical doctors are required to possess the degree of skill and learning possessed by an average member of the medical profession in good standing in the community in which they practice and apply that skill and knowledge with reasonable care. Facts. Seven years latter. Boyce returned to his office seven years after surgery. a plaintiff must offer expert testimony on the community standards of medical care. a doctor must have used a treatment that the medical community where the doctor practices forbids. to reduce a fracture of her ankle. using a metal screw to keep the bones in place. Discussion. Boyce returned seven years after surgery. Issue. Synopsis of Rule of Law. For the next two years. the ankle continued to worsen and Ms.2d 455 (1938). offering Ms.

Discussion. A national standard of care is a more modern method for measuring whether a doctor has committed negligence. Morrison (Plaintiff).C. The court adopts a national rule. Issue. Brief Fact Summary. The test was administered to the Plaintiff while he was standing. 407 A. Furthermore. But the policy behind the locality rule does not hold true of doctors in the District of Columbia and the disparity between doctors in urban and rural areas has mostly been eliminated. due to the uniformity of the proficiency certifications that are required by national boards. Facts. Synopsis of Rule of Law. The Plaintiff had an adverse reaction to the test and fell. The trial court refused to allow the testimony and held that the expert testimony for medical malpractice cases must come from a doctor who practices in the community where the malpractice is alleged.2d 555 (1979). The locality rule for expert testimony in medical malpractice cases is antiquated and unnecessary. hitting his head. The test was administered while the Plaintiff was standing. Held. .82 Morrison v. a national standard is more practical. At trial. Whether to use a community based standard or a national standard when determining a professional standard of care. the Plaintiff provided expert testimony from a doctor practicing in Michigan. The Plaintiff. The doctor stated that the test is always performed while the patient is sitting or prone. MacNamara Morrison v. The locality rule developed to protect rural doctors who lacked means of transportation and communication by which they could acquire the same set of skills as urban doctors. The Patient suffered permanent loss of his senses of smell and taste as a result of his fall. in this case Washington D. MacNamara Citation. was injured when he fell after undergoing a medical test. The Plaintiff patient was given test for a urinary tract infection.

Synopsis of Rule of Law. Whether the Plaintiff must establish that a reasonable person would not have elected treatment if informed of the risks. 606 P. a patient must show that: • the physician failed to inform the patient of a material risk • the patient. To sustain a cause of action in a theory of informed consent. a patient must establish they would not have elected treatment had they been made aware of the risks. Before the surgery. Discussion. The Defendant performed a hysterectomy on the Plaintiff. the Plaintiff. Held.83 Scott v. then a malpractice case against the doctor can be maintained. if informed.2d 554 (1979). Bradford Citation. The problem was corrected by three subsequent surgeries performed by a different doctor. the court reasoned that if the patient can show they would not have elected the procedure had they been properly informed. she would not have elected the surgery. To establish a breach of duty of informed consent. seeks recovery from the Defendant doctor alleging he failed to inform her of the risks. Scott (Plaintiff). The court elects to follow a subjective standard in this case to maintain a patient's right of self-determination. In a departure from the rule established in an earlier case. Brief Fact Summary. The Plaintiff testified that if she had known of the risk of incontinence. Mss. the Plaintiff signed a routine consent form. the Plaintiff experienced incontinence as a result a complication of the hysterectomy. After suffering from complications of surgery. The former rule established an objective standard for informed consent that required the patient to establish that a reasonable person in their position would have refused treatment. or if they must merely show that they would not have elected treatment. After the hysterectomy. would not have elected the treatment • the risks that were not disclosed resulted in injury to the patient. Bradford Scott v. . Facts. The Plaintiff alleges that the Defendant failed to inform her of the risks involved or the alternatives to the hysterectomy. Issue.

The Regents of the University of California Moore v. the Plaintiff underwent treatment by one many Defendants. which are unrelated to the patient's health and may effect the physician's professional judgment. Dr. Based on test results. Whether Dr. a doctor at University of California Los Angeles (UCLA) Medical Center. 793 P. The Regents of the University of California Citation. inter allia. a patient's consent to treatment must be informed to be effective. 2d 479 (1990). conversion and lack of informed consent and breach of fiduciary duty for failing to disclose the financial interests of Dr. Moore (Plaintiff). Second. the principles of informed consent are broad enough to require physicians to disclose their personal interests. the duty requires the physician to inform the patient of the risks involved in medical care. Dr. Following the diagnosis. Third. First. The patient underwent the recommended surgery and subsequent follow up treatment. The spleen was then used for unrelated research and the Plaintiff's cells were used to create a cell line licensed for commercial development. Golde in the plaintiff's spleen. Discussion. a physician has a fiduciary duty to disclose all information that is material to the patient's decision. The scope of informed consent is guided by the patients need to have all information material to their decision. . Facts. Consent consists of three principles. alleges financial injury when cells removed from his spleen were used to create commercial genetic products. however. • Physicians must disclose personal interests. The Plaintiff filed a complaint alleging. Issue. Synopsis of Rule of Law. Brief Fact Summary. The Plaintiff was diagnosed with leukemia in 1976. The principles of informed consent extend to disclosing unrelated interests of the physician because that information is material to the patients decision. The Plaintiff. Golde recommended that the plaintiff have his spleen removed. Golde. Held. • The failure to disclose those interests can lead to a cause of action for lack of informed consent. The trial court dismissed the complaint and the court of appeals reversed. an adult has the right to exercise control over his body.84 Moore v. Normally. Golde's failure to disclose his financial interests to the Plaintiff was a breach of fiduciary duty and therefore created a lack of informed consent.

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. Issue. The crossing consisted of four tracks. Wabash Ry. After coming to a stop at a train crossing where the intersection with the road was obscured. Discussion. Citation. Brief Fact Summary. boxcars blocked the field of vision and the Plaintiff stopped his truck before continuing forward. Synopsis of Rule of Law. 292 U. It is not the role of the judiciary to determine what is prudent behavior in extraordinary circumstances. 98 (1934).S. Requiring a driver to stop at an uncontrolled or obscured intersection is practical and prudent. That is for the jury to decide. Hearing none. The driver acted within the standards of prudent conduct. To the north. Held. the Plaintiff pulled ahead to the main track where his vehicle was struck by a passenger train. Wabash Ry. Pokora v. 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. He proceeded slowly. The Plaintiff's truck was hit by an oncoming train at a railroad crossing. the Plaintiff. . was hit by an oncoming train. Pakora's (Plaintiff) truck. Co. Co.85 Pokora v. Standards of prudent conduct should be cautiously framed when the rule of law is imposed. looking and listening for a whistle or a bell. Whether the Plaintiff's actions were prudent given the circumstances. Facts.

it is evidence of negligence per se. 41 N. This is also true when there is a clear duty imposed by common law that requires the exercise of due care. The Defendant was negligent. McMasters Osborne v. Whether the Defendant was negligent in failing to abide by the statutory requirement to label all poisons. Facts. McMasters Citation.86 Osborne v. Issue. 543 (1889). Osborne's (Plaintiff) wife. The non-performance of a legal duty constitutes negligence per se. If a person neglects to perform a duty imposed by either statute or common law and that law is designed for the protection of others.W. When a statute imparts a specific duty for the specific protection of others and a person neglects to perform that duty. Held. By statute the clerk was required to label the drug as poison and by failing to do so. The Defendant was required by law to label all poisons. . Brief Fact Summary. Synopsis of Rule of Law. A woman died as a result of ingesting poison from an unlabeled bottle purchased at the Defendant. then the evidence of the act or omission constitutes negligence per se. Not knowing that the drug was poisonous. A clerk working in the Defendant's drug store sold an unlabeled bottle of poison to the Plaintiff. McMaster's (Defendant) drug store. the Plaintiff's wife took the drug and died. Discussion. he broke the law.

Brief Fact Summary. The trial court held that the Defendant's violations of both the statute and the regulation did not constitute negligence per se. Synopsis of Rule of Law. was injured during a barroom brawl with customers at the Defendant. Held. on the other hand. • The violation of the regulation is negligence per se. or if the injuries would have occurred without that drink. Whether the violations of the statute or the regulation constitutes negligence per se.2d 436 (1971). A state statute forbids people from giving alcoholic beverages to anyone visibly drunk. the violation of the regulation can be used as evidence of negligence per se. is drafted to prevent injuries and abuses associated with the types of disturbances connected with bars and intoxication. Mar-Cam Corp. • The statute makes it illegal to give an alcoholic beverage to someone already intoxicated. The Plaintiff. Stachniewicz (Plaintiff). A state licensing regulation forbids licensed bar owners from permitting disorderly conduct or visibly intoxicated persons upon the licensed premises. . Mar-Cam Corp's (Defendant) drinking establishment. Discussion. Issue. Mar-Cam Corp. Citation.87 Stachniewicz v. Facts. The assailants had been at the bar drinking for over two hours when the fight erupted. • The violation of the statute was not negligence per se. The Plaintiff suffered severe head injuries when he was injured during a barroom brawl. Because the Plaintiff was within the class of persons the regulation sought to protect and because the injuries he sustained were of the type of harm the regulation sought to avoid. 488 P. Negligence per se results when a statute or regulation has been violated and that violation results in injury to a member of the class that the legislation was meant to protect and the harm is of the kind that the legislation was intended to prevent. Stachniewicz v. It is impossible to determine whether the injury sustained was the result of the drink given after intoxication occurred. • The regulation.

It is recognized that one can leave a vehicle unattended temporarily and not be negligent as long as one takes proper precautions to secure the car from uncontrolled movement. Ney v. The statue is not an antitheft statute. Yellow Cab Co. working for the Defendant.'s (Defendant). the Defendant's driver violated a section of the Uniform Traffic Act. . then an intervening criminal act does not break the chain of causation. running car. The legislative intent was to prevent injury caused by an unattended vehicle that is not properly secured from moving on its own and doing damage. A violation of that statute is evidence of negligence per se. Synopsis of Rule of Law. It is foreseeable that if you leave your car unlocked and running on the curb. 117 N. The statute is a public safety measure meant to protect the public from the foreseeable harm caused by leaving an unlocked. the thief struck and damaged the Plaintiff. Ney's (Plaintiff) vehicle. While driving the stolen cab. a thief might take it and in doing so cause damage.88 Ney v. Since the legislative intent of the statute was to protect the public and the act of the Defendant's driver put the public at risk. Discussion. Whether the legislative intent of the Uniform Traffic Act was to protect persons in the Plaintiff's class from the type of property damage caused by the violation. then it is the third party's negligence that is the proximate cause of the injury resulting.E. A cab driver. then the risk is the type of foreseeable harm that the legislature intended to prevent and the Defendant is liable. Yellow Cab Co. Issue. Facts. By leaving the car running and unlocked on the street. Citation. If the harm resulting from negligence is foreseeable. cab was stolen from the street side where its driver had left it running. left his cab parked with the ignition running and the car unlocked. Yellow Cab Co. Brief Fact Summary. If that car is then set in motion by the willful and negligent act of a third party. struck and damaged the Plaintiff's car. Dissent. unattended. The Defendant. unlocked and unattended. A thief stole the vehicle and while fleeing the scene.2d 74 (1954). Held.

and S. To sustain a cause of action for negligence per se. Perry v. A cause of action in negligence per se requires that there be an underlying duty at common law. Issue. Discussion. but said nothing to authorities. The defendants.N. .N. Synopsis of Rule of Law. The parents of two children who were sexually abused at their day care center filed a complaint against friends of the alleged abusers for failing to report the abuse. friends of the alleged child abuser and day care operator.N. 973 S.2d 301 (1998). The plaintiffs allege that the defendants were negligent per se because they failed to report the defendant's sexual and physical abuse of the plaintiff's children to child welfare agencies as required by the Family Code. There cannot be negligence per se without an underlying common law duty. allegedly witnessed the abuse of the plaintiffs and other children. In this case.89 Perry v.W. Although the plaintiff's children are within the class of persons the legislation is intended to protect and the harm they suffered is of the type the legislation intended to prevent. S. Held. Citation. In failing to report. they violated the Family Code. In failing to report. S. and S. Whether the defendants breached a duty to the plaintiffs when they violated the Family Code. The code requires a person to file a police report if they have reason to believe that a child's physical or mental health is at risk due to abuse. Facts. the defendants violated a section of the Family Code.N. Brief Fact Summary. the defendant must owe the plaintiff a pre-existing duty of care in common law of which the violation of legislation is evidence of the negligence. To hold a person liable for a duty that is only imposed by legislation would create a new type of tort liability. the defendants here are not negligent per se for their violation of the Family Code. the duty extends solely from the Family Code and there is no preexisting duty at common law between these defendants and the plaintiffs.

Issue. Herzog Martin v. The trier of fact must consider the decedent's negligence. The decedent's negligent failure to use lamps or lights on his buggy must be considered as a cause of the accident in light of the fact that the accident took place after sunset on a dark road. Synopsis of Rule of Law. The decedent's negligence was a contributory cause of his injury and so the Plaintiff cannot recover for the negligence of the defendant. Brief Fact Summary. The purpose of the statue was to protect travelers on the roads at night. Herzog's (Defendant) car collided with the buggy. 126 N. The plaintiff. The decedent was driving the buggy at night without lights on in violation of a criminal statute.E. He was killed when the Defendant. Herzog Citation. then he cannot recover for the negligence of the defendant. Elizabeth Martin's (Plaintiff) husband William Martin. Discussion. was driving a buggy after dark without using lights. The fact that the Plaintiff violated this statue is negligence in itself and cannot be ignored as a contributing factor in the accident. If the plaintiff's negligence is a contributory cause of the injury. . 814 (1920). The Plaintiff's husband was killed as a result of a collision between the buggy he was driving and the Defendant's car. Whether the decedent's violation of a criminal statue. Facts. which constitutes contributory negligence. Held.90 Martin v. precludes the Plaintiff's recovery.

Anderson Zeni v. having defrosted her windows and scraped them that morning. which can be overcome by providing an adequate excuse as to why the statue was ignored.91 Zeni v. was traveling within the speed limit down the busy street when she hit the Plaintiff with her car. The Plaintiff. . The Plaintiff was not using a sidewalk. 243 N. Discussion. The Plaintiff was hit by the Defendant's car while walking to work one winter morning. Zeni (Plaintiff). Anderson Citation. In a civil action for damages. and was therefore in violation of a statute requiring pedestrians to use sidewalks where available.W. car on her way to work. was walking along a well-used pedestrian snow path with her back to oncoming traffic. violation of a statute creates a rebuttable presumption of negligence.2d 270 (1976). Facts. Brief Fact Summary. was injured when she was hit by the Defendant. There was testimony at trial that the Defendant's windows were clouded over and that the snow path that the Plaintiff used was safer than the sidewalk on cold icy days. By using the snow path instead of the sidewalk. Violation of a statute creates a rebuttable presumption of negligence. The violation of a statute creates a rebuttable presumption of negligence. Anderson's (Defendant). The Defendant. which can be overcome by showing that there was an adequate excuse or reason for such action under the circumstances of the case. Plaintiff was in violation of a state statute. pedestrians must walk on the side of the road facing oncoming traffic. Whether the Plaintiff's failure to use the sidewalk constituted contributory negligence. The court declines to attach contributory liability to the Plaintiff because it was shown at trial that using the sidewalk would put the Plaintiff in danger of falling. Issue. Synopsis of Rule of Law. which required the use of sidewalks where provided and where they are not. Held. instead of using the sidewalk. The Plaintiff. but a snow path.

486 (Mass. 60 N.92 Goddard v. ." Discussion. Boston & Maine R. The Plaintiff fell right after disembarking from the train. This case offers an early discussion about negligence. 52. An individual slipped on a railroad platform and sustained certain injuries. A railroad is not liable for negligence. Goddard v. Wilfred H. Boston & Maine R. Co. if the negligent action may have been perpetrated by a passenger of the railroad. Issue. The Plaintiff. after falling on a banana peel lying on one of the Defendant's railroad platforms. None. Co. "The banana skin upon which the plaintiff stepped and which caused him to slip may have been dropped within a minute by one of the persons who was leaving the train. Synopsis of Rule of Law. Held. brought suit against the Defendant.E.R. Citation.R. Facts. 179 Mass. 1901) Brief Fact Summary. Goddard (the "Plaintiff"). Boston & Maine Railroad Co. (the "Defendant").

Issue. The Plaintiff. The Plaintiff. Held. 386 (1911). The Plaintiff had been following behind one of the railroad's uniformed workers when she slipped.93 Anjou v. Boston Elevated Railway Co. 94 N. Brief Fact Summary. a passenger on the defendant's railway. the railway employees had time to pick up the hazard and they did not. The banana peal was described as black. as there is evidence upon which to base a conclusion that the peal was not dropped a moment before the Plaintiff's fall by another passenger. Citation. Boston Elevated Railway Co. Discussion. Synopsis of Rule of Law. Circumstantial evidence can be used to establish proof of negligence. Here.'s (Defendant). slipped and fell on a banana peal left on the Defendant. This fact distinguishes this case from Goddard. Whether the Defendant is negligent. train platform. The Defendant was negligent in not removing the banana peal.E. it could be inferred that the peal had been seen and could have been removed by one of the employees of the railway. dry and gritty and appeared as if it had been trampled on. Anjou (Plaintiff). injured herself when she slipped and fell on a banana peel. Facts. Because the appearance of the banana peal suggested that it had been on the ground for some time. Anjou v. . Boston Elevated Railway Co.

The Plaintiff was injured when he slipped and fell on a banana peal in the Defendant's store. The Plaintiff. Atlantic and Pacific Tea Co. slipped and fell on a banana peal in the Defendant.'s (Defendant). or should have had notice of the hazard. The floor around the peal was also dirty. Without evidence that the store had. Joye v. there was no way to determine how long it had been on the floor. then the plaintiff cannot prove negligence.94 Joye v. Brief Fact Summary. Joye (Plaintiff). 405 F. Also. Citation. The circumstantial evidence is insufficient to determine whether the Defendant had notice of the banana peal on the floor. Issue. the Plaintiff cannot prove negligence. Discussion. Synopsis of Rule of Law. Great Atlantic and Pacific Tea Co. The banana peal was brown and sticky with bits of dirt and sand on it. The evidence presented shows that the floor was not swept for up to thirtyfive minutes. by the condition of the banana. Whether the Defendant had sufficient notice of the hazard to be found negligent. Great Atlantic and Pacific Tea Co. . Facts. store. Held. If there is no evidence to establish that the defendant had notice of the hazard.2d 464 (1968).

the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe. the spilled milk. While shopping at one of the Defendant. An individual slipped and fell on a puddle of milk left on the floor of a store.200 in damages. Kmart Corp.4 1200. Richard M. and replace goods on shelves. The jury awarded the Plaintiff $47. 26 Cal.3d 11 (Cal. he is liable for failing to correct it. and the care required is commensurate with the risks involved. Kmart Corp. slipped on a puddle of milk on a floor near a refrigerator. Ortega v.'s store (the "Defendant"). remove. 36 P." Ordinary care is exercised by a store owner "making reasonable inspections of the portions of the premises open to customers. Did the dangerous condition. The court first observed "[i]t is well established in California that although a store owner is not an insurer of the safety of its patrons. 'the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition by disarranging the merchandise' and creating potentially hazardous conditions. Issue. the Plaintiff argued that the Defendant had not inspected the floor in a reasonable amount of time prior to the accident." . th Citation. 2d 470. and if. but it could have been on the floor for up to 2 hours." The Plaintiff has the burden to prove "the owner had notice of the defect in sufficient time to correct it". "[P]laintiffs may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. During his testimony. the owner would have discovered the condition. The owner is under an obligation to "inspect the premises or take other proper action to ascertain their condition. Rptr. by the exercise of reasonable care. The Plaintiff sued the Defendant for his injuries. the Plaintiff. Kmart Corp. the Plaintiff could not remember much about the milk or how long it was on the floor for. Although he did not know how long the milk was on the floor. A Plaintiff need not demonstrate "actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.95 Ortega v. Synopsis of Rule of Law. exist long enough for a reasonably prudent person to have discovered it? In other words." Circumstantial evidence can be used to prove this knowledge. including torn ligaments. Ortega (the "Plaintiff")." If the store involved is "a self-service grocery store where customers are invited to inspect. The Plaintiff suffered a substantial knee injury. A Kmart employee testified that the milk would have probably been mopped up within 15-30 minutes." Facts. did the Defendant have constructive knowledge? Held. 114 Cal. Neither the individual nor the store was sure for how long the milk had been on the floor. 2001) Brief Fact Summary.

Kmart Corp." Discussion. ." Also. • The court concluded "that plaintiffs still have the burden of producing evidence that the dangerous condition existed for at least a sufficient time to support a finding that the defendant had constructive notice of the hazardous condition. that "plaintiffs may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard.96 Ortega v. This case illustrates the duty owed by a store to those who shop in the store.

's (Defendant). then the nature of the business serves to put the business on notice of possible injuries. 494 P. It was also foreseeable that if there were food on the floor it would be hazardous. was injured when she slipped and fell on a slice of pizza in the Defendant. Woolworth Co. Synopsis of Rule of Law. F.2d 839 (1972). Whether the Plaintiff must show that the store had notice of a dangerous condition. store. Issue. Citation.W. No further evidence is needed to show notice to the storeowner because the risk that someone might slip is a recognized danger under these circumstances.W. Jasko (Plaintiff). Facts. The slices were sold on wax paper to standing patrons and therefore it was foreseeable that food would drop on the floor. Discussion.97 Jasko v. F. Held.W. The pizza was sold over the counter to patrons shopping in the store. Notice of a dangerous condition need not be shown in cases where the business itself creates the hazard. Brief Fact Summary. F. The Plaintiff. The store's method for selling slices of pizza created a foreseeable risk of danger. The Plaintiff was injured when she slipped and fell on a slice of pizza in the Defendant's store. Jasko v. When the defendant engages in a business that is prone to hazardous mishaps. . Woolworth Co. The area around the pizza counter was tiled. Woolworth Co.

H. Negligence will not be found unless a condition posed an unreasonable risk of harm.98 H. [ ] the mere fact that a store has a customer sampling display cannot. Issue. Safeway Stores.E. "As a matter of law. Resendez H.'s (the "Petitioner" or "HEB") grocery stores.E. Inc. was shopping in one of the Petitioner. Maria Resendez (the "Respondent"). . The Respondent. v." Facts. The manner that grapes were displayed in a supermarket was at issue.E. Butt Groc. Co. The court observed that to recover." Discussion. (3) HEB did not exercise reasonable care to reduce or to eliminate the risk. there was more evidence than just a display. when she slipped near certain displays of grapes. but not here. The grapes were displayed "in a slanted bin over a linoleum tile floor with no protective floor mat--that created an unreasonable risk of customer falls from grapes falling on the floor. Resendez Citation. be evidence of a condition on the premises that poses an unreasonable risk of harm. 988 S. one for sale and one for sampling. no evidence was presented demonstrating that the "display created an unreasonable risk of customers falling on grapes. "Can mere display of produce for customer sampling constitute an unreasonable risk of harm to customers?" Held. The Respondent sued the Petitioner alleging that the grape displays posed an unreasonable risk of harm that caused her injuries. The bowl of grapes for sampling sat on ice and was level. 1999) Brief Fact Summary. Each display had a three inch railing and there were floor mats around the display tables.2d 218 (Tex. Butt Groc. Co. Yes. The trial court ruled in favor of the Respondent.W. and (4) HEBs failure to use such care proximately caused her injuries. Butt Groc. Co. The Petitioner supermarket had two grape displays. Synopsis of Rule of Law." The court observed that unlike [Corbin v. and the Court of Appeals affirmed. v. (2) the condition posed an unreasonable risk of harm. without more.]. the Respondent must prove "that (1) HEB had actual or constructive knowledge of a condition on the premises." In [Corbin].

The plaintiff was injured when a barrel of flour fell out of the defendant's shop window and knocked him down. Synopsis of Rule of Law. Res Ipsa Loquitur means the thing speaks for itself. proves negligent cause with no more evidence needed. Boadle Byrne v. The plaintiff was injured when a barrel of flour fell out of the defendants shop window and knocked him down. Facts. Issue." Discussion. 299 (1893). Brief Fact Summary.99 Byrne v. who owned the shop from which the barrel was being lowered out of. Because the barrel was in the custody of the defendant. The fact that some types of accidents occur. Whether the defendant's negligence caused the barrel of flour to fall out of his shop window.Rep. the accident "speaks for itself. Thus. . Boadle Citation. The fact that a barrel of flour fell from a shop window demonstrates that some negligence caused it. Barrels don't just fall out of shop windows by themselves so the fact that the accident took place is enough to show negligence. he is the responsible party for the manner in which the barrel was lowered. Held. 159 Eng.

the jury was instructed on Res Ipsa Loquitur. permits the inference of negligence. In this case. Brief Fact Summary. Whether the doctrine of Res Ipsa Loquitur applies to the accident. Perry McDougald v. At trial. But in rare instances the fact that the accident occurred. but on appeal the court found error in this instruction and held that the jury should not have been allowed to consider the doctrine. The Plaintiff. was run over by the rear wheels of the Defendant's truck and then collided with the Plaintiff's windshield. but that he did a pre-trip inspection on the trailer and found no problems. was injured when the spare tire flew off of the Defendant. The doctrine of Res Ipsa Loquitur applies. 716 So. However. Synopsis of Rule of Law.100 McDougald v. The mere fact that the accident occurred does not always warrant the application of the doctrine. Facts. The defendant also testified that on the day of the accident the chain was attached with only a nut and bolt. McDougald (Plaintiff). 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 . 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. Discussion. Issue. Res Ipsa Loquitur applies to rare occurrences where the accident itself is evidence upon which to base an inference of negligence. along with a showing of an immediate precipitating cause. The Plaintiff was injured when the spare tire on the Defendant's truck fell out of its carrier. Held.2d 783 (1998). the chain did have a loose link that lead to the release of the tire. Perry's (Defendant) trailer and hit the Plaintiff's windshield. Perry Citation.

Furthermore. The Plaintiff. Larson (Plaintiff). Francis Hotel Larson v. some of which the Defendant is not responsible for. In the case of hotel rooms and their furnishings. Synopsis of Rule of Law. (ii) the object that caused the accident was under the exclusive control and management of the defendant and (iii) had the defendant been using ordinary care. St. struck her. in the course of ordinary events. Francis Hotel (Defendant). Brief Fact Summary. Held. St. For the doctrine to apply. the accident would not have happened.101 Larson v. The Plaintiff was walking along the sidewalk outside of the Defendant's hotel when she was struck and knocked unconscious by an armchair. Francis Hotel Citation. this is a case where despite the Defendant using ordinary care in the ordinary course of events. the hotel itself has no control over the furniture. Whether the doctrine of Res Ipsa Loquitur applies and Defendant is negligent. It is assumed that the armchair came from one of the hotel room windows. 188 P. Res Ipsa Loquitur does not apply. the guests do. was injured when an armchair thrown from a window of the Defendant. Discussion. the accident would still have occurred . St. California law requires that: (i) there was an accident. Issue. Facts.2d 513 (1948). Res Ipsa Loquitur does not apply unless the object that caused the accident is under the exclusive control of the defendant and under ordinary circumstances using ordinary care. • The doctrine can have no application when there is evidence of divided responsibility and the accident can have several causes. the accident would not have happened.

Spangard Citation. • The doctrine of Res Ipsa Loquitur is best applied in a situation like this where the Plaintiff has no way of knowing which Defendant or which instrument injured him. a patient of the Defendants. The condition worsened until the Plaintiff suffered paralysis and atrophy in the muscles around his shoulder. 154 P. Discussion. Facts. Synopsis of Rule of Law. the burden falls to them to sort out who bore the responsibility for the negligence since the Plaintiff can have no way of knowing. The patient underwent surgery for an appendectomy and woke with severe shoulder pain that worsened and eventually caused atrophy and paralysis. The pain worsened over the next several days and spread down his arm. Ybarra (Plaintiff). having been unconscious during the injury. The doctrine does apply. various doctors (Defendants).2d 687 (1944). Held. The fact that he has the injury speaks for itself that negligence occurred. Issue. Like the woman walking down the street who is struck by an object falling from a building. Whether the doctrine of Res Ipsa Loquitur applies and Defendants are negligent. • In a case where there are multiple defendants.102 Ybarra v. can have no knowledge of who or what injured him. Brief Fact Summary. the Plaintiff in this case. Spangard Ybarra v. The Plaintiff. Some injuries speak for themselves and the fact that they occurred is proof of negligence. underwent an appendectomy and woke from the anesthesia with arm and shoulder pain. . some of whom may or may not share liability.

• Whether by application of the doctrine of Res Ipsa Loquitur. • It is for the trier of fact to determine the strength of the inference of Defendant's negligence. Issue. • Whether the doctrine of Res Ipsa Loquitur applies to this case. The day was clear and sunny. A defense to the doctrine requires that reasonable evidence be shown that the accident was not caused by the defendant's negligence. The strength of that burden depends on the facts of each case and the strength of the inference created. adult son was killed when the truck he was a passenger in went off a steep embankment and crushed him. Sullivan. The doctrine of Res Ipsa Loquitur creates a burden on the defendant to show a reasonable explanation for the injury. and Mrs. . The Defendant. The weight of this burden on the defendant depends on the strength of the inference that the circumstances create. the Defendant is guilty of negligence. Crabtree (Defendant). • Res Ipsa Loquitur does apply to this case. • The determination of what procedural effect the application of the doctrine of Res Ipsa Loquitur has is done on a case-by-case basis. Crabtree Sullivan v. but in cases such as this. Held.2d 782 (1953). Crabtree Citation. where the cause of the accident is within the driver's control and the accident is not one that would normally occur without negligence.103 Sullivan v.W. including brake malfunction. the Plaintiffs' (Plaintiffs). Synopsis of Rule of Law. • The doctrine of Res Ipsa Loquitur does not generally apply to motor vehicle accidents. 258 S. Discussion. Facts. but there was loose gravel and broken pavement on the road. the doctrine may be applied. Brief Fact Summary. The driver of the truck was unable to determine the exact cause of the accident. was driving the truck at the time and testified that there could have been several reasons that the truck went off the road and down the embankment. Mr. The passenger in a truck was killed when the truck swerved and went off the road and down a steep embankment.

104 C H A P T E R V . C a u s a t i o n I n .

The defendant's negligence must be a substantial factor in the cause of the harm for liability to attach. Discussion. These signals were operating at the time of the accident. Texas and New Orleans Railroad Co. . Citation. Synopsis of Rule of Law. the train could not have avoided the car. Held. The engineer testified that even at a rate of 25 mph. Texas and New Orleans Railroad Co. Perkins v. the negligence of the train's operator is not a substantial factor in the collision. Perkins (Plaintiff). the engineer was negligent. Whether the negligence of the Defendant was a substantial factor in causing the accident. Both parties have conceded that the driver of the car. The intersection also had warning signals to warn drivers of approaching trains. Because the accident would have occurred even if the train had been traveling within the speed limit. was negligent in driving upon the train track with the signal lights on. At the intersection of the road and rail crossing where the accident occurred. the brakeman and a fireman saw the car emerge from the intersection. but applied the emergency brakes when his companions alerted him to the presence of the car. The Plaintiff's husband was killed in a collision between the car he was a passenger in and a freight train operated by the Defendant. the engineer did not see the car due to the obstructed view. Ms. 147 So2d 646 (1962).105 Perkins v. who was also killed. Based on this testimony. The third. The husband of the Plaintiff. The train's speed was not a substantial factor in the cause of the accident. By traveling twelve miles over the self-imposed speed limit. the court finds that the speed of the train was not a substantial factor in the crash. Issue. The train's engineer and brakeman were aware of the obstruction and while approaching the intersection rang the train's bell and whistle and put its headlights on. a large warehouse obstructed the view of both the car's driver and the train's engineer and brakeman. At the time of the accident the train was between 30 to 60 feet from the car. Brief Fact Summary. was a passenger in a car when a train at a railway crossing struck the car. The Plaintiff's husband was killed. The parties have also conceded that the train was traveling at 37 miles per hour when the self-imposed speed limit for the intersection was 25 miles per hour. Of the three railway employees in the forward engine of the train only two. Facts. New Orleans Railroad Co.

106 Reynolds v. Texas & Pac. Ry. Co.

Reynolds v. Texas & Pac. Ry. Co.
Citation. 37 La.Ann. 694 (1885). Brief Fact Summary. The Plaintiff, Reynolds (Plaintiff), was injured when she fell down an unlit stairway while exiting the Defendant, Texas & Pac. Ry. Co.'s (Defendants) train. Synopsis of Rule of Law. If the defendant's negligence is of a character naturally leading to the character of the injury, then causation is established. Facts. The Plaintiff was injured when she fell down an unlit stairway while exiting Defendant's train at night. Because the train was running late, the passengers were told to hurry and exit the train. In doing so the Plaintiff lost her footing and fell. Issue. Whether the negligence of the Defendant caused the injury to the Plaintiff. Held. The Defendant's negligence was a cause of the Plaintiff's injury. Discussion. While it is possible that the Plaintiff might have fallen had she exited the train during the daylight, the possibility is not sufficient to divest the Defendant of liability for its negligence. The Defendant's negligence was of a character naturally leading to the character of the Plaintiff's injury and therefore causation is established.

107 Gentry v. Douglas Hereford Ranch, Inc.

Gentry v. Douglas Hereford Ranch, Inc.
Citation. 962 P.2d 1205 (1998). Brief Fact Summary. The Plaintiff, John Gentry (Plaintiff), brought this action on behalf of his wife, who was shot in the head when a rifle accidentally went off when its owner slipped. The Defendants were the Douglas Hereford Ranch, Inc (Douglas Hereford Ranch) and Bacon (Bacon) an employee of the ranch (Defendants). Synopsis of Rule of Law. Causation requires proof of proximate cause and cause in fact for liability to attach. Facts. The Plaintiff's wife was shot in the head and died when a hunting rifle was accidentally discharged. The gun went off when Bacon, the guns owner, slipped while ascending the Douglas Hereford Ranch's porch stairs. At trial, Bacon testified that he was unable to say what caused his fall. Douglas Hereford Ranch was not found liable at trial. Issue. Whether Douglas Hereford Ranch's negligence caused the Plaintiff's injury. Held. Douglas Hereford Ranch cannot be liable for the Plaintiff's injury. Discussion. Because there was no way for either the Plaintiff or the Defendants to say whether a condition of the porch stairs caused the fall that lead to the accident, Douglass Hereford Ranch cannot be found liable for the Plaintiff's injury. The evidence does not establish that the condition of the porch step was a cause in fact of the Plaintiff's injury.

108 Kramer Service, Inc. v. Wilkins

Kramer Service, Inc. v. Wilkins
Citation. 186 So. 625 (1939). Brief Fact Summary. The Plaintiff, Wilkins (Plaintiff), received a cut on his forehead due to the negligence of the Defendant, Kramer Service, Inc. (Defendant). The cut did not heal and developed into skin cancer. The Plaintiff seeks damages for the resultant cancer. Synopsis of Rule of Law. In cases where the causal link between negligence and injury is based on subject matter that is beyond the experience and observation of laypersons, expert testimony must be considered to determine whether the link is sufficient to attach liability. Facts. The Plaintiff was injured while staying in the Defendant's hotel as a guest. The injury occurred when the Plaintiff opened a door and a piece of glass fell from a broken transform. The condition of the transform had existed long enough to assume the Defendant had notice of it. The accident resulted in a cut on the Plaintiff's forehead that did not heal and eventually became cancerous. At trial, two medical experts testified. One said there was only a one in one hundred chance that the Plaintiff's original injury would result in cancer and the other said it was impossible. Issue. Whether the jury can consider the expert testimony on whether the Defendant's negligence caused the Plaintiff's cancer. Held. Expert testimony must be considered by the fact finder when deciding if a substantial a link exists between the negligence and the injury when the subject matter is beyond the scope of lay knowledge. Discussion. It is not enough that negligence and injury occur at the same time, there must be a causal link between them. The possibility of an injury occurring as a result of negligence is also not enough of a link. In cases where the subject matter is beyond the experience or observation of laymen, courts must depend on medical testimony to determine whether the causal link has a substantial enough foundation to find liability. The jury must be allowed to consider the expert testimony when deciding whether to award damages for the Plaintiff's cancer in addition to his original injury.

109 Herskovits v. Group Health Cooperative of Puget Sound

Herskovits v. Group Health Cooperative of Puget Sound
Citation. 664 P.2d 474 (1983). Brief Fact Summary. Due to the Defendant, Group Health Cooperative of Puget Sound's (Defendant), failure to promptly diagnose the decedent's lung cancer, the decedents chances of surviving went from 39% to 25%. The Plaintiff in this matter, Edith Herskovits (Plaintiff), is the decedent's estates personal representative. Synopsis of Rule of Law. Even if the total chances of survival are below 50%, a negligent Defendant is liable for the reduced chance of survival directly caused by the negligence. Facts. The Plaintiff is seeking to recover from the Defendant for failing to timely diagnose the decedent's lung cancer. The Defendant's failure to diagnose the decedent's lung cancer on his first visit to the hospital caused his chance of survival to go from a 39% to a 25% chance. Issue. Whether, due to the Defendant's negligence, a decrease in the chances of survival that are already lower than 50% is actionable negligence. Held. A reduced chance of survival, no matter what the percentage, is an actual harm. The Defendant's negligence caused a reduction in the decedent's chances of survival and therefore a causal link is established between the negligence and the harm. Discussion. Once the plaintiff demonstrates that the defendant's negligence caused a decrease in chance of survival, there is sufficient information to determine whether the negligence was a substantial factor in the resultant harm. The court notes that a reduction in the opportunity to recover due to negligence does not mean that the jury must award full damages to the plaintiff's estate, but rather only award damages based on premature death i.e. lost wages.

110 Daubert v. Merrell Dow Pharmaceuticals, Inc.

Daubert v. Merrell Dow Pharmaceuticals, Inc.
Citation. 43 F. 3d 1311 (1995). Brief Fact Summary. The Plaintiffs, Daubert and other minors (Plaintiffs), suffered limb reduction birth defects. They claim the defects were caused when their mothers ingested drugs manufactured by the Defendant, Merrell Dow Pharmaceuticals, Inc. (Defendant), while they were pregnant. Synopsis of Rule of Law. To be admissible, expert scientific testimony that is derived from research done for the purpose of litigation must show that the conclusions were reached after following recognized scientific methods of research. Facts. The minor Plaintiffs were injured when their mothers ingested drugs manufactured by the Defendant. According to the Plaintiffs' experts, the drug manufactured by the Defendant caused the deformities. However, the majority of the scientific field does not agree that the drug causes limb deformities and the Federal Drug Authority (FDA) continues to approve of its use in pregnant women. Issue. Whether the expert testimony offered by the Plaintiffs is admissible. Held. The Plaintiffs' expert testimony is not admissible. Discussion. • When it comes to expert testimony and scientific theory, it is hard for the courts to determine what is a fact and what is a scientific theory admissible in court. • Federal Rule of Evidence 702 (Rule 702) is now the standard for admitting expert scientific testimony. Under Rule 702, there are several factors to consider when determining whether expert testimony is admissible: i. Whether the theory is generally accepted in the scientific community; ii. Whether the theory/method has been subjected to peer review and publication; iii. Whether the theory/method has been tested or can be tested; iv. Whether the potential or known rate of error is acceptable. • It is the court's responsibility to resolve disputes among the respected and credentialed scientists about matters within the scientists' expertise and to reject testimony if it is not obtained by the scientific method.

111 Daubert v. Merrell Dow Pharmaceuticals, Inc. • If expert testimony is shown to be the result of research conducted for the purpose of litigation, the expert must show precisely how they reached their conclusions and point to an objective source to show they followed the scientific method as it is practiced by at least a recognized minority in their field. Because the Plaintiffs' experts cannot do this, the testimony is not admissible. • The Plaintiffs' experts did not conduct their research independent of the litigation and the theories have not been published in scientific journals or reviewed by peers, thought there has been ample time to do so because the theories and litigation has been around for a decade. • Furthermore, under Rule 702, the Plaintiffs must show that the evidence they offer would assist the trier of fact in determining a factual issue. The Plaintiffs cannot show causation directly and attempt to show it through circumstantial evidence provided by their experts. The testimony cannot establish that the defects were not caused by an independent cause, since limb reduction defects occur in the babies of mothers who did not take the drug. The Plaintiffs' experts cannot say that the drug more than doubled their risk of the defect, only that there was a statistical relationship between he drug and the birth defect.

112 Hill v. Edmonds

Hill v. Edmonds
Citation. 270 N.Y.S.2d 1020 (1966). Brief Fact Summary. The Plaintiff Hill, (Plaintiff), was injured when the car he was riding in collided with a tractor left in the road without its lights on. Synopsis of Rule of Law. When two separate acts of negligence produce a single harm, each tortfeasor is wholly responsible for the harm even though his act alone may not have caused it. Facts. The Plaintiff was injured when the car the Plaintiff was riding in hit a tractor truck left parked in the road without its lights on. The driver of the car testified that she saw the tractor ahead of her before the collision and so may have been negligent in causing the accident. At trial the court dismissed the complaint against the owner of the tractor due to the testimony of the car's driver. Issue. Whether two separate tortfeasors can be liable for one injury that could not have resulted without the negligence of both parties. Held. Multiple tortfeasors are each responsible for the entire injury and the complaint against the tractor's owner must be reinstated. Discussion. The accident would not have happened had the tractor's owner not left the tractor in the road without its lights on. Because the harm could not have resulted without the negligence of both the driver of the car and the tractor's owner, they both may be responsible for the injury.

M. one cause was due to the negligence of the Defendant.W. .St. but only one tortfeasor is known. Issue. When the injury is caused by multiple acts of negligence. A forest fire resulted from the negligence of the Defendant.R. Co.W. The jury instructions directed the jury to determine that if they found the fire set by the Defendant's train to be materially or substantially responsible for the Plaintiff's damage. Cook does not work in cases where the other fire is from an unknown source because it leaves the Plaintiff with no possible recovery. 74 N. The Defendant's argued. Minneapolis. The Defendant is still liable for its negligence even though the fire it caused combined with another to result in damage to the Plaintiff's property.R. M. Anderson's (Plaintiff). The fire had two origins. St. 561]. R. A forest fire resulted in the destruction of the Plaintiff. St. P. Co. or in connection with the other fire. Synopsis of Rule of Law. P. & S. St. Minneapolis. either alone. St. However. & S.R. but for the negligence of someone else. Ry. 179 N. Discussion. Co. M. Held.M. & S. Co. then the defendant is liable.. that party is still liable for the injury. based on [Cook v. Minneapolis.St. property. Citation. St. Facts. 45 (1920). the jury should have been instructed that if they found the unknown fire was of more superior force.113 Anderson v. Anderson v. Minneapolis.R. Whether the Defendant's negligence was a substantial or material cause of the damage to Plaintiff's property. (Defendant). & S. The court rejected this argument reasoning that the Cook case makes sense if you have two fires from known origins because the result is joint and several liability. Brief Fact Summary. then the Defendant would not be liable since the fire it was responsible for would not have caused the damage to Plaintiff's property. P. P. the other cause was unknown. R. The fire combined with another of unknown origin and together the fires caused damage to the Plaintiff's property.S.

then it is up to the negligent parties to absolve themselves if they can. Two defendants negligently shot in his direction at the same time. Brief Fact Summary. Held. Both defendants shot in the plaintiff's direction at the same time while trying to shoot a quail. Plaintiff was injured when he was shot in the eye during a hunting expedition. then second tortfeasor can do the same and leave the plaintiff without recovery. Because both of the defendants were negligent and both were wrongdoers. The plaintiff should not be deprived of his recovery from negligent defendants just because he cannot know which defendant actually shot him. Issue.2d 1 (1948). Tice Summers v. Facts.114 Summers v. Tice Citation. then it is their burden to absolve themselves if they can. Whether two tortfeasors can both be liable when the injury can only have been caused by one of them. and one party can only have caused the plaintiff's injury. 199 P. The plaintiff was shot in the eye during a hunting trip. Synopsis of Rule of Law. When there is negligence by multiple parties. If the rule were that the plaintiff must choose one or the other tortfeasor and that tortfeasor escaped liability by pointing to the second tortfeasor. It is up to the tortfeasors to prove they were not responsible for the injury. since both were negligent towards the plaintiff. The plaintiff's injury was caused by one shot. Discussion. .

Issue. First. so holding all of the manufacturers responsible becomes impractical. each manufacturer's liability will depend on the share it had in the market for the drug unless that defendant can show that it could not have made the product that Plaintiff's mother ingested. As a result of receiving the drug in-utero. Second. Synopsis of Rule of Law. 607 P. Sindell (Plaintiff). developed cancer as a result of a drug her mother took while pregnant. each manufacturer is liable for an equivalent portion of the injury as to its share of the defective drug it manufactured. the Plaintiff was innocent of any wrongdoing and has no way of knowing which of the drug manufactures caused her injury. In certain circumstances where the plaintiff is unable to identity the actual tortfeasor and it is unjust to preclude them from recovery. • This case is unlike others in which the plaintiff is unaware of the identity of the tortfeasor. Held. Facts. Second. The Plaintiff is unable to identify which company produced the actual drug her mother took. five drug companies (Defendants) and by about 195 other companies not named in the suit.115 Sindell v. the majority of which are not named defendants. • There are strong policy reasons for fashioning liability to the Defendants. The Defendants together produced 90% of the drug. . the industry responsible for the production of this drug is large.2d 924 (1980). Whether the Defendants are liable for the Plaintiff's cancer. The Plaintiff's mother took synthetic estrogen while pregnant with the Plaintiff. Brief Fact Summary. Abbott Laboratories Citation. • If the Plaintiff joins a substantial share of the manufactures into the lawsuit. First. the manufactures are in a better position to bear the cost of such harm and they are in the best position to discover and guard against future harm. the Plaintiff developed cancer as an adult. then the group responsible for the overall harm can be held liable. The Defendants are liable for the injury to Plaintiff. In this way. the manufacturers of such drugs should be culpable for producing a drug that has harmful effects to future generations. the chances of the actual tortfeasor escaping liability is greatly reduced. Abbott Laboratories Sindell v. there is a large number of possible tortfeasors. The drug was manufactured by the Defendants. To determine damages. Third. The Plaintiff. Discussion.

116 CHAPTER VI. Proximate Or Legal Cause .

a tortfeasor could theoretically claim the injury would not have happened if the plaintiff had not been born at all. To limit a potentially limitless chain of causes. To limit a potentially limitless chain of causes. Daniels Atlantic Coast Line R. Facts. N/A Held. v. Synopsis of Rule of Law. Discussion. we must look to the proximate cause of the injury and draw arbitrary lines to limit liability. Brief Fact Summary. Daniels Citation. 203 (1911). Otherwise. CO. None provided. we must look to the proximate cause of the injury and draw arbitrary lines to limit liability. CO.E. Questions of cause and effect create potentially limitless liability so courts must draw a line to sever the liability of a tortfeasor at a reasonable place in a chain of events. v. 70 S. .117 Atlantic Coast Line R. N/A Issue.

Co.'s (Defendant) negligence. The spread of the fire was a remote result and not a foreseeable consequence to the burning of one building. 49 (1866). The building that catches fire due to the Defendant's negligence. New York Central R. destroying it and several other properties. Discussion. Parties are not liable for the remote results of their negligence.R. Co. Ryan v. Several other properties were also destroyed and valiant efforts were made to save the homes. . Brief Fact Summary.R. New York Central R. Due to the Defendant. Held. Co. Whether the spread of the fire to the Plaintiff's home is a proximate or remote result of the Defendant's negligence. is a foreseeable consequence. the burning of the Plaintiff's property is a remote result of the Defendant's negligence and liability does not attach. Ryan's (Plaintiff) home. The fire spread and consumed the Plaintiff's property. Circumstances such as the degree of heat. Issue. Synopsis of Rule of Law.118 Ryan v.R.Dec. Therefore. New York Central R. A woodshed on the Defendant's property caught on fire from one of the Defendant's rail engines. Citation. But the spread of the fire to other properties is not necessarily a proximate result since that result depends on several accidental occurrences. 91 Am. a fire started in a populated area and spread to the Plaintiff. only the proximate consequences. None of these circumstances are under the control of the Defendant. Facts. the weather and the materials used to construct the adjoining properties are all contributors to the result.

the incapacity resulted in aggravating a pre-existing paranoid schizophrenic condition. Brief Fact Summary. Although the plaintiff's initial injuries were relatively minor. The plaintiff suffered whiplash and other injuries as a result of a car crash. Discussion. The defendant is liable for aggravating the plaintiff's pre-existing psychological condition. Whether the defendant is liable for the schizophrenic condition of the plaintiff. whiplash and lower back pain. Jeckovich Bartolone v. which has completely debilitated the plaintiff's life. The plaintiff must demonstrate a predisposition to the resultant psychological illness and in this case he did.119 Bartolone v. His injuries aggravated a pre-existing schizophrenic condition. Synopsis of Rule of Law. 103 A. The defendant must take the plaintiff as they find him. Held. Facts. The plaintiff was injured as a result of a four-car pileup caused by the defendant's negligence. The defendant must take the plaintiff as he finds him and maybe liable fore aggravating pre-existing illnesses. The evidence demonstrates that the plaintiff lead a normal active life before suffering minor physical injuries in the car accident.D. Expert medical testimony explained how the injuries lead the plaintiff to exhibit schizophrenic behaviors. Jeckovich Citation.2d 632 (1984). . Issue.

The case was referred to arbitration and the arbitrators found that the fire was caused when the wooden plank hit metal and caused a spark. The exact way in which damage or injury results need not be foreseen for liability to attach. Withy & Co. While unloading the cargo in Casablanca. Facts. Discussion.B. petrol to Casablanca. a wooden plank fell causing a spark to ignite the petrol the ship carried. In re Arbitration Between Polemis and Furness. Brief Fact Summary. That damage that might result when a wooden plank falls while discharging cargo is a foreseeable consequence of the negligence. among other things. The owners of a vessel chartered its use to the Appellants for the purposes of carrying. Ltd. the fire was a direct result of the negligent act and therefore the charterers are liable for the fire. The actual anticipations of the negligent party are irrelevant when considering whether the resulting damage is remote.. The fire was a foreseeable consequence of the negligence. In this case. 3 K. the fact that the negligent act caused the result is enough. The charterers responded that the fire was a remote consequence of their actions. charging the chatterers with negligence. Held. The fire completely destroyed the vessel. 560 (1921). The finding that the spark was too remote to confer liability on the charterers was based on the contention of the charterers that the fire was an unforeseen consequence of the falling wooden plank. The owners sought review. whatever that damage might be. The owners. Ltd. The resulting fire destroyed the ship. not the damage done by the fire.. Synopsis of Rule of Law. Withy & Co. The arbitrators agreed with the charterers that the spark was an unforeseen consequence of the original negligence and therefore the destruction of the vessel was a remote consequence. Citation. a wooden plank fell into the hold containing the petrol and caused an explosion. claimed the value of the vessel from the charterers. so they are not responsible. Whether the charterer's negligence was a proximate cause of the fire. . While discharging cargo from a ship. The only damage the charterers should be liable for is the approximate damage done to the vessel by the falling wooden plank.120 In re Arbitration Between Polemis and Furness. Issue.

(Plaintiff). The natural consequences rule leads to instances where a negligent party is liable for both the direct trivial foreseeable damage and all unforeseeable and grave consequences too. The defendants negligently caused oil to spill into the Port of Sydney and do minimal damage to the plaintiff's wharf. Morts Dock & Engineering Co. Issue.. operated a dock in the Port of Sydney. Facts. Synopsis of Rule of Law. she discharged furnace oil into the bay causing minor injury to the Plaintiff's property. The Defendants were the owners of the vessel Wagon Mound (Defendants). The fire seriously damaged the wharf and two ships docked there. The Plaintiff. "Wagon Mound No. though a direct result of the defendant's negligence. The Defendant is liable for the fire if the injury by fire is a foreseeable consequence of their negligence. Whether the fire that destroyed the Plaintiff's wharf was a foreseeable consequence of the Defendant's negligence. "Wagon Mound No. In some cases. Morts Dock & Engineering Co. Wagon Mound was moored 600 feet from the Plaintiff's wharf when. This takes the law beyond the principle that a man should be liable for the probable consequences of his actions. . The natural consequences rule is overruled and reasonable foreseeability test is adopted. when they are in fact not foreseeable.. Morts Dock & Engineering Co. Ltd. Held. the negligent actor is held responsible for results that might be natural or probable and are therefore deemed to be foreseeable to the reasonable man. 1" Citation.121 Overseas Tankship v. The injury to Plaintiff's property.. The oil subsequently caused a fire when molten metal dropped into the water and ignited cotton waste floating in the port. 1961. the oil was ignited when molten metal dropped from the wharf and came into contact with cotton waste floating on the water's surface. due the Defendant's negligence. Privy Council. was an unforeseeable consequence and liability does not attach. Discussion. 1" Overseas Tankship v. The prior rule has led to much confusion and inconsistent results in the law. Ltd. Brief Fact Summary. However. Ltd.

the oil was then ignited when molten metal dropped from the wharf and came into contact with cotton waste floating on the water's surface. but would have only a very low probability. Discussion. Synopsis of Rule of Law. Brief Fact Summary. "Wagon Mound No. The plaintiffs are owners of ships docked at the wharf. Issue. V. If a reasonable man can foresee and prevent the risk. Whether the fire. even if the risk was a remote possibility. The fire destroyed the ships. V. "Wagon Mound No. Based on the trial court's findings.122 Overseas Tankship Ltd. The defendants are the owners of the vessel Wagon Mound. Miller Steamship Co. . Miller Steamship Co. was reasonably foreseeable to the extent liability attaches. 2" Citation. Held. the defendants bore a duty to prevent the risk. However. 2" Overseas Tankship Ltd. Due to the defendant's negligence. The oil subsequently caused a fire when molten metal dropped into the water and ignited cotton waste floating in the port. However. The fire that resulted seriously damaged the wharf and two of the plaintiff's ships. even if the consequences are remote. then he is liable for the foreseeable damages. because the risk of fire was foreseeable. Privy Council 1966. Facts. which was found to be foreseeable to the reasonable man. A fire could only result under exceptional circumstances. If a party did nothing to prevent the injury. he is liable for the foreseeable consequences of his actions. This spill did minimal damage to the plaintiff's ships. The defendants negligently caused oil to spill into the Port of Sydney. which was moored 600 feet from a wharf. it is true that the Wagon Mound's operators would have foreseen that oil spilling into the harbor had a possibility of causing a fire. furnace oil was discharged into the bay causing minor injury to the plaintiff's ships.

Held. The dissent points out that limiting the legal duty owed by the Defendant to just the man entering the train and not the other passengers is too narrow. the guard could not have expected the harm to carry a risk to people standing several feet away on the platform. Long Island R. Co. but at the proximate cause of the injury to the Plaintiff. 99 (1928)/. but to another. Ms. Dissent. The "orbit" of the duty here is the "orbit" of foreseeability. on the other had. Discussion. Co. and could not have known the nature of the contents of the package. 162 N. the party responsible for the act is liable for all of the proximate consequences. Facts.R. A negligent party only owes a duty to the party who was directly wronged by them. by dislodging the package from the man's arms.E. The defendant's guard was negligent when he dislodged the package from the man carrying the fireworks. If an unreasonable risk is taken. Synopsis of Rule of Law. (Defendant).123 Palsgraph v. The plaintiff cannot predicate her injury upon the wrong done to someone else. When the Defendant's guard attempted to assist the man with the package onto the train. The harm to the Plaintiff was the unforeseeable result of harm caused to another person. The man carrying the package dropped the fireworks when he was assisted onto a moving train by one of the train guards. was several feet away and there was no warning that the guard's action could harm a person standing on the opposite side of the rail platform. even if they are outside of the "orbit" of danger. Brief Fact Summary.R. While waiting on the platform of the Defendant's train station for her train to arrive. Whether the Defendant's negligence was a proximate cause of the Plaintiff's injury. The guard's actions did not violate a right or an interest of the Plaintiff's and so the Defendant owes no duty to the Plaintiff because the wrong was not done to her. the Long Island R. the guard committed an act of harm on the man. The Plaintiff.R. The scales fell when a large explosion occurred. Issue. The fireworks caused an explosion and the force of the explosion caused a scale at the other end of the station to fall on the Plaintiff. Long Island R. Furthermore. Palsgraph v. A railway guard employed by the Defendant. Citation. If an act unreasonably threatens the safety of others. Co. caused a man to drop a package of fireworks upon the tracks. the Plaintiff was struck and injured when the station's large scales fell on her. Some wrongs are to the public at large because due care is a duty imposed on all of society to protect each other from unnecessary danger. who was several feet away from the initial injury. The duty . The theory of negligence posed by the dissent looks not at the duty. The explosion was the result of a package of fireworks hitting the rails. Palsgraph (Plaintiff) and injure her. It was not foreseeable that this act could cause injury to the Plaintiff. The guard owed no duty of care to the people on the platform generally. then its consequences are not confined to individuals.

. the Defendant owed is defined by the risk reasonably perceived.R. Long Island R. Co.124 Palsgraph v. The reasonable person would not perceive that the risk created by dislodging a package while attempting to help a passenger onto a train would carry with it a duty to persons several feet away.

which is usually reserved for the trier of fact. The spare tire created circumstances upon which the subsequent intervening negligence occurred. A car struck the plaintiff's father when he attempted to retrieve a spare tire and support brackets from the highway after they had fallen off. Whether the decedent's conduct was reasonably foreseeable or if it was so out of the ordinary that it broke the chain of causation. which is an unforeseeable or extraordinary event. Dissent. • The manufacture of the spare tire holder is also not responsible for the decedent's injuries. • Proximate cause is any cause that in the continuous sequence. the court can decide the issue of proximate cause. Chang got out and crossed the highway to retrieve the tire and other parts of the support bracket.125 Yun v. • As a matter of public policy. The decedent's actions where senseless and liability for his injuries should not attach. The facts show that the plaintiff and Chang had the opportunity to fix the holder thirty days before the accident occurred. breaks the chain of causation. Discussion. An intervening cause. • The defect in the spare tire did not cause Chang's injuries. In cases where reasonable persons may differ the issue should go to the jury. Facts. On his way back to the van Chang was hit by a car and killed. Synopsis of Rule of Law. when the injury is so . but there was no proximate cause between the defect in the product and the injury. Held. Issue. A jury might find that it was reasonably foreseeable that the tire would dislodge and fall onto the roadway while the van was in operation and that someone might try to retrieve those parts. The plaintiff and her father Chang. Citation. who was a passenger.2d 841 (1994). The issues of proximate cause and intervening cause should be left to the jury for factual determination. Ford Motor Co. Ford Motor Co. the injury occurred after he recklessly crossed the highway. Yun v. stopped the van when they heard the tire come off. The plaintiff was driving her van when the spare tire came loose from its holding and came off of the van. produces the resultant injury and without which injury would not have occurred. unbroken by an intervening cause. 647 A. Brief Fact Summary.

This is such a case as the harm caused to the plaintiff is so unexpected. extraordinary that it cannot be an expected result.126 Yun v. Ford Motor Co. .

normal and foreseeable risk created by the Defendant's failure to protect the site.E. Held. worksite and hit the Plaintiff. The accident occurred when the driver of an automobile traveling down the street where Plaintiff was working suffered an epileptic seizure and hit the Plaintiff causing him to fly through the air. After suffering an epileptic seizure. 414 N. Felix Contracting Corp.'s (Defendant). Synopsis of Rule of Law. Felix Contracting Corp. When the Plaintiff landed. The Defendant was negligent in not properly protecting the worksite where the Plaintiff was working. The Plaintiff became engulfed in flames. The liability survives if the intervening act is a normal or foreseeable consequence of the circumstances created by the defendant's negligence. Derdiarian (Plaintiff). the driver of a car crashed into the Defendant. . Felix Contracting Corp. Intervening acts of a third person do not automatically sever liability between the plaintiff and the defendant. It is a naturally foreseeable consequence that a car might enter the worksite and injure a worker. Citation. Facts. Derdiarian v. The injury to the Plaintiff is a foreseeable consequence of the negligence of the defendant. The Plaintiff was severely burned while working as a subcontractor on street repairs. The precise nature of the injury need not be foreseeable. Discussion. liquid enamel was splattered on his face and body. Brief Fact Summary. Issue. Whether the intervening act of the car accident severs the Defendant contractor's liability. who was severely burned by liquid enamel as a result. The fact that a car could enter the unprotected worksite is a natural.127 Derdiarian v.2d 666 (1981).

or the proximate cause of the Plaintiff's injury.R. Whether the intervening act of the third party was a contributing cause. Citation. However. • If the act of the third party was intentional and done with the purpose of lighting the gasoline. There was conflicting testimony at trial over whether the third party started the fire while lighting a cigar. • If the third party inadvertently lit the match. Kentucky & Indiana Bridge & R. The Plaintiff. Kentucky & Indiana Bridge & R. which injured the Plaintiff. Brief Fact Summary. Co. or whether he dropped the match with the intention of igniting the gas. Facts. the Defendant had no way to guard against it. Synopsis of Rule of Law. A third party struck a match igniting the gasoline vapor and causing the explosion. (Defendant). Because such an act is not reasonably foreseeable. Discussion.W. The gasoline vapor was the result of the derailing of a rail car owned by the Defendant. Watson (Plaintiff).128 Watson v. Kentucky & Indiana Bridge & R. if the intervening act is so unexpected or extraordinary that the primary tortfeasor could not and ought not to have anticipated it.R. 146 (1910). A foreseeable intervening act severs liability only if it is so unexpected or extraordinary that the defendant could not and ought not to have anticipated it. In this instance the explosion could not have occurred without the gasoline first having been spilled. Issue. then liability is severed. Co. then the negligence of the Defendant is a proximate cause of the Plaintiff's injury because it is reasonably foreseeable that someone might light a cigar on the street. 126 S. If an intervening act is merely unforeseeable it does not sever the liability of the primary negligent party. The Defendant railroad's tank car filled with gasoline derailed and spilled its contents into the street where the Plaintiff was a bystander. Co. then the Defendant is not liable because the Defendant could not have foreseen that someone would maliciously light a match with the purpose of causing an explosion. Watson v.R. Held. . was injured when a third party lit a match and ignited gasoline vapor causing an explosion.

An act of suicide does not preclude liability on the tortfeasor. Brief Fact Summary. Facts. Synopsis of Rule of Law.E. Dr. Held. was in good health physically and mentally before he suffered head injuries as a result of a collision with the defendant. After the collision.129 Fuller v. To be held liable. Eventually Dr. 322 N. the decedent suffered head injuries causing multiple serious epileptic seizures. Whether the decedent's suicide was an irresistible impulse caused by injuries he suffered due to the defendant's negligence. it is not a superseding cause. Lewis took is own life. The decedent. Preis Citation. then the defendant may be liable for the suicide even though suicide is an intentional act. Lewis. Issue. An intentional intervening act like suicide does not sever the causal relationship with the primary tortfeasor. the decedent suffered epileptic seizures and unconsciousness. After several months he committed suicide. If the act of suicide is a foreseeable result of the defendant's negligence. the evidence must show that the decedent was incapable of resisting an impulse to destroy themselves due to the negligent act. Preis Fuller v. Discussion.2d 263 (1974). when it is shown that the decedent was incapable of resisting the impulse to kill themselves as a result of the tortfeasor. . Following a collision with the defendant.

The defendant acted negligently towards the person rescued and the negligence caused the danger to the rescuer. Synopsis of Rule of Law. • The rescue doctrine requires that: i. Issue. He was then struck from behind by a passing car. The Plaintiff was struck by a car while offering assistance at the scene of a car accident. American Suzuki Motor Corp. The rescue doctrine may apply in products liability cases. • The rescue doctrine allows an injured rescuer to sue the party that caused the danger. Citation. Discussion. The Plaintiff. Whether the rescue doctrine protects the Defendant from claims brought under a theory of products liability.2d 952 (1998). . The rescuer acted with reasonable care. The Plaintiff sued various Defendants including the driver and the passenger of the Suzuki. Brief Fact Summary. is subject to the rescue doctrine. The Plaintiff was following behind the driver of a Suzuki motor vehicle when it crashed. The state trooper had pulled away and left the scene when the hit and run occurred. the State for the negligence of the trooper and American Suzuki Motor Company along with its parent Suzuki Motor Company (Defendants). like any other tort. American Suzuki Motor Corp. the Plaintiff headed back to his car along the shoulder of the road carrying a lit flare in his roadside hand. The danger was imminent. The tortfeasor owes a duty to the rescuer that is similar to the duty they owed to the party injured in the first place. which the Plaintiff did. A state trooper arrived at the scene soon after and asked the Plaintiff to put flares on the road. McCoy v. Products liability. ii. After the accident scene and the injured parties were removed. Facts. A reasonably prudent person would have concluded that the danger existed and iv. The doctrine also negates the presumption that the rescuer assumes risk of injury when undertaking a dangerous rescue as long as the rescuer does not act recklessly. iii. McCoy (Plaintiff). 961 P. Held.130 McCoy v. was injured when he was attempting to help at an accident sight and was hit by a car.

Therefore.131 McCoy v. • It is a possibility that Suzuki's negligence caused the Defendant driver's accident and therefore they should not be protected from liability to the Plaintiff. American Suzuki Motor Corp. . for the rescuer to show causation. There is no reason that this policy should not apply to situations where a manufacturer causes the danger. they only need to show that the defendant proximately caused the danger and that they were injured as a result of their actions as rescuer. • In this case. the court found that the Plaintiff met the requirements to achieve rescuer status. • The rescuer doctrine was developed for public policy reasons because rescuers should be anticipated and should not be barred from bringing suit.

who was seriously injured.132 Kelly v. Facts. • Tortfeasors are generally held liable for injuries that occur in the ordinary course of events from their negligence if the negligence was a substantial factor in bringing about the injuries. The appellate court affirmed. liable for injuries inflicted on a third party when the injuries are a result of negligence and the negligence is caused by the intoxication? Held. Is a host who serves liquor to a guest. This type of liability imposition is best left up to the legislature.2d 1219 (1984). A reasonable person in Zak's position could foresee that unless he stopped providing Gwinnell with alcoholic beverages. The trial court granted Zak's motion for summary judgment. Gwinnell was involved in a head on collision with Kelly on his way home. ruling as a matter of law that a host is not liable for the negligence of an adult social guest who has become intoxicated at the guest's house. The trial court granted Zak's motion for summary judgment. Gwinnell was likely to injure someone while operating his car. Synopsis of Rule of Law. average social hosts have less knowledge in determining levels of intoxication. Brief Fact Summary. Zak provided Gwinnell with alcoholic beverages and then allowed him to drive home. Dissent. where he chatted with him and watched him drive off. Gwinnell was involved in a head on collision with the Plaintiff. Plaintiff sued the Defendants. this Court believes that the just compensation of drunk driving victims along with its deterrent effect outweigh the opposing policy considerations. 96 N. Social hosts who allow guests to become intoxicated and then drive. don't always serve guests directly. 538. Zak provided his guest with liquor.J. Unlike commercial licensees who serve alcoholic beverages. 476 A. Although imposing a duty may interfere with accepted standards of social behavior. Zak walked Gwinnell to his car. Gwinnell Kelly v. knowing that the guest is intoxicated and will be operating a motor vehicle. Gwinnell Citation. where Gwinell consumed alcoholic beverages. Viewing the facts most favorably for the plaintiff (in light of the summary judgment motion) it is reasonable to conclude that Zak continued to serve Gwinnell after he was becoming visibly drunk. Two of the Defendants were Zak and Gwinell (Defendants). knowing the guest would be driving later. and . On his way home. Gwinnell drove Zak to Zak's home. Yes. Kelly (Plaintiff). Judgment reversed and remanded. Kelly sued Gwinnell and Zak for negligence. may be liable for injuries caused by the guest's negligent drunk driving. Issue. • The remaining question is if this Court should impose a duty to prevent such a risk.

133 Kelly v. Discussion. Gwinnell have no insurance to spread the cost of liability. The majority's decision to impose a duty on social hosts was based both on fairness and policy considerations. Additionally. it is not clear from the majority's decision to what length a host must go to prevent an intoxicated guest from driving. .

Instead of the usual tolling of the statute of limitations for exposure to toxic substances when the exposure occurs. Previous cases have determined that causes of action do not lie in favor of children for injuries suffered as a result of a preconception tort committed against the mother [Albala v. the legislature has allowed for liability to be imposed upon DES manufacturers in proportion to their share of the national DES market when plaintiffs find it impossible to identify the manufacturer of the drug that caused her injuries. 568 N.S.Y. New York. which was damaged due to in utero exposure to DES. Enright v.E. Brief Fact Summary.2d 298. 54 N. This premature birth was allegedly the result of damage to Patricia Enright's mother's reproductive system. the legislature has removed legal barriers to tort recovery.2d 786]. Additionally.Y. • In the present case. 77 N. Synopsis of Rule of Law. Plaintiff's grandmother gave birth to Patricia Enright. Can a plaintiff recover under a strict liability theory for injuries sustained during birth that were the result of abnormalities in her mother's reproductive system caused by the mother's in utero exposure to DES? Held.2d 269. The appellate court affirmed the dismissal of the negligence.Y.E. Judgment reversed. Causes of action are not recognized for children who have injuries which were caused by a preconception tort committed against the mother. This Court does not believe that the public interest in providing a remedy for those injured by DES is stronger than the public interest in providing remedies for those injured by other means. The Plaintiff. 429 N. for damage done to her because of a premature birth. the Court is asked to recognize a cause of action not available in other contexts simply because this is a DES case. who suffers from cerebral palsy and other disabilities attributed to her premature birth.1991). sued the Defendants.2d 550 (N.Y. Eli Lilly & Co. the legislature changed the law to allow the limitations period to begin to run upon discovery of the injury. Plaintiff's claims were dismissed by the trial court. Plaintiff's grandmother took a prescription pill called DES intended to prevent miscarriage during pregnancy. Patricia Enright on behalf of Karen Enright an infant (Plaintiff). • Due to the widespread tragic effects of DES. but reinstated the strict liability count. who alleges she developed abnormalities of her reproductive system due to exposure to DES. . Citation. and fraud causes of action.2d 377.134 Enright v. Facts. Eli Lilly & Co.App. 570 N. No. various manufacturers of DES (Defendants). breach of warranty. Issue. These abnormalities allegedly resulted in the premature birth of Plaintiff.

• Plaintiff also argues that previous decisions involved negligence cases and that a different result might be obtained under a strict products liability theory. Eli Lilly & Co. More importantly. While a reasonable person could foresee that injuries would occur to those directly exposed to DES.135 Enright v. these causes of action could not be confined without drawing artificial boundaries. . Discussion. it is more difficult to foresee that injuries would occur to multiple later generations. Part of the reasoning for not allowing tort actions through multiple generations is the issue of foreseeability. This Court finds that public policy considerations counsel against allowing such causes of action. as the effects of DES exposure may extend for generations. such extensive liability might hinder the creation and availability of important prescription drugs. First.

J o i n t .136 C H A P T E R V I I .

All parties engaged in automobile racing on the highway are "wrongdoers acting in concert. Discussion. but lost control and careened into Plaintiffs' car. The evidence showed that Bierczynski and Race came down a hill side by side-by-side at twice the legal limit when they approached Plaintiffs' car. The defendant Bierczynski appealed the verdict. automobile racing constitutes a negligent act because a reasonably prudent person would not engage in such conduct. Rogers Bierczynski v. Brief Fact Summary. Susan Rogers sued both Bierczynski and Race under a negligence theory. and his car never came into contact with the Plaintiff's vehicle." Each participant is liable for injuries caused because he has induced and encouraged the tort. with each participant being liable for any injuries to non-participants. The jury found that Race and Bierczynski were each negligent and that the negligence of each was a proximate cause of the accident.2d 218 (Del. 239 A. for a car accident caused by a high speed race Bierczynski and Race were involved in.137 Bierczynski v. regardless of which of the individuals directly caused the injury. Issue.1968). When two or more individuals are wrongdoers acting in concert and their actions injure a third party. The Plaintiffs. Cecil and Susan Rogers (Plaintiffs). Because both Defendants are at fault and they have concert of action. Bierczynski appealed based on the fact that he was not involved in the accident. • In many states. Synopsis of Rule of Law. Facts. Bierczynski is negligent even though his car did not come into contact with the Plaintiffs. Although Delaware has no such statute. Judgment affirmed. Bierczynski and Race were involved in an automobile race. Race tried to get his car back into the eastbound lane. This Court holds that participation in a motor vehicle race on a public highway is an act of concurrent negligence. Race crashed his car into a vehicle driven by Cecil and Susan Rogers. Race and Bierczynski (Defendants). the violation of statutes prohibiting automobile racing is negligence per se. Yes. all may be liable for concurrent negligence. Bierczynski remained in the proper lane at all times. Rogers Citation. The jury found both liable. Can a participant in a street race be found liable for negligence when his vehicle did not come into contact with the injured non-participant? Held. brought a negligence action against the Defendants. . Race joined with Plaintiffs in upholding the judgment below.

There are several reasons for this approach. • Joint and several liability holds each tortfeasor responsible for the Plaintiff's entire injury. or only one of his tortfeasors for the full amount of damages.Dec. 97 Ill. The ability to apportion fault on a comparable basis does not cause an indivisible injury to become divisible.2d 104.G.138 Coney v.L. he would be forced to bear a portion of the loss if one of the tortfeasors is unable to pay his share of damages. Facts. Contributory negligence bans recovery . J. • Most jurisdictions have retained joint and several liability with the adoption of comparative negligence. Issue. Only the defendant's action is tortuous. Citation. Inc. Discussion.L. Inc. some. 73 Ill. Defendant claims that the deceased committed contributory negligence. Industries. The action was based on strict products liability.G. Joint and several liability allows a plaintiff to pursue all. A wrongful death action was brought by the Plaintiff. 454 N. Joint and several liability is still applicable when contributory negligence is replaced by comparative negligence. Judgment affirmed and remanded with directions.G. When a plaintiff is not guilty of any negligence. Synopsis of Rule of Law. Coney v. Industries. Defendant argues that joint and several liability was a corollary to contributory negligence and is no longer necessary with the adoption of comparative negligence.E. his negligence relates only to a lack of due care for his own safety in comparison to the defendant's lack of due care for the safety of others. the deceased's employer was also negligent and that the adoption of comparative negligence should eliminate joint and several liability. 337 (1983). Coney on behalf of Clifford Jasper (Plaintiff). Finally.L. Jasper died operating a hydraulic aerial work platform manufactured by the Defendant. J. Does the doctrine of comparative negligence or fault eliminate joint and several liability? Held. No. J. Based on these observations. Defendant argued that Jasper had committed contributory negligence and that his employer had also contributed to Plaintiff's injuries through negligence. A wrongful death action based on strict products liability was brought against the Defendant. Industries (Defendant). When a plaintiff is partially negligent. elimination of joint and several liability would have a deleterious effect on the ability of a plaintiff to obtain adequate compensation. Brief Fact Summary.2d 197. the Court concludes that comparative fault does not eliminate joint and several liability.

Inc. Industries. while comparative negligence only reduces the plaintiff's recovery by his own percentage of negligence.139 Coney v. J.L. .G. for a plaintiff if he is at all at fault for the injuries he sustains.

2d 794 (N.1982). The appellate court granted Defendant's application for an interlocutory appeal. Citation.000. then turned into and pulled out of a service station in a quick motion. Brief Fact Summary.000 and that Defendant's negligence contributed to the damages to the extent of 30%. The jury. • The first ground is the concept that a plaintiff's injury is "indivisible" in the sense that there was. App. Inc. joint and several liability is not applicable to force one concurrent tortfeasor to pay the entire amount of damages. Defendant applied for an interlocutory appeal.M. but one wrong and each defendant's negligence is a proximate cause of the entire indivisible injury. No. Plaintiff moved that the full judgment should be entered against Defendant. The driver of the lead car was unknown. neither of which is defensible. 336. Plaintiff moved that judgment be entered in their favor for $100. Plaintiff sued Defendant on a negligence theory and Defendant claimed that the negligence of the lead car caused or contributed to the damage. • The second ground is that joint and several liability must be retained because a plaintiff should not be forced to bear the risk of being unable to collect his judgment. This retention rests on two grounds. Inc. Under New Mexico comparative negligence law. Jean Bartlett (Plaintiff). The Plaintiff. sued the Defendant. (Defendant). . Synopsis of Rule of Law. New Mexico Welding Supply. Judgment reversed. In a New Mexico comparative negligence case. The Court points out that when only one defendant is involved. The lead car signaled a right turn. Facts. This case revolves around an automobile accident involving three vehicles. with another unknown driver being 70% responsible. Issue. is a concurrent tortfeasor liable for the entire damage caused by concurrent tortfeasors under a joint and several liability theory? Held. This court finds that this theory is obsolete and based merely on common law technicalities. Defendant applied his brakes. Case remanded with instructions to enter judgment against Defendant for 30% of Plaintiff's damages. New Mexico Welding Supply. Inc. the plaintiff bears the risk of this defendant being insolvent. for damages that occurred during a car accident.M. • The retention of joint and several liability for concurrent tortfeasors has been retained in most pure negligence states.140 Bartlett v. in response to special questions. new Mexico Welding Supply. The jury found that Defendant was 30% responsible for the damages. 98 N. The trial court denied the motion and ordered a new trial. 648 P. Bartlett v. but skidded into Plaintiff's car. The Defendant's truck was behind Plaintiff. determined that Plaintiff's damages were $100. Plaintiff slammed on her brakes to avoid hitting the lead car.

New Mexico Welding Supply. In jurisdictions that retain joint and several liability. Discussion. Therefore. there is no reason to shift the risk when multiple defendants are involved.141 Bartlett v. This case represents a different approach to determining damages in a comparative negligence case involving multiple tortfeasors. Inc. defendants that pay more than their fair portion may recover from other joint tortfeasors on either a pro-rata or comparative-fault basis. .

Discussion. Defendants moved to amend their answers to add the defense of discharge and satisfaction because Plaintiffs recovered a judgment for the same injuries against the State of New York.142 Bundt v. The defense of discharge and satisfaction prevents double recovery from a single injury. Issue. The defense of discharge and satisfaction provides that multiple judgments cannot be satisfied against multiple defendants for the same tort. While states are immune as sovereign at common law. The Plaintiffs. the defense of discharge and satisfaction is applicable. • Joint and several liability allows for one who has been injured by the joint wrong of several parties to recover against any or all of the parties.2d 872 (1965). This is based on the fact that the consequences of the wrongful act are indivisible. limiting injured individuals to a single satisfaction. The Defendants were the drivers of the two cars and a contractor repairing the highway obstructing a stop sign (Defendants). A New York Act provides that by waiving sovereign immunity. states are free to waive this immunity and grant courts jurisdiction to determine claims against it. This case involves an action by five plaintiffs. while there may be several suits and recoveries. Embro Bundt v. Is the defense of discharge and satisfaction applicable to prevent multiple judgments from being satisfied against different tortfeasors when one judgment has already been satisfied? Held. Actions were brought against the drivers. the state is in the same position as a private individual. brought a negligence action against Defendants for an automobile accident. • This court does not agree with Plaintiff's argument that this rule is not applicable to a Court of Claims judgment. if the state and the Defendants are joint tortfeasors and the judgment has been satisfied by the state. there can only be one satisfaction.S. Yes.2d 802. Defendants moved to amend their answers to add the defense of discharge and satisfaction because Plaintiffs recovered a judgment against the state for the same injuries. However. Leave to amend granted to Defendants. N. as well as a contractor repairing the highway who negligently obstructed a stop sign. Synopsis of Rule of Law. Brief Fact Summary. Facts.Y. Therefore. five passengers injured in a two car accident (Plaintiffs). who were passengers in one of two automobiles that collided. Embro Citation. 48 Misc. .

500 in consideration of plaintiffs' execution of a Covenant Not to Proceed with Suit. (Defendant) for injuries sustained when Mrs. Cox fell on property owned by Defendant. the defendant has a counterclaim for breach of covenant. regardless of the wording of the covenant? Held. 143 Colo. 450 P. Citation. The trial court found in favor of the Defendant on a summary judgment motion based on the covenant not to sue. Pearl Investment Co. Pearl Investment Company. had previously paid Plaintiffs $2. Does a covenant not to sue release all other tortfeasors who may have liability. Cox fell on property owned by the Defendant. the manifest intent of the parties to a contract should be given effect. 264. Fox (Plaintiffs) sued the Defendant. The Plaintiffs. Under a covenant not to sue the right to sue is retained. but expressly reserves the right to sue others should not be treated otherwise. At trial. Plaintiffs sought recover for injuries sustained when Mrs. Facts. Discussion. No.2d 90] covenant's not to sue were rigidly ruled to bar suit against all tortfeasors regardless of the wording of the covenant. The court will look to the intent of the parties to the contract when determining if a covenant not to sue releases all tortfeasors who may have liability. • Under traditional contract law. but there is an agreement not to enforce it. 67. If the plaintiff sues. A covenant that releases one party from suit. Judgment reversed and cause remanded. it was shown that the tenant of the property had paid the Plaintiffs in exchange for a covenant not to sue. .143 Cox v.2d 60 (1969). Issue. The trial court found in favor of Defendant on a motion for summary judgment based on the common law rule that the release of one tortfeasor releases all others who may have liability. Brief Fact Summary. Goodwill Industries. Under previous Colorado case law [Price v. it was shown that the tenant. Baker. Cox v. The danger of double compensation should not be an excuse for barring claims against joint tortfeasors. This Court determines that this rule is harsh and illogical. Mr. Pearl Investment Co. 352 P. and Mrs. depriving litigants of full compensation for injuries caused by wrongdoers. At trial. • The covenant that Plaintiffs executed expressly reserved the right of Plaintiffs to sue any other person against whom they may assert a claim. Synopsis of Rule of Law. 168 Colo.

Issue. in which the defendants effectively settled before trial. The remaining defendant challenged the validity of the Mary Carter agreements. Brief Fact Summary. Plaintiff entered into Mary Carter agreements with several defendants. brought claims against multiple defendants for medical malpractice. • Mary Carter agreements are agreements where a plaintiff enters into a settlement agreement with one defendant and goes to trial against the remaining defendants. Yes. changing the order of proceedings . all four above doctors. The Court of Appeals affirmed. Elbaor requested the agreements be voided. Plaintiff filed medical malpractice claims against the Defendants. Gatmaitan. The settling defendant remains a party and guarantees the plaintiff a minimum payment. 845 S. Gatmaitan. Synopsis of Rule of Law.253. Stephens and Dr. Dr. Smith Citation.010. Stephens and ACH. remain as defendants. Syrquin. These measures included reapportioning preemptory challenges. Elbaor. The Texas Supreme Court has voided the validity of Mary Carter agreements based on public policy considerations. which may later be offset by an excess judgment recovered at trial. She also entered into "Mary Carter" settlement agreements with Dr.2d 240 (Tex. allocating responsibility between Dr. The Plaintiff suffered serious injuries as a result of an automobile accident and required significant medical attention. • The trial court recognized this incentive and took remedial measures to mitigate the effects of the agreement. D/FW Medical Center. (Defendants) due to a fused ankle that resulted from treatment. Are Mary Carter agreements void as against public policy? Held. Prior to trial. Smith Elbaor v. Facts. Elbaor for $1. Syrquin (12%). Dr. Elbaor (88%) and Dr.848. Dr.1992). and be paid back all or a portion of the settlement money out of the recovery against Dr. The jury awarded Plaintiff damages in the amount of $2. Judgment reversed and remanded for new trial. or the settling Defendants be dismissed from trial. and Arlington Community Hospital (ACH). Ms. Plaintiff settled and dismissed her claim against D/FW Medical Center and non-suited her claim against Dr.W.872. Dr. The trial court entered judgment against Dr. Syrquin. Elbaor.144 Elbaor v. The trial court denied the requests and proceeded with trial. These agreements create an incentive for the settling defendant to assist the plaintiff in receiving a sizably recovery. The agreements provided that they would pay plaintiff a total of $425.237. participate in the trial. Smith (Plaintiff). then participated in the trial as defendants assisting the plaintiff in her suit against the remaining defendant. She was treated at various times by Dr. The Plaintiff.

the Court declared Mary Carter agreements void as violative of sound public policy. Discussion. The trial court went to great lengths to ensure that the agreements were not hidden from the jury and did not unduly favor the Plaintiff. • This Court believes that Mary Carter agreements do not accomplish what most court approved agreements do. . Because the public policy favoring fair trials outweighs that of favoring partial settlements. help to promote settlement. Many jurisdictions have chosen to tolerate these agreements. The dissent's opinion represents the majority view in the United States. Elbaor. with the parties actually being allied. the adversarial process should still effectively result in discovery of the truth. but vigorously assisted the plaintiff in placing the majority of the blame on Dr. allowing counsel to explain the agreements to the jury and instructing the jury regarding the agreements. Mary Carter agreements nearly always ensure a trial will occur. • This Court believes that the negative effects of Mary Carter agreements outweigh any potential benefits. peremptory challenges. They create a false sense of adversity between plaintiff and one co-defendant. with most jurisdictions allowing for Mary Carter agreements. Elbaor's attorneys. some with protective measures such as those taken by the trial court. Although allowing for partial settlement. Remedial measures cannot overcome these effects. trial tactics and supportive witness examination. As long as two parties to the trial remain antagonistic. • Throughout the trial the settling Defendant's attorneys sat with Dr. Smith to favor the adverse Defendant.145 Elbaor v. They also pressure the settling defendant to contribute discovery material. Dissent.

Knell appeals.750. 101 Eng. 174 F. 85 U. Issue. which allows a defendant to bring into the action any person who may be liable to him for damages regardless of if the plaintiff seeks judgment against him. Langland was seriously injured in the accident.500. this Court feels that this is a misinterpretation of Merryweather. The car they were riding in collided with a taxicab owned by the Defendant. The court awarded judgment in favor of Plaintiffs against the Defendant for $11. First.2d 662 (U. The Defendant filed a third-party complaint against Knell. Is a joint judgment against tortfeasors who commit a tort through concurrent negligence a prerequisite for enforcement of contribution? Held. judgment in favor of Defendant against Knell for $5.D. Judgment affirmed.App. Ralph Feltman (Feltman) and operated by his employee. Plaintiffs sued Feltman. 22. were guest passengers in a car driven by Kenneth Knell. • Knell's argument that contribution can only be enforced if both tortfeasors are judgment debtors to the plaintiff fails for two reasons. As long as concurrent tortfeasors are not intentional wrongdoers.S. Langland) and her husband (Plaintiffs). Brief Fact Summary. and upon payment. differentiating between intentional wrongdoers and those whose unpurposed negligence results in a tort. The Plaintiffs. Knell claims that contribution is not warranted because joint liability was not established. claiming the accident was caused by his sole or contributing negligence. a majority of American courts have held that there can be no contribution between joint or concurrent tortfeasors. Feltman Citation.App. Nixan. This Court holds that so . Plaintiffs were passengers in a car driven by Knell. Synopsis of Rule of Law. However.146 Knell v. 1949). as the right to contribution cannot be based upon a selection of defendants by the plaintiff. when the car collided with a taxicab owned by Feltman. 186. The jury found both the Defendant and Knell negligent. Feltman Knell v. it is at odds with the Rule 14(a) of the Federal Rules of Civil Procedure (FRCP). No. Evelyn Langland (Mrs.S.B.1799)]. 8 term Rep. • Based on the Merryweather holding [Merryweather v.Rep. 1337 (K. The court ordered contribution by Knell to Feltman. The Plaintiffs sued the Defendant to recover damages.C. who filed a thirdparty complaint against Knell for contributory negligence.C. Mrs. it is illogical. Second. contribution will be enforced regardless of whether or not a joint judgment is entered against them. This case involves a car accident.D. claiming that the right of contribution exists only between tortfeasors liable in common to the plaintiff and his liability to the Plaintiffs was not established by the judgment because the Plaintiffs did not include him in the suit. Facts.

Discussion. either by statute or judicial decision.147 Knell v. A substantial majority of states now permit contribution among joint tortfeasors. Feltman long as the concurrent tortfeasors are not intentional wrongdoers. contribution will be enforced regardless of whether or not a joint judgment is entered against them. .

Discussion.1950). 327. 181 F. Synopsis of Rule of Law.D. The jury determined that the collision was caused by concurrent negligence. Appellant claimed contributory negligence against Appellee and cross-claimed against him for damages to the taxicab and contribution for sums recovered by other plaintiffs.. Dreslin Citation. must have a valid cause of action against the party from whom contribution is sought.2d 626 (U. Brief Fact Summary. A declaratory judgment was also entered allowing Appellant contribution against Appellee for several judgments except for that of his wife. A declaratory judgment allowed Appellant to receive contribution for several judgments against Appellee.C. Is contribution disallowed from a husband for damages claimed by his wife due to a lack of joint liability between the husband and the other tortfeasor as to the wife? Held. Yes.C.C.App. Appellee's wife and others in his car were injured. Because the plaintiff could not bring a valid cause of action against her husband. (Appellant). of D. joint liability must be present. The common law rule that husband and wife cannot bring tortious claims against one another is based on public policy considerations of preserving "domestic peace and felicity. claiming loss of consortium and medical expenses for Mrs. They sued Appellant for the resulting damages. neither husband nor wife is liable for tortious acts by one against the other. v.. Appellee joined in the suit. 86 U. except for contribution for injuries sustained by Appellee's wife. Judgment affirmed. Facts. the injured plaintiff from which the right of contribution develops. Issue. In order to obtain contribution. of D. Dreslin (Appellee) and the Appellant.C. In order to receive contribution.S.App. Mrs. The right of contribution arises out of a common liability. A negligence claim combined with a cross-claim for contribution arose out of a car accident between the Appellee. Dreslin Yellow Cab Co. Dreslin." .S. • Based on common law. Yellow Cab Co. with judgments being entered in favor of all plaintiffs except Appellee. Inc. A taxicab owned by the Appellant and an automobile driven by the Appellee collided. Inc. Dreslin and damages to his automobile. no joint liability occurs and the Appellant has no right to contribution. Yellow cab appealed this decision. v.D.148 Yellow Cab Co.

Robert F. Issue.L. Donahue Citation. Donahue and Dolores J. Indemnification is only allowed when the defendant is vicariously or derivatively liable for the wrongful act of another. The Defendants filed a third-party complaint against Ford. This Court also states that the Defendants' contention that the Plaintiffs' use of experts originally retained by Ford is evidence of . c. The Defendants claim that the settlement was not made in good faith because the amount of the settlement was for less than the value of the case and because Ford allegedly told the Plaintiffs it would allow them to use its experts. Ford then moved for summary judgment asserting that all claims for contribution were extinguished by the settlement agreement and that there is no basis for the Defendants' claims for indemnity. the Slocums (Plaintiffs) filed a civil action against the Defendants.Ct. Synopsis of Rule of Law.App.App. discharges the tortfeasor from liability for contribution to any other torfeasor. The Plaintiffs. § 4. 693 N. given the facts that Robert Donahue pleaded guilty in the criminal case and admitted to drinking from a bottle of vodka in the car prior to the accident. Even if the settlement was low. Yes. Donahue (Defendants). Contribution is not allowed under this statute when a settlement agreement is reached in good faith. a release given in good faith to one of two or more persons liable in tort for the same injury. Ford and the Plaintiffs signed a settlement agreement releasing Ford from any claim. for negligence resulting in the vehicular death of their son. 957. it was reasonable to think a jury might find no liability on the part of Ford.Ct. Donahue Slocum v. 231B. The Plaintiffs filed a civil action against the Defendants claiming negligence and gross negligence. 1998).149 Slocum v.E. Robert Donahue pled guilty to a motor vehicle homicide resulting in the death of the Plaintiff's eighteen-month-old son. • Pursuant to G. Facts. Brief Fact Summary. which caused the power breaks to fail. • The Court believes there were facts to allow the trial court to determine the settlement was fair and reasonable. 44 Mass. The trial court denied the third-party complaint on summary judgment. denying negligence and seeking contribution and indemnification based on Ford's negligence. Judgment affirmed. allowing it to interfere with the vacuum booster. The trial court dismissed the third-party complaint and the Defendants appealed. The Defendants' expert was prepared to testify that the driver's side floor mat was defective. Prior to trial. Was it appropriate for the trial court to dismiss the third-party complaint for contribution and indemnification on a motion for summary judgment? Held. The Donahues filed a third-party complaint against Ford Motor Company (Ford) claiming Ford was negligent in the car design and requesting contribution or indemnification.2d 179 (Mass.

such as in a respondeat superior case.150 Slocum v. The right to indemnity is allowed only when the indemnitee is vicariously or derivatively liable for the wrongful act of another. Robert Donahue was found negligent in this case and his liability is not vicarious. Donahue collusion is invalid because it is equally evidence that the Plaintiffs settled with Ford because they believe it was not responsible for their son's death. . Discussion. he is not entitled to indemnification by Ford. Indemnification is only available when the defendant is not directly at fault. • The right to indemnity allows someone without fault who is compelled by law to defend himself to recover from the wrongdoer the entire amount of loss. This case demonstrates the difference between contribution and indemnification. Therefore.

1964 the Plaintiff was injured when the car he was riding in collided with a truck driven by the Defendant. Mr. Pena (Plaintiff). in addition to those original injuries. The jury returned a verdict in favor of Plaintiff. The only Defendants named in this suit were the driver and owner of the truck involved in the first collision. The court's instruction would place the burden on the defense to prove that damages could be apportioned. Defendant seeks a reversal based on the instruction. Discussion. The Plaintiff. 1965 Plaintiff was injured in a second collision. Mr.App. While the first instruction is a correct statement of law. On July 21. Judgment reversed and remanded. aggravating injuries caused in an earlier collision with the Defendant. Additionally. • The trial court instructed the jury that it is their duty to apportion the injuries aggravated by the second collision from those caused by the second collision.App. Pena Citation. 29 Colo. 487 P. The trial court instructed the jury that Defendant would be liable for all damages if the jury was unable to apportion the injuries between the two collisions. Bruckman (Defendant). was injured in a car collision. Brief Fact Summary. The Defendant seeks a reversal claiming error on one of the jury instructions. Synopsis of Rule of Law. . the court instructed that if apportionment was not possible.2d 566 (Colo. The Defendant is still liable for aggravation of injuries caused in the first collision. On June 11. the Defendants are liable for the entire disability. Issue. the second is not. Pena Bruckman v.1971). 357. Did the trial court err by instructing the jury that the defendant is liable for the entire disability if the jury is unable to apportion the injuries between the two collisions? Held.151 Bruckman v. Yes. The plaintiff retains the burden of proof when claiming that a second accident aggravated previous injuries sustained in an original accident. • The burden of proof is on the Plaintiff to establish that damages were proximately caused by the negligence of the Defendant. This is an incorrect application of the law. Facts. aggravating injuries sustained in the first collision.

108 N. Great Lakes Steel Division. 425. multiple defendants may be found jointly and severally liable when injuries cannot effectively be apportioned between defendants. filed a complaint against the Appellants.S. Nat'l Steel Corp. Michigan law effectively shifts the burden of proof as to which was responsible and to what degree. Synopsis of Rule of Law. claiming each appellee individually failed to meet the $10.C. Therefore. However. Donaldson.2d 213 (U. the entire liability may be imposed on one or several tortfeasors. may multiple defendants be jointly and severally liable to multiple plaintiffs for individual injuries sustained from the action of all defendants when the separate effects of defendants' actions are impossible to differentiate between. Yes. allowing the trier of fact to determine if liability is joint or several.000 amount in controversy requirement for federal jurisdiction. The corporation filed a motion to dismiss. . Michie v.2d 33 (1961)]. Issue. The tortfeasor or tortfeasors who have liability imposed on them have the right of contribution against other tortfeasors. 495 F. 362 Mich. thirty-seven people (Appellees). This Court believes that Michigan courts would follow the Maddux holding.Ct.000 or more in damages against each Appellant. Facts. Citation. Appellants appealed a denied motion to dismiss based on the claim that each Appellee individually failed to meet the $10. Multiple people filed a complaint against three corporations claiming a nuisance for pollution.000 amount in controversy requirement set forth in 28 U.S.000 to $35. but the independent acts of multiple actors combine to produce indivisible harmful consequences.A § 1332 (1970).152 Michie v. Great Lakes Steel Division.W. there is no assertion of joint action or conspiracy against the Appellants. Brief Fact Summary. • Previous Michigan case law has stated that it is unfair to place the burden on the injured party to prove the specific shares of harm done by each tortfeasor [Maddux v. three corporations (Appellants). claiming that pollutants emitted by Appellants represent a nuisance. Held. Under Michigan State law. Under Michigan law. Nat'l Steel Corp. The Appellees.000 from all three corporations jointly and severally. Judgment affirmed. Each Appellee individually claims damages ranging from $11.1974). • The present case is one in which there is not concerted action.Appl. If the injury is indivisible and it is not practicable to apportion the harm. There was no assertion of joint action or conspiracy. If the Appellees are able to prove injury and liability as to the Appellants. each Appellees complaint should be read as alleging $11.

Nat'l Steel Corp.1971). 487 P. Pena. Discussion.App. Great Lakes Steel Division.2d 566 (Colo. These cases represent different approaches to identifying different tortfeasors and apportioning responsibility. 29 Colo. . 357. Compare the decision in this case to that in Bruckman v.App.153 Michie v.

H. Issue. No. Discussion. Defendant claims exception for a denial of its motion for a directed verdict based on a lack of damages. . Defendant would be liable only for the limited earning capacity available to decedent as a result of his injuries. Dillon v. The decedent and friends often played on the bridge during the day. Decedent was electrocuted when he lost his balance on a bridge and grabbed a live wire maintained by the Defendant. Synopsis of Rule of Law. 449. a 14 year old boy. The Plaintiff. The Court also held that the Defendant owed a duty to exercise reasonable care to the decedent and that the question of the Defendant's negligence was for the jury. the decedent lost his balance while sitting on a horizontal girder and instinctively grabbed a hanging wire. 111 (1932). he would have either been killed or seriously injured. Brief Fact Summary. The wire was not insulated against contact and electrocuted the decedent. Dillon (Plaintiff). 163 A.154 Dillon v. Exception overruled. The Defendant maintained electrical wires over a public bridge. This action is for negligently causing the death of Plaintiff's intestate. Its only liability was in exposing decedent to the danger of the exposed wires. • If decedent would have died from the fall. A jury must determine if damages are available when a decedent is killed by the negligence of defendant. Twin State Gas & Electric Co. Twin State Gas & Electric Co. It is beyond a doubt that if decedent had not touched the wires. Should a motion for directed verdict based on failure to claim damages be upheld when the injury caused by defendant in all likelihood only shortened decedent's life by a matter of moments? Held. Citation. Facts. sued as the administrator of decedent's estate. The Defendant claims exception for a denial of its motion for a directed verdict based on damages. Defendant deprived him of a life expectancy too short to be given pecuniary damages. The Defendant would have been liable only for any conscious suffering found to have been the result of the shock. Twin State Gas & Electric Co. This determination is an issue of fact that must be determined by the jury. • Defendant had no duty to protect decedent from falling. but decedent would have died or been seriously injured regardless of the negligence. On one such occasion. 85 N. If decedent would have been seriously injured from the fall.

D u t y O f .155 C H A P T E R V I I I .

Mr. he cannot sue in tort claiming that Defendant owes a duty to him. A plaintiff cannot bring tort claims against a defendant for nonfeasance that resulted from a contract which plaintiff was not privy to. 109. a mail coach driver. Defendant failed to comply with this promise. Brief Fact Summary. Issue. 152 Eng. B. C. Wright Winterbottom v. Does Defendant owe a duty of care to Plaintiff. 1842). Mr. Winterbottom (Plaintiff). Judgment for the Defendant. was seriously injured when a vehicle broke down due to lack of repair. was injured as a result. such that he is liable for injuries caused to Plaintiff caused by Defendant's negligence? Held. Wright (Defendant). Not containing the right to recover to those who enter into the contract would open up an endless and unstoppable allowance for suit. • Lord Rolfe. The Plaintiff may be without remedy. It was later pointed out that the case actually only involved nonfeasance. but this cannot influence the decision. • Lord Abinger. contracted with the Postmaster General to keep coaches in working order. resulting in Plaintiff's injuries. he undertook no duty towards the Plaintiff. The Defendant failed to uphold his duty and the Plaintiff. Synopsis of Rule of Law. Wright Citation. B. 10 M. Although the Defendant took on a duty to maintain the carriages. The Defendant. Plaintiff. & W. Just as the Plaintiff cannot sue on the contract. No. Discussion. Defendant had contracted with the Postmaster General to keep the coach in safe and secure condition.B. • Lord Alderson. including misfeasance. The plaintiff is not privy to the contract entered into between the Defendant and the Postmaster General.156 Winterbottom v. 402 (Exchequer of Pleas.Rep. This case was universally interpreted as applying to any negligence. Facts. .

not merely possible. (Defendant). 150 (N. The Plaintiff brought a negligence suit against the Defendant for injuries sustained after he was thrown from his car when the wheel collapsed.Y. on an action for negligence. Brief Fact Summary. Evidence suggested that the defect could have been discovered through reasonable inspection. If the manufacturer was negligent and the danger could be foreseen.157 MacPherson v. Buick Motor Co. a liability will follow. but no inspection occurred. which was sold to Defendant by another manufacturer. Defendant had purchased the faulty wheel from another manufacturer and Defendant failed to inspect the wheel. there must be knowledge that in the usual course of events. 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. Judgment affirmed. 111 N. Defendant had sold the automobile to a retail dealer. The Plaintiff. bought a car from a retail dealer. MacPherson v. • In order for a duty of care to arise in relation to ultimate purchasers. Buick Motor Co. • One line of cases has suggested that manufacturers owe a duty of care to ultimate purchasers only when the product is inherently dangerous. Second.E. writing for the majority. Buick Motor Co. 382. the original manufacturer of the car.Y.App.1916). . The wheel. Issue. Facts. the nature of the product must be such that it is likely to place life and limb in danger if negligently made. Discussion. Citation. and was injured when a defective wheel collapsed. who in turn sold it to Plaintiff. This may be inferred from the nature of the transaction and the proximity or remoteness of the relation. 217 N. a duty of care exists. also stated that the need for caution increases with the probability of danger. Does Defendant owe a duty of care to anyone besides the immediate purchaser in this case the retailer? Held. MacPherson (Plaintiff). the danger will be shared by people other than the buyer. Plaintiff sued the Defendant. Other cases have suggested a duty of care is owed to foreseeable users if the product is likely to cause injury if negligently made. the manufacturer of a finished product placed this product on the market to be used without inspection by its customers. First. Synopsis of Rule of Law. was made of defective wood. • In the present case. This knowledge of danger must be probable. two criteria are necessary. Yes. Judge Cardozo.

Defendant filed a demurrer to dismiss the complaint. or an omission. 896 (N.R.Y. Moch Co. The Appellate Division reversed by a divided court. H. An act of negligence is generally actionable so long as a duty of care is present and damages occur. A failure to act.158 H. for failing to provide sufficient water to extinguish the fire. While the contract was in force Plaintiff's warehouse caught fire. in the present case. Moch Co. is rarely actionable in tort law.1928). as Defendant had contracted to do with the city. 159 N. However. The Defendant made a motion in the nature of a demurrer to dismiss the complaint. Rensselaer Water Co. which was denied at Special Term." Any other analysis would allow all citizens who might benefit from the supply of water to hydrants to claim an action in tort any time water was negligently withheld. • If the Defendant had gone forward to a point at which inaction would result in actively working an injury. but according to the complaint. failed to supply a sufficient quantity of water with adequate pressure to extinguish the fire. The Defendant entered into a contract with the city of Rensselaer to supply water for a number of years. Synopsis of Rule of Law. 247 N. 160. This court holds that the action is not maintainable as one for a common-law tort. • The Plaintiff would have the court hold that the Defendant entered into a duty of care relationship with everyone who could benefit from the relationship. the Defendant's action at most can be described as a refusal to "become an instrument for good. The Plaintiff.'s (Plaintiff) warehouse was damaged by a fire. Discussion. No. a duty would arise to go forward. Is the Defendant liable for damages to the Plaintiff for failing to supply sufficient water during a fire as required by a contract with a separate entity? Held.R. Such a holding would provide for an indefinite number of potential beneficiaries once performance has begun. The Defendant was notified of the fire.App. Moch Co. v. Rensselaer Water Co. The Plaintiff brought suit as one for the breach of a statutory duty. Facts. Citation. A defendant's failure to act is not actionable under tort law unless the defendant has a duty to act as to the plaintiff. Brief Fact Summary.Y. The Court's discussion hinges on the difference between an act and an omission in tort law. Judgment affirmed. Rensselaer Water Co. (Defendant).R.E. Issue. v. H. . Plaintiff sued the Defendant. It was also claimed that Defendant was equipped to do so and had agreed in contract with the city that it would.

No. it would be illogical to assume that duties or obligations inherent in the attorney-client relationship are extended to third parties who an attorney would be unable or unlikely to represent. • These actions appear to be based solely on contract and do not permit third parties to sue attorneys on a pure negligence theory. The Appellants were the high bidders for property at a foreclosure sale.App. most often being based on the drafting of wills or other documents that have a long or delayed effect. This exception is of limited application. This exception allows a true third party beneficiary to sue an attorney for negligence regarding a contract made to the beneficiary's benefit. the sale of the property failed due to improper procedures by the Appellees. a duty of care will not be extended to the bidders. Therefore. the Appellees could not lawfully represent both the mortgagee and the bidders. finding that no such duty existed. This court holds that no duty of care and diligence exists from which an action for damages may be maintained. Do the attorneys owe the bidders a duty of care when the attorneys were employed by the mortgagee. One reason is the judicially imposed limitations upon who attorneys may represent. Brief Fact Summary.App.2d 1285 (Md. Synopsis of Rule of Law. Dacy Citation. Dacy Clagett v.1980). but both times the Appellees conducting the sale failed to follow proper procedure. 47 Md. The debtor regained the property and Appellants sued the Appellees for losses incurred due to the Appellees' failure to exercise care and diligence in the sale. The trial court sustained the Appellees' demurrer without leave. two attorneys (Appellees). 23. They sued the Appellees to recover the loss that resulted from their inability to resell the property at a profit. and not the bidders? Held. The trial court sustained a demurrer by the Appellees. In the present case. Judgment affirmed. . Due to this. However. 420 A. the sale was set aside. The debtor eventually discharged the loan and Appellants lost the opportunity to acquire the property. Taking into account the fact that attorneys generally may not represent adverse parties. concluding that no such duty existed. were high bidders on a piece of property (Appellants). A plaintiff must be in privity with an attorney or be a thirdparty beneficiary to a contract in order to maintain an action for professional negligence. • There is an exception to the strict privity requirement for maintaining an action against an attorney. The Appellants. The action claimed that the Appellees owed the Appellants a duty to use care and diligence and to conduct the sale properly and carefully. Issue. Facts.159 Clagett v.

.160 Clagett v. The privity limitation on negligence suits is still strictly applied for attorneys in most jurisdictions. Dacy Discussion.

Langsam Citation. Defendants' motion for judgment on the pleadings granted. The Defendants. Only when a special relationship exists between the defendant and the injured party. 273 N. be absent from her dormitory and was not returned to her parents' custody on demand.C. Plaintiffs cite O. made a motion for judgment on the pleadings. A Chicago University (the University) failed to look after one of its students and the student began using drugs and associating with criminals. Langsam Hegel v. become a drug user.R. Brief Fact Summary.C.41 making it a crime to contribute to the delinquency of a minor in support of their cause.C. No one is required to attend. The Plaintiffs. but rather attendance is granted to those who meet specific requirements and are presumed to be sufficiently mature to conduct themselves appropriately. claim that their seventeen-year-old daughter was enrolled at the University. 2151. Langsham and other school officials (Defendants).2d 476. and Mrs. where she was allowed to associate with criminals. be seduced.R. Discussion. The parents sued the university for failing to maintain order on campus and contributing to the delinquency of a minor.161 Hegel v.1971). is a failure to act by the defendant considered an actionable tort. Mr. Hegel (Plaintiffs). The Plaintiffs have failed to state a cause of action. . No. Synopsis of Rule of Law. 29 Ohio Misc.P. • In this court's opinion. Facts. 55 Ohio Ops. Is a University liable for the failure to effectively monitor and control its students? Held. This is another example of the common law's approach to a failure to act.21 requiring a university to maintain law and order on campus and O. Neither statute cited by the Plaintiffs has any bearing on the facts in this case. the Plaintiffs have completely misconstrued the duties of a university.E. 3345.C. A university is under no duty to act in order to ensure that its students are behaving appropriately. 147. Issue.2d 351 (OH.

E. The jury should have been limited in assessing damages to the injuries that were the proximate result of the Defendant's actionable negligence. fell and got his fingers caught in an escalator at the Defendant. Hicks Citation. until after the original injury occurred. Brief Fact Summary.S. Based on previous holdings. v. 40 N. 86. The Plaintiff. Ayres & Co. Ayres & Co. Defendant unreasonably delayed in stopping the escalator. with a new trial denied. but only its failure to exercise reasonable care to avoid aggravation of the injury. However. In some jurisdictions. L. • It is clear that there is no general duty to go to the rescue of someone who is in peril. v. These situations give rise to a duty to rescue even if the original injury was not the fault of the defendant. it is clear that a duty to rescue arises in certain situations. a six-year-old boy. Synopsis of Rule of Law. • The present case does not require this court to go so far. Yes. Facts. aggravating the injury. The court found that Defendant unreasonably delayed stopping the escalator. aggravating the Plaintiff's injuries.S. Therefore. Judgment was for the Plaintiff. Is a department store under a duty to assist an invitee who is in peril? Held. Under the common law. The Defendant appeals. certain relationships between parties may impose duties to rescue that would not otherwise exist. Hicks L. Issue. • In this case. or when the injury resulted from the use of an instrumentality under the control of the defendant.162 L. the Plaintiff was an invitee and he received the initial injury using an instrumentality under the control of the Defendant. This is a sufficient relationship to place a duty upon the Defendant.S. 220 Ind. Plaintiff. a duty to rescue has been held to apply where one party is so injured as to render him helpless and the injury occurred due to the instrumentality under the control of another.2d 334 (1942). Defendant cannot be charged with its prevention. These include when the person proceeded against is a master or invitor. requesting a new trial. a six-year-old boy was with his mother at the Defendant's department store (defendant) when he fell and got his fingers caught in Defendant's escalator. (Hicks). Ayres & Co. Judgment reversed with directions to sustain Defendant's motion for a new trial.'s (Defendant) store. . • The duty did not arise. however. certain special relationships give rise to a duty to assist or rescue injured individuals.

163 L. . Hicks Discussion. Some include common carriers and passengers. Ayres & Co. innkeepers and guests and temporary legal custodians and their charge. v. Other special relationships imposing a duty to rescue are well recognized besides those mentioned by this court.S.

The wife claimed she owed no duty to the Plaintiffs and that any negligence on her part was not the proximate cause of injuries sustained by the Plaintiffs. including the foreseeability and severity of the underlying risk of harm. the opportunity and ability to exercise care to prevent the harm. Two young girls.H. Brief Fact Summary. along with their parents (Plaintiffs). As part of a tort action. Failure to act on this duty is a proximate cause of the minor's injuries. The wife answered by claiming that she owed no duty to the girls and if she did her actions were not a proximate cause of their injuries. Citation. the Appellate Division reversed the order and remanded. ages twelve and fifteen. Facts. Judgment of the Appellate Division affirmed. and M. The husband conceded liability. The neighbor sexually abused both girls for more than a year. Did the wife owe Plaintiffs a duty to ensure they were not sexually abused by her husband. The Supreme Court of New Jersey granted Defendants' petition for certification. A neighbor sexually abused two young girls and admitted to the abuse.T. The wife denied she could be found negligent. the girls. examining . 714 A. 155 N. the neighbor and his wife (Defendants). After the neighbor's conviction and imprisonment. including previous committed offenses and age-inappropriate comments or behavior. R. and may be either actual or constructive. brought this action against the Defendants. Issue.H.J. J. These considerations call for a particularized foreseeability standard. the parents of the girls brought suit against the wife of the abuser. Yes.164 J. Synopsis of Rule of Law. v. for damages.T.S. and M.S.S. • The imposition of a duty is a question of fairness and public policy. Plaintiffs claimed that the wife's negligence rendered her liable for the girls' injuries. The court must balance several related factors. and if so. anticipate or predict. claiming that her negligence was a cause of the abuse. the relationships among the parties and the societal interest in the proposed solution. • Sexual abuse is a type of conduct that is difficult to identify. A spouse owes a duty to prevent sexual abuse by his or her spouse if they have actual knowledge or a special reason to know that the spouse is likely to abuse or is abusing an identifiable victim. can her negligence be considered a proximate cause of their injuries? Held. spent considerable amounts of time with their neighbor at his horse barn. v. granting the Plaintiffs extended discovery. On appeal.2d 924 (1998). the Plaintiffs. 330. Whether or not sexual abuse committed by a husband is foreseeable to the wife depends on many factors. R.S. The trial court entered summary judgment on behalf of the Defendants. Foreseeability is based on defendant's knowledge of the risk of injury.

Additionally. Proximate causation requires that liability only be applied when causes are so closely connected with the result and are significant enough to justify legal responsibility.J. In the present case. the Court finds that there is a compelling basis for the imposition of a duty on a wife whose husband poses a threat of sexually abusing children • A second.S. this spouse has a duty to take reasonable steps to prevent or warn of the harm. Even granting this consideration. empirical evidence and common knowledge to determine if a wife had actual knowledge or special reason to know her husband was abusing or likely to abuse an identifiable victim. The Legislature's imposition of N. and "Megan's Law. supported in the common law doctrine of interspousal immunity. . related issue to consider is that of proximate causation.T. Discussion. and M.S. would result in the occurrence or continuation of the abuse. • The Court holds that if a spouse has actual knowledge or special reason to know of a likelihood of her spouse engaging in sexual abuse against a particular person. R. 2C:7-1 to -11. • The Court must also take into consideration the defendants' interest in a stable marital relationship.S. it seems clear that a wife's failure to prevent or warn of her husband's sexual abuse or propensity therefore. it is clear that society and the Legislature have mandated that the protection of children from sexual abuse outweighs any marital interest.A. v.S.A.165 J. exemplify this mandate." N. requiring any person who has cause to believe that a child has been subject to abuse to report such abuse. requiring notification and registration requirements for sex offenders. Issues involving foreseeability and proximate causation are often closely entwined with similar facts being used to prove or disprove each.J. a breach of this duty constitutes a proximate cause of the resulting injury. 9:6-8.10. Based on these considerations.H.

Posenjit Poddar (Mr. Poddar. resulted in the death of Tatiana? Held. 14 (1976). Mr. Once a therapist determines or should have determined that the patient poses a serious danger of violence. and Mrs. Mr. During one of their sessions. Poddar. • Defendants contend that they owed no duty of care to Tatiana or her parents and were free to act in careless disregard of Tatiana's life and safety. Poddar. The Plaintiffs brought a wrongful death suit against the Defendants who failed to detain Mr. Poddar was briefly detained. Regents of University of California Tarasoff v. 131 Cal. Moore was one of the four Defendants. Poddar and Defendants. 17 Cal. Poddar did in fact kill Tatiana. killing her. Dr. Moore that he intended to kill Tatiana because she turned down his romantic advances. Tarasoff's (Plaintiffs) daughter. Yes. no further action was taken to detain Mr. Poddar's threat. The Plaintiffs filed suit claiming that Defendants should be liable for Tatiana's death because they failed to warn her or them about the patient's threat. Mr. 551 P. the patient of the Defendants. Dr. Facts. four psychiatrists (Defendants). Regents of University of California Citation. but he was released shortly thereafter. Two months later. Mr. Despite a disagreement between the psychiatrists at the hospital. . • California decisions have previously recognized a duty in such cases when the doctor stood in a special relationship to both the patient and the victim. Issue. Tatiana Tarasoff (Tatiana). Brief Fact Summary. Mr. Poddar informed Dr. Poddar shot and repeatedly stabbed Tatiana. that which arises between a patient and his doctor or psychiatrist. Lawrence Moore (Dr.2d 334. but then released. Leave to amend complaint to state a cause of action against Defendants for breach of duty to exercise reasonable care to protect Tatiana. Mr. Poddar). Are Defendants liable if it is found that their negligent failure to warn Tatiana or others proximately situated. The court rejected the contention that Defendants could be liable for this inaction because California Government Code Section 856 provided tort immunity with regard to these decisions. he bears a duty to exercise reasonable care to protect the foreseeable victim of the danger. threatened to kill the Plaintiffs.166 Tarasoff v. Synopsis of Rule of Law. Plaintiffs also claimed Defendants should be liable for Tatiana's death because they failed to warn her or them about Mr. at Cowell Memorial Hospital of the University of California. Although well established in common law that one person has no duty to control the conduct of another or to warn those endangered by this conduct. Moore). Moore had the campus police detain Mr. Plaintiffs' pleadings assert a special relation between Mr. certain exceptions are judicially made for defendants that stand in some special relationship to either person.Rptr.3d 425. Poddar was a patient of Dr.

he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. . • Defendants contend that the imposition of a duty to third persons is unfair because therapists cannot accurately predict whether or not a patient will resort to violence. the Court's view is that once a therapist does determine or should have determined the patient poses a serious danger of violence. but rather only needs to exercise the "reasonable degree of skill. However. there is no reason to limit the duty to such situations. The Court states that a therapist need not have perfect performance. the public interest of safety from violent assault must be weighed against this. knowledge. The "reasonable degree of skill. Discussion." Based on this. The Legislature in Evidence Code section 1024 has held there is no doctor-client privilege if the doctor believes the patient is dangerous to the person or property of another. and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances.167 Tarasoff v. knowledge and care ordinarily possessed" standard is the same as that generally applied to malpractice cases for professionals. This Court agrees with this balancing test. • Defendants also argue that such a duty would impede the free and open communication essential to psychotherapy. Regents of University of California However. They claim that the giving of a warning would constitute a breach of trust. based on this court's view and other jurisdictions.

Guste v. Numerous lawsuits representing the affected parties were filed and consolidated before the same judge in the Eastern District of Louisiana. Issue. M/V Testbank Citation. Defendants moved for summary judgment on all claims for economic loss unaccompanied by physical damage to property. hydrobromic acid and pentachlorophenol (PCP).S. On the evening of July 22. shrimping and related activities were temporarily suspended. The majority rule does not allow recovery for economic loss. The Coast Guard closed the outlet until August 10. Flint. Brief Fact Summary. The district court granted a motion for summary judgment on all claims for economic loss unaccompanied by physical damage to property. an inbound bulk carrier. Containers aboard the Testbank were damaged and lost overboard.2d 1019. the M/V Sea Daniel. This case.168 State of Louisiana ex rel. 303 (1927)].S. Guste v. an outbound container ship. However. Decision of district court granting summary judgment to defendants on all claims for economic losses unaccompanied by physical damage is affirmed. 477 U. otherwise liability would be virtually openended. • Plaintiff tries to confine Robins to losses suffered from the inability to perform contracts between a plaintiff and others. • Plaintiffs further urge that the present rule is arbitrary and unfair and should be replaced by a rule allowing the trier of fact to determine questions of remoteness. The reason for this rule is strictly pragmatic. it is indisputable that others more remotely situated cannot recover. Two ships collided. unless physical damage to property occurs. Yes. denied. with which the court agreed. if a plaintiff connected to the damage by contract is denied recovery.1985). The court feels that doing away with the present bright line rule would create a situation where there is no determinable . 752 F. The district court granted the summary judgment and on appeal a panel of this court affirmed. were released into the environment. • The well settled present rule is demonstrated in Robins [Robins Dry Dock v. causing toxic chemicals to be released into the environment and causing the United States Coast Guard (Coast Guard) to close a Mississippi River outlet. denied a plaintiff recovery for economic loss if that loss resulted from physical damage to property in which he had no proprietary interest. M/V Testbank State of Louisiana ex rel. Numerous lawsuits were filed by those affected by the closing of the outlet. Is physical damage to a proprietary interest still a prerequisite to recovery for economic loss in cases of unintentional maritime tort? Held. Synopsis of Rule of Law. Facts. 275 U. stated broadly. During the wreck. 1980. Judge Wisdom specially concurred urging reexamination en banc. 903 (5th Cir. and the M/V Testbank. collided on the Mississippi River. 1980 and all fishing. cert.

with whom Wisdom. join: • Robins is out of step with modern tort doctrine and works injustice on innocent victims. Tate and Johnson. Guste v. the court prevented plaintiffs who were neither proximately nor foreseeably injured by a tortious act from recovery. This would cause a case-by-case analysis. To allow unnumbered claimants under plaintiff's suggestion may visit destruction on multiple enterprises. . Dissent. I would confine Robins to its facts and apply the principles of negligence. Politz and Tate. foreseeability. Circuit Judge Wisdom. would create a nearly impossible task of determining who in the community suffered a pecuniary loss so great to justify distinguishing his losses from similar losses suffered by others. join: • Robins should not be extended beyond its actual holding and is not applicable to the present case Concurrence. This case represents the clear American majority rule. • Although the present bright line rule may result in unjust decisions for some plaintiffs. • Plaintiff's final contention is that the damages that occurred can be characterized as damages caused by a public nuisance. Based on these conclusions. Politz. These facts are not applicable to the present case. The dispute resolution system of the courts is not equipped to manage disasters of the magnitude of this case. but would be worth the extra costs and time for an increase in justice • In the Robins case. Cricuit Judges. with whom Rubin. the pragmatic approach of not allowing claims for economic loss unaccompanied by physical damage to property is affirmed.169 State of Louisiana ex rel. M/V Testbank measure on the limit of foreseeability. but disagreement persists. this court feels that it is justified when compared to other options. the change would create a shift to more costly third party insurance to protect defendants. Circuit Judge Rubin. Discussion. To do so. and proximate causation to the present case and require that the claimant prove particular damages. The bright line rule allows for extensive losses. such as the losses in the present case to be spread over first party or loss insurance. forcing the trier of fact to make an arbitrary judgment. The dissenters would analyze the plaintiff's claims under conventional tort principles of foreseeability and proximate cause. If liability were to be spread by a new rule. Circuit Judges.

The Defendant. creating endless litigation. except in rare circumstances. striking the electrical lines leading into Plaintiffs' house and causing a great electrical explosion. proximately caused by defendant's conduct. This rule is based on the fear of plaintiffs inventing injuries. The Court of Appeals affirmed the trial court's grant of a directed verdict on the ground that Michigan law denies recovery for negligently caused emotional disturbance absent a showing of physical impact. LaCroix (Defendant). • Several limitations are applicable to this new holding. First. Several high voltage lines snapped. Michigan courts now recognize an action for negligently caused emotional disturbance regardless of a showing of physical impact. in addition to property damage. LaCroix Citation. The trial court granted a directed verdict on the ground that Michigan law denies recovery for emotional disturbance without a showing of physical impact.2d 390 (1970). Issue. traveled 63 feet in the air. the Daleys' house (Plaintiffs). that Estelle Daley suffered traumatic neurosis. The Plaintiffs claimed. in addition to property damage. LaCroix Daley v.W. emotional disturbance and nervous upset and that Timothy Daley suffered emotional disturbance and nervousness as a result of the explosion. Facts. 4. Second. Synopsis of Rule of Law. The court held that when defendant's negligence creates a definite and objective physical injury as a result of emotional distress. that two family members suffered severe emotional disturbance as a result of the accident. • Michigan courts have routinely denied recovery for negligently caused emotional disturbance without accompanying physical injury or physical consequences.170 Daley v. Should Michigan continue to require some impact upon the person in order to recover for negligently caused emotional disturbance? Held. 179 N. . Brief Fact Summary. the plaintiff may recover damages without any physical contact upon the plaintiff at the time of the mental shock. 384 Mich. wrecked his car shearing off a utility pole and creating an electrical explosion at the Plaintiffs. • This Court believes that based on changed circumstances and factual and scientific information available today the common law "impact" requirement should no longer apply in Michigan. and sheared off a utility pole. No. 1963 the Defendant was driving near the Plaintiffs' farm when his vehicle left the highway. On July 16. Reversed and remanded. Plaintiffs claimed. defendant's standard of conduct is measured by reactions to be expected of normal persons. plaintiff has the burden of proof that the physical harm complained of is a natural consequence of the alleged emotional disturbance.

Plaintiffs in this case suffered. Although only lay testimony was offered for Timothy Daley. The dissenting judge would affirm the trial court's grant of directed verdict. In the past. compensation had been allowed for emotional disturbance without physical impact in limited circumstances. such as the negligent mishandling of corpses. if anything. Concurrence. . an indefinite and subjective injury. LaCroix • In the present case. Estelle Daly's claim was supported by expert testimony. Dissent. Discussion. Judge Kelly concurred with Judge Brennan's dissent.171 Daley v. it is necessary to determine if there is sufficient evidence to create a jury question. considering the evidence in the light most favorable to plaintiffs. This is not a case where it is appropriate to adopt a new rule of law. and again presents a question for the jury. a jury could reasonably infer a causal relation between Defendant's negligence and the injuries alleged.

2d 644. Plaintiff did not witness the accident. This was overruled in Dillon. Did the Court of Appeal correctly hold that a mother who did not witness a car accident in which her son was injured could recover damages for the emotional distress she suffered when she arrived at the accident scene? Held. 72. John Thing.172 Thing v. Synopsis of Rule of Law.2d 728. 771 P. with direct victims being individuals whose emotional distress is reasonably foreseeable as a consequence of the conduct of the . • Originally in California. 865 (1989). On December 8. if the shock resulted from a direct emotional impact upon the plaintiff from the sensory observance of the accident and if the plaintiff and victim were closely related. 1980. but arrived at the scene shortly thereafter. Plaintiff rushed to the scene. 257 Cal. The Court of Appeals overruled the trial court's grant of summary judgment. The California Supreme Court has ruled that a plaintiff must be present when an injury occurs and be closely related to the injured party to recover damages for a claim of negligent infliction of emotional distress. the right to recovery for emotional distress was allowed only if the victim himself was injured or if the plaintiff was in the "zone of danger" of the accident. The Plaintiff. 68 Cal. Plaintiff sued the Defendant.Rptr. Issue. • Future cases went on to distinguish between direct victim cases and bystander cases. La Chusa Citation. Brief Fact Summary. a minor.Rptr. Plaintiff's daughter informed her of the injury to her son. Maria Thing's (Plaintiff) son was struck by an automobile and injured. John Thing's mother was nearby. where she found her son bloody and unconscious. The court granted Defendant's motion for summary judgment ruling as a matter of law that Plaintiff could not establish a claim for negligent infliction of emotional distress because she did not contemporaneously and sensorily perceive the accident. Plaintiff also alleged that these injuries were proximately caused by the Defendant's negligence. for negligent infliction of emotional distress. shock and injury to her nervous system as a result of the emotional stress she suffered. This test takes into account whether the plaintiff was located near the scene of the accident. La Chusa Thing v. alleging she suffered great emotional disturbance. was struck by an automobile operated by the Defendant. James La Chusa (Defendant). Plaintiff sued the Defendant. No. The Plaintiff. The Judgment of the Court of Appeal is reversed.2d 912 (1968)] when the court established a test based on whether the defendant should have reasonably foreseen the injury to plaintiff. Legg. [Dillon v.2d 814. but neither saw nor heard the accident. 441 F. 69 Cal. 48 Cal. Facts.

which is compensatory. The courts have had difficulty applying the Dillon and direct victim standards. therefore. however. Plaintiff was not present at the scene of the accident. Justice Kaufman concurred. is punitive in nature rather than negligent infliction of emotional distress.173 Thing v. • This court concludes that a clear-cut rule would be more effective in this area. Concurrence. La Chusa defendant. A similar cause of action. Therefore a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person only if: (1) the plaintiff is closely related to the victim. she cannot establish a right to recover for her emotional distress. Chief Justice Lucas and Justices Panelli and Arguelles concur. Discussion. (2) the plaintiff is present at the scene at the time the injury occurs and is then aware of the injury being caused to the victim. intentional infliction of emotional distress. but thought that Dillon should be overruled and liability confined to those in the zone of danger and put in fear of their own safety. . (3) as a result suffers serious emotional distress beyond which would be expected of a disinterested witness. In the present case.

2d 478.Y. comfort and support during the minority and majority of each infant and medical. leads to incongruous results. Friedberg Citation. the wrongful death of each child. Two days later she delivered stillborn twins. Four actions in negligence were brought by the Plaintiffs against the Defendant.Y. Friedberg Endresz v. for among other things.2d 65 (N. Justice Keating concurred.2d 901. causing her twins to be delivered stillborn. hospital. 24 N.1969).E. Issue. 102 N. • In wrongful death suits for unborn children. Mrs. The court at Special Term dismissed the first two suits for wrongful death. 303 N. Plaintiffs claimed damages for loss of anticipated care. Legislative Acts regarding wrongful death suits refer to decedents and one must have been born before they can be a decedent. there is a wrong inflicted for which there is no remedy. Endresz was seven months pregnant when she was injured in an automobile accident with Friedberg. Concurrence. Facts. To allow for such recovery would permit a windfall because the mother may sue for her suffering as a result of the stillbirth and the father may sue for loss of her services and consortium.2d 1250 recognized a cause of action for a viable child in utero who is injured by a tort and later born with injury. Lancet. 693. • This Court has already decided that wrongful death actions cannot be maintained for the death of an unborn child. This decision does not require the Court to reinterpret wrongful death to provide compensation for distributees of a stillborn fetus. but not allowing one when the injury leads to stillbirth. Allowing a right of action when a fetus is injured and later born. 301 N. the first two for the wrongful death of each child.S. Synopsis of Rule of Law. Friedberg (Defendant). Judgment affirmed. No. May a wrongful death suit be brought in New York for causing the negligent death of a yet unborn child? Held. 353. New York does not allow a cause of action for the wrongful death of unborn children. 248 N.Y. and funeral expenses for the children. sued the Defendant. • This court's decision in Woods v. the proof of pecuniary injury is extremely vague.174 Endresz v. If no right of action is permitted.App. Janice Endresz was seven months pregnant when she was injured in an automobile accident.L.R. members of the Endresz family (Plaintiff). 349.2d 691. 27 A.Y. The Plaintiffs.E. Dissent. . Brief Fact Summary.

.175 Endresz v. Today a majority of states allow a civil claim for the wrongful death of an unborn child. Friedberg Discussion.

Procanik allowed her pregnancy to continue. she consulted the Defendants who informed her that she had been recently been diagnosed with measles. Plaintiff was born with multiple birth defects. • Originally. Yes. Cillo Procanik by Procanik v. Cillo and other doctors (Defendants). 339. Plaintiff also claims special damages for the extraordinary medical expenses he will incur. Plaintiff sued Defendants claiming general damages for emotional distress and for an impaired childhood because the Defendants negligently deprived his parents of the choice of terminating the pregnancy. and the matter is remanded. the result of his mother's German Measles that the Defendants. Judgment of the Appellate Division is affirmed in part. Synopsis of Rule of Law. Mrs. This was due to the court's inability to reach damages when attempting to value life with impairments against the . He ordered a test for German measles and the resulted were indicative of a past infection of Rubella. 478 A.J. Plaintiff brought suit. An infant plaintiff may recover special damages for the extraordinary medical expenses he will incur. The Law Division granted Defendants' motion to dismiss. Actually. Procanik to consult Defendants. No. but may not recover general damages for emotional distress or for an impaired childhood. Issue. and the Appellate Division affirmed. Plaintiff also seeks special damages for the extraordinary expenses he will incur due to his condition.2d 755 (1984). The Supreme Court of New Jersey granted certification. May an infant recover general damages for emotional distress or for an impaired childhood caused by a doctor's negligent deprivation of his parent's choice of terminating the pregnancy? • May an infant plaintiff recover as special damages for the extraordinary medical expenses attributable to his affliction? Held. not realizing that an accurate diagnosis of German Measles during pregnancy was likely to result in congenital rubella syndrome for her unborn child. negligently failed to diagnose. the past infection disclosed by the test was the German Measles that caused Mrs. Dr. Facts. 97 N. During the first trimester of Mrs. Procanik's pregnancy with the Plaintiff. Procanik that she had become immune to German Measles as a child. reversed in part. The Defendants negligently interpreted these results and told Mrs. He requested general damages for his pain and suffering and for his parents' impaired capacity to cope with his problems. Cillo Citation. claiming that the doctors negligently deprived his parents of the choice of terminating the pregnancy. Peter Procanik (Plaintiff). was born with multiple birth defects.176 Procanik by Procanik v. The Plaintiff. Brief Fact Summary. a doctor's negligence in diagnosing a condition that might cause her to give birth to an impaired child was not actionable by either the parent or the child.

This Court finds that there is no rational way to compare a lack of existence with the pain and suffering of Plaintiff's impaired existence in order to all recovery for his emotional distress or diminished childhood. 421. Unlike wrongful death suits for unborn child. More recent cases allowed for the parents' right to compensation for the extraordinary expenses of raising an impaired child. The Defendants do not deny such a duty and the Court finds that one exists. 404 A. . The problem is that the Plaintiff claims not that he should not have been born with defects. Discussion. Allan. but not both. The Court also assumes the Defendants were negligent in treating the mother and that the negligence deprived the parents of the choice of terminating the pregnancy.2d 8 (1979)] the court refused to allow a parent's claim for medical expenses to be incurred during the childrearing under the theory that such an allowance would permit the parents to reap all the benefits of childhood while the defendant paid all of the expenses.177 Procanik by Procanik v. Cillo nonexistence of life itself. few jurisdictions allow actions for wrongful life. In Berman [Berman v. However. • Policy considerations have led this court to decline to recognize any cause of action for an infant's wrongful life. 80 N.J. • Later cases addressed these issues. Another factor in early decisions was a reluctance to recognize the availability of abortions. The infant can wait until his majority to recover medical expenses. but rather that he should not have been born at all. • In the present case. this Court does find that recovery of the cost of extraordinary medical expenses is recoverable by either the parents or the infant. analysis of the action begins with whether the Defendants owed a duty to the Plaintiff.

Owners And Occupiers Of Land .178 CHAPTER IX.

Olsen Citation. Therefore. The Plaintiff. The standard of care a landowner owes in relation to roadside trees is reasonable care to prevent an unreasonable risk of harm. Taylor (Plaintiff). it was not error for the court to direct a verdict for the Defendant. was injured when her car collided with a tree that had fallen across the road. 578 P. • Except in extreme circumstances. Marion Olsen (Defendant). Mrs. Discussion. the Court holds that the standard of care a landowner owes in relation to roadside trees is reasonable care to prevent an unreasonable risk of harm. Most courts hold that there is no duty on the landowner to protect persons outside the property in regard to most land conditions that arise in the state of nature. when there was no previous evidence to suggest that the tree is not structurally sound? Held. Olsen Taylor v. which had recently splintered and fallen across the road.179 Taylor v. Issue. 282 Or. Plaintiff brought an action against the Defendant for damages she sustained when her car struck a tree. The trial court directed a verdict for Defendant.2d 779 (1978). There was no surface evidence on the tree to suggest that it was decayed. Defendant was using the land for logging purposes and had logged trees adjacent to the tree in question. Defendant was alleged to be in possession of the location from where the tree fell. In the present case. Brief Fact Summary. Synopsis of Rule of Law. 343. Judgment affirmed. Facts. Is a landowner liable for damages caused when a tree on her property falls into a public roadway. Plaintiff appeals from a judgment entered on the directed verdict from Defendant. There was no evidence to suggest that chopping or drilling into the trunk would have been an expected way to examine a standing tree. No. . The tree had fallen from the property of the Defendant.

The Defendant in this case did take some precautions. Plaintiff contends that Defendant's failure to take reasonable precautions to safeguard the public was negligence. as landowner. . The Plaintiff. Issue. Landowners who use their land in an artificial way must take reasonable precautions to protect the public traveling adjacent to the land. • Because of the inherent nature of baseball. two or three balls per game on average left the park and entered the area where Plaintiff was walking when he was injured.180 Salevan v. The Plaintiff brought suit against Defendant for personal injuries he sustained when struck in the back by a baseball while walking past the Defendant's ballpark. Facts. Inc. Plaintiff brought suit against Defendant for personal injuries. • The Plaintiff does not claim that Defendant is an insurer of persons using the sidewalk adjacent to his ballpark. with reasonableness depending on the facts and circumstances of each particular case. When a landowner alters the condition of his land. such as erecting a tenfoot fence to keep balls within the park. • It seems clear from the evidence that the Defendant's precautions were insufficient and that the Defendant knew or should have known that the precautions were insufficient. Discussion.'s (Defendant) ballpark. Wilmington Park. Nonetheless. Inc. Rather. a landowner must take reasonable precautions to protect the traveling public. it becomes artificial and the owner must exercise reasonable care for the protection of those outside the premises. Brief Fact Summary. Wilmington Park. Wilmington Park. which was rented as a ballpark and facilities. Citation. The Defendant owned land. Salevan (Plaintiff). Inc. (6 Terry) 290. have the duty to exercise reasonable care in the use of his land so as to prevent injury to travelers using the adjacent sidewalk? Held.2d 239 (1950). Yes. struck Plaintiff in the back. 45 Del. was injured when a foul ball hit out of the Defendant. Salevan v. 72 A. Synopsis of Rule of Law. Does defendant. Judgment entered for Plaintiff.

's (Defendant) railway. Defendant's train crew did not see Plaintiff until it was too late to stop the train and Plaintiff was injured. Co. St. Defendant was a trespasser. railroad companies are held to a duty of constant and strict care in relation to individuals at a street crossings or other places where the railroad is on notice that individuals cross. was trespassing upon the Defendant. Synopsis of Rule of Law. while the duty to avert injury to discovered trespassers is a negative duty. Sheehan v.181 Sheehan v. . 76 Fed. Plaintiff was unable to extricate his foot. Sheehan (Plaintiff). Judgment affirmed. Issue. The railroad company is obligated to exercise some degree of care for trespassers upon its property and will be liable if the trespasser is wantonly injured in the operation of the railroad. Defendant's train crew did not see Plaintiff until it was too late to stop the train and therefore Defendant's train ran over Plaintiff's foot. St. Co. Discussion. Co. Railroad companies are under a constant and strict duty of care to individuals at railway crossings. The constant and strict care standard that arises at railroad crossings is described as a positive duty. Trespassers at these points assume all risks of condition that may be found there.1896). Paul & Duluth Ry. However. The Plaintiff. Citation. 201 (7th Cir. Paul & Duluth Ry. No. such that it will be liable for injuries that occur thereon? Held. at all other points along a railroad track the railroad company has a right to a free track and is not bound to anticipate trespassers. • The obligation of the railroad company to a trespasser arises at the moment of the trespasser's discovery and is a duty to make all reasonable efforts to avert injury. As Defendant's train approached. Paul & Duluth Ry. Facts. but are not bound to any act or service in anticipation of trespassers at other points along the track. when Plaintiff's foot became stuck. The Plaintiff was walking on the Defendant's railroad track when his foot slipped and became caught on the rail. St. • Because of the hazardous nature of railroad operation. The Defendant's train crew made sufficient efforts to avert injury in the present case. The trial court entered a directed verdict for Defendant and Plaintiff appeals. Brief Fact Summary. • Defendant was neither a passenger on the train nor crossing at a public crossway at the time of his injury. Is a railroad company under a duty to anticipate trespassers upon its tracks. Therefore.

Synopsis of Rule of Law. the person must go onto the owner's land in furtherance of the owner's business. Issue. In this case. Premises owners have a duty to warn licensees of hidden dangers unknown to the licensee. Esther Elmore and Thomas Elmore Jr.'s 47 year old son. Thomas Elmore Sr. Plaintiff visited the home of Thomas Sr. Are Defendants entitled to a directed verdict based on Plaintiff's status as a licensee? Held. Plaintiff filed suit against the Defendants claiming that they were negligent in failing to protect him from a dangerous condition on their premises. Yes. Elmore Citation. Thomas Sr. During the visit.2d 1355. 38 Ill. • Plaintiff claims that because he was conducting the business of a fraternal organization during his visit. Facts. of which the owner has knowledge. Thomas Jr.App. but known to the owner. Therefore the Plaintiff is best categorized as a licensee. As to an invitee. To be classified as an invitee.182 Barmore v. Barmore (Plaintiff). he attained the status of an invitee. and Esther Elmore to discuss the business of the Masonic Lodge. Plaintiff filed suit against the Defendants. (Thomas Sr. got away from his father and stabbed the Plaintiff several times in the chest. but Thomas Jr. Brief Fact Summary. Plaintiff was attacked and stabbed by Thomas Elmore Jr. Social guests are considered licensees. Elmore Barmore v.E. Thomas Sr.).3d 1056. (Thomas Jr. tried to restrain his son while Plaintiff left the house. Both Plaintiff and Thomas Elmore Sr. and generally must take the premises as he finds them. The owner of the premises has the duty to warn a licensee of any hidden dangers unknown to the guest. rather than to the Defendants. to discuss business of the Masonic Lodge. advanced towards Plaintiff with a steak knife.Dec. Judgment is affirmed. Plaintiff appeals from an order of the Circuit Court directing a verdict in favor of the Defendants. the owner must refrain from injuring his guest willfully or wantonly.1980). the owner has a duty to exercise reasonable care in keeping the premises reasonably safe for use by an invitee. were officers of the lodge. During the visit. 83 Ill. • The duty that Defendants owed to Plaintiff depends largely on his classification as either an invitee or a licensee. visited the home of the Defendants. Also.App. the evidence suggests that the primary benefit of Plaintiff's visit was to the fraternal organization of which both were members. The Plaintiff. A social guest is a licensee.. 751 (Ill. claiming they were negligent in failing to protect him from a dangerous condition on their premises.) (Defendants). . 403 N.

would commit a criminal act toward Plaintiff. he had committed no violent acts in ten years. viewed in favor of the Plaintiff. Based on the evidence. The court in this case affirmed the directed verdict. it is clear that Thomas Sr. and Esther Elmore did not know or have reason to know of the possibility that Thomas Jr. . Elmore • Because Plaintiff is a licensee.183 Barmore v. Although Defendants knew that their son had a prior history of mental problems. Defendants' only duty was to warn him of hidden dangers unknown to Plaintiff of which Defendants had knowledge. believing that the evidence. so overwhelmingly favored the Defendants that no contrary verdict could ever stand. Discussion.

or an invitee.184 Campbell v.2d 72 (1941). Brief Fact Summary. The Plaintiff. Discussion. then went to the back of the building to use the toilet. Campbell (Plaintiff). The order sustaining the demurrer of the Defendant is reversed. The Defendant operated a lunch counter and cigar stand. Plaintiff sued for negligence and the trial court sustained Defendant's demurrer to the evidence. he is an invitee. doing business with that store. Synopsis of Rule of Law. Was the trial court correct in determining that the plaintiff was not an invitee and that defendant was entitled to judgment? Held. No. Weathers Campbell v. Plaintiff appeals. It was conceded that Defendant was the operator of a business open to the public. a licensee. used the restroom. The Plaintiff entered Defendant's business. 316. Facts. • This Court refuses to advance the theory that a regular customer is not an invitee simply because the customer has not made a purchase on the particular occasion on which he is injured. • The first issue is to determine if Plaintiff was a trespasser. 153 Kan. Plaintiff stepped into an open trap door in a dark hallway and was injured. Weathers Citation. If an individual enters a store with the intention of then. 111 P. entered the business of the Defendant. . stood by the front counter without making any purchases. Plaintiff had been a customer of the Defendant for a number of years. Plaintiff sues for negligence. or at some other time. Issue. Based on the facts of this case Plaintiff is an invitee. He had used the hallway and toilet on numerous occasions and had never been told that it was not for public use. Weathers (Defendant) and without purchasing any items. The Court was quick to point out that if an individual were to enter a place of business solely on a personal errand or to advance his own interests he would not be considered an invitee. Plaintiff was injured when he stepped into an open trap door on the way to the restroom.

An invitee can also become a trespasser if the owner of the land does not consent to the individual remaining on the land. Issue. Chapter 13. Yes.2d 205 (Ky. busy at the counter. Discussion. Second. or if the individual enters a part of the property that he was not permitted to enter upon. the visitor's status changes to a licensee if the shopkeeper invites him to visit an area outside of the part of the shop where business is conducted. Van Natta Citation.App. Plaintiff went into the backroom. A land possessor is only subject to the liability of another as an invitee for harm sustained while he is on the land within the scope of his invitation.1964). made a purchase and then asked if he could have a box.185 Whelan v. Van Natta Whelan v. Section 332. 382 S. Whelan (Plaintiff). which was unlit at the time. Judgment affirmed. Brief Fact Summary. Restatement of the Law. Plaintiff was injured when he fell into an unseen stair well in the unlit back room.W. Plaintiff then asked Defendant if he could have a box for his son. . The Plaintiff. Synopsis of Rule of Law. Defendant told Plaintiff to enter a back room to get the box. Defendant. Van Natta's (Defendant) store. Plaintiff fell into an unseen stair well and was injured. entered the Defendant. told Plaintiff to go into the backroom to retrieve a box for himself. page 67]. Was the trial court correct in its determination that the status of the Plaintiff changed from invitee to licensee after he went into the storage room to obtain a box? Held. The Restatement provides that a visitor retains his status of an invitee only while he is on the part of the land to which his invitation extends. The Plaintiff entered Defendant's grocery store and purchased some cigarettes. Facts. Therefore. While searching for a box. The trial court gave judgment for the Defendant and Plaintiff appeals. • The Court bases its decision solely on the Torts Restatement [Torts.

Plaintiff was a social guest at Defendant's apartment. where he was injured when a cracked handle on the water faucet broke and severed tendons and nerves in his right hand. Christian Rowland v. Dissent.2d 108. 97 (1968). 443 P. Was the trial court correct in granting summary judgment for the Defendant based on Plaintiff's status as a licensee? Held. Defendant knew of the faulty handle. • Based on historical considerations placing land ownership in a disproportionately high place. Christian's (Defendant) bathroom. The categorization of injured parties as trespassers. • The Court overturns these traditional classifications and instead will apply ordinary principles of negligence in cases such as the one at hand. licensees and invitees and instead applies ordinary principles of negligence in these cases. Evidence showed that Defendant had known the handle was cracked for two weeks. California abolishes the traditional classifications of trespassers. • The traditional classifications do not reflect the major factors. Synopsis of Rule of Law.186 Rowland v. it was not proper for the majority to overturn a long standing. was injured when a cracked handle on a water faucet broke while Plaintiff was using the Defendant.2d 561. 69 Cal. licensees. No. Facts. In the present case. well supported rule without the instruction of the Legislature. Judgment reversed. The previous rules provided stability and predictability and supplied a reasonable and workable .Rptr. and prevalence and availability of insurance. which should determine when immunity should be conferred. Issue. Rowland (Plaintiff). viewing the facts in a light most favorable to Plaintiff. 70 Cal. and invitees produces confusion and conflict and are not justified in our modern society. this and other courts have generally departed from the concept that an individual is liable for injuries caused by his carelessness. Some of these factors include the closeness of the connection between the injury and the defendant's conduct. the policy of preventing future harm. Plaintiff appeals from a summary judgment for the Defendant. The Plaintiff. Plaintiff used Defendant's bathroom. Brief Fact Summary. In the dissenters view. but failed to inform Plaintiff of its condition. the moral blame attached to defendant's conduct. a trier of fact could reasonably have concluded that a failure to warn or repair the condition constituted negligence. Plaintiff filed suit for injuries. Christian Citation. but failed to inform Plaintiff.

There is considerable agreement amongst modern courts that the general negligence standard should be applied to all persons invited or permitted on the premises. However. .187 Rowland v. there is less agreement regarding the treatment of trespassers. Christian approach. Discussion. The new approach will require decisions on a case-by-case basis and could open the door to potentially unlimited liability.

(5) Where the lessor contracts to repair. .188 Borders v. The Plaintiff. The Defendant was the landlord of a single-family house. where the water froze on the front steps.2d 1366 (1975). the law has placed the burden of maintaining the premises on the lessee tenant. The Plaintiff was a social guest at the house when he slipped and fell on the accumulated ice. the lessee acquires an estate in the land and the lessor retains only a reversionary interest. (2) Conditions dangerous to persons outside the premises. Defendant knew of the condition in question. • This general rule of non-liability is subject to the following six exceptions: (1) Undisclosed dangerous conditions known to lessor and unknown to lessee. Roseberry's (Defendant). Plaintiff contends that the law should be changed to make the landlord liable for injuries resulting from a defective condition on the leased premises where the landlord has knowledge of that condition. • This Court finds that none of the above cited exceptions existed in the present case. a landlord generally has no liability in regard to either the tenant or to others entering the land for defective conditions thereon. Did the trial court commit reversible error in concluding as a matter of law that a landlord is under no obligation or duty to a social guest of his tenant to repair a known condition at the tenant's residence? Held. No. injuring himself. 532 P. The trial court found for the Defendant as a matter of law. Therefore. This Court does not believe that a departure from the established rules of law is justified. (3) Premises leased for admission to the public. Brief Fact Summary. Roseberry Borders v. unless one of six exceptions is present. Plaintiff sued Defendant for injuries sustained. 216 Kan. At this house. A landlord has no duty to social guests of his tenant to repair a known condition at the tenant's residence. 486. This rule has resulted from the view that when land is leased to a tenant. Judgment affirmed. Issue. water dripped from the roof onto the front steps of the house. Synopsis of Rule of Law. (6) Negligence by the lessor in making repairs. Facts. Gary Borders (Plaintiff). • Traditionally. Defendant knew of a condition that caused water to drip onto the steps and freeze there. house. but had failed to remedy it. was injured when he slipped and fell on icy steps while visiting a tenant at the Defendant. Plaintiff appeals. Roseberry Citation. (4) Parts of land retained in lessor's control which lessee is entitled to use.

The Court's description of landlord non-liability and the exceptions thereto represents an accurate picture of the law in most states.189 Borders v. Roseberry Discussion. .

W.2d 734. Safeco Ins. 236 N. The modern day apartment lease is viewed as a contract rather than a conveyance. Judgment reversed and cause remanded. injuring her. 70 Wis. • The policies discussed in Antoniewicz support. a landlord owes to his tenant or anyone on the premises with the tenant's consent a duty to exercise ordinary care.190 Pagelsdorf v. Did the trial court err in failing to instruct the jury that Defendant owed Mrs. Blattner to move some furniture. Pagelsdorf was assisting Mrs. The Plaintiffs in this matter were Carol Pagelsdorf (Mrs. the Plaintiff would not be entitled to an instruction that Defendant owed Mrs. Synopsis of Rule of Law. the landlord is generally not liable to tenants unless one of the exceptions applies and no exception applies in this case. Co. Yes. However. Brief Fact Summary. Pagelsdorf) and James Pagelsdorf (Plaintiffs). It would be anomalous to apply a warranty of habitability to landlords. Co. Plaintiff was injured when tenant's balcony rail collapsed while she was helping tenant move.2d 836. owned a two-story duplex with four balcony porches. 91 Wis. Mrs. the Court's decision to abandon the landlord's cloak of immunity to tenants and visitors. Pagelsdorf leaned against the railing of the second floor balcony and it collapsed. Pagelsdorf a duty of ordinary care. The Defendant. The railing had a dry rot condition and should have been replaced.W. Mrs.2d 55 (1979). Richard Mahnke (Defendant). Defendant rented the upper unit to the John Blatnner and Mary Katherine Blatnner (Mrs. Pagelsdorf a duty to exercise ordinary care in maintaining the premises? Held. 284 N. 10 (1975)]. Blatnner). . Facts. Judgment was entered on the verdict. The Court has implied a warranty of habitability in such contracts. Issue. • Following the traditional rule. Under Wisconsin law. The Court believes that public policy calls for abandonment of the previous rule and adoption of a standard that landlords are under a duty to exercise ordinary care in the maintenance of the premises. Plaintiff sued landlord for landlord's failure to repair the balcony.2d 1. Plaintiffs appeal. Judgment was entered for defendant landlord based on a landlord's general immunity to liability from tenants and visitors. • This court previously abolished the distinction between licensees and invitees [Antoniewicz v. of America Citation. dismissing the complaint. Safeco Ins. 854-55. Reszcynski. yet immunize them from liability from injuries resulting from a failure to comply with such a warranty. of America Pagelsdorf v. in the present case.

191 Pagelsdorf v. Safeco Ins. Co. of America Discussion. An implied warranty of habitability requires a lessor to deliver the premises to the lessee in a habitable condition. Generally, the only recourse for a landlord's failure to comply with this warranty is a right to withhold rent until repairs are made.

192 Kline v. 1500 Massachusetts Ave. Apartment Corp.

Kline v. 1500 Massachusetts Ave. Apartment Corp.
Citation. 141 U.S.App.D.C. 370, 439 F.2d 477 (U.S.App.D.C. 1970). Brief Fact Summary. The Plaintiff, Kline (Plaintiff) a lessee of Defendant, 1500 Massachusetts Ave. Apartment Corp. (Defendant), was assaulted and robbed in a common hallway of Defendant's apartment. Defendant was on notice that assaults were occurring in the hallway, but nonetheless stopped employing a doorman. Plaintiff sued for injuries sustained. Synopsis of Rule of Law. Landlords have a duty to take steps to protect tenants from foreseeable criminal acts committed by third parties in common areas of landlord's property. Facts. Plaintiff was a lessee of Defendant. While in the common hallway of Defendant's apartment, Plaintiff was assaulted and robbed, sustaining serious injuries. A doorman had been employed in the past, but the entrances were unguarded at the time of Plaintiff's assault. Defendant was on notice of an increasing number of assaults and robberies being perpetrated against tenants in the common hallways of the building. Plaintiff sued for the injuries she sustained. The District Court found in favor of the Defendant. Plaintiff appeals. Issue. Was the District Court correct in ruling that there is no duty for a landlord to take steps to protect tenants from foreseeable criminal acts committed by third parties? Held. No. Judgment reversed and remanded. • As a general rule, private individuals do not have a duty to protect others from criminal attacks. This standard has sometimes been applied in the past to landlord-tenant law. However, in this jurisdiction certain duties have been assigned to the landlord because of his control of common areas used by all tenants. Although these duties have traditionally been applied to physical defects, the duty also applies in the present case because he is the only party who has the power to make the necessary repairs or to provide the necessary protection. • Other relationships between parties such as innkeeper-guests and carrierpassenger have resulted in similar rules. The common theme amongst these relationships is that the ability of one of the parties to provide for their own protection has been limited in some way by his submission to control of the other. Where, as in the present case, the landlord is on notice that crimes have occurred in a common area exclusively within his control, the crimes are likely to happen again and he has the exclusive power to take preventive action, the landlord is under a duty to take steps to protect tenants from foreseeable criminal acts.

193 Kline v. 1500 Massachusetts Ave. Apartment Corp. Dissent. Justice MacKinnon's dissent omitted. Discussion. The Court was quick to point out that the landlord is not the insurer of the safety of his tenants, but only has the duty to take those measures within his power, which can reasonably expected to mitigate the risk of intruders.

194

C H A P T E R X . D a m a g e s

195 Anderson v. Sears, Roebuck & Co.

Anderson v. Sears, Roebuck & Co.
Citation. 377 F.Supp. 136 (U.S.Dist.Ct.Louis. 1974). Brief Fact Summary. Plaintiff, a young child, was severely burned during a house fire caused by the Defendants' negligent manufacture of a heater. The jury awarded plaintiff $2,000,000 in compensatory damages and the defendants moved for remittitur. Synopsis of Rule of Law. Under the maximum recovery rule, a court will overrule a jury's determination of damages only if the damages exceed the maximum amount the jury could reasonably find based upon all of the evidence. Facts. The Plaintiff, Helen Britian (Plaintiff), was severely burned as a young child when her home was destroyed by a fire. The blaze was caused by a heater negligently manufactured by the Defendants, Sears and Controls Company of America (Defendants). The jury awarded plaintiff $2,000,000 in compensatory damages. Defendants moved for remittitur. Issue. Was the trial court correct in determining that the verdict of the jury did not exceed the maximum amount which the jury could reasonably find based on the maximum recovery rule? Held. Yes. Defendant's motions for a remittitur are denied. • The maximum recovery rule is intended to protect the role of the jury as finder of facts. Judges must determine only the maximum award that the jury could reasonably have reached, based on all of the evidence as to each element of damages. • In the present case, five elements of damages are applicable: (i) past physical and mental pain; (ii) future physical and mental pain; (iii) future medical expenses; (iv) loss of earning capacity and permanent disability and (v) disfigurement. This Court examines each of these elements individually, determining the maximum amount of damages available under each based on the evidence available. Considering each of these elements in unison, this Court determines that the maximum jury award supported by the evidence is $2,980,000. Therefore, the jury's damage award is valid. • The Defendants also argue that the introduction of photographs of the Plaintiff was inflammatory and that the presence of the child in the courtroom inflamed or prejudiced the jury. The photographs were allowable because part of Plaintiff's claim for damages was for disfigurement and humiliation. Also, the presence of Plaintiff was not inappropriate because Plaintiff was well behaved and quiet during all courtroom proceedings.

196 Anderson v. Sears, Roebuck & Co. Discussion. A motion for remittitur is a request for the court to lower the damages levied against a defendant. If granted, the plaintiff may generally either accept the remittitur or request a new trial.

197 Richardson v. Chapman

Richardson v. Chapman
Citation. 175 Ill. 2d 98, 676 N.E.2d 621 (1997). Brief Fact Summary. The Plaintiffs were the driver of a car, Keva Richardson (Richardson) and the passenger, Ann McGregor (McGregor)(Plaintiffs). The car was stuck by a semi-trailer driven by the Defendant, Chapman, an employee of Tandem/Carrier (Defendants). A directed verdict was entered on behalf of Plaintiffs in regard to liability. Defendants appeal the jury's assessment of damages. Synopsis of Rule of Law. Courts may order a remittitur of damages when a jury's assessment of damages is excessive based on the evidence. Facts. While the Plaintiffs were stopped at a traffic light, their car was struck by a semitrailer driven by Chapman, an employee of Tandem/Carrier. Plaintiff Keva Richardson suffered incomplete quadriplegia as a result of the accident. Plaintiff Ann McGregor suffered a laceration on her forehead which left a slight scar. The trial court directed a verdict in favor of the Plaintiffs on the question of liability. The jury returned verdicts in favor of Richardson and McGregor in the amounts of $22,358,814 and $102,215 respectively. The intermediate court rejected Defendants' challenges to the amounts of damages. Issue. Was the intermediate appellate court incorrect in determining that the damages awarded by the jury were excessive? Held. Yes. Judgment of the appellate court is affirmed in part, reversed in part, and vacated in part. • Defendants first challenge testimony introduced by Richardson concerning the calculation of the present value of her future economic losses. Defendants claim that the expert, Professor Linke, used nonneutral, actual figures in his description of present cash value. Professor Linke used a differential between two rates, computing an upper bound and a lower bound. The Court concluded that Professor Linke's computations did not undercompensate or overcompensate Richardson. • Defendants also argue that the sum of the future medical costs found by the jury, is not supported by the evidence because it exceeded the larger of the two figures provided by Professor Linke. Richardson argues in response that the larger award may be attributable to expenses not specifically included in Professor Linke's calculations. The Court found that the award of $1.5 million, more than the higher of the two figures, was excessive and that it is appropriate to reduce this amount by $1 million by way of remittitur. The court did not agree with Defendants that the remainder of the award of damages shocks the conscious such as to force this Court to reduce said amount.

Mrs. • Dissent. the majority's remittitur of her pain and suffering award is arbitrary. In both instances the majority substituted its own subjective judgment for the jury's evaluation of the evidence. Richardson. Professor Linke's calculations represented only Mrs.000. and reduces said amount to $50. Because the determination of damages is a question for the trier of fact. McGregor is excessive. Chapman • Defendants also contend that the jury's award of damages to Mrs. Richardson's minimum care needs. The majority is hesitant to substitute its' opinion for that of the trier of fact in determining damages.000 is excessive based on these facts. In regard to Mrs. disagreeing only with the majority's remittitur of Mrs. Discussion. McGregor. The jury should have been allowed to arrive at a higher value based on the evidence. Richardson's and Mrs. the court will only issue a remittitur if the damages shock the judicial conscious. McGregor's damages. The dissenting judge concurs with the general opinion of the majority. McGregor was not seriously injured in the accident. . In regard to Mrs. incurring only a laceration on her forehead that left a slight scar. The Court believes that an award for $100.198 Richardson v.

This rule applies unless the evidence of the benefits from the collateral source is relevant for a purpose other than the mitigation of damages. 561. Judgment affirmed. v.. The Court finds that the policy allowing for the collateral source rule is equally applicable in the present case. • In a previous case [Bell v. at 490. Inc.199 Montgomery Ward & Co. in the form of things such as paid insurance premiums or lost sick leave. Appellee claimed that the collateral source rule would prohibit Appellant from introducing evidence of the discount. Appellant moved to prohibit Appellee from presenting her total UAMS bill as proof of her medical expenses. this same Court found that although the defendant argued that the collateral source rule is inequitable because it results in double recovery for the plaintiff. Brief Fact Summary. Appellee had reached an agreement with UAMS that UAMS would discount her bill by fifty percent. Appellant moved in limine to prohibit appellee from presenting the total amount billed by UAMS as proof of her medical expenses. Anderson (Appellee). Yes. should be entitled to the benefit of the collateral source.2d 382 (1998). 885 S. rather than the alleged torfeasor. Estate of Bell. Anderson Montgomery Ward & Co. The Appellee was injured while shopping at the Appellant's store. Was the trial court correct in determining that the forgiveness of a debt for medical services is a collateral source to be sheltered by the rule? Held. to the University of Arkansas for Medical Sciences (UAMS) hospital for treatment. The collateral source rule prevents the introduction of evidence of payments received by an injured party from sources collateral to the wrongdoer. Appellee claimed that the collateral source rule would prohibit Appellant from introducing evidence of the discount.W. asking that her evidence be limited to the actual amount that she was responsible to pay.W. Inc.2d at 880 (1994)]. Issue. Anderson Citation. 334 Ark. The trial court denied the motion in limine. The Appellee. • A trial court must apply the collateral source rule to exclude evidence of payments received by an injured party from sources collateral to the wrongdoer. . Appellee reached an agreement with UAMS. (Appellant). Facts. Montgomery Ward & Co.. 976 S. public policy supports the rule because the plaintiff. Synopsis of Rule of Law. 318 Ark. v. after she fell at Appellant's store. Inc. Appellee was sent by Appellant to the UAMS hospital to be treated. was sent by the Appellant.. discounting her bill by fifty percent. This is especially true due to the fact that the claimant has usually incurred the detriment of the collateral source.

200 Montgomery Ward & Co. (2) to show that the plaintiff had attributed his condition to some other cause. Inc. Anderson Discussion. v. such as sickness.. The Court pointed out four situations in which the collateral source rule is inapplicable: (1) to rebut plaintiff's testimony that he was compelled by financial necessity to return to work prematurely or forego additional medical care. (4) to show that the plaintiff actually continued to work instead of being out of work. . (3) to impeach plaintiff's testimony that he had paid his medical expenses himself.

including damages for permanent injury based on torn semilunar cartilage in her knee. obtained a $7. The Court concludes that the evidence supporting Defendant's contention that Plaintiff was required to submit to surgery were not so clear and convincing to make it proper for this Court to decide those questions as a matter of law. Plaintiff obtained a jury verdict for $7. The standard applied is whether an ordinary. • In the present case defendant did not request an instruction on mitigation of damages. 266 Or. a plaintiff has a duty to mitigate those damages by submitting to treatment that would cure the damages if a reasonable person would do so under the same circumstances. No. Brief Fact Summary. The jury found that she would no longer be able to engage in the strenuous physical education activities she had previously engaged in during her work as a substitute teacher. including the risk involved. Zimmerman (Plaintiff). Ausland (Defendant). Discussion. preventing Plaintiff from engaging in strenuous physical education activities. The Plaintiff. . Synopsis of Rule of Law.2d 1167 (1973). These damages included a permanent injury based on torn cartilage. Ausland Zimmerman v. Several factors are considered in this analysis. the Plaintiff would not be entitled to claim damages for permanent injury. Nonetheless.201 Zimmerman v. the probability of success and the expenditure of money or effort required. but actually a rule that does not allow recovery of damages the plaintiff could have avoided. • It is well established that a plaintiff in a personal injury case cannot claim permanent injury damages if the permanent injury could have been avoided by submitting to treatment by a physician when a reasonable person would do so under the same circumstances. In order to recover for permanent injuries. Plaintiff was injured during an automobile accident caused by the negligence of Defendant. Ausland Citation.500 jury verdict for damages incurred during an automobile accident caused by the Defendant. prudent person would have submitted to a surgical operation. Issue. The duty to mitigate is not a true duty. Did the trial court err by submitting to the jury the issue of whether plaintiff sustained a permanent injury and in instructing the jury on plaintiff's life expectancy based on Standard Mortality Tables? Held. Judgment affirmed. 427. if the facts are such that the Plaintiff failed to mitigate her damages as a matter of law. Facts. 513 P.500.

requiring 75% of a punitive damage award be placed in a fund." • The court observed. it has been held civil plaintiffs. The plaintiff has no property to be taken except to . Indiana's statute authorizing an award of punitive damages was Indiana Code section 34-51-3-6. The Appellee added certain personal information about the Appellant on the pictures. they are quasi-criminal in nature. The Appellee distributed certain of the nude photographs to 60 persons in the small community in which they both lived and worked. an ex-husband circulated certain nude pictures of his ex-wife to various people. Rather.000 in punitive damages. The Appellant argued that the portion of section 34-51-3-6 requiring 75% of punitive damages be paid to the treasurer. The portion of the punitive damage statute. to be deposited in a fund for violent crime victims. The court first observed that the purpose of a punitive damage award is "not to make the plaintiff whole or to attempt to value the injuries of the plaintiff.000 in compensatory damages and $100. Unlike a claim for compensatory damages. the trier of fact is not required to award punitive damages even if the facts that might justify an award are found. The Appellant brought suit alleging invasion of privacy and intentional infliction of emotional distress. Facts. the Appellee retained certain nude pictures of the Appellant and other pictures of the two parties engaged in a consensual sexual act. Pohle Cheatham v. Synopsis of Rule of Law. Inc. The ex-wife was awarded compensatory and punitive damages after bringing suit. Gore]. does not work a taking. the essential point is that because punitive damages do not compensate the plaintiff.' have historically been viewed as designed to deter and punish wrongful activity. The court observed. As such." Along these lines. One provision of the statute required 75% of any punitive damage award be paid to the Indiana state treasury. were divorced in 1994. Am. violated the Takings Clause in the United States Constitution ("Constitution") and the Indiana State Constitution. Whether section 34-51-3-6's provision requiring 75% of any punitive damage award be paid to the state treasury." Pursuant to [BMW of N. Pohle Citation. like victims in a criminal case. "[f]or our purposes. state legislatures are granted "broad discretion in authorizing and limiting the award of punitive damages. 789 NE.202 Cheatham v. "any interest the plaintiff has in a punitive damages award is a creation of state law. The Appellant. After the divorce. have no right to receive punitive damages. and the Appellee. After a divorce. A jury awarded the Appellant $100. 2003) Brief Fact Summary. Issue. the plaintiff has no right or entitlement to an award of punitive damages in any amount. Doris Cheatham (the "Appellant"). v. Michael Pohle (the "Appellee"). punitive damages.2d 467 (Ind. violates the Constitution and the Indiana State Constitution? Held. just as they do in fashioning criminal sanctions. sometimes designated 'private fines' or 'exemplary damages.

" Discussion. unless the state legislature makes such a determination.203 Cheatham v. and the remainder is to go to the Violent Crime Victims' Compensation Fund." Accordingly. This case makes it clear that punitive damages are not the property of whom they are awarded. "there is no taking of any property by the statutory directive that the clerk transfer a percentage of the punitive damages award to the Fund. . Pohle the extent state law creates a property right." The state of Indiana chose "to define the plaintiff's interest in a punitive damages award as only twenty-five percent of any award.

Additionally. The Campbells' policy limit was $50. (the "Petitioner"). fraud. it he were to bring a "bad faith action against State Farm and to be represented by Slusher's and Ospital's attorneys. When analyzing the validity of a punitive damage award. The Utah Supreme court reinstated the punitive award. is excessive and in violation .849 above the policy limits. the Petitioner refused to pay the excess $135. an award of $145 million in punitive damages.204 State Farm Mutual Automobile Insurance Co. the Utah Supreme Court denied Mr. that they had no liability for the accident." Facts. where full compensatory damages are $1 million.849 was entered against him. Synopsis of Rule of Law. and State Farm satisfied the entire judgment. contested liability and declined offers to settle with the estate of the deceased and with the permanently injured individual. agreed not to satisfy their claims against Mr. Campbell State Farm Mutual Automobile Insurance Co. Mr. Campbell and his wife were unscathed. and that they did not need to procure separate counsel. "[W]hether. the Petitioner. that [State Farm] would represent their interests.6 million in compensatory damages and $145 million in punitive damages. Campbell to appeal the verdict. It was determined that Mr. A car accident occurred resulting in the death of one individual. An accident ensued.Ct. Nonetheless. Campbell was driving on the wrong side of the highway. The trial court reduced the compensatory award to $1 million and the punitive award to $25 million. Gore] must be applied. who was not injured. Initially. By doing so. State Farm would not post a bond to allow Mr. acted inappropriately. Campbell. Campbell and his wife's appeal. The insurance company of the driver at fault. Mr. The estate of the deceased and the individual that was incapacitated. Mr. alleging "bad faith. Issue. and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. v. Despite the outcome of the appeal. and the driver sued the company and was awarded a substantial amount of compensatory and punitive damages. and a jury found that Mr. Mr. Curtis Campbell ("Mr. The Campbells retained their own counsel for the appeal. and intentional infliction of emotional distress. the three guideposts from [BMW v. State Farm Mutual Automobile Insurance Co. Campbell and his wife filed suit against the Petitioner. v. and the incapacitation of another. The Petitioner assured the Campbells that "their assets were safe. Those include: "(1) the degree of reprehensibility of the defendant's misconduct. Campbell") (collectively referred to as the "Campbells") attempted to pass six vans on a two-lane highway. 123 S. Campbell was 100% at fault and a judgment of $185. Campbell's unsafe pass caused the accident. In 1989. and one individual was killed and another permanently disabled. [based on the circumstances]. While driving with his wife.000. 1513 (2003) Brief Fact Summary." The jury awarded the Campbell's $2." Slusher and Ospital were the representatives of the deceased and the incapacitated victims of the accident. Campbell Citation." The case eventually went to trial. (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award. however. Campbell's insurer.

• The court then construed the second guidepost and refused to "impose a bright-line ratio. • The third and final guidepost concerned the "the disparity between the punitive damages award and the 'civil penalties authorized or imposed in comparable cases. "[t]he most relevant civil sanction under Utah state law for the wrong done to the Campbells appears to be a $10. The court first recognized there are procedural and substantive constitutional limitations on compensatory and punitive damages awards. that. Specifically "[t]he Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor. and the harm was the result of intentional malice. which a punitive damages award cannot exceed. Yes. to a significant degree. the target of the conduct had financial vulnerability. few awards exceeding a single-digit ratio between punitive and compensatory damages." However. the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others. v. especially since the damages in the case before itwere entirely economic and not physical." The court then criticized the Utah Supreme Court's condemning of the Petitioner "for its nationwide policies rather than for the conduct directed toward the Campbells." Further. the reinstatement of the $145 million dollar punitive damage award was excessive. Gore]." The court recognized that the $1 million compensatory award was complete compensation." The court discussed each in turn. courts are instructed to examine three "guideposts" when construing the validity of a punitive damage award: "(1) the degree of reprehensibility of the defendant's misconduct. Campbell of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States"? Held. however." which it says is the most important of the guideposts." The court also found that the punitive damage award could not be upheld under the guise that State Farm was a recidivist. or mere accident. and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. or deceit. in practice. • The court first discussed the "reprehensibility of the defendant's misconduct.205 State Farm Mutual Automobile Insurance Co. trickery. Reprehensibility is judged "by considering whether: the harm caused was physical as opposed to economic. [ ] an amount dwarfed by the $145 million ." Moreover. the majority recognized the Utah Supreme court "awarded punitive damages to punish and deter conduct that bore no relation to the Campbells' harm. the majority recognized "[o]ur jurisprudence and the principles it has now established demonstrate. will satisfy due process. the conduct involved repeated actions or was an isolated incident. (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award." Based on [BMW v. "[i]n the context of this case.to-1 ratio. we have no doubt that there is a presumption against an award that has a 145. ' " The court observed.000 fine for an act of fraud.

" However. Ginsburg") entered a dissenting opinion arguing that punitive damages awards are the prerogative of the states.206 State Farm Mutual Automobile Insurance Co." • Justice Clarence Thomas ("J." The court refused to look at criminal penalties in making their assessment. Ginsburg recognized that "[w]hen the Court first ventured to override statecourt punitive damages awards. to a significant degree. that the Due Process Clause provides no substantive protections against 'excessive' or 'unreasonable' awards of punitive damages. Thomas") also filed a dissenting opinion arguing "the Constitution does not constrain the size of punitive damage awards.' [ ] the Court announces that 'few awards exceeding a single-digit ratio between punitive and compensatory damages. No longer content to accord state-court judgments 'a strong presumption of validity." • Justice Ruth Bader Ginsburg ("J. v. Justice Antonin Scalia ("J. Gore]. it did so moderately. Campbell punitive damages award. she argued "[t]oday's decision exhibits no such respect and restraint. This case offers a good example of how the [BMW v. will satisfy due process. . Inc. Scalia") filed a dissenting opinion adhering to his view expressed in his "dissenting opinion in [BMW of North America. J." Discussion. "I would not join the Court's swift conversion of those guides into instructions that begin to resemble marching orders. Dissent.' " As such. Gore] factors should be applied. v.

Wrongful Death And Survival .207 CHAPTE R XI.

States Marine Lines. 375.Ed.S.Ct. Inc. Edward Moragne. The United States Supreme Court (Supreme Court) took the case to determine if the previous case law was still applicable. 1772. States Marine Lines. Brief Fact Summary. The Petitioner. 119 U.2d 339 (1970). The historical reason for the rule was the felony-merger doctrine. Inc. this applied only to a victim's own personal claims and did not include a dependant's injuries that he suffered from the victim's death. Issue. Judgment reversed and remanded. Based on these facts. Facts. (Respondent). a longshoreman. • Legislatures both here and in England began to show disapproval for the rule. Citation. However.S.208 Moragne v. 26 L. the owner of the vessel. brought a wrongful death suit in state court against the Respondent. Synopsis of Rule of Law. The Supreme Court took this case to determine if it's decision in The Harrisburg.. where in England civil recovery was not allowed in felony cases because the tort and felony merged as an offense against the Crown. 199 (1886). Petitioner brought a wrongful death claim on behalf of her dead husband. Should the Supreme Court continue to apply the holding of The Harrisburg. The law applied in personal-injury cases will govern questions that arise in death cases. was killed while working on a vessel in navigable waters. Discussion. The Supreme Court overturns it's previous holding in The Harrisburg and allows for a wrongful death action in maritime law. 398 U. This rule never existed in America. This Court will not determine whether the beneficiaries are entitled to recover at this time. but the American courts adopted the common law rule that wrongful death actions were not actionable. States Marine Lines. At common law. No. with every State here eventually enacting wrongful-death statutes. Previous case law had determined that maritime law does not afford a cause of action for wrongful death. a personal cause of action in tort did not survive the death of its possessor. this Court overrules the holding in The Harrisburg. the deceased's widow (Petitioner). that maritime law does not afford a cause of action for wrongful death? Held. Inc. 90 S. • The holding of The Harrisburg has little justification except in primitive legal history. These statutes make it clear that there is no public policy against allowing recovery for wrongful deaths. is still acceptable law. Moragne v. . that maritime law does not afford a cause of action for wrongful death.

209 Selders v. and companionship of the child. Was the trial court proper in limiting the wrongful death award for plaintiffs to their pecuniary loss? Held. Thus. Issue.W. The trial court instructed the jury that the damages allowed included only the monetary value of the contributions and services. Judgment of trial court as to liability is confirmed. 207 N. Under Nebraska law. No. • The original pecuniary loss concept arose from a historical tradition when children during minority were regarded as an economic asset to parents. 190 Neb. and companionship of the children are compensable. were killed in an automobile accident due to the negligent conduct of the defendants. which the parents could reasonably have expected to receive from the children less the reasonable cost to the parents of supporting the children. education. aged 15. comfort. However. Discussion.2d 686 (1973). and companionship of the children are compensable elements of damage. based on a fictitious future that will never happen. The defendants contended that the measure of damages is limited to pecuniary loss. We see no reason for this discrepancy. The majority's opinion arbitrarily overrules 50 years of settled law for no clear purpose. Synopsis of Rule of Law. judgment as to damages is reversed and remanded. Defendants asserted that damages are limited to pecuniary loss. Dissent. Brief Fact Summary. Pecuniary loss statutes that have the trier of fact determine the monetary contribution that the decedent would have made during his lifetime to plaintiff are known . and 9. damages in wrongful death cases deal with a speculative future life. 13. while plaintiffs asserted that the loss of society. and maintenance. comfort and companionship are recoverable for a child's death in a wrongful death suit. the Court imposes no such limit for injuries to the marital relationship. comfort. while plaintiffs asserted that loss of society. comfort. along with evidence of amounts invested in nurture. but this Court has imposed such a restriction. statutes do not limit damages for wrongful death to pecuniary loss. the court held that the measure of damages in a child's wrongful death suit shall include the loss of society. 275. • In this state. Plaintiffs sued for the wrongful death of their three children. Today. This resulted from the early age at when children would go to work. Armentrout Selders v. Three children. the loss of society. Facts. Armentrout Citation. To literally limit wrongful death damages for a child to the monetary value of the services the next of kin could have reasonably expect to receive would result in the average child being of negative worth.

210 Selders v. . However. a growing number of states have followed the principle case. Armentrout as loss-to-survivors statutes. allowing recovery for loss of companionship or consortium.

Handbook of the Law of Torts 4th ed. Murphy (Plaintiff). Therefore.2d 423. Murphy v. Plaintiff brought suit under both the Wrongful Death Statute and the Survival Statute. The trial court dismissed the Survival Statute Claim. Martin Oil Co.Rev. Both parties appealed to the State Supreme Court. 308 N. Professor Prosser has noted that the majority of jurisdictions now allow an action for personal injuries in addition to an action under wrongful death statutes [Prosser. Facts. The Plaintiff. at 901 (1971)]. Issue.1971. Citation. Brief Fact Summary. then died from his injuries. this Court has held that the Survival Statute was intended to allow the survival of a cause of action only when a the injured party died from something other than that which caused the injuries which gave rise to the original cause of action. par. then died from his injuries.E. which created the cause of action? Held. Yes. Plaintiff's husband survived for nine days. 339 (1934)] is cited in support of Plaintiff's claim for damages for the decedent's physical and mental suffering and loss of wages for the nine day period following his injury and for the loss of his clothing worn at the time of his injury. Synopsis of Rule of Law. Previously. The appellate court allowed the claim in part.'s (Defendant) premises. 3. Damages for loss of property. loss of wages and the pain and suffering of decedent when decedent died from the injuries. The Plaintiff's husband was injured in a fire on the Defendant's premises. loss of wages and the pain and suffering of a decedent are allowed under survival statutes when the decedent later dies from injuries which created the cause of action. • Actions under the Illinois Wrongful Death Act are limited to recovery of pecuniary losses from loss of support to the surviving spouse or next of kin.211 Murphy v. 56 Ill. Judgment reversed insofar as it held that Plaintiff could not maintain an action for decedent's pain and suffering. Mrs. This Court believes that decisions that allow an action for fatal injuries in addition to wrongful death are preferable to the Court's previous holdings. Ill. previous holdings are overruled and actions . Martin Oil Co.2d 583. Martin Oil Co. sued under both the Wrongful Death Statute and the Survival Statute for injuries sustained by her husband during a fire at the Defendant.Stat. • The Survival Statute [Illinois Survival Statute. Can a plaintiff maintain an action under the Survival Statute for loss of property. ch. Judgment affirmed insofar as it held that an action may be maintained for loss of property and wages incurred during the interval between injury and death. Plaintiff's husband survived for nine days.

but today survival statutes have modified these rules in almost every jurisdiction. Discussion. under both the Survival Statute and the Wrongful Death Statute will be allowed. Under English common law personal tort actions died with the decedent. .212 Murphy v. Martin Oil Co.

D e f e n s e s .213 C H A P T E R X I I .

so the accident happened entirely at his own fault. The Plaintiff. the jury should find a verdict for the Defendant. A witness stated that if the Plaintiff had not been riding violently.214 Butterfield v.Rep. 926 (K. The Plaintiff cannot recover for casting himself on an obstruction made by the fault of another if he did not use common and ordinary caution to be in the right. was injured when he rode his horse into an obstruction placed into the road by the Defendant. he would have seen the obstruction. did not see the pole and was thrown from his horse by the pole.B. Forrester (Defendant). he would have been able to see and avoid the obstruction. . The plaintiff's failure to exercise reasonable and ordinary care in this case is a complete bar to recovery from the defendant. • Justice Bayley: If the Plaintiff had used ordinary care. Synopsis of Rule of Law. The Defendant had put up a pole across a public road for the purpose of making some repairs to his house. Discussion. No. initializing the concept of contributory negligence. injuring himself. • Chief Justice Lord Ellenborough: One person being in fault will not dispense with another's using ordinary care for himself. 11 East 60. The Plaintiff. Forrester Butterfield v. he would have been able to see and avoid the pole. Brief Fact Summary. Forrester Citation. Issue. 103 Eng. Butterfield (Plaintiff). The judge directed the jury that if they found that a person riding with reasonable and ordinary care could have avoided the obstruction and if Plaintiff was not riding with ordinary care. Rule refused. Facts. The jury found for Defendant. 1809). riding violently. The Court's holding in this case is demonstrative of common law contributory negligence. Is the defendant liable for injuries caused by his negligence when the plaintiff could have avoided the injuries by exercising reasonable and ordinary care? Held. which completely bars recovery if plaintiff's negligence contributed to the happening of the accident. A witness said that if Plaintiff had not been riding hard.

and the Plaintiff was some distance away. Is a defendant liable for injuries caused by his negligence when the plaintiff's negligence was also a cause of the injury? Held. an action is maintainable. he is liable for the consequences of his negligence. he is liable. came along the path at a quick pace and ran down the ass. but failed to do so. 588 (Exchequer 1842). Synopsis of Rule of Law. Yes. if the Defendant could have avoided injuring the animal through proper care. 152 Eng. The Defendant. If the defendant had an opportunity to avoid the accident after the plaintiff no longer had such an opportunity. The holding in this case has developed into the doctrine of last clear chance. Mann Citation. & W. Issue. • Chief Bench Lord Abinger: Even if the animal was unlawfully in the road. Facts. Davies (Plaintiff).215 Davies v. Mann Davies v. • Bench Parke: Defendant was bound to go along the road at a pace likely to prevent mischief. The jury found their verdict for the Plaintiff. an action was maintainable for the Defendant. Discussion. Mann (Defendant). Brief Fact Summary. 10 M. 547. the defendant has a duty to do so or else he will bear the loss. where if the defendant had the opportunity to avoid the accident after the opportunity was no longer available to the plaintiff. killing it. The judge instructed the jury that even if leaving the ass fettered in the highway was an illegal act. and the defendant improperly did not avoid the accident. . had his ass illegally tethered along a public highway.Rep. The Plaintiff. The Plaintiff had an ass grazing on the side of a public highway. killing it. if the proximate cause of the injury was attributable to the lack of proper conduct on the part of the Defendant. The ass was fettered. The judge instructed the jury that if the proximate cause of the injury was due to the lack of proper conduct of the Defendant. This initiated the last clear chance doctrine. The Defendant's wagon came down the path at "a smartish pace" and knocked down the ass.

Defendant answered that Plaintiff was contributorially negligent. The Court of Appeals affirmed. . or when plaintiff's negligence is remote. they ruled in favor of the Defendant. Plaintiff appealed and requested that the court adopt comparative negligence. Plaintiff brought a negligence action against Defendant and the lessee of the truck. Should Tennessee adopt the doctrine of comparative negligence? Held. The contributory negligence bar to recovery may have developed as on outgrowth of issue pleading. The jury found for the Defendant based on the contributory negligence doctrine. [11 East 60.W. Shortly thereafter. Plaintiff appealed. alleging the trial court erred by refusing to instruct the jury regarding the doctrine of comparative negligence. 103 Eng.17 and testimony suggested that Defendant was speeding. with both parties being partially responsible. The jury found the Plaintiff and Defendant equally at fault. Clifford Balentine (Defendant).1992). • Tennessee has followed the general rule of barring recovery for contributory negligence. Facts. where questions posed had to be answered yes or no. As Defendant traveled south on Highway 69 in Savannah. Plaintiff's truck struck Defendant's tractor. Tennessee adopts modified comparative negligence. Synopsis of Rule of Law. Yes. therefore. Based on the general acceptance of comparative fault throughout the nation. gross negligence. actions falling under the last clear chance doctrine. allowing plaintiffs to recover so long as their negligence does not exceed the negligence of the defendant.2d 52 (Tenn. the Court abandoned the unjust doctrine of contributory negligence and adopts a system of comparative fault. Plaintiff's blood alcohol content was measured at . in part due to operating his vehicle while intoxicated. The Plaintiff. Balentine Citation. Forrester. • The common law doctrine of contributory negligence has been traced to Butterfield v.Rep. Tennessee. Brief Fact Summary. leaving common law courts to award all or nothing. Issue. with severe injuries resulting to Plaintiff. Harry McIntyre (Plaintiff) and the Defendant. were involved in a car accident. Judgment reversed in part and affirmed in part (on a separate issue) and remanded. 926 (1809)]. Plaintiff pulled out of a truck stop. allowing for exceptions for intentional conduct. Both men had consumed alcohol the evening of the accident.216 McIntyre v. The Plaintiff and Defendant were involved in a motor vehicle accident. 833 S. Balentine McIntyre v.

Therefore. pure and modified comparative fault. Under the pure form. . To provide guidance to the trial courts. Balentine • Two basic forms of comparative fault are used throughout the nation. defendants answering allegations in negligence will be permitted to allege that a non-party contributed to or caused the injury as an affirmative defense and the trial court shall instruct the jury to assign a percentage of the total negligence to this nonparty. the court also held that the doctrines of remote and contributory negligence are obsolete. or is less than 49% of defendant's negligence. The Uniform Contribution Among Tortfeasors Act [T. plaintiffs may recover as long as plaintiff's fault is less than the combined fault of tortfeasors. Discussion. §§ 29-11-101 to 106 (1980)] will no longer determine the apportionment liability between co-defendants. except plaintiffs recover only if plaintiff's negligence either does not exceed does not exceed 50%. as well as the doctrine of joint and several liability. so long as plaintiff's negligence remains less than defendant's the plaintiff may recover. • This Court adopts the modified form of comparative fault in an effort not to fully abandon the state's fault-based tort system. Only four states continue to apply the common law doctrine that contributory negligence as a complete bar to recovery. Also. The modified form is the same as pure.C.217 McIntyre v. Finally.A. damages are reduced in proportion to the amount of negligence attributed to the plaintiff. in the case of multiple tortfeasors.

which included the following provision: "Important Information: I. 2000) Brief Fact Summary.D. undue influence. damages. mistake." Facts. Seigneur was injured during an initial evaluation. the court held "that this contract provision expresses a clear intention by the parties to release NFI from liability for all acts of negligence. "In Maryland. The court first observed "there is no suggestion that the agreement between NFI and Ms. Seigneur and her husband brought suit against National based on a theory of vicarious liability. Inc. Subsequent to the incident. Seigneur reported on her membership contract that she had a very bad lower back. I do expressly hereby forever release and discharge NFI. Ms. Ms." • The court observed "[i]n Maryland. staff. demands. Seigneur when she hurt her shoulder was negligent. App. unambiguous exculpatory clauses are generally held to be valid in the absence of legislation to the contrary. Inc. injuries. National filed a motion to dismiss." • During her initial evaluation. National Fitness Institute. or courses of action whatsoever. It is further agreed that all exercises shall be undertaken by me at my sole risk and that NFI. from all claims. injuries. to my person or property arising out of or connecting with the use of the services and facilities of NFI. 132 M. overreaching. App. Ms. National Fitness Institute. Seigneur v. Seigneur needed to have surgery on her shoulder. 752 A. actions.." Based on the language of the clause. shall not be liable to me for any claims. The health club contract included an exculpatory clause. Inc." The . Ms. the undersigned applicant. its servants. Inc. Seigneur felt a tear or a rip in her right shoulder. Seigneur chose National because they were recommended by her chiropractor. including a herniated disc and that she was generally in poor physical condition. National argued that the exculpatory clause in the contract was valid and binding. Ms. 271. Inc. Ms. Inc. Inc. actions. by me. Inc. Ms. Inc. Seigneur") was injured at a health club owned by National Fitness Institute.. Ms.2d 631 (Md. Synopsis of Rule of Law. Yes. Seigneur argued that it was a contract of adhesion and the exculpatory clause void as against public policy.218 Seigneur v. or courses of action. demands. A member of a health club was injured during a consultation with a trainer. Is the exculpatory clause in the fitness club's contract enforceable? Held. and from all acts of active or passive negligence on the part of NFI. agree and understand that I must report any and all injuries immediately to NFI. agents or employees. Seigneur was the product of fraud. Seigneur filled out and signed a "Participation Agreement". Further. Citation. ("National"). damages. or the like. or to the premises of NFI. They alleged that National's employee working with Ms. Issue. unambiguous exculpatory clauses are generally held to be valid in the absence of legislation to the contrary. Gerilynne Seigneur ("Ms. which the court treated as a summary judgment motion.

• As to the third. But ultimately. Ms.' such that 'the common sense of the entire community would ··· pronounce it' invalid. the appropriate inquiry was to assess "whether the party seeking exoneration offered services of great importance to the public. the exculpatory clause was prominently displayed and Ms." • The court also recognized public policy "includes those transactions. purchased her own fitness equipment or exercised at home without fitness equipment." . the court observed that the contract at issue was one of adhesion." In assessing public policy. Inc. • As to the second." This conclusion was based on the observation that "[h]ealth clubs are a good idea and no doubt contribute to the health of the individual participants and the community at large. And any analogy to schools. or gross negligence." Based on this definition of public policy. To illustrate its point. court then discussed three exceptions to the general rule that exculpatory clauses are enforceable. hospitals. the court concluded "[National] does not provide an essential public service such that an exculpatory clause would be “patently offensive” to the citizens of Maryland. Seigneur could have went to another health club. wanton. does not demonstrate grossly unequal bargaining power. Seigneur did not allege she was not aware of it. "[t]he ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations." The court concluded that "there is no special legal relationship and no overriding public interest which demand that this contract provision. They include "(1) when the party protected by the clause intentionally causes harm or engages in acts of reckless. not readily susceptible to definition or broad categorization. and (3) when the transaction involves the public interest. the court recognized National had various competitors that provided the same non-essential health club services that National provided. voluntarily entered into by competent parties. National Fitness Institute. that are so important to the public good that an exculpatory clause would be 'patently offensive. Health clubs do not provide essential services. (2) when the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other's negligence. should be rendered ineffectual. The court also observed that this fact alone." The court recognized that only the second and third exceptions are applicable here. however. Additionally. which were a practical necessity for some members of the public. housing (public or private) and public utilities therefore fails. they are not essential to the state or its citizens.219 Seigneur v." The court observed that "courts have found generally that the furnishing of gymnasium or health spa services is not an activity of great public importance nor of a practical necessity. The court also argued.

The [Tunkl] court stated: "It concerns a business of a type generally thought suitable for public regulation. and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. The court also relies on certain factors enunciated by [Tunkl v. As a result of the essential nature of the service. the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. The party seeking exculpation is engaged in performing a service of great importance to the public. subject to the risk of carelessness by the seller or his agents. the person or property of the purchaser is placed under the control of the seller. Regents of the Univ. Discussion. as a result of the transaction. of California] to determine what effects the public interest. The court recognizes. The party holds himself out as willing to perform this service for any member of the public who seeks it. reliance on only six factors may be arbitrary. National Fitness Institute. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation. that due to the fluidity of the notion of public policy. or at least for any member coming within certain established standards." . Finally. however. in the economic setting of the transaction. Inc.220 Seigneur v. which is often a matter of practical necessity for some members of the public.

Implied assumption of the risk is applicable only when a plaintiff voluntarily encounters a known risk. The rented premises had a detached privy for the use of two houses. Synopsis of Rule of Law. (Defendant). Rush v. Commercial Realty Co. Issue. Did the trial court err by not directing a verdict in favor of the Defendant based on Plaintiff's contributory negligence or assumption of the risk? Held. Plaintiff was a tenant of the Defendant. Citation. 337. Plaintiff won a suit against the Defendant landlord. Facts.221 Rush v. using the facilities placed at her disposal was not assumption of the risk. Assumption of the risk requires actual knowledge of a particular risk. No. Discussion.J. Plaintiff went to the privy and fell through the floor or through a trap door therein. Plaintiff fell nine feet into the accumulation at the bottom and had to be removed with the use of a ladder. The Plaintiff. Therefore. Brief Fact Summary. The jury could reasonably find that the accident was the result of Defendant's negligence. the only applicable questions are if Plaintiff assumed the risk or was contributorily negligent. Whether it was contributory negligence to step on the badly maintained floor was a question for the jury. claiming that it erred in refusing a nonsuit and erred in refusing to direct a verdict for the Defendant.Misc. The Defendant appealed. appreciation of its magnitude and voluntarily encountering the risk. 7 N. Defendant appeals the trial court verdict. Commercial Realty Co. Judgment affirmed. • The building was under the control of the Defendant and it had a duty of care for maintenance. 476 (1929). Therefore. Commercial Realty Co. Plaintiff had no choice. but to use the bathroom and had no duty to go elsewhere to do so. tenant Rush (Plaintiff). was injured when she fell through the floor of a detached privy. . 145 A.

(ii) between primary and secondary and (iii) between strict and implied. 348 So. This terminology is subsumed in the principle of negligence itself. which is reasonable. in that case the court left the viability of assumption of the risk for a future day.1977). Three cases where consolidated by the Supreme Court of Florida to determine if the doctrine of implied assumption of the risk was viable as an absolute bar to recovery subsequent to adoption of comparative negligence. Strict secondary assumption of the risk involves conduct. Issue. • Secondary assumption of the risk is an affirmative defense to an established breach of duty owed by the defendant to the plaintiff.222 Blackburn v.2d 287 (Fla. either because he owed no duty to the defendant or because he did not breach a duty owed. but rather would be considered in apportioning damages. The concept grew out of the master-servant relationship. The affirmative defense of implied assumption of the risk is merged into the defense of comparative negligence. • Several categories of assumption of the risk have developed. The court notes that assumption of the risk is not a favored defense and that it generally serves no purpose not covered by the doctrine of contributory negligence or common law duty. • In Hoffman v. Is the doctrine of implied assumption of the risk still viable as an absolute bar to recovery subsequent to adoption of comparative negligence? Held. but nonetheless bars recovery. including (i) distinctions between express and implied. Dorta Citation. • Primary assumption of the risk occurs when the defendant is not negligent. Three cases where consolidated by the Supreme Court of Florida to determine if the doctrine of implied assumption of the risk was viable as an absolute bar to recovery subsequent to adoption of comparative negligence. 280 So. Synopsis of Rule of Law. This Court's determination deals with implied assumption of the risk. This defense can be further divided into strict and qualified assumption of the risk. this Court held that contributory negligence would no longer be a complete bar to negligence. Brief Fact Summary. No. Jones. However. Facts. The concept of comparative negligence eliminates the need for the affirmative defense of implied assumption of the risk. Thus there is no useful purpose in retaining it. Dorta Blackburn v.2d 431 (Fla1973). The court found nothing in .

. This Court holds that the principles of comparative negligence will be applied in any case where the defense of implied assumption of the risk is asserted. This Court expressed no opinions on the subject.223 Blackburn v. Discussion. • Qualified secondary assumption of the risk is conduct that is unreasonable and bars recovery. Dorta either case law or justice to validate this rule under the modern comparative negligence scheme. Such conduct can just as easily be characterized as contributory negligence. Express assumption of the risk is a contractual obligation such as a release signed by a plaintiff.

so that the statute of limitations commences to run when the patient discovers. Plaintiff delivered a premature child. Judgment reversed and remanded.2d 104 (1928)]. Plaintiff did not discover the negligence until three years later when she gave birth. so as to begin the running of the statute of limitations? Held. Under this doctrine. this decision was outdated and the court felt it was time to re-examine its past holdings. . Issue. Synopsis of Rule of Law. the courts have traditionally held that an action begins to accrue immediately upon the infliction or occurrence of injury. Currey (Defendant). • The purpose of statutes of limitations is to promote stability and to avoid the burdens of defending stale claims. However. The Defendant. Teeters (Plaintiff) that was intended to prevent future pregnancy. Austin. Plaintiff initiated a malpractice suit. should have discovered the resulting injury. The Defendant pleaded the statute of limitations in his answer. Justice Harbison's concurrence is omitted. with severe complications. [156 Tenn. • In response to the results of this harsh rule. regardless of a failure by the plaintiff to discover his cause of action. Concurrence. Brief Fact Summary. 1973. • In Bodne v. Was the trial court correct in holding that the cause of action accrues when the injury occurs. Currey Citation. On June 6. the Court held that the failure to discover the existence of a cause of action did not prevent the running of the statute of limitations. negligently performed a surgery on the Plaintiff.1974). In recognition of these goals.W. On March 9. the statute of limitations in medical malpractice actions begins to run when the plaintiff discovers.224 Teeters v. Facts. No. Under Tennessee law. or in the exercise of reasonable care and diligence for his own health and welfare. but approximately eleven months after discovering the pregnancy. the statute does not begin to run until the negligent injury is. or reasonably should have discovered the negligent injury. This suit was initiated over three years after the operation. or should have been discovered. 1970 the Plaintiff underwent surgery at the advice of her doctor to prevent future pregnancy. 518 S.W.2d 512 (Tenn. a majority of American states have adopted the discovery doctrine. 366. alleging that the Defendant's previous surgery was negligently performed. Currey Teeters v. The court adopts the discovery rule for cases involving the negligent performance of surgical procedures. Plaintiff sued and Defendant answered claiming the statute of limitations as a bar to recovery. 2 S.

Currey Discussion. . The statute of limitations is a complete bar to actions.225 Teeters v. The time period by which to bring an action varies in length. with most states imposing a two or three year limitation for actions sounding in tort.

Clifford Freehe (Plaintiff). • A second reason for interspousal immunity is the theory that tort suits would destroy the peace and tranquility of the home.226 Freehe v. was injured on a negligently maintained tractor owned by the Defendant. Judgment reversed and remanded. Plaintiff brought suit. either no action will be commenced or the spouses will allow the action to continue only as long as their personal harmony is not in jeopardy. Plaintiff was injured on a tractor and sued for personal injuries. these alternatives fail to compensate for the damage done. The Plaintiff. along with all of the assets and income of the farm on which the accident took place. Synopsis of Rule of Law. whereby a wife essentially became the chattel of her husband upon marriage. Defendant claimed interspousal immunity.2d 771 (1972). his wife.2d 183. nor is he employed by the Defendant. It has also been argued that allowing such litigation would flood the courts with matrimonial disputes. The trial court granted Defendant's motion for summary judgment based on interspousal tort immunity. Plaintiff had no interest in the tractor or the farming operation. the . However. No. Issue. Facts. Plaintiff has no interest in the farming operation. • Defendant also argues that disallowing interspousal immunity would encourage collusion and fraud due to liability insurance. Hazel Knoblauch (Defendant). allowing spouses to bring suit against one another in tort. Brief Fact Summary. Was the trial court correct to grant defendant summary judgment based on interspousal tort immunity? Held. • Interspousal immunity is a common law rule. This has not proved to be true in other States disallowing interspousal immunity. Plaintiff brought suit. this court believes that if a state of peace and tranquility exists. However. claiming negligent maintenance of the tractor and failure to warn of the tractor's unsafe condition. The tractor was the separate property of his wife. This does not comport with modern reality and therefore is not a valid premise to continue to allow interspousal tort immunity. • A third reason is that the injured spouse can resort to criminal and divorce laws. 81 Wash. It is based on the unity of husband and wife. Freehe Freehe v. the Defendant. 500 P. Freehe Citation. The Supreme Court of Washington abandoned the interspousal immunity rule. However.

Therefore. Since the rule was not made or sanctioned by the legislature. Interspousal immunity has been abandoned in a majority of states today. defendant argues that any change in interspousal immunity is a matter for the legislature.227 Freehe v. Discussion. Freehe courts will not immunize tortfeasors from liability in a whole class of cases due to the possibility of fraud. this Court feels free to intervene in the matter. • Finally. . the rule of interspousal immunity is abandoned.

McLean Citation. when the Defendant.1997). Plaintiff launches a three-pronged attack on the doctrine claiming that (1) adult children should be allowed to maintain actions against their parents for injuries occurring in their minority. allowing emancipated children to file actions against their parents for injuries occurring in minority between fifteen and eighteen years of age? Held. 464. Plaintiff sued Defendant requesting that the court recognize an exception to the parent-child immunity doctrine. Issue. . believing that to do so would result in de facto abrogation of the valuable parent-child immunity doctrine. Brief Fact Summary. 346 Md. The parent-child immunity doctrine disallows suits between children and parents for torts occurring during the child's minority. This Court does not agree. the Defendant drove the car both women were in into the back of another car. Her mother filed a motion to dismiss based on parent-child immunity and the trial court entered judgment in favor of Defendant. 697 A. McLean Renko v. Plaintiff was seventeen at the time. Plaintiff points out that this Court has permitted suits between parents and minor children in limited circumstances. Facts. Judgment affirmed. to prevent fraud and collusion among family members and to prevent the threat that intra-familial litigation will deplete family resources. the logical step is to permit actions for acts that occur during minority. including suits by a minor child against a father's business partner and suits where the parent is guilty of acts which show complete abandonment of the parental relation. Plaintiff further contends that since this Court has already permitted children to maintain actions against their parents for acts occurring after the child reaches majority.App. The Plaintiff. Plaintiff filed suit for negligent operation of a motor vehicle after her eighteenth birthday. her mother Teresa McLean (Defendant) drove their car into the back of another vehicle. (2) no contemporary justification exists to apply the doctrine to these facts based on the availability of compulsory motor vehicle liability insurance and (3) application of the doctrine violates Articles 19 and 24 of the Maryland Declaration of Rights and the Fourteenth Amendment to the United States Constitution (Constitution).2d 468 (Md. • The parent-child immunity doctrine serves to preserve the internal harmony and integrity of the family unit.228 Renko v. The Plaintiff suffered serious injuries when her biological mother. Synopsis of Rule of Law. • In support of her first argument. Should the court recognize an exception to the parent-child immunity doctrine. No. was seriously injured while a minor. Natasha Renko (Plaintiff).

. However. Discussion. this Court notes that these suits create court situations that are not truly adversarial because the insured has every incentive to lose.229 Renko v. Although the parent-child immunity doctrine has not been abolished to the same extent as the interspousal immunity doctrine. because of family medical insurance that would necessarily compensate the injured child. along with the Fourteenth Amendment of the Constitution. many courts allow for exceptions when the policies supporting it are inapplicable. • This Court finds no merit in Plaintiff's contention that the parent-child immunity doctrine as applied to motor vehicle torts violates Articles 19 and 24 of the Maryland Declaration of Rights. families may be saddled with judgments they cannot afford to pay. finding that in these cases the action is not truly adversarial because both parties seek recovery from the insurance carrier. A majority trend agrees with Plaintiff. Additionally. McLean • Plaintiff also contends that the presence of mandatory automobile insurance causes there to be no rational objection to recovery by an emancipated child in these circumstances.

Mary's Citation. Defendant moved for summary judgment. But today charities are big business. claiming that its status as a charitable institution provided it with immunity for its torts. No. Plaintiff brought suit and the trial court granted Defendant's motion for summary judgment based on the doctrine of immunity for charitable organizations. but tends to breed neglect and irresponsibility. This negligence resulted in Plaintiff falling and sustaining multiple injuries.1969). The motion was sustained and judgment was entered for the Defendant. therefore is not applicable to justify immunity from suit. they cannot be used to pay judgments resulting from tort claims. Justice Donnelly's concurrence is omitted. Sisters of St. Judgment reversed and cause remanded. Concurrence. Mary's Abernathy v. employee negligently failed to assist him as he moved from his bed to the bathroom. The reasons for the common law rule of immunity for nongovernmental charitable organizations are no longer applicable.W. Facts. Synopsis of Rule of Law.230 Abernathy v. with most carrying insurance to pay for torts. Abernathy (Plaintiff). • The doctrine of immunity for charitable organizations arose from the belief that it was better for the individual to suffer than for society to be deprived of the benefits of the charity. However. To continue to allow immunity is not only unjust to the injured. a person who accepts the benefit of a charity impliedly agrees not to assert any actions against the charity. 446 S. • Under the implied waiver theory. Abernathy (Plaintiff).2d 599 (Mis. The Plaintiff. However. Brief Fact Summary. Sisters of St Mary's (Defendant). this theory cannot be applied equally to all persons. therefore the Supreme Court of Missouri abolished the rule. allegedly sustained injuries when the Defendant. The Plaintiff. this theory deals only with the right to satisfaction of a judgment. alleged that the Defendant's employee negligently failed to assist him as he moved from his bed to the bathroom. Issue. . Sisters of St. Should nongovernmental charitable institutions be provided with immunity for actions resulting from their negligence and the negligence of their employees? Held. • Under the trust fund theory because a charitable institution's funds are given and held for charitable purposes. especially considering that those admitted to a charitable hospital may be unconscious or under the age of consent.

Mary's Discussion. Sisters of St. .231 Abernathy v. A substantial majority of states have now abolished the charitable immunity doctrine.

This rule is unjust as applied to modern American law. asserted governmental immunity. finding for Appellee.'s arm was injured in a shredding machine during class. 305 A. In jurisdictions where governmental immunity is still applicable. as the availability of public insurance disavows such concerns. William Ayala and William Ayala Jr. Discussion. Philadelphia Board of Public Education Ayala v.) (Appellants).2d 877 (1973). brought suit to recover damages after William Jr. could commit no torts. (William Jr. Dissent. Brief Fact Summary. Synopsis of Rule of Law. Should Pennsylvania continue to apply the doctrine of governmental immunity? Held. a number of courts have held that the state's authorization of a municipal corporation to purchase liability insurance serves as an implied waiver of immunity. Facts. Philadelphia Board of Education (Appellee).232 Ayala v. as the courts routinely denied relief because the King. and the Superior Court affirmed the defense. Issue. No. Justice Manderino's concurrence is omitted. 584. The Appellee. allowing causes of action against governmental units should increase the concern for the welfare of those who might be injured by its actions. The theory of respondeat superior created problems with government employees. Additionally. 453 Pa. Equally unpersuasive is the argument that governmental units lack the funds from which claims can be paid. Concurrence. • This Court also rejects the fear of excessive litigation as justification for the doctrine. The Appellants. The Appellants brought suit to recover damages for injuries sustained by William Jr. Chief Justice Jones's and Justice Eagen's and O'Brien's dissents are omitted. Judgment reversed and remanded. The Superior Court affirmed the defense. The defense of governmental immunity is no longer applicable in Pennsylvania. The Appellee asserted the defense of governmental immunity. Philadelphia Board of Public Education Citation. As a result of the injuries. when his arm was caught in a shredding machine in the upholstery class of the Carrol School in Philadelphia. as there is little empirical evidence to support the fear.'s arm was amputated. • The doctrine of governmental immunity has its historical roots in English law. as employer. William Jr. rather than distributing the damages among the entire community constituting the government. applying the burden of damages on the single individual who suffers the injury. .

2d 860. • To allow Plaintiff's cause of action based on these facts would require this court to create a new and general duty of protection in the law of tort. New York Citation. Judge Keating state that the city's argument is that since we owe a duty to everybody.Y. 240 N. courts review administrative practices in almost every tort case against the State or a municipality and can do the same in the present case. After the assault. Plaintiff informed the police. Dissent. Plaintiff asked for protection from the police on multiple occasions.1968). if police authorities undertake responsibilities to specific individuals and expose them to risks without adequate protection. blinding her in one eye and permanently scarring her face. If any tort liabilities are imposed in this area. New York Riss v. but received little or no help. but was again refused help.233 Riss v.appell. who was in love with her.2d 897 (N. Plaintiff again contacted police. Was the Appellate Division correct in determining that a municipality is not liable for failure to provide special protection when an individual is threatened with physical harm. Brief Fact Summary.2d 579. who eventually paid someone to throw lye in Plaintiff's face. The justification for not allowing a cause of action in this case is that it would expose the state and municipality to limitless liability. Discussion. There is no empirical support for this claim.Y. she received a phone call telling her it was her last chance. Issue.S. New York (Defendant). was continuously harassed by a jilted lover. Indirectly. Police authorities are not liable for failing to provide special protection to individuals threatened with harm. as a municipality for faailure to provide her with special protection due to her circumstances. Synopsis of Rule of Law. Pugach repeatedly threatened to kill or maim plaintiff. 293 N. Plaintiff was continuously terrorized by an attorney. Unlike the present case. The Plaintiff. . seriously injuring her.E. The next day a criminal hired by Pugach threw lye in Plaintiff's face. Facts. Plaintiff sued the Defendant. Burton Pugach (Pugach). but received little or no help. This would have the effect of determining how limited police resources should be allocated without predictable limits. 22 N. Yes. tort actions are allowed.Y. Plaintiff received constant police protection for the next three and one half years. and the individual does eventually suffer harm due to the lack of protection? Held. After Plaintiff became engaged to another man. Linda Riss (Plaintiff). A divided Appellate Division dismissed the complaint. we owe it to no one. it should be the decision of the legislature. Judgment affirmed.

2d 376. While this is true. Additionally.E. the Respondents. (ii) not determining the exact location of the call.1968)] in the present case Respondent . circumstantial evidence suggests that Ms.S. Dennis S.Y. Discussion. DeLong's address. Police were directed to an incorrect address and Ms. Including (i) not asking for the name of the caller. Ms. Ms. After Ms. Individually and as Administrator of the Estate of DeLong (Respondents). When a municipality assumes a duty to a particular person. DeLong called 911 and reported an intruder attempting to break into her house. When a municipality voluntarily assumes a duty and negligently performs the duty. (iii) not addressing the caller by name and (iv) not repeating the address.D. 455 N. However. Evidence suggested that her life may have been saved if police had not been misdirected.2d 860. Issue.Y.2d 897 (N. DeLong. City of New York. including Erie County (Appellants). is the municipality liable if it fails to perform in a non-negligent manner? Held. DeLong's placing of the call in reliance on this and her further reliance when she was assured that help was on the way. 89 A. DeLong) called 911 and in response to her report of an intruder was assured that help was on the way. the holding out of the 911 number as one to be called by those in need.2d 887 (1982).S. Judgment affirmed. DeLong waited in her house for a response to the 911 call. • Respondents remind this Court that failing to provide police protection does not result in liability unless the police conduct in some way increased the risk. Erie County DeLong v. The voluntary assumption of a duty to act in this case creates an obligation to act with reasonable care. no follow up action was taken when the report came back as no such address.234 DeLong v. Respondents brought suit against the Appellants.Y. Synopsis of Rule of Law. Brief Fact Summary. Erie County Citation.appell. the municipality may be held liable if its conduct somehow increased the risk to defendant. Emilia DeLong (Ms. rather than taken other protective measures. the call taker failed to follow several instructions. [22 N. In contrast to the facts in Riss v. DeLong was stabbed to death. brought suit. DeLong was stabbed to death by the intruder. DeLong's address. but incorrectly recorded Ms.Y. The person taking her call assured her that help was on the way. in violation of operating procedures. Ms. Delong's death. Yes. 293 N. • In addition to incorrectly recording Ms. Facts. 240 N. does create a duty.2d 579. • The establishment of the emergency call system does not create a duty.

Erie County voluntarily assumed a duty and its failure to act with reasonable care increased the risk to Ms. .235 DeLong v. Delong.

Deuser's survivors (Appellants). under the discretionary function exception. brought a claim against the Appellees. National Park Rangers were working a fair held on the grounds of the Jefferson National Expansion Memorial in St. Synopsis of Rule of Law.236 Deuser v. • The Court first considered if the actions taken by the rangers were discretionary. Vecera Citation. At the time of Ms. a matter of choice. Vecera and Edward Bridges observed Mr. The discretionary function exception to the FTCA disallows civil suit against the United States when the conduct complained of was based upon the exercise of a discretionary function or duty. The rangers warned Mr. 139 F. Deuser away from the fair in a parking lot. The trial court judge dismissed the case. Rangers Mr. The rangers decided to release Mr. but they were unable to process Mr. or. was arrested and then released by National Park Rangers. Deuser grabbing women on the buttocks. The Appellants brought this wrongful death action against the Appellees under the FTCA based on the allegedly negligent acts of the park rangers. The rangers attempted to turn Mr. his blood alcohol content was 0. Facts.214. Brief Fact Summary. Louis police. Deuser and then arrested him when he urinated in public. Mr. Deuser's arrest due to their workload. Congress chose to waive the sovereign immunity enjoyed by the United States and give consent to be sued for damages caused by the negligent or wrongful act or omission of any employee of the United States acting within the scope of their employment. so as to disallow a civil suit against the United States? Held. Issue. However. Deuser was left without money or transportation. Deuser over to the St.3d 1190 (8th Cir. The Handbook made it clear that the rangers had wide latitude in making enforcement decisions and that arrests . the government is shielded from civil liability for claims based on the exercise of a discretionary function whether or not the discretion involved is abused. After being released. Vecera Deuser v. found to be drunk and obnoxious at a fair.1998). Did the action of the park rangers fall under the discretionary function exception to the FTCA. Deuser's death. For their guidance. Judgment affirmed. Mr. Louis. • In enacting the FTCA. Albert Deuser (Mr. Mr. the rangers had a written Standard Operating Procedure (SOP) for arrests and the VP Fair Operations Handbook (Handbook). Deuser wandered into a street and was killed. the United States and certain individuals including David Vecera (Mr. under the Federal Tort Claims Act (FTCA). Vecera)(Appellees). Deuser). The Appellants. Yes. At some time he was killed by a motorist after wandering onto an interstate highway.

. When the rangers first arrested Mr. Based on the Handbook and the SOP. but releasing Mr. Discussion. decisions of this kind must be within the discretion and judgment of officers. the process for arrests is precise and mandatory. • Under the SOP. After that it was not followed. and political policies and is a classic example of permissible exercise of policy judgment. Deuser terminated the arrest. • The Court then determined if the judgment involved in terminating Mr. Deuser's arrest was of the kind the discretionary function exception was designed to shield. the SOP was followed. Deuser.237 Deuser v. The court concluded that terminating an arrest is similar to the decision involved in making an arrest. Vecera would be made only on a last resort basis due to the limited manpower available. the court held that the officer's conduct was grounded in social. economic. Claims in tort against the Federal Government are a major source of litigation today. Due to the infinite number of possible scenarios.

238 C H A P T E R X I I I . V i c a r i o u s .

The pest control company came one night. unless it clearly appears that neither directly nor indirectly could he have been serving his employer. Respondeat superior imposes liability whether or not the employer was itself negligent. or attending to both at substantially the same time. Inc. health.Rptr. alleging negligent driving. and whether or not the employer had control of the employee. Hernandez. (the "Defendant"). "where the employee is combining his own business with that of his employer. Citation. Hernandez told one of her supervisors she felt ok to drive. On her way home. an employer is ordinarily liable for the injuries its employees cause others in the course of their work. As to the vicarious liability cause of action." Additionally. "acts necessary to the comfort. Facts. hired a pest control company to rid its facility of fleas.239 Bussard v. convenience. one of the Defendant's employees. • Courts have not construed the scope of the respondeat superior doctrine to reach an employee's daily commute. Barbara Bussard (the "Plaintiff"). Bussard v. The Defendant. The 'going-and-coming rule' refers to how courts have not construed the scope of the respondeat superior doctrine to reach an employee's daily commute. felt ill and left work early. "Under the doctrine of respondeat superior. 4th 798 Brief Fact Summary. The trial court granted the Defendant summary judgment according to the "going-and-coming" rule. Ms. Hernandez"). This is referred to as the 'going-and- ." ' An employer can be found liable for both its employees negligence and willful and malicious torts. do not take the employee outside the scope of employment. Ms Hernandez complained she felt dizzy and lightheaded before the accident.2d 675. the Plaintiff alleged that Ms. complaining of dizziness and lightheadedness. Synopsis of Rule of Law. Issue. On the way home. Minimed. which case law defines expansively." The respondeat superior doctrine "requires that the employee be acting within the course of her employment. Minimed. 105 Cal. and welfare of the employee while at work. alleging vicarious liability pursuant to the respondeat superior doctrine. The Plaintiff brought suit against Ms. Did the 'going-and-coming' rule apply to the facts in this case? Held. Inc. 129 Cal. Prior to leaving. Ms. The next morning. After being exposed to a pesticide. Irma Hernandez ("Ms. though strictly personal and not acts of service. No. Inc. Nine other workers went home early that day after complaining they felt ill. Hernandez was acting within the scope of her employment when driving home with pesticide exposure. App. When the police arrived. no nice inquiry will be made as to which business he was actually engaged in at the time of injury. The doctrine's animating principle is that a business should absorb the costs its undertakings impose on others." Accordingly. the employee was involved in a car accident. an employee of a company left work early. and against the Defendant. Minimed. Hernandez rear ended the Plaintiff.

In other words." The applicable standard to determine whether this rule applies." • Based on these principles. coming rule'. This case illustrates how courts apply the 'going-and-coming rule' when an employee is driving. Further.240 Bussard v." Discussion. As such. the trial court's decision was incorrect. the court observed that a car accident stemming from the "breathing [of] lingering pesticide fumes for several hours" is foreseeable. an employee may not be in a position to drive after being exposed to such fumes. is a foreseeability standard. One of which applies when "an employee endangers others with a risk arising from or related to work. "[a]lthough [Ms. This rule is not absolute and has various exceptions. . the rule did not apply because her decision was a fortuity that must not obscure [the Plaintiff's] central claim that [Ms.] Hernandez's decision to drive home gave [the Defendant] an opening to raise the going-and-coming rule.] Hernandez's job had contributed to the accident. Inc. Minimed. "'[F]oreseeability' as a test for respondeat superior merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.

" The Plaintiff argued that the court should adopt the "slight deviation" rule which it had previously done in workers compensation matters. the act is not within the scope of employment. The Defendant was driving to the Osco District office to deliver football tickets obtained from a vendor. (2) the nature." Facts. The instruction stated "An employee is acting within the scope of [his employment] when [he] is performing services for which [he] has been [employed]. 350 F. Whether the Defendant's conduct evidences a slight or substantial deviation? Held. O'Shea (the "Plaintiff"). The factors courts examine when "determining whether an employee has embarked on a slight or substantial deviation" include "(1) the employee's intent." The court relied upon a jury instruction to illustrate Kansas's vicarious liability law. According to "Kansas law. (3) the time consumed in the deviation. or when [he] is doing anything which is reasonably incidental to [his employment]. Synopsis of Rule of Law.241 O'Shea v. managed an Osco store. Acts that are necessary to the comfort. 2003) Brief Fact Summary. Welch Citation. and welfare of the employee . for distribution to Osco managers. While driving to the District office. he hit the Plaintiff." Further. the employer's business for personal reasons. convenience. time.3d 1101 (10th Cir. the Defendant made a decision to pull over to a service station. and (6) the freedom allowed the employee in performing his job responsibilities. John Welch (the "Defendant"). Issue. and place of the deviation. while the former is the pursuit of the employee's personal business as a substantial deviation from or an abandonment of the employment. even temporarily. The District Court found that no jury could conclude that the Defendant was acting within the scope of his employment. and the employer is not liable under respondeat superior for the employee's conduct during that lapse. The Plaintiff sued the Defendant for negligence and Osco for vicarious liability. and while turning into the service station. health. A diversion from the strict performance of a task is not an abandonment of responsibility and service to an employer. This analysis requires the deciding authority to determine "whether the employee was on a frolic or a detour. but whether such conduct should have been fairly foreseen from the nature of the [employment] and the duties relating to it. unless the very character of the diversion severs the employment relationship. A store's employee got into an accident while driving to a district office to deliver football tickets. "If an employee wholly abandons. an employer is only liable for injuries caused by an employee acting within the scope of his employment. (4) the work for which the employee was hired. (5) the incidental acts reasonably expected by the employer. The Defendant. The test is not necessarily whether this specific conduct was expressly authorized or forbidden by the employer[ ]. the latter is a deviation that is sufficiently related to the employment to fall within its scope. Welch O'Shea v.

his stop for routine maintenance on a car used for business purposes could be considered enough of a mixed purpose by a jury to keep him within the scope of his employment with Osco. the court observed "[i]n terms of time and place. and (6) the freedom allowed the employee in performing his job responsibilities." Additionally." • The court adopted a "slight deviation analysis" for this class of cases and determined that it was a jury question. ." Further. Courts have identified several factors to be examined when conducting a "slight or substantial deviation" analysis. (4) the work for which the employee was hired. (5) the incidental acts reasonably expected by the employer.242 O'Shea v. (3) the time consumed in the deviation." Moreover. "[a] jury could find that an employee in a managerial position was given some freedom to attend to certain personal needs throughout the day. not at the service station." The court concluded that "[w]hile his stop was not for emergency maintenance for his car. and place of the deviation." • The court held "that a reasonable jury could conclude that [the Defendant] was acting within the scope of his employment when he attempted to turn into the service station. (2) the nature. a jury could decide that Mr." Discussion. the accident occurred minutes and feet from the direct route to Osco's District Office. time. Welch while at work are not outside the scope of employment. This case illustrates how difficult it is to determine the scope of an individual's employment." • The court observed that the purpose for the Defendant's stop on the side of the road was to "get an estimate for non-emergency maintenance on a car used for business. if the conduct is not a substantial deviation from the duties of employment. Welch had not yet abandoned his employment for a personal errand at the time of the accident. The factors include: "(1) the employee's intent. "[b]ecause the accident occurred on this road.

Goertz made a monthly collection for the delivery of Appellee's newspaper at the Appellant's home. who then struck the Appellant. • Appellant cites several policies that Goertz had to abide by in support of his argument that he was the servant of Appellee. Appellee points out that Goertz had no contact with Appellee and Westbrook. Discussion. claiming that Appellee was liable under respondeat superior.2d 1223 (Okla. Appellee and Goertz claim that Goertz was an independent contractor. an independent newspaper distributor for Appellee. Goertz Murrell v. Appellant questioned Goertz regarding damage done to his screen caused by the carrier throwing the newspaper into it. under no one's direction. Murrell (Appellant) and Bruce Goertz (Goertz) had an altercation that resulted in Goertz striking Appellant. Independent contractors do their work on their own time. 597 P. • An independent contractor performs a certain service for another according to his own methods and manner. but their own.Appell. The Appellant sued Goertz and the Appellee. The Appellant. Those who employ independent contractors are not liable under the doctrine of respondeat superior. with no control from his employer except as to the result of the services. Both Appellee and Goertz denied that Goertz was Appellee's servant. An argument began and Appellant slapped Goertz. stated that Goertz was responsible only to him. The decisive test for differentiating between an independent contractor and a servant is the right to control the physical details of the work. Brief Fact Summary. injuring him. Yes. . Appellant claimed that Goertz was a servant of Appellee either by agreement between the co-defendants or by Appellee creating that belief in Appellant. Synopsis of Rule of Law. thus removing Appellee from liability under respondeat superior? Held. The policies of Appellee do not rise to the level of supervision to make Goertz Appellee's servant. Facts. who was also an independent contractor.1979). Issue.243 Murrell v. his employer Oklahoma Publishing Company (Appellee). Judgment affirmed. • This court finds that Goertz was hired as an independent carrier salesman by Westbrook. Was Goertz an independent contractor rather than a servant. Goertz Citation.

are subject to liability for the negligence of the contractor. Generally when an activity carries the risk of death or serious bodily injury on cannot avoid liability for negligent maintenance by delegating the maintenance to an independent contractor. claiming that the brake repair was a nondelegable duty. . Rath's (Defendant) collision with the Plaintiff. Rath Citation. 69 Cal. The accident was caused by brake failure. Facts. The trial court determined that Mr. Ramona M. Judgment reversed and remanded. The Defendant. Issue. • Under strict liability. Rath Maloney v. Evanchik's negligent repair effort was the cause of the accident and rendered judgment if favor of Defendant. 71 Cal Rptr. Discussion. Kathleen Maloney (Plaintiff) was caused by a mechanic's negligent effort to repair her brakes. The trial court rendered judgment in favor of the Defendant and the Plaintiff appealed. The owner was primarily benefited by the use of the car. These sections suggest that a nondelegable duty is appropriate in this case. The owner chooses the contractor and can insist on one that is financially responsible so the owner can demand indemnity. a mechanic. Synopsis of Rule of Law. The Defendant collided with the car of the Plaintiff. Three months earlier the Defendant had her brakes overhauled by Peter Evanchik (Mr. 445 P. The Restatement of Torts § 423 and § 424 provide that individuals who employ independent contractors to maintain instrumentalities that carry a risk of serious bodily harm or death or who employ contractors to provide for safeguards that the individual was under a statutory or regulatory duty to provide. Another common duty that is generally considered nondelegable is a hospital's duty to provide emergency room care.2d 513. • The responsibility for minimizing the risk in this case falls on the car owner.244 Maloney v. No. Evanchik). The owner's liability insurance properly distributes the costs. Plaintiff appealed. regardless of whether the agent was an employee or independent contractor. Brief Fact Summary. nondelegable duties exist to assure that injured parties will be compensated by the person who caused the harm and may be held liable for the negligence of his agent. 897 (1968). Can a Defendant car owner delegate the responsibility of making a brake repair to an independent contractor? Held.2d 442.

and (4) an equal right to voice in the direction of the enterprise.245 Popejoy v. so as to impose vicarious liability on the Defendant's representatives? Held. Mr. After this claim was rejected. Evidence in support of the Defendant's motion for summary judgment suggests that . Ms. Wyoming to buy a calf for the daughter to raise on their ranch. • The terms joint venture and joint enterprise may be used interchangeably in situations such as the facts at hand. among the members of the group. an element of business. Synopsis of Rule of Law. Steinle). The Restatement of Torts [Restatement (Second) of Torts § 491 comment c at 548 (1965)] establishes four elements of a joint venture as: "(1) an agreement." • Based on this statement and previous case law. Steinle was killed in the accident and Mr. Facts. Steinle embarked on her business trip to pick up the daughter's calf. under a joint venture theory. Steinle's husband. William Steinle (Mr. Ms. Plaintiffs then filed a creditor's claim against the estate of Ms. Brief Fact Summary. Steinle were engaged in a joint venture when Ms. Steinle) and her daughter. Mr. An interest in profit is necessary in order to impose vicarious liability on a party based on a joint venture theory.2d 545 (Wym. Can the trip to pick up Ms. personal representatives of Ms. accompanied by her daughter and niece. No. and Mrs. Steinle was killed in the accident. among the members. Popejoy and Doris Popejoy (Plaintiffs) brought a suit against the Defendants. which had been probated and closed a year earlier. Popejoy suffered injuries diagnosed as a muscle strain. Connie Steinle (Ms. The burden of establishing the existence of a joint venture is upon the party asserting that the relationship exists. Steinle Citation. is a requisite for a joint venture. Steinle Popejoy v. Popejoy). Steinle's husband's estate (Defendants). Plaintiffs filed a claim against the Defendants. 820 P. commercial or profit motive. Mr. claiming that Mr. while they were on the way to buy a calf. Judgment affirmed. Issue. During the trip. were involved in a car wreck with Richard Popejoy (Mr. whom had died in the interim. (2) a common purpose to be carried out by the group. The Plaintiffs. Popejoy unsuccessfully tried to reopen Ms. Ms. express or implied.1991). Steinle. Approximately fifteen months later. Steinle's daughter's calf be characterized as a joint venture with her husband. which gives a right of equal control. Popejoy underwent two neurosurgeries to fuse cervical vertebrae in response to continued pain in his neck and back. were traveling to Douglas. Steinle's estate. Steinle was driving collided with a vehicle driven by Mr. the truck Ms. (3) a community or pecuniary interest in that purpose. Popejoy.

but the daughter. • No testimony suggested that anyone. Steinle Mr. the judge believed that only a pecuniary interest and not an interest in profit was needed to show the existence of a joint venture. The burden then shifts to the party opposing summary judgment. had any pecuniary or financial interest in the calf the mother and daughter were on the way to purchase the day of the accident. Also. that the sales proceeds from other livestock raised by the Steinle daughters in the past went directly to the children. Discussion. and Mrs. A joint enterprise or venture allows for vicarious liability to imposed on parties to the venture based upon theories of agency. However. The record shows that this trip was a family undertaking. Plaintiff submitted evidence from a certified public accountant convinced that Mr. and Mrs.246 Popejoy v. Steinle did not ordinarily have any ownership interest in the cattle that his daughters and wife raised and owned. . Steinle were engaged in a joint venture. • This evidence satisfied the requirement of establishing the nonexistence of any genuine issue of material fact as to whether Mr. Steinle were engaged in a joint venture. This holding avoids the imposition of a commercial concept upon relationships not having these characteristics.

Issue.247 Shuck v. Judgment affirmed. Means Shuck v. 302 Minn. Brief Fact Summary. Is a car rental agency liable under the Act when one of its cars is leased to one person. Means was uninsured and the parties stipulated he had been negligent. Under the Minnesota Safety Responsibility Act (the Act). • Under the Act [Minn. Means Citation. an owner-consent statute was enacted establishing liability in the owner of a vehicle for accidents caused by another driving the vehicle with the owners' express or implied consent. 93. 428.2d 285 (1974). leased to George A. 39 N. . Facts. the owner will be liable for accidents caused by the third person.St. but operated by another in violation of the rental agreement? Held. struck an automobile in which the Shuck was a passenger. this Court held that it would not read into the statute that the particular driver must be known by and his driving consented to by the owner. § 170.1965. Discussion. leased to Codling and driven by Means. Synopsis of Rule of Law.W.W.2d 862 (1949). Means was uninsured and the parties stipulated that he had been negligent. Codling (Codling) and driven by David Lynn Means (Means) struck an automobile in which Shuck was a passenger.54]. An automobile owned by Hertz. An automobile owned by Hertz. who in turn gives permission to a third party. when an owner gives permission to another to drive his car. 229 Minn. Yes. 226 N. providing that the insurance applies to anyone using the automobile with the permission of the owner. Neither of these situations is apparent under the present facts. Proving a lack of consent when a permittee allows a subpermittee to drive requires a showing either that the car was being used by a permittee without the owner's knowledge and contrary to his explicit instructions. Bock. or that the subpermittee was driving without the permission of the permittee under conditions that approach conversion or theft. • In Foster v. The need for owner-consent statutes has lessened because of "omnibus clauses" in standard automobile liability insurance clauses. The purpose of the Act was to give injured persons more assurance of recovery and to encourage owners to purchase appropriate liability insurance.

Concurrence. 440 Pa. The trial jury found that Defendant's negligent operation of the automobile was a proximate cause of the accident. It seems more reasonable to assume that a mutual understanding exists between an owner-passenger and driver that driver will use ordinary care and skill in driving. 269 A. was involved in an accident. However. No. Should a driver's negligence be imputed to a passenger. the deceased and other family members brought suit. The Plaintiffs. The discussion in the opinion refers to the so called "both-ways test". Westfall Smalich v. This Court determines that contributory negligence will not be imputed to the owner-passenger of a car. Synopsis of Rule of Law. while remaining subject to the commands of the owner-passenger in regard to things such as destination. Westfall Citation. but steady attack. Facts. owned by Julia Smalich and operated by the Defendant collided with another vehicle driven by Stephanna Louis Blank (Blank). Executor of the Estate of Julia Smalich (Plaintiff). The owner of and a passenger in the vehicle driven by Defendant was killed in the accident. Issue. This test has been under a slow. Julia Smalich died as a result of the accident. it is clear that the passenger has no control over the physical acts of the driver. so as to bar the passenger from recovery? Held. There is no justification for imputing contributory negligence in the second scenario. A vehicle.2d 476 (1970). A car driven by the Defendant. In the ordinary situation. Felix Rush Westfall (Defendant). Discussion. Marco Smalich. The court en banc ruled that the contributory negligence of the Defendant must be imputed to the owner of the vehicle. The Plaintiffs brought suit against both the Defendant and Blank.248 Smalich v. courts have often failed to discern the difference between imputing negligence when the owner-passenger is the defendant and using it to impute contributory negligence when the owner-passenger is the plaintiff. contributory negligence will also be imputed. Julia Smalich as a matter of law and that this precluded recovery. • Only a master-servant or joint enterprise relationship should justify the imputation of contributory negligence on a car passenger. when the owner-passenger is the plaintiff. 409. whereby courts found that if negligence can be imputed. Judgment vacated and record remanded. The trial court determined that recovery could not be allowed because the contributory negligence of the Defendant must be imputed to the owner. Justice Roberts said I am pleased that the Court partially repudiated the imputed contributory negligence doctrine. . Brief Fact Summary.

S t r i c t .249 C H A P T E R X I V .

This is true unless he can show the escape was plaintiff's fault. 265. it would be plaintiff's duty to stop the flow of water from defendant's to plaintiff's land if he needed to do so. They constructed a reservoir on the land of Lord Wilton nearby. Rather. Facts.250 Rylands v. Old mine workings laid beneath the reservoir. through no fault of defendant. • Justice Blackburn stated the plaintiff. When a person brings something on his land that is harmless as long as it remains there. The defendants employed a competent engineer and contractors to plan and construct the reservoir. L. or perhaps the consequence of vis major or an act of God. The reservoir flooded a mine worked by plaintiff. Plaintiff was under lease from Lord Wilton to work coal mines on land close to. Lord Cranworth's concurrence is omitted. 1 Ex. Fletcher Rylands v. the defendant is absolutely responsible for damages occurring to others due to the non-natural use. but also to the place and manner where it is maintained. Fletcher Citation. he is liable for all natural consequences if it does escape. • Lord Chancellor Cairns stated that if there had been a natural accumulation of water on the defendant's land that escaped and did mischief. as in the present case. but will naturally do mischief if it escapes. Brief Fact Summary. In the Exchequer Chamber.R. the defendants act at their own peril and are absolutely responsible for the result of their actions. one of the old mine shafts gave way and burst downward. plaintiff could not complain. However. . Does the defendant owe an absolute duty to plaintiff for injuries that occur from the non-natural use of defendant's land? Held. (1886). when the use is a non-natural one. but not adjoining the reservoir. but defendants were under no personal fault in its construction. Issue. Yes. Defendants constructed a reservoir to supply their mill. Judgment affirmed. When a non-natural use of land is made. The non-natural use of land determination looks not only to the activity in question. Discussion. Concurrence. though free from all blame. Within a few days of final construction. Synopsis of Rule of Law. must bear the loss in this case unless he can establish it was somehow the fault of defendants. Defendants were the owners of a mill. letting water into the plaintiff's mine.

The factors courts examine when analyzing whether an activity is ultrahazardous include: the "(a) existence of a high degree of risk of some harm to the person. and (f) extent to which its value to the community is outweighed by its dangerous attributes. (b) likelihood that the harm that results from it will be great. Miller v. Inc." Section 519 of the Restatement read "[o]ne who carries on an abnormally dangerous activity is subject to liability for harm to the person. "were strictly liable for injuries to plaintiff arising from purportedly 'ultrahazardous' activity for which defendants were legally responsible either because of their control of the premises or their discharge of firearms. App." The court then expressly "adopt[ed] the use of the Restatement principles and factors as an aid in deciding this type of question. Civil Constructors. Inc. (c) inability to eliminate the risk by the exercise of reasonable care. Civil Constructors.251 Miller v. which must be considered in determining whether an activity is ultrahazardous. (the "Defendants"). Inc. An individual was injured after being struck by a bullet near a firing range. (c) inability to eliminate the risk by the exercise of reasonable care. land or chattels of another resulting from the activity.2d 239 (Ill. 2 Dist." Section 520 of the Restatement lists several factors." Facts. (e) inappropriateness of the activity to the place where it is carried on. 1995) Brief Fact Summary. (d) extent to which the activity is not a matter of common usage. Civil Constructors. land or chattels of others. "[W]hether the use of firearms ought to be classified as an ultrahazardous activity"? Held. but more than one must be. "The essential question is whether the risk created is so unusual. Synopsis of Rule of Law. although he has exercised the utmost care to prevent the harm.E." Public policy considerations must also be considered. The court observed. (e) inappropriateness of the activity to the place where it is carried on. 3d 263. Gerald Miller (the "Plaintiff"). (d) extent to which the activity is not a matter of common usage. The Plaintiff. either because of its magnitude or because of the circumstances surrounding it. App. was shot during firearm practice by a stray bullet. 651 N. as to justify the imposition of strict liability even though the activity is carried on with all reasonable care. 272 Ill. . land or chattels of others. (b) likelihood that the harm that results from it will be great. "[o]ur review of the authorities thus discloses that the discharge of firearms resulting in injury ordinarily presents a question of negligence and that the standard of care is ordinary care--one which may be equated to a high degree of care because of the particular circumstances presented. Citation." All the factors do not have to be present for an activity to be deemed ultrahazardous. Those factors include the "(a) existence of a high degree of risk of some harm to the person." Issue. and (f) extent to which its value to the community is outweighed by its dangerous attributes. The Plaintiff alleged that the Defendants.

"the use of firearms is a matter of common usage and the harm posed comes from their misuse rather than from their inherent nature alone. "the risk of harm to persons or property. even though frequently classified as dangerous or even highly dangerous. "the target practice is of some social utility to the community. even though great. ." Third "the activity in this case was carried on at a firing range in a quarry located somewhere near the City of Freeport. is not the type of activity that must be deemed ultrahazardous when the above-stated criteria are taken into consideration. Inc. strict liability is imposed and the elements of negligence need not be proven. can be virtually eliminated by the exercise of reasonable or even 'utmost' care under the circumstances". this weighs against declaring it ultrahazardous where the activity was alleged to have been performed by law enforcement officers apparently to improve their skills in the handling of weapons. • The court observed "[t]he use of guns or firearms. Civil Constructors.252 Miller v. First. If an activity is deemed ultrahazardous. Second." Discussion." The court then stressed four reasons for this conclusion." Fourth and finally.

Judgment reversed and remanded. claiming that the transportation of the chemical was an abnormally dangerous activity. (4) is the activity not a matter of common usage. Therefore. • According to the evidence. The determination of whether an activity is abnormally dangerous depends on the application of several factors.022. Citation. Co. .R. (6) is the value of the activity to the community high. The trial court found that strict liability applied and granting summary judgment in favor of Plaintiff on that count.2d 1174 (7th Cir. • The question addressed here is a question of law. Brief Fact Summary. it was noticed that acrylonitrile was gushing out of a bottom outlet on the car. Indiana Harbor Belt R. (3) can such accidents not be prevented by the exercise of due care. (Defendant) manufactured a dangerous chemical. including acrylonitrile. When one of these cars arrived at the Blue Island yard just south of Chicago. American Cyanamid Co. including if accidents cannot be prevented by the exercise of ordinary due care. and possibly carcinogenic. 1990). Acrylonitrile is flammable at temperatures above 30 degrees Fahrenheit. Although only about of a quarter of the acrylonitrile escaped. the Illinois Department of Environmental Protection ordered the Plaintiff switching line to take decontamination measures costing $981. Co. Is the shipper of a hazardous chemical by rail strictly liable for the consequences of a spill or other accident to the shipment? Held. (Plaintiff) sued the Defendant. Defendant was a major manufacturer of chemicals. (2) is the harm that would ensue if the risk materializes great. American Cyanamid Co. Issue. No. acrylonitrile is the fifty-third most hazardous chemical transported in high volume on the nation's railroads. Defendant leased railroad cars to transport acrylonitrile to purchasers. v.R. Co. One count of the complaint asserted that the transportation of acrylonitrile in bulk through the Chicago metropolitan area is an abnormally dangerous activity. Facts. is highly toxic.R. The Defendant. American Cyanamid Co. the trial court's opinion would effectively dictate strict liability for all fifty-two materials that rank higher. which was spilled during transportation. v. so no special deference is granted to the trial court conclusion.75. The Plaintiff. 916 F.253 Indiana Harbor Belt R. Synopsis of Rule of Law. (5) was the activity inappropriate to the location where it took place. Under the Restatement [Restatement (Second) of Torts § 520 (1977)] six factors are considered in deciding if an activity is abnormally dangerous: (1) is the probability of the harm great. Indiana Harbor Belt R.

v. and oil wells. American Cyanamid Co. Discussion. fireworks displays. including: pile driving. • Unlike storage cases dealing with abnormally dangerous activities. • Additionally. In this case.R. this Court has been given no reason for believing that a negligence standard is not adequate to remedy accidental spillage. the hubs of the railroad network are generally located in metropolitan areas. Courts have ruled numerous activities abnormally dangerous in various cases. it seems clear that the leak was caused by carelessness. hazardous waste disposal. Plaintiff also makes much of the fact that the spill occurred in a densely inhabited area. rather than the actors. .254 Indiana Harbor Belt R. who are sought to be held strictly liable. Abnormally dangerous activities are a property of activities rather than substances in the contemplation of the law. crop dusting. rocket testing. However. Even if rerouting were feasible. in this case it is the manufacturers. Co. it would be more appropriate to place such a burden on the carriers rather than the shippers.

However. • Strict liability is often imposed in blasting cases. Vibrations from the Defendant. 268 P. In fact. Brief Fact Summary. . courts generally will not apply strict liability to hypersensitive reactions to these activities. it will be confined to the consequences. Therefore. Foster v. Judgment reversed.255 Foster v. No. The extraordinary risk in this case is not a risk that vibrations from the blast will cause wild animals to kill their young. Discussion. it was absolutely liable for all damages thereafter sustained. Citation. Preston Mill Co's (Defendant). The Defendant conducted blasting operations that frightened a mother mink owned by the Plaintiff and caused the mink to kill her kittens. blasting operations caused the Plaintiff. Is Defendant liable for the death of the kittens under a theory of absolute liability? Held. B. the exceedingly nervous disposition of the mink must be the responsibility of the loss sustained. which lie within the extraordinary risk created by the abnormally dangerous activity.2d 440. Facts. Synopsis of Rule of Law. Plaintiff brought an action against Defendant claiming that Defendant was absolutely liable. it was found by the trial court that Defendant's blasting was not a nuisance to anyone except for Plaintiff's mink ranch. The trial court found for Plaintiff on the theory that once Defendant received notice of the effect its blasting operations were having on the mink. When strict liability is applicable. Preston Mill Co.2d 645 (1954). Issue. Although blasting is generally considered an abnormally dangerous activity. the strict liability should be confined to consequences lying within the extraordinary risk of the abnormally dangerous activity.W. 44 Wash. Preston Mill Co. Foster's (Plaintiff) mother mink to kill her kittens. Plaintiff brought an action against Defendant claiming absolute liability.

Plaintiffs brought suit claiming that negligence in the maintenance of the Alden Street dike on the part of Defendants resulted in the damage to plaintiff's real estate. stating that a person is prima facie liable for the escape of things that he collects on his lands. Because Plaintiffs were unable to anticipate the damages. L. Issue. . • Plaintiffs rely on the rule stated in Rylands v. Rylands clearly states that the rule does not apply to injury resulting from the act of God. Amory Golden v. Amory Citation. The hurricane and resulting flood in this case was clearly an act of God. Golden and others (Plaintiffs). Are Defendants liable for maintaining a non-natural land use and the resulting damage that occurred from this use? Held. it would be against policy to hold them liable even under strict liability because nothing could have further prevented the damages. The Plaintiffs. Synopsis of Rule of Law. 265. 1 Ex. Discussion. negligence in maintaining a dike caused them real estate damage after a hurricane resulted in a flood. A hurricane caused the river on which the plant was located to overflow and damage the real estate of the several Plaintiffs. Brief Fact Summary. Plaintiffs are not responsible under strict liability theories when the damage caused was an unanticipated act of God.R. Amory's (Defendants). The Defendants owned a hydroelectric plant. 484.E. 109 N.2d 131 (1952). Facts. Exceptions overruled. However. Fletcher. claim that Defendant. In the Exchequer Chamber. (1886). No. 329 Mass.256 Golden v.

The Plaintiff. Contributory negligence is not a bar to recovery for an action in strict liability.257 Sandy v. Defendant knew that the horse had vicious propensities. However. such as in the case of injuries caused by dangerous animals at a zoo. Bushey Citation. something more than slight negligence or want of due care on the part of the injured party is required to bar recovery. Bushey Sandy v. . 320. Is Defendant liable for Plaintiff's injuries even if Plaintiff displayed contributory negligence? Held. rather than by the keeping of the vicious animal. Facts. Motion overruled. Bushey's (Defendant). • The evidence in this case suggests that Defendant's horse had exhibited a vicious and ugly disposition and that Defendant was on notice of this disposition. the animal's vicious propensities and scienter on the part of the owner. • In this state. Yes. Plaintiff brought this action to recover damages. contributory negligence is not a defense to an action for strict liability. The facts must establish that the injury was caused by the injured party unnecessarily and voluntarily placing himself in the way of harm knowing the probable consequences of his act. Synopsis of Rule of Law. Discussion. Issue. the owners of domestic animals are not responsible for injury done by them in a place they have a right to be unless the owner knew of the animal had a vicious disposition. Plaintiff went to the pasture to grain his mare and was kicked by defendant's horse. • Under the common law. 128 A. including the Defendant's three-year old colt. seriously injuring him. Brief Fact Summary. if plaintiff proves the keeping of an animal. The Plaintiff turned his mare and colt out in the pasture of a neighbor. 124 Me. The Defendant in response claims that Plaintiff cannot recover because he is guilty of contributory negligence. The facts in this case do not allow for such a conclusion. Because negligence is unnecessary to find liability. Statutory sanction of a defendant's conduct often is held to confer immunity from strict liability. 513 (1925). Sandy (Plaintiff). horse. the owner is strictly liable for injuries that occur. was injured when he was kicked by the Defendant. which was occupied by other horses.

258 C H A P T E R X V . P r o d u c t s .

Y. there must be knowledge that in the usual course of events the danger will be shared by people other than the buyer. Synopsis of Rule of Law. If the manufacturer was negligent and the danger could be foreseen. The wheel. Discussion. the manufacturer of a finished product placed this product on the market to be used without inspection by its customers. 111 N. a liability will follow. 382. Citation. Judgment affirmed. Buick Motor Co. • In order for a duty of care to arise in relation to ultimate purchasers. 217 N. Buick Motor Co. was made of defective wood. The Plaintiff sued the Defendant. 150 (N. MacPherson v. First. the original manufacturer of the car. • One line of cases has suggested that manufacturers owe a duty of care to ultimate purchasers only when the product is inherently dangerous. Does Defendant owe a duty of care to anyone besides the immediate purchaser (retailer)? Held.E. Second. Brief Fact Summary. not merely possible. two criteria must be satisfied. (Defendant). but no inspection occurred. 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. . Plaintiff brought a negligence suit against the Defendant for injuries sustained after he was thrown from his car when the wheel collapsed. The Plaintiff. Defendant had purchased the faulty wheel from another manufacturer and Defendant failed to inspect the wheel. Facts. who in turn sold it to Plaintiff. Buick Motor Co. a duty of care exists.App. • In the present case. Evidence suggested that the defect could have been discovered through reasonable inspection. Issue. Donald MacPherson (Plaintiff). This knowledge of danger must be probable. This case was an early basis for the establishment of products liability.Y. the nature of the product must be such that it is likely to place life and limb in danger if negligently made. on an action for negligence.259 MacPherson v. which was sold to Defendant by another manufacturer. bought a car from a retail dealer and was injured when a defective wheel collapsed. Other cases have suggested a duty of care to foreseeable users if the product is likely to cause injury if negligently made.1916). Yes. Defendant had sold the automobile to a retail dealer. This may be inferred from the nature of the transaction and the proximity or remoteness of the relation.

Ford Motor Co. Brief Fact Summary. Issue.260 Baxter v. • This case is similar to cases where plaintiffs have prevailed in suits for being supplied with wrongly labeled drugs. the injured party would be unable to discover the inherent problem with the product. while barring recovery due to a lack of privity is unjust. Synopsis of Rule of Law.2d 409 (1932). a Ford dealer. Judgment reversed. Representations set forth by a manufacturer whose falsehood cannot be readily detected by a buyer may be relied on by the buyer regardless of an absence of privity of contract. No. 456. Facts. In both cases. Respondent's windshield was struck by a pebble. Ford Motor Company (Respondent). To permit a manufacturer to create demand for its product by representing they possess qualities that they in fact do not. The Appellant purchased a model A Ford form St. Appellant claimed that the trial court improperly excluded evidence in printed materials produced by the Respondent. John Motors. Baxter v. 12 P. 168 Wash. eye was injured when the windshield of his car shattered. resulting in the loss of his left eye and injuries to the sight of his right eye. The Appellant. The court held that the printed matters were improperly excluded and that Appellant had a right to rely upon these representations even without privity of contract between Appellant and Respondent. . causing small pieces of glass to fly into his eye. The advent of radio and other marketing materials have rendered the rule of caveat emptor unfair in many instances. who had purchased the automobile from the Respondent. Did the trial court correctly refuse to admit evidence against Respondent of catalogues and printed materials regarding the quality of glass used in the windshield of Appellant's car? Held. Citation. Respondent claims there can be no implied or express warranty derived from these materials because there is no privity of contract between Respondent and Appellant. claiming that the windshield was shatterproof. Baxter's (Appellant). The court took the case from the jury and entered judgment in favor of the dealer and the Defendant. Ford Motor Co. • Appellant was provided with materials created by Respondent that claimed the windshield was made of shatter-proof glass. Appellant claims that representations were made to him by both the dealer and the manufacturer that the windshield of the automobile was made of glass that would not shatter.

261 Baxter v. . Discussion. The advent of modern advertising methods have made the traditional rule of caveat emptor (let the buyer beware) unjust because of the unequal position of manufacturers and buyers. Ford Motor Co.

Thus. all manufacturers have begun to produce disclaimers for their cars. 358. except for replacement of defective parts for a short period. Henningsen signed a contract containing 8 ½ inches of fine print on its back. Plaintiff was injured when the steering gear in her car failed. No.2d 69 (1960). When he purchased the car. Bloomfield Motors (Defendant). the burden of losses is upon those who are in a position to either control the danger or allocate the losses when they occur. In the car industry. Henningsen v. strict liability is imposed and recovery does not depend on proof of negligence or knowledge of a defect. Brief Fact Summary. Mr. The Plaintiff. Henningsen (Plaintiff). 161 A. providing that neither manufacturer nor dealer gave any warranties. This fine print included a warranty clause. today standardized mass contracts have appeared. Can a manufacturer effectively disclaim an implied warranty of merchantability on cars it places into commerce? Held. effectively eliminating any bargaining power for consumers who wish to purchase such products. When such a warranty is breached. Synopsis of Rule of Law. The codification of the Uniform Sales Act supports the use of implied warranties as an operation of law. The automobile had been manufactured by Chrysler Corporation and sold by it to the Defendant. the . Such control and limitations are detrimental to the public welfare and shall not be allowed. Manufacturers cannot unjustly disclaim the implied warranty of merchantability when such disclaimers are clearly not the result of just bargaining. Bloomfield Motors. was injured when the steering gear in her car failed. Inc. but the case was dismissed by the trial court due to a disclaimer contained in the sales contract for the car. Judgment reversed and remanded. a retail dealer. • An implied warranty of merchantability means that a thing sold is reasonably fit for the general purpose for which it was manufactured and sold. express or implied. Plaintiff's husband Mr. Negligence claims were dismissed by the trial court against both the manufacturer and the dealer. Henningsen purchased the car for Plaintiff. • Contract law has long held that an individual who fails to read a contract before signing it cannot relieve himself of the contract's burdens. However. Citation. 32 N.J. Therefore. Facts. Bloomfield Motors. causing the car to turn sharply into a wall. • Societal interests have eliminated the requirement of privity of contract between a manufacturer and the ultimate consumer when products are inherently dangerous to life and limb. Issue. Inc.262 Henningsen v. Plaintiff brought suit claiming negligence.

the Magnuson-Moss Act and the Consumer Product Safety Act. Discussion. including the Uniform Commercial Code. Bloomfield Motors. .263 Henningsen v. Court adjudicated Chrysler's attempted disclaimer of an implied warranty of merchantability to be invalid. Inc. Many codes and statutes protect consumers from unjust disclaimers today.

Rptr. After working with the lathe several times without difficulty. Yuba Power Products. it can be shown (i) that the manufacturer placed a product on the market.2d 57. Approximately ten and one-half months later. Plaintiff sued and the Defendant.264 Greenman v. it is sufficient that Plaintiff was injured while using the . it suddenly threw the piece of wood he was working with out of the machine. 59 Cal. Brief Fact Summary. Plaintiff gave the retailer and the manufacturer written notice of claimed breaches of warranties and filed a complaint alleging said breaches and negligence. Inc. • Even if Plaintiff's claim for breach of warranty were barred.2d 897. defended claiming that Plaintiff's breach of warranty claim was barred due to his failure to give timely notice. 697 (1963). it would simply be an unfair "boobytrap" for the unwary.Code § 1769]. the imposition of strict liability is appropriate in this case. 27 Cal. this notice requirement is inappropriate for this Court to adopt in an action by injured consumers against manufacturers with whom they have not dealt. • Plaintiff introduced substantial evidence from which to conclude that his injuries were the result of defective design and construction of the Shopsmith. Individuals injured by products with design or manufacturing defects may bring suit under strict liability regardless of a failure to give timely notice to the manufacturer for a breach of warranty. Issue. Yuba Power Products. To establish liability. However. was injured when his Shopsmith combination power tool threw a piece of wood. The Plaintiff. Is Plaintiff's action based on representations contained in the brochure barred against the manufacturer due to a failure to give timely notice? Held. Yuba Power Products. William Greenman (Plaintiff). The Civil Code provides that failure of the buyer to give the seller notice of a breach of warranty within a reasonable time precludes liability [Civ. (iii) that proved to have a defect and (iv) that caused an injury. and Plaintiff bought necessary attachments to use the Shopsmith as a lathe. Greenman v. striking him in the head inflicting serious injuries. However. Inc. The Plaintiff saw a Shopsmith combination power tool demonstrated by a retailer and he studied a brochure prepared by the manufacturer. Synopsis of Rule of Law. the Defendant contends that Plaintiff did not give it notice of a breach of warranty within a reasonable time. From the evidence. Citation. striking him in the head. Because the injured party is generally unaware of the business practice justifying the rule. No. 377 P. His wife bought him a Shopsmith. (ii) knowing that it is to be used without inspection for defects. (Defendant) the manufacturer. Inc. Judgment affirmed. Facts.

.265 Greenman v. Inc. Yuba Power Products. Many of the products liability decisions tend to insure the protection of the consumer over that of manufacturers. as a result of a defect in design and manufacture. The Court in this case finds that an apparently applicable statute will not bar recovery. Discussion. Shopsmith in a way it was intended to be used.

Discussion. he will be held liable for any harm caused to the ultimate user or consumer. in the context of products liability. Plaintiff was injured when the truck he was driving was rearended by a 1978 GMC two-ton chasis-cab. that a manufacturer could not be held to strict liability for manufacturing defect. General Motors Corp. • While this case was reversed and remanded.2d 195 (Mont. and products liability. . and it is fundamentally unfair to hold a manufacturer liable on those grounds. but by the dealer after sale. as the manufacturer of the truck. maintaining that the product. by the Defendant dealership. In this case. This case goes into the theory of strict liability. after sale. the court held. 723 P. if the product is altered after it leaves the care of the manufacturer. Issue. Citation. when a manufacturer sends a product into commerce. Plaintiff brought suit against General Motors Corp. Whether strict liability is a proper manufacturing defect theory? Held. the jury reached a verdict for Defendant. Plaintiff was injured when his pickup was hit from behind by a chasis-cab that had been equipped with a water tank. Facts. Thus. Synopsis of Rule of Law. in line with the jury instructions. 1986). if it does not cause the defect in the product. was unreasonably dangerous because of both manufacturing and design defects. General Motors Corp.266 Rix v. when the product was not defective when it left the manufacturer's assembly line. the manufacturer could not be held strictly liable for a defect that was not caused at its hands. Brief Fact Summary. At the trial in this matter. Reversed and remanded. Rix v. Plaintiff brought suit against Defendant under a theory of strict liability. and Plaintiff appealed. the truck was not altered by the manufacturer. • As a rule. A manufacturer cannot be held strictly liable for the danger caused by one of its products. which had been placed into the stream of commerce. • This rule does not apply. (Defendant) on a theory of strict liability.

Co. alleging a defect in design of the forklift because it did not provide a seat or platform for the operator. Plaintiff testified that he was aware that the battery was running low on the forklift when the accident occurred. No. Did the trial court err by not instructing the jury on a breach of warranty theory in addition to a negligent design theory? Held. 421 Mich. The Plaintiff. • Theories of products liability should never be confused with the imposition of absolute liability. claiming a defect in design because the forklift did not provide a seat or platform for the operator. Yale Mfg.W. 365 N. the plaintiff must prove that something is wrong with the product itself that makes it dangerous. • Four approaches have been popularized in determining a defect in product design cases. The forklift was equipped with a "dead-man" switch.2d 176 (1984). The forklift was a stand-up type. Actions claiming defects in product design do not provide for a simple test. A second analysis compares the risk and utility of the product at the time of trial. A third analysis focuses on the consumer expectations for a product. rather than a traditional sit down model. Plaintiff was operating a forklift manufactured by the Defendant. Facts. • The risk-utility balancing test is essentially a negligence standard. breach of implied warranty and negligence require proof of the same elements and use of identical evidence. The final analysis combines the risk-utility and the consumer expectation analyses. (Defendant). Plaintiff sued the Defendant. intended to prevent it from moving if the operator let go of the controls. Issue. Citation. Prentis v. Plaintiff brought suit. Yale Mfg. Regardless of whether a plaintiff is suing on a theory of negligence or implied warranty. Yale Mfg. Judgment of the Court of Appeals is reversed and judgment of the trial court is reinstated. was injured when the forklift he was operating experienced a power surge. analyzing if the manufacturer exposed the consumer to a greater risk than he should have in choosing a particular design. Plaintiff attempted to start the machine on an incline and when the machine experienced a power surge it caused Defendant to fall to the ground. Negligent risk-utility analysis focuses on if the manufacturer would be judged negligent if it had known of the dangerous condition when the product was marketed. causing Plaintiff to fall to the ground. Brief Fact Summary. 670. The fall fractured Plaintiff's hip.267 Prentis v. Prentis (Plaintiff). This approach is supported . Co. Synopsis of Rule of Law. Co. In an action against the manufacturer of a product based upon an alleged design defect.

by the Model Uniform Product Liability Act (UPLA). Justice Cavanagh concurs in the result. The pure negligence. a negligence standard in these cases encourages the design of safer products. a verdict for the plaintiff in a design defect case is essentially a ruling that the entire product line is defective. First. depriving the public of the product. Co. result from documentable decisions by manufacturers that plaintiffs should be able to learn of through discovery. Finally. • Because the standards for a breach of warranty claim and a design defect claim are interchangeable. unlike manufacturing defects. design defects.268 Prentis v. Discussion. Third. Second. Concurrence. the trial court did not commit reversible error by providing only a unified theory of negligent design. it would have only confused the jury to provide an instruction on each. . Yale Mfg. published by the Department of Commerce in 1979. Chief Justice Williams and Justices Brickley and Ryan concur. risk-utility standard adopted by the Court in this case is applicable only to defective design cases and does not apply to defective manufacture cases. This approach has much support for design defects. therefore. the court believes that such a fault system provides for greater intrinsic fairness.

Muskin Corp. Muskin Corp. (6) The anticipated awareness of the user of the inherent dangers of the product and their avoidability and (7) The feasibility of the manufacturer spreading the loss. The Plaintiff. The witness admitted that he knew of no above ground pool that used any material for liner except for latex. Plaintiff produced a witness that testified that the wet vinyl used in the pool was twice as slippery as the rubber latex used in in-ground pools. • At trial. (4) The ability of the manufacturer to eliminate the unsafe character of the product. (2) The safety aspects of the product. a defendant may be liable for a design defect even if his product complied with the existing level of technological advances at the time of design. they slid apart and Plaintiff sustained injuries when his head hit the bottom. Yes. Brief Fact Summary. The trial court limited the jury's consideration to the adequacy of the warning. The water in the pool was filled to a depth of approximately three and one-half feet and a warning decal saying Do Not Dive appeared beneath the manufacturer's logo in letters approximately one-half inch high. but nonetheless contended that vinyl should not be used even if no other material was available. Muskin Corp. Plaintiff arrived uninvited at the home of Arthur and Jean Henry and dove into their above ground pool made by Defendant. Plaintiff brought suit claiming that Defendant was strictly liable for the defectively designed pool.J. Defendant's witness testified that vinyl was the best material because it allowed outstretched arms to glide. Synopsis of Rule of Law.269 O'Brien v. . was injured when he dove into an above ground pool designed and manufactured by the Defendant. (3) The availability of a safer substitute product. Judgment reversed and remanded. specifically because of the slippery quality of the lining and inadequate warnings. Gary O'Brien (Plaintiff). Factors relevant to this decision include: (1) The usefulness and desirability of the product. (Defendant). Based on risk utility analysis. 94 N. Facts.169. As Plaintiff's hands hit the vinyl lined pool bottom. Did the trial court err by not permitting the jury to determine if the risks of injury associated with the pool so outweighed the utility of the product as to constitute a defect? Held. the standard measure for design defects is a comparison of the utility of the product with the risk of injury that it poses to the public. • In contrast to manufacturing defects. Plaintiff claimed that Defendant was strictly liable for manufacturing and marketing a defectively designed pool.2d 298 (1983). Citation. O'Brien v. thus preventing the diver's head from striking bottom. (5) The user's ability to avoid danger. Issue. 463 A.

Justice Clifford concurring in the result. Discussion. or the scientific knowledge available in the industry at the time the product was designed. However. might lead to the determination that the risk involved with the product still outweighed its utility. Muskin Corp. Justice Schreiber's concurring and dissenting opinion omitted. such as the relative need for the product. Concurrence. Other considerations. Dissent. . complying with the state-of-the-art does not provide an absolute defense. The majority of jurisdictions today use some form of risk utility analysis in design defect cases. • These factors also include the "state-of-the-art". or if the product was an essential or a luxury. as the burden is on the Defendant to prove that compliance with this justifies placing a product on the market.270 O'Brien v.

Citation. Omitted. The Plaintiff. Facts. 810 P. Owens-Corning Fiberglass Corp. then a manufacturer's liability is absolute. The Plaintiff worked as an electrician at the Long Beach Naval Shipyard for 35 years. Issue. Synopsis of Rule of Law. Specifically. Plaintiff claims that imposing a knowledge requirement effectively adds a negligence standard to a strict liability case. Plaintiff filed suit against Defendant alleging that Plaintiff's exposure to Defendant's asbestos products resulted in his asbestosis and other lung ailments. Plaintiff allegedly was exposed to asbestos while working near others who were removing and installing insulation products aboard ships. • Defendant contends that if knowledge is irrelevant in a failure to warn case. • The strict liability doctrine has incorporated several other well-settled rules from negligence law. Brief Fact Summary. Is a Defendant in a products liability action based on a failure to warn of a risk of harm allowed to present state of the art evidence that the Defendant had no knowledge of the harm that could occur? Held. Concurrence. Defendant answered by claiming it did not warn of potential dangers because there was no scientific knowledge at the time of manufacture that the product was potentially dangerous. Owens-Corning Fiberglass Corp. The majority in this case found that a manufacturer must provide warnings if it is or should be aware of potential dangers. Discussion. During this work. was allegedly injured from exposure to asbestos materials manufactured by the Defendant. 281 Cal. Differences are still apparent between the strict liability standard applied in failure to warn cases and a negligence standard. but to impose liability for failure to warn when the manufacturer had no way of knowing of the potential danger is unjust. Owens-Corning Fiberglass Corp.Rptr. the reasonableness of a defendant's failure to warn is immaterial. (Defendant). 528 (1991). Anderson v.271 Anderson v. Knowledge or knowability is a component of strict liability for failure to warn. 53 Cal. .2d 549. Anderson (Plaintiff). Omitted. A manufacturer defendant cannot effectively warn against something that is unknowable.3d 987. Dissent. Judgment of the Court of Appeals is affirmed. Yes.

43 Ohio St. Issue. so long as a preponderance of the evidence establishes that the accident was caused by the defect rather than other possibilities. Friedman and three members of his family were injured in the crash. Testimony of witnesses could demonstrate that the car accelerated immediately when it was started. Synopsis of Rule of Law. started with the transmission in the drive position and lurched forward. and Mr. The Plaintiffs. From the evidence presented. The appellate court reversed the trial court's decision and Defendant appealed. The car did start and leaped forward.E. Plaintiffs established a prima facie case of defect. causing an accident. so that the Plaintiffs had no opportunity to discover the defect.2d 702 (1975). Mr. Friedman) and his family (Plaintiffs). Morton Friedman (Mr. rather than a third party after delivery. were injured when their car. Friedman was unable to control the car before it crashed. Facts. General Motors Corp. that the defect existed when the car left the factory and that the defect was the proximate cause of the injuries.2d 209. the possibility that the contacts in the neutral start switch were in the neutral or park position even though the transmission was in drive was established. For Plaintiff to prevail. Brief Fact Summary. Yes. Plaintiffs brought a claim against the Defendant and the trial court granted Defendant's motion for summary judgment. 72 Ohio Ops. the testimony could demonstrate that the car always started in park. Mr. Finally. General Motors Corp. Citation. Therefore. a jury could have found that the defect was created by the manufacturer. • A defect may be proven by circumstantial evidence. • In Defendant's motion for summary judgment the court must construe the evidence in favor of the Plaintiffs. (Defendant). Did the Plaintiffs' introduce evidence of a sufficient quality to overcome Defendant's motion for a directed verdict? Held. Additionally. Judgment of the Court of Appeals is affirmed. finding that Plaintiffs had not proved the car was defective. resulting in the accident.2d 119. .272 Friedman v. Plaintiffs may prove a manufacturing defect through the use of circumstantial evidence. Defendant claimed that Plaintiffs failed to introduce sufficient evidence to overcome a motion for summary judgment. manufactured by the Defendant. General Motors Corp. This would allow the car to start in the drive position. Friedman alleged that he turned the ignition on his seventeen month old Oldsmobile while it was in drive. not expecting it to start. 331 N. Friedman v. they must prove that the car manufactured by Defendant was defective.

General Motors Corp. the principles behind res ipsa loquitur may be applicable to satisfy the requirements of strict liability. In a proper case. . as the dissent pointed out.273 Friedman v. However. Discussion. Plaintiffs failed to submit sufficient evidence to infer that a defect existed at the time the car left the defendant manufacturer. Dissent. the present facts are not appropriate for such an application because other explanations for the accident are available. Justice Stern stated that the total evidence in this case only demonstrates that something unusual happened and that a possible explanation is that the car had a defect.

which was a complete bar . This Court does not believe this to be true. Plaintiffs' recovery will be lessened only to the extent that his own negligence contributed to the injury. Facts. Does the principle of comparative negligence apply to actions founded on strict products liability? Held. The Court believes that these goals will not be frustrated by the imposition of comparative principles. Yes. The Decedent was not using the shoulder harness. The jury found for the Defendant. (Defendant). • Here. The Decedent was thrown from his automobile because of an alleged defect of the door latch. The Court previously determined that a plaintiff's negligence is a complete defense when it comprises assumption of the risk. 380 (1978). did not have the door locked and was intoxicated at the time.Rptr. Citation. Daly v. Evidence suggested the driver did not use the shoulder harness system. the Plaintiffs argue that recognition of comparative fault principles in strict products liability cases is an impossible merging of concepts because strict liability is not founded on negligence or fault principles. The imposition of strict liability was intended to relieve injured consumers from inherent problems of proof and to place the burden on manufacturers rather than those who are powerless to protect themselves. 20 Cal. Judgment reversed.2d 1162. did not lock the door and that he was intoxicated. • Strict liability has never been intended to be absolute liability. where previously the only plaintiffnegligence defense was assumption of the risk. the Court refuses to resolve this issue based solely on linguistic labels. causing the manufacturer to become the insurer of the safety of the product's user. The Plaintiffs. 575 P. Kirk Daly (the Decedent) was killed when he was thrown from his car. General Motors Corp.274 Daly v. which allegedly had a defective door latch. Decedent's family members (Plaintiffs) brought suit. Brief Fact Summary.3d 725. Issue. as exposure to liability will be lessened only by the extent to which the plaintiff contributed to his injury and the manufacturer cannot assume that the plaintiff will always be blameworthy. • Plaintiffs also argue that comparative principles will lessen a manufacturer's incentive to produce safe products. 144 Cal. However. General Motors Corp. General Motors Corp. resulting in his death. The principle of comparative negligence can be applied in strict products liability cases to reduce a plaintiff's recovery. Synopsis of Rule of Law. A further benefit will be that the imposition of comparative principles will allow for only a partial limit on recovery.

General Motors Corp. Omitted. The court found final support for the adoption of comparative negligence in strict liability cases in the provisions of the proposed Uniform Comparative Fault Act [adopted by the Conference of Commissioners on Uniform State laws (1997)]. The majority of jurisdictions today have applied comparative fault principles to strict products liability cases. Omitted. This unfair rule caused a contributorily negligent plaintiff to be in a better position when claiming negligence than strict liability. the court is convinced jurors are capable of such a task. • A further objection to the imposition of strict liability is that jurors cannot compare plaintiff's negligence with defendant's strict liability. . However. Concurrence.275 Daly v. Dissent. Discussion. to recovery.

Matthews was standing beside his tractor when he started it and the tractor was in gear at the time. the manufacturer would not be subject to liability. the Court found that not checking to make sure the tractor was not in gear was foreseeable. Matthews Citation. The tractor started while in gear. Synopsis of Rule of Law. Was Mr. The trial court found for the Appellee and Appellant appealed. it was not checking to make sure the tractor was in gear. the negligence was foreseeable by Appellant and this is not a bar to an action based on strict liability for a manufacturing defect. Matthews Ford Motor Co. 291 So. claiming that the plunger connected with the safety switch was defective.1974). Judgment affirmed. with the court finding either no defect or that the defect played no part in the accident. even if Mr. If the deceased had used the tractor in an unforeseeable and abnormal way. v. Discussion. the administratrix (Appellee) brought suit. if any negligence occurred on Mr. was equipped with a starter safety switch designed to prevent the tractor from being started while in gear. Matthews was dragged underneath a disc attachment. • The injury in question was not caused by Mr. In this case. Earnest Matthews (Mr.2d 169 (Miss. • Appellant relies on the Restatement [Restatement (Second) of Torts § 402A].276 Ford Motor Co. Brief Fact Summary. Matthews' act of standing on the ground and starting the tractor a misuse of the product so as to be an absolute limitation on Appellant's liability? Held. In the present case. allowing the tractor to be started in gear. but in each case the accident was caused by misuse. Facts. killing him. When the tractor started. Matthews' part. A manufacturer is not liable for injuries caused by abnormal or unintended use of its product. Mathews) was dragged under a tractor and killed when he started the tractor while standing next to it. Issue. Rather. . which states in part that a seller is not liable for injury that results from abnormal handling. The tractor. Mr. The Appellee. only if such use is not reasonably foreseeable. v. Matthews were guilty of negligence for this failure. Ford Motor Company (Appellant). manufactured by the Appellant. Several cases are also cited by Appellant. Mr. No. but was equipped with a safety switch designed to prevent this from occurring. Matthews negligently standing beside the tractor when he started it.

v. Plaintiff filed suit in a Florida State Court. 539 (1976)] preempt a state common law negligence action against the manufacturer of an allegedly defective medical device? Held. the scope of the preemption statute must reflect a clear understanding of congressional purpose. Defendant removed the case to federal court and filed a motion for summary judgment. Brief Fact Summary. The 11th Circuit affirmed in part and reversed in part. Inc. Lohr Citation. Second.S. Ct.S. A federal law enacted by Congress will not be held to preempt existing state law unless is the clear intent of Congress to legislate exclusively in the area. Affirmed in part and reversed in part. required emergency surgery when a pacemaker manufactured by the Defendant. Lora Lohr (Plaintiff). • This Supreme Court is presented with the task of interpreting a statutory provision that preempts state law. The Act requires rigorous pre-market approval for products such as the pacemaker in question. The Plaintiff was equipped with a pacemaker made by the Defendant. Synopsis of Rule of Law. 135 L. In doing so.277 Medtronic. 116 S. alleging negligence and strict liability. requiring emergency surgery. failed. The trial court dismissed the entire complaint. . when Congress is preempting a law in a field generally governed by the states. However. • The states have traditionally exercised their police powers to protect the health of their citizens. However. Issue. Facts. the Federal Government has increasingly played a role in health protection. The pacemaker at issue in this case was a device deemed substantially equivalent. we follow two presumptions. Three years later. 2d 700 (1996). 2240. the Supreme Court assumes that the powers of the state are not to be preempted unless that was the clear purpose of Congress. (Defendant). Defendant answered by moving the case to federal court and claiming preemption of state law by a federal act. Inc. Ed. Inc. Both parties sought review by the United States Supreme Court (Supreme Court).C. the pacemaker failed due to a defect in the lead. Medtronic. No. Does the Medical Device Amendments of 1976 (the Act) [90 Stat. The Plaintiff. First. the Act grandfathered in devices on the market before 1976 and permitted devices that are substantially equivalent to pre-existing devices to avoid approval. v. § 360k(a) preempted the state common law claims. claiming that 21 U. 470. Plaintiff sued under state laws alleging negligence and strict liability. Lohr Medtronic. 518 U.

This interpretation would provide complete immunity for design defect liability for the entire industry. In the alternative. Inc. • The Plaintiff's common law claims are not preempted by the Act. v. The legislative history of the Act in no way supports this argument. • Plaintiff claims that the Act does not preempt her negligent design claim because the Act imposes no requirement on the design of Defendant's pacemaker. . the Supreme Court determined that Congress had not expressed a clear intention to preempt these state common laws. In this case. These general requirements in no way reflect the concerns Congress expressed regarding regulation of specific devices in the Act. Discussion. Lohr • Defendant's argument that Congress intended to bar all common law claims based on medical devices with the Act is implausible. it does not preempt state rules that duplicate these federal requirements.278 Medtronic. the Supreme Court would have no choice and the manufacturer would only have to abide by the federal law. If Congress had clearly intended to preempt state law. Plaintiff claims that even if the Act does provide requirements. These claims are general state common-law requirements that every manufacturer use due care to avoid foreseeable dangers in its products and inform users of potentially dangerous risks involved in their use.

No. The automobile that struck the Maradean and Mark was purchased used from the Defendant Lou Bachrodt Chevrolet Co.2d 785 (1975). Maradean Peterson (Maradean) and her brother. . Justice Goldenhers stated that the application of strict liability is intended to place the burden of losses on those who have created the risk and reaped profit by placing the product into the stream of commerce. Issue. Dissent. Lou Bachrodt Chevrolet Co. Judgment of the Appellate Court is reversed. justified on the ground that their position in the market allows them to place pressure on the manufacturer to enhance the product's safety. 61 Ill. (defendant).279 Peterson v. The Plaintiff sued the Defendant. 329 N. • Strict liability has previously been applied to retailers. Lou Bachrodt Chevrolet Co. the court saw no justification in effectively causing used car dealers to become the insurers against defects. Brief Fact Summary. In the present case there is no claim that the defects existed when the product left the manufacturer or that the defects were created by the used car dealer. Synopsis of Rule of Law. Facts. Lou Bachrodt Chevrolet Co. father of the children. The Plaintiff.E. Maradean died as a result of the accident and Mark suffered severe injuries. The majority of courts have declined to place the burdens of strict liability on the sellers of used products. Mark Peterson (Mark) where struck by a car while walking home from school. Under these facts. Citation. its owners. and the Defendant.2d 17. Peterson v. (Defendant). Strict products liability will not be applied to the seller of previously used products. Discussion. brought suit against the driver of the car. alleging that the used car was defective when it left the Defendant's lot. • Plaintiff claims that at the time the automobile in question left Defendant's control it was not reasonably safe for driving and that these defective conditions were a proximate cause of the injuries that occurred. There is no justification for not applying the same standard to used car dealers. Can the strict products liability applied to a retailer also be imposed on a defendant who is outside the original producing and marketing chain? Held. James Peterson's (Plaintiff) children were injured when they were struck by a used car. including amputation of a leg. The Plaintiff.

Citation. However. retailers play an integral part in the production or marketing enterprise. Did the trial court err in finding that Defendant was exempt from the application of the strict products liability doctrine? Held. Facts. The Plaintiff. 595 (Cal. (Defendant) in relation to the implantation of a defective pacemaker. The complaint contained three causes of action: negligence. The Plaintiff filed a complaint against the Defendant alleging personal injury from the implantation of a defective pacemaker. Plaintiff maintains this appeal on the theory that the hospital is a supplier of pacemakers and this should be subject to the same strict liability standard as other suppliers. Strict liability is generally not applicable to services. policy considerations counsel against imposition of strict products liability in such areas. No. Cedar-Sinai Medical Ctr. • The difference between those to whom strict liability has been applied and hospitals is that the former are simply conduits in distribution. 225 Cal. Brief Fact Summary. • Additionally. strict liability and breach of warranty. increased liability in this area would result in higher costs for health care. Plaintiff appealed.Rptr. All three causes were dismissed in favor of Defendant. In cases that involve characteristics of both a sale and a service. claimed that strict product liability was applicable to the Defendant.App. Because the hospital is not a seller. • The imposition of strict products liability has been expanded from manufacturers to include retailers. The main function of the hospital is to furnish trained personnel and specialized facilities. .Appell. while the latter provides services as a healer of illnesses. 180 Cal. Judgment affirmed.280 Hector v. Discussion. Synopsis of Rule of Law. while the items used are simply instruments to accomplish the objective of treatment. Unlike manufacturers and retailers. Also. Issue. the courts will not apply strict liability if the transaction is predominately a service. Hector v. Hospitals are not subject to strict liability for a defective product provided to a patient during treatment when the hospital is a provider of services rather than a seller of a product. it cannot be held strictly liable for injuries to the Plaintiff because of defects in the pacemaker. the Defendant does not select the pacemaker and is in a poor position to test it or inquire about its function. Cedars-Sinai Medical Ctr. or at least enable the product to get from the manufacturer to the consumer. Cedars-Sinai Medical Ctr. Frances Hector (Plaintiff).3d 493.1986).

N u i s a n c e .281 C H A P T E R X V I .

public nuisance. Inc.1985).2d 303 (3rd Cir. The Plaintiff. Synopsis of Rule of Law. being between two commercial corporations with no misrepresentation or concealment and full opportunity to inspect. Defendant became the successor to PICCO and expressly assumed all obligations and liabilities of PICCO. Hercules. Citation. Hercules. Brief Fact Summary. Philadelphia Electric Company v. The suit was based on private nuisance. public nuisance and indemnity. The Pennsylvania Department of Environmental Resources (DER) discovered pollutant materials similar to those once produced by PICCO seeping into the Delaware River and ordered Plaintiff to eliminate the situation.282 Philadelphia Electric Company v. The parties cite no case that permits a purchaser of real property to recover from a seller on a private nuisance theory for conditions that existed on the land transferred. Plaintiff brought suit against Defendant for public nuisance and private nuisance resulting from pollutants on the land left from PICCO. The sale of the site was subject to the rule of caveat emptor. Hercules. Issue. with the crucial question being to whom they are liable. plaintiff must show there was a breach of duty. not the Plaintiff purchaser. Facts. In this case. A subsequent bona fide purchaser of land cannot claim private nuisance against a previous owner for damage done to the land. No. Judgment reversed. 762 F. Inc. or common law indemnity? Held. To allow Plaintiff to recover on a private nuisance theory would circumvent the rule of caveat emptor. (Defendant). To recover on a private nuisance theory. Subsequently. Does the Plaintiff have a cause of action against Defendant for private nuisance." For this case. The relationship between Plaintiff and Defendant was treated by the court as one of vendor and remote vendee of land. • The Restatement [Restatement (Second) of Torts. Philadelphia Electric Company (Plaintiff). purchased land that was originally owned by Pennsylvania Industrial Chemical Corporation (PICCO) and subsequently the Defendant. A Plaintiff cannot claim a tort action for public nuisance against a Defendant unless the Plaintiff can claim particular damages suffered due to an interference with a public right. § 821D] defines a private nuisance as "a nontrespassory invasion of another's interest in the private use and enjoyment of land. . The district court granted both. Inc. the court assumes that Defendant is liable for a private nuisance. Plaintiff brought suit against Defendant for damages and an injunction to abate any further pollution. The Plaintiff purchased property from Gould that was originally owned by PICCO. Plaintiff owned land adjacent to the PICCO land and had ample opportunity to examine the land it purchased. assumed all liabilities of PICCO. the duty Defendant owed was to neighbors.

§ 821B(1)] defines a public nuisance as "an unreasonable interference with a right common to the general public. Therefore." A public nuisance is a criminal offense. consisting of an interference with the rights of the community at large. Defendant would still be liable for a private nuisance to neighboring landowners or a public nuisance for users of the Delaware River waters. courts have allowed tort actions for a public nuisance when the plaintiff suffers a particular damage. However. Discussion. Plaintiff argues that the expense it incurred in cleaning up the pollutants is a particular damage.283 Philadelphia Electric Company v. Inc. However. Plaintiff lacks standing to claim indemnity or injunctive relief for a public nuisance. . the harm common to the general public in this case was the public right to clean water. Hercules. • The Restatement [Restatement (Second) of Torts.

but Defendant failed to do so. the Defendant incorrectly asserts that an oil refinery cannot become a nuisance in fact unless it is constructed or operated in a negligent manner. A new trial was ordered because of an error in instructions to the jury. High Penn Oil Co. Plaintiff claimed that for some hours. Citation. Synopsis of Rule of Law. Plaintiff put Defendant on notice of the situation and demanded that he abate it. • An intentional invasion occurs when the person knows that the nuisance is resulting from his conduct. High Penn Oil Co. requesting temporary damages and an injunction. reckless. • However. 238 N. The use of the Plaintiff. • Defendant argues that the evidence is insufficient to establish either an actionable or an abatable private nuisance. Morgan v. Plaintiff brought suit for private nuisance. A person may be liable for an unintentional invasion when his conduct is negligent.284 Morgan v. No. the refinery emitted nauseating gases and odors that rendered persons of ordinary sensitivities on his land uncomfortable and sick.2d 682 (1953). Morgan's (Plaintiff) land. Issue. emission of noxious gases.E. a restaurant. Interpreting the evidence in the light most favorable to the Plaintiff.C. Facts. or ultrahazardous. A person may be subject to liability for an intentional invasion of one's use and enjoyment of their land if his conduct is unreasonable under the circumstances. or nuisances per accidens or in fact. The Defendant owned the adjoining tract of land on which it operated an oil refinery. A nuisance in fact may be created or maintained without negligence. An intentional private nuisance occurs when a person either acts for the purpose of unreasonably interfering with another person's enjoyment of their land or knows that such interference is resulting from his conduct. 77 S. Brief Fact Summary. on two to three days a week. was allegedly being interfered with by the Defendant. 185. Plaintiff asserts that private nuisances are classified either as nuisances per se or at law. High Penn Oil Co. it supports a finding that the Defendant intentionally and . The Defendant claims correctly that that an oil refinery is a lawful enterprise and therefore cannot be a nuisance at law.'s (Defendant). Did the trial court err by not granting Defendant's motion for a compulsory nonsuit on the claim that the refinery was so maintained and operated as to create a nuisance? Held. and accommodations for thirty-two trailers. Plaintiff owned a tract of land on which he had a dwelling. Judgment affirmed. regardless of the care or skill exercised to prevent the injury.

Discussion. negligence is the basis of liability. when the Defendant has committed an unintentional interference. This entitles Plaintiff to recover temporary damages. Unlike in the present case. High Penn Oil Co. unreasonably caused noxious gases to escape onto Plaintiff's property so as to impair in a substantial manner his use and enjoyment of the land. Additionally. using the same standard. .285 Morgan v. the evidence is sufficient to show that Defendant intends to operate its oil refinery in the same manner and thus the issuance of an injunction is appropriate.

The Plaintiffs-Appellants. Defendants prevailed at the trial level and the Appellate Court reversed based on a new subsection of the Restatement allowing for damages when the harm is serious and payment is feasible. Idaho's economy depends on the benefits of agriculture. brought suit against the Defendants-Respondents. . concluding that the feedlot did not constitute a nuisance. Facts. Inc. Brief Fact Summary. Cattle Company. Judgment of the District Court is affirmed. claiming that the operation of its cattle feedlot constituted a nuisance. and industrial development. those directly effected deserve some compensation.2d 235 (1960). Inc. Ruth Carpenter and others (Plaintiffs). No. dust and noise caused by the feedlot constituted a nuisance.286 Carpenter v. Idaho law does not follow subsection b of the Restatement allowing for the payment of damages when the gravity of the harm is outweighed by the utility of the conduct. odor. including damages done to the environment.000 cattle and that the accumulation of manure. The new subsection of the Restatement adds a method of compensating those who suffer without discontinuing the beneficial business. this language was clearly dictum. The majority forgets that the cost of a product includes external costs. without forcing the business to discontinue. Adrian Carpenter. The Double R Cattle Company. J.. yet the harm is serious and the payment is feasible without forcing discontinuation of the business. Citation. water pollution. The Court of Appeals reversed.R. and others (Defendants). Carpenter v. Section 826(b)] allowing for a nuisance even when the gravity of harm is outweighed by the utility of the conduct. 82 Idaho 263. However. 352 P. based on a new subsection of the Restatement [Restatement (Second) of Torts. The Double R Cattle Company. 701 P. Did the trial court err by not giving a jury instruction based on the new subsection of the Restatement? Held. To do away with the utility of conduct and other factors would place an unreasonable burden on these industries. • The new subsection of the Restatement does not represent the law in Idaho. Issue. Simplot Co. 108 Idaho 602. so long as the harm is serious and the payment of damages is feasible. The Appellate Court's decision was based on language in our decision in Koseris v. mining. insect infestation. lumber. Justice Bistline wrote that the Court of Appeals was correct in attempting to modernize the law of nuisance in Idaho. While it is desirable to allow a serious nuisance to continue when the utility of the operation causing the nuisance is great. Dissent.2d 222. The jury and trial court made findings. Inc. Synopsis of Rule of Law. The Plaintiffs contend that the feedlot had been expanded to accommodate the feeding of 9. The Plaintiffs were homeowners living near the Defendants' cattle feedlot. the Double R.

. The Double R Cattle Company. Discussion. Inc. A hypersensitive individual cannot claim a nuisance when the harm done to him would not affect an average person.287 Carpenter v. In order to create a nuisance. the harm must be the kind that would be suffered by a normal person in the community.

. The Plaintiffs. Winget and others (Plaintiffs). The Defendant's grocery supermarket met every requirement of the municipal authorities and under the facts it cannot be held that the location of the business constituted a nuisance. Issue. Facts. These activities do not constitute a nuisance when the relative rights of the parties are examined. a lawful business may constitute a nuisance if the business is conducted in an unreasonable manner so as to unreasonably interfere with the lawful use and enjoyment of others' property. In the present case. Inc. Winget v. Winn-Dixie Stores. Brief Fact Summary. A business that meets all municipal requirements regarding the establishment of the business and is not constructed in such a manner as to interfere with the rights of others.2d 363 (1963). The Plaintiffs claimed that Defendant's store operation constituted a nuisance and in addition to damages. Synopsis of Rule of Law.E. Defendant appealed. requested an order restraining Defendant from using the property for a grocery business or for any other business purpose. The trial court properly refused Defendant's motion for a directed verdict and improperly refused its motion for a new trial. • However. 242 S. Winn-Dixie Stores. floodlights shining on Plaintiffs' property and trash that was allowed to escape onto Plaintiffs' property. Inc. Plaintiffs contend that the influx of traffic and the trash trucks and street sweepers operated at late night hours constitutes a nuisance. cannot constitute a nuisance based on its location.288 Winget v.C. such as the operation of fans blowing on Plaintiffs' property. brought suit alleging that the operation of the Defendant. The Plaintiffs brought an action for damages sustained from the location and operation of the Defendant's grocery supermarket. Inc's (Defendant). The traffic influx occurs during reasonable hours and the operation of the trash removal is the usual operation of the city. 152. The trial court gave judgment for the Plaintiffs in the sum of $5. Did the trial judge properly refuse Defendant's motions for a directed verdict and a new trial? Held. 130 S. Winn-Dixie Stores. and denied the request for injunctive relief.000. Citation. adjoining grocery supermarket constituted a nuisance due to its location and the manner of its operation. • Other allegations by Plaintiffs did require submission to the jury. These activities were properly submitted to the jury and Defendant's motion for a direct verdict on these facts was properly denied. • Plaintiffs claim that Defendant's supermarket was a nuisance because of its location and the manner of its operation.

289 Winget v. Inc. • Defendant also contends that a new trial should be granted based on the improper admission of testimony relating to depreciation in Plaintiffs' property value. Winn-Dixie Stores. A business that is lawfully operated still may constitute a nuisance if it unreasonably interferes with the use and enjoyment of the property of others. Discussion. The testimony regarding property value should have been stricken and Defendant's should be granted a new trial based on this error. If there is no public or private nuisance created by the use of property. no damage recovery can be allowed for diminution in property value. .

Synopsis of Rule of Law. temporary damages were allowed. Boomer v.. and vibrations created by the plant.2d 312 (N. Brief Fact Summary. • The doctrine applied in New York has been that when a nuisance is found and there has been substantial damage demonstrated by the complaining party.Y. At trial a nuisance was found. allowing Defendant the opportunity to develop technical advance to eliminate the nuisance. The Plaintiffs.290 Boomer v. The threshold question in this case is if the Court should resolve the litigation between the parties now. The majority effectively licenses a continuing wrong. Boomer and other neighboring land owners (Plaintiffs). This court balances the equities between the two parties..Y. with little incentive for . No. but the value of Defendant's operation exceeds the nuisance created? Held.2d 870. or attempt to use this private litigation to define broad public objectives. Dissent. Plaintiffs brought an action for an injunction and damages. Atlantic Cement Co.'s (Defendant) neighboring cement plaint. 309 N.E.S. 257 N.. but postpone it until a future date. but allowing neighbors to recover present and future damages created by the nuisance. Inc. refusing to close down a large cement plant even though it creates a nuisance. 26 N. Order reversed and case remanded. smoke. smoke.Y. However. Facts. the rate of research is beyond the control of the Defendant and a court would be hard pressed based on equitable principles to close this plant based if it is unable to develop such technology. • One alternative would be to issue an injunction.1970). This court finds that an effective policy for the elimination of air pollution is beyond the scope of this court's jurisdiction. Citation. Inc. but an injunction was denied. Judge Jasen stated that he did not agree with the majority's new doctrine of permanent damages rather than an injunction when substantial property rights have been impaired. Atlantic Cement Co. alleging injury to their property from dirt. claiming damages and an injunction due to dirt. Inc. Following the doctrine in this case would have the effect of closing Defendant's large plant immediately.Appell. Atlantic Cement Co. Defendant operated a large cement plant. Was the trial court correct in denying Plaintiffs an injunction when Defendant's activities are found to create a nuisance.2d 219. and vibrations interfering with their property rights. brought a nuisance action against the Defendant. an injunction will be granted regardless of a marked disparity between economic consequences. • There is a growing public concern for the control of air pollution. Issue.

291 Boomer v. . balancing the equities on a case by case basis. the wrong to be eliminated. Most courts take an approach similar to the majority's in nuisance cases where an injunction is requested. Atlantic Cement Co. Discussion. the imposed servitude on Plaintiffs' land for a private use rather than a public use is unconstitutional.. Inc. Additionally.

the trial court was correct in permanently enjoining operation of Defendant's feedlot. If Plaintiff were the only party injured. when Sun City was with 500 feet of Defendant. Spur Industries.2d 700 (1972). may the business be enjoined by an action brought by the developer of the residential area? • If the nuisance may be enjoined. Issue. Inc. Therefore. The trial court granted Plaintiff's injunction request. Defendant's operation is both a public and private nuisance for the citizen's of Sun City. v. which must move or cease operation? Held. Some courts have held that in balancing of the conveniences cases such as this. Because Plaintiff brought people to the nuisance to the . Defendant had been established in the area long before Plaintiff built residential property nearby. damages are the only remedy. Yes. Inc. until 1967. Facts. which makes the granting of an injunction necessary. but becomes a nuisance because of a nearby residential area. However. (Plaintiff). some distance from Defendant. 178. • Plaintiff's suit alleged that Defendant's feedlot was a public nuisance because of flies and odor created by the feedlot. Brief Fact Summary. Del E. Webb Development Co. reversed in part. Defendant appealed and Plaintiff cross-appealed.292 Spur Industries. Judgment affirmed in part. v. Spur Industries. may the developer be required to indemnify the operated of the business. • It follows neither equitably or legally that Plaintiff is free of liability if he is the cause of the damage that Defendant will sustain from the permanent injunction. Del E. a residential community. Webb Development Co. Citation. Plaintiff brought suit requesting a permanent injunction of Defendant's operations. In 1959 the Plaintiff began to develop Sun City. this Court has no difficulty in finding that the operation of Defendant's feedlot is an enjoinable public nuisance. However. When the operation of a business is lawful in the first instance. Synopsis of Rule of Law. The development expanded. his claim would be barred by the doctrine of coming to the nuisance.'s (Defendant). feedlot based on a public nuisance claim. the developer must indemnify the enjoined business if the impending injunction was foreseeable by the developer. claiming that remaining lots were unfit for residential development because of the operation Defendant's feedlot. Inc. The Defendant had operated a cattle feedlot in an urban area outside of Phoenix since before 1950. and remanded. Webb Development Co. When a developer has brought into a previously agricultural or industrial area the population. brought suit for an injunction of the Defendant. Del E. 108 Ariz. 494 P. The Plaintiff.

v. The majority rule is that a plaintiff is not barred from recovery in either public or private nuisance law because he comes to the nuisance. Webb Development Co. Del E.293 Spur Industries. Plaintiff must indemnify Defendant for the reasonable cost of either moving the business or shutting down. foreseeable detriment to Defendant. . Discussion. Inc. this is not an absolute law when other factors are more or less balanced. However.

D e f a m a t i o n .294 C H A P T E R X V I I .

295 Belli v. 825. 88. • When a publication is false and not privileged and is such that its natural and proximate consequence necessarily causes an injury to a person in his personal. Inc.Ct. Orlando Daily Newspapers. an attorney. Facts. This Court agrees that the . Defendant is barely able to make a case that the article could be interpreted as non-defamatory. Another attorney. If the meaning of an article is capable of two interpretations. 1967). had a conversation with a columnist for the Defendant in which he related a story he had heard regarding Plaintiff. Brief Fact Summary. Issue.2d 96 (1968) (5th Cir. cert. Inc. at the expense of the Association. social.S. The columnist published the story with embellishments and the story turned out to be false. Citation. 89 S. • Defendant's claimed that the article did not hurt Plaintiff in his profession because the article only showed that the agreement was more favorable to Plaintiff than to the Association. (Defendant). Based on this argument. Inc. Belli v. The Plaintiff was a nationally prominent attorney. Orlando Daily Newspapers. Belli (Plaintiff). official. published an article claiming that the Plaintiff. 389 F. considering al the circumstances. The story was that Plaintiff and his wife ran up a large clothing bill at a Florida hotel. or business relations or life.Ed. If the meaning is so unambiguous as to only reasonably bear one interpretation. and Plaintiff brought a defamation suit. one being defamatory and the other not. Judgment reversed and remanded. it is for the jury to determine the meaning of the article based on all of the evidence. charging a large clothing bill to the Association. The article was false. The Defendant. The District Court dismissed Plaintiff's complaint for failure to state a claim. If the meaning is capable of multiple interpretations. This portrayal has negative implications toward Plaintiff's profession. Was the District Court correct that the determination of whether a statement is a libel or slander per se is solely for the court? Held. Orlando Daily Newspapers. it is for the judge to say if the meaning is defamatory or not. took advantage of an agreement with the Florida Bar Association (the Association). Mr. it is for the jury to determine the meaning. Synopsis of Rule of Law. • Plaintiff contends that the article portrays him as having committed trickery and deception against the Association. The Plaintiff brought an action for libel and slander. No.2d 579. wrong and injury are assumed and the publication is actionable per se. denied 393 U. Handley. 21 L.

Discussion. Therefore.296 Belli v. The Court in this case felt that the facts strongly suggested the article was defamatory. First Amendment constitutional rights of free press impel the Court to not place itself in the role of the jury. but refused to exercise the role of the jury due to First Amendment constitutional considerations. Inc. Regardless. Orlando Daily Newspapers. the final determination should have been made by the jury. article had the capability of carrying a defamatory meaning. .

The trial court dismissed the complaint for insufficiency in law upon its face.2d 733 (2nd Cir. This person may value his reputation amongst those who do not embrace the prevailing moral standards. No.297 Grant v. The Defendant published an article alleging that Plaintiff represented the Communist Party in Massachusetts. Reader's Digest Ass'n (Defendant). . claiming that the Plaintiff. • The interest at stake is that of the person assailed. Facts. Even if the thinking is that of a small part of the community. Grant (Plaintiff). Judgment reversed and remanded. 151 F. it is sufficient to consider the cause of action. It is not necessary that the majority of people would find an article to be damaging to Plaintiff's reputation so long as some people would reasonably find in damaging. Reader's Digest Ass'n Citation. Synopsis of Rule of Law. even if these people may be "wrong-thinking. The trial court dismissed the suit for insufficiency in law on the face of the claim. So long as some people feel so. Plaintiff brought a libel suit claiming that the article was untrue and malicious. It is not enough to say that "right-thinking" people would not believe this article to be damaging to plaintiff's reputation. Brief Fact Summary. there must be an element of discredit or disgrace in order for the cause to be actionable." Discussion. An article was published by the Defendant. 1945). Reader's Digest Ass'n Grant v. Was the trial court correct to determine as a matter of law that it is not libelous in New York to write that a lawyer has acted as an agent of the communist party and is a believer of its aims? Held. Plaintiff brought a libel suit. represented the Communist party. Issue.

a Plaintiff's general bad character can not justify specific charges. 367 Pa. Doubleday & Co. Citation. Judgment reversed and a new trial awarded. Doubleday & Co. Plaintiff brought a libel action. Inc. Kilian v. Issue. and the Defendant. One of the veterans. • In order to support a defense of truth. The events were actually witnessed by other individuals and relayed to the author. (Defendant).. Inc. A book was created from the writings of disabled veterans taking an English course. Discussion.2d 657 (1951). Synopsis of Rule of Law. 117. Facts.. the professor of the course. Plaintiff brought suit for libel and Defendant answered by claiming truth as a defense. Defendant presented three witnesses that had been under Plaintiff's command.. 79 A. Dr. None of the evidence was capable of proving that any of the events narrated by O'Connell actually occurred. Wolfe. An article written in the first person described acts of cruelty committed by the Plaintiff. Defendant argued that the article is a true account of the events as observed by the author. The story described acts of cruelty and unauthorized punishments administered by Plaintiff.298 Kilian v. answered claiming truth. Doubleday & Co. Specific charges cannot be defended through a claim of truth by a showing of Plaintiff's general bad character. O'Connell. added a footnote claiming that Plaintiff was convicted of permitting cruel and unusual punishment and received a reprimand and a small fine for his crime. . Truth is an absolute defense to charges of defamation. Inc. • Plaintiff was acquitted of knowingly permitting the imposition of cruel and unusual punishments and was convicted only of permitting these punishments negligently. However. wrote a story in the first person that was actually based on stories that were described to him by other soldiers who allegedly witnessed them. Brief Fact Summary. At the end of the story. Killian (Plaintiff) an army Colonel. In support of this claim. the author admitted that he was never under Plaintiff's command at Lichfield. However. Did the trial court err by submitting to the jury the question of whether the publication was substantially true? Held. Yes. it is only necessary to prove that the article was substantially true.

No. The Defendants were the authors of a book entitled U. Neiman-Marcus's (Plaintiff). Can a designated group of individuals sue for libel when less than all of the designated group are libeled? Held. • It was alleged that most of Plaintiff's salesmen were gay. Plaintiff alleges that the article libeled and defamed three groups of its employees. Brief Fact Summary.R. Plaintiff and representatives of each of these groups brought a libel suit.S. Lait Citation. and Defendants' motion to dismiss as to this claim is denied. Lait Neiman-Marcus v. 311 (N. No specific individual is named in the statement. Synopsis of Rule of Law. A large group of individuals cannot bring a libel claim unless the allegedly libelous statement makes specific defamatory statements against an individual member of the group.Dist. wrote an article making accusations about three groups of employees at the Plaintiff. The book made claims against Plaintiff who operated a department store in Texas.Ct.Y. This is not a cause of action in New York. • The allegations against Plaintiff saleswomen were general allegations against an extremely large group. Complaint dismissed with leave to file separate complaints.1952). (2) Fifteen salesmen suing on behalf of twenty-five salesman. that individual may have a cause of action.D. If a single member of a large group presents particular circumstances that point to that member as the person defamed. Facts. Lait and others (Defendants). and (3) Thirty saleswomen suing on behalf of 382 saleswomen. . department store. Issue. Plaintiff sued in the following groups: (1) Nine individual models that constitute the entire group of models. No case has been cited that that would support a cause of action by a member of any group of such magnitude. This court grants the two other groups leave to file separate complaints. 13 F.A. Confidential. This Court holds as a matter of law that no reasonable man would take the writer seriously and conclude that the publication references any individual saleswoman. Discussion.299 Neiman-Marcus v. The Defendants.

Mitchell wrote a novel allegedly based on the Plaintiff. Ms. nonfictional persons. Yes. a successful novelist. psychological techniques. The issue of whether or not a character is a representation of the Plaintiff in question is if a reader with knowledge of the surrounding circumstances could reasonably understand that the words referred to the plaintiff. Both Plaintiff and Defendants appealed. Mitchell's book is conspicuously different from the Plaintiff. Mitchell. The only similarity is the nude encounter . The Plaintiff.Ed. registered in this program. Judgment affirmed. • Defendants also question if there is publication for libel when the communication is only to one person or a small group of people.1979). including a nude marathon. • Defendants contend that the labeling of the book as a novel bars any claim that the characters are representations of actual. There is overwhelming evidence that the main character could be identified as the Plaintiff. used a "nude marathon group therapy" technique to help rid individuals of their psychological inhibitions. 62 L. Plaintiff brought an action for libel. Mitchell contracted with Doubleday for a novel based on the nude-therapy technique. This is based on the limited recognition of Plaintiff by readers who know him. Mitchell) and Doubleday Publishing (Defendants). a licensed psychologist. Facts. The jury found for Plaintiff at trial and the court granted a motion for a new trial conditioned on Plaintiff accepting a remittitur.S. Brief Fact Summary. • The only real differences between Plaintiff and the novel characterization were physical appearance and the fact that the main character was a psychiatrist rather than a psychologist. The Defendants were Gwen Mitchell (Ms. Paul Bindrim's (Plaintiff). However. Defendants claimed the novel was a work of fiction and the character could not reasonably be identified as Plaintiff. Ms.300 Bindrim v. claiming he was defamed by the depiction. However. the test is whether a reasonable person reading the book would understand that a fictional character therein is a description of the Plaintiff. 713. Dissent. Ms. Presiding Judge Files wrote that the fictional therapist in Ms. Issue. Synopsis of Rule of Law. Mitchell Bindrim v. Was there sufficient evidence to show that the Plaintiff was identified as the main character in the novel? Held. Mitchell Citation. 1040. Dr. it is clear that publication is sufficient for defamation even when the publication is to only one person other than the person defamed. 100 S. Plaintiff brought a libel action against the Defendants.Appell. 444 U.2d 675 (Cal.Ct. signing a contract with Plaintiff to not disclose what occurred at the workshop.

Mitchell therapy. The fictional setting does not insure immunity when a reasonable person would find the fictional character to be a portrayal of the Plaintiff. known as the colloquium. Only three witnesses testified they recognized Plaintiff and the only characteristic they recognized was the therapy practiced. . Discussion. The reference to the plaintiff. Concurrence.301 Bindrim v. need not address the plaintiff by name if it is reasonably understood as referring to him.

Defendant said that he wished he had as much money as Plaintiff owes. But the Court was not equally powerless to address defamation in the new media of radio and television. Defamation broadcast on the radio is actionable as either libel or slander. Issue. The element of damage is historically the basis for common law defamation. This matter is generally regulated by statute today. regardless of whether it is read from a script or ad-libbed.2d 857. both logic and policy support the conclusion that defamation by radio should be actionable per se. The Plaintiff sued the Defendant for an ad-libbed remark on a nationwide radio telecast. Discussion. Plaintiff brought a defamation suit.2d 476 (1956). 158 N. with most statutes providing that any defamation broadcasted is to be treated as slander.302 Shor v. Billingsley Citation. the broadcast of defamatory utterances is as potentially harmful as a publication by writing. Synopsis of Rule of Law. The Defendant.Y. Billingsley (Defendant). Facts. Therefore. Yes. Can an action based on a telecast not read from a prepared script be actionable as libel or slander? Held. ad-libbed a defamatory statement about the Plaintiff. Shor (Plaintiff) on a radio broadcast. Brief Fact Summary. • Delivery of the same statement over a microphone at a stadium would still be treated as slander because of a history of past decisions. .S. • Considering the large audience reached by radio today. 4Misc. Motion to dismiss is denied. Billingsley Shor v.

Judgment affirmed. 54. It is said that special damages in general are whenever a person is prevented by the slander from receiving what would otherwise be conferred on him.Y. 420 (N. Wands (Plaintiff).Y. even if it would have been gratuitous. Special damages must be claimed in a slander suit that is not slander per se. Special damages must have been the natural. Issue.Appell. Four types of slander are actionable without proof of special damages under the common law. A sickness caused by fear of harm to character does not suffice. In the present case. Wands Terwilliger v. 72 Am. brought a slander action against the Defendant. Brief Fact Summary. (iv) of serious sexual misconduct.1858). . These are imputations (i) of a major crime. claiming the Defendant made statements accusing the Plaintiff of having intercourse with a married woman and trying to keep this woman's husband in jail. Fuller's house to have intercourse. Synopsis of Rule of Law. or office. that this woman was a bad woman. Only pecuniary injuries affecting one's character will suffice. there is no proof that the Plaintiff's character was injured. No. as is required when a slander cause of action is not slander per se? Held. Fuller. Wands Citation. 17 N.303 Terwilliger v. immediate and legal consequences of the slander in question. • The Plaintiff claims that he suffered poor health and was unable to attend to business after hearing of the Defendant's reports. (iii) affecting one's business trade.Dec. profession. Fuller's husband in the penitentiary so that he could have free access to Mrs. The Plaintiff proved at trial that the Defendant suggested that the Plaintiff was going to a Mrs. Did the Plaintiff prove special damages. therefore the special damages relied on in this case do not support an action. A motion for nonsuit was sustained by the trial court. Facts. Terwilliger (Defendant). The Plaintiff brought an action for slander. and that the Plaintiff was doing everything in his power to keep Mrs. (ii) of a loathsome disease. The Plaintiff. Discussion.

304 Economopoulos v. A.G. Pollard Co.

Economopoulos v. A.G. Pollard Co.
Citation. 218 Mass. 294, 105 N.E. 896. Brief Fact Summary. The Plaintiff, Economopoulos (Plaintiff), sued the Defendant, A.G. Pollard Co. (Defendant) because its clerks falsely accused him of stealing. No one was present who spoke the language that the accusation took place in except for the Plaintiff and the clerk. Synopsis of Rule of Law. To maintain a defamation cause, publication of the defamatory statement must occur to some one other than the person defamed. Facts. A clerk of the Defendant told the Plaintiff in English that the Plaintiff had stolen a handkerchief. The Plaintiff spoke Greek, so a Greek clerk told the Plaintiff the same thing in Greek. No evidence showed that any third person heard the charge except the floor walker. The Plaintiff brought a tort charge for maliciously accusing him of larceny by words spoken. Issue. Can publication occur when no third person hears the slanderous statement except persons who do not speak the same language? Held. No. Exceptions overruled. • There was no evidence that anyone, but the Plaintiff was present when the first clerk spoke to the Plaintiff in English. There was no evidence that anyone present except the Plaintiff understood the words spoken by the second clerk. Therefore, no publication was made. Discussion. Publication in defamation cases does not refer to any sort of writing, but rather means communication of the words to some other person than the person defamed.

305 Carafano v. Metrosplash.Com, Inc.

Carafano v. Metrosplash.Com, Inc.
Citation. 339 F.3d 1119 (9th Cir. 2003) Brief Fact Summary. An unidentified individual posted a profile of an actress on a dating service website. The actress did not know about the posting. The profile included vulgar and embarrassing information. Synopsis of Rule of Law. 47 U.S.C. §230(c)(1) provided the dating service in this matter immunity from suit. Facts. Matchmaker.com ("Matchmaker") was a for profit, internet dating service. Individuals that participated in the service posted anonymous profiles and were allowed to contact other individuals with postings via electronic mail. Each profile contained personal information, plus one or more pictures of the member. Members were also required to fill out detailed questionnaires that included both essay and multiple choice questions. Matchmaker reviewed the pictures for impropriety, but did not review the profiles. On October 23, 1999, an unknown individual posted a "trial" personal profile for the Plaintiff, Christianne Carafano a/k/a Chase Masterson (the "Plaintiff"), in the Los Angeles section of Matchmaker. A "trial" profile could be posted without a fee for a weeks. The Plaintiff did not authorize or initially know about a posting under her name. The Plaintiff was a successful actress, and various pictures of her were available on the internet. Several of those pictures were posted on the profile. Certain embarrassing and inappropriate information was included in the profile. First, that the Plaintiff read "Playboy/Playgirl" to learn about current events. Second, that she was looking for a one night stand. Third, that the Plaintiff "was looking for a 'hard and dominant' man with 'a strong sexual appetite' and that she 'liked sort of be [ ]ing controlled by a man, in and out of bed.' " An e-mail address was also provided in the profile. An automatic reply to that e-mail provided anyone that responded to the Plaintiff's profile with the Plaintiff's home telephone number and address. Beginning on October 31, 1999, the Plaintiff, unaware that the profile was on the internet, began receiving sexually explicit messages by all mediums of communication, in response to the profile. As a result of these messages, the Plaintiff and her son felt unsafe, and stayed away from Los Angeles for a long period of time. On November 6, 1999, an assistant of the Plaintiff Siouxzan Perry ("Ms. Perry"), learned about the website and the Plaintiff instructed her to contact Matchmaker to remove the profile. The profile was blocked on November 8, 1999 and removed the following morning. • The Plaintiff filed suit against Matchmaker and another Defendant, its corporate successor Metrosplash.Com, Inc. (the "Defendants"), in California. The suit was brought in state court alleging various causes of action including "invasion of privacy, misappropriation of the right of publicity, defamation, and negligence." The case was removed to federal court and the district court granted the Defendants' motion for summary judgment. Although summary judgment was granted, the Defendant's contention that it was immune under 47 U.S.C. §230(c)(1) was rejected by the district court.

306 Carafano v. Metrosplash.Com, Inc. Issue. Whether the Plaintiff's claims are barred by 47 U.S.C. § 230(c)(1)? Held. Yes. 47 U.S.C. §230(c)(1) stated "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The result of this provision was to grant "most Internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party." This provision resulted in internet publishers being treated differently from print, television and radio publishers. There were two purposes for this immunity: "to promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material." Courts have defined "interactive computer service" very broadly and "information content provider" very narrowly, in order to further these two goals. Accordingly, an " 'interactive computer service' qualifies for immunity so long as it does not also function as an 'information content provider' for the portion of the statement or publication at issue." • The court relied upon [Batzel], which "provided immunity to the operator of an electronic newsletter who selected and published an allegedly defamatory e-mail over the Internet." The court observed that "the Batzel decision joined the consensus developing across other courts of appeals that § 230(c) provides broad immunity for publishing content provided primarily by third parties." The majority found that although certain of the content on the individual members' profiles was formulated based on the members' responses to the questionnaire, the Defendants immunity was not breached. The selection of the content was left entirely to the member. The court observed, "Matchmaker cannot be considered an 'information content provider' under the statute because no profile has any content until a user actively creates it." Accordingly, the majority found that Matchmaker's role was analogous to "the customer rating system" involved in [Gentry v. eBay, Inc.]. The court in [Gentry] found that eBay was not transformed into an "information content provider" solely because it "compil[ed] false and/or misleading content created by the individual defendants and other coconspirators." On the same note, "the fact that Matchmaker classifies user characteristics into discrete categories and collects responses to specific essay questions does not transform Matchmaker into a 'developer' of the 'underlying misinformation.' " • The court in [Gentry] observed, "[T]he fact appellants allege eBay is an information content provider is irrelevant if eBay did not itself create or develop the content for which appellants seek to hold it liable. It is not inconsistent for eBay to be an interactive service provider and also an information content provider; the categories are not mutually exclusive. The critical issue is whether eBay acted as an information content provider with respect to the information that appellants claim is false or misleading." Relying on [Gentry], the court recognized "critical information about Carafano's home address, movie credits, and the e-mail address that revealed her phone number were transmitted unaltered to profile viewers. Similarly, the profile directly reproduced the most sexually suggestive comments in the

307 Carafano v. Metrosplash.Com, Inc. essay section, none of which bore more than a tenuous relationship to the actual questions asked. Thus Matchmaker did not play a significant role in creating, developing or 'transforming' the relevant information." Discussion. This case illustrates how internet publishers are treated differently from publishers in print television and radio.

308 Ogden v. Association of the United States Army

Ogden v. Association of the United States Army
Citation. 177 F.Supp. 498 (D.C.1959). Brief Fact Summary. Plaintiff brought suit for an allegedly libelous book that was originally published at a time that would have caused the statute of limitation to have accrued, but more copies had been published since then. Synopsis of Rule of Law. Under the single publication rule, written material containing defamatory matter gives rise to only one cause of action for libel. This cause accrues at the time of the original publication, and the statute of limitation runs from that date. Facts. A book containing allegedly libelous material was published in November, 1955. This suit was filed on June 25, 1959. The District of Columbia has a 1-year statute of limitations for defamation. Issue. Does the District of Colombia apply the single publication rule? Held. Yes. Defendant's motion for summary judgment granted • Under the common law, every sale or delivery of libelous matter was a new publication, allowing a new cause of action to accrue. Under modern conditions, this would allow for an unnecessary multiplicity of suits. The number of copies of the offending publication that are published will be a factor in determining the amount of recoverable damages. However, the original publication of the defamatory material causes the statute of limitations to run. Discussion. This case reflects the majority rule in American jurisdictions today.

309 New York Times v. Sullivan

New York Times v. Sullivan
Citation. 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Brief Fact Summary. The Petitioner, the New York Times (Petitioner), printed an advertisement that included false statements relating to the Respondent, L.B. Sullivan, an elected official's (Respondent) conduct. The Respondent brought suit for defamation and the trial court found in his favor. Synopsis of Rule of Law. The First Amendment of the United States Constitution (Constitution) requires proof of actual malice for libel actions brought by public officials against critics of their official conduct. Facts. The Respondent was one of three elected Commissioners of Montgomery, Alabama. His duties included supervision of the police department. The Respondent brought suit against the Petitioner, alleging that he was libeled by statements made in a full-page advertisement carried by the Petitioner. The advertisement included allegations that armed police in Montgomery surrounded the State Capitol when students gathered there to protest and that Dr. Martin Luther King has repeatedly been harassed by police in the south. The Plaintiff was not mentioned by name, but claimed that the statements attributed misconduct to him as supervisor of the Montgomery Police Department. A jury at Circuit Court awarded respondent damages of $500,000 and the Supreme Court of Alabama affirmed. Issue. Are States limited in their power to award damages in a libel action brought by a public official against critics of his official conduct? Held. Yes. Judgment reversed and remanded. • It is clear from the facts that some of the statements made in the advertisement were not accurate. However, an important purpose behind the First Amendment of the Constitution is to allow for uninhibited debate of public issues. It has been established that States or the federal government may not hinder debate of public issues through criminal statutes. This First Amendment constitutional protection is also applicable to civil libel actions. Safeguards are particularly important in this area because of the lack of indictment requirements and the lower burden of proof in civil cases. • Because of these constitutional concerns, the Supreme Court of the United States (Supreme Court) holds that a public official may not recover for defamatory falsehood relating to his official conduct unless he proves the statement was made with actual malice. Actual malice is defined as knowledge that the statement was false or acting with reckless disregard as to whether it was false or not. This privilege includes matters of public concern, public men, and candidates for office.

310 New York Times v. Sullivan • In the present case, there is no evidence that the statement printed by the Petitioner indicated malice at the time of publication. Further, the Petitioner's failure to retract the statement in this case is not adequate evidence of malice for constitutional purposes. Concurrence. Omitted. Discussion. The majority of courts that have considered the implications of this case have determined that the privilege is limited to expressions of opinion and does not include misstatements of fact.

2d 262 (1968). but rather relied only on the union member's affidavit. During a televised speech. there must be sufficient evidence to show that the Defendant entertained serious doubts as to the truth of his publication. Thompson (Plaintiff). It is clear that the Defendant had no personal knowledge of the Plaintiff's activities. The intermediate appellate court reversed. Was the Supreme Court of Louisiana correct in its determination that defendant acted with reckless disregard for the truth? Held.Ed. 390 U. • In order to meet the actual malice standard. This standard is not measured by whether a reasonably prudent man would have published the material or would have investigated before publishing. The United States Supreme Court (Supreme Court) granted certiorari. The appellate court reversed. The Defendant made a televised political speech during which he read questions and answers he had previously asked a union member. 727. The answers falsely charged the Plaintiff. of criminal activities. there must be sufficient evidence to show that the defendant entertained serious doubts as to the truth of his publication. Thompson Citation. Judgment reversed and remanded. Therefore. mistakenly believing that he had no responsibility for the broadcast because he was quoting someone else's words. finding sufficient evidence that the Defendant acted with reckless disregard for the truth. the actual malice standard is applicable. In order to prove reckless disregard for the truth. with criminal conduct. finding that the Defendant had not acted with actual malice. Amant v. Rather. • A defendant cannot insure a favorable verdict by simply stating that he published with a belief that the statement was true. No. However.Ct. the Defendant must have a high degree of awareness of the statements probable falsity. The jury must instead determine if the publication was made in good faith.311 St. Thompson St. Facts. The trial judge awarded damages for defamation. The trial court found in favor of the Plaintiff. the Defendant. quoted material from a third person that falsely accused the Plaintiff. He failed to verify the information. St. 1323. The Louisiana Supreme Court reversed. Amant v. 20 L. a deputy sheriff. in this case . 88 S. Issue. Amant (Defendant). Brief Fact Summary. The Louisiana Supreme Court affirmed the trial court's decision. Synopsis of Rule of Law.S. • The Supreme Court accepts the Louisiana courts determinations that the material published was false and that the Plaintiff was a public official for the purpose of this case.

the Supreme Court points out that it is essential to protect some erroneous publications in order to ensure that the First Amendment of the Constitution is upheld. Discussion. . Justices Hugo Black (J. Amant v. Fortas) argued that the Defendant has a duty to check the reliability of a statement. Black) and Justice William Douglas (J. Douglass) stated there should be an absolute privilege in defamation cases involving public figures. Dissent.312 St. Thompson the evidence against the Defendant was insufficient to meet the reckless disregard requirement for actual malice. Justice Abe Fortas (J. In support of its decision. Concurrence.

" Issue." To satisfy the actual malice standard. Harte-Hanks Communications. it is . which took place on November 8.. Inc. Stevens"). Connaughton Harte-Hanks Communications. James Dolan ("Mr. was the publisher of the Journal News. 1983 story was both defamatory and false. 1983. Ohio. v. 1983. accused another candidate for the same judgeship.' " The Respondent brought suit and the jury found that the November 1. at a minimum. Inc.cannot provide a sufficient basis for finding actual malice. Daniel Connaughton (the "Respondent").S. Connaughton Citation. first discussed whether the Court of Appeals "actually applied a less severe standard [than the actual malice standard] that merely required a showing of " 'highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. and concluded after considering the "evidence supporting each of the jury's special verdicts" that "neither the finding that the story was defamatory nor the finding that it was false was clearly erroneous. The Respondent. On November 1.. probable falsity. 657 (1989) Brief Fact Summary. Mr. It also recognized that "Petitioner is plainly correct in recognizing that a public figure plaintiff must prove more than an extreme departure from professional standards and that a newspaper's motive in publishing a story-.' " Facts. The Court of Appeals affirmed. Synopsis of Rule of Law.000 in punitive damages. writing for the majority. it was determined that the story was published with actual malice.] and "exercise independent judgment and determine whether the record establishes actual malice with convincing clarity" in the case before it? Held. was an unsuccessful candidate for a municipal judgeship in Hamilton. Justice John Paul Stevens ("J. Inc. On the same date. a newspaper that supported the reelection of the incumbent municipal judge. Dolan"). A newspaper story about a bribery scandal surrounding an incumbent candidate for a municipal judgeship. (the "Petitioner"). Although a precise definition cannot be fashioned.' or must have 'entertained serious doubts as to the truth of his publication. Did the Court of Appeals appropriately follow [Bose Corp. 491 U.' " The majority found certain evidence that the Court of Appeals did apply a lesser standard. of influencing the grand jury investigating the alleged bribes. v. A month before the election.whether to promote an opponent's candidacy or to increase its circulation-. Dolan's Director of Court Services resigned and was arrested for bribery. a grand jury was investigating the bribery charges.313 Harte-Hanks Communications. it is clear that the publisher must have a " 'high degree of awareness of . Although a precise definition of actual malice cannot be fashioned. the statements must have been made with a reckless disregard of the truth. Additionally. Consumers Union of the United States. v. Inc. The Petitioner. the Journal News ran a story quoting one of the grand jury witnesses who said the Respondent "used 'dirty tricks' and offered her and her sister jobs and a trip to Florida 'in appreciation' for their help in the investigation. The jury awarded the Respondent $5000 in compensatory damages and $195.

.. Inc.314 Harte-Hanks Communications. the "reviewing court must 'examine for [itself] the statements in issue and the circumstances under which they were made to see .' " J. This court offers in interesting discussion about the function of a reviewing court when faced with a defamation matter.. Stevens observed "it is clear that the conclusion concerning the newspaper's departure from accepted standards and the evidence of motive were merely supportive of the court's ultimate conclusion that the record 'demonstrated a reckless disregard as to the truth or falsity of Thompson's allegations and thus provided clear and convincing proof of 'actual malice' as found by the jury." Discussion. probable falsity. whether they are of a character which the principles of the First Amendment . J.. • The court concluded "the evidence in the record in this case. The majority "agree[d] with the Court of Appeals that the evidence did in fact support a finding of actual malice. is 'unmistakably' sufficient to support a finding of actual malice. when reviewed in its entirety.' " As such. protect'".' or must have 'entertained serious doubts as to the truth of his publication. Connaughton clear that the publisher must have a " 'high degree of awareness of . v. Stevens concluded the Court of Appeals applied the correct substantive standard. • The court next considered whether the Court of Appeals considered the factual record in full. This expansive review is necessary because as the majority observed "[t]here is little doubt that 'public discussion of the qualifications of a candidate for elective office presents what is probably the strongest possible case for application of the New York Times rule' "..." but reached the conclusion in a different manner.. Accordingly.

If it were. Issue. The Defendant. In Supreme Court's continuing effort to define the proper accommodation between these competing concerns. The Plaintiff appealed. not the only societal value at issue. Gertz (Plaintiff). • The First Amendment of the United States Constitution (Constitution) requires that we protect some falsehoods in order to protect speech that matters. Inc. was retained by the Nelson family to bring a civil suit against Richard Nuccio (Nuccio). No. The decision was affirmed on appeal because the Plaintiff failed to show that the Defendant acted with actual malice as defined by New York Times. The court refused to enter judgment on the verdict on the ground that the New York Times standard protects discussion of any public issue without regard to the stature of the person defamed. The Plaintiff. The Defendant published an article entitled "Frame-Up: Richard Nuccio and the War On Police" that purported to show that Nuccio was innocent. the Supreme Court of the United States (Supreme Court) would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. Gertz v. The Plaintiff filed a libel action and won a jury verdict for $50. but had relied on its author's extensive research. May a newspaper or broadcaster publish defamatory falsehoods about an individual who is neither a public official nor a public figure and claim a constitutional privilege against liability for the injury inflicted by those statements? Held. Facts. Inc.315 Gertz v. published an article that charged that the Plaintiff. Citation. The editor of the article did not do an independent investigation. an attorney. (Defendant). The Defendant sued the Plaintiff for libel. that his prosecution was a communist frame-up and that the Plaintiff was an architect of the frame-up. the Supreme Court have been especially anxious to assure to the freedoms of speech and press that "breathing space" essential to their fruitful exercise. Synopsis of Rule of Law. 323 (1974). a reputable attorney.000. Robert Welsh.S. Inc. Robert Welsh. 418 U. Robert Welsh. however. . The article also falsely charged that the Plaintiff was a communist and had engaged in communist activities. The New York Times rationale does not extend to private individuals. framed a police officer and was a communist. Brief Fact Summary. a policeman who had previously been convicted of second-degree murder for the death of young Nelson. Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury. The need to avoid self-censorship by the news media is. Judgment reversed.

Justice Harry Blackman (J. • In the tort of defamation. a State is free to define for itself the appropriate standard of media liability so long as it does not impose liability without fault. the Supreme Court limits the application of the New York Times standard to public officials and figures only. A private individual need not show that a defendant acted with actual malice. • The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Discussion. In these circumstances. Blackmun) argues that the Supreme Court today refuses to apply New York Times to the private individual.316 Gertz v. Despite the substantial abridgment of the state law right to compensation for wrongful hurt to one's reputation. J. It thereby fixes the outer boundary of the New York Times doctrine. Therefore. Punitive damages may not be recovered by showing malice in the traditional sense of ill will. even though he has done nothing to invite the calumny. Dissent. There is a need for the balancing of interests: the need to avoid self-censorship by the media and the interest in allowing compensation for harm resulting from defamation. A public figure or official has greater access to the media to counteract false statements than private individuals normally enjoy. A private individual is more vulnerable to injury and needs greater protection. . is wholly innocent of fault and is helpless to avoid his injury. public figures are different than private individuals. To J. The press today is vigorous and robust. and says that. Concurrence. knowing falsehood or reckless disregard of the truth will now be required. Inc. The Supreme Court would now shift this risk to the victim. by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention. White it is quite incredible to suggest that threats of libel suits from private citizens are causing the press to refrain from publishing the truth. In this case. Robert Welsh. White) argued that the law of defamation and the right of the ordinary citizen to recover for false publication injurious to his reputation have been almost exclusively the business of state courts and legislatures. beyond that boundary. are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. the New York Times rationale does not extend to private individuals. the law has heretofore put the risk of falsehood on the publisher where the victim is a private citizen and no grounds of special privilege are invoked. White further argued that the Supreme Court has federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States. Justice Byron White (J. as contrasted with the public official and the public figure. Those who. the Supreme Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures.

and $300. Inc. indicating that Respondent had filed a voluntary petition for bankruptcy. v. 749 (1985). it called Petitioner.317 Dun & Bradstreet. Inc. In this case. Inc. regarding the credit rating of Greenmoss Builders.000. indeed. Discussion. explained the error. Respondent was actually in good credit standing. and Respondent brought suit for liable. Inc. The Supreme Court of the United States granted certiorari. Inc. maintaining that the constitutional requirements for a suit for libel did not apply to a non-media defendant. Greenmoss Builders.S. Dun & Bradstreet. Facts. a private subscription service. While the First Amendment affords media defendants great protection. (Respondent). and as such. Inc. based on the harm it incurred as a result of the erroneous report. Synopsis of Rule of Law. Issue. non-media defendants cannot use that same protection when their actions cause damages to private parties. Brief Fact Summary. (Petitioner) sent a report to five subscribers. the Court focused on content. Dun & Bradstreet. preclude it from being sued for libel. the result of the Petitioner's use of a 17-year-old high school student to review the bankruptcy proceedings. Respondent was awarded $50.000. The report was false. and context. in considering whether the Defendant's speech was protected by the First Amendment. The trial court granted a new trial. form. Greenmoss Builders. when it is not a media defendant? Held. when they are reporting on issues of "public concern". Justice Brennan dissented. . when its actions create slander and/or libel against another private party. but one of its employees had.00 in damages. and Defendant brought suit for libel. which reinstated the verdict. 472 U. punitive damage awards should be restrained. concerning public issue. but Respondent appealed to the Supreme Court of Vermont. the Court found that the Defendant. filed bankruptcy. Petitioner sent out a notice of the mistake. Petitioner sent a credit report to five subscribers. and asked for a correction. Citation. noting that although this type of speech is not central to the meaning of the First Amendment. The report was proven false. v.00 in punitive damages. it could not seek protection under the First Amendment. When respondent learned of the error. The First Amendment does not protect the speech of a nonmedia party. Affirmed. • In reaching its conclusion. Dissent. Whether the first amendment rights of the maker of an expression. was not reporting on an issue of public concern when it made its report regarding the Plaintiff. but refused to disclose its subscribers.

The Supreme Court granted certiorari. v. Dissent. Plaintiff brought suit based on slander. Issue. Inc. Brief Fact Summary. Discussion. Hepps Philadelphia Newspapers. The First Amendment affords a newspaper great leniency in what it publishes. According to Justice Stevens. While the Plaintiff is a private figure. thereby showing that it was at fault. (GPI). after it published a series of articles alleging that Plaintiff had links to organized crime. A private party cannot bring suit against a newspaper for slander or libel. a verdict was found for the Defendant. 475 U. "deliberate. Reversed. in order to recover damages based in slander. before recovering damages. without bearing the burden of showing falsity and fault. Synopsis of Rule of Law. holding that it was not unconstitutional to hold that the Defendant must bear the burden of showing the truth of the statements. The Supreme Court of Pennsylvania remanded the case. a corporation engaged in franchising convenience stores. the Defendant could not be held liable for slander. and thus. (Defendant).S. Dhen a plaintiff cannot prove that it published false statements and.318 Philadelphia Newspapers. Defendant published a series of articles. when they are attacked as libel by a private Plaintiff. Inc. Inc. In this case. the Plaintiff could not prove that the Defendant had knowingly printed false statements. 767 (1986). Hepps (Plaintiff) brought suit against Philadelphia Newspapers. Plaintiff was the principal stockholder of General Programming. alleging that Plaintiff had exercised undue influence over the governmental using its ties to organized crime. • The court held that the Plaintiff must prove the truth or. . Hepps Citation. malicious character assassination is not protected by the First Amendment to the United States Constitution. the Defendant is protected by its First Amendment freedom of press rights against a suit for slander. v. and had used their position to exercise influence over the government. the falsity of the statements alleged as slanderous. actually. Inc. Held. Facts. At the jury trial of the matter. This case considers whether a media defendant must bear the burden of proving the truth of statements it publishes. to recover damages." The First Amendment does not require the target of defamation to prove his assailant was at fault. The dissent held that a private-party plaintiff should not have to bear the burden of showing certain statements to be false.

however. Then. which implied Petitioner had lied under oath in a judicial proceeding. (Respondent). Milkovich v. several parents and students sued the OSHAA. Citation.319 Milkovich v. during which several people were injured. • The Court reversed the lower court ruling that the article constituted a constitutionally protected opinion. alleging defamation. the next day. Issue. when it publishes an article about a private figure which. Facts. Lorain Journal Co. Milkovich (Petitioner) brought suit against Lorain Journal Co. when a plaintiff can show that statements published were an attack on reputation. the Ohio High School Athletic Association (OSHAA) placed the team on probation. was designed as a character attack? Held. 1 (1990). Respondent published an article alleging that Petitioner had lied so the probation would be overturned. Whether a newspaper can be held liable for defamation. The court overturned the conviction and. seeking a restraining order of the probation. Lorain Journal Co.S. when it published an article. the important social values underlying the law of defamation recognize a strong interest in preventing and redressing character attacks. Milkovich was the wrestling coach at Maple Heights High School in Ohio. Synopsis of Rule of Law. After the altercation. albeit opinion. the constitution also recognizes that defamation can exist. in the Court of Common Pleas. Petitioner brought suit. The First Amendment gives great leniency to newspapers and their journalists. The First Amendment does not preclude a newspaper from being sued for libel. . and held that while the First Amendment does guarantee uninhibited speech. During the 1974 season. on the grounds that due process had not been afforded to the members of the team. the team was involved in an altercation at a home match. 497 U. Reversed. Discussion. Brief Fact Summary. when an article is published specifically to attack another's character.

Synopsis of Rule of Law. Citation. Facts. 1975). Jacron Sales Co. While a conditional privilege may exist. Held. and directed verdict for Defendant. Brief Fact Summary. Sindorf v. and Plaintiff may be afforded the opportunity to bring suit. Jacron Sales Co. Sindorf (Plaintiff) brought suit against his former employer... Plaintiff brought suit for defamation. App. The question of malice must be for a jury. When considering whether a communication was made with malice. Defendant. the question of whether the communication was made out of malice is still a proper question for a jury. . Reversed. Plaintiff appealed. Plaintiff. Defendant's former employee. This case considers whether a conditional privilege exists in defamation suits where the Plaintiff is a former employee of the Defendant. Defendant's Vice President called Plaintiff's new employer and made derogatory insinuations regarding Plaintiff's honesty.2d 856 (Md. 341 A. The trial court held that the conversation between Plaintiff's current and former employers was privileged. Issue. when two parties are discussing another party they have in common. After Plaintiff sought employment with a competitor. resigned after a dispute as to his sales practice. after he learned that Defendant had made derogatory remarks about him to his new employer. Discussion. • The court reversed the judgment. and there is truth to the discussion. Inc. for defamation. Inc. holding that a privilege may exist where the truth is in question. the question will be presented to a jury for determination.320 Sindorf v.

321 C H A P T E R X V I I I . P r i v a c y .

Rosanne Marie (Brock) Dittmar (the "Plaintiff"). LLC and Joe Dickerson ("Mr. the defendant must have appropriated to his or her own use or benefit the reputation. Mr. and convicted of. during a custody dispute. Additionally. While conducting his investigation into the custody issue. outrageous conduct. Mr. commercially or otherwise. Dittmar noticed something improper in the way the Plaintiff came to possess certain bearer bonds. The article at issue here was entitled "Fraud-DuJour Five Cases. how the Plaintiff came to fraudulently be in possession of the bearer bonds. The Defendants. Dickerson") (the "Defendants"). 100%+ Recovery".' " Issue. Dickerson published a newsletter called "The Dickerson Report". prestige. 34 P. social or commercial standing." The trial court granted the Defendants summary judgment on all claims. and invasion of privacy by appropriation of another's name or likeness.3d 995 (Colo. The trial court specifically recognized Colorado had not explicitly adopted invasion of privacy by appropriation of another's name or likeness. As a result. "even assuming the tort was cognizable under Colorado law. and included the Plaintiff's name and photograph. Dittmar Joe Dickerson & Associates. the Plaintiff was charged with. including "defamation. The Plaintiff sued the Defendants on various tort theories. charging that the private investigator profited off her likeness. LLC v. (3) the plaintiff suffered damages.' " The Court of Appeals agreed with the trial court. and (4) the defendant caused the damages incurred. A private investigator published an article in a newsletter about an alleged fraud perpetrated by someone he was investigating." Facts. (2) the use of the plaintiff's name or likeness was for the defendant's own purposes or benefit. Dickerson discussed among other instances of fraud. Dittmar provided the authorities with what he learned during his investigation. 2001) Brief Fact Summary. Mr. Joe Dickerson & Associates. The elements of the tort of invasion of privacy by appropriation of another's name or likeness are: "(1) the defendant used the plaintiff's name or likeness. "[W]hether the tort of invasion of privacy based on appropriation of another's name or likeness is cognizable under Colorado law"? • "[I]f yes. Mr. Dickerson discussed his investigation of the Plaintiff. Dittmar Citation. LLC v. theft of the bearer bonds. whether an appropriation claim requires evidence that the plaintiff's name has an exploitable value"? • "[W]hether the article constituted constitutionally protected speech"? . were hired to investigate the Plaintiff. In this article. Mr. Synopsis of Rule of Law.322 Joe Dickerson & Associates. and found that "this tort requires the defendant to appropriate certain values associated with the plaintiff's name or likeness: 'In order for liability to exist. Dittmar 'present[ed] no evidence that her name or likeness had any value. The alleged perpetrator of the fraud sued. public interest or other values of the plaintiff's name or likeness. in which he discussed various aspects of financial fraud.

the use of her name and picture cannot be described as a primarily commercial usage of her identity. Yes." Accordingly. commercially or otherwise. in which case the privilege will not apply. "an article that has commercial undertones may still be protected if it concerns a legitimate matter of public concern. or primarily commercial." To determine whether the use of ones likeness was commercial in nature "courts must determine whether the character of the publication is primarily noncommercial.J. However. where the identity appropriated has a commercial value. The court observed. in which case the privilege will apply. "[i]n many situations.]. and reasonably relates to. The court then held "the publication of a plaintiff's name and . that "[i]t is true that the injury suffered from an appropriation of the attributes of one's identity may be 'mental and subjective'-in the nature of humiliation. it is not altogether clear whether a particular use of a person's name or likeness is made for the purpose of communicating news or for the purpose of marketing a product or service. there is a First Amendment privilege that permits the use of a plaintiff's name or likeness when that use is made in the context of." The court concluded "that the defendant's publication was primarily noncommercial because it related to a matter of public concern. embarrassment and outrage." • The court observed they had "found no precedent where a convicted felon has brought a tort claim of wrongful appropriation of her identity based upon the defendant's republication of truthful information about her conviction. the injury may be largely. • The Defendants additionally argued that since the article at issue related to an issue of public concern. "[i]n the context of a discussion of the plaintiff's crime and felony conviction. and (4) the defendant caused the damages incurred. "[T]he tort of invasion of privacy by appropriation of another's name or likeness is cognizable under Colorado law." It was also irrelevant that the article in question did not appear in a traditional newspaper. the court refused to require a Plaintiff to prove that their name or likeness had any value. namely the facts of the plaintiff's crime and felony conviction." The court observed. LLC v." • Mr." The court then defined commercial speech as "speech that proposes a commercial transaction". Dickerson argued that the Plaintiff "presented no evidence that her name and likeness had any value. of an economic or material nature. however. or even wholly. "[i]n the context of invasion of privacy by appropriation of name and likeness. (2) the use of the plaintiff's name or likeness was for the defendant's own purposes or benefit. Further. it recognized that a "profit motive does not transform a publication regarding a legitimate matter of public concern into commercial speech. it was constitutionally protected speech. Reynolds Tobacco Co.323 Joe Dickerson & Associates. which are legitimate matters of public concern. Dittmar Held." Additionally. a publication concerning a matter that is newsworthy or of legitimate public concern." This tort's elements are "(1) the defendant used the plaintiff's name or likeness. quoting [Motschenbacher v R. when only seeking personal damages." The court also recognized that." Pursuant to this test. (3) the plaintiff suffered damages.

Dittmar likeness in connection with a truthful article regarding the plaintiff's felony conviction is privileged. (2) publicity that places another in a false light before the public. William Prosser described invasion of privacy as a complex of four related torts: (1) unreasonable intrusion upon the seclusion of another.324 Joe Dickerson & Associates. "In a seminal law review article." Discussion." . (3) public disclosure of embarrassing private facts about another. LLC v. and (4) appropriation of another's name or likeness.

. Inc. Yes. American Broadcasting Companies. Inc.2d 909 (Cal. an employee may.325 Sanders v. established that the Plaintiff had no reasonable expectation of privacy in his workplace conversation because they could be overheard by others in the office. a violation of Penal Code section 632. under some circumstances. Citation.' the concept of 'seclusion' is relative. Mark Sanders (the "Plaintiff") was also employed by PMG. The court relied upon [Shulman v. were Stacy Lescht ("Ms. a reporter and her employer American Broadcasting Companies. have a . 1999) Brief Fact Summary. The Defendants. 85 Cal. Lescht obtained employment as a "telepsychic" with the Psychic Marketing Group (PMG). American Broadcasting Companies. but the Court of Appeal reversed finding that a defense to another cause of action. Group W Productions. Inc." The court observed that seclusion is not an absolute construct and "[l]ike 'privacy. Inc. Synopsis of Rule of Law. "May a person who lacks a reasonable expectation of complete privacy in a conversation because it could be seen and overheard by coworkers (but not the general public) nevertheless have a claim for invasion of privacy by intrusion based on a television reporter's covert videotaping of that conversation?" Held.] and "adhere[d] to the view suggested in Shulman: privacy." Further. 4th 907. Lescht wore a wire while working in one of PMG's offices and videotaped. and other coworkers. 978 P. for purposes of the intrusion tort. Ms. et al. The mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone. Sanders v.. including the Plaintiff. consequently. "[p]rivacy for purposes of the intrusion tort must be evaluated with respect to the identity of the alleged intruder and the nature of the intrusion. The Plaintiff." • "[D]ecisions on the common law and statutory protection of workplace privacy show that the same analysis applies in the workplace as in other settings. various conversations between herself. There are degrees and nuances to societal recognition of our expectations of privacy: the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law. 20 Cal. Lescht"). Ms. The court held "where the other elements of the intrusion tort are proven." Facts. et al. all-or-nothing characteristic. (the "Defendants"). An undercover reporter obtained a job at a "telespsychic" company. The undercover reporter audio and video taped certain interactions she had with an employee of the "telepsychic company". The Plaintiff brought suit alleging various causes of action including "the tort of invasion of privacy by intrusion. Issue. Rptr. with a hat cam. the cause of action is not defeated as a matter of law simply because the events or conversations upon which the defendant allegedly intruded were not completely private from all other eyes and ears.2d 67. is not a binary." The jury found for the Plaintiff on the invasion of privacy by intrusion action.

considering. "liability under the intrusion tort requires that the invasion be highly offensive to a reasonable person. employees may enjoy a limited. the reasonableness of a person's expectation of visual and aural privacy depends not only on who might have been able to observe the subject interaction. stores or other workplaces. as elsewhere. American Broadcasting Companies. expectation that their conversations and other interactions will not be secretly videotaped by undercover television reporters. reasonable expectation of visual or aural privacy against electronic intrusion by a stranger to the workplace." • The court concluded "that in the workplace. because it could be seen and overheard by coworkers (but not the general public)." Instead. the court says that any analysis of a legitimate expectation of privacy must be done on a case by case basis." Discussion." ." Accordingly. but on the identity of the claimed intruder and the means of intrusion. Inc. may nevertheless have a claim for invasion of privacy by intrusion based on a television reporter's covert videotaping of that conversation. despite the possibility that the conversations and interactions at issue could be witnessed by coworkers or the employer. et al. "a person who lacks a reasonable expectation of complete privacy in a conversation. even though those conversations may not have been completely private from the participants' coworkers.326 Sanders v.. the motive of the alleged intruder." • "In an office or other workplace to which the general public does not have unfettered access. among other factors. It is important to recognize the court refused to hold that "investigative journalists necessarily commit a tort by secretly recording events and conversations in offices. Further. but legitimate.

"[W]hether claims for tortious invasion of privacy by truthful public disclosure of 'private' facts concerning the plaintiffs are cognizable at law in North Carolina"? Held. Maxson"). 323 N. Post Citation. Somebody called Mr. Gottschalk that adoption papers were signed. concerning the abandonment of a baby. Gottschalk found the child and documented the Plaintiffs' involvement in the child's life. and informed the paper's readers about the hotel where Mr. Gottschalk and Mrs. the branch of the invasion of privacy tort referred to as "the public disclosure of public facts. authored by the Defendant. the court only concerned itself with the "private facts branch of the invasion of privacy tort." In other words. talked about how Mr. Gottschalk and Mrs. liability under this tort attached "where the matter publicized is of a kind that (a) would be highly offensive to a reasonable person. 259. Certain true and accurate facts about the adoption of a child were published in two newspaper articles. Susie Hall and her adoptive mother Mary Hall (the "Plaintiffs"). Maxon told Mrs." As to the fourth. Rose Post (the "Defendant"). The Plaintiffs." Four elements must be proven to recover under this cause of action including: "(1) publicity. and (4) absence of legitimate public concern. 1984. Gottschalk at the hotel referenced in the first article. No. The court recognized that all the facts published in the two articles were true and accurate in every respect. Synopsis of Rule of Law. The publication of the stories allegedly caused certain persons emotional distress. 1984 edition of the Salisbury Post. 1984 article discussed the details of their unsuccessful search for the baby. Gottschalk") in 1984. Gottschalk and Mrs. The Defendant authored a story published in the July 18. The Plaintiffs alleged that they fled there home in order to avoid public attention resulting from the articles and that each experienced substantial amounts of emotional and mental distress. The individuals who abandoned the baby. (2) private facts. The alleged abandonment took place in September of 1967. a reporter for the Salisbury Post." Facts." This was an issue of first impression for the court. account must be taken of the customs and conventions of the community. and (b) is not of legitimate concern to the public. A second article. "[C]laims for invasions of privacy by publication of true but 'private' facts are not cognizable at law in this State. Mrs. Gottschalk") and Clarence Maxson ("Mr. and in the last analysis what is proper becomes a matter of the community . Mr.C. dated July 20. According to the Restatement. and they wished to find Mrs.2d 711 Brief Fact Summary. allegedly made arrangements for a babysitter named Mary Hall to keep the baby for a few weeks. Issue. (3) offensiveness. For the purposes of this decision. Gottschalk was married to Lee Gottschalk ("Mr. 372 S. Gottschalk's adopted child. Aledith Gottschalk ("Mrs. the court observed "[i]n determining what is a matter of legitimate public interest. and informed them about the whereabouts of the missing child.327 Hall v.E. brought an action against the Defendant. Gottschalk were staying. Post Hall v. After those few weeks. The July 18.

' " The concurring justice agreed with the Court of Appeals. Gottschalk "returned to Salisbury in search of her daughter. the stories were of a public interest and concern because Mrs. would say that he has no concern. with decent standards. The justice would have concluded the article did not constitute "morbid and sensational prying into private lives for its own sake. (2) intrusion upon the plaintiff's seclusion or solitude or into his private affairs. The concurring justice agreed with the majority. at the very best. secured by the First Amendment." . for the defendant's advantage. which found that the "the resolution of the conflicting rights [freedom of the press. and felt that summary judgment was appropriately entered against the Plaintiffs. (3) public disclosure of private facts about the plaintiff. the court concluded "that any possible benefits which might accrue to plaintiffs are entirely insufficient to justify adoption of the constitutionally suspect private facts invasion of privacy tort which punishes defendants for the typically American act of broadly proclaiming the truth by speech or writing. constitutionally suspect. and an individual's right to be left alone] lies in the "application of a 'newsworthiness' or 'public interest' standard in determining what publications are constitutionally privileged and what publications are actionable. and (4) publicity which places the plaintiff in a false light in the public eye." Concurrence." Second. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled. However." Instead." " In determining whether something was of legitimate public concern. "the constitutionally suspect private facts branch of the invasion of privacy tort will almost never provide a plaintiff with any advantage not duplicated or overlapped by the tort of intentional infliction of emotional distress and possibly by other torts such as trespass or intrusive invasion of privacy.328 Hall v." • The court first observed "decisions of the Supreme Court of the United States. with which a reasonable member of the public. and becomes a morbid and sensational prying into private lives for its own sake. Post mores. the justice did "not concur in the reasoning of the majority which leads it to 'reject the notion of a claim for relief for invasion of privacy by public disclosure of true but 'private' facts. "A review of the current tort law of all American jurisdictions reveals cases identifying at least four types of invasion of four different interests in privacy: (1) appropriation. whom she had abandoned seventeen years earlier. scholarly articles and the Restatement make it clear that the private facts branch of the invasion of privacy tort is. of the plaintiff's name or likeness." Based on these two observations. the concurrence advocated the adoption of the Restatement standard set forth above." Discussion.

S. Citation. The Plain Dealer. for damages sustained by the Plaintiffs. Several months thereafter. Cantrell. . Issue. Cantrell was not home when the reporters appeared. Whether the court of appeals acted appropriately when it set aside a jury verdict on an invasion of privacy claim. published a feature story stressing Plaintiffs' poverty. Reversed. and reversed maintaining that verdict should have been directed. the Plain Dealer returned to write a follow-up on the family. when its publication. under the theory of invasion of privacy. Mrs. claiming they had been depicted in a false light. they may not hide behind this privilege when their stories knowingly represent Plaintiffs in a false light. Facts. Cantrell v. stressing the family's poverty and the impact of the bridge disaster. The Supreme Court of the United States granted certiorari. The article also alluded to Mrs. The First Amendment does not preclude a plaintiff from recovering against a media defendant who uses falsehoods in reporting on a matter of public concern. (Defendant). Cantrell and its impact on his family. Cantrell's presence and attributed characteristics to her expression that did not take place. an article was published. Forest City Publishing Co. The court of appeals found that the district court should not have allowed recovery. After trial. was liable for the actions of its reporters. Brief Fact Summary. 245 (1974). While reporters can claim First Amendment privilege when they report on issues of public concern.329 Cantrell v. the district court denied Plaintiffs' demand for punitive damages. Mrs. The Plain Dealer covered the story. when the Defendant was a media publisher? Held. but allowed some damages for Mrs. Mrs. Cantrell and her children (Plaintiffs) brought suit against Forest City Publishing Co. and took pictures. Forest City Publishing Co. • The Supreme Court held that the paper did publish falsehoods. spoke with the children. In 1967. Mrs. Cantrell and her children brought suit. Cantrell's husband was killed during a collapse of a bridge. Synopsis of Rule of Law. 419 U. They went to Plaintiffs' residence. Later. and as such. focusing on the death of Mr. Discussion.

incestuous encounter with his mother in an outhouse. on the basis that no reasonable person would consider the parody as true. Issue. depicting Jerry Falwell (Respondent) as having his "first time" in an outhouse with his month. with actual malice. the reverend brought suit based on invasion of privacy. Falwell Citation.330 Hustler Magazine v. Public officials and public figures were held unable to recover in emotional distress. If Respondent had been a private individual. he could not prevail in defamation. alleging invasion of privacy. which pointed to the idea of the "first time" someone tasted Campari Liqueur. After Hustler Magazine and Larry Flynt (Petitioners) published an advertisement. his right of privacy would have allowed him to recover for emotional distress. libel and intentional infliction of emotional distress. Facts. Held. when they could not prove that the publication was made knowingly. The November 1983 issue of Hustler Magazine featured a parody of an advertisement for Campari Liqueur that had the name and picture of Respondent. and was entitled "Jerry Falwell talks about his first time. arguably. Respondent brought suit against Petitioners.S. The important rule to understand here is how the court's decision turned on Respondent's status. The district court and the United States Court of Appeals for the Fourth Circuit found for Petitioner on the defamation and invasion of privacy claims." The parody was designed to mimic other Campari ads. Reversed. The Supreme Court of the United States granted certiorari. Falwell Hustler Magazine v. Brief Fact Summary. 485 U. When an advertisement parodying a public figure depicts facts which no reasonable person could take as true. is not considered malicious. that figure cannot prevail under a theory of emotional distress. Synopsis of Rule of Law. A parody. while admittedly in bad taste. nor could he claim emotional distress. Because Respondent was a public figure. The same courts held for Respondent on the issue of intentional infliction of emotional distress. • The Court found that to uphold the judgment of the lower courts would affect all political satire. . 46 (1988). This case considers whether an award of damages for intentional infliction of emotional distress to the victim of a parody is consistent with the First Amendment freedom of the press. libel and intentional infliction of emotional distress. Discussion. The parody depicted Respondent's first time as a drunken.

C i v i l R i g h t s .331 C H A P T E R X I X .

Brief Fact Summary. Held. he brought suit to recover as to the injuries he suffered. . Ashby (Plaintiff) a free burgess. Dissent. because the right to vote is a common law right and thus. After a free burgess of a corporation was precluded from voting. 1702). This question presents among the first issues grounded in civil rights. The majority in the Court of King's Bench actually held that the verdict for the Plaintiff should be reversed. 126 (Court of King's Bench. that party may be found liable.Rep. White Citation.332 Ashby v. Chief Justice Holt held that a plaintiff ought to be allowed to recover. Discussion. an obstruction of that right should give rise to a cause of action. Facts. was precluded from being able to exercise his right to vote. Synopsis of Rule of Law. a cause of action may arise. • The issue of this case is whether one party may recover damages when one of his civil rights is hindered by the action of another. 92 Eng. When the actions of one party hinder the rights of another. Issue. by the actions of another. When the actions of one person serve to hinder the rights of another. White Ashby v. and he brought suit when he sustained injury.

Thereafter. the court also found that Gregory was acting as a state official and was due qualified immunity for his actions. Facts. Plaintiff appealed. Gregory Camp v. Brief Fact Summary. Issue. Plaintiff brought suit. Gregory Citation.3d 1286 (7th Cir. Synopsis of Rule of Law. However. believing Gregory was shielded form liability for his decision on Young's placement. The Seventh Circuit found there was a positive duty to protect Young. contending the child was denied substantive due process. Whether the state and its social worker had a duty to protect their charge when they assumed guardianship of a child? Held. Plaintiff realized she could not provide the supervision that Young needed and petitioned the state to allow DCFS to assume guardianship of the boy. Discussion. his aunt. its grounds were different. had been placed under the guardianship of the Department of Children and Family Services (DCFS). within three months. A state may be held liable for the deprivation of a child's rights. • The Seventh Circuit affirmed the decision of the district court. he was returned to his aunt's care. The important consideration arising from this case is that a state may be held liable for the deprivation of a child's rights. when the DCFS failed to place him in a safe environment. but state officials may not be held liable when they are acting in their capacity. alleging that Young had been denied substantive due process when Gregory ignored the court's order of supervision. Young was killed. requesting that better supervision be provided. Gregory. The district court dismissed the suit. After a child. After Young was assigned a social worker. but state officials may not be held liable when they are acting in their capacity. 1995). Plaintiff assumed guardianship of Young after his mother's medical condition rendered her unable to care for her child. Her requests went unanswered and. Affirmed. which had been breached.333 Camp v. (Plaintiff) brought suit. however. Elnora Camp. Anthony Young (Young). 67 F. was killed. . Plaintiff wrote to Gregory.

Stachura Memphis Community School Dist. but they could not necessarily be for the "deprivation of a constitutional right. v. v.334 Memphis Community School Dist. compensatory damages are available for measurable harms suffered. as well as injuries such as impairment of reputation. without showing that an injury has occurred. the violation of a constitutional right may cause harm sufficient to allow reparation. such as life. Petitioner appealed. • The Supreme Court reversed and remanded for a new trial. The Court found that compensatory damages may include pecuniary losses. The district court and court of appeals found the Petitioner liable and awarded Respondent compensatory and punitive damages. the deprivation of a constitutional right. Concurrence. Justice Marshall concurred. Respondent brought suit alleging deprivation of his civil rights. noting that in some cases. Respondent was a seventh grade teacher in Petitioner's school." without a showing that harm was suffered for that deprivation. Whether damages are appropriate whenever a constitutional right is violated? Held. Respondent was suspended. may not lead to a separate class of damages. Stachura Citation. . Discussion. liberty or property. Synopsis of Rule of Law. When dealing with the violation of constitutional rights. Reversed and Remanded. Brief Fact Summary. alone. and the Supreme Court of the United States granted certiorari to consider whether damages were appropriate when they were awarded for the "deprivation of any constitutional right. After a seventh grade teacher (Respondent) was suspended for showing sexually explicit materials in his life-science course. he brought suit alleging he was deprived of liberty and property without due process. strictly to deal with the issue of compensatory damages.S. 299 (1986). After several parents complained about his teaching methods." Issue. Compensatory damages are available when a civil right. 477 U. Although he was later reinstated. However. has been violated. Facts.

335 CHAPTER XX. Misuse Of Legal Procedure .

• Malice. Brief Fact Summary. Graves Citation. without probable cause. At trial. 1979). "as soon as she could get the money. because she had paid the checks. to the store. and . After the checks were paid. Facts. when that plaintiff has written and acknowledged checks for which there were insufficient funds? Held. v. In this case. and they could not produce them. 582 S. Defendant's prosecution of Plaintiff was terminated. After she and her husband separated. Defendant instituted prosecution on bad checks. a grocery. Sharon Graves (Plaintiff) brought suit against Texas Skaggs. Inc. totaling $34. Defendant's manager was determined to prosecute Plaintiff. When a defendant determines to prosecute another individual. the jury found that Defendant did not have probable cause in prosecuting Plaintiff. v. regardless of the fact that she had made payment on the checks. (Defendant). against Plaintiff. until she was fired. the Texas Court of Civil Appeals looked at the elements for a cause of action for malicious prosecution: • a criminal prosecution must be instituted by the defendant against the plaintiff.2d 863 (Tex. the store manager filed an incident report and had Plaintiff arrested under the state's hot check law. She was well-known to the employees of the store. Issue. App. Synopsis of Rule of Law. Graves Texas Skaggs. based on misuse of legal process. she continued to buy groceries at the store. Plaintiff then filed suit. after they prosecuted her on two checks she had already paid. Civ. Inc. and she wrote two checks. an action for malicious prosecution may be upheld. Thereafter. she made a deal to pay the checks. and awarded her damages.70. Inc.W. • there should be an absence of probable cause for the proceeding. Whether a plaintiff has a viable cause of action based on malicious prosecution. Plaintiff was unaware he had cleaned out her checking account. which were returned insufficient. Defendant appealed. • the proceedings must be terminated in favor of the plaintiff. and that person can prove malice.336 Texas Skaggs. and she immediately made restitution for them. her former employer. In affirming the judgment of the lower court. the checks she wrote were small. Defendant did not have probable cause in prosecuting Plaintiff. Plaintiff worked for Defendant. Affirmed." and she did this in a reasonable time. As soon as she realized the mistake.

Graves • Damages. Plaintiff sustained damage to her reputation as she was arrested and paraded through the store as a thief. v. All of the above-enumerated damages must be taken into consideration when considering whether a cause of action for malicious prosecution will stand. Discussion. in front of friends and former coworkers. Inc. .337 Texas Skaggs.

without being guilty of malicious prosecution. the Supreme Court of Michigan held that an attorney is not an insurer to his client's adversary that his client will win litigation. Issue. and reversed in part by the court of appeals. If an attorney brings a suit. 312 N. pursue litigation. Friedman (Plaintiff) for medical malpractice and lost. in part. Whether an attorney owes a duty to a potential defendant. where she was referred to Plaintiff for urological consultation. 1981). Dozorc Friedman v. on behalf of his client. Then. Defendant. Plaintiff brought suit against Defendant. Discussion.2d 585 (Mich. An attorney has a duty to represent his client zealously. Just because a defendant prevails in a personal injury action. to properly research a claim before bringing suit. . The trial court granted summary judgment for Defendant. While malicious prosecution may be a proper claim to bring for frivolous law suits. • In reaching its conclusion. which was affirmed. Dozorc Citation. a breach of which duty would lead to a cause for misuse of process? Held. after which Mrs. that he does not know the outcome of. an attorney. the outcome of which he unsure. Plaintiff recommended kidney-stone surgery. based on misuse of process. the Plaintiff must still show actual malice. Plaintiff counter-sued for misuse of legal process. and he may.338 Friedman v. Brief Fact Summary. Synopsis of Rule of Law. the judge entered a directed verdict because the blood disease was the cause of death. After Dozorc (Defendant) sued Dr. Facts. he cannot be guilty of malicious prosecution. Serafin died from a rare blood disease. it does not necessarily lend to a claim against plaintiff's council for misuse of process. without malice.W. filed a malpractice action on behalf of the deceased's husband. The judgment of the trial court was reinstated. Leona Serafin entered Outer Drive Hospital. After the posture of the case.

Plaintiff brought suit after Defendant had him arrested when Defendant accelerated payments on a mortgage that he had due to them. Abuse of process in order to extort an outcome from another party is actionable. Synopsis of Rule of Law. When Plaintiff refused. the court held this cause was an action for abusing the process of law. Hill Citation. This case is among the first cases. and Plaintiff brought suit. by applying it to extort property. which considers whether abuse of legal process is actionable in a court of law. with an agreement to repay within a certain time period. 769 (Court of Common Pleas. Discussion. and thus denied nonsuit. Issue. and threatened him with prison if he did not comply or pay the mortgage in full.Rep. The Court of Common Please held that Plaintiff did have a cause of action. Defendant had him arrested. Held. Plaintiff mortgaged his vessel to Defendant. without which he could not work. Additionally. 132 Eng.339 Grainger v. Brief Fact Summary. Defendant sought to compel Plaintiff to give up title to the vessel. Hill Grainger v. . or apply duress is actionable. 1838). Facts. in order to extort property. Abuse of process.

M .340 C H A P T E R X X I .

42 N. which he intended to occupy with his family. Synopsis of Rule of Law. This case considers whether nondisclosure in a contractual situation can also lead to tort damages. . Issue. when it may not have known of the defect. Brief Fact Summary. While a seller is contractually obligated to disclose non-apparent defects. Plaintiff brought suit based on nondisclosure. Whitinsville Savings Bank Swinton v. in tort.2d 808 (Mass. claiming that Defendant breached its duty to Plaintiff when it knowingly failed to disclose the condition of the property. Plaintiff sought damages in tort. Plaintiff brought suit after he bought a house from Defendant. Plaintiff bought a house from Defendant. without a showing of malice. Held. The lower court demurred Plaintiff's declaration. which was later found to be infested by termites. for nondisclosure. Discussion. he may not be held liable. Whitinsville Savings Bank Citation. The demurrer of Plaintiff's declaration that Defendant knowingly failed to disclose the condition of the property was proper.341 Swinton v. based on a duty-breach negligence standard. Affirmed. Facts. • The court found the Defendant was not liable for failure to disclose a non-apparent defect.E. After learning the house was infested by termites. 1942). and Plaintiff appealed. This case fails to extend tort liability for nondisclosure in a contract situation.

their failure to disclose that defect was actionable under fraudulent concealment. When a defendant is aware of a material condition that will affect a plaintiff's buying condition. he may be guilty of fraudulent concealment. Defendant marketed and developed the land in such a manner that a purchaser could not discover the presence of the areas of salt. of Kansas. the warranty was not breached. Griffith v. Prior to development of the subdivision. After Plaintiffs learned that the soil of their properties had a saline condition. because Defendant knew or should have known of the condition of the soil. and Plaintiffs appealed. Because the vendee did not specify that they would landscape. Brief Fact Summary. Co. The implied warranty of fitness can only be breached if the vendor knows of the particular use the vendee plans for the property. which was known by Defendant. Held. (Defendant). Byers Constr. After houses were constructed. the court held that the implied warranty of fitness was not breached. However. attempts to landscape the land failed. Issue. and reversed the summary judgment as to the claim of fraud in concealment. Facts. which contained saltwater disposal areas.342 Griffith v. 510 P. as well as breach of implied warranty of fitness. because the land could still be used for its purpose. in tort. which was to house residential dwellings. based on breach of implied warranty of fitness and fraud in concealment of a material matter. the land was a part of an abandoned oil field. Synopsis of Rule of Law. Defendant developed and advertised a subdivision as a residential area. Co. Citation. and the homeowners brought suit based on the fact that Defendant knew or should have known of the content of the soil and fraudulently concealed that fact. Inc. Despite the saline content of the soil.2d 198 (Kan. Inc. • In reaching its conclusions. because the vendor was aware of a material defect of the land. . The district court entered summary judgment for Defendant. which caused it to be unfit for ordinarily use. This case explores whether concealment of the condition of land. of Kansas. 1973). of Kansas. Inc. it fraudulently concealed that fact. However. The Supreme Court of Kansas affirmed the summary judgment regarding the implied warranty of fitness. Byers Constr. the court found. they brought suit against Byers Construction Co. Discussion. was fraudulent concealment in tort. and he conceals that condition.

they should be held liable for Plaintiff's reliance. 1889). Plaintiff brought suit against Defendant for fraudulent misrepresentations. because the court found that the Defendants may have reasonably believed the prospectus and. Brief Fact Summary. The trial judge dismissed the action. but also that defendants knew they would be unable to follow through with their representations. which highlighted that the company would have the right to use steam or mechanical power. The court found this to be an action of deceit.343 Derry v. as opposed to other companies. Plaintiff received a prospectus regarding the incorporation of Defendant's company.Cas. unable to complete its work. which would not. The board of trade refused to allow steam or mechanical power. Synopsis of Rule of Law. relying on the allegations of the prospectus. Peek Derry v. • The House of Lords reversed the judgment of the court of appeals. Misrepresentation. 337 (House of Lords. In this case. 14 App. which later proves to be wrong? Held. Peek Citation. and believing that the company had the absolute right to use steam or mechanical power. Plaintiff bought shares of the company. . is not sufficient to prove deceit. and reinstated the judgment of the lower court. Plaintiff brought suit after it bought shares in Defendant's company. An action of deceit will only stand in a court when a plaintiff can show not only misrepresentation. Thereafter. because they did not have reasonable grounds for what they wrote in the prospectus. under the belief that Defendant would have the right to use steam power. but Defendants reasonably believed they could glean approval of the board of trade and should not be held liable for their later failure to do so. the dismissal was reversed. Plaintiff relied on the prospectus. On appeal. After receiving the prospectus. which may have been misrepresentation. Whether it is deceit when a company forms a prospectus to solicit investors. Defendant appealed. Reversed. alone. and the company was wound up. Facts. Discussion. under which the establishment of misrepresentation alone is not enough to prove liability. after coming to the conclusion that the directors knew that the use of steam or mechanical power was contingent on the board of trade and it was not unreasonable or deceitful for them to rely on the board. Issue.

which from the terms of the agreement was apparent in this case.E. Plaintiff entered into a deal with Defendant to receive and store its goods until they could be shipped. . 662 (N. Plaintiff brought suit for restitution in the amount they would have received had the goods been properly insured. Affirmed. Brief Fact Summary. According to the terms of their arrangement.R. Peek. Issue.R. Plaintiff was to buy insurance for the goods. (Plaintiff) bought insurance when it was assured by International Products Co. Facts. Peek) held that no cause of action for a mere statement would be maintainable. Co. Erie R.R. when it knew that Plaintiff was acting in reliance of its statement. This case considers whether liability stems from negligent language. Discussion. and says that a cause of action for misrepresentation may be upheld when a defendant can be reasonably assured that a plaintiff is acting in reliance of his words.344 International Products Co. International Products Co. Held. and Defendant appealed. The goods actually arrived later. v. where they were ultimately destroyed. and was told where they were by Defendant. the court in this case found that the denial of such a cause of action undermines notions of fairness. Synopsis of Rule of Law. Erie R. (Defendant) that its goods were stored at a certain location. and were stored at a different location. Co. • While previous law (see Derry v. This case overrules Derry v. and it later learned that the goods had been stored at another location. After Plaintiff inquired about the location of the goods. Plaintiff obtained insurance for that location. once the goods were stored. A cause of action for negligent statements may be upheld when a plaintiff is harmed by relying on a defendant's words.Y. Erie R. v. Citation. where they were destroyed by fire. The court found that the Defendant had a duty to speak with care. The trial court and appellate divisions directed verdict for the Plaintiff. Co. 1927). 155 N.

P. 1991). Whether liability for misrepresentation extends to a publisher of a book? Held. and Plaintiffs appealed. A publisher will not be held liable for misrepresentation when it publishes a book of another's work.P.P. Plaintiffs ate some mushrooms. the United States Court of Appeals for the Ninth Circuit held that a publisher does not have a duty to act as a guarantor for the contents of all books that it publishes. Discussion. G. The district court granted summary judgment. alleging that the book contained erroneous and misleading information. which rendered them critically ill.2d 1033 (9th Cir. Brief Fact Summary. 938 F. Synopsis of Rule of Law. Putnam's Sons (Defendant). Affirmed. Plaintiffs brought suit for misrepresentation. and they both required liver transplants.345 Winter v. . After becoming critically ill from eating mushrooms designated as safe in The Encyclopedia of Mushrooms. Issue. as publishers of the book. • In affirming the judgment of the district court. because holding defendant liable for the actions of an author would create an implicit guarantorship among all publishers of all books. Facts. G. Putnam's Sons Winter v. Plaintiffs bought a copy of The Encyclopedia of Mushrooms to help them collect and eat wild mushrooms. Plaintiffs brought suit based on misrepresentation against Defendant. Summary judgment was proper in this case. published by G. Putnam's Sons Citation. After relying on the descriptions in the books.

Hanberry v.346 Hanberry v. After Plaintiff slipped and sustained several injuries from a "slippery and unsafe" pair of shoes. . App. Citation. 276 Cal. Whether a magazine that gives a consumer guaranty to a product will later be held liable when a product does not live up to that guaranty? Held. Brief Fact Summary. she brought suit against Defendant. Plaintiff bought a pair of shoes. Facts.App. relying on the Good Housekeeping Seal of Approval. who had awarded the shoes the "Good Housekeeping's Consumers' Guaranty Seal. that the shoes were certified good and that the advertising claims for them were truthful. Plaintiff slipped and fell and sustained several physical injuries. She brought suit against Defendant that had awarded the consumer guaranty. Hearst Corp. because a consumer guaranty seal purposefully induces consumers. because it has extended a duty to the public by making said guaranty. The district court dismissed Plaintiff's case and she appealed. The important consideration in this case is the consumer guaranty. • The appellate court reversed the dismissal. 1969).2d 680 (Cal. While a publisher may not be held liable for misrepresentations by an author. Discussion. it will generally be held to the terms of that guaranty. Hearst Corp. Issue. to rely on it in buying a product. such as Plaintiff. an advertiser who gives a consumer guarantee may be held liable when a product does not live up to that guarantee. While a publisher or advertiser of a product cannot usually be held liable for its defects. After purchasing the shoes." Synopsis of Rule of Law. Reversed. if it gives a consumer guaranty which induces members of the public to buy its products.

2d 307 (Conn. a defendant may be held liable. Whether a Defendant is liable for misrepresentation. and Defendant had a duty to insure that their representations were correct. Inc. Discussion. Plaintiff bought a lot according to a plan prepared by Defendant. Inc. Affirmed. based on allegations of false representation in connection with the sale of the land. Inc. a cause of action for those damages may be upheld. Citation. A. which showed a side yard of 20 feet. Held. After Plaintiff received delivery of the deeds.347 Richard v. Facts. 1967). Waldman and Sons. In a contract for sale. are correct. for representations upon which a plaintiff is induced to rely. instead of the required 20 feet. Richard v. When a plaintiff is injured by his reliance on defendant's representations. • The court affirmed the judgment of the lower court. which may induce a plaintiff to make a purchase. Plaintiff brought suit. . (Defendant). when it did not realize of the mistake of fact until after it completed a sale to Plaintiff. Issue. A. Plaintiff obtained a judgment for damages and Defendant appealed. he brought suit when he realized the survey lines were incomplete and that his house was too close to the boundary line of the property. Brief Fact Summary. he discovered that that the house was only 1. After a Plaintiff bought land relying on a survey from Waldman and Sons. in tort. in accordance with the minimum requirements for the lot according to the local zoning regulations. Waldman and Sons. Synopsis of Rule of Law. maintaining that Plaintiffs purchased the land because he relied on Defendant's representations.8 feet from the boundary. 232 A. A defendant seller has an affirmative duty to insure that its representations.

the appellate division reversed a dismissal of Plaintiff's complaint on the grounds that Defendant knew or should have known that Plaintiff was relying on their statements. The facts of both cases are as follows: • In Credit Alliance Corp. (Defendant) for failure to conduct investigations in accordance with proper auditing standards. was aware that their financial statements would be used by outside creditors. Issue. the bank brought suit against Defendant for exaggeration of another company's assets.. Plaintiffs brought suit against Arthur Anderson & Co. A similar question was certified to the court of appeals for decision. Arthur Andersen & Co. • In European Am. Arthur Andersen & Co. Brief Fact Summary. which it presented to its client would eventually be relied upon by Plaintiff. which Plaintiff relied on in lending money to an insolvent company. the court held that there was no privity and that Defendant could not have known that a form report. Citation.348 Credit Alliance Corporation v. it is important to see the distinction. Defendant prepared form reports. the court held that under its facts. 483 N. or a showing that the accounting firm knew or should have known that the party would rely on their statements in extending credit.. which it gave . The Defendant in European Am. v.Y. In Credit Alliance. the Defendant knew it was preparing reports that would be used to obtain credit. Synopsis of Rule of Law. v. Discussion. Arthur Anderson & Co. Facts.2d 110 (N. to a third party who relies to his detriment on a negligently prepared financial statement? Held. • In European Am. Credit Alliance Corporation v. Bank & Trust Co. Strahs & Kaye. In analyzing the holding of these cases. In that case. when Plaintiffs relied on Defendant's financial reports in lending money to another party. absent privity. and they were liable to Plaintiff to the extent of their reliance.E. This is an appeal to the Court of Appeals of New York from two cases which both took on the issue of accountant liability to third parties for disclosures made in financial reporting. Whether an accountant may be held liable. 1985). Accountants will not be held liable to third parties who rely on their financial statements absent privity. The lower courts denied Defendant's Motion to Dismiss and certified a question to the court of appeals. The holdings of the two cases differ: • In Credit Alliance. regarding whether their order was correct.

349 Credit Alliance Corporation v. . It did not reasonably know that those reports would be given to another party. to its clients. Arthur Andersen & Co.

Plaintiff brought suit against Defendant after it relied on Defendant's financial statements in extending cash to a company. Schmidt & Co. The holding in this case is in line with other case law. . Citizens State Bank v. Schmidt & Co. Whether an accountant can be held liable to a creditor when that creditor relies on the accountant's financial reporting in extending credit to a company that is later found to be insolvent? Held. holding that absent a showing that public policy was to the contrary. which later went bankrupt. Inc. Defendant later discovered mistakes. CFA went into receivership and was later liquidated and dissolved.000. Timm. Facts. The Court decided to overrule prior case law. (CFA). Reversed and remanded. it was not unfair to hold an account liable for another party's damages sustained in reliance on the accountant's reports. Timm.2d 361 (Wis. 1983). Discussion. relying on Defendant's statements.W. While an accountant may not be held liable when damages are unforeseen to another party. The trial court granted summary judgment and the court of appeals affirmed. Brief Fact Summary. and certified that it prepared its statements in accordance with generally accepted accounting principals. totaling $400. Issue.00. Plaintiff brought suit against Defendant for amounts still owed on loans they made in reliance of their statements. Citation. CFA obtained loans from Plaintiff. Defendant prepared the financial statements of Clintonville Fire Apparatus. 335 N. in Plaintiff's statements and notified creditors that called all of their loans due. the Supreme Court of Wisconsin considered prior case law which held that an accountant could not be held liable to a party not in privity.350 Citizens State Bank v. he may be held liable when it is foreseeable that another party will rely on his reports. Accountants may be held liable to third parties when it is foreseeable that they will rely on the accountant's reporting. Synopsis of Rule of Law. • In coming to its holding.

in tort. 174 N. Whether fraud in inducement or misrepresentation can be extended to an accountant by a third party who relies on the accountant's reporting to extend credit. This case presents the seminal opinion regarding accountant liability. Brief Fact Summary. Ultramares (Plaintiff) made loans to accountant's (Defendant's) clients after relying on Defendant's financial statements. Plaintiff extended credit to Defendant's client that went bankrupt one month later. for fraudulent misrepresentation. 1931). not in privity. if that third party can prove that the reports were confected by fraudulent means. alternatively. Touche Ultramares Corporation v. permitting recovery by parties such as the Plaintiff would have been to impose a duty upon accountants that would be enforceable by an indeterminate class of potential plaintiffs. An accountant may be liable to a third party who relies on his financial reporting. Plaintiff brought suit based on a third party theory of liability. • On this theory of liability the court of appeals reversed and recommended new trial. The court found that the Defendant could be held liable for fraud. if Plaintiff could prove Defendant did not fulfill its duty of inspection when it certified its client's financial reports. Touche Citation.E. Defendant prepared certified balance sheets for its clients that disbursed them to several companies.351 Ultramares Corporation v. Defendant's client went bankrupt and plaintiff brought suit seeking to extend liability to the accountant for negligence in financial reporting and. Relying on the certification of the financial statements. seeking recovery on a fraud theory. which was struck down by the Court of Appeals of New York. may not sue an accountant for damages sustained by negligent reporting. including the Plaintiff. . Issue. but it may bring suit for damages. Synopsis of Rule of Law. The court of appeals determined whether the defendant was liable. Discussion. 441 (N. Held. if it can prove fraudulent reporting.Y. Reversed. which noted that under such circumstances. Facts. A third party.

(Defendant).00 in damages. holding that the fraudulent misrepresentation. for misrepresentation.352 Williams v. Plaintiff realized the knobs that were marked "air" were for ventilation. regardless of reliance. 1969). Rank & Son Buick. Inc. While. Issue. Plaintiff brought suit against Rank & Son Buick. Several days after he bought the car. Inc. to determine the presence of air condition. Defendant appealed. the Plaintiff could not claim reliance on the misrepresentation. but did not. A plaintiff's reliance will be considered when determining whether he sustained damages from a misrepresentation. Inc. . Discussion. Plaintiff bought a car from Defendant. 170 N. gave the Plaintiff a cause. Facts. Williams v. Dissent. In such a case. when Plaintiff bought a car. especially when a reasonable man would have inspected the vehicle before purchase. Citation.2d 807 (Wis. in itself. Plaintiff failed to mitigate his damages. • The court reversed the judgment of the lower court. Justice Wilkie dissented. Plaintiff brought suit for fraudulent misrepresentation and received a judgment for $150.W. and the salesperson told him the car was air-conditioned. Held. maintaining while the oral misrepresentation was made. not air-conditioning. in comparison to the reliance made by a reasonable man. in misrepresentation cases. the court will also consider the role of the plaintiff's reliance. Reversed. Brief Fact Summary. This case considers the issue of reliance in oral misrepresentation. Synopsis of Rule of Law. by not examining the car himself. a plaintiff who is fraudulently induced may recover damages. purported to have air-conditioning. Rank & Son Buick.

353 Saxby v. Plaintiff learned there were about 120 acres in timber. Held. These statements were opinion. Affirmed. if plaintiff later learns that defendant's estimate was not exact. based on defendant's representations that the farm had more timberland than it actually did. This case considers whether a statement of opinion will hold a defendant liable when a plaintiff relies on it in acquiring land. 1909). considering the facts of the agreement between Plaintiff and Defendant. . Plaintiff contracted to purchase the Winslow farm. of which 20 acres had been burned. Defendant opined as to the acreage of timber and burned land. Citation. and the court found it unfair to hold defendant to the exact value of the land. Plaintiff brought suit against Defendant after he bought a farm. found that no fraudulent misrepresentations were made. under the representation that the far contained at least 150 acres of pine timber. Issue. Brief Fact Summary. 63 S. After acquiring the farm. Statements of opinion are not fraudulent representations in the sense that a plaintiff can recover if an opinion does not meet expectations. 423 (Va. Synopsis of Rule of Law.E. when the future quality of the land could not be determined at the time of the sale. Discussion. When a representation is actually an opinion. Saxby v. which was dismissed. Southern Land Co. of which 60 acres had been burned over. Southern Land Co. a plaintiff cannot claim to rely on it in seeking damages. Facts. • The court. Plaintiff appealed. as well as to soil quality. Plaintiff brought suit for fraudulent representations.

for statements beyond the quality of a product? Held. When dealing with Plaintiff. 853 (2nd Cir. for the claims it made about the quality of the cleaners. Co. While a plaintiff cannot bring an action for misrepresentation based on an opinion. The trial court directed verdict for Plaintiff and Defendant appealed. Whether a plaintiff can recover. Defendant marketed machinery to be used for the manufacture of vacuum cleaners. Those claims were not opinion. Simmons Mfg. as well as representations that the machinery had not been put on the market for sale. . in misrepresentation. Citation. but fact. 248 Fed. v. in determining whether a defendant can be held liable. as well as the fact that the cleaners had never been put on the market or offered for sale. Facts. (Defendant) after it relied on Defendant's representations as to the quality of machinery purchased. Defendant made representations of the quality of the machinery. Discussion. New trial ordered. they brought suit based on misrepresentations. 1918). and could be considered misrepresentations. Brief Fact Summary. v. (Plaintiff) brought suit against Vulcan Metals Co. Simmons Mfg. When considering misrepresentation. Co. but Plaintiff may be able to prevail in its claims against Defendant for its representations that the product had not been put on the market. After the cleaners proved not to be what Plaintiff had bargained for. Co.354 Vulcan Metals Co. Synopsis of Rule of Law. Vulcan Metals Co. in misrepresentation. Simmons Mfg. it is important to distinguish between statements of opinion and fact. the court held that Plaintiff could not prevail against Defendant. • In considering the facts of this case. the line becomes blurred when representations as to the status of the product are also made. Issue.

Gardner Citation. The Plaintiffs sued the Defendants for deceit. by the jury. Are the Defendant's liable for the statements in question? • Did the court err in instructing the jury how to award damages? Held. 334 P. Brief Fact Summary. Mr. The Defendants sold the Plaintiffs a house. Gardner (Defendants).000. . This is not a defense to the Defendant's statements about the construction of the house because they are not. only statements made by the Defendants. The tort of deceit is committed if one makes a representation of law that would lead a reasonable person to a set of factual assumptions that would lead to the legal conclusion. sold the Plaintiffs. and that they were third parties to the transaction and made no representations to the Plaintiffs. As for the statement about the well. • The Defendants appealed. Facts. They told the Defendants that the house was constructed in a workmanlike manner and met all code requirements and that the pump could deliver 950 gallons of water per hour. The Defendants. • The court instructed the jury to find that damages were the difference between the value of the house as represented to the Plaintiffs by the Defendants and the actual value of the house. Synopsis of Rule of Law. In determining the value of the house as represented. making a legal conclusion as making a statement that would lead a reasonable person to believe certain facts that the house was constructed in a workmanlike manner. given that the Defendant's gave an exact figure that was a statement of fact. so much. there is no question. alleging that the jury received the wrong instructions on how to award damages and that they were not liable for the misrepresentations as they were legal conclusions or statements of opinion. Mr. Issue. a piece of property. on both counts. the jury was instructed to use. Gardner Sorenson v. and Mrs. Sorenson (Plaintiffs). not an opinion. • The rule is that misstatements of law do not make the speaker liable for the misrepresentation because people are presumed to know the law. a judgment of $2. • The Plaintiffs sued the Defendants and were awarded.355 Sorenson v. Yes. 2d 471. alleging they misrepresented the value of the property. and Mrs.

. The court ponders the problem of representations of fact and representations of law. Their reasoning allows for persons who were deceived by statements concerning the law to recover if those statements induced the persons to believe certain facts that were incorrect. that all people are presumed to know the law and thus. therefore.356 Sorenson v. this case shall be reversed and remanded. The jury did not get the information it needed to determine if the Plaintiffs had any losses at all. the correct instructions were the difference between the fair market value of the property if it were as it was represented and the price paid. though perhaps unreasonable. • As for the instructions. Discussion. They acknowledged the basic. there can be no action for misrepresentation of the law. assumption. Gardner • The Court did not consider the question of the Defendants being third parties because their counsel did not raid this objection during trial.

Citation. • The statements about the area becoming a major attraction and the profits the Plaintiff could make by subleasing the summer house were mere conjecture and not a basis for an action for deceit. • The Defendant stated that during the next summer. knowing that they are false. The Plaintiff. Electric Investment Co. St. However. Paul. Discussion. then they can be held liable for deceit. No electric rail road was built and the Plaintiff sued. and the Defendant. an electric railroad would be built to the area near the summer house. They stated that this would make the area a major attraction for the area and the Plaintiffs would turn a profit on renting the summer house. (Defendant). False representations. 141 N.W. in order to induce someone to take certain actions. known to be false. The Plaintiff sued the Defendant for fraud and deceit based on a statement that the Defendant made during negotiations for a contract to lease a summer house. The Plaintiff sued the Defendant. Brief Fact Summary. if the statements were know by the maker to be false and were said for the purpose of making the Plaintiff enter in to a contract. McElrath v. Yes. 380. that certain events will occur. for a term of years. Can the statements made by the Defendant. alleging. • The Defendant contends that the statements were statements of future intent. Facts. those statements can be the basis for an action for deceit. a summer house the Defendant owned. Rochester & Debuque Electric Traction Company would build an electric rail road to the area where the summer house was located. Issue. • No railroad was built. If a person makes a statements of future plans. McElrath (Plaintiff). concerning the construction of the railroad be the basis for a case of deceit? Held. . and thus. they knew no railroad would be built and made the statement to induce the Plaintiff to lease the summer house. may be the basis for a case of deceit. the Minneapolis.357 McElrath v. Electric Investment Co. The Defendant stated that over the next year. if they were designed to induce some action in the hearer. not the proper basis for a case of deceit. made a contract for the Plaintiff to lease. Electrical Investment Co. Synopsis of Rule of Law.

In this case. one of the Plaintiff's complaints is that the Defendant said he . • In the negotiations for the sale. the Plaintiff alleged that the Defendant said the value of the land was much higher than it was. Synopsis of Rule of Law. The Plaintiff and the Defendant made a contract to buy land.2d. Failure to follow the Statute of Frauds (SOF) is not a defense in a case alleging deceit. • The trial court ruled in favor of the Plaintiff.358 Burgdorfer v. did not do so. the Plaintiff told the Defendant that the Plaintiff had little experience and knowledge in real estate and that he trusted the Defendant to tell him what he needed to know. • The Plaintiff further.Thielemann Citation. • At trial.1122. in fact. The Defendant also appealed the court's not granting the Defendant's motions for dismissal and directed verdict. The Plaintiff alleged that the Defendant misrepresented the value of the land and agreed to pay off a mortgage on the land when the Defendant had no such intent. Issue. the Defendant denied all the allegations of the Plaintiff. including the promise to pay off the mortgage. No. • An action for deceit is proved by showing the defendant made a statement in order to induce action in the plaintiff that defendant knew to be false. alleged that the Defendant told the Plaintiff he would pay off the $500 mortgage on the land. Was it reversible error to allow the Plaintiff to testify about an agreement that fell within the SOF? • Did the trial court err in not granting the Defendant's motions for dismissal and direct verdict? Held. Facts. 55 P. The Defendant appealed alleging the court erred in allowing the Plaintiff to testify about the promise to pay off the mortgage because it could not be accomplished in a year and fell under the SOF. but the Defendant had no intent of doing so and that he. • During negotiations. The Defendant said another party offered to buy the property for a certain amount of money when no such offer had been made. Brief Fact Summary. on both counts. The Plaintiff and the Defendant made a contract for the Plaintiff to buy and the Defendant to sell land.Thielemann Burgdorfer v.

We find that there was sufficient evidence for the jury's findings. The purpose of the SOF is to protect against fraud and perjury in cases that stemmed directly or indirectly from the oral promise. This purpose would be defeated if the claimant could claim deceit and not have to follow the SOF. Rather we determine whether or not there is enough evidence to support a jury's finding. The cases the Defendant cites in support of his appeal do not deal with the tort of deceit. . but rather conflict found in contract. • The Defendant supports his appeals having to do with the motions for directed verdict by citing cases with similar facts. tried in equity. Dissent. The SOF s is not a defense to a charge of deceit. That is for the jury. The record indicates that the Defendant intended to pay off the mortgage right away. a court of law do not decide questions of fact. where the appeals court heard the cases de novo and declined to find for the Plaintiff.Thielemann would pay off the mortgage when the Defendant had not intention of doing so. Discussion.359 Burgdorfer v. case. it did not take more than one year to accomplish and the statute of frauds does not apply. at all. A finding of deceit. The SOF does not apply here. We. • It is error to say that the SOF does not apply to cases alleging deceit. while possible to derive from a set of facts that would lead to a breach of contract. Therefore. is not the same as a breach of contract case and the same rules do not apply.

The Plaintiff sued the Defendant for the costs the Plaintiff would incur to fix the car. Rockville Motor Co. that the car had been in an accident. Issue. Hinkle (Plaintiff) a car.2d 42.360 Hinkle v. as represented by the Defendant. The Defendant agreed to refund the Plaintiff the amount of his first payment in exchange for him signing a release from further claims except for breach of warranty. • A review of Maryland case law shows a variety of ways a plaintiff in a case of deceit may establish what his damages are: "(1) If the defrauded party is content with the recovery of only the amount that he actually lost.. it had about 2000 miles on it and had been in an accident. sold the Plaintiff. claiming it was "new". recovery may be had for loss of the bargain because a fraud accompanied by a broken promise should cost the wrongdoer as much as the latter alone.. (3) where the circumstances disclosed by the proof are so vague as to cast virtually no light upon the value of the property had it conformed to the . where the body was severed. • The Defendant moved for and received a directed verdict from the trial court on the basis that the Plaintiff has not given any evidence as to the value of the car. there were 2000 miles on the speedometer and the car had been in an accident. Was the trial court correct in granting the directed verdict in favor of the Defendant? Held. Rockville Motor Co. Inc Citation. (2)if the fraudulent representation also amounted to a warranty. It is enough that plaintiff show there was deceit and that plaintiff incurred damages as a result of the deceit.. Synopsis of Rule of Law. The Defendant told the Plaintiff that the car was new. No. Inc Hinkle v. his damages will be measured under that rule. Rockville Motor Co. He sued the Defendant and had an expert witness testify as to the amount of money the repairs would cost. In fact. 278 A. • The Plaintiff found out. Inc. The Plaintiff bought a car from the Defendant. The Defendant. In a case of fraud or deceit. In fact. He returned to the Defendant's place of business. plaintiff need not show the actual value of the misrepresented item at the time of purchase to make a case. • The Plaintiff noticed the mileage on the speedometer as he was driving the car home. Facts. a few months later. Brief Fact Summary. (Defendant).

Inc representations. the Plaintiff made a prima fascia case for deceit and showed that he sustained damages in having to repair his car... Discussion."" • In this case. . and (4) where the damages under the benefit-of-the-bargain rule are proved with sufficient certainty. that rule will be employed.361 Hinkle v. Rockville Motor Co. This case shows that it is only necessary to show that the Defendant committed deceit and that the Plaintiff suffered damages because of it in order to recover. the court will award damages equal only to the loss sustained.

362 CHAPTER XXII. Interference With Advantageous Relationships .

The appealed because Plaintiff failed to show any special damages for its injuries. and did in fact. cause him damage. The trial court awarded Plaintiff monetary damages for Defendant's false statement purposely made about the Plaintiff. which was intended to.363 Ratcliffe v. Whether special damages need to be proven at trial to receive compensation for false and malicious publication of Plaintiff's business affairs? Held. No. The court seems to reserve the requirement of proving special damages to more complex defamation cases. an engineer and boiler maker business. The opinion. Discussion. Plaintiffs are only required to show general damages. Plaintiffs are not required to prove special damages in order to receive compensation for false and malicious publication of its business affairs. (Justice Bowen). Ratcliffe and Sons (Plaintiff). Facts. however. Defendant's appeal is dismissed. 2 Q. Evans Citation. . False and malicious information is published in a county newspaper about a boiler maker business. The trial court declared that the only proof at trial of damage consisted of general loss of business without specific proof of the loss of any particular customers or orders. Synopsis of Rule of Law. Evans Ratcliffe v. argue that a publisher of a county newspaper (Defendant) falsely and maliciously published certain words indicating the Ratcliffe and Sons was no longer in business.B. Brief Fact Summary. Issue. fails to outline which cases would require a showing of special damages. General damages need to be proven in order to receive compensation for false and malicious statements. 524 (1892).

1273. claiming that the Defendants had committed trespass on the Plaintiff's land and seeking ejectment and damages. brought suit against the Defendants. Hardy (Plaintiff). Horning. Phyllis Martin (the Martins). Joseph P. The Martins have rightful title to the land in question. Brief Fact Summary. 373 A. • Who has title to the land in question? • Are the Hornings entitled to a judgment against the Martins? • Do the Hornings have a case against the Plaintiff for malicious interference with their contract with the Martins? Held. the Plaintiff failed to prove his case. Synopsis of Rule of Law. The Plaintiff's council sent a letters to the Hornings and the Martins. A person wins a case such as this on the strength of his title. The court found that the Plaintiff did not have a claim to title through adverse possession because they had not used the land in a way that would give them title through adverse possession. Martin. from whom. In order for there to be a case of slander of title. they had purchased the land and a counter claim against the Plaintiff for malicious interference with the contracts between them and the Martins. Hardy Horning v. Issue.2d. • At trial.364 Horning v. Albert C. the Plaintiff claimed ownership of the land. the plaintiff must prove that the defendant made statements he knew to be false for any reason or made statements he knew might be false for the purpose of harming the plaintiff. the Hornings are not entitled to a judgment in their favor on the cross claim. • Because title belongs to the Martins. Hardy Citation. While the trial court found problems and unanswered questions with the chain of title on the land in question. They made a contract to sell it to the Hornings. warning them of the Plaintiffs claim on the land and threatening suit. The Martins claimed ownership to a tract of land. Facts. The Hornings filed a cross claim against the Martins. The Plaintiff. During the contract negotiations. Negotiations soon broke down. the Plaintiffs claimed title through a title deed and through adverse possession. . Jr. not on the weakness of the opponent's title. William B. • The Hornings filed a counter claim against the Plaintiff for slander of title with their contract with the Martins and a cross claim against the Martins for breach of warranty. and Lawrence E Horning (the Hornings).

reasonably believe that he had title to the land in question. They did not act. (Notice that there is no mention of a motion to dismiss.365 Horning v. nor did they act for the purpose of harming the Martins or the Hornings. The Horning's claim for slander of title did not succeed because the Plaintiff did. Hardy • The Hornings do not have a case of slander of title against the Plaintiffs. The Plaintiff had the privilege of informing the Hornings and the Martins that they might have title and in pursuing this case to find out one way or another. Discussion. . knowing that they did not have title.) The Plaintiff was privileged to bring the suit to protect the claim he believed he had on the property. The court determined that the Plaintiff had enough evidence pointing to that conclusion to bring the suit.

These are specific claims that are untrue and are actionable. unless the Plaintiff can amend the claim to include specific clients he lost because of the Defendant's slander. The Plaintiff. Yes. • The Plaintiff alleges that the Defendant circulated written material among the Plaintiff's current and potential customers. Supp. Should the Defendant's motion to dismiss the Plaintiff's claim for failure to state a case be upheld? Held. within thirty days. Inc. Inc. This statement was untrue. the Defendant made specific claims about the government testing both products. Inc. the Defendant's agent said. 286. v. Issue. . The trial court dismissed the Plaintiff's case because the Plaintiff failed to show damages. Saying one's own product is superior to a competitor is mere opinion. For a party to sustain an action for trade libel. • Normally.366 Testing Systems. The Plaintiff and the Defendant are both in the business of making products to be used in non-destructive testing. however. The Defendant published statements saying the United States Government had tested the Plaintiff's product and the Defendant's product and found the Defendant's product to be 40% more effective. Magnaflux Corp. Magnaflux Corp Citation. Also. • In a case where the Defendant's actions are "libelous per se" the Plaintiff need not specify damages. they must show that the defendant made statements that are false and that these statements led to a loss of business. Synopsis of Rule of Law." • The Plaintiff sued the Defendant for trade libel. the Plaintiff must specify what damages the Plaintiff has suffered by stating the loss of particular customers name or showing a loss of profits after the statements that can be traced back to the statements. (Plaintiff) and the Defendant. Brief Fact Summary. puffery and comparison between one's own product and another's product is not actionable. • This case does not reach the level of "libelous per se". Magnaflux Corp Testing Systems. In this case. Facts. (Defendant). 251 F. Testing Systems. in a loud voice at a manufacturer's convention "[Plaintiff's] stuff is no good and the government is throwing it out. are both engaged in the same trade. v. that the United States Government had tested both the Plaintiff's and the Defendant's product and found the Defendant's product to be 40% more effective. finding the Plaintiff's to be inferior and deciding to use the Defendant's product instead. Therefore.

. exactly that is.) one of the elements to sustain a case of trade liable is a showing of damages. v. Here. Magnaflux Corp Discussion.367 Testing Systems. Inc. the court makes it clear that absent a showing of libel per se (The court fails to say what.

Whether the Plaintiff has a cause of action against a person who maliciously interferes with a business contract which caused Plaintiff to sustain damages as a result of the broken contract. manager of the Queens Theatre for performing operas. Held. Defendant intentionally and maliciously interferes with a business contract causing one party to refuse to perform. . Facts. Yes. Plaintiff has a cause of action against a person who maliciously interferes with a business contract and causes Plaintiff to sustain damages as a result of the broken contract. Intentional and malicious interference with a business relationship is a violation of a right. Judgment for Plaintiff. Defendant maliciously enticed and procured the female performer not to perform for Plaintiff. Plaintiff. Gye Lumley v.368 Lumley v. Discussion. There are many cases that would support a cause of action under such a scenario. Gye Citation. The Defendant violated Plaintiff's rights by intentionally and maliciously created a situation which caused the female performer to break her contract with Plaintiff. 118 Eng. The performer agreed to perform at no other theatre during the period of the contract. The court makes one who breaks a contract equally liable as one who intentionally and maliciously cause the interference with a contract. entered into a contract with a female performer to perform within the theatre at a designated time. 2 El. Issue. Rep. & Bl. 216. (Justice Erle). Brief Fact Summary. 749 (1853). which provides a cause of action for a plaintiff. Synopsis of Rule of Law.

201 N. For several years. worked in the Defendant. the Plaintiff worked in and around the stockyards. is enough to survive a motion to dismiss. • The Plaintiff sued the Defendant. Citation. overcome the Defendant's motion for dismissal of the Plaintiff's claim of libel. The Plaintiff. St. The Defendant barred him from working there with any employer who would hire him. Facts. managed by the Defendant. The trial court dismissed his case. maintaining the Defendant wrongfully barred him from the Defendant's place of business. St. but the Defendant can show them at trial. Issue. 326. place of business for several years. Bacon (Plaintiff). sued.W. The Defendant may have defenses for his actions. Paul Union Stockyards Co. One cannot get more concise than in this case. • The Plaintiff showed that the Defendant performed certain actions and those actions led to the Plaintiff's damages-his loss of employment. Brief Fact Summary. St. The court said that a showing by a plaintiff that the defendant acted a certain way and because of a defendant's actions a plaintiff suffered damages. Synopsis of Rule of Law.369 Bacon v. Paul Union Stockyards Co. Discussion.'s (Defendant). Did the trial court err in dismissing the Plaintiff's claim? Held. The Plaintiff. Paul Union Stockyards Co. The Plaintiff's showing of the Defendant's actions and the damages suffered by the Plaintiff because of them. The Defendant excluded the Plaintiff from the stockyards and did not allow him to work there for any company. Bacon v. Yes. .

S. The Plaintiff lost much of its business because the Plaintiff was on the list. Della Penna (Plaintiff).2d 740. the loss of the franchise. U.S. . one must prove that the acts that lead to the disruption were wrong . The Plaintiff is a distributor of automobiles. This was a departure from the usual instructions that required ". Many acts that might interfere with economic relations are merely participation in a competitive economic system. The Plaintiff. is a distributor of automobiles. 902 P.A.370 Della Penna v.. Inc.A. • The Plaintiff's name was on the list of offenders. The trial court gave the jury an instruction that. Toyota Motor Sales. Citation. Synopsis of Rule of Law. The jury ruled in favor of the Defendant. In order to recover for a disruption of economic relationship. U. (Defendant). up to and including. there has been confusion over the tort of "interference with economic relations". One must show that the interference was one that is outside what is considered normal and proper business dealings. U. • The Plaintiff sued the Defendant. Inc.the defendant [to] intentionally engage[ ] in acts designed to interfere with or disrupt the relationship" Issue. Brief Fact Summary. for the jury to rule in favor of the Plaintiff. . Showing that there was an interference with an economic relationship is not enough to make a case for the tort of "interference with economic relations". threatening punishment if they did. Della Penna v. they would face sanctions from the Defendant. The Defendant. Facts.beyond what one . Was the trial court's instruction to the jury in error? Held. Toyota Motor Sales. The court defined "wrongful" as "outside the act of legitimate business transactions"... The Defendant said that if the franchise owners did business with the parties on the list. made a policy disallowing the sale and distribution of the Lexis line of cars outside the United States. • The Defendant compiled a list of parties who broke this policy and distributed it to all the franchise owners.A. Toyota Motor Sales. The Defendant made a policy whereby no United States Toyoda dealer could sell Lexis cars to parties outside the United States. The Defendant published a list of "offenders". they must find that the Defendant's actions were "wrongful". • Throughout history. parties supposedly guilty of this practice and told its franchise owners not to do business with them.S. Inc. No.

Discussion. .A.S. The judge agreed with the court's decision. U. Concurrence. would normally do to increase one's own business. He also found them to be too vague and not helpful in defining what actions constitute behavior in a competitive economy and what actions constitute tortuous interference.. Toyota Motor Sales. but not with their conclusion that the trial court's instructions were correct.371 Della Penna v. This case brings out two principles having to do with the tort of interference with an economic relationship: Malicious motives are not enough to prove the tort and neither is the mere existence of the disruption. Mere evidence that the disruption happened is not enough to make a case for the tort of interference with economic relations. Inc.

The Court of Appeals reversed.000 line of credit at a bank. the Code of Professional Responsibility forbids lawyers from soliciting business from . Barish. preventing the Defendants from contacting the clients and soliciting them to hire the Defendants' new firm. The Defendants told the clients they were leaving the firm and invited them to break their contracts with the Plaintiff and have the Defendants be their attorneys instead. Facts. The Defendants were salaried associates of the Plaintiff. Daniels. The Plaintiff appealed to the Supreme Court of Pennsylvania.372 Adler. The Defendants also took out a $150. that they are available to provide legal services. The trial court granted the injunction. The Defendants may advertise to the public at large. on the second. The mailer included a form to fill out that would break their contract with the Plaintiff and a retention agreement for Defendants' new firm. Levin and Creskoff (Plaintiff) is a law firm. The injured party may find relief in tort. Soliciting a law firm's clients to break their contracts with the firm and hire the solicitor instead is commercial speech not protected by the First Amendment of the United States Constitution (Constitution).2d 1175. Epstein and others (Defendants) are former salaried associates. The Defendants. which would include Plaintiff's clients. Synopsis of Rule of Law. The First Amendment of the Constitution protects a lawyer's right to advertise truthfully to the general public. The Plaintiffs brought an action for injunctive relief to keep the Defendants from soliciting the Plaintiff's clients to have the Defendants handle their current legal projects.000. The Defendants also sent a mass mailer out to all the Plaintiff's current clients that the Defendants had worked for. While the First Amendment of the Constitution does protect commercial speech. Brief Fact Summary. Adler. Daniels. Barish. The Plaintiff is a law firm. 393 Ad. The Defendants met personally with clients whose cases they worked on while in the Plaintiff's employ. The Plaintiff sued for an injunction. Barish. Levin and Creskoff v. they listed the value of the work they were doing for the clients as attorneys in Plaintiff's employ at $500. The Defendants decided to leave the Plaintiff's employ and start their own firm. Epstein Adler. No. As security. on the first count. Epstein Citation. The Plaintiff. Levin and Creskoff v. Issue. As it stands. • The Plaintiff's activities are not protected by the First Amendment of the Constitution. Daniels. that protection does not extend to this kind of targeted campaign directed at the Plaintiff's clients who had active legal matters pending. May the Plaintiff find relief in tort? • Are the Defendants activities commercial speech protected by the First Amendment of the Constitution? Held. Yes.

In turn. Barish. Daniels. Gye. Furthermore. • Since the Court determined that the Defendant's activities are not protected by the First Amendment of the Constitution. it gave the clients the option to have the Defendants represent them. unprivileged interference with contractual relations. thus. since Lumley v. hindering their ability to make an intelligent. The common law has recognized. as opposed to exploring the relationship between the tort of intentional interference with contractual relations and excepted business practice in a competitive market economy. intelligent decision that the First Amendment of the Constitution is trying to protect. Discussion. The Plaintiff trusted the Defendants to work as its agent to serve these clients.373 Adler. the Court turned to whether the Plaintiff is entitled to relief. their solicitation gave the clients the chance to make an informed. It is clear that the Defendants sought to interfere with the contractual relationship between the Plaintiff and its clients. the Defendants betrayed the Plaintiff's trust by trying to take the client's business away from the Plaintiff • Dissent. Levin and Creskoff v. . informed decision. the court found that the Defendants action offended the "rules of the game". explores the relationship between the tort and the First Amendment constitutional protection of commercial speech. could put the clients on the spot and pressure them to choose the Defendants over the Plaintiff. Epstein non-lawyers who have not sought out legal services and other kinds of commercial speech of a sensitive nature may be regulated without offending the First Amendment of the Constitution. The court's decision. Rather. Rather. In light of what society continues proper. the tort of intentional. The Defendants' activities did not put undue pressure on the clients to choose their services over the Plaintiff. the in person solicitations that the Defendants engaged in.

A representative from the Actors' Association.374 Brimelow v. Synopsis of Rule of Law. Whether there is a legal justification for an intentional interference with a contractual agreement? Held. Brief Fact Summary. Discussion. (Justice Russell). Casson Brimelow v." . persuaded owners of theatres to cancel contracts held with the manager of the chorus group until higher wagers were paid to the chorus group members. Issue. even though there is no bright-line rule for such cases." The union was forced to take extreme measures to end the practice of underpayment of the chorus group members. The action to enjoin the union from interfering with the contract is dismissed with costs. The court is doubtful that the manager of the chorus group would receive any "sympathy or support [from] decent men and women. A union representative intentionally induced a breach of contract entered into between a chorus group manger and various theatres. a performance union. Facts. "[p]rima facie interference with a man's contractual rights and with his right to carry on his business as he wills is actionable. seems to go with a moral or gut feel as to how to decide this case. depending on the circumstance. This case is quite interesting because the Chancery Division makes a ruling not by using any concrete rule set out by law or in other cases. Casson Citation. Intentional interference with a contractual agreement may. be legally justified. a fortiori the inducing of other not to contract with a person may be justified. The manager of the chorus group had a duty fix the problem of underpayment of the members. the circumstances in this case allow for legal justification for interference with a contractual agreement. A manager of a chorus group underpaid members of the chorus group for their various performances. but it is clear on the authorities that interference with contractual rights may be justified. There may be a legal justification for an intentional interference with a contractual agreement. These extreme measures included inducing the proprietors of theaters to either break existing contracts or to refuse to enter into contracts. the court. Therefore. Yes. A bill of equity was brought on behalf of the manager and other owners of the group against the representative of the union to enjoin them from inducing the breaches of contract. 302 (1923). 1 Ch. but.

A party who. equally. the Plaintiff's brother sister-in-law. A person may sue for the loss of expected gain as well as the loss for actual gain caused by wrongful interference by a third party. The Plaintiff sued the Defendants. Harmon Citation. . Synopsis of Rule of Law.375 Harmon v. the alleged interference has cost the Plaintiff the expectation of the inheritance completely. for using fraud and undue influence. to induce their mother to transfer property to the Defendants. Harmon and Virginia S. Yes. The mother in question was eighty seven years old and in ill health. This effectively disinherited the Plaintiff. Facts. The mother had said. the Plaintiff's mother may will her property to whomever she wants. sued the Defendants. effectively disinheriting the Plaintiff. May an expected legatee find relief in tort for wrongful interference with his intended legacy? Held. The Plaintiff. Plaintiff's brother and sister in law. Brief Fact Summary. due to alleged wrongful interference from another. A plaintiff may sue in tort for interference causing the loss of an expected interest. that without the alleged undue influence. on other occasions. before his mother has died so that the events that led to this suit will still be fresh in the witnesses' minds and the court could hear from the mother. Richard Harmon (Plaintiff). Issue. While it is true. The Plaintiff may sue. may seek relief in tort for the loss of the expectation of gain. The Plaintiff sued the Defendant. 404 A. Harmon (Defendants). Harold C. that she wanted the Plaintiff and the Defendants to share the property. Harmon Harmon v.2d 1020. for allegedly inducing the Plaintiff's mother by fraud and undue influence. now. The Plaintiff's case was dismissed. Discussion. to transfer property to the Defendants.

Gage Citation. he must do all that he reasonably can to place the Defendant in status quo. 99 Minn. or bring an action in equity. fraud is a wrong accomplished by deception but duress is a species of fraud in which compulsion in some form takes the place of deception in accomplishing the injury. The remedy for deceitful practices is the same for actions of duress. Plaintiff seeks recovery for damages resulting from duress and identifies the recovery as that found under remedies for deceitful practices. Issue. or he may sue in equity for a rescission of the contract by the court and recover what he parted with upon such conditions as the court may deem equitable. 884 (1906). A party injured by duress is entitled to same remedies as one who has been injured by deception. The court views the word "deceit" as a synonymous with the word "duress.376 Neibuhr v. and then bring an action at law for the property he lost. with directions to the trial court to enter a judgment in favor of the Plaintiff upon the verdict. Synopsis of Rule of Law. If he seeks equitable relief. The damages caused by the wrongdoer in either case is the same. who has been injured by duress. 149. Both parties appealed. As commonly understood. Gage Neibuhr v. The action granting a new trial is reversed. This action was brought to recover damages. Discussion. or he may rescind the contract by his own act. which the Plaintiff claims he suffered when he was forced to transfer certain shares of stock in a corporation to the Defendant under duress. Brief Fact Summary. is entitled to the same remedies as one who has been injured by deception? Held. The trial court ruled in favor of the Plaintiff and denied the Defendant's Motion for Judgment Notwithstanding the Verdict. but it is also accomplished by many other practices." . and the sole remedy of the injured party was to either rescind and to restore the benefits. The Defendant contends that if the contract resulted from duress it was voidable. Facts. but granted a new trial. One may keep what he has received under the contract and bring an action to recover the damages which he has sustained by reason of the fraud. (Justice Elliott). 108 N. If he elects to rescind by his own act and sue at law for what he parted with by reason of the fraud." "Fraud is ordinarily accomplished by deceit. and sue at law for what he parted with by reason of the fraud. The remedies available to one who has been induced to part with his property or execute a contract by ordinary fraud are well understood. Yes. he must proceed promptly and comply with all conditions which equity imposes. There can be no distinction made between duress and deception.W. Whether a party.

36 Cal. The judgment of the court of appeals is affirmed. fraud. v. v. which allowed. The jury awarded the Plaintiff compensatory and punitive damages. v. then tort recovery should not be considered an added remedy under breach of contract cases. Even though the court decides not to include tort remedies with breach of contract remedies.377 Freeman & Mills. then potentially every contract breach could also include a tort remedy. A jury verdict was granted in favor of Plaintiff in its breach of contract action against Belcher Oil Company (Defendant) for failing to pay accounting fees to Plaintiff as part of a service agreement between the two parties. it does reserve tort remedies in implied covenant in insurance cases and civil remedies created by legislation.2d 669. 900 P. in breach of contract case.. Belcher Oil Company Freeman & Mills. The punitive damages were awarded as a remedy under tort law since Defendant denied the existence of the contract and acted with oppression. Belcher Oil Company Citation. or malice. . Freeman & Mills (Plaintiff) is awarded a tort remedy under its breach of contract claim. Standard Oil Co. v. Synopsis of Rule of Law. The holding in Seaman's Direct Buying Service. is overruled. Issue. and therefore. A party to a contract may not recover in tort for another party's bad faith denial of the contract's existence. Inc. If there is no independent duty arising from principles of tort law. Brief Fact Summary. Seaman's Direct Buying Service has left many courts confused as to the scope and application of its holding. reversed and remanded the case on the issue of the Plaintiff's breach of contract claim. Whether a party to a contract may recover in tort for another party's bad faith denial of the contract's existence? Held. Facts. Inc. Discussion. 3d 752 (1984). The court reexamined the ruling in Seaman's Direct Buying Service. Tort and breach of contract remedies should not be awarded under the same claim unless the claim contains independent issues that support a claim for each type of remedy. (Justice Lucas). Inc. No. which would justify a tort theory. The court of appeals did not find a special relationship between the parties. Standard Oil Co. Inc. If bad faith denials of liability within the scope of Seaman were included in breach of contract cases. a tort cause of action for bad faith denial of contract.

and other inducements. The fact that the spouse has an action for alienation of affections. The judgment of the lower court is affirmed. (Justice Romang). Brief Fact Summary." The Appellant sought to recover actual and punitive damages for alienation of the father's affections. Issue. Common law did not recognize a child's right to sue his or her father in this situation. or criminal conversations does not require that a cause of action be given to the child. Facts. loss of consortium. . Baker Citation. Discussion.2d 1335 (1974). Minor children do not have a cause of action against a woman who lures their father away from their family. brings this action on behalf of her children and in her own right alleging that a women lured her husband away by providing him with "a finer home. A cause of action may not be maintained on behalf of the minor children of a marriage against a woman who entices their father from the marital home. 522 P. Synopsis of Rule of Law. Baker Nash v. and loss of consortium. which the court predicts will continue to increase. sexual charms. A mother (Appellant) brings an action on behalf of her minor children against a woman who allegedly lured their father away from their family. The mother of five minor children. It simply rejects Prosser's predictions that future cases may allow for a cause of action because there has been an increase in the number of parents that have had a divorce and remarried. No. Whether any cause of action may be maintained on behalf of the minor children of a marriage against a woman who entices away their father from the marital home? Held. interference with their family relationships. The court does not clearly state why a child could not bring this type of action. One reason may be that the court intended to prevent an overload of these types of case in court as a result of the increase in failed marriages.378 Nash v.

Torts In The Age Of Statutes .379 CHAPT ER XXIII.

. Children do not have an action under tort law for emotional and psychological injury resulting from a parent failing to carry out his or her parental duties. Synopsis of Rule of Law. Therefore. and with cruel disregard of the consequences. this does not mean that the doctrine should be abandoned when mental and emotional injuries are alleged.2d 1105 (1978). This is conduct. are bringing actions against their mothers (Defendants) for emotional and psychological injury. through their guardian. The dissenting opinions are as follows: • (Justice Lent). Allowing these tort actions. have an action under tort law? Held. These tort actions may impede the social agencies' abilities to carry out plans for these children. Dissent. Whether children. Plaintiffs appeal from orders of dismissal. The law does not provide any cause of action for children claiming emotional and psychological injury resulting from the actions of a parent failing to carry out his or her duties. Wahl Burnette v. Plaintiffs are five minor children. In cases involving physical injuries. These agencies are designated by statute to aid children. The judgment of the trial court is affirmed. The Plaintiffs have stated a claim of injury because they suffered severe mental and emotional injuries as a result of being deserted and abandoned by a parent that acted maliciously. Brief Fact Summary. caused by the failure of Defendants to perform their parental duties. No. Minor children brought an action against their mother for emotional and psychological injury. resulting from a parent failing to carry out parental duties. which the legislature has declared to be a crime. and may upon proper proof hold the parent responsible in damages for these severe mental and emotional injuries. intentionally. Issue. the doctrine of intra-family tort immunity has been abandoned by this court. The concurring opinions are as follows: • (Justice Tongue). Wahl Citation.380 Burnette v. Concurrence. • (Justice Linde). do not solve the social problem in the manner in which the legislature intended it to be resolved. which Plaintiffs suffered is monetarily compensable. The community should conclude that the emotional harm. Facts. However. for whom there is no hope of reestablishing a relationship with their respective families. aged two through eight who. claiming emotional and psychological injury. this is not a proper case for tort litigation. (Justice Holman). 588 P.

Plaintiff has failed to state a claim for outrageous conduct. Discussion.381 Burnette v. . he or she must also provide some sort of physical injury as well. The court seems to suggest that for a child to be successful in a claim for emotional and psychological injuries. Wahl • (Justice Lent).

670 P. affirmed by the court of appeals. This case presents a specific duty of the Defendants . was that Ms." The widespread refusal or failure of police officers to remove persons involved in episodes of domestic violence resulted in the legislature revising the law to require mandatory arrest to prevent violations of restraining orders. had knowledge that Weaver violated his restraining order. The means chosen for this purpose included the use of temporary restraining orders. The restraining order clearly established a duty of Defendants toward the Plaintiffs under the Act. 1983). under tort law. unlawfully entered their home and assaulted their family. they allege that the proximate result of their failure to arrest Weaver. The case is on appeal from the circuit court's summary judgment for Defendants. The Act imposes a specific duty by statute for the benefit of individuals previously identified by a judicial order. Nearing suffered acute emotional distress. and temporary child custody orders.382 Nearing v. Statutes may create an independent cause of action that would allow a plaintiff to bring an action in negligence as well as other independent tort actions by the statute's intended beneficiaries who were injured. Weaver again illegally entered Plaintiffs' home. Whether Defendants can be held liable under the ordinary tort elements of a negligence action and held liable for duties owed to the Act's intended beneficiaries? Held. Defendants can be held liable under the ordinary tort elements of a negligence action and for duties owed to the Act's intended beneficiaries. (Justice Linde). Helens. Plaintiff also alleges that Weaver continued to seek entry into the home. for resulting harm to the psychiatric and physical health of the intended beneficiaries of the judicial order. and psychological impairment. assaulting the Plaintiffs and damaging their home. A restraining order was issued against Weaver.2d 137 (Or. Issue. Facts. After the order was issued. Henrietta Nearing and her two children (Plaintiffs). In addition. alleged that Martin Weaver (Weaver). Plaintiffs' complaint states that the police officers of St. Weaver Citation. In 1977. Yes. Nearing's husband. New Orleans (Defendants). difficulty sleeping. Weaver Nearing v. Officers who knowingly fail to enforce a judicial order under the Act are potentially liable. injunctions. Synopsis of Rule of Law. Plaintiffs state that that police officer called to the home declined to arrest Weaver because he had not seen the husband on the premises. Brief Fact Summary. "[The Act] prescribes that a peace officer 'shall arrest and take into custody a person without a warrant' when the officer has probable cause to believe that an order under the statute has been served and filed and that the person has violated the order. the Legislative Assembly enacted the Abuse Prevention Act (Act) to strengthen legal protection for persons threatened with assault by a present or former spouse or a cohabitant. the children's father and Ms. An abuse prevention statute created an independent cause of action under tort law that could be raised at the same time as a negligence action. and mandatory provisions for a warrantless arrest upon probable cause of a person believed to have violated such an order.

created a strict liability tort. as suggested by the dissenting opinion. . The majority's utterance is the first time that any strict liability doctrine has been discussed or considered. In its own defense. in this case. The decision of the court of appeals affirming the summary judgment must be reversed and the case remanded to the circuit court for further proceedings. the court states that the decision did not create strict liability because the liability is not absolute and that there are potential defenses. Weaver toward Plaintiffs. however. On its own. Dissent. However. (Justice Linde). the majority has converted the case to one of strict liability without any argument by the parties. The court. The court's result was correct. the doctrine of stare decisis mandates that the court follow precedent and reject the creation of strict liability tort based upon a violation of this Act. Concurrence.383 Nearing v. does not provide what kind of defenses could be raised which would provide a clear distinction between this case and other cases dealing with strict liability. The majority opinion is inconsistent with a number of recent decisions of this court. It is difficult to determine whether the court. The court should be slow to hold public bodies and their employees liable for damages arising from the failure to perform the duty imposed by this Act. for the alleged actions or whether the court is merely using the Act as its iron fist in assessing the facts of this particular case. (Justice Peterson). Discussion.

. Petitioner's complaint alleged that agents of the Federal Bureau of Narcotics (Respondents) acting under claim of federal authority. does not provide any monetary damages for injuries suffered as a result of a federal agent acting unconstitutionally." . Whether a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. The Court's holding "judicially create[d] a damage remedy not provided for by the Constitution and not enacted by Congress. embarrassment. papers.Ct. Yes. dismissed the complaint on the ground. Actions for damages may be brought against federal agents acting unlawfully as they carry out their duties of the United States. and effects. "The Fourth Amendment [of the United States Constitution] provides that: '[t]he right of the people to be secure in their persons. Issue." The district court. The agents manacled Petitioner in front of his wife and children. Held. Petitioner sought $15. However." Petitioner is entitled to a cause of action and to recover monetary damages. on Respondents' motion. against unreasonable searches and seizures shall not be violated .000. 29 L. Facts. Six Unknown Named Agents of Federal Bureau of Narcotics Citation.00 in damages for "great humiliation. those who have their rights violated under the Fourth Amendment by a federal agent require protection under the Constitution.'" Therefore. The judgment is reversed. it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief. and mental suffering. a court "may use any available remedy to make good the wrong done. The Court has consistently ruled that "where federally protected rights have been invaded. inter alia.S. The court of appeals is reversed and remanded. when there is a general right to sue under a federal statute. 403 U. Petitioner alleged damages resulting from a federal agent acting unlawfully. 91 S.384 Bivens v. threatened to arrest the entire family.2d 619. houses. and searched the apartment. (Justice Brennan). Petitioner also alleges that the arrest was conducted with unreasonable force and without probable cause. Dissent.Ed. that it failed to state a cause of action. however. The dissenting opinions are as follows: • (Justice Burger). Brief Fact Summary. . The court of appeals affirmed. Six Unknown Named Agents of Federal Bureau of Narcotics Bivens v. Synopsis of Rule of Law. 388. . entered his apartment and arrested him for alleged narcotics violations. An action for damages may be brought against federal agents acting under the color of their authority but acting unconstitutionally." The Fourth Amendment. 1999.

Black)." Concurrence.'" Discussion. under the Constitution. that would enable federal courts to "use any available remedy to make good the wrong done. Harlan). Six Unknown Named Agents of Federal Bureau of Narcotics • (J. (J. The Court recognizes an all encompassing remedy.385 Bivens v. "[t]he federal courts do have the power to award damages for violation of 'constitutionally protected interests." . "[n]either Congress nor the State of New York has enacted legislation creating such a right of action. For [the Court] to do so is …an exercise of power that the Constitution does not give.

The Court of Appeals affirmed the District Court." The majority relied upon [Central Bank of Denver. Under the auspices of this amendment. brought a class action suit to enjoin the English only driver's tests.. first observed three aspects of Title VI that must be treated as certainties. arguing that they violated the DOJ regulation. even though such activities are permissible under § 601. The Petitioner. Both the District Court and Court of Appeals rejected the argument that Title VI did not create a private cause of action. or national origin . First.. Congress did not intend to create "a private right to enforce regulations promulgated under § 602. a class representative. N." Second. "we have found no evidence anywhere in the text to suggest that Congress intended to create a private right to enforce regulations promulgated under § 602. v First Interstate Bank of Denver. because they discriminated against non-English speakers due to their national origin. and in the name of public safety. for the purposes of this case. Sandoval Alexander v. 275 (2001) Brief Fact Summary. Sandoval Citation. the Department was subject to Title VI of the Civil Rights Act of 1964 ("Title VI"). The Department received grants of financial assistance from both the United States Department of Justice ("DOJ") and United States Department of Transportation. the Department required all state driver's license tests be administered in English. The state of Alabama amended a provision in its Constitution to make English "the official language of the state of Alabama". Section 601 of Title VI states.. color. The District Court enjoined the license test policy. §601 only forbids intentional discrimination.". Synopsis of Rule of Law. was the director of Alabama's Department of Public Safety (the "Department"). As such. be denied the benefits of. No." Judge Antonin Scalia ("J.A. Scalia").A.] which found a "private plaintiff may not bring a [suit based on a . "on the ground of race. Can individuals bring a private cause of action "to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964"? Held. 532 U.S. The constitutionality of this amendment was at issue. Third. or national origin. the Supreme Court assumed "regulations promulgated under § 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups. or be subjected to discrimination under any program or activity". The DOJ adopted a regulation forbidding recipients of funding from "utilize[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race. color. James Alexander (the "Petitioner"). The state of Alabama amended its Constitution to require all driving tests to be administered in English. N. no person shall. writing for the majority of the Supreme Court of the United States ("Supreme Court"). Sandoval (the "Respondent"). Issue." Facts.386 Alexander v. be excluded from participation in. Section 602 allowed federal agencies to promulgate regulations to "effectuate the provisions" of §601. The Respondent. "private individuals may sue to enforce § 601 of Title VI and obtain both injunctive relief and damages.

This case provides an interesting discussion about how Congress interprets statutes that arguably allow for private causes of action. Accordingly. here." Accordingly. Scalia went through various other regulations and observed "[w]hatever these elaborate restrictions on agency enforcement may imply for the private enforcement of rights created outside of § 602… they tend to contradict a congressional intent to create privately enforceable rights through § 602 itself. Scalia then discussed the Supreme Court's past precedents concerning private rights of actions. To the contrary." Discussion. Sandoval regulation] against a defendant for acts not prohibited by the text of [the statute]". or part thereof.]" J. did not "manifest an intent to create a private remedy". The majority observed "[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. • As such. the majority began and ended their "search for Congress's intent with the text and structure of Title VI." The court observed the text of §602 did not include "rights creating" language stressed in past precedent.387 Alexander v. statutory intent is significant and the majority refused to create a private cause of action Congress did not intend. "[s]tatutes that focus on the person regulated rather than the individuals protected create 'no implication of an intent to confer rights on a particular class of persons." Additionally. Section 602 allowed agencies "to enforce their regulations either by terminating funding to the 'particular program. Scalia then found that legal context should only be considered to clarify the text.' that has violated the regulation or 'by any other means authorized by law[. Scalia concluded the methods §602 provided to enforce its authorized regulations. J. J. • J." • Additionally. .' " The majority then observed. "[s]ection 602 is yet a step further removed: It focuses neither on the individuals protected nor even on the funding recipients being regulated. the Supreme Court found that a private right of action must be based on §602. but on the agencies that will do the regulating. §602 limits agencies to "effectuat [ing]" rights already created by § 601.

and (3) that the injury was caused by the violation of Section 1962. a plaintiff must establish that a defendant. Partially. and Mrs. or the activities of which affect.S. Sullivan County. 244 F. a plaintiff must show "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. bribery and extortion. whether the Town of Delaware can be treated as a RICO enterprise. New York. 18 U.S. involved with the Township of Delaware's local governance.3d 286 (2d Cir. murder. A township engaged in certain practices to ensure that the purchasers of a tract of land did certain things with the land.388 De Falco v. after the commission of a prior act of racketeering activity. or other legal entity. a " 'pattern of racketeering activity' requires at least two acts of racketeering activity.C. robbery. Issue. association. § 1962. and (3) that the injury was caused by the violation of Section 1962. arson.C.. Bernas Citation. one of which occurred after the effective date of this chapter and the last of which occurred within ten years . gambling. Synopsis of Rule of Law. "Further. The court concluded that . partnership. directly or indirectly participated in an enterprise. the Defendants threatened and intimidated the Plaintiffs to give over the property or employ certain individuals.C. in the conduct of such enterprise's affairs through a pattern of racketeering activity. Defalco and others (the "Plaintiffs")." A RICO enterprise "includes any individual. interstate or foreign commerce." Racketeering activity "is broadly defined to encompass a variety of state and federal offenses including. through the commission of two or more acts constituting a pattern of racketeering activity. 2001) Brief Fact Summary. the activities of which affected interstate or foreign commerce. 18 U. a plaintiff must show: '(1) a violation of the RICO statute. to conduct or participate. Bernas De Falco v. and any union or group of individuals associated in fact although not a legal entity. corporation. §1962(c) of the Racketeer Influence and Corrupt Organizations Act ("RICO").S. § 1962(c). The Defendants threatened to withhold certain developmental permits if the aforementioned demands were not met. First." • The Court analyzes each of §1962's elements. The Plaintiffs brought suit under 18 U.. kidnapping.. a plaintiff must show: '(1) a violation of the RICO statute. Was a RICO violation established? Held.C. § 1962(c) then. The Plaintiffs. inter alia. Mr.' " Section 1962 "makes it unlawful for any person employed by or associated with any enterprise engaged in.S. Bernas and others (the "Defendants")." Additionally. After the Plaintiffs purchased the land. "To establish a RICO claim. (2) an injury to business or property. § 1962. were certain public officials and private individuals.S.. directly or indirectly. (2) an injury to business or property. sought to develop certain land in the Township of Delaware. The Defendants.C. "To establish a RICO claim." Further.' " Facts. "to establish a violation of 18 U. "[t]o establish a violation of 18 U.. New York.

The court observed. the proof need establish that the victim reasonably believed: first. with his consent." The court observed "[i]n this Circuit. the court analyzed whether there was a requisite amount of "Participation in the Conduct of the Town's Affairs".389 De Falco v. that the "jury here could have reasonably found that the Town of Delaware was a 'passive instrument' through which the defendants wielded power for their personal benefit and.' " Additionally. As such. an out-of-state logger located in Clifford. "[t]he jury specifically found that [the individual defendants] each "conducted or participated in the conduct of the affairs of the Town of Delaware through a pattern of racketeering activity. The Hobbs Act defines extortion as "the obtaining of property from another." Specifically. the court observed governmental units have in the past been deemed a RICO enterprise. or fear. violence. private individuals and corporations who used their political power to influence the Town of Delaware's exercise of governmental authority over the plaintiffs' development." Additionally." and the record here contains ample evidence from which a reasonable jury could have found that Dirie and the Bernas defendants each had some part in directing the Town of Delaware's affairs. Pennsylvania. accordingly.' " The court concluded "that extortion by Dirie through threats of economic loss was shown in the instant case." • Fourth. "[t]he jury could reasonably have concluded that the RICO persons [the Defendants] were a separate and distinct assortment of public officials. Bernas "[t]he requirement of distinctiveness between the defendants and the enterprise [ ] was met here." Further. that the defendant had the power to harm the victim. not the extortionist." It was not necessary that somebody had primary responsibility. "the jury could reasonably have concluded that the Town of Delaware's grant or denial of approval for aspects of the plaintiffs' development was conditioned upon complying with the demands of Dirie. induced by wrongful use of actual or threatened force." . that the defendant would exploit that power to the victim's detriment. '[t]he cases interpreting the Hobbs Act have repeatedly stressed that the element of 'fear' required by the Act can be satisfied by putting the victim in fear of economic loss. the court construed whether two predicate acts were established for each of the Defendants. One of the requisite acts important here was extortion. "[t]he absence or presence of fear of economic loss 'must be considered from the perspective of the victim. and others with influence. This phrase has been interpreted to mean "participation in the operation or management of the enterprise. the court concluded there was sufficient impact on interstate commerce." • Third. the Town Supervisor. and second. or under color of official right. The court recognized. was a RICO enterprise." • Second. "one of the extortionate demands caused DeFalco to break an $8800 contract with the Walczak Lumber Company.

the scheme was not 'inherently terminable' and the jury could reasonably have found that the nature of the Bernas' predicate acts themselves implied a threat of continued criminal activity. other factors such as the number and variety of predicate acts.' " Further. • "In assessing whether or not the plaintiff has shown open-ended continuity. Bernas • The court then addressed whether a "pattern of racketeering activity" was established. the number of both participants and victims.such as their demanding an increasing interest in the gravel pit--indicated that they had no intention of stopping once they met some immediate goal. Discussion." The court concluded "[i]n short.' or 'open-ended continuity. Accordingly. there was sufficient evidence from which a reasonable jury could conclude that the escalating nature of the Bernas defendants' demands-." • The court finally addressed the proximate causation issue and found that the causal connection was too weak. or that the nature of the predicate acts themselves implies a threat of continued criminal activity." The court concluded that the Plaintiffs did not establish 'closed-ended continuity' because the predicate acts did not occur within a long enough period of time. and that they amount to or pose a threat of continued criminal activity. Based on this evidence. "[a]lthough closed-ended continuity is primarily a temporal concept. the nature of the RICO enterprise and of the predicate acts are relevant.390 De Falco v." On the other hand "where the enterprise primarily conducts a legitimate business. It observed that to establish a pattern. . the jury could reasonably have concluded that the Bernas defendants would have continued extorting the plaintiffs into the future. and the presence of separate schemes are also relevant in determining whether closed-ended continuity exists. the nature of the RICO enterprise and of the predicate acts are relevant. "[t]he continuity necessary to prove a pattern can be either 'closed-ended continuity. This case offers an interesting discussion about Civil RICO actions.' " The court observed." Further. "[i]n assessing whether or not the plaintiff has shown open-ended continuity. there must be some evidence from which it may be inferred that the predicate acts were the regular way of operating that business. "a plaintiff must also make a showing that the predicate acts of racketeering activity by a defendant are 'related.

000. (Chief Justice Carrico). Yes. and there is no merit in the Plaintiff's argument that the statute is a violation of the separation of powers or invades the province of the judiciary. Plaintiff died of bacterial pneumonia and bacteremia after being negligently handled by a hospital physician. Discussion. Coastal Emergency Svcs. Mrs. Synopsis of Rule of Law. The court makes it clear that constitutional challenges to damage caps are quit difficult to win. She was survived by her husband and son. 509 S. Concurrence. (Justice Kinser). After a jury trial based on the medical malpractice of the medical malpractice of the hospital physician.000. Pulliam (Plaintiff) died of bacterial pneumonia and bacteremia after being negligently handled by a hospital physician.391 Pulliam v. it was not arbitrarily drafted by the legislature. .00 pursuant to a Virginia statute's damage cap. Coastal Emergency Svcs. the statute is supported by the rational basis standard to withstand Due Process and Equal Protection challenges. Facts. Whether the medical malpractice cap imposed by the Virginia statute is constitutional? Held. The damage cap awarded in the lower court is affirmed. the jury awarded $2. Medical malpractice caps create an unwarranted injustice in certain situations.045. The cap is constitutional despite the Plaintiffs various arguments stating otherwise: the cap does not violate the Seventh Amendment right to a jury trial. Pulliam v. it does not amount to the taking of property under the Fifth Amendment. Citation. Plaintiff argues that the cap is unconstitutional. Brief Fact Summary. Issue.2d 307. The Virginia damage cap neither violates the United States Constitution or the Virginia Constitution.00 which was reduced to $1.E.000.

392 CHAPTER XXIV. Compensation Systems as Substitutes for Tort Law .

Plaintiffs. An employer cannot immunize himself from liability of intentional torts. Citation." Discussion. alleging that as a result of failing to warn of. Krupansky). . An unintentional tort is a natural risk of employment. Inc." The trial court dismissed on the ground that the action was barred by a relevant section of the Ohio Constitution and the Ohio Workers' Compensation Act." • (J. (Justice Brown).393 Blankenship v. . Brief Fact Summary. and in willful and wanton disregard of the duty to protect the health of employees. Synopsis of Rule of Law. Inc. and correct hazardous conditions in their work environment. Homes)." Intentional and unintentional torts occurring on the job can be categorized into two completely different risks. The Workers' Compensation Act does not immunize employers from civil liability for their intentional torts and an employee may resort to a civil suit for damages. and permanently disabled. Whether the Workers Compensation Act was intended to cover an intentional tort committed by employers against their employees? Held. No.2d 572 (Ohio 1982). (Defendant) brought an action against Defendant. "[t]ort actions should be permitted against employers only in cases of actual intent to injure the employees. Issue. "[t]here should be no judicial creation of an intentional misconduct exception to the employers' tort immunity because there is no express exception in the Ohio Workers' Compensation Act. The dissenting opinions are as follows: • (J. . . Cincinnati Milacron Chemicals. Dissent." The Plaintiffs also allege that the Defendant's "omissions were intentional. Blankenship v. Plaintiffs appealed and the court of appeals affirmed the lower court ruling. which offered an employer and his employees total immunity from civil suit.E. Facts. malicious. poisoned.. "[w]here an employee asserts in his complaint a claim for damages based on an intentional tort. Cincinnati Milacron Chemicals. the substance of the claim is not an injury . . received or contracted by any employee in the course of or arising out of his employment within the meaning of Ohio law. they had been exposed to "to fumes of certain chemicals" which "rendered them sick. eight current or former employees of Cincinnati Milacron Chemicals. Inc. 433 N. Plaintiffs seek to be compensated by Defendant as a result of working in hazardous conditions. The court states that the Ohio Workers' Compensation Act can only apply to unintentional torts. . report.

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