Smith and Robersons Business Law Mann Roberts 15th Edition Solutions Manual

Smith and Roberson’s Business Law Mann Roberts 15th Edition Solutions Manual
Smith and Roberson’s Business Law Mann Roberts

15th Edition Solutions Manual
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CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 1
Chapter 8
NEGLIGENCE AND STRICT LIABILITY

I. Negligence a. Foreseeability
A. Breach of Duty of Care b. Superseding Cause
1. Reasonable Person Standard C. Harm
a. Children D. Defenses to Negligence
b. Physical Disability 1. Contributory Negligence
c. Mental Disability 2. Comparative Negligence
d. Superior Skill or Knowledge 3. Assumption of Risk
e. Emergencies II. Strict Liability
f. Violation of Statute A. Activities Giving Rise to Strict Liability
2. Duty to Act 1. Abnormally Dangerous Activities
3. Duties of Possessors of Land 2. Keeping of Animals
a. Duty to Trespassers a. Trespassing Animals
b. Duty to Licensees b. Nontrespassing Animals
c. Duty to Invitees B. Defenses to Strict Liability
4. Res Ipsa Loquitur 1. Contributory Negligence
B. Factual Cause 2. Comparative Negligence
1. Causation in Fact 3. Assumption of Risk
2. Scope of Liability (Proximate Cause)
Cases in This Chapter

Soldano v. O’Daniels Moore v. Kitsmiller
Love v. Hardee’s Food Systems, Inc. Klein v. Pyrodyne Corporation
Palsgraf v. Long Island Railroad Co.
TEACHING NOTES
A tort is a civil wrong that causes injury to persons, property, or economic interests. The last chapter
covered intentional torts. This chapter covers the rest of tort law: negligence and strict liability.
Intentional torts are committed when people take an action desiring to injure someone or when they
take an action that is substantially certain to cause injury.
Negligence is conduct that creates an unreasonable risk of harm.
Strict liability is not based on any fault of a person; but rather, on the nature of the activity.
Tort law is primarily common law and varies from state to state. Over the last 30 years courts have
gradually expanded liability, but a tort reform movement is under way to restrict liability, both at the
state and federal levels. The main thrust is to limit the damages that juries can award to plaintiffs,
particularly punitive damages, damages for medical malpractice, and pain and suffering awards.
As mentioned in Chapter 7 in 1996 the American Law Institute (ALI) approved the development of a new
Restatement, called Restatement Third, Torts: Liability for Physical and Emotional Harm, which addresses
the general or basic elements of the tort action for liability for accidental personal injury, property damage,
and emotional harm but does not cover liability for economic loss. This work will replace comparable
provisions in the Restatement Second, Torts. The final work will be published in two volumes. Volume 1 is
now available and covers liability for negligence causing physical harm, duty, strict liability, factual cause,
and scope of liability (traditionally called proximate cause). Volume 2 will cover affirmative duties,
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emotional harm, landowner liability, and liability of actors who retain independent contractors. Volume 2
is expected to be published in 2011.“Physical harm” is defined as bodily harm (physical injury, illness,
disease, and death) or property damage (physical impairment of real property or tangible personal
property). The provisions of Volume 1 will be covered extensively in this chapter and will be cited as the
“Third Restatement.”
The Institute’s Restatement Third, Torts: Economic Torts and Related Wrongs will update coverage
on torts that involve economic loss or pecuniary harm not resulting from physical harm or physical contact
to a person or property. The Institute began this project in 2004, but as of 2010 no part of the work has
been approved. In late 2007 the project’s Reporter left the project; the project is in abeyance until a
successor Reporter is appointed.
I. NEGLIGENCE
A person acts negligently if the person does not exercise reasonable care under all the circumstances. Third
Restatement, Section 3. Moreover, the general rule is that a person is under a duty to all others at all times
to exercise reasonable care for the safety of the others’ person and property. Third Restatement, Section 7.
*** Question to Discuss ***

List and briefly describe the three required elements of an action for negligence.
A plaintiff alleging negligence has to prove five elements:

1. Duty of care: that a legal duty required the defendant to conform to the standard of conduct
established for the protection of others;
2. Breach of duty: that the defendant failed to exercise reasonable care;
3. Factual cause: that the defendant’s failure to exercise reasonable care in fact caused the harm the
plaintiff sustained;
4. Harm: that the harm sustained is of a type protected against negligent conduct; and
5. Scope of liability: that the harm sustained is within the “scope of liability,” which historically has
been referred to as “proximate cause.” Third Restatement, Section 6, comments.
A. BREACH OF DUTY OF CARE

While the law does not obligate us to help each other (except in special circumstances) we are obligated to
avoid doing harm or putting others at unreasonable risk of harm.
Negligence is conduct that creates an unreasonable risk of harm. (1) the foreseeable probability that the
person’s conduct will result in harm, (2) the foreseeable gravity or severity of any harm that may follow,
and (3) the burden of taking precautions to eliminate or reduce the risk of harm. Third Restatement,
Section 3.Thus, the standard of conduct, which is the basis for the law of negligence, is usually determined
by a cost-benefit or risk-benefit analysis.
Reasonable Person Standard
The degree of care expected of a reasonable person in similar circumstances. Age, physical disability, skill
or knowledge, and emergencies may affect the level of conduct expected of a reasonable person.

Explain the duty of care that is imposed upon a) adults, b) children,
c) persons with a physical disability, d) persons with a mental deficiency,
e) persons with superior knowledge, and f) persons acting in an emergency.
Children — usually held to a standard of conduct based on their own age and experience, except when
children engage in an adult activity like flying a plane or driving a boat. Some States modify this
individualized test by holding that under a minimum age, most commonly the age of seven, a child is
incapable of committing a negligent act. The Third Restatement further provides that a child less than five
years of age is incapable of negligence.
Physical Disability – A person who is ill or physically disabled must conform to the standard of conduct
of a reasonable person under like disability.
Mental Disability –A person’s mental or emotional disability is not considered in determining whether
conduct is negligent unless the person is a child. The defendant is held to the standard of conduct of a
reasonable person who is not mentally or emotionally disabled, even though the defendant is, in fact,
incapable of conforming to the standard. When a person’s intoxication is voluntary, it is not considered as
an excuse for conduct that is otherwise lacking in reasonable care.
Superior Skill or Knowledge – A person who is qualified to practice a profession or trade that requires
special skill and expertise is required to use the same care and skill normally possessed by members of that
profession or trade.
Emergencies – In sudden, unexpected events that call for immediate action, the standard is that of a
reasonable person under the circumstances–the emergency is considered part of the circumstances.
Violation of Statute – The reasonable person standard of conduct may be established by legislation or
administrative regulation, with civil liability imposed on violators.
NOTE: See Figure 8-1.
Duty to Act
Except in special circumstances, a person who has not created risk of harm to others is ordinarily not
required to aid another in peril. A person does have a duty to act if:
• the relationship between the parties creates an obligation
• one party has negligently placed the other in a position of potential harm
• a person’s conduct, whether tortious or innocent, has injured someone else and left that person
helpless and in danger of further harm
Most States have enacted Good Samaritan statutes to encourage voluntary emergency care. These statutes
typically limit or disallow liability for some rescuers under specified circumstances. But, a person who
voluntarily helps someone in need is liable if her failure to exercise reasonable care increases the risk of
harm, causes harm, or leaves the other in a worse position.
There are special relationships (parent/child or employer/employee) in which one person has some degree
of control over another person, and in these cases one may owe a duty of reasonable care such as
controlling the activities of the other person or merely providing a warning.
CASE 8-1
Soldano v. O’Daniels
Andreen, J. This appeal follows a judgment of dismissal of the second
Does a business establishment incur liability for wrongful cause of action of a complaint for wrongful death upon a
death if it denies use of its telephone to a good samaritan motion for summary judgment. The motion was
who explains an emergency situation occurring without supported only by a declaration of defense counsel. Both
and wishes to call the police? briefs on appeal adopt the defense averments:
This action arises out of a shooting death occurring on that of a common carrier to its passengers, an innkeeper
August 9, 1977. Plaintiff’s father [Darrell Soldano] was to his guest, possessors of land who hold it open to the
shot and killed by one Rudolph Villanueva on that date at public, or one who has a custodial relationship to
defendant’s Happy Jack’s Saloon. This defendant owns another. A duty may be created by an undertaking to
and operates the Circle Inn which is an eating give assistance. [Citation.]
establishment located across the street from Happy Here there was no special relationship between the
Jack’s. Plaintiff’s second cause of action against this defendant and the deceased. It would be stretching the
defendant is one for negligence. concept beyond recognition to assert there was a
Plaintiff alleges that on the date of the shooting, a patron relationship between the defendant and the patron from
of Happy Jack’s Saloon came into the Circle Inn and Happy Jack’s Saloon who wished to summon aid. But
informed a Circle Inn employee that a man had been this does not end the matter.
threatened at Happy Jack’s. He requested the employee It is time to re-examine the common law rule of
either call the police or allow him to use the Circle Inn nonliability for nonfeasance in the special circumstances
phone to call the police. That employee allegedly refused of the instant case.
to call the police and allegedly refused to allow the ***
patron to use the phone to make his own call. Plaintiff
We turn now to the concept of duty in a tort case. The
alleges that the actions of the Circle Inn employee were a
[California] Supreme Court has identified certain factors
breach of the legal duty that the Circle Inn owed to the
to be considered in determining whether a duty is owed
decedent.
to third persons. These factors include:
We were advised at oral argument that the employee
the foreseeability of harm to the plaintiff, the degree
was the defendant’s bartender. The state of the record is
of certainty that the plaintiff suffered injury, the
unsatisfactory in that it does not disclose the physical
closeness of the connection between the defendant’s
location of the telephone—whether on the bar, in a
conduct and the injury suffered, the moral blame
private office behind a closed door or elsewhere. The
attached to the defendant’s conduct, the policy of
only factual matter before the trial court was a verified
preventing future harm, the extent of the burden to
statement of the defense attorney which set forth those
the defendant and consequences to the community of
facts quoted above. Following normal rules applicable to
imposing a duty to exercise care with resulting
motions for summary judgment, we strictly construe the
liability for breach, and the availability, cost, and
defense affidavit. [Citation.] Accordingly, we assume the
prevalence of insurance for the risk involved.
telephone was not in a private office but in a position
[Citation.]
where it could be used by a patron without
inconvenience to the defendant or his guests. We also We examine those factors in reference to this case. (1)
assume the call was a local one and would not result in The harm to the decedent was abundantly foreseeable; it
expense to defendant. was imminent. The employee was expressly told that a
man had been threatened. The employee was a
There is a distinction, well rooted in the common law,
bartender. As such he knew it is foreseeable that some
between action and nonaction. [Citation.] It has found its
people who drink alcohol in the milieu of a bar setting
way into the prestigious Restatement Second of Torts
are prone to violence. (2) The certainty of decedent’s
(hereafter cited as “Restatement”), which provides in
injury is undisputed. (3) There is arguably a close
section 314:
connection between the employee’s conduct and the
The fact that the actor realizes or should realize that injury: the patron wanted to use the phone to summon
action on his part is necessary for another’s aid or the police to intervene. The employee’s refusal to allow
protection does not of itself impose upon him a duty to the use of the phone prevented this anticipated
take such action. intervention. If permitted to go to trial, the plaintiff may
*** be able to show that the probable response time of the
As noted in [citation], the courts have increased the police would have been shorter than the time between
instances in which affirmative duties are imposed not by the prohibited telephone call and the fatal shot. (4) The
direct rejection of the common law rule, but by employee’s conduct displayed a disregard for human life
expanding the list of special relationships which will that can be characterized as morally wrong: he was
justify departure from that rule. * * * callously indifferent to the possibility that Darrell
*** Soldano would die as the result of his refusal to allow a
Section 314A of the Restatement lists other special person to use the telephone. Under the circumstances
relationships which create a duty to render aid, such as before us the bartender’s burden was minimal and
exposed him to no risk: all he had to do was allow the privacy or ownership interest in it such that the owner
use of the telephone. It would have cost him or his should be permitted to interfere with a good faith
employer nothing. It could have saved a life. (5) Finding attempt to use it by a third person to come to the aid of
a duty in these circumstances would promote a policy of another.
preventing future harm. A citizen would not be required ***
to summon the police but would be required, in We conclude that the bartender owed a duty to the
circumstances such as those before us, not to impede plaintiff’s decedent to permit the patron from Happy
another who has chosen to summon aid. (6) We have no Jack’s to place a call to the police or to place the call
information on the question of the availability, cost, and himself.
prevalence of insurance for the risk, but note that the
It bears emphasizing that the duty in this case does not
liability which is sought to be imposed here is that of
require that one must go to the aid of another. That is
employee negligence, which is covered by many
not the issue here. The employee was not the good
insurance policies. (7) The extent of the burden on the
Samaritan intent on aiding another. The patron was.
defendant was minimal, as noted.
***
***
We conclude there are sufficient justifiable issues to
We acknowledge that defendant contracted for the use
permit the case to go to trial and therefore reverse.
of his telephone, and its use is a species of property. But
if it exists in a public place as defined above, there is no
Case Questions
1. Under the common law, when is there a duty to act?
2. What is a method for expanding the duty to act under the common law, noted by the Soldano court?
3. Did the Soldano court additionally expand the common law duty to act?
Ethical Question: Did the bartender act unethically? Should the patron have done more? Explain.
Critical Thinking Question: Should the courts go beyond the rule of this case and impose an affirmative
duty to go to the aid of another person who is in peril if it can be done without endangerment? Explain.
Duties of Possessors of Land

People who occupy land with the intent to control its use have a right to use it for their own benefit and
enjoyment, but in a reasonable manner. They cannot cause unreasonable risk of harm to others either on or
off the site, though the possessor’s level of responsibility to a person on site usually depends on whether the
person is a trespasser, a licensee, or an invitee. A few States have abandoned these distinctions,
however, and simply apply ordinary negligence principles of foreseeable risk and reasonable
care. The Third Restatement will include chapters on landowner liability, but the American Law Institute
has not yet approved them.

Differentiate among the duties that possessors of land owe to trespassers, licensees, and invitees.
NOTE: Figure 8-2 in the textbook shows the duties of possessors of land. Note that the duties increase from trespasser to
licensee to invitee.
Duty to Trespassers — A trespasser enters or remains on the land of another without permission. The
lawful possessor of the land is not liable for failure to maintain safe conditions, but may not inflict
intentional injury on a trespasser. Most courts hold that a possessor of land is required to warn known
trespassers of potentially highly dangerous conditions that the trespassers are not likely to discover.
Duty to Licensees — A licensee is privileged to enter or remain on land only by the consent of the lawful
possessor; includes members of the household, social guests, and salespersons calling at private homes. The
possessor must warn the licensee of any known dangerous activities and conditions which the licensee is
unlikely to discover.
Duty to Invitees — An invitee is a person invited upon land as a member of the public or for a business
purpose. A public invitee visits the land as a member of the public for a purpose for which the land is
intended, as with a public park or a public government office.
A business visitor is an invitee who enters the premises for a purpose connected with business with the
possessor of the land, such as shopping in a store or entering a residence to make repairs.
If the possessor should reasonably know of a hazard, he is under a duty to protect invitees from dangers
they are unlikely to discover, whether the possessor is aware of the danger or not.
CASE 8-2
Love v. Hardee’s Food Systems, Inc.
Crane, J. back surgeries, missed substantial time from work, and
At about 3:15 P.M. on November 15, 1995, plaintiff, suffered from continuing pain and limitations on his
Jason Love, and his mother, Billye Ann Love, went to physical activities.
the Hardee’s Restaurant in Arnold, Missouri, which is Defendant had a policy requiring that the restroom was
owned by defendant, Hardee’s Food Systems, Inc. There to be checked and cleaned every hour by a maintenance
were no other customers in the restaurant between 3:00 man. The maintenance man was scheduled to work until
P.M. and 4:00 P.M., but two or three workmen were in 3:00 P.M., but normally left at 1:00 P.M. The
the back doing construction. The workmen reported supervisor could not recall whether the maintenance
that they did not use the restroom and did not see man left at 1:00 P.M. or 3:00 P.M. on November 15.
anyone use the restroom. After eating his lunch, The time clock activity report would show when the
plaintiff, who was wearing rubber-soled boat shoes, maintenance man clocked out, but defendant was unable
went to use the restroom. He opened the restroom to produce the time clock report for November 15.
door, took one step in, and, upon taking his second step, It was also a store policy that whenever employees
slipped on water on the restroom floor. Plaintiff fell cleaned the tables, they would check the restroom. The
backwards, hit his head, and felt a shooting pain down restrooms were used by customers and employees. If an
his right leg. He found himself lying in an area of dirty employee had to use the restroom, then that employee
water, which soaked his clothes. There were no was also supposed to check the restroom. The restaurant
barricades, warning cones, or anything else that would supervisor did not ask if any employees had been in the
either restrict access to the bathroom or warn of the restroom, or if they had checked it in the hour prior to
danger. the accident, and did not know if the restroom was
Plaintiff crawled up to the sink to pull himself up and actually inspected or cleaned at 3:00 P.M.
made his way back to the table and told his mother that The restaurant had shift inspection checklists on which
his back and leg were “hurting pretty bad.” His mother the manager would report on the cleanliness of the
reported the fall to another employee. Plaintiff’s mother restrooms and whether the floors were clean and dry.
went back to the men’s restroom and looked at the However, the checklists for November 15 were thrown
water on the floor. She observed that the water was away. * * *
dirty. The restaurant supervisor came out and Plaintiff subsequently filed the underlying lawsuit against
interviewed plaintiff and viewed the water in the defendant to recover damages for negligence. The jury
restroom. * * * The supervisor then filled out an returned a verdict in plaintiff’s favor in the amount of
accident report form, which reported that the accident $125,000. * * *
occurred at 3:50 P.M. The supervisor testified that the
* * * [Defendant] argues that plaintiff failed to make a
water appeared to have come from someone shaking his
submissible case of negligence because plaintiff failed to
hands after washing them. The supervisor told plaintiff
prove that defendant had actual or constructive notice of
he could not recall the last time the restroom had been
the water on the restroom floor in that there was no
checked. Plaintiff was taken to a hospital emergency
evidence showing the source of the water or the length
room. As a result of his injuries, plaintiff underwent two
of time the water had been on the floor.
*** Next, there was evidence from which the jury could
In order to have made a submissible case, plaintiff had to infer that, if the water was caused by a non-employee,
show that defendant knew or, by using ordinary care, the water was on the floor for at least 50 minutes, or
could have known of the dangerous condition and failed longer, because there was evidence that no other
to use ordinary care to remove it, barricade it, or warn customers were in the store to use the restroom after
of it, and plaintiff sustained damage as a direct result of 3:00 P.M. and the workmen on the site advised that they
such failure. [Citation.] had not used the restroom.
“In order to establish constructive notice, the condition In addition, plaintiff adduced evidence from which the
must have existed for a sufficient length of time or the jury could have found that defendants’ employees had
facts must be such that the defendant should have the opportunity to observe the hazard. The restroom
reasonably known of its presence.” [Citation.] [Prior] was to be used by the employees and was supposed to be
cases * * * placed great emphasis on the length of time checked by them when they used it; employees cleaning
the dangerous condition had been present and held that tables were supposed to check the restroom when they
times of 20 or 30 minutes, absent proof of other cleaned the tables; and a maintenance man was supposed
circumstances, were insufficient to establish constructive to check and clean the restroom every hour.
notice as a matter of law. [Citations.] There was evidence from which the jury could have
*** inferred that the maintenance man charged with cleaning
Defendant’s liability is predicated on the foreseeability of the restroom every hour did not clean the restroom at
the risk and the reasonableness of the care taken, which 3:00 P.M. as scheduled on the day of the accident. There
is a question of fact to be determined by the totality of was testimony that the maintenance man usually left at
the circumstances, including the nature of the 1:00 P.M. The supervisor could not recall what time the
restaurant’s business and the method of its operation. maintenance man left that day and defendant was unable
[Citations.] to produce the time clock reports for that day which
would have shown when the maintenance man clocked
In this case the accident took place in the restaurant’s
out. This could have created a span of 2 hours and 50
restroom which is provided for the use of employees and
minutes during which there was no employee working at
customers. The cause of the accident was water, which is
the restaurant whose primary responsibility was to clean
provided in the restroom. The restaurant owner could
the restroom. [Citation.]
reasonably foresee that anyone using the restroom,
customers or employees, would use the tap water There was also evidence from which the jury could have
provided in the restroom and could spill, drop, or splash inferred that the restroom was not inspected by any
water on the floor. Accordingly, the restaurant owner employee who had the responsibility to inspect it during
was under a duty to use due care to guard against danger that same time period. The supervisor testified that he
from water on the floor. could not recall the last time the restroom had been
checked and did not ask any employees if they had been
There was substantial evidence to support submissibility.
in the restroom or had checked it in the hour before the
First, there was evidence from which the jury could infer
accident. * * *
that the water came from the use of the restroom. It was
on the floor of the restroom and the supervisor testified ***
it appeared that someone had shaken water from his The judgment of the trial court is affirmed.
hands on the floor.
Case Questions
1. How frequently should a public bathroom be checked for safety hazards? What expectation is
reasonable?
2. Which employee is most at fault in this case?
Ethical Question: Is this ruling fair? Is the expectation unreasonable? Explain.
Critical Thinking Question: What level of responsibility to watch for dangers should the customer be
held to in a case like this?
Res Ipsa Loquitur
Meaning “the thing speaks for itself,” this rule applies “when the accident causing the plaintiff's physical
harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which
the defendant is the relevant member.” Other possible causes of the event must have been eliminated.
B. FACTUAL CAUSE
Liability for the negligent conduct requires not only that the conduct actually caused injury, but also that it
was the cause of the injury.
Causation in Fact
A widely applied test for causation in fact is the “but-for” test: A person’s conduct is a cause of an event if
the event would not have occurred but-for (i.e., in the absence of) the person’s negligent conduct.
When two or more forces are actively operating and each is sufficient to bring about the harm, the
substantial factor test would be applied: negligent conduct is a legal cause of harm to another if the conduct
is a substantial factor in bringing about the harm. This means that more than one defendant may be found
liable for negligence in the same case.
Scope of Liability (Proximate Cause)
The legal rule that limits a person’s liability to the consequences that are closely connected with the
negligent conduct. This means that a person may have acted negligently and actually caused injury, but she
will not be held liable for injuries that have been brought about too indirectly.
Forseeability — The Restatement and a majority of the courts have taken the following position. Even if
the defendant’s negligent conduct is a cause of harm to the plaintiff, the defendant is not liable to the
plaintiff unless the defendant could have reasonably foreseen injuring the plaintiff or a class of persons of
which the plaintiff is a member.
CASE 8-3
Palsgraf v. Long Island Railroad Co.
Cardozo, C. J. The conduct of the defendant’s guard, if a wrong in its
Plaintiff was standing on a platform of defendant’s relation to the holder of the package, was not a wrong in
railroad after buying a ticket to go to Rockaway Beach. A its relation to the plaintiff, standing far away. Relatively
train stopped at the station, bound for another place. to her it was not negligence at all. Nothing in the
Two men ran forward to catch it. One of the men situation gave notice that the falling package had in it the
reached the platform of the car without mishap, though potency of peril to persons thus removed. Negligence is
the train was already moving. The other man, carrying a not actionable unless it involves the invasion of a legally
package, jumped aboard the car, but seemed unsteady as protected interest, the violation of a right. “Proof of
if about to fall. A guard on the car, who had held the negligence in the air, so to speak, will not do.”
door open, reached forward to help him in, and another [Citations.] “Negligence is the absence of care, according
guard on the platform pushed him from behind. In this to the circumstances.” [Citations.]
act, the package was dislodged, and fell upon the rails. It ***
was a package of small size, about fifteen inches long, If no hazard was apparent to the eye of ordinary
and was covered by a newspaper. In fact it contained vigilance, an act innocent and harmless, at least to
fireworks, but there was nothing in its appearance to outward seeming, with reference to her, did not take to
give notice of its contents. The fireworks when they fell itself the quality of a tort because it happened to be a
exploded. The shock of the explosion threw down some wrong, though apparently not one involving the risk of
scales at the other end of the platform many feet away. bodily insecurity, with reference to someone else. “In
The scales struck the plaintiff, causing injuries for which every instance, before negligence can be predicated of a
she sues. given act, back of the act must be sought and found a
duty to the individual complaining, the observance of
which would have averted or avoided the injury.” there was a wrong to him at all, which may very well be
[Citations.] doubted, it was a wrong to a property interest only, the
*** safety of his package. Out of this wrong to property,
A different conclusion will involve us, and swiftly too, in which threatened injury to nothing else, there has
a maze of contradictions. A guard stumbles over a passed, we are told, to the plaintiff by derivation or
package which has been left upon a platform. It seems to succession a right of action for the invasion of an interest
be a bundle of newspapers. It turns out to be a can of of another order, the right to bodily security. The
dynamite. To the eye of ordinary vigilance, the bundle is diversity of interests emphasizes the futility of the effort
abandoned waste, which may be kicked or trod on with to build the plaintiff’s right upon the basis of a wrong to
impunity. Is a passenger at the other end of the platform someone else. * * * One who jostles one’s neighbor in a
protected by the law against the unsuspected hazard crowd does not invade the rights of others standing at
concealed beneath the waste? If not, is the result to be the outer fringe whenthe unintended contact casts a
any different, so far as the distant passenger is bomb upon the ground. The wrongdoer as to them is the
concerned, when the guard stumbles over a valise which man who carries the bomb, not the one who explodes it
a truckman or a porter has left upon the walk? The without suspicion of the danger. Life will have to be
passenger far away, if the victim of a wrong at all, has a made over, and human nature transformed, before
cause of action, not derivative, but original and primary. prevision so extravagant can be accepted as the norm of
His claim to be protected against invasion of his bodily conduct, the customary standard to which behavior must
security is neither greater nor less because the act conform.
resulting in the invasion is a wrong to another far ***
removed. In this case, the rights that are said to have The judgment of the Appellate Division and that of the
been violated, the interests said to have been invaded, Trial Term should be reversed, and the complaint
are not even of the same order. The man was not injured dismissed, with costs in all courts.
in his person nor even put in danger. The purpose of the .
act, as well as its effect, was to make his person safe. If
Case Questions
1. What policy reasons support application of the proximate cause element to limit a tortfeasor’s liability
for consequences of her negligent conduct?
2. How could the facts in Palsgraf be altered so that the risk of injury would have been foreseeable?
3. Distinguish causation in fact from proximate cause in the context of the facts in this case.
Ethical Question: Did the defendant’s employees act in an ethical manner? Explain.
Critical Thinking Question: Should a person be held liable for all injuries that his or her negligence in
fact causes? Explain.
Superseding Cause — If an event occurs after the defendant’s negligent conduct and helps to cause the
plaintiff’s injury, that event may be judged a superseding cause. A superseding cause prevents the
defendant’s negligence from being the proximate (nearest) cause of an injury. Accordingly, a superseding
cause relieves the defendant of liability for harm to the plaintiff.
C. HARM
The plaintiff has the burden of proving that the defendant’s negligent conduct proximately caused the harm
to a legally protected interest in a negligence case. The courts traditionally have been reluctant to allow
recovery for negligently inflicted emotional distress, but a few courts have recently allowed such recovery.
The Third Restatement will include chapters on liability for emotional harm, but the American Law
Institute has not approved them yet.
D. DEFENSES TO NEGLIGENCE
Even if a plaintiff can prove all of the elements of a negligence action, he may still not recover damages if
the defendant proves a valid defense. Generally, defenses to intentional torts can also be used in lawsuits
alleging negligence. In addition, three special defenses may be available in negligence cases: contributory
negligence, comparative negligence, and assumption of risk.

Identify the defenses that are available to a tort action in negligence.
Contributory Negligence
An act or failure to act on the part of the plaintiff that is also negligent and contributes toward the resulting
injury. In other words, the plaintiff helped to harm himself. In the few states following this rule, it is a
complete defense and prevents any recovery by the plaintiff.
Exception: If the defendant had a last clear chance to avoid injuring the plaintiff but did not, the
contributory negligence of the plaintiff does not bar his recovery of damages.
Comparative Negligence
Has replaced contributory negligence in almost all states. Under this rule, damages are divided between
the parties in proportion to the degree of fault or negligence found against them. In most states the plaintiff
recovers proportionally unless her contributory negligence was “as great as” or “greater than” that of the
defendant, in which case the plaintiff recovers nothing. The rule was adopted to mitigate the harsh results
contributory negligence imposed on plaintiffs who were slightly negligent.
Assumption of Risk
Applicable if a plaintiff understands a risk exists and voluntarily places himself in the zone of danger. In
express assumption of the risk, the plaintiff expressly agrees to assume the risk of harm from the
defendant’s conduct. Usually, but not always, such an agreement is by contract. In implied assumption of
the risk the plaintiff voluntarily proceeds to encounter a known danger.
The American Law Institute recently adopted The Third Restatement of Torts: Apportionment Liability,
which has abandoned the doctrine of implied voluntary assumption of risk: it is no longer a defense that the
plaintiff was aware of a risk and voluntarily confronted it. But if a plaintiff’s conduct in the face of a known
risk is unreasonable it might constitutes contributory negligence.
NOTE: See Figure 8-3: Defenses to a Negligence Action
CASE 8-4
Moore v. Kitsmiller
Worthen, C. J. the box blade on his tractor. Kitsmiller then leased the
In the spring of 2001, Kitsmiller purchased a house in property to Moore and his wife on July 27. Kitsmiller
Van Zandt County to use as rental property. In mid- testified that he viewed the back yard about a week or ten
June, he hired B&H Shaw Company, Inc. (“B&H”) to days prior to leasing the property to the Moores and
install a replacement septic tank in the back yard. The stated that the dirt around the septic system looked firm.
septic tank was located about two or three feet from a On August 7, the Moores moved in. On August 11,
concrete stoop at the back door of the garage. B&H Moore and his wife ventured into the back yard for the
mounded dirt over the septic tank and the lateral lines first time, carrying some trash bags to a barrel. Moore
going out from it upon completion. Sometime after B&H testified that his wife led the way and he followed her
installed the septic tank, Kitsmiller smoothed out the about a foot and a half behind. Moore testified that at the
mounds of dirt over the septic tank and lateral lines using time, his right arm was in a sling and a bag of trash was in
his left hand. He stated that as he stepped off the stoop, In the second question, the jury determined that
he was unable to see the ground and could only see his Kitsmiller was 51% negligent and Moore was 49%
wife and the bag of trash in his left arm. His wife testified negligent. In the third question, the jury determined that
that the ground looked flat as she walked toward the Moore was entitled to $210,000.00 in damages. On
barrel. Moore testified that he had only taken a few steps September 29, 2004, the trial court entered a judgment
off the stoop when his left leg sank into a hole, causing in favor of Moore and against Kitsmiller in the amount of
him to fall forward into his wife. As he tried to steady $210,000.00 plus interest and costs.
himself with his right foot, it hung and then sank, causing On October 14, 2004, Kitsmiller asked that the trial
him to fall backward on his head and back. Moore court modify the judgment to $107,100.00 based upon
testified that the injury to his back required surgery and Moore’s contributory negligence. The trial court entered
affected his ability to earn a living. a modified final judgment on November 1, 2004
Moore filed suit against Kitsmiller and B&H. He sought awarding Moore $107,100.00 plus interest and costs. On
damages for past and future pain and suffering, past and November 23, 2004, a partial satisfaction and release of
future mental anguish, past and future physical judgment filed with the court showed that Kitsmiller had
impairment, and past and future loss of earning capacity. paid the amount awarded in the modified judgment to
In their answers to Moore’s suit, both Kitsmiller and Moore. However, Moore reserved the right to appeal all
B&H pleaded the affirmative defense of contributory issues involving his contributory negligence to this court.
negligence. [Citation.] B&H specifically pleaded that Moore then timely filed his notice of appeal.
Moore was negligent for not having kept a proper ***
lookout when stepping into the back yard and looking for * * * Moore contends the evidence is legally insufficient
obstructions, such as erosion or soft soil. to support the judgment. Moore argues that his wife and
During the jury trial, Moore testified Kitsmiller should Kitsmiller testified that the back yard was flat at the time
have notified him where the septic tank and lateral lines of the occurrence. He contends that no one could have
were located and that the dirt should have remained anticipated any danger from walking into the yard.
mounded over the tank and lines. On August 13, Moore Therefore, Moore argues that there is no evidence in the
asked Ken Martin to inspect the site of the fall (the record to support the jury’s determination that he was
“occurrence”). Martin is an on-site septic tank complaint contributorily negligent.
investigator for both the Texas Commission on Contributory negligence contemplates an injured
Environmental Quality and Van Zandt County. Martin person’s failure to use ordinary care regarding his or her
testified that dirt should have been mounded over the own safety. [Citation.] This affirmative defense requires
septic tank and lateral lines, so that when the dirt settled, proof that the plaintiff was negligent and that the
there would be no holes in the ground around the septic plaintiff’s negligence proximately caused his or her
tank or lateral lines. However, there was no dirt injuries. [Citation.] Negligence requires proof of
mounded over the septic tank or lines when he inspected proximate cause. [Citation.] Proximate cause requires
the site. Martin’s photographs of the site also indicated proof of both cause in fact and foreseeability. [Citation.]
that there were no mounds of dirt over the septic tank. The test for cause in fact is whether the negligent act or
Further, the photographs showed sunken ground around omission was a substantial factor in bringing about an
the septic tank, including, but not limited to, the area injury without which the harm would not have occurred.
where Moore fell. Martin testified that it was common [Citation.] Foreseeability requires that a person of
for sinkholes to develop around a septic tank. He also ordinary intelligence should have anticipated the danger
testified that he had observed situations where dirt created by a negligent act or omission. [Citation.]
around a septic tank or lateral line looked to be solid, but
Because comparative responsibility involves measuring
sank when a person stepped on it. Martin testified that
the party’s comparative fault in causing the plaintiff’s
the photographs showed an obvious depression around
injuries, it necessitates a preliminary finding that the
the septic tank. Bill Shaw, president of B&H, testified
plaintiff was in fact contributorily negligent. [Citation.]
that Moore should have been watching where he was
The standards and tests for determining contributory
going as he stepped into the back yard. Shaw stated that
negligence ordinarily are the same as those for
Martin’s photographs indicated to him that the
determining negligence, and the rules of law applicable
depressions in the ground around the septic tank were
to the former are applicable to the latter. [Citation.] The
visible at the time of the occurrence.
burden of proof on the whole case is on the plaintiff.
The first question for the jury was whose negligence [Citation.] However, on special issues tendered by the
caused the occurrence. The jury responded that both defendant presenting an affirmative defense such as
Kitsmiller and Moore were negligent, but B&H was not. contributory negligence, the burden of proof is on the
defendant to prove the defense by a preponderance of the carrying in his left hand. The jury was allowed to draw an
evidence. [Citation.] inference from this evidence that Moore was not
When attacking the legal sufficiency of an adverse finding watching where he was walking. An individual must keep
on an issue on which the party did not have the burden of a proper lookout where he is walking, and a jury is
proof, that party must demonstrate there is no evidence allowed to make a reasonable inference that failure to do
to support the adverse finding. [Citation.] To evaluate so was the proximate cause of his injuries. [Citation.] It
the legal sufficiency of the evidence to support a finding, was reasonable for the jury to make an inference from
we must determine whether the proffered evidence as a Moore’s testimony that his failure to keep a proper
whole rises to a level that would enable reasonable and lookout where he was walking contributed to the
fair minded people to differ in their conclusions. occurrence.
[Citation.] We sustain a no evidence issue only if there is Moore contends that the only reasonable inference the
no more than a scintilla of evidence proving the elements jury could have made was that, even if he had been
of the claim. [Citation.] In making this determination, we watching where he was walking, he would not have been
must view the evidence in the light most favorable to the able to avoid stepping in the holes because they were not
verdict, crediting favorable evidence if reasonable jurors visible to the naked eye. The jury could have made that
could and disregarding contrary evidence unless inference, but chose not to do so. Shaw’s testimony that
reasonable jurors could not. [Citation.] The trier of fact Martin’s photographs showed the depressions could have
may draw reasonable and logical inferences from the been present at the time of the occurrence could have led
evidence. [Citation.] It is within the province of the jury the jury to believe that Moore’s contention was not a
to draw one reasonable inference from the evidence reasonable inference. We conclude that the jury made a
although another inference could have been made. reasonable inference from the evidence in finding Moore
[Citation.] contributorily negligent.
*** ***
Moore testified that when he stepped off the stoop into * * * [T]he judgment of the trial court is affirmed.
the back yard for the first time on August 11, 2001, he
could only see his wife and the plastic bag of trash he was
Case Questions
1. Would this case have been different if Moore had been looking where he was stepping?
2. Would this case have been different if Moore had been judged to be 51% negligent and Kitsmiller only
49%??
Ethical Question: Whose responsibility was it to make sure the ground was solid and level? Explain.
Critical Thinking Question: Should the law hold owners of rental property absolutely responsible for
injuries sustained on their property? Why or why not?
II. STRICT LIABILITY

In some instances a person may be held liable for injuries he has caused even though he has not acted
intentionally or negligently. Such liability is called strict liability, absolute liability, or liability without
fault. The doctrine of strict liability is not based on fault of the defendant, but rather on the nature of the
activity in which he is engaged.

Identify and discuss those activities giving rise to a tort action in strict liability.
A. ACTIVITIES GIVING RISE TO STRICT LIABILITY

Abnormally Dangerous Activities
Involve a high degree of risk of serious harm that cannot be eliminated by the exercise of reasonable care
and are not a matter of common usage. Activities judged abnormally dangerous include storing explosives
or flammable liquids in large quantities; blasting or pile driving; crop dusting; drilling for or refining oil in
populated areas; and emitting noxious gases or fumes into a settled community.
CASE 8-5
Klein v. Pyrodyne Corporation
Guy, J. over, ignited, and shot off horizontally. In contrast, the
The plaintiffs in this case are persons injured when an Kleins contend that the misdirected shell resulted
aerial shell at a public fireworks exhibition went astray because Pyrodyne’s employees improperly set up the
and exploded near them. The defendant is the display. They further note that because all of the evidence
pyrotechnic company hired to set up and discharge the exploded, there is no means of proving the cause of the
fireworks. The issue before this court is whether misfire.
pyrotechnicians are strictly liable for damages caused by The Kleins brought suit against Pyrodyne under theories
fireworks displays. We hold that they are. of products liability and strict liability. Pyrodyne filed a
Defendant Pyrodyne Corporation (Pyrodyne) is a general motion for summary judgment, which the trial court
contractor for aerial fireworks at public fireworks granted as to the products liability claim. The trial court
displays. Pyrodyne contracted to procure fireworks, to denied Pyrodyne’s summary judgment motion regarding
provide pyrotechnic operators, and to display the the Kleins’ strict liability claim, holding that Pyrodyne
fireworks at the Western Washington State Fairgrounds was strictly liable without fault and ordering summary
in Puyallup, Washington, on July 4, 1987. All operators judgment in favor of the Kleins on the issue of liability.
of the fireworks display were Pyrodyne employees acting Pyrodyne appealed the order of partial summary
within the scope of their employment duties. judgment to the Court of Appeals, which certified the
As required by Washington statute, Pyrodyne purchased case to this court. Pyrodyne is appealing solely as to the
a $1,000,000 insurance policy prior to the fireworks trial court’s holding that strict liability is the appropriate
show. The policy provided $1,000,000 coverage for each standard of liability for pyrotechnicians. A strict liability
occurrence of bodily injury or property damage liability. claim against pyrotechnicians for damages caused by
Plaintiffs allege that Pyrodyne failed to carry out a fireworks displays presents a case of first impression in
number of the other statutory and regulatory Washington.
requirements in preparing for and setting off the Analysis
fireworks. For example, they allege that Pyrodyne failed Fireworks Displays as Abnormally Dangerous Activities
to properly bury the mortar tubes prior to detonation, The Kleins contend that strict liability is the appropriate
failed to provide a diagram of the display and surrounding standard to determine the culpability of Pyrodyne
environment to the local government, failed to provide because Pyrodyne was participating in an abnormally
crowd control monitors, and failed to keep the invitees at dangerous activity. * * *
the mandated safe distance.
The modern doctrine of strict liability for abnormally
During the fireworks display, one of the 5-inch mortars dangerous activities derives from Fletcher v. Rylands,
was knocked into a horizontal position. From this [citation], in which the defendant’s reservoir flooded
position a shell inside was ignited and discharged. The mine shafts on the plaintiff’s adjoining land. Rylands v.
shell flew 500 feet in a trajectory parallel to the earth and Fletcher has come to stand for the rule that “the defendant
exploded near the crowd of onlookers. Plaintiffs Danny will be liable when he damages another by a thing or
and Marion Klein were injured by the explosion. Mr. activity unduly dangerous and inappropriate to the place
Klein’s clothing was set on fire, and he suffered facial where it is maintained, in the light of the character of that
burns and serious injury to his eyes. place and its surroundings.” [Citation.]
The parties provide conflicting explanations of the cause The basic principle of Rylands v. Fletcher has been accepted
of the improper horizontal discharge of the shell. by the Restatement (Second) of Torts (1977). [Citation.]
Pyrodyne argues that the accident was caused by a 5-inch Section 519 of the Restatement provides that any party
shell detonating in its aboveground mortar tube without carrying on an “abnormally dangerous activity” is strictly
ever leaving the ground. Pyrodyne asserts that this liable for ensuing damages. The test for what constitutes
detonation caused another mortar tube to be knocked such an activity is stated in section 520 of the
Restatement. Both Restatement sections have been mass of mankind or by many people in the community.”
adopted by this court, and determination of whether an Restatement (Second) of Torts §520, Comment i (1977).
activity is an “abnormally dangerous activity” is a question As examples of activities that are not matters of common
of law. [Citations.] usage, the Restatement comments offer driving a tank,
Section 520 of the Restatement lists six factors that are to blasting, the manufacture, storage, transportation, and
be considered in determining whether an activity is use of high explosives, and drilling for oil. The deciding
“abnormally dangerous.” The factors are as follows: (a) characteristic is that few persons engage in these
existence of a high degree of risk of some harm to the activities. Likewise, relatively few persons conduct
person, land or chattels of others; (b) likelihood that the public fireworks displays. Therefore, presenting public
harm that results from it will be great; (c) inability to fireworks displays is not a matter of common usage.
eliminate the risk by the exercise of reasonable care; (d) ***
extent to which the activity is not a matter of common The factor stated in clause (e) requires analysis of the
usage; (e) inappropriateness of the activity to the place appropriateness of the activity to the place where it was
where it is carried on; and (f) extent to which its value to carried on. In this case, the fireworks display was
the community is outweighed by its dangerous attributes. conducted at the Puyallup Fairgrounds. Although some
Restatement (Second) of Torts §520 (1977). As we locations—such as over water—may be safer, the
previously recognized in [citation], the comments to Puyallup Fairgrounds is an appropriate place for a
section 520 explain how these factors should be fireworks show because the audience can be seated at a
evaluated: Any one of them is not necessarily sufficient of reasonable distance from the display. Therefore, the
itself in a particular case, and ordinarily several of them clause (e) factor is not present in this case.
will be required for strict liability. On the other hand, it The factor stated in clause (f) requires analysis of the
is not necessary that each of them be present, especially if extent to which the value of fireworks to the community
others weigh heavily. Because of the interplay of these outweighs its dangerous attributes. We do not find that
various factors, it is not possible to reduce abnormally this factor is present here. This country has a long-
dangerous activities to any definition. The essential standing tradition of fireworks on the 4th of July. That
question is whether the risk created is so unusual, either tradition suggests that we as a society have decided that
because of its magnitude or because of the circumstances the value of fireworks on the day celebrating our national
surrounding it, as to justify the imposition of strict independence and unity outweighs the risks of injuries
liability for the harm that results from it, even though it and damage.
is carried on with all reasonable care. Restatement
In sum, we find that setting off public fireworks displays
(Second) of Torts §520, Comment f (1977). Examination
satisfies four of the six conditions under the Restatement
of these factors persuades us that fireworks displays are
test; that is, it is an activity that is not “of common usage”
abnormally dangerous activities justifying the imposition
and that presents an ineliminably high risk of serious
of strict liability.
bodily injury or property damage. We therefore hold
We find that the factors stated in clauses (a), (b), and (c) that conducting public fireworks displays is an
are all present in the case of fireworks displays. Any time abnormally dangerous activity justifying the imposition of
a person ignites aerial shells or rockets with the intention strict liability.
of sending them aloft to explode in the presence of large
***
crowds of people, a high risk of serious personal injury or
property damage is created. That risk arises because of Conclusion
the possibility that a shell or rocket will malfunction or We hold that Pyrodyne Corporation is strictly liable for
be misdirected. Furthermore, no matter how much care all damages suffered as a result of the July 1987 fireworks
pyrotechnicians exercise, they cannot entirely eliminate display. Detonating fireworks displays constitutes an
the high risk inherent in setting off powerful explosives abnormally dangerous activity warranting strict liability *
such as fireworks near crowds. * *. This establishes the standard of strict liability for
*** pyrotechnicians. Therefore, we affirm the decision of the
The factor expressed in clause (d) concerns the extent to trial court.
which the activity is not a matter “of common usage.”
The Restatement explains that “[a]n activity is a matter of
common usage if it is customarily carried on by the great
Case Questions
1. Did the type of fireworks that exploded make a difference in this case?
2. What is the argument for allowing such dangerous activities as fireworks displays?
3. Why should those who practice abnormally dangerous activities such as blasting or crop dusting bear the
burden of strict liability? If the activity is socially desirable, why shouldn’t society bear the burden?
Ethical Question: Is it ethical to engage in abnormally dangerous activities? Explain.
Critical Thinking Question: If an activity is abnormally dangerous, should the law abolish it?
Keeping of Animals
Strict liability for harm caused by animals existed at common law and continues today with some changes.
As a general rule, people who possess animals do so at their peril and must protect against harm to other
people and their property.
Trespassing Animals — Owners and possessors of animals are subject to strict liability for physical harm
done if their animals trespass. Three exceptions to this rule: 1) keepers of cats and dogs are liable only for
negligence; 2) keepers of animals are not strictly liable for animals, such as sheep, straying from a highway
on which they are being lawfully driven, although the owner may be liable for negligence if he fails to
control them properly; and 3) in some western states keepers of farm animals, typically cattle, are not
strictly liable for harm caused by their trespassing animals that are allowed to graze freely.
Nontrespassing Animals — Owners and possessors of wild animals are strictly liable for harm caused by
such animals, whether or not they are trespassing. Wild animals are defined as those that are known to be
likely to inflict serious damage and that cannot ever be considered safe; includes bears, lions, elephants,
monkeys, tigers, deer, and raccoons. Keepers of domestic animals are liable if they know, or should have
known, of the animal’s dangerous propensity, which is the cause of the harm. Examples of domestic
animals include dogs, cats, horses, cattle, and sheep.

Identify the defenses that are available in a tort action in strict liability.
B. DEFENSES TO STRICT LIABILITY

Contributory Negligence
Contributory negligence is not a defense. The strict liability for one who carries on an abnormally
dangerous activity, keeps animals, or sells defective products that are unreasonably dangerous is not based
on his negligence, so the ordinary contributory negligence of the plaintiff is not a defense. The full
responsibility for preventing harm is on the defendant.
Comparative Negligence
Comparative negligence is a defense in some states. Despite the rationale that disallows contributory
negligence as a defense to strict liability, some states apply the doctrine of comparative negligence to strict
liability, particularly products liability.
Assumption of Risk
Voluntary assumption of risk is a defense to an action based on strict liability, but the assumption of
risk must be voluntary.
ANSWERS TO PROBLEMS
1. A statute requiring railroads to fence their tracks is construed as intended solely to

prevent animals that stray onto the right of way from being hit by trains. B & A Railroad
Co. fails to fence its tracks. Two of Calvin's cows wander onto the track. Nellie is hit by
a train. Elsie is poisoned by weeds growing beside the track. For which cows, if any, is B
& A Railroad liable to Calvin? Why?
Answer: Violation of Statute. The railroad company is liable for Nellie, the cow that was
hit by the train, and probably not for Elsie. For a statute to be adopted as the standard of
conduct of a reasonable man, the intent of the statute must have been to protect the
interest against that particular harm which occurred and against that hazard from which
the harm resulted. The intent of this statute was to protect cows from the hazard of the
trains, not from poisonous weeds. Third Restatement, Section 14. With respect to Elsie,
the facts do not indicate whether the railroad was otherwise negligent towards Elsie or
whether Calvin is negligent for allowing his cows to roam freely.
2. Martha invites John to lunch. Martha knows her private road is dangerous to travel,
having been heavily eroded by recent rains. She doesn't warn John of the condition,
reasonably believing that he will notice the deep ruts and exercise sufficient care. While
John is driving, his attention is diverted from the road by the screaming of his child, who
has been stung by a bee. He fails to notice the condition of the road, hits a rut, and skids
into a tree. If John is not contributorily negligent, is Martha liable to John?
Answer: Duty to Invitees. No. A possessor of land who knows of dangerous conditions on
his property and fails to warn licensees is liable only if he should expect that they will
not discover the danger. Restatement, Second, Torts, Section 342. In this case, it
appears that Martha reasonably expected John to notice the dangerous conditions. The
situation may be different if he had been invited for dinner and had to travel the road at
night.
3. Nathan is run over by a car and left lying in the street. Sam, seeing Nathan's helpless
state, places him in his car for the purpose of taking him to the hospital. Sam drives
negligently into a ditch, causing additional injury to Nathan. Is Sam liable to Nathan?
Answer: Duty of Care. Yes, for the additional injuries. A person who begins a rescue by
taking charge of another who is imperiled and unable to protect himself incurs a duty to
exercise reasonable care under the circumstances. Furthermore, a person who
discontinues aid or protection is under a duty of reasonable care not to leave the other in
a worse position. Third Restatement, Section 44.
4. Led Foot drives his car carelessly into another car. The second car contains dynamite,
which Led had no way of knowing. The collision causes an explosion which shatters a
window of a building half a block away on another street. The flying glass inflicts
serious cuts on Sally, who is working at a desk near the window. The explosion also
harms Vic, who is walking on the sidewalk near the point of the collision. Toward whom
is Led Foot negligent?
Answer: Scope of Liability (Proximate Cause) Comment j to Section 29 of the Third

Restatement explains that both the risk standard (for negligent conduct) and the
foreseeability test (for scope of liability) “exclude liability for harms that were
sufficiently unforeseeable at the time of the actor’s tortious conduct that they were not
among the risks—potential harms—that made the actor negligent. Negligence limits the
requirement of reasonable care to those risks that are foreseeable.” This problem is
essentially the same as an example in the text. Led Foot would be liable to Vic because
Led Foot should have realized that his negligent driving might result in a collision that
would endanger pedestrians nearby. Sally’s harm, however, was beyond the risks posed
by Led Foot’s negligent driving and he, accordingly, is not liable to Sally.
5. A statute requires all vessels traveling on the Great Lakes to provide lifeboats. One of
Winston Steamship Company's boats is sent out of port without a lifeboat. Perry, a
sailor, falls overboard in a storm so heavy that had there been a lifeboat, it could not
have been launched. Perry drowns. Is Winston liable to Perry's estate?
Answer: Causation. No. For liability to exist there must be negligence and that negligence
must be a legal cause of the harm. If the harm would have occurred in the absence of the
negligence, the negligence is not a legal cause. A widely applied test for causation in
fact is the “but-for” test: A person’s conduct is a cause of an event if the event would not
have occurred but for the person’s negligent conduct. That is, conduct is a factual cause
of harm when the harm would not have occurred absent the conduct. Third Restatement,
Section 26.
6. Lionel is negligently driving an automobile at excessive speed. Reginald’s negligently

driven car crosses the center line of the highway and scrapes the side of Lionel’s car,
damaging its fenders. As a result, Lionel loses control of his car, which goes into the
ditch, wrecking the car and causing personal injuries to Lionel. What can Lionel
recover?
Answer: Defenses to Negligence. The question here is whether Lionel’s negligent conduct
was a contributing factor to the accident. The Third Restatement, Section 463, defines
contributory negligence as “conduct on the part of the plaintiff which falls below the
standard to which he should conform for his own protection, and which is a legally
contributing cause co-operating with the negligence of the defendant in bringing about
the plaintiff’s harm.” The Third Restatement’s definition of negligence as the failure of a
person to exercise reasonable care under all the circumstances applies to the contributory
negligence of the plaintiff. Section 3, Comment b.
Here it appears that the plaintiff’s negligence may not be a substantial factor in causing
his harm and thus he could collect for both personal injuries and property damage. If, on
the other hand, one concluded that the plaintiff was contributorily negligent, he would be
totally barred from recovery in those states that still recognize the traditional doctrine but
could collect a proportional share of his injuries in those states that have adopted the
doctrine of comparative negligence.
7. Ellen, the owner of a baseball park, is under a duty to the entering public to provide a
reasonably sufficient number of screened seats to protect those who desire such
protection against the risk of being hit by batted balls. Ellen fails to do so.
(a)Frank, a customer entering the park, is unable to find a screened seat and, although
fully aware of the risk, sits in an unscreened seat. Frank is struck and injured by a batted
ball. Is Ellen liable?
(b) Gretchen, Frank's wife, has just arrived from Germany and is viewing baseball for
the first time. Without asking any questions, she follows Frank to a seat. After the batted
ball hits Frank, it caroms into Gretchen, injuring her. Is Ellen liable to Gretchen?
Answer: Assumption of Risk. (a) Under the Second Restatement of Torts: No, Frank has
voluntarily assumed the risk and, therefore, is not entitled to recover for harm arising out
of the assumed risk. Restatement, Second, Torts, Section 496C, Illustration 4.
However, the Third Restatement of Torts: Apportionment of Liability has abandoned the
doctrine of implied voluntary assumption of risk: it is no longer a defense that the
plaintiff was aware of a risk and voluntarily confronted it. But if a plaintiff’s conduct in
the face of a known risk is unreasonable, it might constitute contributory negligence,
thereby reducing the plaintiff’s recovery under comparative negligence. This new
Restatement limits the defense of assumption of risk to express assumption of risk,
which consists of a contract between the plaintiff and another person to absolve the other
person from liability for future harm. On these facts it would appear that Frank could
recover unless his sitting there is contributorily negligent. Ellen would be subject to
liability to Gretchen for her failure to satisfy the duty she owed to Gretchen. On these
facts, Gretchen has not assumed the risk, because she has no knowledge of the possible
risk. Illustration 5, Section 496C, Second Restatement. The same result under the Third
Restatement because she would not be considered contributorily negligent.
8. Negligent in failing to give warning of the approach of its train to a crossing, CC

Railroad thereby endangers Larry, a blind man who is about to cross. Mildred, a
bystander, in a reasonable effort to save Larry, rushes onto the track to push Larry out
of danger. Although Mildred acts as carefully as possible, she is struck and injured by
the train.
a. Can Mildred recover from Larry?
b. Can Mildred recover from CC Railroad?
Answer: Duty of Care. (a) No. Larry is not liable to Mildred because Larry did not breach a
duty owed to Mildred. (b) Yes. Mildred does not assume the risk. A plaintiff’s
acceptance of risk is not regarded as voluntary where the defendant’s tortious conduct
has forced upon him a choice of courses of conduct, which leaves him no reasonable
alternative to taking his chances. As Cardozo said: “Danger invites rescue.” Moreover,
it was foreseeable that Mildred would attempt to rescue Larry. Therefore, CC Railroad
is liable to Mildred. The same result under the Third Restatement because Mildred
would not be considered contributorily negligent.
9. Vance was served liquor while he was an intoxicated patron of the Clear Air Force
Station Non-Commissioned Officers' Club. He later injured himself as a result of his
intoxication. An Alaska state statute makes it a crime to give or to sell liquor to
intoxicated persons. Vance has brought an action seeking damages for the injuries he
suffered. Could Vance successfully argue that the United States was negligent per se by
its employee's violation of the statute?
Answer: Reasonable Person Standard/Violation of Statute. Yes. An unexcused violation
of a statute or regulation is negligence in itself, or negligence per se if the court adopts
the statute as defining the conduct of a reasonable person.
Courts may adopt the requirements of the statute as the standard of conduct if the statute is
designed to protect against the type of accident the defendant’s conduct causes and the
accident victim is within the class of persons the statute is designed to protect. Third
Restatement, Section 14.
Applying these criteria to the statute in question, it is clear that all of the requirements are
satisfied. The statute unquestionably is designed to protect against personal injuries
caused by intoxication. And while the statute’s particular purpose may be to protect
third parties from the negligence of an intoxicated consumer, the purpose is also, at least
in part, to protect the consumer himself. Vance v. United States, 355 F. Supp. 756 (D.
Alaska, 1973).
10. Timothy keeps a pet chimpanzee, which is thoroughly tamed and accustomed to playing
with its owner's children. The chimpanzee escapes, despite every precaution to keep it
upon its owner's premises. It approaches a group of children. Wanda, the mother of one
of the children, erroneously thinking the chimpanzee is about to attack the children,
rushes to her child's assistance. In her hurry and excitement, she stumbles and falls,
breaking her leg. Can Wanda recover for her personal injuries?
Answer: Strict Liability: Keeping Animals. Yes. Owners and possessors of wild animals
are subject to strict liability for physical harm caused by such animals, whether they are
trespassing or not. Third Restatement, Section 22(b). Accordingly the owner or
possessor is liable even if she has exercised reasonable care in attempting to restrain the
wild animal. “A wild animal is an animal that belongs to a category of animals that have
not been generally domesticated and that are likely, unless restrained, to cause personal
injury.” Section 22(b). Moreover, it was foreseeable that a parent or other person would
attempt to protect or rescue a child endangered by the chimpanzee.
11. Hawkins slipped and fell on a puddle of water just inside of the automatic door to the H.
E. Butt Grocery Company's store. The water had been tracked into the store by
customers and blown through the door by a strong wind. The store manager was aware
of the puddle and had mopped it up several times earlier in the day. Still, no signs had
been placed to warn store patrons of the danger. Hawkins brought an action to recover
damages for injuries sustained in the fall. Was the store negligent in its conduct?
Answer: Duty to Invitees. Yes. Decision for Hawkins. The grocery store had the duty to
use ordinary care to keep its premises in a reasonably safe condition for invitees or to
warn them of a hazard. Whether a condition constitutes a danger is a function of

reasonableness. That is, if the ordinarily prudent man could foresee that harm was a
likely result of a condition, then it is a danger. The store knew or should have known
that water was present and continuing to accumulate on the floor, and they negligently
failed to remove the water or warn customers of the potential hazard. H.E. Butt Grocery
Co. v. Hawkins, 594 S.W. 2d 197 (1980).
12. Escola, a waitress, was injured when a bottle of Coca-Cola exploded in her hand while
she was putting it into the restaurant's cooler. The bottle came from a shipment that had
remained under the counter for thirty-six hours after being delivered by the bottling
company. The bottler had subjected the bottle to the method of testing for defects
commonly used in the industry, and there is no evidence that Escola or anyone else did
anything to damage the bottle between its delivery and the explosion. Escola brought an
action against the bottler for damages. Since she is unable to show any specific acts of
negligence on its part, she seeks to rely on the doctrine of res ipsa loquitur. Should she
be able to recover on this theory? Explain.
Answer: Res Ipsa Loquitur. Decision for Escola. Res ipsa loquitur permits the jury to infer
both negligent conduct and causation from the mere occurrence of certain types of
events. This rule applies “when the accident causing the plaintiff's physical harm is a
type of accident that ordinarily happens as a result of the negligence of a class of actors
of which the defendant is the relevant member.” Third Restatement, Section 17.In the
case upon which this problem is based, the court allowed Escola to rely on the doctrine
even though the bottle was not in the defendant’s exclusive possession when it exploded,
because she had shown that the bottle was not damaged by extraneous force after its
delivery by the defendant. With the inference established, the jury may conclude that
the bottle must have been defective. Because the bottler’s evidence did not refute this
conclusion, Escola is entitled to recover. Escola v. Coca Cola Bottling Co. of Fresno, 24
Cavl.2d 453, 150 P.2d 436 (1944).
13. Hunn injured herself when she slipped and fell on a loose plank while walking down
some steps . The night before, while entering the hotel, she had noticed that the steps
were dangerous, and although she knew from her earlier stays at the hotel that another
exit was available, she chose that morning to leave via the dangerous steps. The hotel
was aware of the hazard, as one of the other guests who had fallen that night had
reported his accident to the desk clerk then on duty. Still, there were no cautionary signs
on the steps to warn of the danger, and they were not roped off or otherwise excluded
from use. Hunn brought an action against the hotel for injuries she sustained as a result
of her fall. Should she recover damages? Explain.
Answer: Defenses to Negligence/Contributory Negligence & Assumption of Risk. No,
Hunn will not recover damages under the Second Restatement. There were other routes
the plaintiff could have taken that were lower risk and reasonably convenient. Hunn had
a full appreciation of the danger of the steps and voluntarily accepted the risk. Under the
Third Restatement of Torts: Apportionment of Liability, however,there is no doctrine of
implied voluntary assumption of risk; thus it is not a defense that the plaintiff was aware
of a risk and voluntarily confronted it. But if a plaintiff’s conduct in the face of a known
risk is unreasonable, it might constitute contributory negligence, thereby reducing the
plaintiff’s recovery under comparative negligence. On these facts it would appear that
Hunn was contributorily negligent. Consequently, her recovery, will depend on her
degree of comparative fault. Hunn v. Windsor Hotel Company, 119 W. Va. 215, 193 S.E.
57 (1937).
14. Fredericks, a hotel owner, had a dog named “Sport” that he had trained as a watchdog.
When Vincent Zarek, a guest at the hotel, leaned over to pet the dog, it bit him. Although
Sport had never bitten anyone before, Fredericks was aware of the dog's violent
tendencies and, therefore, did not allow it to roam around the hotel alone. Vincent
brought an action for injuries sustained when the dog bit him. Is Fredericks liable for
the actions of his dog? Explain.
Answer: Strict Liability/Keeping of Animals. Yes, Fredricks is liable to Zarek. The
defendant knew and feared the consequences and vicious propensities of “Sport” and
had taken precautions against them. Owners and possessors of domestic animals are
subject to strict liability if they knew, or had reason to know, of an animal’s dangerous
tendencies abnormal for the animal’s category. Third Restatement, Section 23. Zarek v.
Fredericks, 138 F. 2d 689 (C.A. 3d 1943).
15. Two thugs in an alley in Manhattan held up an unidentified man. When the thieves
departed with his possessions, the man quickly gave chase. He had almost caught one
when the thief managed to force his way into an empty taxicab stopped at a traffic light.
The Peerless Transport Company owned the cab. The thief pointed his gun at the
driver's head and ordered him to drive on. The driver started to follow the directions
while closely pursued by a posse of good citizens, but then suddenly jammed on the
brakes and jumped out of the car to safety. The thief also jumped out, but the car
traveled on, injuring Mrs. Cordas and her two children. The Cordases then brought an
action for damages, claiming that the cab driver was negligent in jumping to safety and
leaving the moving vehicle uncontrolled. Was the cab driver negligent? Explain.
Answer: Reasonable Person Standard/Emergencies. No. Judgment for Peerless Transport
Company. The court stated that the test of actionable negligence is what a reasonably
prudent person would have done under like conditions or circumstances. Therefore, to
determine if the cab driver was negligent in abandoning his cab, his actions must be
compared with what a reasonable person would have done in a similar circumstance. In
general, one faced with an emergency is not required to exercise the same mature
judgment that is expected of him under circumstances where he has an opportunity for
deliberate action. Here, the cab driver was faced with a most frightening experience and
made a split-second decision in an attempt to extricate himself from the danger. The
court concluded that it could not be said that he had acted unreasonably under the
emergency circumstances, and therefore the Cordases are not entitled to recover.
Cordas v. Peerless Transportation Co., 27 N.Y.S. 2d 198 (1941).
16. A foul ball struck Marie Uzdavines on the head while she was watching the Metropolitan
Baseball Club (“The Mets”) play the Philadelphia Phillies at “The Mets” home stadium
in New York. The ball came through a hole in a screen designed to protect spectators
sitting behind home plate. The screen contained several holes that had been repaired
with baling wire lighter in weight than the wire used in the original screen. Although the
manager of the stadium makes no formal inspections of the screen, his employees do try
to repair the holes as they find them. Weather conditions, rust deterioration, and
baseballs hitting the screen are the chief causes of these holes. The owner of the
stadium, the city of New York, leases the stadium to “The Mets” and replaces the entire
screen every two years. Uzdavines sued “The Mets” for negligence under the doctrine of
res ipsa loquitur. Is this an appropriate case for res ipsa loquitur? Explain.
Answer: Res Ipsa Loquitur. Yes. Judgment for Uzdavines. Res ipsa loquitur permits the
jury to infer both negligent conduct and causation from the mere occurrence of certain
types of events. This rule applies “when the accident causing the plaintiff's physical
harm is a type of accident that ordinarily happens as a result of the negligence of a class
of actors of which the defendant is the relevant member.” Third Restatement, Section 17.
In the case upon which tis problem is based the court ruled as follows: Under res ipsa
loquitur, Uzdavines must show that: (1) the event is of a kind that ordinarily does not
occur in the absence of someone’s negligence; (2) “The Mets” had exclusive control
over the instrumentality (the protective screen) that caused the event; (3) the event was
not due to any voluntary action or contribution on her part; and (4) evidence explaining
the incident is more readily available to “The Mets” than to her. On these facts it is clear
that the first, third, and fourth requirements have been met. To prove that “The Mets”
exercised “exclusive control,” Uzdavines need only establish that they exercised “a
degree of domination sufficient to identify defendant with probability as the party
responsible” for her injuries.
Both “The Mets” and the city of New York owed an independent duty to a spectator that
requires “The Mets” to exercise strict control of the screen, assuring the public that they
may rely on the implied safety of sitting in that area. Since “The Mets” were under a
duty to maintain and control the protective screening, the exclusive control requirement
of res ipsa loquitur is satisfied and the doctrine applies to this case. Uzdavines v.
Metropolitan Baseball Club, Inc., Civil Court of the City of New York, 115 Misc.2d 343,
454 N.Y.S.2d 238 (1982).
17. Two-year-old David Allen was bitten by Joseph Whitehead's dog while he was playing
on the porch at the Allen residence. Allen suffered facial cuts, a severed muscle in his
left eye, a hole in his left ear, and scarring over his forehead. Through his father, David
sued Whitehead, claiming that, as owner, Whitehead is responsible for his dog's actions.
Whitehead admitted that (a) the dog was large, mean-looking, and frequently barked at
neighbors; (b) the dog was allowed to roam wild; and (c) the dog frequently chased and
barked at cars. He stated, however, that (a) the dog was friendly and often played with
his and neighbors' children; (b) he had not received previous complaints about the dog;
(c) the dog was neither aggressive nor threatening; and (d) the dog had never bitten
anyone before this incident. Is Whitehead liable?
Answer: Strict Liability. No. Decision for Whitehead. Owners and possessors of domestic
animals are subject to strict liability if they knew, or had reason to know, of an animal’s
dangerous tendencies abnormal for the animal’s category. Third Restatement, Section
23. The animal’s dangerous propensity must be the cause of the harm. The evidence
shows only that Whitehead's dog was large and mean looking, chased and barked at cars,
and frequently barked at neighbors. These facts are not proof that the dog had vicious
propensities. Whitehead's previous knowledge of his dog's playfulness with children is
not sufficient to prove that he knew or had reason to know that the dog would attack and
bite a child.
18. Larry VanEgdom, in an intoxicated state, bought alcoholic beverages from the Hudson
Municipal Liquor Store in Hudson, South Dakota. An hour later, VanEgdom, while
driving a car, struck and killed Guy William Ludwig, who was stopped on his motorcycle
at a stop sign. Lela Walz, as special administrator of Ludwig's estate, brought an action
against the city of Hudson, which operated the liquor store, for the wrongful death of
Ludwig. Walz alleged that the store employee was negligent in selling intoxicating
beverages to VanEgdom when he knew or could have observed that VanEgdom was
drunk. Decision?
Answer: Violation of Statute. Judgment for Walz. South Dakota forbids the sale of
intoxicating beverages to one in a drunken state. Courts may adopt the requirements of
the statute as the standard of conduct if the statute is designed to protect against the type
of accident the defendant’s conduct causes and the accident victim is within the class of
persons the statute is designed to protect. Third Restatement, Section 14. This statute is
designed to protect, among others, such individuals as Ludwig from the risk of being
killed or injured "as a result of the drunkenness to which the particular sale of alcoholic
liquor contributes." This is a standard of care to which reasonably prudent persons are
held; violation of the statute is a breach of legal duty and thus is negligence. Walz v.
Hudson, Supreme Court of South Dakota, 327 N.W.2d 120 (1982).
19. The MacGilvray Shiras was a ship owned by the Kinsman Transit Company. During the
winter months, when Lake Erie was frozen, the ship and others moored at docks on the
Buffalo River. As oftentimes happened, one night an ice jam disintegrated upstream,
sending large chunks of ice downstream. Chunks of ice began to pile up against the
Shiras, which at that time was without power and manned only by a shipman. The ship
broke loose when a negligently constructed "deadman" to which one mooring cable was
attached pulled out of the ground. The "deadman" was operated by Continental Grain
Company. The ship began moving down the S-shaped river stern first and struck another
ship, the Tewksbury. The Tewksbury also broke loose from its mooring, and the two
ships floated down the river together. Although the crew manning the Michigan Avenue
Bridge downstream had been notified of the runaway ships, they failed to raise the
bridge in time to avoid a collision because of a mix-up in the shift changeover. As a
result, both ships crashed into the bridge and were wedged against the bank of the river.
The two vessels substantially dammed the flow of the river, causing ice and water to
back up and flood installations as far as three miles upstream. The injured parties
brought this action for damages against Kinsman, Continental, and the city of Buffalo.
Who, if any, is liable?
Answer: Proximate Cause. Judgment for the injured parties. A ship insecurely moored in a
fast-flowing river is a known danger to the owners of all ships and structures down the
river and to persons upon them. Kinsman and Continental, then, owed a duty of care to
all within the foreseeable reach of the ship’s destructive path. Similarly, the city is liable
to those who foreseeably could have been injured by its negligent failure to raise the
bridge in time to prevent the collision. Finally, although the exact type of harm that
occurred was not foreseeable, this does not prevent liability. The damage resulted from
the same physical forces whose existence required the exercise of greater care than was
displayed and was of the same general type that was foreseeable.
20. Carolyn Falgout accompanied William Wardlaw as a social guest to Wardlaw's

brother's camp. After both parties had consumed intoxicating beverages, Falgout walked
onto a pier that was then only partially completed. Wardlaw had requested that she not
go on the pier. Falgout said, "Don't tell me what to do," and proceeded to walk on the
pier. Wardlaw then asked her not to walk past the completed portion of the pier. She
ignored his warnings and walked to the pier's end. When returning to the shore, Falgout
got her shoe caught between the boards. She fell, hanging by her foot, with her head and
arms in the water. Wardlaw rescued Falgout, who had seriously injured her knee and
leg. She sued Wardlaw for negligence. Decision?
Answer: Duty to Licensee. Judgment for Wardlaw. A possessor of land owes a duty to warn
a licensee of dangerous activities and conditions (1) of which the possessor has
knowledge or has reason to know and (2) which the licensee does not and is not likely to
discover. A licensee who is not warned may recover if the activity or dangerous
condition resulted from the possessor’s failure to exercise reasonable care to protect him
from the danger. Restatement, Section 342. As a social guest, Falgout was a licensee.
Wardlaw’s duty to Falgout was to warn her of the dangerous condition. Wardlaw
discharged this duty and, accordingly, is not liable to Falgout.
21. Joseph Yania, coal strip-mine operator, and Boyd Ross visited a coal strip-mining
operation owned by John Bigan to discuss a business matter with Bigan. On Bigan’s
property there were several cuts and trenches he had dug to remove the coal beneath.
While there, Bigan asked the two men to help him pump water from one of these cuts in
the earth. This particular cut contained water eight to ten feet deep, with side walls or
embankments sixteen to eighteen feet high. The two men agreed, and the process began
with Ross and Bigan entering the cut and standing at the point where the pump was
located. Yania stood at the top of one of the side walls. Apparently, Bigan taunted Yania
into jumping into the water from the top of the side wall. As a result, Yania drowned. His
widow brought a negligence action against Bigan. She claims that Bigan was negligent
“1) by urging, enticing, taunting and inveigling Yania to jump into the water; 2) by
failing to warn Yania of a dangerous condition on the land . . .; [and] 3) by failing to go
to Yania’s rescue after he jumped into the water.” Was Bigan negligent?
Answer: Duty to Invitees. No. Judgment for Bigan. Taunting and enticement will only
constitute actionable negligence if directed “at a child of tender years or a person
mentally deficient.” Therefore, Bigan’s taunting of Yania, who was an adult in full
possession of his mental faculties, is not negligence.
In addition, the owner of the land ordinarily has, at the least, a duty to warn invitees of
known or discoverable dangers the owner should realize involve an unreasonable risk of
harm to them. This warning is required only if the owner has no reason to believe the
invitee will discover the condition or realize the risk of harm. Here, however, the
dangers of the water-filled trench were “obvious and apparent to Yania,” who was also a
coal strip-mine operator. Accordingly, Bigan is not negligent in failing to warn Yania of
the obvious.
Finally, despite Bigan’s tauntings, Yania jumped into the water of his own accord. Bigan
was not legally responsible, in whole or in part, for placing Yania in his perilous and
fatal position. Therefore, although he may have had a moral responsibility, Bigan did not
have a legal responsibility to rescue Yania, who died of his own foolhardiness.
22. Rebecca S. Dukat arrived at Mockingbird Lanes, a bowling alley in Omaha, Nebraska,
at approximately 6 p.m. to bowl in her league game. The bowling alley’s parking lot and
adjacent sidewalk were snow- and ice-covered. Dukat proceeded to walk into the
bowling alley on the only sidewalk provided in and out of the building. She testified that
she noticed the sidewalk was icy. After bowling three games and drinking three beers,
Dukat left the bowling alley at approximately 9 p.m. She retraced her steps on the same
sidewalk, which was still ice-covered and in a condition that, according to Frank
Jameson, general manager of Mockingbird Lanes, was “unacceptable” if the bowling
alley were open to customers. As Dukat proceeded along the sidewalk to her car, she
slipped, attempted to catch herself by reaching toward a car, and fell. She suffered a
fracture of both bones in her left ankle as well as a ruptured ligament. Dukat sued
Leiserv, Inc., doing business as Mockingbird Lanes, alleging that Leiserv was negligent
in failing to keep the sidewalk in a reasonably safe condition, in failing to warn her of a
dangerous condition, and in failing to take adequate and reasonable measures to protect
her. Leiserv alleged two affirmative defenses: (1) Dukat was contributorily negligent,
and (2) Dukat had assumed the risk of injury. Decision?
Answer: Assumption of Risk and Contributory Negligence. Under the Second and Third
Restatements Dukat was probably contributorily negligent. It is clear from Dukat's
testimony that she knew of the icy condition of the sidewalk as she entered the bowling
alley and despite this knowledge may have done things a reasonably careful person
might not have done. For example, the evidence shows that Dukat drank three beers
while she was at the bowling alley and that she decided to navigate the same icy path she
had come in on without asking the assistance of one of her friends who remained inside
the bowling alley. A reasonable person might also have asked management to spread an
ice-melting substance on the sidewalk and delayed their departure. If she is
contributorily negligent, then her recovery, if any, depends upon the rule followed by the
state in which the injury occurred and her degree of fault.
Smith and Roberson’s Business Law Mann Roberts 15th Edition Solutions Manual
Regarding the possible defense of assumption of the risk, under the Second Restatement
of Torts she may have voluntarily assumed the risk and, therefore, is not entitled to
recover for harm arising out of the assumed risk. However, the Third Restatement of
Torts: Apportionment of Liability has abandoned the doctrine of implied voluntary
assumption of risk: it is no longer a defense that the plaintiff was aware of a risk and
voluntarily confronted it. But if a plaintiff’s conduct in the face of a known risk is
unreasonable, it might constitute contributory negligence, thereby reducing the
plaintiff’s recovery under comparative negligence. On these facts it would appear that
Dukat was contributorily negligent and her recovery, if any, depends upon the rule
followed by the state in which the injury occurred and her degree of fault.
23.
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NEGLIGENCE AND STRICT LIABILITY

Cases in This Chapter

*** Question to Discuss ***

A plaintiff alleging negligence has to prove five elements:

A. BREACH OF DUTY OF CARE

*** Question to Discuss ***

e) persons with superior knowledge, and f) persons acting in an emergency.

Duties of Possessors of Land

*** Question to Discuss ***

Res Ipsa Loquitur

*** Question to Discuss ***

II. STRICT LIABILITY

*** Question to Discuss ***

A. ACTIVITIES GIVING RISE TO STRICT LIABILITY

*** Question to Discuss ***

B. DEFENSES TO STRICT LIABILITY

1. A statute requiring railroads to fence their tracks is construed as intended solely to

Answer: Scope of Liability (Proximate Cause) Comment j to Section 29 of the Third

6. Lionel is negligently driving an automobile at excessive speed. Reginald’s negligently

8. Negligent in failing to give warning of the approach of its train to a crossing, CC

warn them of a hazard. Whether a condition constitutes a danger is a function of

20. Carolyn Falgout accompanied William Wardlaw as a social guest to Wardlaw's

CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 26

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