Solution Manual For Walston Dunham Introduction To Law 7th

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CHAPTER 9
TORTS
CHAPTER OUTLINE
What Is a Tort?
The Development of Tort Law
• Trespass and Trespass on the Case
• Liability of Parties
• Increase in Tort Claims
Terminology in Torts
Negligence
• The Concept of Duty
• Range of Possible Injury
• Degree of Duty
• The Standard of Care
• Proximate Cause
• Damage
• Res Ipsa Loquitur
Strict Liability
Intentional Torts
• Assault
• Battery
• False Imprisonment
• Trespass
• Fraud
• Defamation
• Emotional Distress
• Special Damages Awarded for Intentional Torts
Product Liability
• Causes of Action
• Defenses
• Statute of Limitations
Employment and Torts
• Employer–Employee Relationship
• Statutes Governing the Employment Relationships Involved in Tort Actions
• Employer Liability Laws
• Discrimination Issues
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© 2020 Cengage Learning, Inc. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
Medical Malpractice
Effects of Electronic Communications on Modern Tort Law
Tort Defenses
• Contributory and Comparative Negligence
• Assumption of Risk
• Last Clear Chance
• Intentional Tort Defenses
Damages in Tort Actions
LECTURE KEYS
1. Tort law involves only civil matters. It does not include contract actions.
2. A tort arises when a party infringes on the rights of another person (or
government) when there was no permission or agreement to do so and causes
harm as a result of that infringement. The action (tort) committed by one party
was without permission or approval of the other party irrespective of the parties’
relationship (which is essential in a contract action).
3. During the Middle Ages, the English government instituted what came to be
known as forms of action. When someone had a grievance against another, the
injured party was required to file a complaint stating the facts and, specifically,
which form of action (law) allowed him or her to bring the lawsuit.
4. Two of the most commonly employed forms of action were trespass and trespass
on the case. To avoid confusion, it is important to note that during the Middle
Ages the word trespass meant “wrong” rather than its current meaning of
intrusion into another’s property.
5. In the early 1800s, two factors contributed to the development of tort law as it
exists in the United States today.
a. As the populations of urban areas increased, accidents among private citizens
rose dramatically.
b. Injuries from employment grew as the Industrial Revolution got under way.
6. In the 1820s, the U.S. government began to accept the action of negligence as a
basis for liability. Negligence applied to all persons, including parties not
previously included by contract or law, in disputes over injuries received as the
result of a person’s failure to act carefully in the interest of others.
7. Shortly after the emergence of negligence as a legal concept, the courts began to
develop and refine related bases for liability such as the actions for intentional
torts and, later, strict liability as well as the recognition of legal defenses for
conduct that would otherwise be considered improper.
8. In recent years, the phrase litigation explosion has become commonplace. With
the increase in technology, industry, and population, the number of lawsuits has
increased dramatically along with their consequential impact on the economy.
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9. Many actions in tort are defended by insurance companies that insure the
defendant. The chain reaction is that as costs for the insurance company increase,
costs of insurance premiums go up. As these increases are passed on in costs to
consumers, they contribute to overall inflation.
10. In response to this so-called explosion, many legislatures have adopted laws that
place restrictions on the amounts that can be awarded in certain types of tort
claims and sometimes even on the circumstances under which certain tort claims
can be filed.
11. The following are essential terms frequently encountered in the law of torts:
• Negligence: The basis for those causes of action among parties who claim (1)
that a legal duty was owed by another, (2) that by failing to engage in
reasonable conduct (of a standard that would prevent the harm), that duty was
violated or breached, and (3) that as a proximate result of that breach, the
complaining party was significantly injured or damaged.
• Reasonable conduct: Requires the actor to evaluate the surroundings, all
benefits, and all risks and to respond in the most careful manner. This
measurement of the reasonableness of the alleged liable person does not
usually take into account the mental state of the actor. It does, however, take
into account the intelligence, age, experience, and physical conditions over
which the actor has no control.
• Foreseeability: Determined by a finding of whether the risk of harm was
known to the actor by constructive knowledge (what the actor knew or, by
reasonable examination of the situation, should have known).
• Proximate cause: The injuries occurred as a consequence of the breach of the
duty by the actor both as a matter of fact and as a matter of law.
• Intentional tort: The actor must have the intent to engage in conduct that will,
with near certainty, produce a result that invades the rights of or injures
another.
• Strict liability: Applied in situations where the actor derives some benefit
from an activity that is extremely dangerous to other parties who have no
control over the situation.
12. In an action for negligence, the following elements must be proven:
a. The actor (defendant) owed a duty to the injured party (plaintiff) to
refrain from conduct that would cause injury.
b. By failing to exercise a care of a reasonable standard, the actor breached his or
her duty.
c. The breach of the duty proximately caused an injury to the plaintiff.
d. The plaintiff’s injuries are significant enough to be measurable and warrant
compensation from the actor.
See Practical Application 9.1 and the Point for Discussion.
13. Two primary schools of thought have developed as to the area the range of duty
should include.
a. Zone of danger: Refers to the area that the defendant should reasonably
expect or foresee his or her actions to affect.
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b. World-at-large: Takes into account a much wider range. It requires the
defendant to foresee more remote possibilities of harm to persons not in
the immediate area and of injuries not as readily foreseeable to occur from
his or her conduct.
c. In some instances, a specific duty is imposed by statute or common law.
The legislature and judiciary have identified particular situations as those
in which a duty is always warranted.
See “Case Brief: Instructor Notes”: Moranko v. Downs Racing, 118 A3d
1111 (Pa. Super. Ct. (2015).
14. The usual test applied in negligence actions is whether the defendant, under all
the circumstances, exercised ordinary (reasonable) care. Also to be considered
are
a. the underlying reasons or necessities of the defendant’s conduct (was it
an act of great social value such as saving a life?),
b. the surrounding physical environment,
c. any activities that were taking place, and
d. the types or limitations of people in the area.
15. The particular mental ability or disability in matters of judgment of the
defendant is generally not considered. Most courts have determined that the
actor is in the best position to determine what is and is not safe conduct given
his or her mental ability. This rule may be moderated by considering the age,
experience, intelligence, and physical condition of the defendant, which may
affect the mental ability consideration.
16. In some cases, standards other than ordinary care are applied. Two other
standards sometimes applied are extraordinary (great) care and slight care. The
standard of extraordinary care is usually applied in situations identified by the
law-making authorities where the plaintiff is not capable of protecting him- or
herself from the defendant’s actions.
17. Slight care is the most basic of all duties to take even the most minimal action to
prevent injuries to those in the surrounding area. When this most basic and
minimal duty is violated, many jurisdictions permit an action in addition or as an
alternative to one for negligence. If there is a standard of ordinary care in place,
the plaintiff may also be permitted to sue for punitive damages for the failure to
exercise even slight care.
18. Punitive or exemplary damages are used in some jurisdictions in addition to
compensatory damages to punish the defendant and are designed to deter others
from such gross carelessness.
19. Proximate cause is a major element of any negligence action. The plaintiff must
demonstrate that the defendant’s conduct proximately caused the plaintiff’s
injuries. First, it must be shown that the injuries were the result of the conduct
as a matter of factual occurrence (known as cause in fact). Second, it must be
shown that the injuries were caused by the conduct as a matter of law
(commonly called the legal cause).
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20. Cause in fact is generally the simplest factor to establish. The plaintiff needs only
to trace a chain of events, short or long, that leads directly from the defendant’s
conduct to the plaintiff’s injuries.
21. Two tests are commonly employed when deciding whether there has been
proximate cause. The first (used on an increasingly rare basis) is often called the
but-for test. Simply put, the question is asked, “But for the defendant’s actions,
would the plaintiff’s injuries still have occurred?” This test is rarely applied
because a multitude of variables can contribute to the severity of an injury. Thus,
the but-for test is not appropriate for many situations.
22. The more popular approach is the substantial factor analysis, which
examines whether the defendant’s conduct was a substantial factor in
producing the plaintiff’s injury.
23. Proximate cause is a chain of events in which the actor should have reasonably
foreseen the likelihood of injury. When an intervening force capable of
producing the injury independently occurs between the moment of conduct by
the defendant and the moment of injury, the proximate cause is especially
difficult to prove in terms of the original defendant.
24. To prove damage, the plaintiff must prove that he or she suffered some type of
compensable injury—that is, that something happened to the plaintiff or the
plaintiff’s property as the proximate result of the defendant’s breach of the
standard of care that warrants compensation by the defendant to the plaintiff.
See answers to Assignment 9.1.
See “Case Briefs: Instructor Notes”: Landis v. Harristown Development
Corporation 4 Pa. D. & C.4th 125 (1989).
See Exhibit 9.1: The Elements of Negligence.
25. Res ipsa loquitur: “The thing speaks for itself.” This doctrine has been applied
for many years in cases of negligence involving special circumstances. A
plaintiff may claim the doctrine to ease the burden of proof in a case of
negligence only when he or she can prove that
a. the occurrence was of a type that would not happen without negligence,
b. the instrument producing the injury during the occurrence was exclusively
in the control of the defendant, and
c. the plaintiff did not contribute to the injury.
26. Although the doctrine of res ipsa loquitur is limited in its application, in
appropriate cases, the plaintiff can use it to prove negligence where a cause of
action might not otherwise be available for the simple reason that the plaintiff
does not have access to information in the defendant’s control or because there
were no witnesses to the injury.
See “Case Briefs: Instructor Notes”: Lamprecht v. Schluntz 23 Neb.App. 335
(2015).
See the answers to Assignment 9.2.
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27. Strict liability was developed for cases of persons who obtained some personal or
financial benefit from an activity that could not be made safe and from which the
innocent public could not protect themselves. Fault, carelessness, or intent is not
an issue in actions for strict liability because no matter how carefully an activity
might be conducted or an animal might be guarded, it is a near certainty that if the
danger escapes into a public area, innocent bystanders will be harmed. It is further
reasoned that the persons in control of the activity or animal benefit from it, and
it is only reasonable that they should bear the costs of harm.
28. More recently, strict liability has been the primary basis of litigation against
manufacturers of products. Consumers (users) of products have no means of
knowing how the product was designed and what aspects of it could cause injury.
See “Case Briefs: Instructor Notes”: Barrett; Clean Harbors Environmental
Services, Inc., v. Rhodia, Inc., 606 F.3d 975, (8th Cir. 2010).
29. The third major category of torts is a tort in which the primary element is intent.
This is an action where the defendant has manifested an intent to bring about a
particular result and, as a consequence, the plaintiff was injured. It must be shown
that the defendant acted voluntarily, even with the knowledge that the act would
almost certainly bring about the injury. It must only be shown that the defendant
knew or should have known with substantial certainty that his or her action would
bring about the injury (not an intent to actually produce the injury).
30. A major distinction between gross negligence and intentional tort is that in an
intentional tort, mere knowledge and appreciation of a danger are insufficient.
As stated, there must be evidence of voluntary conduct in light of the knowledge
and appreciation of the danger. In addition, the risk of harm must be a near
certainty rather than a likelihood.
31. Several types of intentional torts provide a basis for liability. Some of the more
common types are discussed here to demonstrate the basis for the more
commonly litigated actions. These are listed in Exhibit 9.2
See Exhibit 9.2: Torts and Related Causes of Action: The Elements.
32. Assault: To prove an act of assault in tort, it must be shown that the actor
engaged in physical conduct that may or may not have been accompanied by
words and placed the plaintiff in apprehension of immediate and harmful
contact. By definition, the tort of assault involves no physical contact, only
the threat of such contact.
• A plaintiff cannot claim assault when the threatening act consisted only of
words unless under circumstances that could create a reasonable perception
of imminent harm.
• No assault is committed when a threat is made for some future point in time.
• The basis for an assault action is that the threat of immediate physical harm
produces such fear or a reaction or both that it actually injures the plaintiff.
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33. Battery: Includes all unpermitted physical contact that results in harm. Battery
encompasses physical attacks, medical treatment without consent, and every
other conceivable act that results in physical contact between two parties as long
as
• there is the intent to make physical contact,
• there is no consent to such contact,
• the contact occurs to the person or to anything that is so closely attached that it
is considered part of the person, and
• the contact results in injury to the person.
34. The emergency rule is an exception or defense to actions for battery. The rule
states that unpermitted physical contact (including medical treatment) may be
allowed if a medical or other emergency exists that prevents the person from
making a decision as to whether to permit the contact.
See “Case Briefs: Instructor Notes”: Roth v. Cabot Oil & Gas, 919 F.Supp.2d 476
(M.D. Pa. (2013).
35. False imprisonment: When a party (not necessarily a law-enforcement agency)
creates boundaries for another party, with the intent that the other party be
confined within those boundaries. It requires also that the second party is aware of
the confinement, does not consent to it, and perceives no reasonable means of
escape. False imprisonment has been the basis for lawsuits ranging from false
arrests by law-enforcement officers to kidnapping and even unwarranted detention
in stores by store security and personnel.
36. The boundaries in a false imprisonment action need not be actual walls. It is
only necessary to show that through physical barriers, conduct, or words, the
injured party reasonably believed his or her liberty was restricted. There is
also no requirement of actual damages. The loss of liberty is considered to be
an injury in and of itself, although there are often other, more tangible injuries
as well.
37. It is important to understand that an action for false imprisonment cannot be
brought if the defendant was exercising a privilege when detaining the plaintiff.
For example, security officers and law-enforcement agencies are given a wide
latitude in detaining persons suspected of criminal activity. Even if the persons
are innocent, public policy requires that investigation of reasonable suspicions be
allowed.
See “Case Briefs: Instructor Notes”: Hobson v. Dolgencorp, LLC d/b/a Dollar
General Store, -142 F.Supp.3d 487 (2015).
38. Trespass: The intentional invasion of property rights when someone personally or
through his or her property enters the land of another or permits such an invasion
to continue when another takes control of the property.
39. It is not necessary that the actor have the intent to commit a trespass or even the
knowledge that he or she is doing so. It is enough that the actor intends to commit
the invasive act and a trespass occurs as a result of the commission of that act.
Violation of this right of landowners to quiet enjoyment free from intrusion is
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enough to bring an action for trespass. If the trespasser causes damage to persons
or property, he or she is liable for that as well.
40. Fraud: The injured party must be able to show that he or she did not have the
opportunity to detect any misdealing. The following are elements required to
prove an action for fraud:
a. The defendant made a material (significant) representation to the plaintiff that
was untrue
b. The defendant knew the statement was untrue or that his or her failure to
ascertain its truth was reckless
c. Some affirmative conduct by the defendant indicates the intent to have the
plaintiff rely on the statement
d. The plaintiff reasonably relied on the statement and as a proximate result
was injured by it.
41. Defamation is the combined name for two types of intentional torts: libel and
slander.
a. Libel is an action for injuries that occur as the result of a written
communication to a third party.
b. Slander is the appropriate action when the injuries occur as the result of an oral
communication.
42. In both types of actions, it is necessary to show that the defendant actor made a
communication to a third party about the plaintiff that caused other third persons
to have a lowered opinion of the plaintiff or be discouraged from associating with
him or her. This communication must be made by the speaker with the intent that
the receiving party perceive it as directed to him- or herself.
43. A different standard of defamation requirements exists with respect to public
figures. Persons who place themselves in the public light are inviting comment
or publicity under the constitutional rights of free speech. Nevertheless, there are
limits to what can be said publicly about another. If it can be shown that a
statement was made with actual malice (knowledge that the statement was false
or made with reckless disregard for its truth or falsity), even a public figure can
maintain an action for defamation.
44. Some defenses are peculiar to actions based on defamation.
a. If a truthful statement is made about another, no matter how
damaging, no action for defamation can be brought.
b. Because certain communications are deemed to serve the public interest,
someone’s opinion may be exempt from an action for defamation under
the defense of privilege.
45. Emotional distress is often called the catchall tort. A plaintiff can plead it as a
negligence action or as an intentional tort. Frequently, when it is difficult to prove
the necessary elements of a specific intentional tort, emotional distress is used as
the cause of action. It can also accompany an intentional tort as a separate and
independent action.
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46. Jurisdictions are divided on the issue of whether an actual physical contact must
accompany the emotional injury. To prove an action for intentional infliction of
emotional distress, however, it must be shown that the actor intentionally engaged
in conduct so outrageous that the actor knew or should have known that its likely
result would be a mental or emotional disturbance to the plaintiff of such a
magnitude that it could produce a resulting physical injury.
47. Emotional distress can also be brought as the basis of negligence. This generally
occurs when the conduct was unquestionably unreasonable, but proving the
intent (under the definition of an intentional tort) of the actor is difficult. This
type of action is based on conduct so extremely reckless that it is considered
unreasonable.
48. Because of the element of intent, civil actions for intentional torts often result in
more severe money judgments than in cases of negligence based on careless
conduct. In addition, when a jurisdiction permits, punitive damages are often
awarded to the plaintiff in addition to the ordinary compensatory damages. This
occurs because the courts want to send a message that conduct intentionally
resulting in harm to another will be dealt with severely.
49. Product liability is not a specific body of tort law such as negligence, strict
liability, or intentional torts. Rather, it describes a subject of a tort action that
may be based on any one of the major tort theories. The common denominator
is that the action involves a product that has been placed in commerce.
50. Some of the legal standards that have been established include causes of action in
product liability cases and standards of care. Commonly encountered causes of
action in product liability cases include the following:
• Breach of express warranty
• Breach of implied warranty of fitness for a particular purpose
• Breach of implied warranty of merchantability
• Negligence
• Deceit
• Strict liability
51. To accommodate the unique position of the consumer or injured party and
manufacturer, certain modifications have been made.
52. Specific legal standards regarding the standard of care in product liability cases
include the idea that a manufacturer is presumed to be an expert on the product
and therefore must manufacture the product with the same care as someone with
extensive knowledge about the product and its potential dangers. A manufacturer
who does not have such knowledge or does not utilize it to make reasonably sure
that the product is safe can be held accountable for injuries caused by the product.
53. In addition to ordinary tort defenses, a manufacturer may also claim as a defense
extreme misuse of the product. It is established that manufacturers must foresee a
certain degree of misuse of a product. However, if the consumer significantly
modifies the product or uses it in a manner that the manufacturer could not have
been reasonably expected to foresee, then the manufacturer will not be held liable
for any injuries.
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54. One area of difficulty in product liability law involves the statute of limitations.
Typically, the statute of limitations begins to run at the time the plaintiff knows or
should know he or she has a cause of action even if the product caused injury until
many years after the product was manufactured. Consequently, the defendant
manufacturer was at a tremendous disadvantage. Much of the evidence and many
of the witnesses with knowledge about the product design and creation were no
longer available. In response, many state legislatures enacted what are known as
statutes of repose that place an absolute limit from the time of manufacture in
which an action can be brought.
See “Case Briefs: Instructor Notes”: Miller v. Alza Corporation 759 F.Supp.2d 929
(S.D. Ohio 2010).
55. Tort law has had a significant influence in the area of employment. It concerns not
only the actions by or against third parties but also the relationship between the
employer and the employee. All states have certain statutes and case law
governing the employment relationship and indicate when actions for tort based
on it are permitted. Certain exceptions to these statutes also give rise to actions in
tort.
56. Under a long-established rule of law in this country commonly known as
respondeat superior, a superior may be held responsible for injuries caused by his
or her employee. Generally, an injured third party has the right to elect to sue the
employer if the third party can demonstrate that the employee was a regular
employee and not an independent contractor (someone who works on a per-job
basis, such as a plumber who goes to someone’s office to repair a leaky faucet)
and that the injury was caused by the employee while acting within the scope of
his or her employment. Simply stated, the latter means that the employee is acting
subject to the ultimate supervision of the employer.
57. Ordinarily, employers will not be held responsible for intentional torts committed
by an employee. An intentional tort requires that the actor knew or should have
known with substantial certainty that the act would produce the injury. The
exception to this rule takes place when the intentional tort is considered to be
within the scope of the employee’s duties.
58. The federal government and every state have enacted a variety of legal standards
pertaining to the workplace. These include statutes, case law, and administrative
regulations regarding the physical environment of the workplace; discrimination
laws to place all qualified applicants and employees on an equal footing; laws
designed to prevent superiors from using their authority to wrongfully manipulate
the conduct of workers on nonwork-related matters; and laws to protect those
injured in the performance of job duties.
59. The federal Occupational Safety and Health Administration (OSHA) is a
branch of the U.S. Department of Labor. Each state also has a similar agency.
The purpose of these agencies is to establish and enforce standards that
provide a safe work environment regardless of the type of industry; however,
given the infinite number of variables in the workplace, it is impossible to
anticipate every conceivable danger.
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60. In the late eighteenth and early nineteenth centuries, mass production and the
growth of machinery in the workplace resulted in large numbers of individuals
going to work in factories rather than in farming and traditional small craftsman
shops. Many workers were untrained, and working conditions were sometimes
brutal. The result was a significant number of injuries in the workplace.
61. With disabling injuries, many workers had little alternative but to file tort
actions against their own employers for damages. The length of time for such a
process was often significant, and the hardship on the families of these
employees was immense. At the same time, employers were suffering the
blows of large jury awards for employee injuries when cases finally did come
to trial. Insurance was usually available but often cost-prohibitive.
62. Once an employee sued the employer, the animosity created by that suit
effectively ended any chance of returning to work. Both sides were losing,
and legislatures responded with workers’ compensation laws during the
mid-1900s.
63. Although the details of workers’ compensation laws vary from state to state, the
underlying principle is the same. The statutes provide a basis for compensation to
employees who are injured while performing job-related duties; but the statutes
also place limitations on the extent to which an employer may be held financially
liable.
64. A second and major benefit of workers’ compensation laws is that they typically
are not based on findings of fault or negligence by the employer. This aids the
injured employee who could not recover without proof of tortious conduct of the
employer. The employer is presumed to have the benefit of the employee’s
presence on the job and contribution toward the making of profits. To bear the
cost of injuries on the job, even accidental ones, seemed only fair.
65. Employers quickly discovered that the fewer claims against them, the lower the
cost of workers’ compensation insurance. Many employers subsequently engaged
in a kind of subversive tactic to inhibit injured employees from filing actions for
workers’ compensation benefits. Some employers fired employees who filed
claims; others simply did not have a job available for the injured employees when
they were ready to return to work. This practice quickly gained the attention of
the courts and legislatures and was rightly condemned. The employers were
found to be chilling the rights of employees to pursue the rights given to them as
a matter of law. As a matter of public policy, the right to pursue statutory rights
has always been protected. Now states have statutes that make it illegal to fire an
injured employee for filing a workers’ compensation claim.
66. If such an employee is, in fact, terminated, the employer must be able to
establish totally independent grounds for the termination or be subject to a tort
action by the employee for wrongful discharge. This provides the injured
employees the opportunity to seek reasonable compensation for their injuries
and for wages lost from time not working without fear of losing employment.
67. If an employer places an employee in a position of great danger and this action
demonstrates a clear disregard for the safety of the employee, many states permit
an avoidance of the workers’ compensation laws in favor of an unlimited action
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for tort. In addition, certain types of employment that have been historically
considered extremely dangerous with a high probability of serious injury or
death of one’s work life are subject to federal employer liability laws. These laws
preceded workers’ compensation laws and are limited primarily to the railroad
and maritime industries.
68. Increase in the number of medical malpractice suits can be attributed to causes
including, but not limited to, aging population that is rapidly increasing in size,
dramatic increases in medical science, shortage of health care providers, and
mass manufacturing of untested products.
69. Electronic communications law is broad and rapidly expanding. All forms of
electronic communication, data storage, and software applications used in
government and business are subject to statutory and common law
principles. It will take time for generally accepted legal standards to be
established at the state and federal levels.
70. It has only been during the past 100 years that employers have been charged with
the responsibility to be fair to all persons in the manner in which they are hired,
supervised, and terminated. State and federal government legislatures and
agencies have established minimum legal standards for employers regarding
hiring, termination, and providing a suitable work environment. Although some
common law liability remains, the majority of actions are based in alleged
statutory violations of legislation designed to make the workplace more fair and
appropriate to all employees.
71. Legislation and regulations were passed to protect various classes of people. These
laws were designed to keep employers from discriminating against employees for
possessing characteristics that had nothing to do with their ability to adequately
perform the duties of employment. Such characteristics include gender, race,
religion, and age. Similar restrictions apply for individuals who are physically
impaired. If an employer is found to have treated an employee differently, refused
to hire someone, or used one or more of the characteristics of the protected classes
as a cause for termination, then the employer is subject to scrutiny under federal
law. If it is determined that the employer violated the legal standards by using
improper reasons for hiring, termination, or discipline, then the employer may be
subject to a variety of penalties.
72. State and federal government are now also focused on protecting the employee
from unnecessary psychological and emotional dangers on the job. This imposes
on the employer the responsibility to monitor the conduct of all employees and
to be responsive to complaints in a continuing effort to maintain a workplace that
encourages fair and professional treatment of each employee by the employer
and coworkers alike.
73. In response to the many theories of liability in tort, defenses for conduct have been
developed. These defenses are used to justify the defendant’s actions or to expose
the plaintiff’s own part in the occurrence that produced the injury. Even today,
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these defenses are developing and changing. Although they vary slightly among
jurisdictions, the underlying principles are substantially the same.
74. Contributory negligence is a well-known defense in this country. In the past, the
courts applied this defense when a defendant could prove that the plaintiff
contributed to his or her own injury by some form of negligent conduct. When a
court applies the defense of contributory negligence, the plaintiff cannot recover
any damages from the defendant. The rationale for this defense is that one should
not ultimately receive compensation for injuries caused by one’s own
wrongdoing.
75. The defense of contributory negligence has declined in popularity for several
reasons. Accordingly, the theory of comparative negligence was developed. In
comparative negligence, the degree of negligence of each party is assigned a
percentage of the fault for the occurrence. The jury arrives at such a calculation
and reduces the judgment for the plaintiff by the percentage that the plaintiff
contributed to his or her own injury.
76. Some jurisdictions apply pure comparative negligence where a plaintiff who the
jury finds to be 99 percent at fault recovers only 1 percent of the damages.
However, many jurisdictions apply modified comparative negligence, which
prevents any recovery if a plaintiff was the significant cause of the injury—that is,
was more than 50 percent at fault. In some states, a combination of contributory
and comparative negligence applies. If a plaintiff is grossly negligent, then
contributory negligence will apply. Otherwise, comparative negligence will apply.
77. Comparative negligence responds to negligence of the plaintiff without
relieving the defendant of liability for his or her own misconduct. A steady
trend by jurisdictions in this country has been to adopt the theory of
comparative negligence in some form and abandon the traditional theory of
contributory negligence.
78. Traditionally, a defendant could prevent recovery by a plaintiff if the defendant
could prove that the plaintiff was aware of the risk of danger, appreciated the
seriousness of the risk, and voluntarily exposed him- or herself to the risk. As
with the application of comparative negligence, the recovery would not be barred
but would be modified.
79. Many jurisdictions still accept assumption of risk as a defense to establish the
degree to which the plaintiff was responsible for his or her own injury.
80. Another defense still widely used is the doctrine of last clear chance, which, in
reality, is a defense to a defense. The doctrine states that even though a plaintiff
contributed to endangering him- or herself, the defendant had the last clear
opportunity to avoid the occurrence and prevent the plaintiff’s injury but failed to
do so.
81. Defenses raised in response to claims of intentional tort include the charge that
not all of the elements were satisfied as well as consent, privilege, immunity,
and various procedural defenses.
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82. Although the first defense—that not all elements were satisfied—may be raised
as a defense in any type of tort action, it is highly appropriate in an intentional
tort case. By definition, the elements of intentional torts tend to be quite specific.
Thus, it is usually much easier to establish the absence of a specific event than it
is to establish that the defendant’s conduct met the reasonable standard of care
under the circumstances in a negligence action.
83. The defense of privilege is quite different from that of consent. Whereas in
consent the focus is on the conduct of the plaintiff toward the defendant, in
privilege, the view is taken that regardless of the plaintiff’s agreement or
protestations, the defendant had a special legal right to act.
84. Another common privilege is that of self-defense. Depending on the
circumstances, a person has the right to use reasonable or necessary force to
defend him- or herself and can even use force to defend someone else if that
person was entitled to use self-defense. Limited force can also be used to defend
property, but not if it would result in a breach of the peace, and the privilege never
extends to the use of deadly force to defend property.
85. Like privilege, immunity gives protection to otherwise guilty defendants. The
most common example is that of sovereign immunity. Historically, no lawsuit
could be brought against the government for the torts committed by government
servants. Federal and state legislatures have enacted laws that allow suits against
the government in limited circumstances and in accordance with strict procedural
rules. In this way, the government is accountable for its torts but is not at risk of
being victimized by a litigation explosion of its own.
86. In the successful tort action, the trier of fact is faced with the task of awarding
damages. In all actions at law, damages are monetary. The amount depends on a
myriad of factors as well as the law of the jurisdiction. Some legislatures have
enacted law that precludes anything but strictly compensatory damages; others
allow punitive damages, prejudgment interest, and attorney’s fees.
87. Damage: Compensatory
a. Purpose: To compensate the plaintiff for injury.
i. Specials: Those items of compensatory damage that can be specifically
calculated—for example, medical bills.
ii. Generals: Those items of compensatory damage that must be estimated
as to monetary value—for example, pain and suffering, loss of
reputation.
88. Damage: Punitive (also known as exemplary damages)
a. Purpose: To punish defendant and to deter defendant and others from future
similar conduct.
i. Nominal: Allowed in other than negligence (in which actual damage is an
element that must be proven) for commission of a tort by defendant but
for which no actual loss by plaintiff is proven. See Exhibit 9.3: Damages
and Their Purposes.
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CASE BRIEFS: INSTRUCTOR NOTES
What follow are case briefs for each of the cases included within the seventh edition
text. They can be used to check case brief assignments or as a quick review of the
materials.
Moranko v. Downs Racing, 118 A.3d. 1111 (Pa. Super. Ct. 2015)
Facts: Appellant, Faye M. Moranko, Administratrix of the Estate of Richard L.
Moranko, deceased, appeals from the order entered by the Honorable William H.
Amesbury, Court of Common Pleas which entered summary judgment in favor of
Appellee, Downs Racing LP, d/b/a Mohegan Sun at Pocono Downs (“Mohegan
Sun”). This case raises an issue of first impression in this Commonwealth regarding
the duty and ultimate liability of a valet service when an automobile is returned to an
allegedly intoxicated patron. Moranko instituted this wrongful death and survival
action by way of Complaint filed August 9, 2011. Moranko alleges that on January
15, 2011, her son, Richard Moranko (the “decedent”), consumed “copious amounts of
alcohol” while at Mohegan Sun. Thereafter, at approximately 8:30 p.m., the decedent
retrieved his vehicle from valet services, despite his alleged visible intoxication. After
the decedent departed Mohegan Sun, he was involved in an automobile accident
resulting in his death. Moranko argues in her Complaint that Mohegan Sun was
negligent in serving the decedent alcoholic beverages and in handing over the keys to
his vehicle when he was allegedly visibly intoxicated. Mohegan Sun filed a motion
for summary judgment. Mohegan Sun argued, among other things, that Moranko had
failed to produce sufficient evidence that it served the decedent alcoholic beverages
while he was visibly intoxicated and alternatively that there is no cause of action in
Pennsylvania allowing recovery against a valet service for giving a visibly intoxicated
customer the keys to his vehicle. The trial court granted the motion and entered
summary judgment in favor of Mohegan Sun. Moranko appealed.
Issue: Did the trial court err in granting a motion for summary judgment in favor of
the defendant on the issue of duty?
Law: The question of whether a duty exists, as part of a negligence claim, is a
question of law, assigned in the first instance to the trial court and subject to plenary
appellate review. Thierfelder v. Wolfert, 617 Pa. 295, 52 A.3d 1251, 1264 (2012). The
determination of whether a duty exists in a particular case involves the weighing of
several discrete factors, which include: (1) the relationship between the parties; (2) the
social utility of the actor’s conduct; (3) the nature of the risk imposed and
foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the
actor; and (5) the [over all] public interest in the proposed solution. Montagazzi v.
Crisci, 994 A.2d 626, 631 (Pa.Super.2010).
When considering the question of duty, it is necessary to determine whether a
defendant is under any obligation for the benefit of the particular plaintiff ... and,
unless there is a duty upon the defendant in favor of the plaintiff which has been
breached, there can be no cause of action based upon negligence. Roche v. Ugly
Duckling Car Sales, Inc., 879 A.2d 785, 789 (Pa.Super.2005).
Rule: Moranko makes no citation to the record, and the Court found no evidence of
record, to support her claim that Mohegan Sun served alcohol to the decedent while
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he was at the casino prior to the tragic accident. Moranko presents no testimony,
video surveillance, or other evidence establishing that Mohegan Sun served the
decedent alcohol on the casino premises.
To support her claim against the parking service, Moranko does not cite case law
from any jurisdiction that imposes an affirmative duty upon the valet employed by
Mohegan Sun. Rather, she relies upon general concepts of “ordinary care” and public
policy to create such a duty. More specifically, Moranko relies upon Section 324A of
the Restatement (Second) of Torts, Liability to Third Person for Negligent
Performance of Undertaking, to support the imposition of a duty in this matter.
Section 324A provides as follows:
One who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of a third person or his
things, is subject to liability to the third person for physical harm resulting from his
failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the
undertaking.
Restatement (Second) of Torts § 324A (1965) (emphasis added).
The comments to Section 324A of the Restatement makes clear that “[t]his section
deals with the liability to third persons.” Id., Comment a. Here, Moranko’s claims do
not invoke third-party liability, but rather concern an alleged failure to act resulting in
direct harm to the decedent. Therefore, the Court did not find that Section 324A of the
Restatement provides Moranko with a basis for relief. In addition, Plaintiff cannot
recover under a bailment theory. The Mohegan Sun valet service, as bailee, was duty
bound to surrender control of the decedent’s vehicle when it was demanded,
notwithstanding the decedent’s alleged intoxication. When the decedent requested the
return of his vehicle, Mohegan Sun as bailee lost the right to control the car. As
Mohegan Sun had no right of control, we cannot find it liable for decedent’s actions
when the car was returned to his possession.
Affirmed.
Landis v. Harristown Development Corporation, 4 Pa. D. & C.4th 125 (1989)
Facts: Plaintiffs, through a complaint and an amended complaint, state a claim
against defendants based on negligence. Defendants each have filed preliminary
objections and one of the objections is a demurrer. The case is based on the tragic
murder of plaintiffs’ decedent, Anne S. Landis in a construction site on Market Street
in the City of Harrisburg. The land where the criminal act occurred was under the
control of Harristown Development Corporation, and defendant H.B. Alexander &
Son Inc. was the entity retained by Harristown to make the improvements on the
subject site. The pleadings state that the homicide occurred within the construction
site, behind a four-foot-high barricade, the gates to which were not secured, and
further, it is alleged that the crime was committed with a two-by-four piece of lumber
that was obtained on the construction site. Plaintiffs allege basically, through many
paragraphs, that defendants were negligent in not providing a secure construction site,
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in not having it patrolled by security officers, by not having it sufficiently lighted, and
by not having an eight-foot wall around it, as mandated, plaintiffs allege, by a
Harrisburg City ordinance. Plaintiffs allege that defendants were fully aware that the
site was a dangerous one, that the criminal element was in the area, that crimes had
occurred in this area, and that defendants had created an attractive nuisance and an
induced environment for criminal activity to occur. Defendants simply allege that no
duty existed on the part of defendants to protect a person from the criminal acts of
another.
Issue: Should the court grant the preliminary objection in the nature of a demurrer
and dismiss the plaintiff’s complaint based on the issues of duty and lack of proximate
cause?
Law: There are four basic requirements which must coexist for a defendant to
become liable to another when the legal theory of the plaintiff is negligence:
(1) A duty or obligation recognized by the law, requiring the actor to conform to a
certain standard of conduct, for the protection of others, against unreasonable
risks.
(2) The failure on the actor’s part to conform to the standard required.
(3) A reasonably close causal connection between the conduct and the resulting
injury.
(4) Actual loss or damage resulting to the interests of another.
Counsels have submitted much to us, for our consideration, relative to the duty owed
by defendants, and the failure of defendants to adequately perform that duty. Little has
been submitted by anyone on the issue of causation. That, to us, is the appropriate
beginning point and, after consideration, the ending point to this case.
If we concede, for purposes of argument, that defendants were negligent and did fail
to conform to a standard of care owed plaintiffs’ decedent on any of the bases
plaintiffs suggest, we are left with the question as to whether, under Pennsylvania law,
a jury could find such conduct a substantial factor in bringing about a man’s act of
bludgeoning another to death in the middle of the night. The answer can only be “no.”
That answer is both an intuitive one and also the one we reach after study. The first
question is whether a jury must be allowed, in any event, to consider the “cause”
issue. While the “legal cause” issue is normally a jury matter, it is not always so.
When the facts of a case are not disputed, and we are assuming plaintiffs will prove
the underlying factual basis of this case, and the remoteness of injury from negligence
is clear, the court should make the decision that legal causation does not exist. Liney
v. Chestnut Motors Inc., 421 Pa. 26, 218 A.2d 336 (1966).
Proximate cause is not a fact concept, but a legal determination of when an actor
should be considered for a penalty because of injury resulting from what he did. Thus,
an actor can “cause” a result, a cause in fact, and have the “cause” not be a
“proximate” or “a substantial factor in bringing about victim’s harm.” Restatement
(Second) of Torts §431; Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977). As the
Superior Court stated in Alumni Association v. Sullivan, supra: “Even where harm to a
particular plaintiff may be reasonably foreseeable from the defendant’s conduct, and
that conduct is the cause-in-fact of the plaintiff’s harm, the law makes a determination
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that, at some point along the casual chain, liability will be limited. The term
‘proximate cause,’ or ‘legal cause’ is applied by courts to those considerations which
limit liability, even where the fact of causation can be demonstrated. Because of
convenience, public policy, or a rough sense of justice, the law arbitrarily declines to
trace a series of events beyond a certain point as no longer a ‘proximate’ or ‘legal’
consequence naturally flowing from the wrongdoer’s misconduct.”
Rule: Even if we assume that the defendant owed a duty and was negligent,
proximate cause does not extend to the liability of a landowner for homicide. The
legal connection between a property owner’s lack of maintenance and a wanton
murder does not exist. Defendants’ negligence started the causation stream which
ended in the murder. That causative stream started, we must assume, when plaintiffs’
decedent and the murderer met and was generated from interaction between those
people.
The demurrer of defendants is sustained and plaintiffs’ complaint is dismissed with
prejudice.
Lamprecht v. Schluntz, 23 Neb.App. 335 (2015)
Facts: Arthur Lamprecht and his wife, Linda Lamprecht, brought this action against
Brent Schluntz and his brother, Gerald Schluntz, seeking compensation for property
damage that the Lamprechts sustained from a fire that originated on Brent’s farm
during a wheat harvest. The Lamprechts’ sole theory of recovery was premised on the
doctrine of res ipsa loquitur.
On a hot and windy day in June 2012, Brent, Gerald, and their employee, Christopher
Joppa, were harvesting wheat on Brent’s real property in Furnas County. As part of
the harvesting operation, Joppa was operating a Case 9260 tractor with a grain cart
attached. Brent and Gerald were operating combines. Brent and Gerald jointly owned
the wheat, tractor, and combines, and Gerald was the sole owner of the grain cart.
According to Brent, he, Gerald, and Joppa were doing “back-landing” in the
wheatfield; Brent was operating a combine and was heading west, Gerald was in a
combine heading east, and Joppa was in the tractor with the attached grain cart
heading to unload Gerald’s combine. Brent testified that “as soon as the grain cart
pulled up,” he saw a “flash ... underneath the tractor.” Brent testified that he “pulled
out and tried to wave at those guys, because they couldn’t see it, to get out and try to
stomp it out or get out of there, but it just exploded.” Brent called the fire department
immediately, and he, Gerald, and Joppa drove their respective pieces of farm
equipment to the road. Brent testified the fire spread “like gasoline” although they
attempted to “disk” the fields to create firebreaks to stop the fire. The lower court
entered summary judgment in favor of the defendants.
Issue: Did the lower court err in granting summary judgment in favor of the
defendants on the issue of res ipsa loquitur?
Law: There are three elements that must be met for res ipsa loquitur to apply: (1)
The occurrence must be one which would not, in the ordinary course of things,
happen in the absence of negligence, (2) the instrumentality that produces the
occurrence must be under the exclusive control and management of the alleged
wrongdoer. and (3) there must be an absence of explanation by the alleged
wrongdoer. When deciding whether res ipsa loquitur applies, a court must determine
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whether evidence exists from which reasonable persons can say that it is more likely
than not that the three elements of res ipsa loquitur have been met. If such evidence is
presented, then there exists an inference of negligence that presents a question of
material fact, and summary judgment is improper. The court should not weigh the
evidence to determine whether res ipsa loquitur applies. Instead, the court must
determine whether there is sufficient evidence from which reasonable persons could
find that it is more likely than not that the three elements of res ipsa loquitur have
been proved and that it is therefore more likely than not that there was negligence
associated with the event. McLaughlin Freight Lines v. Gentrup, 281 Neb. 725, 798
N.W.2d 386 (2011).
Rule The first element of res ipsa loquitur has not been met. It is clear that
unexplained fires can occur during harvesting and farming operations, on or around
trucks or other equipment used in farming operations. The mere fact that the fire
occurred in such a manner does not warrant an inference of negligence. Res ipsa
loquitur does not apply where the occurrence alone, without more, rests on
conjecture, or where the accident was just as reasonably attributable to other causes as
to the negligence of the defendant. Courts are reluctant to draw an inference of
negligence from the starting of fires because fires are frequent occurrences and, in
many cases, resulted without negligence on the part of anyone.
Affirmed.
Barrett; Clean Harbors Environmental Services, Inc., v. Rhodia,
Inc., 606 F.3d 975, (8th Cir. 2010)
Facts: Barrett worked for Clean Harbors Environmental Services Inc., a provider of
hazardous waster material disposal. While working with a drum of P2S5, a hazardous
chemical manufactured and supplied by Rhodia, Barrett was exposed to a toxic
chemical and suffered dementia resulting from lack of oxygen to the brain. Barrett
and Clean Harbors sued Rhodia, asserting that the chemical manufacturer was strictly
liable for Barrett’s injuries, and they based the assertion on two theories: product
defect and failure to warn. Barrett and Clean Harbors alleged that defects in the P2S5
drum had allowed condensation to form inside the drum, resulting in the creation of
hydrogen sulfide gas. Barrett and Clean Harbors asserted that when Barrett’s
coworker opened the P2S5 drum, the hydrogen sulfide gas dispersed in a sufficient
concentration to cause serious injury to Barrett. They also alleged that the P2S5 drums
were sold without a warning about the risk relating to the possible formation of
hydrogen sulfide gas. Barrett and Clean Harbors provided testimony from four
experts: Dr. Talbot, Dr. Janss, Dr. Himes, and Ziegler, a safety engineer. Rhodia filed
a motion in limine challenging the qualifications of the expert witnesses retained by
Barrett and Clean Harbors. The district court granted Rhodia’s motion in part. Rhodia
subsequently moved for summary judgment, asserting that the court’s exclusion of this
expert testimony left Barrett and Clean Harbors unable to prove causation, a required
element for a prima facie case of strict liability. The district court agreed and granted
summary judgment to Rhodia. Barrett and Clean Harbors appealed, challenging both
the district court’s ruling limiting their expert testimony and the court’s grant of
summary judgment.
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Issue: Did the district court abuse its discretion in limiting Barrett and Clean
Harbors’ expert testimony and granting summary judgment to Rhodia?
Law: Federal Rule of Evidence 702: If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based on sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
When considering expert testimony, a district court must ensure that “all scientific
testimony is both reliable and relevant.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d
748, 757 (8th Cir. 2006).
To satisfy the reliability requirement, the party offering the expert testimony
“must show by a preponderance of the evidence both that the expert is qualified to
render the opinion and that the methodology underlying his conclusions is
scientifically valid.” Id.; Daubert, 509 U.S. at 589-90, 113 S. Ct. 2786.
To satisfy the relevance requirement, the proponent must show that the expert’s
reasoning or methodology was applied properly to the facts at issue. Marmo, 457 F.3d
at 757.
The plaintiff in a toxic tort strict liability case needs to establish causation through
expert testimony.
Bonner v. ISP, 259 F.3d 924, 928 (8th Cir. 2001)
Rule: Here, appellants’ experts were deemed qualified to testify about Barrett’s
symptoms and whether those symptoms were “consistent with” exposure to hydrogen
sulfide gas. None of appellants’ experts were qualified, however, to testify about
whether hydrogen sulfide gas existed in Rhodia’s P2S5 drum, whether hydrogen sulfide
gas was released from the drum when it was opened, and if so, whether the gas
dispersed to Barrett’s location in a sufficient concentration to cause his injuries. To
recover on a claim of strict liability under Nebraska law, a plaintiff must prove by a
preponderance of the evidence that the defendant’s alleged product defect or failure to
warn “is the proximate cause of plaintiff’s injury.” Stahlecker v. Ford Motor Co., 266
Neb. 601, 667 N.W.2d 244, 257-58 (2003). Expert evidence is required to establish the
elements of causation and defect. Schafersman v. Agland Coop., 268 Neb. 138, 681
N.W.2d 47, 56 (2004). Because expert testimony is required to prove causation under
Nebraska law and appellants’ expert testimony was properly excluded by the district
court, they were unable to make out a prima facie case of strict liability based on
product defect or failure to warn. The district court properly granted summary judgment
to Rhodia. For the foregoing reasons, the judgment of the district court is affirmed.
Affirmed.
Roth v. Cabot Oil & Gas, 919 F.Supp.2d 476 (M.D. Pa. (2013)
Facts: Plaintiffs Frederick J. and Debra A. Roth are husband and wife and are the
owners of property in Springville, Pennsylvania (“the Property”), where they have
resided for more than thirty-five (35) years. Defendant Cabot Oil and Gas Corporation
(“Cabot”) is a Delaware corporation headquartered in Houston, Texas, which engages
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in various oil and gas exploration and production activities in the Commonwealth.
Defendant GasSearch Drilling Services Corporation (“GasSearch”) is located in
Parkersburg, West Virginia, and is a wholly owned subsidiary of Cabot which also
engages in the drilling and servicing of oil and gas wells. At all times relevant to this
action, Defendants owned and operated several natural gas wells and engaged in
natural gas exploration and production in the Dimock and Springville Townships of
Susquehanna County, Pennsylvania. These Wells were located less than 1,000 feet
from the Plaintiffs’ Property and residence. A representative of Cabot visited the
Plaintiffs’ Property in or about March of 2008 for the purpose of executing an oil and
gas lease agreement (“Gas Lease”) in order to obtain the legal right to drill on or near
Plaintiffs’ Property and extract natural gas from the Property. Cabot’s representative
warranted the following to the Plaintiffs in negotiating the lease: that Cabot would test
Plaintiffs’ pond and water supplies prior to and after commencement of drilling
operations to ensure that the water would not be adversely affected; that Cabot would
timely and fully disclose the test results to Plaintiffs; that Plaintiffs’ persons, property,
and land resources would be undisturbed by said operations; that Plaintiffs’ quality of
life and use and enjoyment of the Property would not be disrupted or adversely
affected; that if Cabot’s operations do adversely affect the Property, Cabot would
immediately disclose that information to Plaintiffs and take, at its sole expense, all
steps necessary to return the Property to pre-drilling conditions; and that Cabot would
remain at all times in compliance with all state and federal laws and regulations
governing safe oil and gas drilling practices.
The Defendants’ drilling operations involve a process known as hydraulic fracturing,
sometimes referred to as hydro-fracturing or hydro-fracking, which discharge
significant volumes of hydraulic fracturing fluids into underground shale formations in
order to discharge the gas contained therein. The fracking fluids used by the Defendants
in their operations included diesel fuel, lubricating agents, barite, gels, pesticides, and
defoaming agents. The Defendants failed to disclose the identity of all chemicals and
components used to the Pennsylvania Department of Environmental Protection (“DEP”)
as required by law. In addition to these hazardous chemicals, other contaminants, such
as gas, oil, brine, heavy metals, and radioactive substances naturally present in the shale
formations, are dislodged during drilling operations. In order to collect the discharged
waste fluids, drilling muds, and other hazardous substances, the Defendants maintain
large waste pits at the Wells. The DEP sampled the Plaintiffs’ groundwater supply in
January of 2011, approximately eight (8) months after the Defendants began their
drilling activities. The results of that sampling revealed that levels of dissolved methane
in the Plaintiffs’ groundwater supply were as high as 15.6 mg/L, rendering the water
unsafe and unfit for human consumption. The Plaintiffs believe and aver that the
Defendants’ noncompliance with the statutory and regulatory frameworks governing oil
and gas drilling is responsible for allowing the methane and other harmful contaminants
to enter the Plaintiffs’ water supply. The Plaintiffs assert that as a result, they have
suffered loss of value to their Property, loss of the use and enjoyment of their Property
and its land resources, and loss to their quality of life. Plaintiffs also assert that they
have suffered damage to appliances which use the contaminated groundwater supply
and have had incurred substantial out-of-pocket expenses for water quality monitoring,
water sampling, and alternative potable water supplies.
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Issue: Have the plaintiffs properly alleged various tort claims, which include
violation of the Pennsylvania Hazardous Sites Cleanup Act (HSCA), negligence, and
negligence per se, for the alleged damage to their property caused by fracking
operations of the defendant?
Law: To establish a prima facie case of liability under the Pennsylvania HSCA, a
plaintiff must plead facts establishing that: (1) defendants are responsible parties;
(2) there has been an actual or threatened “release” of a hazardous substance from a
site; (3) “response costs” were or will be incurred; and (4) the responses costs were
“reasonable and necessary or appropriate.” Pennsylvania common law requires a
plaintiff to establish the following elements in support of a negligence claim: “(1) a duty
or obligation recognized by the law, requiring the actor to conform to a certain standard
of conduct; (2) a failure to conform to the standard required; (3) a causal connection
between the conduct and the resulting injury; and (4) actual loss or damage resulting to
the interests of another.” In order to state a claim based on negligence per se, a plaintiff
must establish that: “ (1) The purpose of the statute must be, at least in part, to protect
the interest of a group of individuals, as opposed to the public generally; (2) The statute
or regulation must clearly apply to the conduct of the defendant; (3) The defendant must
violate the statute or regulation; [and] (4) The violation of the statute must be the
proximate cause of the plaintiff’s injuries.” One is subject to liability for a private
nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest
in the private use and enjoyment of land, and the invasion is either (a) intentional and
unreasonable, or (b) unintentional and otherwise actionable under the rules controlling
liability for negligent or reckless conduct, or for abnormally dangerous conditions or
activities. Pennsylvania common law requires a plaintiff to establish the following
elements in support of a negligence claim: “(1) a duty or obligation recognized by the
law, requiring the actor to conform to a certain standard of conduct; (2) a failure to
conform to the standard required; (3) a causal connection between the conduct and the
resulting injury; and (4) actual loss or damage resulting to the interests of another.”
Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir.1993). In order to state a
claim based on negligence per se, a plaintiff must establish that: (1) The purpose of the
statute must be, at least in part, to protect the interest of a group of individuals, as
opposed to the public generally; (2) The statute or regulation must clearly apply to the
conduct of the defendant; (3) The defendant must violate the statute or regulation;
(4) The violation of the statute must be the proximate cause of the plaintiff’s injuries.
Wagner v. Anzon, 684 A.2d 570 (1996).
Rule: With regard to the violation of HSCA, plaintiffs have alleged Plaintiff that barite,
gels, pesticides, defoaming agents, heavy metals, and radioactive substances and their
composite materials were released by the defendants that might well contain “hazardous
substances to the degree that its release or threatened release poses a substantial threat
to the public health and safety or the environment.” The Plaintiffs aver that a
combination of any or all of these substances has rendered their drinking water unsafe,
and absent compelling argument to the contrary, and those allegations are sufficient to
state claim under the HSCA. With regard to the negligence claim, there is no dispute
that defendants owe plaintiffs a duty. Plaintiffs satisfy the second element by pleading
that the Defendants have used improper drilling techniques and materials and that they
have constructed (and failed to remedy) deficient and ineffective well casings and waste
136
disposal pits in violation of this standard of conduct. Plaintiffs allege that Defendants
began their drilling activities in April of 2010, that they failed to take requisite and
necessary precautions throughout their operations, that they were cited for failing to
comply with these statutory requirements and for groundwater leaks as a result thereof,
and that Plaintiffs shortly thereafter noticed that their groundwater source had been
polluted. The temporal and physical proximity of the Defendants’ actions to the
Plaintiffs’ harm, in addition to the lack of contemporaneous and alternative sources of
the contamination, permit the reasonable inference that the Defendants were responsible
for that harm. The Plaintiffs’ Amended Complaint contains numerous allegations with
respect to the harms that they have suffered, including contaminated groundwater
unsafe for human consumption, loss of value to their property, and damage to
appliances which utilize the groundwater. With regard to the negligence per se claim,
the Plaintiffs presently before the Court reside less than 1,000 feet from the Defendants’
gas wells and allege numerous injuries as a result of the Defendants’ violations of the
Oil and Gas Act, thus falling directly within the particular group of individuals that the
Act is intended to protect. We thus conclude that the Plaintiffs have satisfied the first
element of a negligence per se action with respect to the HSCA, the SWMA, and the
Oil and Gas Act.
We must also consider whether the Plaintiffs have established that these laws “clearly
apply to the conduct of the defendant,” that the defendant violated these statutes, and
that the violation of these laws was the proximate cause of the Plaintiffs’ alleged harm.
Wagner, 684 A.2d at 574. The Plaintiffs have alleged that the Defendants own and
operate oil and gas wells and conduct oil and gas drilling and exploration activities in
the Commonwealth. The Oil and Gas Act regulates nearly every aspect of the
Defendants’ activities. The HSCA and SWMA also regulate the Defendants’ activities
by prohibiting drillers from discharging hazardous substances and waste into the
environment, although to a lesser degree than the Oil and Gas Act. Thus, the
requirement that the statutory standard of conduct “clearly apply” to the Defendants’
conduct is amply satisfied.
With respect to the third element, the Plaintiffs’ Amended Complaint asserts that the
Defendants were cited during the relevant time period for violation of the
Pennsylvania Oil and Gas Act, for violation of 25 Pa.Code § 78.54, 25 Pa.Code §
78.86, and 58 Pa. Cons.Stat. § 3217(b). Further, although the Plaintiffs do not allege
that the Defendants were cited for their violation of HSCA or SWMA, they
nonetheless assert facts which, if true, establish a violation of those Acts, including
specific allegations that the Defendants failed to properly maintain their waste pits,
that the Defendants permitted and failed to remedy hazardous substance and waste
leaks, and that the Defendants’ actions (and inactions) ultimately resulted in
groundwater contamination in the areas surrounding their gas wells. The Plaintiffs
have thus met their burden at this early stage by sufficiently pleading that the
Defendants have violated these three statutes.
Hobson v. Dolgencorp, LLC d/b/a Dollar General Store, 142 F.Supp.3d 487
(2015)
Facts: Plaintiff Carol Hobson filed this suit against Dollar General alleging claims of
defamation, intentional infliction of emotional distress, and false arrest/imprisonment
137
stemming from an accusation of shoplifting. According to Hobson’s Complaint,
Dollar General employee Akedra Atkins stopped her in the store and asked to search
her purse, believing it contained stolen merchandise. Hobson refused and Atkins
instructed store employee Calvin Brooks to stand in the aisle and watch Hobson while
she called the police. Approximately thirty minutes later, a police officer arrived and
performed an item-by-item search of Hobson’s purse in full view of other shoppers,
ultimately absolving her. The officer then escorted Hobson out of the store and told
her that at the request of store management, she was banned from ever entering the
store again.
Issue: Should summary judgment be granted on the issues of slander, intentional
infliction of emotional distress, and false imprisonment?
Law: Slander is (1) a false and defamatory statement concerning the plaintiff; (2) an
unprivileged publication to a third party; (3) fault amounting at least to negligence on
the part of the publisher; and (4) either actionability of the statement irrespective of
special harm or the existence of special harm caused by the publication. Blake v.
Gannett Co., Inc., 529 So.2d 595 (Miss.1988). To maintain a claim for intentional
infliction of emotional distress, Dollar General’s conduct must be wanton and willful
and evoke outrage or revulsion. Leaf River Forest Prods. Inc. v. Ferguson, 662 So.2d
648, 659 (Miss.1995). To show false imprisonment on the part of the defendant, the
plaintiff must prove that the plaintiff was detained and that such detention was
unlawful.
Mayweather v. Isle of Capri Casino, 996 So.2d 136, 140 (Miss.Ct.App.2008).
Rule: With regard to the issue of slander, even though the employees never used the
word thief or stealing, the words, “stop her” and “I saw you put in your bag” were
sufficient to establish slander per se, which is the implication of guilt or commission
of a crime. With regard to the issue of intentional infliction of emotion distress, the
testimony of the Hobson showed there was enough to preclude a granting of summary
judgment. The employees confronted Hobson in the aisle of the Dollar General store,
accused her of placing items in her purse with the goal of shoplifting, and demanded
that she turn over her purse. While waiting for the police to arrive, Atkins instructed
Brooks to “watch” Hobson, leaving them standing in the aisle for close to thirty
minutes. The police conducted an item-by-item search of her purse in the aisle,
removing each of Hobson’s possessions and asking store employees, “Is this yours?
Once the police finished the inventory, Hobson asked if she could complete her
intended purchase. Dollar General had her escorted from the store, past other
shoppers, with instructions not to enter the store ever again. All of this took place
within the store, in full view of other patrons. At no time did employees offer to
conduct the search in the back room. Hobson testified that customers in the store and
at the cash register were looking at her. She was embarrassed and afraid someone
might record the incident and publish the video on social media. After leaving the
store, she pulled her car into a nearby parking lot and broke down in tears. With
regard to the issue of false imprisonment, that claim must be dismissed because
Hobson cannot show actual detention. Hobson declined Atkins’ request to search her
purse and told her to go ahead and call the police. As a result, Hobson waited until the
officer arrived. Hobson never tried to leave the store and she was never told she could
138
not leave. At most, Hobson testified that Atkins told Brooks to “watch her” and don’t
let her move. But even if she was told she could not leave, the submission to the mere
verbal direction of another, unaccompanied by force or by threats of any character,
cannot constitute a false imprisonment. Summary judgment is granted as to the false
imprisonment claim and denied as to the claims for slander and intentional inflection
of emotion distress.
Miller v. Alza Corporation, 759 F.Supp.2d 929 (S.D. Ohio 2010)
Facts: This case concerns the death of Cornell Phillips. At the time of his death,
Phillips was using a fentanyl patch manufactured by Defendant ALZA and distributed
by Defendant Sandoz. Fentanyl patches are prescription pain patches designed to
deliver fentanyl through a user’s skin. Fentanyl is a very powerful narcotic drug that
is used to treat persistent moderate to severe chronic pain. Fentanyl is 80 times more
potent than morphine by weight and has a very narrow therapeutic band, meaning the
difference between a therapeutic and a lethal dose is small. Plaintiff, William Miller,
administrator of Phillips’ estate, filed this wrongful death action asserting product
liability causes of action, including failure to warn claim, a manufacturing defect
claim, and a design defect claim. Plaintiff also sets forth claims of negligence and
breach of warranty.
Issue: Should summary judgment be granted in favor of defendant, concerning
plaintiff’s claims of failure to warn, design defect, manufacturing defect, negligence
and breach of warranty?
Law: In Ohio, where no warning is given, or where an inadequate warning is given, a
rebuttable presumption arises, beneficial to the plaintiff, that the failure to adequately
warn was a proximate cause of the plaintiff’s ingestion of the drug. However, where
the evidence demonstrates that an adequate warning would have made no difference
in the physician’s decision as to whether to prescribe a drug or as to whether to
monitor the patient thereafter, the presumption is rebutted, and the required element of
proximate cause between the warning and ingestion of the drug is lacking. A product
is “unavoidably unsafe” when in the state of technical, scientific, and medical
knowledge at the time a product in question left the control of its manufacturer, an
aspect of that product was incapable of being made safe. O.R.C. § 2307.71(A)(16). In
manufacturing defect cases, the plaintiff has the burden of proving the existence of the
defect. Smitley v. Nissan North America, Inc., 2010 WL 3027915. In Ohio, defects
can be proven by circumstantial evidence. O.R.C. § 07.73(B). However, such
circumstantial evidence must permit a jury to go beyond speculation and render a
judgment in accordance with law. Ohio Revised Code Sections 2307.71 to 2307.80
are intended to abrogate all common law product liability claims or causes of action.
Rule: With regard to the failure to warn Philips, the defendant rebutted any presumption
that inadequate warnings contributed to Phillip’s death because the treating physician
would have prescribed the patches to Phillips even in light of any warnings. Therefore,
proximate cause is lacking because there is no link between the warnings and the use of
the drug. This claim is dismissed. Regarding the design defect claim, the plaintiff has
adequately alleged that the risk of the reservoir design on the patch outweighs its benefits
and that claim will not be dismissed. With regard to the manufacturing defect claim,
139
there is sufficient circumstantial evidence to sustain the claim. An expert testified that the
death of Phillips could have been caused by the leaky patch. Although the defendants’
expert testified, to the contrary, there is genuine issue of fact and that claim will not be
dismissed. Concerning the claims for negligence and breach of warranty, those claims
are dismissed because they are abrogated by the product’s liability act.
ASSIGNMENT 9.1
Consider the circumstances of Practical Application 9.2. Explain under the different
theories of causation why each of the parties below is likely to be, or not be,
considered part of the causation of the accident.
a. Ajax
Answer: Ajax would be considered part of the causation because proximate cause
could be shown. Ajax, while in the process of demolishing the elevator shaft, caused a
part of the shaft to fall on Betty’s car and that was the direct cause of the accident.
Legal cause can be established under both the but-for test and the substantial factor
test. According to the but-for test, the damage to the car would not have occurred but
for the actions of Ajax. According to the substantial factor test, Ajax’s actions in
allowing the shaft to fall was a substantial factor in damaging the car.
b. City
Answer: The causation for the City is connected to their contracting with Ajax to
remove the elevator shaft. Ajax is an independent contractor. Generally, an entity that
hires an independent contractor is not liable for the acts of the independent contractor.
c. John
Answer: John is probably not part of the causation. John’s elevator shaft was
damaged through no fault of his own. He would not even be the but-for cause and he is
not a substantial factor in the damage to Betty’s car. John’s only concern on the
causation chain is if he allowed the hazard on his property to continue for an
unreasonable time.
d. Dorothy
Answer: Dorothy would not be part of the causation. Although cause in fact can be
established in that, but-for the trash accumulating on her premises, the damage to
Betty’s car would not have happened. Dorothy could not reasonably foresee that her
actions would start a fire that would spread and damage an elevator shaft, which
required demolition, and that Ajax would in turn cause a part of the shaft to fall onto
Betty’s car. Dorothy’s negligence is far too removed to be the proximate cause.
ASSIGNMENT 9.2
Mario was driving south on Main Street on a clear day at a speed of 35 mph, which
was the posted speed limit. Two days before, Mario’s auto mechanic, Phil, told Mario
that his brakes were bad and would not stop his car properly. As Mario crossed the
intersection of Main and Minor Streets, he struck a car operated by Mrs. Smith. Mrs.
140
Smith was observing all rules of the road. Mario just could not stop in time. Mrs.
Smith suffered a broken elbow, lost 12 days of work, and had medical bills of
$10,000.00.
Discuss the four elements of negligence as it relates to Mario and Phil.
Refer to the section “The Process of Legal Analysis” discussed in Chapter 2 before
answering.
Be sure to review Exhibit 9.1 and the Landis v. Harristown Development Corporation
case.
The first element of negligence is duty. Mario had a duty to drive his car in a safe
manner and not to create risks that could cause harm to others on the road. The second
element is breach of duty. To assess breach of duty, we must see if Mario’s conduct
was below the standard of care required of drivers. We must compare Mario’s
conduct with the conduct of the average reasonable driver under like circumstances.
Though Mario knew that his car’s brakes were bad, he chose to drive that day. The
average reasonable driver does not drive with bad brakes. Therefore, Mario breached
his duty of care. The third element of negligence is causation. Is the defendant the
proximate or legal cause of the damages? We must first determine cause in fact.
Cause, in fact, can be analyzed under the but-for test and the substantial factor test.
But for Mario driving with bad brakes, the plaintiffs would not have been injured.
Mario is also the substantial factor in bringing about the damages to the plaintiffs.
Mario is also the legal cause or proximate cause because this is not a case that
involves remote circumstances that are not foreseeable. It is foreseeable that if you
drive with bad brakes, someone will be harmed. The fourth element is damages. Mrs.
Smith suffered damages to her elbow and missed work and had medical bills. There
was also damage to the car.
ASSIGNMENT 9.3
Examine the following situations and identify the intentional tort, if any, that was
committed.
1. Sam and Mike were soccer players who played for opposing sports clubs. They had
competed against each other for many years and had built up quite a rivalry. The
rivalry had been a friendly one. However, during a match Mike let lose a tremendous
kick and unfortunately the ball hit Sam in face causing a concussion.
Answer: There is no intentional tort. Hitting a person with a ball in the head is a
battery (unauthorized contact with another). However, in a sporting contest, one
consents to physical contact within the rules of the sport involved.
2. After the game, Sam saw Mike in a pizza shop and said to Mike, “if you do not leave
here right now you may be experiencing some severe pain.”
Answer: To prove an action for intentional infliction of emotional distress, it must
be shown that the actor intentionally engaged in conduct so outrageous that the
actor knew or should have known is likely to result in severe emotional distress in
the plaintiff. Mike’s comment to Sam would not rise to that level.
141
3. Assume that the situation is the same as in number 2 except that Mike picks up an
empty pizza tray and throws it at Sam. Sam does not see the tray coming, but gets hit
in the side of the head with the tray.
Answer: When Mike hits Sam with the pizza tray that was a battery. Since Sam
did not see the tray coming, it would not be an assault. Assault requires that the
plaintiff be aware of the harmful or offensive contact.
4. After the incident in number 3, Sam notices that Mike had gone to the restroom. Sam
then gets a chair and props the chair against the restroom door. Sam then stands by
the door preventing anyone from removing the chair. After about 45 minutes,
another customer removes the chair after Sam had left the shop at which time Mike
is able to leave the restroom.
Answer: Sam committed a false imprisonment when he propped the chair against
the door, thus not allowing Mike to leave the restroom.
5. Charley had severe pain in his right ear. Charlie sees Dr. Smith for the condition. Dr.
Smith ran a series of tests and concludes that surgery on the ear is the only viable
treatment for the condition. The surgery requires that Charlie be placed under
general anesthesia. Charlie signs all the usual consent forms for the surgery on the
right ear. The surgery goes very well and Dr. Smith decides to take a look at
Charlie’s left ear while Charlie was still under the aesthesia. Although not life
threatening, Dr. Smith proceeds to remove a benign lesion in the left ear.
Answer: Battery is harmful or offensive contact with the person of the plaintiff.
When Dr. Smith operated on the left ear, Dr. Smith committed a battery as he did
not have consent to touch the left ear and this is not an emergency situation.
ASSIGNMENT 9.4
Examine each of the following circumstances (similar to those in Assignment 9.3) and
identify any major tort defenses that would apply.
1. Sam and Mike were soccer players who played for opposing sports clubs. They had
competed against each other for many years and had built up quite a rivalry. The
rivalry had been a friendly one. However, during a match, Mike lets lose a
tremendous kick and unfortunately the ball hits Sam in face causing a concussion.
Answer: The defense is consent.
2. After the game, Sam saw Mike in a pizza shop and said to Mike, “if you do not
leave here right now you may be experiencing some severe pain.” Mike sues Sam
for assault and intentional infliction of emotional distress.
Answer: The defense is that words alone do not constitute an assault. Although
offensive, the words rise to the level of outrageous to cause severe emotional
distress in Mike.
3. Assume that the situation is the same as in number 2 except that Mike picks up an
empty pizza tray and throws it at Sam. Sam does not see the tray coming, but gets
hit in the side of the head with the tray. Mike sues Sam for assault and battery.
Answer: Assault requires that the plaintiff be aware of the imminent battery. Sam
did not see the tray coming so there is no assault. There is no defense to the battery.
142
4. After the incident in number 3, Sam sees that Mike had gone to the restroom. Sam
then gets a chair and props the chair against the restroom door. Sam then stands by
the door preventing anyone from removing the chair. After about 45 minutes,
another customer removes the chair after Sam had left the shop, at which time Mike
is able to leave the restroom. Mike sues Sam for false imprisonment.
Answer: There is no defense to the false imprisonment even though Sam got out
in 45 minutes. The tort was complete when Sam propped the door closed.
5. Charley has been having severe pain in his right ear. Charlie sees Dr. Smith for the
condition. Dr. Smith ran a series of tests and concludes that surgery on the ear is
the only viable treatment for the condition. The surgery requires that Charlie be
placed under general anesthesia. Charlie signs all the usual consent forms for the
surgery on the right ear. The surgery goes very well and Dr. Smith decides to take a
look at Charlie’s left ear while Charlie was still under the anesthesia. Although not
life threatening, Dr. Smith proceeds to remove a benign lesion in the left ear.
Charlie is very pleased with the results of the surgery on the left ear. When Charlie
later learns that Dr. Smith had operated on his left ear, he sues Dr. Smith for assault
and battery.
Answer: No defense. The emergency rule states that an unpermitted contact for
medical may be allowed if an emergency exists. Here there was no emergency with
respect to contact with the left ear.
INTERNET ASSIGNMENT 9.1

Using Internet resources, identify whether your state has a statute that disallows
frivolous lawsuits (claims determined to be unfounded).
Answers will vary.

Does your jurisdiction have limitations on recovery in medical malpractice suits?
Answers will vary.

Does your jurisdiction have a statute that imposes tort liability for certain types of
electronic media transmissions?
Answers will vary.
PRACTICAL APPLICATION 9.1

Point for Discussion: Should the lawyer’s duty extent to such a circumstance?
No. The lawyer’s duty does not extend to this kind of harm. The lawyer’s duty is to
adequately represent the client in the legal proceedings and the duty does not extend
to foresee and protect the client from his own possible suicidal tendencies.
143
Point for Discussion: Using substantial factor analysis, who are the possible parties
to be charged with causation, and why?
Ajax could be charged with causation because its actions were a substantial factor in
causing damage to Betty’s car. The City could be charged with causation because it
hired Ajax to remove the elevator shaft. John could be charged with causation if he
allowed the hazard on his property to continue for a lengthy period of time. Even if
Dorothy had been negligent in allowing combustible trash to accumulate on her
property, such accumulation was too far removed factually and chronologically from
Betty’s harm to be a substantial cause.

Points for Discussion:
1. One could say that but for the driver leaving the car running, the plaintiff would
not have stolen the car and been injured. Do you agree with the judge that the
causal chain has been severed in this case?
One could assert the judge made the correct decision in finding that the causal chain
had been broken. Even if the pizza company failed to secure the car while making a
delivery, the thieves’ careless operation of the car was an independent intervening
force that breaks the causal chain.
2. Would the outcome be changed if Mike could establish he had been running more
than five miles every day at the same time on the same beach for one month and
never had an incident with an oncoming pedestrian?
No, there would be legal causation because under both scenarios, Mike was running
into the sun, with his vision impaired, and he ran into Candace. If Mike had been
running on the same beach at the same time for a month, he should have been even
more aware of the “blinding” conditions and should take extra precautions to ensure
that he would not run into another person (e.g., wear sunglasses, sun visor). Mike
might argue that not having an accident for a month shows that he is a cautious
runner, but this might not outweigh his responsibility to take extra precautions under
the conditions.

Point for Discussion: Why would this case be appropriate for use of the theory of res
ipsa loquitur?
Res ipsa loquitur would be appropriate because the three elements of res ipsa are
present.
1. The occurrence is of the type that would not happen without negligence. Elevators
do not under usual circumstances without negligence come crashing to the ground.
2. The owners of the building had control and responsibility of the elevator.
3. Bill did nothing to contribute to his injuries.
144
Point for Discussion: Because the tickets were purchased online from a private
individual, rather than the original ticket outlet, should the classmate have a
responsibility to assess the validity of the tickets?
Yes. Because the tickets were bought from an individual, not from the original ticket
outlet, there was a possibility that the tickets were not valid—regardless of whether
Grant knew of their validity. The classmate had the opportunity to check out the
validity of the tickets, and he should have done so.

Point for Discussion: Was this a case of significant misuse of the product that the
manufacturer can allege as a defense to the product liability suit?
Manufacturers have an obligation to foresee a certain degree of misuse of the product.
Here the warning is very clear that the lift is not for personnel. The men were using the
product in a way not intended (a significant misuse) by the manufacture and the forklift
manufacturer is not liable for the injuries to Ralph and Jim.

Point for Discussion: Should Stephen be allowed to pursue the sender of the text?
Would your answer change if it was proven that the sender knew that his texts were
being sent to the driver while he was driving?
The statute addresses the sender of the text message, so under a strict reading of the
statute, the sender would not be liable. However, perhaps a case of negligence can be
made against the sender if the sender has reason to believe that when he or she sent the
text, the recipient was driving a car. This knowledge on the part of the sender could
form the basis of a suit in negligence.

Point for Discussion: Is it fair not to award any damages in this case although it was
proven that the product was defective?
Assumption of the risk is proven when the plaintiff knew of, appreciated, and
voluntarily encountered the danger. The facts reveal that James was aware of the
potential for rollover. He read the manual on the second bulldozer he purchased that
warned of rollovers without a roll bar. James chose to use the older bulldozer, which
did not have the role bar and thus assumed the risk of his own injury.
145
REVIEW QUESTIONS
1. How does negligence differ from an intentional tort?
Negligence is an act or failure to act toward another when (a) a duty was owed to
the other person, (b) the act or failure to act was less than a reasonable person
would have done under the circumstances, (c) the act or failure to act was the
direct cause of injury, and (d) the injury resulted in measurable financial,
physical, or emotional damage. Intentional tort is an act that the actor knows or
should know with substantial certainty will cause harm to another. The primary
difference between negligence and intentional tort is the element of intent.
2. When is an employer liable for the actions of an employee?
Under a long-established rule of law commonly known as respondeat superior, a
superior may be held responsible for injuries caused by his or her employee.
Generally, an injured third party has the right to sue the employer if the third
party can demonstrate that the employee was a regular employee and not an
independent contractor (someone who works on a per job basis) and that the
injury was caused by the employee while acting within the scope of his or her
employment.
3. Under what circumstances is assumption of risk applied?
Assumption of risk is applied as a defense when the plaintiff knew of, appreciated,
and voluntarily encountered the danger of the defendant’s conduct.
4. Which party claims last clear chance?
The plaintiff claims last clear chance. Doctrine of last clear chance is, in reality, a
defense to a defense. The doctrine states that even though a plaintiff contributed to
endangering him- or herself, the defendant had the last clear opportunity to avoid
the occurrence and prevent the plaintiff’s injury but failed to do so.
5. What are the types of defamation actions?
Defamation is the combined name for two types of intentional torts: libel and slander.
a. Libel is an action for injuries that occur as the result of a written communication
to a third party.
b. Slander is the appropriate action when the injuries occur as the result of an oral
communication.
6. How have workers’ compensation laws affected tort actions?
Workers’ compensation laws provide a basis for compensation to employees who
are injured while performing job-related duties, but the laws also place limitations
on the extent to which an employer may be held financially liable. Another major
benefit of workers’ compensation laws is that they typically are not based on
findings of fault or negligence by the employer. This aids the injured employee
who could not recover without proof of tortious conduct of the employer.
Ultimately, workers’ compensation laws have reduced the number and expense of
lawsuits between employers and employees, encouraged employers to provide a
safer working environment, and directly contributed to the flow of industry and
commerce in this country.
146
Solution Manual for Walston-Dunham Introduction to Law 7th
7. When can res ipsa loquitor be applied?

Res ipsa loquitor, “the thing speaks for itself,” can be used by plaintiffs to ease the
burden of proof only when he or she can prove that (a) the occurrence was of a
type that would not happen without negligence, (b) the instrument producing the
injury during the occurrence was exclusively in the defendant’s control, and (c) the
plaintiff did not contribute to the injury. Res ipsa loquitor is used in cases where
the evidence that would disclose how the defendant was negligent is not available
to the plaintiff.
8. What types of claims involve strict liability?
Strict liability was developed for cases of persons who obtained some personal or
financial benefit from an activity that could not be made safe and from which the
innocent public could not protect themselves. More recently, strict liability has
been the primary basis of litigation against manufacturers of products. Consumers
(users) of products have no means of knowing how the product was designed and
what aspects of it could cause injury.
9. How do the torts of assault and battery differ?
By definition, assault involves no physical contact, only the threat of such contact.
To prove an act of assault in tort, it must be shown that the actor engaged in
physical conduct that may or may not have been accompanied by words and placed
the plaintiff in apprehension of immediate and harmful contact. Battery, on the
other hand, includes all unpermitted physical contact that results in harm.
Battery encompasses physical attacks, medical treatment without consent, and
every other conceivable act that results in physical contact between two parties as
long as
• there is the intent to make physical contact,
• there is no consent to such contact,
• the contact occurs to the person or to anything that is so closely attached that it
is considered part of the person, and
• the contact results in injury to the person.
10. How does a claim of strict liability differ from a claim for negligence?
In a claim for negligence, fault, carelessness, or intent must be proven. These are
not an issue in actions for strict liability because no matter how carefully an
activity might be conducted or an animal might be guarded, it is a near certainty
that if the danger escapes into a public area, innocent bystanders will be harmed. It
is further reasoned that the persons in control of the activity or animal benefit from
it, and it is only reasonable that they should bear the costs of harm.
147
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Damages in Tort Actions

INTERNET ASSIGNMENT 9.1

INTERNET ASSIGNMENT 9.2

INTERNET ASSIGNMENT 9.3

PRACTICAL APPLICATION 9.1

PRACTICAL APPLICATION 9.3

PRACTICAL APPLICATION 9.4

PRACTICAL APPLICATION 9.6

PRACTICAL APPLICATION 9.7

PRACTICAL APPLICATION 9.8

7. When can res ipsa loquitor be applied?

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