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

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

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

................................................ Hill.................. Cedars-Sinai Medical Ctr................ v...........................................................345 J..... v.............113 Hinkle v........................................... Ayres & Co......147 Kramer Service................................... Sutherland.......133 Kilian v....... Edmonds...........80 Hector v......................................................................................R.....................……........................ Apartment Corp..............................61 Hodges v............... v....................... Inc................ Great Atlantic and Pacific Tea Co........ Woolworth Co...........................................193 Knell v.................343 Gulf Refining Co............ LaBelle's Distributing Co.......................................................................121 Indiana Harbor Belt R... R. Withy & Co..... LLC v......R........................ St.............................R..............95 Katko v...............69 H........347 Hardy v............Golden v........................................... Rockville Motor Co.........................................299 Kline v................................... Erie R....109 L................................... W de S.................................................... Langsam.......165 Jasko v............ Connaughton……………………………............ Byers Constr..............365 Hustler Magazine v.T................ Wells...................50 Herskovits v................... of Kansas... Amory...... Hubbard.................................... Jones...................................... and M................…328 Hanberry v............................................................ F...........................................376 Harris v............................ Butt Grocery Co................................................................ Doubleday & Co............... Hearst Corp...... v.........................................................................257 Grainger v............... Hardy............................................. v..................................................... Feltman........................................................................................................................................................... v... v.. Falwell.....................................81 Horning v.................................................... Post…………………………………………………………………………...... Francis Hotel......................................................................... Buick Motor Co..............................................265 Griffith v.........................323 Joye v........... Carter.................................................................. Inc........... Co..... Co.................... Bloomfield Motors.................................. Cincinnati Bengals.......... v...................................................................S..... Wilkins.. v........................................................................................................369 MacPherson v........ Moch Co......................................... Resendez……………………………………………………................................. Ltd........................281 Hegel v..... Harmon.......................................361 Hodgeden v........ Reader's Digest Ass'n.S........ Rensselaer Water Co........................... Williams..................................................................................................................................................... 1500 Massachusetts Ave..............................................................................110 Hill v........ Inc........S......……314 H..............................45 Harte-Hanks Communications..........................98 Joe Dickerson & Associates...................................................... Yuba Power Products........................................................................... Inc............................................................................ Hicks..............102 Lubitz v....298 Greenman v.................... Inc............... v..............................................331 I de S et ux. Inc............ Gye.............................................................................. E..... Group Health Cooperative of Puget Sound.....................................................67 Lumley v................ Dittmar……………………………………..........................................................................57 Hall v.................................. Briney.....................................................................................................159 Hackbart v............................................................ Inc............................35 In re Arbitration Between Polemis and Furness..162 Henningsen v........................... American Cyanamid Co.................... Inc... Co. Swift Wings...163 Larson v.......................................................H.......263 Herrin v......340 Grant v...............................40 Harmon v.......254 International Products Co.... Inc...W. Gwinnell................158.................................................................99 Heath v.......................60 Kelly v........................... 260 ......

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

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

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

.

Development Of Liability .CHAPTER I.

Discussion. None. Facts. even though the house was lawfully being built and the builder did not intend for the damage to occur. None. that third party would have a cause of action. King's Bench 1466 Brief Fact Summary. and in the course of this defense a third party is injured. Held. if somebody defends themselves when another party assaults them. and a piece of wood falls on the individual's neighbor's home. Issue. . None. This case offers a very early description of a duty and a breach of duty. Additionally. if an individual is building a home. even though the injury was not intentional and was in the course of defending oneself. 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. None." Accordingly. Synopsis of Rule of Law. the neighbor has a cause of action.16 Anonymous Anonymous Citation.

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

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

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

the Court was required to consider whether Defendant had reason to foresee causing the injury. Cir. Did the trial court properly direct a verdict in favor of the Defendant based upon evidence of the fainting spell? Held. Defendant proffered uncontested evidence that he lost control of the car because he fainted immediately prior to the accident. • 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. No longer inquiring solely whether Defendant intended to cause injury.D. 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. When a Plaintiff fails to show any actionable negligence on the part of the Defendant.2d 820 (D. 1933).20 Cohen v. Plaintiff suffered injuries when Defendant lost control of the car and drove it off the road. Facts. 187. Petty Cohen v. and the Defendant's uncontested evidence shows the injury resulted from a sudden. and that this is what caused the accident. This case introduces the issue of foreseeability into the question of fault. Issue. Yes. on the strength of which the trial court directed a verdict for Defendant. Plaintiff and his sister were riding in the back of a car driven by Defendant with Defendant's wife in the passenger seat. Plaintiff sued Defendant for negligence and claimed Defendant was speeding at the time of the accident. The trial court's directed verdict was upheld. Discussion.C. Synopsis of Rule of Law. .C. Plaintiff was injured while riding in a car driven by Defendant. that he had no reason to expect that such a fainting spell would occur. 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. 65 F. 62 App. a verdict is properly directed for the Defendant. unforeseeable illness. Brief Fact Summary. Petty Citation.

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

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

Intentional Interference With Person Or Property .23 CHAPTER II.

injury. but the trial court found he was instead trying to prevent injury and had no intention of injuring or embarrassing her. causing her to be injured. Discussion. Does the finding that a Defendant did not intend to cause offensive contact. The Court discusses at least three discernible classes of intent: 1) the intent to commit the act of moving the chair. Synopsis of Rule of Law. 2) the intent to injure. Brief Fact Summary.24 Garratt v. Dailey Citation. The Trial Judge dismissed the case on the strength of these findings. or embarrassment to Plaintiff. injury. Dailey Garratt v. Plaintiff alleged that Defendant intentionally moved a chair as she was about to sit down so as to injure Plaintiff. Plaintiff brought suit for assault and battery against Defendant. Knowledge of a grave risk that such contact or apprehension could occur is insufficient. 46 Wash. 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. In this case. embarrass. a five year-old boy. a five year-old boy. or cause apprehension. and 3) the intent that may be inferred from what the Defendant knew was substantially certain to result. 1955). the judge believed the testimony of Defendant. and Plaintiff appealed. a Defendant's age is relevant only insofar as it demonstrates the Defendant's likely degree of knowledge based upon his experience and understanding. that the injury would result from his actions. • With respect to intentional torts. This case introduces some of the many critical distinctions at play in analyzing intent. finding that he did not act with any intent to cause offensive contact. moved a chair away just as she was about to sit down in it. Knowledge of a grave risk that such contact or apprehension could occur is insufficient. A Defendant's age in such a case is relevant only insofar as it demonstrates Defendant's likely degree of knowledge based upon his experience and understanding. based upon his experience and understanding. Plaintiff alleged that Defendant. Facts. it appears that the trial court focused . At trial. 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. • The requisite intent for assault and battery substantial certainty that contact or apprehension of contact would result from his actions. Issue.2d 197.2d 1091 (Wash. 279 P. 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.

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

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

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

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

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

• 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. except the award was found excessive. A few days after Plaintiff was checked into Defendant's nursing home. it has committed false imprisonment. v. Plaintiff brought suit for false imprisonment and was awarded actual and punitive damages. Newman Citation. . and moved to a wing of the home for drug addicts and the insane. denied privileges. False imprisonment is one person's direct restraint of another's physical liberty in the absence of sufficient legal justification. Discussion. Newman Big Town Nursing Home. The relative simplicity of the case allows the Court to set forth the precise elements of the tort of false imprisonment. Upon checking in. had his personal belongings seized.W. a retiree. However. he was restrained. was checked into Defendant's nursing home at the behest of his nephew.37 Big Town Nursing Home. 461 S. Issue.App. Synopsis of Rule of Law.2d 195 (Tex. intentionally. He was also transferred to an area reserved for drug addicts and the insane. Inc. The jury's verdict was upheld. despite the fact that his admission papers indicated his presence was strictly voluntary. Plaintiff accepted the remittitur proposed by the court of appeals. Brief Fact Summary. Was the jury wrong to find Plaintiff had been falsely imprisoned? • Was the award of punitive damages improper under these circumstances? Held. Plaintiff. punished. Plaintiff was even able to identify a contractual provision specifically demonstrating the Defendant's knowledge that it acted in disregard of his rights. This is a rather straightforward false imprisonment case. the admission papers indicated that Plaintiff's presence was strictly voluntary and he could leave at any time. However. he was denied use of a telephone. Inc. 1970). he decided he wished to leave. and without regard to the rights of the Plaintiff. when Plaintiff attempted to leave on numerous occasions. punitive damages may be appropriately awarded. and was forcibly restrained and returned to the home on the occasions when he escaped. Facts. v. • When a Defendant's acts giving rise to actual damages are undertaken wrongfully.

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

The store manager invited Plaintiff into his office. and admitted that she would have entered the manager's office even had she not been lured there.39 Hardy v. a recently hired temporary employee at Defendant's jewelry department. The jury's verdict was upheld. the store manager lured Plaintiff into his office and closed the door behind him. An employee of Defendant informed Defendant that Plaintiff. The jury found for Defendant. Brief Fact Summary. Synopsis of Rule of Law. LaBelle's Distributing Co. The Court acknowledges that words can suffice to create the kind of unlawful restraint as could give rise to false imprisonment. at least one uniformed police officer. and others questioned Plaintiff for 20 to 45 minutes. and Plaintiff was ultimately questioned in the room for 20 to 45 minutes by the manager.2d 35 (Mont. Another of Defendant's employees told store management that she had seen Plaintiff steal a watch from the store. Rather. However. and others. . 263. during which time Plaintiff did not ask or attempt to leave and was not told she could not leave. The Court found that Plaintiff was not unlawfully restrained against her will because she would have entered the office voluntarily. No. Plaintiff later brought suit for false imprisonment. The manager. Discussion. the facts of the underlying case did not demonstrate that any such words were used. it appears Plaintiff may have held a subjective belief that she was not allowed to leave the manager's office. Facts. Under the guise of giving her a tour of the store. The manager closed the door behind him. never asked or attempted to leave. 661 P. and was never told she could not leave. at least one uniformed police officer. claiming she was being given a tour as a new employee. Was the jury wrong to find that Plaintiff had not been restrained against her will? Held. Issue. the actions or words must rise to the level of unlawful restraint against one's will to be actionable. 203 Mont. Hardy v. LaBelle's Distributing Co. 1983). Citation. The manager was eventually satisfied that Plaintiff had not committed the theft. had stolen a watch. 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. Plaintiff had been recently hired as a temporary employee in Defendant's jewelry department. While actions or words may give rise to a claim of false imprisonment.

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

Physical restraint can be found in the refusal to grant one the means to overcome a barrier to free movement. Plaintiff was a member of a religious organization of which her husband was a minister and Defendant was the head. Defendant refused to grant her use of a boat to reach the shore. Physical as opposed to moral restraint is required for false imprisonment. the court instructed the jury that while physical restraint was a necessary element of false imprisonment. Plaintiff decided she would like to leave the group and return to the United States. . The boats in question were under the control of Defendant and were necessary to provide Plaintiff with the means to reach the shore. Issue. She sued Defendant for false imprisonment. Synopsis of Rule of Law. The group was based in Tel Aviv. Although Plaintiff was occasionally allowed to leave the yacht briefly. Did the trial court properly instruct the jury that actual physical force is not required for a case of false imprisonment to succeed? Held. supervised excursions until she finally obtained release through a writ of habeas corpus. 110 Me. in turn. 77. particularly when one has sole control over those means.41 Whittaker v. in response to which Defendant offered transportation via his yacht and assured her she would not be detained. she was always supervised and was only able to reach the United States after she secured a writ of habeas corpus. nor is it so narrow that actual physical force must have been used. and she remained on board against her will except for brief. In this case. Yes. 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. 399 (Me. said that it was up to Defendant to decide. 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. 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. Sandford Citation. Brief Fact Summary. 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. At trial. 85 A. The verdict was upheld. actual physical force need not have been used. When they arrived. but this does not mean actual physical force must be used. but Plaintiff decided she would like to leave the group and return to the United States with her children. Sandford Whittaker v. Facts. Plaintiff's husband. Discussion. 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. 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. Upon arrival. Plaintiff and her husband were members of a religious group headed by Defendant and based in Tel Aviv. 1912).

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

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

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

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

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

2d 677. operated a smelter near the Plaintiff Bradley's property. Bradley v. • Quickly dissipating particles interfere only with one's use and enjoyment and are thus properly subject to nuisance law. • Nuisance involves the interference with one's right to exclusive use and enjoyment of property. No. . sued Defendant. Citation. As a result of its operations. to be deposited upon Plaintiffs' property. the operator of a nearby smelter. A trespass plaintiff must now prove actual damages to recover. and enjoyment of their land by gaseous and particulate emissions? Held. • 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. 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. Facts.47 Bradley v. Defendant American Smelting and Refining Co. use. American Smelting and Refining Co. for trespass and nuisance due to gaseous and particulate emissions. • Trespass occurs when one interferes with another's right to exclusive possession of property. Issue. Plaintiffs. Synopsis of Rule of Law. an association of landowners on an island. Actual damages must now be proven to sustain a trespass claim. • Although trespass entitled a plaintiff to nominal and punitive damages as a matter of law at common law. and the United States District Court for the Western District of Washington certified the matter for the Supreme Court of Washington.2d 782 (Wash. Trespass is the interference of one's right to exclusive possession of land. The matter was remanded with instructions that actual damages needed to be shown for recovery. imperceptible to the naked eye. Brief Fact Summary. Are Plaintiffs entitled to nominal or punitive damages as a matter of law due to the interference with their exclusive possession. the prior rule that any trespass whatsoever entitles a landowner to nominal or punitive damages is no longer appropriate or workable in these circumstances. while nuisance is the interference with one's right to exclusive use and enjoyment of land. However. such a rule is inappropriate and unworkable with respect to wide-ranging pollutants. The parties filed cross-motions for summary judgment. Plaintiff sued to recover for trespass and nuisance. Defendant's smelter caused various gases and particulate matter. 709 P. 1985). Accordingly. American Smelting and Refining Co. 104 Wash.

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

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

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

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

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

2d 465 (D. 23 L. • The interference with Plaintiff's use of the files was not so severe as to warrant payment for their entire value. The originals were returned to Plaintiff's office. which necessitates an award of the entire value of the property in question. The Court sets forth the elements of conversion. Dodd Citation.S. a United States Senator. The Court explains that a lesser interference will fall into the realm of trespass to chattels. and the like. In this case. 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. 395 U. Cir. 89 S. the interference must be severe. trade secrets. denied. They made copies of the documents and distributed the copies to Defendants. The interference with a Plaintiff's use must be far greater for the tort of conversion. 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. photocopied. while conversion protects intellectual property. 947.Ed.53 Pearson v. The files were removed at night. Staffers of Plaintiff. repeatedly entered his office and removed various documents. The District Court ruled that the Defendants had committed conversion Issue. the information involved was internal correspondence and office records.2d 701. 2021. Defendants published articles based upon information contained in documents stolen from Plaintiff's office. Discussion.C. Synopsis of Rule of Law. 1969). Brief Fact Summary. Defendants would receive the information from Plaintiff's own employees. copy them. and return the originals to the office. Plaintiff sued for conversion. No. and returned to their usual place. in which the measure of damages tends to be diminution in value. cert. who published their contents. 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. . • The information in this case is not the sort of information properly protected under conversion. The District Court's decision was reversed. Facts. Dodd Pearson v. who would temporarily remove the documents from Plaintiff's office.Ct. 410 F.

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

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

Citation. Plaintiff later sued to recover for his injuries. but Plaintiff later sued to collect for his personal injuries. a professional football player. Cincinnati Bengals. Defendant's player intentionally struck Plaintiff.Ed. Neither of the two complained to officials at the time of the injury. that there is a question of scope to such consent. Synopsis of Rule of Law. Plaintiff. Cincinnati Bengals. there are rules prohibiting certain conduct such as the intentional striking of other players. Hackbart v. however. The judgment was reversed and remanded for a new trial.56 Hackbart v. cert. Facts. Discussion. Despite the generally violent nature of professional football. 601 F.2d. The Court explains here.2d 188 (10th Cir. The Court was called upon to analyze an implied consent defense. The trial court clearly found that one engaging in professional football was aware of its dangers and therefore surrendered his rights to seek redress for injuries sustained in the process. denied. Even in an inherently violent situation such as a game of professional football. . but was not found to have intended to injure him. was injured when one of Defendant's players intentionally struck him during a game. Inc.Ct. it is possible for one to go beyond its customs and so be liable for injuries in tort. 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. 444 U. 275. 100 S. The very existence of such rules demonstrates that there are boundaries to what constitutes acceptable behavior in the sport. and Plaintiff was entitled to a determination of whether his rights were violated. 931. Brief Fact Summary. Issue. 62 L. Inc. Plaintiff was injured by one of Defendant's players in a professional football game.S. 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. No. 1979). Both continued to play in the game and did not make any complaints at the time. Was the Trial Court correct in finding that Plaintiff had no remedy at law due to the extremely violent nature of professional football? Held.

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

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

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. Defendant testified that he had placed the trap because he was tired of people breaking into the farmhouse.2d 657 (Iowa 1971). Such was not the case here. Defendant had set a shotgun trap inside. Plaintiff broke into and entered a farmhouse owned but not occupied by Defendant for the purposes of theft. 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. Briney Katko v. . the Court explains. The Defendant appealed. Plaintiff was injured in the process by a "spring gun" trap Defendant had set to thwart intruders. 183 N. The instructions made no provision for the possibility that the device was set with no intent to actually strike or harm an intruder. 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. Discussion. Synopsis of Rule of Law. • The Trial Court's instructions were correct. Issue. Plaintiff broke into a farmhouse owned but not occupied by Defendant to steal items he might find inside. Yes. Of paramount concern. Facts. but no indications of any traps therein. 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 did not intend to injure anyone. Briney Citation.59 Katko v. Although "no trespass" signs were posted on the property. The Court acknowledges one's rights to protect against trespasses. There were "no trespass" signs posted around the farmhouse. no warning about the trap was posted. and previous cases on the subject dealt with intrusions to a vineyard. and the gun fired at and injured Plaintiff when he entered the house. is the value of human life and well-being. The judgment was affirmed. 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 jury returned a verdict for Plaintiff and the Trial Court denied motions for judgment notwithstanding the verdict. Dissent. not a burglary such as this. Unbeknownst to the Plaintiff. Brief Fact Summary. but places important limitations upon those rights. • Criminal liability may also result from the use of such traps.W.

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

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

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

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

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

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

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

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

The state of the gasoline container. arguing that the explosion was so unusual. 185 So. and unforeseeable that they cannot be held liable for damages resulting from its occurrence. Defendant appealed. 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. The explosion occurred as a result of a spark caused by worn threads on the cap. Brief Fact Summary. 723. 234 (Miss. 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. When Plaintiff went to refuel the tractor. Plaintiff was injured after a gasoline container delivered by Defendant exploded while he was trying to remove its cap. he removed the container's cap and the gasoline exploded. The container had been in use for about nine years and was in a state of considerable disrepair. Yes. As the Court explains. The Defendant delivered a gasoline container to Plaintiff for use in refueling a tractor. This case attempts to define the concept of foreseeability. v. extraordinary. 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. Plaintiff sued to recover for his personal injuries. Facts. Issue. 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. Synopsis of Rule of Law. . as was known to Defendant.68 Gulf Refining Co. Williams Gulf Refining Co. The judgment was affirmed. causing him great injury. Discussion. v. Williams Citation. Defendant's failure to do so subjected it to liability. The jury found Defendant liable for Plaintiff's injuries. 1938). 183 Miss.

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

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

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

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

While driving. Synopsis of Rule of Law. When Defendant drew alongside Plaintiff. 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. Issue. 181 (Pa.73 Delair v. Discussion. Brief Fact Summary. The jury returned a verdict for Plaintiff. Defendant attempted to pass Plaintiff. Yes. The judgment was affirmed. McAdoo Citation. Defendant's tire exploded as they were alongside one another. one of his tires blew out. McAdoo 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. causing the cars to collide. 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. . 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. 188 A. The Court rules that those driving automobiles are required to take certain precautions to maintain them. causing a collision. Facts. 1936). and Defendant moved for a judgment notwithstanding the verdict. a party is charged with that knowledge and is guilty of negligence when he ignores it and drives in spite of it. Plaintiff sued for negligence. 392. When a reasonable inspection would disclose a dangerous condition in an automobile. 324 Pa.

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

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

2d 566 (1981). an elderly gentleman. Discussion. . the State of Louisiana (Defendant). with special training on moving about without the use of a cane.76 Roberts v. The handicapped are held to a reasonable standard of care for a person with their disability. 396 So. 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. 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. State of Louisiana Roberts v. Facts. The court also considered Burson's testimony that he had special training in moving about without a cane. The Plaintiff. The concession operator failed to use his cane while walking from his stand to the bathroom when the accident occurred. The concession operator was not negligent and therefore the trial courts' ruling is upheld. Burson. 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. Synopsis of Rule of Law. Roberts (Plaintiff). Brief Fact Summary. At trial. Because the blind operator. the Plaintiff's suit was dismissed. the handicap is considered part of the circumstances. The Plaintiff. sued the Defendant. working in a familiar setting. 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. State of Louisiana Citation. Burson's actions were reasonable for a blind person. Burson was not acting negligently when he bumped into the Plaintiff. fell and broke his hip when a blind man bumped him into.

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

W. Breunig (Plaintiff). Issue. Co. 173 N. It is unjust to hold a person responsible for conduct that they are incapable of avoiding. Facts. where the driver was suddenly overcome by a disability that incapacitated her from conforming her conduct to that of a reasonable person. was injured in a car accident when Erma Veith (Ms. Veith was driving home when she saw a white light on the back of the car ahead of her and followed it for three or four blocks. the Defendant. 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. Co. Breunig v. American Family Ins. American Family Ins.'s (Defendant) insured. American Family Ins. a psychiatrist testified that Ms. The next thing she recalled she was lying in a field on the side of the road. But in this case. drove her car into the Plaintiff's truck after suffering a schizophrenic attack. Although generally insanity is not a defense to negligence. The psychiatrist testified that while driving her car. there must also be an absence of notice or forewarning that the person might be subject to the illness or insanity. Co. 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. The Plaintiff. Brief Fact Summary. Whether mental illness is an exception to the reasonable person standard. Synopsis of Rule of Law. At trial. 2d 619 (1970). liability attaches. Citation. In situations where the insanity or illness is known. Held. Veith).78 Breunig v. 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. The illness or hallucination must affect the person's ability to understand and act with ordinary care. . when the insanity is unforeseen and unavoidable. Ms. Ms. it is unjust to hold a person responsible for the conduct that caused the injury. Discussion. The effect of mental illness on liability depends on the nature of the insanity. For insanity to be an exception to liability. the general policy is too broad.

E. A professional standard of care is not a subjective standard. using minimum industry standards and not looking into the individual's actual training or experience. According to the widow of the passenger. it is an objective standard predicated on the rules and guidelines of the profession. Held.79 Heath v. Inc. Discussion. the pilot spent a long time loading and reloading the small aircraft prior to take off. Issue. the crash would have been avoided. 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. Inc. . 252 S. killing the pilot and the passengers. Heath v. This suit is the result of an airplane crash that charges the pilot with negligence. Instead. The proper standard of care for professional negligence is an objective standard. The jury instruction instead created a subjective standard by focusing on the defendant's personal training. In the expert's opinion. Swift Wings. Swift Wings. Brief Fact Summary. The pilot and his passengers all died as a result of the crash. By using an objective standard the court avoids imposing a different standard of care for each case. 2d 526 (1979). 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. Citation. Synopsis of Rule of Law. Facts. the pilot's actions are to be measured by an industry standard that is applicable to all pilots. Whether professionals should be held to an industry standard of care or one that is predicated on their individual experiences and training. had the pilot taken these measures. 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. At trial. There was evidence that the plane was not properly balanced. Pilot error caused an airplane crash.

the Plaintiff then filed this suit against the Defendants alleging they were negligent in prosecuting his actions. Issue.80 Hodges v. 2d 144 (1954). Held. they did not act negligently in prosecuting the Plaintiff's case. In four separate actions. The Plaintiff. 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. his former attorneys (Defendants). The four claims were denied and the Plaintiff then sought recovery in the courts. Brief Fact Summary. Facts. Whether Plaintiff's attorneys were negligent in failing to properly serve the Plaintiff's complaints against his insurance companies. In 1952. Hodges (Plaintiff). However. alleging that they negligently prosecuted his insurance claims against out of state insurance companies when the attorneys failed to properly serve the complaints. failure to use reasonable care and diligence and failure to exercise good faith. 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. 80 S. 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. The trial court found for the Defendants and the Plaintiff now appeals. Discussion. Carter Hodges v.E. The insurance companies claimed improper service of process and the trial courts concluded that service was proper. that decision was appealed and reversed by the Supreme Court of North Carolina. is suing the Defendants. An attorney is not liable for an error of judgement or for a mistake made on a point of law. when that point of law has not been settled by the highest court in the jurisdiction. Synopsis of Rule of Law. Carter Citation. The Defendants were not negligent in the prosecution of Plaintiff's cases against the insurance companies. . 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.

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

Morrison (Plaintiff). 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. the Plaintiff provided expert testimony from a doctor practicing in Michigan. 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. The test was administered while the Plaintiff was standing. The locality rule for expert testimony in medical malpractice cases is antiquated and unnecessary. The test was administered to the Plaintiff while he was standing.C. The doctor stated that the test is always performed while the patient is sitting or prone. . 407 A. At trial. The Plaintiff patient was given test for a urinary tract infection. Issue. Facts.2d 555 (1979). hitting his head. Brief Fact Summary. Synopsis of Rule of Law. was injured when he fell after undergoing a medical test. Whether to use a community based standard or a national standard when determining a professional standard of care. in this case Washington D. Furthermore. Held. The Patient suffered permanent loss of his senses of smell and taste as a result of his fall. The court adopts a national rule. Discussion. The locality rule developed to protect rural doctors who lacked means of transportation and communication by which they could acquire the same set of skills as urban doctors. A national standard of care is a more modern method for measuring whether a doctor has committed negligence. MacNamara Morrison v. MacNamara Citation. due to the uniformity of the proficiency certifications that are required by national boards. a national standard is more practical.82 Morrison v. The Plaintiff had an adverse reaction to the test and fell. The Plaintiff.

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

Following the diagnosis. Whether Dr. a physician has a fiduciary duty to disclose all information that is material to the patient's decision. which are unrelated to the patient's health and may effect the physician's professional judgment. however. 793 P. Third. a patient's consent to treatment must be informed to be effective. Consent consists of three principles. inter allia. The principles of informed consent extend to disclosing unrelated interests of the physician because that information is material to the patients decision. The scope of informed consent is guided by the patients need to have all information material to their decision. Dr. Issue. The patient underwent the recommended surgery and subsequent follow up treatment. 2d 479 (1990). First. an adult has the right to exercise control over his body. The Plaintiff filed a complaint alleging.84 Moore v. alleges financial injury when cells removed from his spleen were used to create commercial genetic products. Golde. conversion and lack of informed consent and breach of fiduciary duty for failing to disclose the financial interests of Dr. the principles of informed consent are broad enough to require physicians to disclose their personal interests. Discussion. • The failure to disclose those interests can lead to a cause of action for lack of informed consent. Golde in the plaintiff's spleen. Held. • Physicians must disclose personal interests. Brief Fact Summary. The Plaintiff. Based on test results. 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. a doctor at University of California Los Angeles (UCLA) Medical Center. The trial court dismissed the complaint and the court of appeals reversed. Second. the duty requires the physician to inform the patient of the risks involved in medical care. Facts. The spleen was then used for unrelated research and the Plaintiff's cells were used to create a cell line licensed for commercial development. The Regents of the University of California Citation. Golde recommended that the plaintiff have his spleen removed. Synopsis of Rule of Law. the Plaintiff underwent treatment by one many Defendants. Normally. Dr. . The Plaintiff was diagnosed with leukemia in 1976. Moore (Plaintiff). The Regents of the University of California Moore 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. Discussion. Wabash Ry. Pokora v. To the north. It is not the role of the judiciary to determine what is prudent behavior in extraordinary circumstances. Synopsis of Rule of Law. Hearing none. Facts. 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 Plaintiff pulled ahead to the main track where his vehicle was struck by a passenger train. Pakora's (Plaintiff) truck. The driver acted within the standards of prudent conduct. the Plaintiff. The crossing consisted of four tracks. . Wabash Ry. 292 U. Co. Standards of prudent conduct should be cautiously framed when the rule of law is imposed. Co. That is for the jury to decide. looking and listening for a whistle or a bell. boxcars blocked the field of vision and the Plaintiff stopped his truck before continuing forward.85 Pokora v. Requiring a driver to stop at an uncontrolled or obscured intersection is practical and prudent. Brief Fact Summary. was hit by an oncoming train. The Plaintiff's truck was hit by an oncoming train at a railroad crossing. After coming to a stop at a train crossing where the intersection with the road was obscured. Whether the Plaintiff's actions were prudent given the circumstances. Held. 98 (1934). Citation. He proceeded slowly.S.

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

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

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

W. 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. and S. 973 S. allegedly witnessed the abuse of the plaintiffs and other children. friends of the alleged child abuser and day care operator. To sustain a cause of action for negligence per se.N. . the defendants violated a section of the Family Code. they violated the Family Code. and S. The defendants.N. There cannot be negligence per se without an underlying common law duty. In this case. 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. Synopsis of Rule of Law. Brief Fact Summary. 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. 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. Issue. In failing to report. the defendants here are not negligent per se for their violation of the Family Code. To hold a person liable for a duty that is only imposed by legislation would create a new type of tort liability. the duty extends solely from the Family Code and there is no preexisting duty at common law between these defendants and the plaintiffs. Whether the defendants breached a duty to the plaintiffs when they violated the Family Code. Perry v.N. 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.2d 301 (1998). Held.89 Perry v.N. Facts. S. Citation. In failing to report. Discussion. S. A cause of action in negligence per se requires that there be an underlying duty at common law. but said nothing to authorities.

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

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

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

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

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

Did the dangerous condition. by the exercise of reasonable care. did the Defendant have constructive knowledge? Held. but it could have been on the floor for up to 2 hours. 2001) Brief Fact Summary. The owner is under an obligation to "inspect the premises or take other proper action to ascertain their condition. Ortega v." Circumstantial evidence can be used to prove this knowledge.200 in damages. While shopping at one of the Defendant. Ortega (the "Plaintiff"). th Citation. and if. 114 Cal. The jury awarded the Plaintiff $47. the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe." If the store involved is "a self-service grocery store where customers are invited to inspect. including torn ligaments." Ordinary care is exercised by a store owner "making reasonable inspections of the portions of the premises open to customers.95 Ortega v. remove. A Kmart employee testified that the milk would have probably been mopped up within 15-30 minutes. Rptr." . Kmart Corp. 36 P.'s store (the "Defendant"). the spilled milk." The Plaintiff has the burden to prove "the owner had notice of the defect in sufficient time to correct it". The Plaintiff sued the Defendant for his injuries. he is liable for failing to correct it. the Plaintiff. 2d 470. 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. Richard M. and the care required is commensurate with the risks involved. the Plaintiff argued that the Defendant had not inspected the floor in a reasonable amount of time prior to the accident.4 1200." Facts. Neither the individual nor the store was sure for how long the milk had been on the floor. Although he did not know how long the milk was on the floor. '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.3d 11 (Cal. Kmart Corp. Kmart Corp. slipped on a puddle of milk on a floor near a refrigerator. During his testimony. 26 Cal. the owner would have discovered the condition. the Plaintiff could not remember much about the milk or how long it was on the floor for. The Plaintiff suffered a substantial knee injury. exist long enough for a reasonably prudent person to have discovered it? In other words. "[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. 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. and replace goods on shelves. An individual slipped and fell on a puddle of milk left on the floor of a store. Synopsis of Rule of Law. Issue.

." Discussion. This case illustrates the duty owed by a store to those who shop in the store." Also.96 Ortega v. 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. • 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. Kmart Corp.

When the defendant engages in a business that is prone to hazardous mishaps. Facts.'s (Defendant). then the nature of the business serves to put the business on notice of possible injuries. Held. Discussion. The Plaintiff was injured when she slipped and fell on a slice of pizza in the Defendant's store. Citation. The pizza was sold over the counter to patrons shopping in the store. 494 P. F. Notice of a dangerous condition need not be shown in cases where the business itself creates the hazard. Whether the Plaintiff must show that the store had notice of a dangerous condition. . Jasko (Plaintiff). Woolworth Co. Woolworth Co. F. was injured when she slipped and fell on a slice of pizza in the Defendant.97 Jasko v. It was also foreseeable that if there were food on the floor it would be hazardous.W. Jasko v.W. The slices were sold on wax paper to standing patrons and therefore it was foreseeable that food would drop on the floor. The area around the pizza counter was tiled. Issue. The Plaintiff. Synopsis of Rule of Law. store. Woolworth Co.2d 839 (1972). The store's method for selling slices of pizza created a foreseeable risk of danger. 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. Brief Fact Summary.W. F.

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

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

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

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

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

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

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

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

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.

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

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

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

Proximate Or Legal Cause .116 CHAPTER VI.

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

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

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

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

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

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

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

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. Co.R. the Defendant owed is defined by the risk reasonably perceived.124 Palsgraph v. . Long Island R.

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

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. .

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

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

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

Facts. was injured when he was attempting to help at an accident sight and was hit by a car. Citation. • The rescue doctrine requires that: i. Synopsis of Rule of Law. The rescuer acted with reasonable care. Issue. He was then struck from behind by a passing car. Brief Fact Summary. Whether the rescue doctrine protects the Defendant from claims brought under a theory of products liability. is subject to the rescue doctrine. The state trooper had pulled away and left the scene when the hit and run occurred. the Plaintiff headed back to his car along the shoulder of the road carrying a lit flare in his roadside hand. 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. McCoy (Plaintiff). Products liability. the State for the negligence of the trooper and American Suzuki Motor Company along with its parent Suzuki Motor Company (Defendants). McCoy v. The rescue doctrine may apply in products liability cases. The danger was imminent. Held. • The rescue doctrine allows an injured rescuer to sue the party that caused the danger. American Suzuki Motor Corp. The Plaintiff. After the accident scene and the injured parties were removed. which the Plaintiff did. The tortfeasor owes a duty to the rescuer that is similar to the duty they owed to the party injured in the first place. The defendant acted negligently towards the person rescued and the negligence caused the danger to the rescuer. iii. like any other tort. The Plaintiff sued various Defendants including the driver and the passenger of the Suzuki.2d 952 (1998). A reasonably prudent person would have concluded that the danger existed and iv.130 McCoy v. The Plaintiff was following behind the driver of a Suzuki motor vehicle when it crashed. ii. American Suzuki Motor Corp. A state trooper arrived at the scene soon after and asked the Plaintiff to put flares on the road. 961 P. . The Plaintiff was struck by a car while offering assistance at the scene of a car accident. Discussion.

for the rescuer to show causation. . American Suzuki Motor Corp. Therefore. 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. • The rescuer doctrine was developed for public policy reasons because rescuers should be anticipated and should not be barred from bringing suit.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. the court found that the Plaintiff met the requirements to achieve rescuer status. • In this case. There is no reason that this policy should not apply to situations where a manufacturer causes the danger.

Is a host who serves liquor to a guest. Gwinnell Kelly v. where he chatted with him and watched him drive off. 476 A. knowing that the guest is intoxicated and will be operating a motor vehicle. Unlike commercial licensees who serve alcoholic beverages. Social hosts who allow guests to become intoxicated and then drive.132 Kelly v. this Court believes that the just compensation of drunk driving victims along with its deterrent effect outweigh the opposing policy considerations. Plaintiff sued the Defendants. Gwinnell Citation. Kelly sued Gwinnell and Zak for negligence. Facts. Gwinnell was likely to injure someone while operating his car. Gwinnell was involved in a head on collision with the Plaintiff. Yes. Kelly (Plaintiff). Brief Fact Summary. This type of liability imposition is best left up to the legislature. 96 N. 538. 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.J. Although imposing a duty may interfere with accepted standards of social behavior. Zak provided his guest with liquor. The appellate court affirmed. • 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. Dissent. Gwinnell was involved in a head on collision with Kelly on his way home. Synopsis of Rule of Law. Zak walked Gwinnell to his car. 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. Two of the Defendants were Zak and Gwinell (Defendants). The trial court granted Zak's motion for summary judgment. may be liable for injuries caused by the guest's negligent drunk driving. 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. knowing the guest would be driving later. On his way home. • The remaining question is if this Court should impose a duty to prevent such a risk. where Gwinell consumed alcoholic beverages. don't always serve guests directly. Zak provided Gwinnell with alcoholic beverages and then allowed him to drive home. and . 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. Issue. who was seriously injured.2d 1219 (1984). Judgment reversed and remanded. average social hosts have less knowledge in determining levels of intoxication. Gwinnell drove Zak to Zak's home.

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

Instead of the usual tolling of the statute of limitations for exposure to toxic substances when the exposure occurs. the legislature has removed legal barriers to tort recovery. Eli Lilly & Co. No. which was damaged due to in utero exposure to DES. sued the Defendants. 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. 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. who alleges she developed abnormalities of her reproductive system due to exposure to DES. Plaintiff's grandmother gave birth to Patricia Enright. Citation. 54 N.2d 786]. Additionally. These abnormalities allegedly resulted in the premature birth of Plaintiff. breach of warranty. The Plaintiff. Synopsis of Rule of Law.2d 377. Issue. New York. The appellate court affirmed the dismissal of the negligence.Y. and fraud causes of action. but reinstated the strict liability count.S. Facts.E. This premature birth was allegedly the result of damage to Patricia Enright's mother's reproductive system.Y. the legislature changed the law to allow the limitations period to begin to run upon discovery of the injury. Enright v. • Due to the widespread tragic effects of DES. who suffers from cerebral palsy and other disabilities attributed to her premature birth.2d 550 (N. Causes of action are not recognized for children who have injuries which were caused by a preconception tort committed against the mother. Patricia Enright on behalf of Karen Enright an infant (Plaintiff).App.134 Enright v. 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. 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. Eli Lilly & Co. 429 N.Y.Y. 570 N. 77 N.1991).2d 269.E. . Plaintiff's claims were dismissed by the trial court. Brief Fact Summary.2d 298. • In the present case. Plaintiff's grandmother took a prescription pill called DES intended to prevent miscarriage during pregnancy. various manufacturers of DES (Defendants). 568 N. the Court is asked to recognize a cause of action not available in other contexts simply because this is a DES case. Judgment reversed. for damage done to her because of a premature birth.

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

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

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

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

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

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

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

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

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

then participated in the trial as defendants assisting the plaintiff in her suit against the remaining defendant. Smith Citation. 845 S. Dr.1992). Syrquin (12%). Syrquin.W. Are Mary Carter agreements void as against public policy? Held. or the settling Defendants be dismissed from trial. Elbaor requested the agreements be voided. Elbaor. in which the defendants effectively settled before trial. Gatmaitan. The Plaintiff suffered serious injuries as a result of an automobile accident and required significant medical attention. These agreements create an incentive for the settling defendant to assist the plaintiff in receiving a sizably recovery.237. Gatmaitan. changing the order of proceedings .872.2d 240 (Tex. Syrquin. Smith (Plaintiff). Elbaor for $1. Plaintiff filed medical malpractice claims against the Defendants. D/FW Medical Center. She also entered into "Mary Carter" settlement agreements with Dr. remain as defendants. all four above doctors. (Defendants) due to a fused ankle that resulted from treatment.010. Issue. participate in the trial. The trial court entered judgment against Dr. Brief Fact Summary. The settling defendant remains a party and guarantees the plaintiff a minimum payment. The Court of Appeals affirmed. Plaintiff entered into Mary Carter agreements with several defendants. and Arlington Community Hospital (ACH). 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. Prior to trial. Synopsis of Rule of Law. Facts. Dr. Stephens and ACH. • The trial court recognized this incentive and took remedial measures to mitigate the effects of the agreement. Judgment reversed and remanded for new trial. brought claims against multiple defendants for medical malpractice. She was treated at various times by Dr. Dr. The Texas Supreme Court has voided the validity of Mary Carter agreements based on public policy considerations. The remaining defendant challenged the validity of the Mary Carter agreements.848. Dr. allocating responsibility between Dr. Yes. Plaintiff settled and dismissed her claim against D/FW Medical Center and non-suited her claim against Dr. Smith Elbaor v. Elbaor (88%) and Dr. The trial court denied the requests and proceeded with trial. • Mary Carter agreements are agreements where a plaintiff enters into a settlement agreement with one defendant and goes to trial against the remaining defendants. The agreements provided that they would pay plaintiff a total of $425. which may later be offset by an excess judgment recovered at trial. Ms.253.144 Elbaor v. The Plaintiff. Elbaor. Stephens and Dr. These measures included reapportioning preemptory challenges.

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

Langland) and her husband (Plaintiffs). and upon payment. This Court holds that so . this Court feels that this is a misinterpretation of Merryweather.App. Brief Fact Summary. First. 101 Eng. Issue. Ralph Feltman (Feltman) and operated by his employee. judgment in favor of Defendant against Knell for $5.S.2d 662 (U. Nixan.750.D. However. 8 term Rep. 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. 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. No. The Plaintiffs sued the Defendant to recover damages. Knell claims that contribution is not warranted because joint liability was not established. The Plaintiffs. who filed a thirdparty complaint against Knell for contributory negligence.App. it is illogical. Second.C. Evelyn Langland (Mrs. a majority of American courts have held that there can be no contribution between joint or concurrent tortfeasors. Langland was seriously injured in the accident. This case involves a car accident. The Defendant filed a third-party complaint against Knell. Knell appeals. it is at odds with the Rule 14(a) of the Federal Rules of Civil Procedure (FRCP). The court awarded judgment in favor of Plaintiffs against the Defendant for $11. claiming the accident was caused by his sole or contributing negligence. The court ordered contribution by Knell to Feltman. when the car collided with a taxicab owned by Feltman. 85 U. 1949).500. • Based on the Merryweather holding [Merryweather v.S.1799)]. Is a joint judgment against tortfeasors who commit a tort through concurrent negligence a prerequisite for enforcement of contribution? Held. Synopsis of Rule of Law. Judgment affirmed. 174 F. The car they were riding in collided with a taxicab owned by the Defendant. as the right to contribution cannot be based upon a selection of defendants by the plaintiff.B. were guest passengers in a car driven by Kenneth Knell. Feltman Citation. The jury found both the Defendant and Knell negligent. Feltman Knell v. 22.146 Knell v.C. 186. differentiating between intentional wrongdoers and those whose unpurposed negligence results in a tort. As long as concurrent tortfeasors are not intentional wrongdoers. • Knell's argument that contribution can only be enforced if both tortfeasors are judgment debtors to the plaintiff fails for two reasons. contribution will be enforced regardless of whether or not a joint judgment is entered against them.Rep. Mrs. Facts. Plaintiffs were passengers in a car driven by Knell. Plaintiffs sued Feltman.D. 1337 (K.

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

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

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

he is not entitled to indemnification by Ford. . • 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. Discussion. This case demonstrates the difference between contribution and indemnification. Indemnification is only available when the defendant is not directly at fault. 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. Robert Donahue was found negligent in this case and his liability is not vicarious. Therefore. The right to indemnity is allowed only when the indemnitee is vicariously or derivatively liable for the wrongful act of another. such as in a respondeat superior case.150 Slocum v.

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

000 amount in controversy requirement set forth in 28 U. Issue. This Court believes that Michigan courts would follow the Maddux holding.000 from all three corporations jointly and severally. • The present case is one in which there is not concerted action. filed a complaint against the Appellants. Under Michigan State law. but the independent acts of multiple actors combine to produce indivisible harmful consequences.152 Michie v. Brief Fact Summary.Appl. there is no assertion of joint action or conspiracy against the Appellants. There was no assertion of joint action or conspiracy.A § 1332 (1970). If the Appellees are able to prove injury and liability as to the Appellants. 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. Judgment affirmed. Multiple people filed a complaint against three corporations claiming a nuisance for pollution. allowing the trier of fact to determine if liability is joint or several.000 or more in damages against each Appellant.2d 213 (U. the entire liability may be imposed on one or several tortfeasors.000 amount in controversy requirement for federal jurisdiction. three corporations (Appellants). Yes. . Citation.W. 108 N. claiming each appellee individually failed to meet the $10. The corporation filed a motion to dismiss. • 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. The tortfeasor or tortfeasors who have liability imposed on them have the right of contribution against other tortfeasors. Donaldson.1974). Appellants appealed a denied motion to dismiss based on the claim that each Appellee individually failed to meet the $10. 495 F. multiple defendants may be found jointly and severally liable when injuries cannot effectively be apportioned between defendants. Great Lakes Steel Division. Michigan law effectively shifts the burden of proof as to which was responsible and to what degree. Facts.C.2d 33 (1961)]. However. If the injury is indivisible and it is not practicable to apportion the harm.Ct. Great Lakes Steel Division. thirty-seven people (Appellees). Held.S. Therefore. Michie v. 425. claiming that pollutants emitted by Appellants represent a nuisance.000 to $35. Nat'l Steel Corp. The Appellees. Nat'l Steel Corp. 362 Mich. Synopsis of Rule of Law. Under Michigan law. each Appellees complaint should be read as alleging $11.S. Each Appellee individually claims damages ranging from $11.

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

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

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

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

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

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

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

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

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

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

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

Facts. claiming that her negligence was a cause of the abuse. for damages. Plaintiffs claimed that the wife's negligence rendered her liable for the girls' injuries. Did the wife owe Plaintiffs a duty to ensure they were not sexually abused by her husband. A neighbor sexually abused two young girls and admitted to the abuse. examining . • Sexual abuse is a type of conduct that is difficult to identify. J. brought this action against the Defendants.H. and if so. granting the Plaintiffs extended discovery. Failure to act on this duty is a proximate cause of the minor's injuries. The wife denied she could be found negligent. Foreseeability is based on defendant's knowledge of the risk of injury. After the neighbor's conviction and imprisonment. The trial court entered summary judgment on behalf of the Defendants. The neighbor sexually abused both girls for more than a year.S. Synopsis of Rule of Law.S. the Appellate Division reversed the order and remanded. Issue.H. and may be either actual or constructive. These considerations call for a particularized foreseeability standard. The husband conceded liability. R. can her negligence be considered a proximate cause of their injuries? Held. R. the parents of the girls brought suit against the wife of the abuser. • The imposition of a duty is a question of fairness and public policy. 714 A. Judgment of the Appellate Division affirmed. the opportunity and ability to exercise care to prevent the harm. and M. including previous committed offenses and age-inappropriate comments or behavior. the girls. ages twelve and fifteen. Whether or not sexual abuse committed by a husband is foreseeable to the wife depends on many factors.J. The court must balance several related factors. 330. the relationships among the parties and the societal interest in the proposed solution.S.S. along with their parents (Plaintiffs). 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. v.164 J.T. 155 N. Two young girls. The Supreme Court of New Jersey granted Defendants' petition for certification. anticipate or predict. Citation. Brief Fact Summary. v. As part of a tort action. spent considerable amounts of time with their neighbor at his horse barn. the neighbor and his wife (Defendants).2d 924 (1998). Yes. the Plaintiffs. 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.T. including the foreseeability and severity of the underlying risk of harm. On appeal. 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. and M.

it is clear that society and the Legislature have mandated that the protection of children from sexual abuse outweighs any marital interest. this spouse has a duty to take reasonable steps to prevent or warn of the harm. requiring notification and registration requirements for sex offenders. 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.S.H.S.A. would result in the occurrence or continuation of the abuse. • The Court must also take into consideration the defendants' interest in a stable marital relationship. 9:6-8.T. and "Megan's Law.J. • 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. a breach of this duty constitutes a proximate cause of the resulting injury. In the present case.10. R. Issues involving foreseeability and proximate causation are often closely entwined with similar facts being used to prove or disprove each. Discussion. 2C:7-1 to -11.165 J. related issue to consider is that of proximate causation. The Legislature's imposition of N. supported in the common law doctrine of interspousal immunity. Additionally. it seems clear that a wife's failure to prevent or warn of her husband's sexual abuse or propensity therefore. 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. exemplify this mandate.S." N.S. . v. Even granting this consideration.A. 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. requiring any person who has cause to believe that a child has been subject to abuse to report such abuse. and M. Based on these considerations.

Poddar and Defendants. 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. killing her. Poddar was a patient of Dr. Poddar informed Dr. Facts. 551 P. no further action was taken to detain Mr. Poddar. . Mr. Poddar did in fact kill Tatiana. Two months later. Moore that he intended to kill Tatiana because she turned down his romantic advances. Regents of University of California Tarasoff v. Poddar shot and repeatedly stabbed Tatiana. but then released. the patient of the Defendants.2d 334. Synopsis of Rule of Law. Dr. Posenjit Poddar (Mr. Leave to amend complaint to state a cause of action against Defendants for breach of duty to exercise reasonable care to protect Tatiana. Brief Fact Summary.Rptr. Moore was one of the four Defendants. 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. four psychiatrists (Defendants). • 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. at Cowell Memorial Hospital of the University of California. Poddar). Mr.166 Tarasoff v. Moore). he bears a duty to exercise reasonable care to protect the foreseeable victim of the danger. threatened to kill the Plaintiffs. 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. Once a therapist determines or should have determined that the patient poses a serious danger of violence. 17 Cal. Are Defendants liable if it is found that their negligent failure to warn Tatiana or others proximately situated. Plaintiffs also claimed Defendants should be liable for Tatiana's death because they failed to warn her or them about Mr. Tatiana Tarasoff (Tatiana). During one of their sessions. Poddar.3d 425. Poddar was briefly detained. The Plaintiffs brought a wrongful death suit against the Defendants who failed to detain Mr. Plaintiffs' pleadings assert a special relation between Mr. Mr. Mr. Yes. and Mrs. • 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. Moore had the campus police detain Mr. but he was released shortly thereafter. Tarasoff's (Plaintiffs) daughter. Issue. Poddar. that which arises between a patient and his doctor or psychiatrist. Mr. 14 (1976). Mr. resulted in the death of Tatiana? Held. Regents of University of California Citation. Dr. Despite a disagreement between the psychiatrists at the hospital. certain exceptions are judicially made for defendants that stand in some special relationship to either person. Lawrence Moore (Dr. Poddar's threat. 131 Cal.

knowledge. the Court's view is that once a therapist does determine or should have determined the patient poses a serious danger of violence. This Court agrees with this balancing test. there is no reason to limit the duty to such situations. knowledge and care ordinarily possessed" standard is the same as that generally applied to malpractice cases for professionals. 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. The Court states that a therapist need not have perfect performance. They claim that the giving of a warning would constitute a breach of trust. but rather only needs to exercise the "reasonable degree of skill. 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.167 Tarasoff v. and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances. . the public interest of safety from violent assault must be weighed against this. Discussion. based on this court's view and other jurisdictions." Based on this. Regents of University of California However. • Defendants also argue that such a duty would impede the free and open communication essential to psychotherapy. The "reasonable degree of skill. However.

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

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

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

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

No. 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. 865 (1989). Maria Thing's (Plaintiff) son was struck by an automobile and injured. 69 Cal. Legg. 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. 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. The Plaintiff. Plaintiff did not witness the accident. [Dillon v.2d 912 (1968)] when the court established a test based on whether the defendant should have reasonably foreseen the injury to plaintiff. but arrived at the scene shortly thereafter. On December 8.2d 728. La Chusa Thing v. 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. James La Chusa (Defendant). Plaintiff also alleged that these injuries were proximately caused by the Defendant's negligence.Rptr. The Plaintiff. This was overruled in Dillon. The Court of Appeals overruled the trial court's grant of summary judgment. 68 Cal. John Thing's mother was nearby. 1980. Plaintiff sued the Defendant. with direct victims being individuals whose emotional distress is reasonably foreseeable as a consequence of the conduct of the . 257 Cal.172 Thing v. but neither saw nor heard the accident. Synopsis of Rule of Law. This test takes into account whether the plaintiff was located near the scene of the accident. for negligent infliction of emotional distress. Plaintiff's daughter informed her of the injury to her son. where she found her son bloody and unconscious. 771 P. was struck by an automobile operated by the Defendant. alleging she suffered great emotional disturbance. Brief Fact Summary. • Originally in California. 72. Plaintiff rushed to the scene. Facts.2d 814. The Judgment of the Court of Appeal is reversed. shock and injury to her nervous system as a result of the emotional stress she suffered. La Chusa Citation. John Thing. Issue. Plaintiff sued the Defendant.Rptr. a minor. 441 F. • Future cases went on to distinguish between direct victim cases and bystander cases. 48 Cal.2d 644. 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.

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. Chief Justice Lucas and Justices Panelli and Arguelles concur. therefore. 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. (3) as a result suffers serious emotional distress beyond which would be expected of a disinterested witness. Plaintiff was not present at the scene of the accident. she cannot establish a right to recover for her emotional distress. . Discussion. intentional infliction of emotional distress.173 Thing v. Concurrence. A similar cause of action. (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. The courts have had difficulty applying the Dillon and direct victim standards. is punitive in nature rather than negligent infliction of emotional distress. which is compensatory. Justice Kaufman concurred. In the present case. • This court concludes that a clear-cut rule would be more effective in this area. La Chusa defendant. however.

Brief Fact Summary. No. causing her twins to be delivered stillborn.2d 901. leads to incongruous results.E. Legislative Acts regarding wrongful death suits refer to decedents and one must have been born before they can be a decedent. The court at Special Term dismissed the first two suits for wrongful death. Friedberg Citation. hospital. Dissent. Janice Endresz was seven months pregnant when she was injured in an automobile accident. Four actions in negligence were brought by the Plaintiffs against the Defendant. Synopsis of Rule of Law. 303 N.Y.Y. Judgment affirmed. 102 N. but not allowing one when the injury leads to stillbirth.2d 478. Justice Keating concurred.2d 65 (N. Plaintiffs claimed damages for loss of anticipated care. the first two for the wrongful death of each child.Y. Allowing a right of action when a fetus is injured and later born. The Plaintiffs.Y. Endresz was seven months pregnant when she was injured in an automobile accident with Friedberg. 27 A. This decision does not require the Court to reinterpret wrongful death to provide compensation for distributees of a stillborn fetus.R.S.2d 691. Mrs. 353. 693. members of the Endresz family (Plaintiff). for among other things.174 Endresz v. Friedberg Endresz v. 248 N. New York does not allow a cause of action for the wrongful death of unborn children. 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. sued the Defendant. Friedberg (Defendant). Issue. 24 N. Two days later she delivered stillborn twins. Facts. Lancet.E. and funeral expenses for the children. May a wrongful death suit be brought in New York for causing the negligent death of a yet unborn child? Held. the wrongful death of each child.L. there is a wrong inflicted for which there is no remedy. . 349.1969). • In wrongful death suits for unborn children.App. Concurrence.2d 1250 recognized a cause of action for a viable child in utero who is injured by a tort and later born with injury. If no right of action is permitted. • This Court has already decided that wrongful death actions cannot be maintained for the death of an unborn child. • This court's decision in Woods v. the proof of pecuniary injury is extremely vague. comfort and support during the minority and majority of each infant and medical. 301 N.

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

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

However. but rather that he should not have been born at all. • Later cases addressed these issues. this Court does find that recovery of the cost of extraordinary medical expenses is recoverable by either the parents or the infant. Discussion. In Berman [Berman v. Cillo nonexistence of life itself. few jurisdictions allow actions for wrongful life. • Policy considerations have led this court to decline to recognize any cause of action for an infant's wrongful life. The infant can wait until his majority to recover medical expenses. Another factor in early decisions was a reluctance to recognize the availability of abortions.J. The problem is that the Plaintiff claims not that he should not have been born with defects. More recent cases allowed for the parents' right to compensation for the extraordinary expenses of raising an impaired child. 421. The Defendants do not deny such a duty and the Court finds that one exists. analysis of the action begins with whether the Defendants owed a duty to the Plaintiff. • In the present case. 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. Allan. Unlike wrongful death suits for unborn child. 80 N. 404 A.2d 8 (1979)] the court refused to allow a parent's claim for medical expenses to be incurred during the childrearing under the theory that such an allowance would permit the parents to reap all the benefits of childhood while the defendant paid all of the expenses. but not both. 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. .177 Procanik by Procanik v.

Owners And Occupiers Of Land .178 CHAPTER IX.

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

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

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

rather than to the Defendants. of which the owner has knowledge. the owner has a duty to exercise reasonable care in keeping the premises reasonably safe for use by an invitee. • Plaintiff claims that because he was conducting the business of a fraternal organization during his visit.). Are Defendants entitled to a directed verdict based on Plaintiff's status as a licensee? Held. Also. were officers of the lodge.E.182 Barmore v. Both Plaintiff and Thomas Elmore Sr.App. tried to restrain his son while Plaintiff left the house. Plaintiff filed suit against the Defendants. Judgment is affirmed. 83 Ill. Thomas Jr. the person must go onto the owner's land in furtherance of the owner's business. In this case. Thomas Sr. Issue. Plaintiff was attacked and stabbed by Thomas Elmore Jr. Thomas Sr. Thomas Elmore Sr. the owner must refrain from injuring his guest willfully or wantonly. Plaintiff filed suit against the Defendants claiming that they were negligent in failing to protect him from a dangerous condition on their premises. Barmore (Plaintiff). but known to the owner. 403 N. Social guests are considered licensees.Dec.App. Yes. Facts. To be classified as an invitee.'s 47 year old son. but Thomas Jr. got away from his father and stabbed the Plaintiff several times in the chest. (Thomas Sr. A social guest is a licensee. . During the visit. advanced towards Plaintiff with a steak knife.3d 1056. Therefore the Plaintiff is best categorized as a licensee. Synopsis of Rule of Law. Elmore Citation. Elmore Barmore v. claiming they were negligent in failing to protect him from a dangerous condition on their premises. the evidence suggests that the primary benefit of Plaintiff's visit was to the fraternal organization of which both were members. Premises owners have a duty to warn licensees of hidden dangers unknown to the licensee. and generally must take the premises as he finds them. visited the home of the Defendants. and Esther Elmore to discuss the business of the Masonic Lodge. Plaintiff appeals from an order of the Circuit Court directing a verdict in favor of the Defendants. • The duty that Defendants owed to Plaintiff depends largely on his classification as either an invitee or a licensee. 751 (Ill. 38 Ill. Plaintiff visited the home of Thomas Sr. (Thomas Jr.. As to an invitee. he attained the status of an invitee. The owner of the premises has the duty to warn a licensee of any hidden dangers unknown to the guest. Esther Elmore and Thomas Elmore Jr. Brief Fact Summary. The Plaintiff.2d 1355.1980). to discuss business of the Masonic Lodge. During the visit.) (Defendants).

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

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

Defendant. 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. Van Natta's (Defendant) store. An invitee can also become a trespasser if the owner of the land does not consent to the individual remaining on the land. made a purchase and then asked if he could have a box. page 67]. Synopsis of Rule of Law. 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. or if the individual enters a part of the property that he was not permitted to enter upon. Chapter 13. Plaintiff then asked Defendant if he could have a box for his son. Therefore. Plaintiff fell into an unseen stair well and was injured. entered the Defendant. busy at the counter. . Restatement of the Law. Brief Fact Summary.W. Whelan (Plaintiff). Section 332. 382 S. Van Natta Citation.1964).2d 205 (Ky. Second. 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.App. Van Natta Whelan v. The Plaintiff entered Defendant's grocery store and purchased some cigarettes. which was unlit at the time. 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. Facts. Issue. Discussion. Defendant told Plaintiff to enter a back room to get the box. told Plaintiff to go into the backroom to retrieve a box for himself. • The Court bases its decision solely on the Torts Restatement [Torts. The trial court gave judgment for the Defendant and Plaintiff appeals. Plaintiff went into the backroom. The Plaintiff. While searching for a box. Judgment affirmed. Yes.185 Whelan v. Plaintiff was injured when he fell into an unseen stair well in the unlit back room.

Christian Citation. Plaintiff used Defendant's bathroom. In the dissenters view. Some of these factors include the closeness of the connection between the injury and the defendant's conduct. the policy of preventing future harm. and invitees produces confusion and conflict and are not justified in our modern society. No. Evidence showed that Defendant had known the handle was cracked for two weeks. 70 Cal. • The traditional classifications do not reflect the major factors. Plaintiff filed suit for injuries. In the present case. a trier of fact could reasonably have concluded that a failure to warn or repair the condition constituted negligence. Christian Rowland v. The Plaintiff. The previous rules provided stability and predictability and supplied a reasonable and workable . this and other courts have generally departed from the concept that an individual is liable for injuries caused by his carelessness. licensees and invitees and instead applies ordinary principles of negligence in these cases. Dissent. Was the trial court correct in granting summary judgment for the Defendant based on Plaintiff's status as a licensee? Held. it was not proper for the majority to overturn a long standing. Rowland (Plaintiff). 443 P. was injured when a cracked handle on a water faucet broke while Plaintiff was using the Defendant. • The Court overturns these traditional classifications and instead will apply ordinary principles of negligence in cases such as the one at hand. Facts. well supported rule without the instruction of the Legislature.2d 561. viewing the facts in a light most favorable to Plaintiff. Synopsis of Rule of Law. 97 (1968). and prevalence and availability of insurance. 69 Cal.2d 108. Defendant knew of the faulty handle. The categorization of injured parties as trespassers.Rptr. • Based on historical considerations placing land ownership in a disproportionately high place. licensees. Judgment reversed. Plaintiff appeals from a summary judgment for the Defendant. the moral blame attached to defendant's conduct. but failed to inform Plaintiff. California abolishes the traditional classifications of trespassers. but failed to inform Plaintiff of its condition. which should determine when immunity should be conferred. Christian's (Defendant) bathroom.186 Rowland v. Brief Fact Summary. Issue. 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 approach. However. There is considerable agreement amongst modern courts that the general negligence standard should be applied to all persons invited or permitted on the premises. The new approach will require decisions on a case-by-case basis and could open the door to potentially unlimited liability. . Discussion.187 Rowland v. there is less agreement regarding the treatment of trespassers.

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

Roseberry Discussion. 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. .

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

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.

000. and reduces said amount to $50. In regard to Mrs. In both instances the majority substituted its own subjective judgment for the jury's evaluation of the evidence. Because the determination of damages is a question for the trier of fact. Richardson. McGregor is excessive. incurring only a laceration on her forehead that left a slight scar. McGregor was not seriously injured in the accident. • Dissent. Richardson's minimum care needs. The dissenting judge concurs with the general opinion of the majority. McGregor's damages. Discussion. The Court believes that an award for $100. disagreeing only with the majority's remittitur of Mrs. The jury should have been allowed to arrive at a higher value based on the evidence. In regard to Mrs. . the court will only issue a remittitur if the damages shock the judicial conscious.198 Richardson v. the majority's remittitur of her pain and suffering award is arbitrary. Richardson's and Mrs. McGregor. Mrs. Professor Linke's calculations represented only Mrs.000 is excessive based on these facts. Chapman • Defendants also contend that the jury's award of damages to Mrs. The majority is hesitant to substitute its' opinion for that of the trier of fact in determining damages.

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

(3) to impeach plaintiff's testimony that he had paid his medical expenses himself.200 Montgomery Ward & Co. . (4) to show that the plaintiff actually continued to work instead of being out of work. v.. Anderson Discussion. (2) to show that the plaintiff had attributed his condition to some other cause. 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. Inc. such as sickness.

2d 1167 (1973). • In the present case defendant did not request an instruction on mitigation of damages. Ausland Citation. Facts.201 Zimmerman v. Discussion. but actually a rule that does not allow recovery of damages the plaintiff could have avoided. Plaintiff obtained a jury verdict for $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. 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. 266 Or. 513 P. Several factors are considered in this analysis. The standard applied is whether an ordinary. 427. The Plaintiff. 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.500 jury verdict for damages incurred during an automobile accident caused by the Defendant. Synopsis of Rule of Law.500. the Plaintiff would not be entitled to claim damages for permanent injury. Ausland Zimmerman v. the probability of success and the expenditure of money or effort required. The duty to mitigate is not a true duty. These damages included a permanent injury based on torn cartilage. Zimmerman (Plaintiff). preventing Plaintiff from engaging in strenuous physical education activities. obtained a $7. No. Issue. In order to recover for permanent injuries. including damages for permanent injury based on torn semilunar cartilage in her knee. • 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. Nonetheless. if the facts are such that the Plaintiff failed to mitigate her damages as a matter of law. Brief Fact Summary. Plaintiff was injured during an automobile accident caused by the negligence of Defendant. prudent person would have submitted to a surgical operation. including the risk involved. . Judgment affirmed. 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. Ausland (Defendant).

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

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.203 Cheatham v." Accordingly." The state of Indiana chose "to define the plaintiff's interest in a punitive damages award as only twenty-five percent of any award. Pohle the extent state law creates a property right. . unless the state legislature makes such a determination. and the remainder is to go to the Violent Crime Victims' Compensation Fund." Discussion.

Campbell's unsafe pass caused the accident. fraud. Campbell and his wife's appeal. and a jury found that Mr. Campbell State Farm Mutual Automobile Insurance Co. and the incapacitation of another. The Utah Supreme court reinstated the punitive award. Campbell to appeal the verdict." Facts. Issue. When analyzing the validity of a punitive damage award." The jury awarded the Campbell's $2." The case eventually went to trial. contested liability and declined offers to settle with the estate of the deceased and with the permanently injured individual. Campbell's insurer. Mr. agreed not to satisfy their claims against Mr. and State Farm satisfied the entire judgment. The Campbells retained their own counsel for the appeal. While driving with his wife. Those include: "(1) the degree of reprehensibility of the defendant's misconduct. Additionally. however.6 million in compensatory damages and $145 million in punitive damages. The Campbells' policy limit was $50. Campbell Citation. Nonetheless. and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. the Petitioner refused to pay the excess $135. (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award. (the "Petitioner").Ct." Slusher and Ospital were the representatives of the deceased and the incapacitated victims of the accident. Campbell") (collectively referred to as the "Campbells") attempted to pass six vans on a two-lane highway. Initially.204 State Farm Mutual Automobile Insurance Co. Synopsis of Rule of Law. 1513 (2003) Brief Fact Summary. Despite the outcome of the appeal. Campbell was 100% at fault and a judgment of $185.849 above the policy limits. An accident ensued. Gore] must be applied. "[W]hether. By doing so.849 was entered against him. Campbell was driving on the wrong side of the highway. and intentional infliction of emotional distress. It was determined that Mr. State Farm Mutual Automobile Insurance Co. [based on the circumstances]. v. A car accident occurred resulting in the death of one individual. an award of $145 million in punitive damages. and one individual was killed and another permanently disabled. where full compensatory damages are $1 million.000. The estate of the deceased and the individual that was incapacitated. alleging "bad faith. Campbell and his wife were unscathed. the three guideposts from [BMW v. Mr. Campbell. In 1989. v. who was not injured. the Petitioner. State Farm would not post a bond to allow Mr. and that they did not need to procure separate counsel. 123 S. The insurance company of the driver at fault. Mr. that [State Farm] would represent their interests. acted inappropriately. The Petitioner assured the Campbells that "their assets were safe. it he were to bring a "bad faith action against State Farm and to be represented by Slusher's and Ospital's attorneys. and the driver sued the company and was awarded a substantial amount of compensatory and punitive damages. Mr. Campbell and his wife filed suit against the Petitioner. Curtis Campbell ("Mr. is excessive and in violation . the Utah Supreme Court denied Mr. that they had no liability for the accident. The trial court reduced the compensatory award to $1 million and the punitive award to $25 million.

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

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

207 CHAPTE R XI. Wrongful Death And Survival .

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

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

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

1971.Stat. 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. The Plaintiff. • 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. The Plaintiff's husband was injured in a fire on the Defendant's premises. Facts. Murphy v. Martin Oil Co. previous holdings are overruled and actions . Plaintiff's husband survived for nine days. 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. 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. 3. The trial court dismissed the Survival Statute Claim. Previously. Both parties appealed to the State Supreme Court. 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. Plaintiff brought suit under both the Wrongful Death Statute and the Survival Statute. Ill. • The Survival Statute [Illinois Survival Statute. Damages for loss of property.211 Murphy v. Issue.Rev. sued under both the Wrongful Death Statute and the Survival Statute for injuries sustained by her husband during a fire at the Defendant. 56 Ill. 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. 308 N. The appellate court allowed the claim in part. Therefore. loss of wages and the pain and suffering of decedent when decedent died from the injuries. which created the cause of action? Held.E. 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. Can a plaintiff maintain an action under the Survival Statute for loss of property. ch. Judgment reversed insofar as it held that Plaintiff could not maintain an action for decedent's pain and suffering. Murphy (Plaintiff).2d 583. Plaintiff's husband survived for nine days. then died from his injuries.'s (Defendant) premises. Martin Oil Co. Handbook of the Law of Torts 4th ed. Yes.2d 423. Martin Oil Co. Citation. at 901 (1971)]. Mrs. Brief Fact Summary. Synopsis of Rule of Law. then died from his injuries.

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. Discussion. but today survival statutes have modified these rules in almost every jurisdiction.

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

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

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

the Court abandoned the unjust doctrine of contributory negligence and adopts a system of comparative fault. Balentine McIntyre v. in part due to operating his vehicle while intoxicated. Yes. 103 Eng. Harry McIntyre (Plaintiff) and the Defendant. Plaintiff's blood alcohol content was measured at . . Forrester. they ruled in favor of the Defendant. Judgment reversed in part and affirmed in part (on a separate issue) and remanded. Based on the general acceptance of comparative fault throughout the nation.Rep. Balentine Citation. The Plaintiff. Plaintiff's truck struck Defendant's tractor. The Plaintiff and Defendant were involved in a motor vehicle accident. Synopsis of Rule of Law. The jury found the Plaintiff and Defendant equally at fault. or when plaintiff's negligence is remote. Tennessee adopts modified comparative negligence. alleging the trial court erred by refusing to instruct the jury regarding the doctrine of comparative negligence. Facts. Defendant answered that Plaintiff was contributorially negligent. where questions posed had to be answered yes or no. The contributory negligence bar to recovery may have developed as on outgrowth of issue pleading. allowing plaintiffs to recover so long as their negligence does not exceed the negligence of the defendant. Both men had consumed alcohol the evening of the accident.W. actions falling under the last clear chance doctrine. Plaintiff pulled out of a truck stop.1992). allowing for exceptions for intentional conduct. [11 East 60.17 and testimony suggested that Defendant was speeding. The Court of Appeals affirmed. Should Tennessee adopt the doctrine of comparative negligence? Held. gross negligence. Issue. Tennessee. 833 S. therefore. with both parties being partially responsible. 926 (1809)]. Plaintiff appealed and requested that the court adopt comparative negligence. Brief Fact Summary. were involved in a car accident. • Tennessee has followed the general rule of barring recovery for contributory negligence. The jury found for the Defendant based on the contributory negligence doctrine.216 McIntyre v. Plaintiff appealed. Shortly thereafter.2d 52 (Tenn. Plaintiff brought a negligence action against Defendant and the lessee of the truck. • The common law doctrine of contributory negligence has been traced to Butterfield v. As Defendant traveled south on Highway 69 in Savannah. with severe injuries resulting to Plaintiff. leaving common law courts to award all or nothing. Clifford Balentine (Defendant).

217 McIntyre v. pure and modified comparative fault. Discussion. 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. To provide guidance to the trial courts. 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. The modified form is the same as pure. §§ 29-11-101 to 106 (1980)] will no longer determine the apportionment liability between co-defendants. Balentine • Two basic forms of comparative fault are used throughout the nation. Therefore. in the case of multiple tortfeasors. • This Court adopts the modified form of comparative fault in an effort not to fully abandon the state's fault-based tort system. The Uniform Contribution Among Tortfeasors Act [T. damages are reduced in proportion to the amount of negligence attributed to the plaintiff. Only four states continue to apply the common law doctrine that contributory negligence as a complete bar to recovery. Under the pure form. so long as plaintiff's negligence remains less than defendant's the plaintiff may recover. .A. or is less than 49% of defendant's negligence. Also. Finally.C. plaintiffs may recover as long as plaintiff's fault is less than the combined fault of tortfeasors.

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

Additionally." 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. court then discussed three exceptions to the general rule that exculpatory clauses are enforceable. "[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.' such that 'the common sense of the entire community would ··· pronounce it' invalid." The court recognized that only the second and third exceptions are applicable here." . however. the exculpatory clause was prominently displayed and Ms. voluntarily entered into by competent parties. and (3) when the transaction involves the public interest. which were a practical necessity for some members of the public. housing (public or private) and public utilities therefore fails. Inc. But ultimately. does not demonstrate grossly unequal bargaining power. They include "(1) when the party protected by the clause intentionally causes harm or engages in acts of reckless. purchased her own fitness equipment or exercised at home without fitness equipment. not readily susceptible to definition or broad categorization. the court observed that the contract at issue was one of adhesion. • As to the third." In assessing public policy. And any analogy to schools. the court recognized National had various competitors that provided the same non-essential health club services that National provided. Seigneur could have went to another health club.219 Seigneur v. 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. • As to the second." The court concluded that "there is no special legal relationship and no overriding public interest which demand that this contract provision. The court also argued. Health clubs do not provide essential services. should be rendered ineffectual. Ms. The court also observed that this fact alone. or gross negligence. Seigneur did not allege she was not aware of it. To illustrate its point. the appropriate inquiry was to assess "whether the party seeking exoneration offered services of great importance to the public. hospitals." Based on this definition of public policy. that are so important to the public good that an exculpatory clause would be 'patently offensive." • The court also recognized public policy "includes those transactions. National Fitness Institute. (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. they are not essential to the state or its citizens. wanton." 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.

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

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

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

• Qualified secondary assumption of the risk is conduct that is unreasonable and bars recovery.223 Blackburn v. . Discussion. This Court expressed no opinions on the subject. 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. 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.

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

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

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

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

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

Additionally.229 Renko v. finding that in these cases the action is not truly adversarial because both parties seek recovery from the insurance carrier. along with the Fourteenth Amendment of the Constitution. . Discussion. • 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. because of family medical insurance that would necessarily compensate the injured child. However. A majority trend agrees with Plaintiff. many courts allow for exceptions when the policies supporting it are inapplicable. families may be saddled with judgments they cannot afford to pay. 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. Although the parent-child immunity doctrine has not been abolished to the same extent as the interspousal immunity doctrine. this Court notes that these suits create court situations that are not truly adversarial because the insured has every incentive to lose.

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

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

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

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

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

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).214. his blood alcohol content was 0. 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 Appellants. Did the action of the park rangers fall under the discretionary function exception to the FTCA. Deuser over to the St. a matter of choice. so as to disallow a civil suit against the United States? Held. • In enacting the FTCA.3d 1190 (8th Cir. Rangers Mr. Mr. 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. Issue. The trial court judge dismissed the case. Brief Fact Summary. Deuser was left without money or transportation. Louis police. Vecera Citation. Mr. brought a claim against the Appellees. The rangers warned Mr. under the Federal Tort Claims Act (FTCA). The rangers decided to release Mr. or. The Appellants brought this wrongful death action against the Appellees under the FTCA based on the allegedly negligent acts of the park rangers. For their guidance. Judgment affirmed. was arrested and then released by National Park Rangers. However. The Handbook made it clear that the rangers had wide latitude in making enforcement decisions and that arrests . Mr. At some time he was killed by a motorist after wandering onto an interstate highway. • The Court first considered if the actions taken by the rangers were discretionary.236 Deuser v. Vecera)(Appellees). under the discretionary function exception. At the time of Ms. Deuser grabbing women on the buttocks. Facts. the United States and certain individuals including David Vecera (Mr.1998). Deuser wandered into a street and was killed. Deuser). After being released. Deuser and then arrested him when he urinated in public. but they were unable to process Mr. National Park Rangers were working a fair held on the grounds of the Jefferson National Expansion Memorial in St. Deuser away from the fair in a parking lot. 139 F. Albert Deuser (Mr. Vecera and Edward Bridges observed Mr. Louis. Synopsis of Rule of Law. Deuser's arrest due to their workload. The rangers attempted to turn Mr. 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. Yes. found to be drunk and obnoxious at a fair. Deuser's death. the rangers had a written Standard Operating Procedure (SOP) for arrests and the VP Fair Operations Handbook (Handbook). Vecera Deuser v.

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

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

. Further." • Based on these principles. Inc. 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. One of which applies when "an employee endangers others with a risk arising from or related to work. coming rule'. In other words. the court observed that a car accident stemming from the "breathing [of] lingering pesticide fumes for several hours" is foreseeable. Minimed." The applicable standard to determine whether this rule applies. "[a]lthough [Ms.] Hernandez's decision to drive home gave [the Defendant] an opening to raise the going-and-coming rule. This case illustrates how courts apply the 'going-and-coming rule' when an employee is driving. is a foreseeability standard." Discussion. "'[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.] Hernandez's job had contributed to the accident. an employee may not be in a position to drive after being exposed to such fumes.240 Bussard v. As such. the trial court's decision was incorrect.

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

. "[b]ecause the accident occurred on this road. and place of the deviation. and (6) the freedom allowed the employee in performing his job responsibilities. 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." The court concluded that "[w]hile his stop was not for emergency maintenance for his car. "[a] jury could find that an employee in a managerial position was given some freedom to attend to certain personal needs throughout the day. a jury could decide that Mr." • 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. 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. if the conduct is not a substantial deviation from the duties of employment. (3) the time consumed in the deviation." Additionally. Welch while at work are not outside the scope of employment." Further." Moreover. not at the service station. (2) the nature. Courts have identified several factors to be examined when conducting a "slight or substantial deviation" analysis.242 O'Shea v." • The court adopted a "slight deviation analysis" for this class of cases and determined that it was a jury question. 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. time." Discussion. the court observed "[i]n terms of time and place. (5) the incidental acts reasonably expected by the employer. (4) the work for which the employee was hired. the accident occurred minutes and feet from the direct route to Osco's District Office.

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

69 Cal. . The Defendant collided with the car of the Plaintiff. The trial court determined that Mr. Three months earlier the Defendant had her brakes overhauled by Peter Evanchik (Mr. The accident was caused by brake failure. Plaintiff appealed. Facts. Rath's (Defendant) collision with the Plaintiff. The owner was primarily benefited by the use of the car. claiming that the brake repair was a nondelegable duty. Judgment reversed and remanded. Evanchik's negligent repair effort was the cause of the accident and rendered judgment if favor of Defendant. 897 (1968). The trial court rendered judgment in favor of the Defendant and the Plaintiff appealed.2d 442. Another common duty that is generally considered nondelegable is a hospital's duty to provide emergency room care. Can a Defendant car owner delegate the responsibility of making a brake repair to an independent contractor? Held. Rath Citation. Ramona M. Discussion. a mechanic. The owner chooses the contractor and can insist on one that is financially responsible so the owner can demand indemnity.244 Maloney v. The Defendant. Issue. Evanchik). • Under strict liability. • The responsibility for minimizing the risk in this case falls on the car owner. 71 Cal Rptr. These sections suggest that a nondelegable duty is appropriate in this case. Synopsis of Rule of Law. No. regardless of whether the agent was an employee or independent contractor. 445 P. The owner's liability insurance properly distributes the costs. 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. 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. 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. Brief Fact Summary. Kathleen Maloney (Plaintiff) was caused by a mechanic's negligent effort to repair her brakes.2d 513. Rath Maloney v. are subject to liability for the negligence of the contractor.

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

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

the owner will be liable for accidents caused by the third person. Synopsis of Rule of Law. .W. when an owner gives permission to another to drive his car. Brief Fact Summary. Yes.W. • Under the Act [Minn.54]. An automobile owned by Hertz. leased to Codling and driven by Means. Discussion. Is a car rental agency liable under the Act when one of its cars is leased to one person. The need for owner-consent statutes has lessened because of "omnibus clauses" in standard automobile liability insurance clauses. Means Citation. 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. 226 N. 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. Means was uninsured and the parties stipulated he had been negligent. Neither of these situations is apparent under the present facts. who in turn gives permission to a third party.247 Shuck v.1965. struck an automobile in which the Shuck was a passenger. Judgment affirmed. providing that the insurance applies to anyone using the automobile with the permission of the owner. or that the subpermittee was driving without the permission of the permittee under conditions that approach conversion or theft. Means Shuck v. 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. Under the Minnesota Safety Responsibility Act (the Act).St. An automobile owned by Hertz. § 170. Facts. 229 Minn. 93.2d 862 (1949). 428. The purpose of the Act was to give injured persons more assurance of recovery and to encourage owners to purchase appropriate liability insurance. Codling (Codling) and driven by David Lynn Means (Means) struck an automobile in which Shuck was a passenger. but operated by another in violation of the rental agreement? Held. Bock. 39 N. leased to George A.2d 285 (1974). Issue. • In Foster v. Means was uninsured and the parties stipulated that he had been negligent. 302 Minn.

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

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

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

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

" Discussion. Inc. If an activity is deemed ultrahazardous." The court then stressed four reasons for this conclusion." Fourth and finally. Second. is not the type of activity that must be deemed ultrahazardous when the above-stated criteria are taken into consideration. "the target practice is of some social utility to the community. Civil Constructors. First. • The court observed "[t]he use of guns or firearms. 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. can be virtually eliminated by the exercise of reasonable or even 'utmost' care under the circumstances". even though great. "the risk of harm to persons or property." Third "the activity in this case was carried on at a firing range in a quarry located somewhere near the City of Freeport. even though frequently classified as dangerous or even highly dangerous. "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. strict liability is imposed and the elements of negligence need not be proven. .252 Miller v.

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

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

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

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

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

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

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

To permit a manufacturer to create demand for its product by representing they possess qualities that they in fact do not. Baxter v. In both cases. while barring recovery due to a lack of privity is unjust. 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. 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. Respondent's windshield was struck by a pebble. Brief Fact Summary. Ford Motor Company (Respondent). Synopsis of Rule of Law. claiming that the windshield was shatterproof. 168 Wash. Baxter's (Appellant). The advent of radio and other marketing materials have rendered the rule of caveat emptor unfair in many instances. 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. a Ford dealer. eye was injured when the windshield of his car shattered. The Appellant purchased a model A Ford form St. causing small pieces of glass to fly into his eye. Appellant claimed that the trial court improperly excluded evidence in printed materials produced by the Respondent. resulting in the loss of his left eye and injuries to the sight of his right eye. the injured party would be unable to discover the inherent problem with the product. • This case is similar to cases where plaintiffs have prevailed in suits for being supplied with wrongly labeled drugs.260 Baxter v. Judgment reversed. Issue. Citation. . John Motors. 456. Ford Motor Co. Facts. 12 P. No. 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. who had purchased the automobile from the Respondent. The Appellant. Ford Motor Co. 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. The court took the case from the jury and entered judgment in favor of the dealer and the Defendant.2d 409 (1932). • Appellant was provided with materials created by Respondent that claimed the windshield was made of shatter-proof glass.

261 Baxter v. 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. . Discussion. Ford Motor Co.

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

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

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

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

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

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

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

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. but nonetheless contended that vinyl should not be used even if no other material was available. (5) The user's ability to avoid danger. 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. specifically because of the slippery quality of the lining and inadequate warnings. 94 N. Yes. O'Brien v. Plaintiff claimed that Defendant was strictly liable for manufacturing and marketing a defectively designed pool. Plaintiff brought suit claiming that Defendant was strictly liable for the defectively designed pool. Muskin Corp. Factors relevant to this decision include: (1) The usefulness and desirability of the product. Citation. (Defendant). 463 A.269 O'Brien v. The Plaintiff. thus preventing the diver's head from striking bottom. (3) The availability of a safer substitute product. (4) The ability of the manufacturer to eliminate the unsafe character of the product. they slid apart and Plaintiff sustained injuries when his head hit the bottom. Synopsis of Rule of Law. Facts. Plaintiff arrived uninvited at the home of Arthur and Jean Henry and dove into their above ground pool made by Defendant. Judgment reversed and remanded. Issue. Muskin Corp. (2) The safety aspects of the product. 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. Muskin Corp. The trial court limited the jury's consideration to the adequacy of the warning.2d 298 (1983). • In contrast to manufacturing defects.J.169. 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. Defendant's witness testified that vinyl was the best material because it allowed outstretched arms to glide. 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. was injured when he dove into an above ground pool designed and manufactured by the Defendant. (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. Gary O'Brien (Plaintiff). • At trial. . As Plaintiff's hands hit the vinyl lined pool bottom. Brief Fact Summary. Based on risk utility analysis.

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

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

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

the present facts are not appropriate for such an application because other explanations for the accident are available. In a proper case. General Motors Corp. Discussion.273 Friedman v. Dissent. the principles behind res ipsa loquitur may be applicable to satisfy the requirements of strict liability. as the dissent pointed out. . Plaintiffs failed to submit sufficient evidence to infer that a defect existed at the time the car left the defendant manufacturer. However. 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.

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

However. This unfair rule caused a contributorily negligent plaintiff to be in a better position when claiming negligence than strict liability. General Motors Corp. The majority of jurisdictions today have applied comparative fault principles to strict products liability cases. Discussion. • A further objection to the imposition of strict liability is that jurors cannot compare plaintiff's negligence with defendant's strict liability. to recovery. the court is convinced jurors are capable of such a task. Dissent. 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)]. Concurrence. Omitted. .275 Daly v. Omitted.

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

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

This interpretation would provide complete immunity for design defect liability for the entire industry. • The Plaintiff's common law claims are not preempted by the Act. Inc. it does not preempt state rules that duplicate these federal requirements. Plaintiff claims that even if the Act does provide requirements. the Supreme Court determined that Congress had not expressed a clear intention to preempt these state common laws. .278 Medtronic. In the alternative. 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. v. 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. In this case. • 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. These general requirements in no way reflect the concerns Congress expressed regarding regulation of specific devices in the Act. Discussion. The legislative history of the Act in no way supports this argument. Lohr • Defendant's argument that Congress intended to bar all common law claims based on medical devices with the Act is implausible.

alleging that the used car was defective when it left the Defendant's lot. James Peterson's (Plaintiff) children were injured when they were struck by a used car. No. Peterson v. Lou Bachrodt Chevrolet Co. Mark Peterson (Mark) where struck by a car while walking home from school. • Strict liability has previously been applied to retailers. Citation. its owners. Judgment of the Appellate Court is reversed. Synopsis of Rule of Law. (defendant).E. Lou Bachrodt Chevrolet Co. 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. the court saw no justification in effectively causing used car dealers to become the insurers against defects. and the Defendant. including amputation of a leg. Maradean Peterson (Maradean) and her brother. The Plaintiff sued the Defendant. father of the children. Brief Fact Summary. Strict products liability will not be applied to the seller of previously used products. The Plaintiff. 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. • 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.2d 785 (1975). . Facts. Dissent.2d 17. Maradean died as a result of the accident and Mark suffered severe injuries. 329 N. The automobile that struck the Maradean and Mark was purchased used from the Defendant Lou Bachrodt Chevrolet Co. The Plaintiff. brought suit against the driver of the car. Lou Bachrodt Chevrolet Co. There is no justification for not applying the same standard to used car dealers. Under these facts.279 Peterson v. The majority of courts have declined to place the burdens of strict liability on the sellers of used products. Discussion. 61 Ill. 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. justified on the ground that their position in the market allows them to place pressure on the manufacturer to enhance the product's safety. Issue. (Defendant).

claimed that strict product liability was applicable to the Defendant. while the items used are simply instruments to accomplish the objective of treatment. 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. Plaintiff appealed. Citation. Judgment affirmed. All three causes were dismissed in favor of Defendant. Because the hospital is not a seller. Cedar-Sinai Medical Ctr. Synopsis of Rule of Law.Appell. Also. Facts. retailers play an integral part in the production or marketing enterprise. 180 Cal. the courts will not apply strict liability if the transaction is predominately a service. policy considerations counsel against imposition of strict products liability in such areas. Discussion. Cedars-Sinai Medical Ctr. The complaint contained three causes of action: negligence. the Defendant does not select the pacemaker and is in a poor position to test it or inquire about its function. The Plaintiff. it cannot be held strictly liable for injuries to the Plaintiff because of defects in the pacemaker. No. In cases that involve characteristics of both a sale and a service. • Additionally.Rptr. Unlike manufacturers and retailers. Strict liability is generally not applicable to services. Frances Hector (Plaintiff). Hector v.280 Hector v. However. . or at least enable the product to get from the manufacturer to the consumer. Plaintiff maintains this appeal on the theory that the hospital is a supplier of pacemakers and this should be subject to the same strict liability standard as other suppliers.App. The main function of the hospital is to furnish trained personnel and specialized facilities. • The difference between those to whom strict liability has been applied and hospitals is that the former are simply conduits in distribution.3d 493. • The imposition of strict products liability has been expanded from manufacturers to include retailers.1986). Cedars-Sinai Medical Ctr. 225 Cal. Did the trial court err in finding that Defendant was exempt from the application of the strict products liability doctrine? Held. increased liability in this area would result in higher costs for health care. The Plaintiff filed a complaint against the Defendant alleging personal injury from the implantation of a defective pacemaker. (Defendant) in relation to the implantation of a defective pacemaker. Issue. strict liability and breach of warranty. Brief Fact Summary. 595 (Cal. while the latter provides services as a healer of illnesses.

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

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

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

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

when the Defendant has committed an unintentional interference. using the same standard. . Additionally. negligence is the basis of liability. High Penn Oil Co. 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. Unlike in the present case. This entitles Plaintiff to recover temporary damages. Discussion. 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.285 Morgan v.

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

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

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

The testimony regarding property value should have been stricken and Defendant's should be granted a new trial based on this error. • Defendant also contends that a new trial should be granted based on the improper admission of testimony relating to depreciation in Plaintiffs' property value. Discussion.289 Winget v. no damage recovery can be allowed for diminution in 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. Inc. . If there is no public or private nuisance created by the use of property.

The Plaintiffs. 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. alleging injury to their property from dirt. This court balances the equities between the two parties. and vibrations interfering with their property rights.Y.Appell. Citation. or attempt to use this private litigation to define broad public objectives.290 Boomer v. 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.E. Atlantic Cement Co. However. Plaintiffs brought an action for an injunction and damages.'s (Defendant) neighboring cement plaint. • 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. Atlantic Cement Co. with little incentive for . • One alternative would be to issue an injunction. Inc. The threshold question in this case is if the Court should resolve the litigation between the parties now.2d 312 (N. smoke. Dissent. Atlantic Cement Co.. • There is a growing public concern for the control of air pollution.2d 870. Synopsis of Rule of Law. but allowing neighbors to recover present and future damages created by the nuisance. Boomer and other neighboring land owners (Plaintiffs). brought a nuisance action against the Defendant.Y. No. Was the trial court correct in denying Plaintiffs an injunction when Defendant's activities are found to create a nuisance. smoke. and vibrations created by the plant. At trial a nuisance was found.2d 219. Issue. This court finds that an effective policy for the elimination of air pollution is beyond the scope of this court's jurisdiction.Y. but an injunction was denied.. claiming damages and an injunction due to dirt. 26 N. Inc. temporary damages were allowed.S. 257 N. The majority effectively licenses a continuing wrong. allowing Defendant the opportunity to develop technical advance to eliminate the nuisance. Brief Fact Summary. Boomer v. 309 N. Inc.1970). refusing to close down a large cement plant even though it creates a nuisance. but the value of Defendant's operation exceeds the nuisance created? Held.. Order reversed and case remanded. Following the doctrine in this case would have the effect of closing Defendant's large plant immediately. Facts. but postpone it until a future date. an injunction will be granted regardless of a marked disparity between economic consequences. Defendant operated a large cement plant.

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

292 Spur Industries. the trial court was correct in permanently enjoining operation of Defendant's feedlot. feedlot based on a public nuisance claim. a residential community. his claim would be barred by the doctrine of coming to the nuisance. but becomes a nuisance because of a nearby residential area. Plaintiff brought suit requesting a permanent injunction of Defendant's operations. However.'s (Defendant). The Defendant had operated a cattle feedlot in an urban area outside of Phoenix since before 1950. brought suit for an injunction of the Defendant. 494 P. Judgment affirmed in part. Facts. claiming that remaining lots were unfit for residential development because of the operation Defendant's feedlot. Citation. Del E. The Plaintiff. 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. Yes. Defendant had been established in the area long before Plaintiff built residential property nearby. Webb Development Co. Therefore. Webb Development Co. Spur Industries. • 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.2d 700 (1972). 178. some distance from Defendant. this Court has no difficulty in finding that the operation of Defendant's feedlot is an enjoinable public nuisance. In 1959 the Plaintiff began to develop Sun City. The development expanded. Webb Development Co. reversed in part. If Plaintiff were the only party injured. Because Plaintiff brought people to the nuisance to the . Del E. Synopsis of Rule of Law. damages are the only remedy. However. • Plaintiff's suit alleged that Defendant's feedlot was a public nuisance because of flies and odor created by the feedlot. (Plaintiff). Brief Fact Summary. which must move or cease operation? Held. the developer must indemnify the enjoined business if the impending injunction was foreseeable by the developer. Issue. Spur Industries. When the operation of a business is lawful in the first instance. Defendant appealed and Plaintiff cross-appealed. and remanded. Inc. which makes the granting of an injunction necessary. Inc. until 1967. 108 Ariz. may the business be enjoined by an action brought by the developer of the residential area? • If the nuisance may be enjoined. v. Some courts have held that in balancing of the conveniences cases such as this. v. When a developer has brought into a previously agricultural or industrial area the population. Inc. Del E. may the developer be required to indemnify the operated of the business. when Sun City was with 500 feet of Defendant.

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. Inc. Webb Development Co. Del E. Discussion. this is not an absolute law when other factors are more or less balanced.293 Spur Industries. Plaintiff must indemnify Defendant for the reasonable cost of either moving the business or shutting down. v. . However. foreseeable detriment to Defendant.

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

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

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

Reader's Digest Ass'n Grant v. claiming that the Plaintiff. represented the Communist party. Brief Fact Summary. Reader's Digest Ass'n Citation. Plaintiff brought a libel suit claiming that the article was untrue and malicious. The trial court dismissed the suit for insufficiency in law on the face of the claim. Facts. even if these people may be "wrong-thinking. . Even if the thinking is that of a small part of the community. 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.297 Grant v. 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. • The interest at stake is that of the person assailed. So long as some people feel so. This person may value his reputation amongst those who do not embrace the prevailing moral standards. 151 F. Judgment reversed and remanded. Plaintiff brought a libel suit. Reader's Digest Ass'n (Defendant). it is sufficient to consider the cause of action. No. The trial court dismissed the complaint for insufficiency in law upon its face. Grant (Plaintiff). Issue.2d 733 (2nd Cir. It is not enough to say that "right-thinking" people would not believe this article to be damaging to plaintiff's reputation. The Defendant published an article alleging that Plaintiff represented the Communist Party in Massachusetts. 1945). Synopsis of Rule of Law. 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.

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

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

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

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

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

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

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.

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

Discussion. Justice Abe Fortas (J. Black) and Justice William Douglas (J. Concurrence. In support of its decision. Douglass) stated there should be an absolute privilege in defamation cases involving public figures. . Fortas) argued that the Defendant has a duty to check the reliability of a statement. Dissent.312 St. 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. Thompson the evidence against the Defendant was insufficient to meet the reckless disregard requirement for actual malice. Justices Hugo Black (J. Amant v.

On November 1.. Although a precise definition cannot be fashioned. Ohio.. A newspaper story about a bribery scandal surrounding an incumbent candidate for a municipal judgeship.] and "exercise independent judgment and determine whether the record establishes actual malice with convincing clarity" in the case before it? Held. 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-. A month before the election. Connaughton Harte-Hanks Communications. it was determined that the story was published with actual malice.' " The majority found certain evidence that the Court of Appeals did apply a lesser standard. which took place on November 8. The Respondent. Daniel Connaughton (the "Respondent"). the statements must have been made with a reckless disregard of the truth. v.cannot provide a sufficient basis for finding actual malice. 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. was an unsuccessful candidate for a municipal judgeship in Hamilton. was the publisher of the Journal News. 491 U.whether to promote an opponent's candidacy or to increase its circulation-.S. Inc.' or must have 'entertained serious doubts as to the truth of his publication. Although a precise definition of actual malice cannot be fashioned. Dolan's Director of Court Services resigned and was arrested for bribery. probable falsity. Justice John Paul Stevens ("J. 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. it is clear that the publisher must have a " 'high degree of awareness of . 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. a newspaper that supported the reelection of the incumbent municipal judge. The Court of Appeals affirmed. of influencing the grand jury investigating the alleged bribes.' " The Respondent brought suit and the jury found that the November 1. Inc. Synopsis of Rule of Law.' " Facts." To satisfy the actual malice standard. Did the Court of Appeals appropriately follow [Bose Corp. James Dolan ("Mr. Harte-Hanks Communications. Inc. (the "Petitioner"). 1983. Connaughton Citation. 657 (1989) Brief Fact Summary. On the same date. a grand jury was investigating the bribery charges. Dolan"). it is . Additionally. Stevens").000 in punitive damages." Issue. Mr. Inc. 1983. The Petitioner. v. writing for the majority. Consumers Union of the United States. at a minimum. 1983 story was both defamatory and false. accused another candidate for the same judgeship. The jury awarded the Respondent $5000 in compensatory damages and $195.313 Harte-Hanks Communications. v.

" Discussion.. Stevens concluded the Court of Appeals applied the correct substantive standard. J.314 Harte-Hanks Communications. 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. 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' ". the "reviewing court must 'examine for [itself] the statements in issue and the circumstances under which they were made to see . . • The court concluded "the evidence in the record in this case.." but reached the conclusion in a different manner. v. whether they are of a character which the principles of the First Amendment .... The majority "agree[d] with the Court of Appeals that the evidence did in fact support a finding of actual malice. Connaughton clear that the publisher must have a " 'high degree of awareness of . • The court next considered whether the Court of Appeals considered the factual record in full.. is 'unmistakably' sufficient to support a finding of actual malice. Accordingly.' " J. protect'".' or must have 'entertained serious doubts as to the truth of his publication. when reviewed in its entirety. Inc. This court offers in interesting discussion about the function of a reviewing court when faced with a defamation matter. probable falsity.' " As such.

Issue.S.000. . but had relied on its author's extensive research. The Plaintiff. The Defendant. The Defendant published an article entitled "Frame-Up: Richard Nuccio and the War On Police" that purported to show that Nuccio was innocent. Synopsis of Rule of Law. published an article that charged that the Plaintiff. Inc. 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 appealed. The article also falsely charged that the Plaintiff was a communist and had engaged in communist activities. Robert Welsh. If it were. the Supreme Court have been especially anxious to assure to the freedoms of speech and press that "breathing space" essential to their fruitful exercise. The New York Times rationale does not extend to private individuals. Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury. Inc. a reputable attorney. 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. however. The Plaintiff filed a libel action and won a jury verdict for $50. 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.315 Gertz v. Facts. • The First Amendment of the United States Constitution (Constitution) requires that we protect some falsehoods in order to protect speech that matters. Judgment reversed. Brief Fact Summary. The editor of the article did not do an independent investigation. a policeman who had previously been convicted of second-degree murder for the death of young Nelson. Gertz (Plaintiff). In Supreme Court's continuing effort to define the proper accommodation between these competing concerns. (Defendant). Citation. The need to avoid self-censorship by the news media is. Robert Welsh. was retained by the Nelson family to bring a civil suit against Richard Nuccio (Nuccio). an attorney. Inc. Gertz v. 418 U. framed a police officer and was a communist. 323 (1974). 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. that his prosecution was a communist frame-up and that the Plaintiff was an architect of the frame-up. not the only societal value at issue. Robert Welsh. The Defendant sued the Plaintiff for libel.

beyond that boundary. In this case. In these circumstances. To J. Concurrence. . Therefore. Despite the substantial abridgment of the state law right to compensation for wrongful hurt to one's reputation. • In the tort of defamation. Justice Byron White (J. J. White it is quite incredible to suggest that threats of libel suits from private citizens are causing the press to refrain from publishing the truth. as contrasted with the public official and the public figure. The press today is vigorous and robust. the New York Times rationale does not extend to private individuals. 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. by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention. even though he has done nothing to invite the calumny. A private individual is more vulnerable to injury and needs greater protection. A public figure or official has greater access to the media to counteract false statements than private individuals normally enjoy. Justice Harry Blackman (J. public figures are different than private individuals. Dissent. 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 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. knowing falsehood or reckless disregard of the truth will now be required. 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.316 Gertz v. 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. is wholly innocent of fault and is helpless to avoid his injury. Discussion. Those who. a State is free to define for itself the appropriate standard of media liability so long as it does not impose liability without fault. Robert Welsh. Inc. Punitive damages may not be recovered by showing malice in the traditional sense of ill will. The Supreme Court would now shift this risk to the victim. • The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Blackmun) argues that the Supreme Court today refuses to apply New York Times to the private individual. It thereby fixes the outer boundary of the New York Times doctrine. and says that. 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. 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.

when they are reporting on issues of "public concern". form. The Supreme Court of the United States granted certiorari. but one of its employees had. and Defendant brought suit for libel. when its actions create slander and/or libel against another private party. which reinstated the verdict. Inc. concerning public issue. preclude it from being sued for libel. v. (Petitioner) sent a report to five subscribers. Issue. filed bankruptcy. it could not seek protection under the First Amendment.317 Dun & Bradstreet. Dissent. The trial court granted a new trial. 749 (1985). indeed. in considering whether the Defendant's speech was protected by the First Amendment.00 in punitive damages. • In reaching its conclusion. Inc. Inc. Greenmoss Builders. and as such. Synopsis of Rule of Law. . Discussion. Inc. punitive damage awards should be restrained. (Respondent). When respondent learned of the error. and $300. Dun & Bradstreet. Petitioner sent out a notice of the mistake. Greenmoss Builders. based on the harm it incurred as a result of the erroneous report. Respondent was awarded $50. maintaining that the constitutional requirements for a suit for libel did not apply to a non-media defendant. Justice Brennan dissented. a private subscription service.000.00 in damages. and Respondent brought suit for liable.S. the Court found that the Defendant. Whether the first amendment rights of the maker of an expression. Respondent was actually in good credit standing. but Respondent appealed to the Supreme Court of Vermont. The report was false. and context. The First Amendment does not protect the speech of a nonmedia party. 472 U. non-media defendants cannot use that same protection when their actions cause damages to private parties. it called Petitioner. the result of the Petitioner's use of a 17-year-old high school student to review the bankruptcy proceedings. The report was proven false. and asked for a correction.000. explained the error. regarding the credit rating of Greenmoss Builders. In this case. Citation. when it is not a media defendant? Held. indicating that Respondent had filed a voluntary petition for bankruptcy. v. Inc. was not reporting on an issue of public concern when it made its report regarding the Plaintiff. Brief Fact Summary. Inc. the Court focused on content. Facts. but refused to disclose its subscribers. Petitioner sent a credit report to five subscribers. While the First Amendment affords media defendants great protection. Affirmed. noting that although this type of speech is not central to the meaning of the First Amendment. Dun & Bradstreet.

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

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

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

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

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

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

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

but the Court of Appeal reversed finding that a defense to another cause of action. Inc. various conversations between herself. et al. The undercover reporter audio and video taped certain interactions she had with an employee of the "telepsychic company". Lescht").325 Sanders v." Further. Inc. have a . American Broadcasting Companies. Inc. The Plaintiff. is not a binary. 1999) Brief Fact Summary. The Defendants. Issue. 85 Cal." Facts. Sanders v. Mark Sanders (the "Plaintiff") was also employed by PMG. a reporter and her employer American Broadcasting Companies. Ms. Lescht obtained employment as a "telepsychic" with the Psychic Marketing Group (PMG). Yes. The court relied upon [Shulman v.. (the "Defendants"). were Stacy Lescht ("Ms.' the concept of 'seclusion' is relative. Synopsis of Rule of Law." The court observed that seclusion is not an absolute construct and "[l]ike 'privacy. Ms. An undercover reporter obtained a job at a "telespsychic" company." • "[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. 20 Cal. established that the Plaintiff had no reasonable expectation of privacy in his workplace conversation because they could be overheard by others in the office. There are degrees and nuances to societal recognition of our expectations of privacy: the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law. The court held "where the other elements of the intrusion tort are proven. all-or-nothing characteristic. including the Plaintiff. 4th 907. 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. consequently. under some circumstances.2d 909 (Cal. Rptr. Group W Productions. et al. "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.. with a hat cam. and other coworkers. 978 P. Lescht wore a wire while working in one of PMG's offices and videotaped. "[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. American Broadcasting Companies. an employee may. a violation of Penal Code section 632. The Plaintiff brought suit alleging various causes of action including "the tort of invasion of privacy by intrusion. for purposes of the intrusion tort. Citation.] and "adhere[d] to the view suggested in Shulman: privacy." The jury found for the Plaintiff on the invasion of privacy by intrusion action. 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. Inc.2d 67.

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

" Four elements must be proven to recover under this cause of action including: "(1) publicity. Gottschalk found the child and documented the Plaintiffs' involvement in the child's life. concerning the abandonment of a baby.E. "[C]laims for invasions of privacy by publication of true but 'private' facts are not cognizable at law in this State. liability under this tort attached "where the matter publicized is of a kind that (a) would be highly offensive to a reasonable person. Gottschalk was married to Lee Gottschalk ("Mr. 372 S. "[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. Gottschalk and Mrs. the court only concerned itself with the "private facts branch of the invasion of privacy tort. Maxon told Mrs. 1984. The publication of the stories allegedly caused certain persons emotional distress. Post Hall v. Gottschalk were staying. After those few weeks. dated July 20. Gottschalk at the hotel referenced in the first article. Synopsis of Rule of Law. talked about how Mr. (2) private facts. and (b) is not of legitimate concern to the public. 259. Gottschalk and Mrs.C. Rose Post (the "Defendant"). and in the last analysis what is proper becomes a matter of the community . Gottschalk's adopted child. The alleged abandonment took place in September of 1967. Post Citation. No. 323 N. 1984 edition of the Salisbury Post. A second article. brought an action against the Defendant.2d 711 Brief Fact Summary. Certain true and accurate facts about the adoption of a child were published in two newspaper articles. Mr. The July 18.327 Hall v. and informed the paper's readers about the hotel where Mr. Issue." Facts. and they wished to find Mrs. 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. Gottschalk and Mrs. Maxson")." As to the fourth. 1984 article discussed the details of their unsuccessful search for the baby. The Plaintiffs." In other words. Gottschalk that adoption papers were signed. a reporter for the Salisbury Post. Somebody called Mr. Mrs. authored by the Defendant. allegedly made arrangements for a babysitter named Mary Hall to keep the baby for a few weeks. The individuals who abandoned the baby. Susie Hall and her adoptive mother Mary Hall (the "Plaintiffs"). and informed them about the whereabouts of the missing child. For the purposes of this decision. Aledith Gottschalk ("Mrs. The Defendant authored a story published in the July 18. the court observed "[i]n determining what is a matter of legitimate public interest. Gottschalk") and Clarence Maxson ("Mr." This was an issue of first impression for the court. According to the Restatement. (3) offensiveness. the branch of the invasion of privacy tort referred to as "the public disclosure of public facts. Gottschalk") in 1984. and (4) absence of legitimate public concern. account must be taken of the customs and conventions of the community. The court recognized that all the facts published in the two articles were true and accurate in every respect.

' " The concurring justice agreed with the Court of Appeals. 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. with which a reasonable member of the public. and felt that summary judgment was appropriately entered against the Plaintiffs. Gottschalk "returned to Salisbury in search of her daughter. the stories were of a public interest and concern because Mrs.328 Hall v." ." • The court first observed "decisions of the Supreme Court of the United States. scholarly articles and the Restatement make it clear that the private facts branch of the invasion of privacy tort is. which found that the "the resolution of the conflicting rights [freedom of the press." Discussion. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled. at the very best. and becomes a morbid and sensational prying into private lives for its own sake. whom she had abandoned seventeen years earlier. The justice would have concluded the article did not constitute "morbid and sensational prying into private lives for its own sake. "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." " In determining whether something was of legitimate public concern." Instead." Based on these two observations." Second. the concurrence advocated the adoption of the Restatement standard set forth above." Concurrence. for the defendant's advantage. secured by the First Amendment. with decent standards. and (4) publicity which places the plaintiff in a false light in the public eye. constitutionally suspect. of the plaintiff's name or likeness. (3) public disclosure of private facts about the plaintiff. (2) intrusion upon the plaintiff's seclusion or solitude or into his private affairs. would say that he has no concern. "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. 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. Post mores. However. 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. The concurring justice agreed with the majority.

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

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

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

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

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

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

335 CHAPTER XX. Misuse Of Legal Procedure .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

. Mr. Yes. and Mrs. 334 P. The Plaintiffs sued the Defendants for deceit. Mr. by the jury. The Defendants sold the Plaintiffs a house. Issue. 2d 471.355 Sorenson v. 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. given that the Defendant's gave an exact figure that was a statement of fact. Synopsis of Rule of Law. • 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.000. 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. the jury was instructed to use. Facts. Gardner Sorenson v. Sorenson (Plaintiffs). not an opinion. alleging they misrepresented the value of the property. • The rule is that misstatements of law do not make the speaker liable for the misrepresentation because people are presumed to know the law. and Mrs. a judgment of $2. Gardner Citation. • The Plaintiffs sued the Defendants and were awarded. This is not a defense to the Defendant's statements about the construction of the house because they are not. there is no question. 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. so much. and that they were third parties to the transaction and made no representations to the Plaintiffs. a piece of property. As for the statement about the well. sold the Plaintiffs. Are the Defendant's liable for the statements in question? • Did the court err in instructing the jury how to award damages? Held. • The Defendants appealed. Brief Fact Summary. on both counts. The Defendants. 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. Gardner (Defendants). In determining the value of the house as represented.

therefore. this case shall be reversed and remanded. • As for the instructions. 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. They acknowledged the basic.356 Sorenson v. The court ponders the problem of representations of fact and representations of law. there can be no action for misrepresentation of the law. Gardner • The Court did not consider the question of the Defendants being third parties because their counsel did not raid this objection during trial. though perhaps unreasonable. 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. assumption. Discussion.

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

Issue. the Plaintiff alleged that the Defendant said the value of the land was much higher than it was. • 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. • During negotiations. The Plaintiff and the Defendant made a contract to buy land. • The Plaintiff further. The Defendant also appealed the court's not granting the Defendant's motions for dismissal and directed verdict. one of the Plaintiff's complaints is that the Defendant said he . on both counts. The Defendant said another party offered to buy the property for a certain amount of money when no such offer had been made. the Defendant denied all the allegations of the Plaintiff. did not do so. Synopsis of Rule of Law. 55 P. • At trial.Thielemann Burgdorfer v. but the Defendant had no intent of doing so and that he. Failure to follow the Statute of Frauds (SOF) is not a defense in a case alleging deceit. alleged that the Defendant told the Plaintiff he would pay off the $500 mortgage on the land. • In the negotiations for the sale.1122. Brief Fact Summary. • The trial court ruled in favor of the Plaintiff. in fact.2d. 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 and the Defendant made a contract for the Plaintiff to buy and the Defendant to sell land.Thielemann Citation. including the promise to pay off the mortgage. In this case. 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. No. Facts. 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. 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.358 Burgdorfer v.

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

plaintiff need not show the actual value of the misrepresented item at the time of purchase to make a case. • The Plaintiff found out. • 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. The Defendant told the Plaintiff that the car was new.. (2)if the fraudulent representation also amounted to a warranty. In fact. It is enough that plaintiff show there was deceit and that plaintiff incurred damages as a result of the deceit. Rockville Motor Co. 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. Inc. He sued the Defendant and had an expert witness testify as to the amount of money the repairs would cost. The Defendant. Facts. Brief Fact Summary. 278 A. • The Plaintiff noticed the mileage on the speedometer as he was driving the car home. his damages will be measured under that rule. sold the Plaintiff. In fact. He returned to the Defendant's place of business.. The Plaintiff sued the Defendant for the costs the Plaintiff would incur to fix the car. as represented by the Defendant. Rockville Motor Co. a few months later.. it had about 2000 miles on it and had been in an accident. Synopsis of Rule of Law. there were 2000 miles on the speedometer and the car had been in an accident. (Defendant). In a case of fraud or deceit. where the body was severed. Inc Hinkle v. The Plaintiff bought a car from the Defendant. claiming it was "new". (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 . • 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.2d 42. that the car had been in an accident.360 Hinkle v. Inc Citation. Rockville Motor Co. Issue. Hinkle (Plaintiff) a car. Was the trial court correct in granting the directed verdict in favor of the Defendant? Held. 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. No.

Discussion. that rule will be employed. 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 Plaintiff made a prima fascia case for deceit and showed that he sustained damages in having to repair his car."" • In this case.. .. the court will award damages equal only to the loss sustained.361 Hinkle v. Inc representations. and (4) where the damages under the benefit-of-the-bargain rule are proved with sufficient certainty.

Interference With Advantageous Relationships .362 CHAPTER XXII.

an engineer and boiler maker business. . 524 (1892). Plaintiffs are not required to prove special damages in order to receive compensation for false and malicious publication of its business affairs. Evans Citation. The court seems to reserve the requirement of proving special damages to more complex defamation cases. Defendant's appeal is dismissed. 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. Issue. The appealed because Plaintiff failed to show any special damages for its injuries. however. Ratcliffe and Sons (Plaintiff). No. General damages need to be proven in order to receive compensation for false and malicious statements. cause him damage. and did in fact. Plaintiffs are only required to show general damages. Facts. 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. which was intended to. Whether special damages need to be proven at trial to receive compensation for false and malicious publication of Plaintiff's business affairs? Held. Synopsis of Rule of Law. 2 Q. False and malicious information is published in a county newspaper about a boiler maker business. The opinion. Evans Ratcliffe v. fails to outline which cases would require a showing of special damages.363 Ratcliffe v. (Justice Bowen). Discussion. The trial court awarded Plaintiff monetary damages for Defendant's false statement purposely made about the Plaintiff.B. Brief Fact Summary.

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

(Notice that there is no mention of a motion to dismiss. Discussion. They did not act. 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.365 Horning v. . nor did they act for the purpose of harming the Martins or the Hornings. reasonably believe that he had title to the land in question.) The Plaintiff was privileged to bring the suit to protect the claim he believed he had on the property. knowing that they did not have title. The court determined that the Plaintiff had enough evidence pointing to that conclusion to bring the suit. The Horning's claim for slander of title did not succeed because the Plaintiff did.

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

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

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

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

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

would normally do to increase one's own business. but not with their conclusion that the trial court's instructions were correct. 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. Concurrence. Discussion..A. Mere evidence that the disruption happened is not enough to make a case for the tort of interference with economic relations.S. The judge agreed with the court's decision.371 Della Penna v. Inc. . U. Toyota Motor Sales. 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.

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

since Lumley v. The common law has recognized. the Court turned to whether the Plaintiff is entitled to relief. the in person solicitations that the Defendants engaged in. Discussion. Furthermore. Barish. Levin and Creskoff v. the Defendants betrayed the Plaintiff's trust by trying to take the client's business away from the Plaintiff • Dissent. The Defendants' activities did not put undue pressure on the clients to choose their services over the Plaintiff. hindering their ability to make an intelligent. In light of what society continues proper. intelligent decision that the First Amendment of the Constitution is trying to protect. the tort of intentional. their solicitation gave the clients the chance to make an informed. explores the relationship between the tort and the First Amendment constitutional protection of commercial speech. Rather. Rather. Daniels.373 Adler. Gye. . it gave the clients the option to have the Defendants represent them. unprivileged interference with contractual relations. The court's decision. could put the clients on the spot and pressure them to choose the Defendants over the Plaintiff. as opposed to exploring the relationship between the tort of intentional interference with contractual relations and excepted business practice in a competitive market economy. In turn. informed decision. The Plaintiff trusted the Defendants to work as its agent to serve these clients. 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. It is clear that the Defendants sought to interfere with the contractual relationship between the Plaintiff and its clients. thus. • Since the Court determined that the Defendant's activities are not protected by the First Amendment of the Constitution. the court found that the Defendants action offended the "rules of the game".

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

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

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

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

and loss of consortium.378 Nash v. 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. Minor children do not have a cause of action against a woman who lures their father away from their family. (Justice Romang). The court does not clearly state why a child could not bring this type of action. Common law did not recognize a child's right to sue his or her father in this situation. A mother (Appellant) brings an action on behalf of her minor children against a woman who allegedly lured their father away from their family. Baker Nash v. Issue. interference with their family relationships. 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. The judgment of the lower court is affirmed. 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. The fact that the spouse has an action for alienation of affections. and other inducements. . sexual charms. 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. loss of consortium." The Appellant sought to recover actual and punitive damages for alienation of the father's affections. Synopsis of Rule of Law. Facts. No. which the court predicts will continue to increase. 522 P. or criminal conversations does not require that a cause of action be given to the child. 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. Baker Citation. Brief Fact Summary. The mother of five minor children.2d 1335 (1974). Discussion.

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

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

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

alleged that Martin Weaver (Weaver). Plaintiff also alleges that Weaver continued to seek entry into the home. The means chosen for this purpose included the use of temporary restraining orders. Weaver Nearing v. they allege that the proximate result of their failure to arrest Weaver. The restraining order clearly established a duty of Defendants toward the Plaintiffs under the Act. "[The Act] prescribes that a peace officer 'shall arrest and take into custody a person without a warrant' when the officer has probable cause to believe that an order under the statute has been served and filed and that the person has violated the order. Synopsis of Rule of Law. Nearing's husband. Weaver again illegally entered Plaintiffs' home.2d 137 (Or. In addition. 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. Nearing suffered acute emotional distress. difficulty sleeping. Issue. and temporary child custody orders. Plaintiffs state that that police officer called to the home declined to arrest Weaver because he had not seen the husband on the premises. and psychological impairment. In 1977. under tort law. After the order was issued.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. Facts. New Orleans (Defendants). 670 P. Helens. Brief Fact Summary. affirmed by the court of appeals. Weaver Citation. The Act imposes a specific duty by statute for the benefit of individuals previously identified by a judicial order. assaulting the Plaintiffs and damaging their home. was that Ms. Henrietta Nearing and her two children (Plaintiffs). injunctions. A restraining order was issued against Weaver. the children's father and Ms. for resulting harm to the psychiatric and physical health of the intended beneficiaries of the judicial order. 1983). and mandatory provisions for a warrantless arrest upon probable cause of a person believed to have violated such an order. (Justice Linde). The case is on appeal from the circuit court's summary judgment for Defendants. This case presents a specific duty of the Defendants . Plaintiffs' complaint states that the police officers of St. 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. unlawfully entered their home and assaulted their family. Defendants can be held liable under the ordinary tort elements of a negligence action and for duties owed to the Act's intended beneficiaries. had knowledge that Weaver violated his restraining order. Officers who knowingly fail to enforce a judicial order under the Act are potentially liable. 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." 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. Yes.

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. 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. Discussion. On its own. the majority has converted the case to one of strict liability without any argument by the parties. It is difficult to determine whether the court. The court. Concurrence. 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.383 Nearing v. created a strict liability tort. in this case. In its own defense. Dissent. (Justice Peterson). The majority's utterance is the first time that any strict liability doctrine has been discussed or considered. the court states that the decision did not create strict liability because the liability is not absolute and that there are potential defenses. The majority opinion is inconsistent with a number of recent decisions of this court. however. as suggested by the dissenting opinion. 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 decision of the court of appeals affirming the summary judgment must be reversed and the case remanded to the circuit court for further proceedings. Weaver toward Plaintiffs. (Justice Linde). However. .

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

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

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

the Supreme Court found that a private right of action must be based on §602. here.]" J.387 Alexander v.' that has violated the regulation or 'by any other means authorized by law[. Accordingly. Scalia then discussed the Supreme Court's past precedents concerning private rights of actions. but on the agencies that will do the regulating. J. Scalia concluded the methods §602 provided to enforce its authorized regulations. J. or part thereof.' " The majority then observed. 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. "[s]ection 602 is yet a step further removed: It focuses neither on the individuals protected nor even on the funding recipients being regulated. Sandoval regulation] against a defendant for acts not prohibited by the text of [the statute]"." • Additionally. did not "manifest an intent to create a private remedy". the majority began and ended their "search for Congress's intent with the text and structure of Title VI. §602 limits agencies to "effectuat [ing]" rights already created by § 601. To the contrary." Discussion. Scalia then found that legal context should only be considered to clarify the text. • As such. ." The court observed the text of §602 did not include "rights creating" language stressed in past precedent." Additionally. statutory intent is significant and the majority refused to create a private cause of action Congress did not intend. 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. "[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. This case provides an interesting discussion about how Congress interprets statutes that arguably allow for private causes of action." Accordingly. • J. Section 602 allowed agencies "to enforce their regulations either by terminating funding to the 'particular program.

New York. in the conduct of such enterprise's affairs through a pattern of racketeering activity. After the Plaintiffs purchased the land. the activities of which affected interstate or foreign commerce.. gambling. § 1962. "Further. (2) an injury to business or property.388 De Falco v. whether the Town of Delaware can be treated as a RICO enterprise. a " 'pattern of racketeering activity' requires at least two acts of racketeering activity.. and any union or group of individuals associated in fact although not a legal entity. one of which occurred after the effective date of this chapter and the last of which occurred within ten years . §1962(c) of the Racketeer Influence and Corrupt Organizations Act ("RICO"). Sullivan County. First." Further. 244 F. association. (2) an injury to business or property. the Defendants threatened and intimidated the Plaintiffs to give over the property or employ certain individuals. bribery and extortion. Mr. kidnapping.. or other legal entity. robbery. a plaintiff must show: '(1) a violation of the RICO statute. Bernas De Falco v.C.. a plaintiff must show: '(1) a violation of the RICO statute. and Mrs.." Additionally. directly or indirectly participated in an enterprise. involved with the Township of Delaware's local governance. directly or indirectly. "[t]o establish a violation of 18 U. Bernas and others (the "Defendants"). 18 U. 2001) Brief Fact Summary.S. The Plaintiffs brought suit under 18 U." • The Court analyzes each of §1962's elements. to conduct or participate. after the commission of a prior act of racketeering activity." Racketeering activity "is broadly defined to encompass a variety of state and federal offenses including. A township engaged in certain practices to ensure that the purchasers of a tract of land did certain things with the land.C. § 1962(c).' " Facts. a plaintiff must show "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. The Plaintiffs. arson. Was a RICO violation established? Held. Bernas Citation. "to establish a violation of 18 U. The Defendants threatened to withhold certain developmental permits if the aforementioned demands were not met. New York. interstate or foreign commerce. and (3) that the injury was caused by the violation of Section 1962.3d 286 (2d Cir.' " Section 1962 "makes it unlawful for any person employed by or associated with any enterprise engaged in. § 1962. Synopsis of Rule of Law.C. § 1962(c) then. Defalco and others (the "Plaintiffs")." A RICO enterprise "includes any individual. The court concluded that . corporation.C. partnership. and (3) that the injury was caused by the violation of Section 1962. Issue. Partially. "To establish a RICO claim. or the activities of which affect. through the commission of two or more acts constituting a pattern of racketeering activity. murder. inter alia. sought to develop certain land in the Township of Delaware.S. a plaintiff must establish that a defendant.S.C. were certain public officials and private individuals.S. 18 U. "To establish a RICO claim. The Defendants.S.

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

the number of both participants and victims. there must be some evidence from which it may be inferred that the predicate acts were the regular way of operating that business. Accordingly.390 De Falco v. • "In assessing whether or not the plaintiff has shown open-ended continuity. 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. This case offers an interesting discussion about Civil RICO actions. and the presence of separate schemes are also relevant in determining whether closed-ended continuity exists.' " Further. Discussion." 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." On the other hand "where the enterprise primarily conducts a legitimate business.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.' " The court observed. It observed that to establish a pattern. other factors such as the number and variety of predicate acts. ." The court concluded "[i]n short. the nature of the RICO enterprise and of the predicate acts are relevant. and that they amount to or pose a threat of continued criminal activity. 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. "[i]n assessing whether or not the plaintiff has shown open-ended continuity. Based on this evidence. there was sufficient evidence from which a reasonable jury could conclude that the escalating nature of the Bernas defendants' demands-. "[a]lthough closed-ended continuity is primarily a temporal concept." Further. "a plaintiff must also make a showing that the predicate acts of racketeering activity by a defendant are 'related. the jury could reasonably have concluded that the Bernas defendants would have continued extorting the plaintiffs into the future. or that the nature of the predicate acts themselves implies a threat of continued criminal activity. Bernas • The court then addressed whether a "pattern of racketeering activity" was established.' or 'open-ended continuity." • The court finally addressed the proximate causation issue and found that the causal connection was too weak.

Coastal Emergency Svcs. Citation. The cap is constitutional despite the Plaintiffs various arguments stating otherwise: the cap does not violate the Seventh Amendment right to a jury trial. Plaintiff died of bacterial pneumonia and bacteremia after being negligently handled by a hospital physician. The court makes it clear that constitutional challenges to damage caps are quit difficult to win. it does not amount to the taking of property under the Fifth Amendment. 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 argues that the cap is unconstitutional.391 Pulliam v. Brief Fact Summary.000. Concurrence. Medical malpractice caps create an unwarranted injustice in certain situations.E. Yes. Synopsis of Rule of Law. .045.00 which was reduced to $1. 509 S. Pulliam (Plaintiff) died of bacterial pneumonia and bacteremia after being negligently handled by a hospital physician. Pulliam v.00 pursuant to a Virginia statute's damage cap. Whether the medical malpractice cap imposed by the Virginia statute is constitutional? Held. Facts.000.2d 307. Issue. The Virginia damage cap neither violates the United States Constitution or the Virginia Constitution. it was not arbitrarily drafted by the legislature. After a jury trial based on the medical malpractice of the medical malpractice of the hospital physician. She was survived by her husband and son. The damage cap awarded in the lower court is affirmed. Discussion. (Chief Justice Carrico).000. Coastal Emergency Svcs. the jury awarded $2. (Justice Kinser). the statute is supported by the rational basis standard to withstand Due Process and Equal Protection challenges. Mrs.

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

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

Sign up to vote on this title
UsefulNot useful