Essentials of Business Law and the

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 95

Chapter 8

NEGLIGENCE AND STRICT LIABILITY

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

Cases in This Chapter

Ryan v. Friesenhahn Petition of Kinsman Transit Co.
Soldano v. O’Daniels Dukat v. Leiserv, Inc.
Love v. Hardee’s Food Systems, Inc. Klein v. Pyrodyne Corporation
Palsgraf v. Long Island Railroad Co.

Acetates Available for This Chapter

Acetate # Title Corresponding Figure #
19 Negligence and Negligence Per Se 8–1
20 Duties of Possessors of Land 8–2
21 Proximate Cause 8–3
22 Defenses to a Negligence Action 8–4

TEACHING NOTES
A tort is a civil wrong that causes injury to persons, their property, or their economic interests. In the last
chapter we covered intentional torts. In this chapter we cover the other two areas of tort law, negligence and
strict liability. What are the differences?
Intentional torts are committed when people take an action desiring to injure someone or when they take an
action that is substantially certain to cause injury.
Negligence is conduct that creates an unreasonable risk of harm.
Strict liability is not based on any fault of a person; rather, it is based on the nature of the activity a person
engages in.
Tort law is primarily common law and varies from state to state. It is dynamic, and over the last 30 years the
96 NEGLIGENCE AND STRICT LIABILITY CHAPTER 8

courts have gradually expanded liability. A counter-movement is now under way to restrict liability. Tort
reform is the name for efforts to legislate changes in tort law, both at the state and federal levels. The main
thrust is to limit the damages that juries can award to plaintiffs, particularly punitive damages, damages for
medical malpractice, and pain and suffering awards.

I. NEGLIGENCE
Restatement definition: “conduct which falls below the standard established by law for the protection of others
against unreasonable risk of harm.” The standard established by law is the conduct of a reasonable person
acting prudently and with due care under the circumstances; this does not include unavoidable accidents.

*** Chapter Objective ***

List and describe the three required elements of an action for negligence.

A plaintiff alleging negligence has to prove three elements:

1. Breach of duty of care — that the defendant had a legal duty of care to the plaintiff and that the defendant
failed in that duty;
2. Proximate cause — that the plaintiff was injured as a result of the defendant’s failure; and
3. Injury — that the plaintiff’s injury was to a legally protected interest.

A. BREACH OF DUTY OF CARE

While the law does not obligate us to help each other (except in special circumstances) we are obligated to
avoid doing harm or putting others at unreasonable risk of harm.
Negligence is conduct that creates an unreasonable risk of harm. To determine unreasonableness, a judge or jury
may consider: the probability that the harm will occur, the seriousness of the resulting harm, the utility of the
conduct creating the risk, and the cost of taking precautions to reduce the risk.

Reasonable Person Standard

The degree of care expected of a reasonable person in similar circumstances. Age, physical ability, superior
skill or knowledge, and emergencies may affect the level of conduct expected of a reasonable person.

*** Chapter Objective ***

Explain the duty of care that is imposed upon a) adults, b) children,
c) persons with a physical disability, d) persons with a mental deficiency,
e) persons with superior knowledge, and f) persons acting in an emergency.

Children — usually held to a standard of conduct based on their own age and experience, except when children
engage in an adult activity like flying a plane or driving a boat.
Physical Disability – A person who is ill or physically disabled must conform to the standard of conduct of a
reasonable person under like disability.
Mental Deficiency – No allowance is made for insanity, voluntary intoxication, or other mental deficiency. A
person with a mental deficiency is held to the standard of a person who is not mentally deficient.
Superior Skill or Knowledge – A person who is qualified to practice a profession or trade that requires special
skill and expertise is required to use the same care and skill normally possessed by members of that profession
or trade.
Emergencies – In sudden, unexpected events that call for immediate action, the standard is that of a reasonable
CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 97

person under the circumstances–the emergency is considered part of the circumstances.

Violation of Statute — The reasonable person standard of conduct may be established by legislation, with civil
liability imposed on violators.
NOTE: See Figure 8-1.

CASE
Ryan v. Friesenhahn
Facts: Todd Friesenhahn, son of Nancy and
Frederick Friesenhahn, held an “open invitation” party
at his parent’s home that encouraged guests to “bring
your own bottle.” Sabrina Ryan attended the party,
became intoxicated, and was involved in a fatal
accident after she left the party. Sandra and Stephen
Ryan, Sabrina’s parents, sued the Friesenhahns for
negligence, alleging that the Friesenhahns were
aware of the underage drinking at the party and of
Sabrina’s condition when she left the party. The trial
court granted summary judgment for the
Friesenhahns.
Decision: Judgment reversed.
Opinion: Accepting the Ryan’s allegations as true,
the Friesenhahns were aware that minors possessed
and consumed alcohol on their property and
specifically allowed Sabrina to become intoxicated.
The Texas Alcoholic Beverage Code provides that a
person commits an offense if, with criminal
negligence, he “makes available an alcoholic
beverage to a minor.” A violation of a statute
constitutes negligence per se if the injured party is a
member of the class protected by the statute. The
Alcoholic Beverage Code was designed to protect the
general public and minors in particular. Therefore,
Sabrina was a member of the protected class, and we
find that the Ryan’s have stated a cause of action
against the Friesenhahns for violation of the Alcoholic
Beverage Code.
In considering common-law negligence as a basis for
social host liability, courts have relied on Graff
v. Board, a prior Texas Supreme Court decision in
which it was held that no third party liability should be
imposed on social hosts who provide alcohol to adult
guests. The Texas Supreme Court gave two reasons
for its holding in Graff: first, the host cannot
reasonably know the extent of his guests’ alcohol
consumption level; second, the host cannot
reasonably be expected to control his guests’ conduct.
However, this rationale does not apply where the
guest is a minor. The adult social host need not
estimate the extent of a minor’s alcohol consumption
because serving minors any amount of alcohol is a
criminal offense. Furthermore, the social host may
control the minor, with whom there is a special
relationship, analogous to that of parent-child.
While one adult has no general duty to control the
behavior of another adult, one would hope that adults
would exercise special diligence in supervising
minors. When a party is for the purpose of engaging
in the consumption of alcohol by minors, adults
certainly have a greater duty of care. Moreover, in
view of the legislature’s determination that minors are
not competent to understand the effects of alcohol, we
find sufficient legislative intent to support our holding
that a duty exists between the adult social host and
the minor guest. Accordingly, we find that the Ryans’
petition stated a common-law cause of action.
Interpretation: A violation of a statute constitutes
negligence per se if the injured party is a member of
the class protected by the statute.

Case Questions
1. What is the legal significance of the court’s finding of possible negligence per se?
2. How would this case change if Todd had held this party without his parents’ knowledge?
Ethical Question: Did the Friesenhahns act unethically? Explain.
Critical Thinking Question: Should a court extend social host liability for providing alcohol to adult guests?
Explain.
98 NEGLIGENCE AND STRICT LIABILITY CHAPTER 8

FEATURE: Ethical Dilemma

What Are the Obligations of a Bartender to His Patrons?
This explores the obligations borne by a bartender at a ski resort to stop serving drinks to skiers who announce that
they plan to go back on the slopes. See also the in-depth discussion at the end of this chapter.

Duty to Act
Except in special circumstances, no one is required to aid another in peril. This rule does not apply if:
• the relationship between the parties creates an obligation
• one party has negligently placed the other in a position of potential harm
• a person’s conduct, whether tortious or innocent, has injured someone else and left that person helpless
and in danger of further harm
A person who voluntarily helps someone in need is liable if her failure to exercise reasonable care increases the
risk of harm, causes harm, or leaves the other in a worse position.
A parent is not liable for the torts of a minor child simply due to the parental relationship, but is liable if the
parent encourages or otherwise participates in the tort. Liability may also be assessed due to negligence.

CASE
Soldano v. O’Daniels
Facts: On August 9, the plaintiff’s father, Darrell
Soldano, was shot and killed at the Happy Jack
Saloon. The defendant, O’Daniels, owns and operates
the Circle Inn, an eating establishment across the
street from the Happy Jack Saloon. On the night of the
shooting, a patron of the Happy Jack Saloon came
into the Circle Inn and informed the Circle Inn
bartender that a man had been threatened at Happy
Jack’s. The patron requested that the bartender either
call the police or allow the patron to use the phone for
that purpose. The bartender refused both to make the
call and to allow the Happy Jack patron to use the
phone. The plaintiff alleges that the actions of the
Circle Inn employee were a breach of the legal duty
that the Circle Inn owed to Soldano, who died. The
defendant claims that there was no legal obligation to
take any action, and therefore there was no duty owed
to Soldano. The trial court dismissed the case on the
defendant’s motion for summary judgment.
Decision: Appellate court reversed and remanded.
Opinion: The defendant points to the established rule
that one who has not created a peril ordinarily does
not have a duty to take affirmative action to assist an
imperiled person. The courts have increased the
instances in which affirmative duties are imposed, not
by direct rejection of the common law rule, but by
expanding the list of special relationships that will
justify departure from that rule. In this case, however,
there was no special relationship between the
defendant and the deceased. Nonetheless, the court
determined to re-examine the common law rule of
nonliability for inaction in the special circumstances of
this case. Imposing such a duty to third parties
requires an examination and balancing of
foreseeability of harm, certainty that the plaintiff would
suffer injury, the connection between the defendant’s
conduct and the injury, moral blame attached to the
defendant’s conduct, policy of preventing future harm,
extent of the burden to the defendant, the
consequences to the community of imposing a duty to
exercise care, and the availability, cost and
prevalence of insurance for the particular risk
involved. The court concluded, on these facts, that the
Circle Inn employee’s conduct displayed a disregard
for human life in that the burden on the defendant to
respond was minimal. Balancing these factors, the
court concluded that there was an affirmative duty on
the defendant’s part to respond, and failure to respond
resulted in a legal breach of the duty of care. It bears
emphasizing that the duty in this case does not
require that one go to the aid of another. Rather, the
use of a telephone, in the public portion of a business
open to the public, during business hours, should not
be refused for a legitimate emergency call.
Interpretation: Although a person may not have a
duty to help another, a person has a duty not to hinder
others who are trying to help.

Case Questions
1. Under the common law, when is there a duty to act?
CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 99
2. What is a method for expanding the duty to act under the common law, noted by the Soldano court?
Ethical Question: Did the bartender act unethically? Should the patron have done more? Explain.
Critical Thinking Question: Should the courts go beyond the rule of this case and impose an affirmative
duty to aid another person who is in peril if it can be done without endangerment? Explain.

Duties of Possessors of Land

People who occupy land with the intent to control its use have a right to use it for their own benefit and
enjoyment, but in a reasonable manner. They cannot cause unreasonable risk of harm to others either on or
off the site, though the possessor’s level of responsibility to a person on site usually depends on whether
the person is a trespasser, a licensee, or an invitee.

*** Chapter Objective ***

Differentiate among the duties that possessors of land owe to trespassers, licensees, and invitees.

NOTE: Figure 8-2 in the textbook shows that the duties increase from trespasser to licensee to invitee.

Duty to Trespassers — A trespasser enters or remains on the land of another without permission. The
lawful possessor of the land is not liable for failure to maintain safe conditions, but may not inflict
intentional injury on a trespasser.
Duty to Licensees — A licensee is privileged to enter or remain on land only by the consent of the lawful
possessor; includes members of the household, social guests, and salespersons calling at private homes.
The possessor must warn the licensee of any known dangerous activities and conditions which the licensee
is unlikely to discover.
Duty to Invitees — An invitee is a person invited upon land as a member of the public or for a business
purpose. A public invitee visits the land as a member of the public for a purpose for which the land is
intended, as with a public park or a public government office.
A business visitor is an invitee who enters the premises for a purpose connected with business with the
possessor of the land, such as shopping in a store or entering a residence to make repairs.
If the possessor could discover a hazard by exercise of reasonable care, he is under a duty to protect
invitees from dangers they are unlikely to discover, whether the possessor is aware of the danger or not.

CASE
Love v. Hardee’s Food Systems, Inc.
Facts: At about 3:15 p.m. on November 15, 1995,
plaintiff, Jason Love, and his mother, Billye Ann
Love, went to the Hardee's Restaurant in Arnold,
Missouri, owned by defendant, Hardee's Food
Systems, Inc. There were no other customers in the
restaurant between 3:00 p.m. and 4:00 p.m., but
two or three workmen were in the back doing
construction. The workmen reported that they did
not use the restroom and did not see anyone use
the restroom. When Jason went to use the
restroom, he slipped on water on the restroom floor.
He fell backwards, hit his head, and felt a shooting
pain down his right leg. He found himself lying in an
area of dirty water, which soaked his clothes. There
were no barricades, warning cones, or anything
else that would either restrict access to the
bathroom or warn of the danger.
Jason stated after the fall that his back and leg
were "hurting pretty bad." His mother reported the
fall. The supervisor filled out an accident report
form, which reported that the accident occurred at
3:50 p.m. The supervisor testified that the water
appeared to have come from someone shaking his
hands after washing them. The supervisor could
not recall the last time the restroom had been
checked. Jason was taken to a hospital emergency
room. As a result of his injuries, he underwent two
back surgeries, missed substantial time from work,
and suffered from continuing pain and limitations on
his physical activities.
 100 NEGLIGENCE AND STRICT LIABILITY CHAPTER 8

Hardee’s had a policy requiring that the restroom
be checked and cleaned every hour by a
maintenance person, who was scheduled to work
until 3:00 p.m., but normally left at 1:00 p.m. The
supervisor could not recall whether the
maintenance person left at 1:00 p.m. or 3:00 p.m.
on November 15 and the defendant was unable to
produce the time clock report for that day.
It was also a store policy that whenever employees
cleaned the tables, they would check the restroom.
If an employee had to use the restroom, then that
employee was also supposed to check the
restroom. The restaurant supervisor did not ask if
any employees had been in the restroom, or if they
had checked it in the hour prior to the accident, and
did not know if the restroom was actually inspected
or cleaned at 3:00 p.m. The restaurant had shift
inspection checklists on which the manager would
report on the cleanliness of the restrooms and
whether the floors were clean and dry. However,
the checklists for November 15 were thrown away.
Plaintiff filed the lawsuit against defendant to
recover damages for negligence. The jury ruled in
plaintiff's favor in the amount of $125,000.
Decision: Judgment of the trial court is affirmed.
Opinion: In order to have made a submissible
case, the plaintiff had to show that defendant knew
or, by using ordinary care, could have known of the
dangerous condition and failed to use ordinary care
to remove it, barricade it, or warn of it, and plaintiff
sustained damage as a direct result of such failure.
In order to establish constructive notice, the
condition must have existed for a sufficient length
of time or the facts must be such that the defendant
should have reasonably known of its presence
In this case the accident took place in the
restaurant's restroom which is provided for the use
of employees and customers. The cause of the
accident was water, which is provided in the
restroom. The restaurant owner could reasonably
foresee that anyone using the restroom, customers
or employees, would use the tap water provided in
the restroom and could spill, drop, or splash water
on the floor. So, the restaurant owner must use due
care to guard against danger from water.
There was substantial evidence to support
submissibility. First, there was evidence that the
water came from the use of the restroom. It was on
the floor of the restroom and the supervisor testified
it appeared that someone had shaken water from
his hands on the floor.
If the water was caused by a non-employee, the
water was on the floor for at least 50 minutes, or
longer, because no other customers were in the
store to use the restroom after 3:00 p.m. and the
workmen on the site had not used the restroom.
In addition, the defendants' employees had the
opportunity to observe the hazard. The restroom
was to be used by the employees and was
supposed to be checked by them when they used
it; employees cleaning tables were supposed to
check the restroom when they cleaned the tables;
and a maintenance person was supposed to check
and clean the restroom every hour.
There was evidence that the maintenance person
charged with cleaning the restroom every hour did
not clean the restroom at 3:00 p.m. as scheduled
on the day of the accident. There was testimony
that the maintenance person usually left at 1:00
p.m. The supervisor could not recall what time the
maintenance person left that day and defendant
was unable to produce the time clock reports for
that day which would have shown when the
maintenance person clocked out. This could have
created a span of 2 hours and 50 minutes during
which there was no employee working at the
restaurant whose primary responsibility was to
clean the restroom.
Interpretation: The owner or possessor of property
is liable to an invitee if the owner knew or, by using
ordinary care, could have known of the dangerous
condition and failed to use ordinary care to remove
it, barricade it, or warn of it, and the invitee
sustained damage as a direct result of such failure.

Case Questions
1. How frequently should a public bathroom be checked for safety hazards? What expectation is reasonable?
2. Which employee is most at fault in this case?
Ethical Question: Is this ruling fair? Is the expectation unreasonable? Explain.
Critical Thinking Question: What level of responsibility to watch for dangers should the customer be held to
in a case like this?

Res Ipsa Loquitur

Meaning “the things speaks for itself,” this rule allows a jury to infer both negligent conduct and causation
simply because an event happened which would not occur unless someone has been negligent. Other possible
causes of the event must have been eliminated.

B. PROXIMATE CAUSE
CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 101

Liability for the negligent conduct requires not only that the conduct actually caused injury, but also that it was
the proximate cause of the injury.

Causation in Fact
A widely applied test for causation in fact is the but for rule: A person’s conduct is a cause of an event if the
event would not have occurred but for (i.e., in the absence of) the person’s negligent conduct. When two or
more forces are actively operating and each is sufficient to bring about the harm, the substantial factor test
would be applied: negligent conduct is a legal cause of harm to another if the conduct is a substantial factor in
bringing about the harm. This means that more than one defendant may be found liable for negligence in the
same case.

Limitations on Causation in Fact

The legal rule that limits a person’s liability to the consequences that are closely connected with the negligent
conduct. This means that a person may have acted negligently and actually caused injury, but she will not be
held liable for injuries that have been brought about too indirectly.
Unforeseeable Consequences — The Restatement and a majority of the courts have taken the following
position. Even if the defendant’s negligent conduct is a cause of harm to the plaintiff, the defendant is not liable
to the plaintiff unless the defendant could have reasonably foreseen injuring the plaintiff or a class of persons of
which the plaintiff is a member.
NOTE: See Figure 8-3 in the textbook

CASE
Palsgraf v. Long Island Railroad Co.

Facts: Palsgraf was on the railroad station platform
buying a ticket when a train stopped at the station. As
it began to depart, two men ran to catch it. After the
first was safely aboard, the second jumped onto the
moving car. When he started to fall, a guard on the
train reached to grab him and another guard on the
platform pushed the man from behind. They helped
the man to regain his balance, but in the process they
knocked a small package out of his arm. The
package, which contained fireworks, fell onto the rails
and exploded. The shock from the explosion knocked
over a scale resting on the other end of the platform,
and it landed on Mrs. Palsgraf. She then brought this
action against the railroad to recover for the injuries
she sustained.
Decision: Judgment for the railroad.
Opinion: Negligence is not actionable unless it
involves the invasion of a legally protected interest or
the violation of a right. In other words, in order for a
given act to be held negligent, it must be shown that
the charged party owed a duty to the complaining
individual, the observance of which would have
averted or avoided the injury.
Here, then, Palsgraf cannot recover because the
railroad, although perhaps negligent as to the man
carrying the package, was not negligent as to her.
This was because the harm to her was not
foreseeable. She cannot recover for injuries sustained
merely because the railroad’s agents were negligent
as to the man they assisted.
Interpretation: Even if the defendant’s negligent
conduct in fact caused harm to the plaintiff, the
defendant is not liable if the defendant could not have
foreseen injuring the plaintiff or a class of persons to
which the plaintiff belonged.

Case Questions
1. What policy reasons support application of the proximate cause element to limit a tortfeasor’s liability for
consequences of her negligent conduct?
2. How could the facts in Palsgraf be altered so that the risk of injury would have been foreseeable?
3. Distinguish causation in fact from proximate cause in the context of the facts in this case.
Ethical Question: Did the defendant’s employees act in an ethical manner? Explain.
Critical Thinking Question: Should a person be held liable for all injuries that his or her negligence in fact
102 NEGLIGENCE AND STRICT LIABILITY CHAPTER 8

causes? Explain.

CASE
Petition of Kinsman Transit Co.
Facts: The MacGivray Shiras was a ship owned by
the Kinsman Transit Company. During the winter
months when Lake Erie was frozen, this ship and
others moored at docks on the Buffalo River. As
oftentimes happened, one night an ice jam
disintegrated upstream, sending large chunks of ice
downstream. Chunks of ice began to pile up against
the Shiras, which at that time was without power and
manned only by a shipman. The ship broke loose
when a negligently constructed “deadman” to which
one mooring cable was attached pulled out of the
ground. The “deadman” was operated by Continental
Grain Company. The ship began moving down the S-
shaped river stern first and struck another ship, the
Tewksbury. The Tewksbury also broke loose from its
mooring, and the two ships floated down the river
together. Although the crew manning the Michigan
Avenue Bridge downstream had been notified of the
runaway ships, they failed to raise the bridge in time to
avoid a collision because of a mixup in the shift
changeover. As a result, both ships crashed into the
bridge and were wedged against the bank of the river.
The two vessels substantially dammed the flow of the
river, causing ice and water to back up and flood
installations as far as three miles upstream. The
injured parties brought this action for damages against
Kinsman, Continental, and the city of Buffalo.
Decision: Judgment for the injured parties.
Opinion: A ship insecurely moored in a fast-flowing
river is a known danger to the owners of all ships and
structures down the river and to persons upon them.
Kinsman and Continental, then, owed a duty of care to
all within the foreseeable reach of the ship’s
destructive path. Similarly, the city is liable to those
who foreseeably could have been injured by its
negligent failure to raise the bridge in time to prevent
the collision. Finally, although the exact type of harm
that occurred was not foreseeable, this does not
prevent liability. The damage resulted from the same
physical forces whose existence required the exercise
of greater care than was displayed and was of the
same general type that was foreseeable.
Interpretation: The unforeseeability of the exact
manner and extent of a loss will not limit liability where
the persons injured and the general nature of the
damage done were foreseeable.

Case Questions
1. Assume that Smith had been crossing the Michigan Avenue Bridge when the collision occurred and that he
suffered personal injury. Would his injuries be considered to fall within the foreseeable zone of danger?
2. Under the proximate cause rule, should Kinsman Transit Company be held liable for any damage or injuries
caused by the city employee’s negligence in not raising the bridge?
3. Would those individuals who suffered flood damage to their property be able to recover against Kinsman?
Ethical Question: Did any of the parties act in an unethical manner? Explain.
Critical Thinking Question: Compare this decision with that in the Palsgraf case and attempt to reconcile the
two questions.

Superseding Cause — If an event occurs after the defendant’s negligent conduct and helps to cause the
plaintiff’s injury, that event may be judged a superseding cause. A superseding cause prevents the defendant’s
negligence from being the proximate (nearest) cause of an injury. Accordingly, a superseding cause relieves the
defendant of liability for harm to the plaintiff.

C. INJURY
Harm to a legally protected interest is an injury — the plaintiff has the burden of proving that the defendant’s
negligent conduct proximately caused the injury in a negligence case.

D. DEFENSES TO NEGLIGENCE
CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 103

Even if a plaintiff can prove all of the elements of a negligence action, he may still not recover damages if the
defendant proves a valid defense. Generally, defenses to intentional torts can also be used in lawsuits alleging
negligence. In addition, three special defenses may be available in negligence cases: contributory negligence,
comparative negligence, and assumption of risk.

*** Chapter Objective ***

Identify the defenses that are available to a tort action in negligence.

Contributory Negligence
An act or failure to act on the part of the plaintiff that is also negligent and contributes toward the resulting
injury. In other words, the plaintiff helped to harm himself. In the few states following this rule, it is a
complete defense and prevents any recovery by the plaintiff.
Exception: If the defendant had a last clear chance to avoid injuring the plaintiff but did not, the contributory
negligence of the plaintiff does not bar his recovery of damages.

Comparative Negligence
Has replaced contributory negligence in almost all states. Under the doctrine of comparative negligence, which
is also called comparative fault or comparative responsibility, damages are divided between the parties in
proportion to the degree of fault or negligence found against them. The rule was adopted to mitigate the harsh
results contributory negligence imposed on plaintiffs who were slightly negligent.
Approximately a dozen states have adopted “pure” comparative negligence systems, with damages divided
between the parties in proportion to the degree of fault or negligence found against them.
Most states have adopted the doctrine of “modified” comparative negligence, under which the plaintiff recovers
as in pure comparative negligence unless her contributory negligence was equal to or greater than that of the
defendant, in which case the plaintiff recovers nothing.

Assumption of Risk
Is applicable where a plaintiff understands that a risk exists and voluntarily places himself in the zone of danger.
In express assumption of the risk, the plaintiff expressly agrees to assume the risk of harm from the
defendant’s conduct. Usually, but not always, such an agreement is by contract, which are usually judged
strictly and in some cases, may be considered unenforceable as a matter of public policy.
In implied assumption of the risk the plaintiff voluntarily proceeds to encounter a known danger. The Third
Restatement of Torts has abandoned the doctrine of implied voluntary assumption of risk: it is no longer a
defense that the plaintiff was aware of a risk and voluntarily confronted it. But if a plaintiff’s conduct in the face
of a known risk is unreasonable it might constitutes contributory negligence thereby reducing the plaintiff’s
recovery under comparative negligence.
NOTE: See Figure 8-4: Defenses to a Negligence Action

CASE
Dukat v. Leiserv, Inc.
Facts: Rebecca S. Dukat arrived at Mockingbird
Lanes, a bowling alley in Omaha, Nebraska, at
approximately 6 p.m. on February 2, 1994, to bowl in
her league game. Witnesses described that night as
cold, with some recalling that there had been sleet and
snow that day, and others testifying that they had no
memory of any precipitation. However, all the
witnesses who were asked about the conditions of the
bowling alley's parking lot and adjacent sidewalk
agreed that they were snow and ice covered.
Dukat proceeded to walk into the bowling alley on the
only sidewalk provided in and out of the building. She
testified that she noticed the sidewalk was icy. After
bowling three games and drinking three beers, Dukat
exited the bowling alley at approximately 9 p.m. She
retraced her steps on the same sidewalk, which was
104 NEGLIGENCE AND STRICT LIABILITY CHAPTER 8

still ice covered and in a condition which, according to
Frank Jameson, general manager of Mockingbird
Lanes, was "unacceptable" if the bowling alley were
open to customers. As Dukat proceeded along the
sidewalk to her car, she slipped, attempted to catch
herself by reaching toward a car, and fell. She
suffered a fracture of both bones in her left ankle as
well as a ruptured ligament.
Dukat sued Leiserv, Inc., doing business as
Mockingbird Lanes in Omaha, and Brunswick
Corporation, the parent company of Leiserv, in the
district court for Douglas County, Nebraska. Dukat
alleged that Leiserv and Brunswick were negligent in
failing to keep the sidewalk in a reasonably safe
condition, in failing to warn her of a dangerous
condition, and in failing to take adequate and
reasonable measures to protect her.
Decision: Brunswick's motion for a directed verdict
granted; general verdict for Leiserv returned by jury
Opinion: Leiserv and Brunswick alleged two
affirmative defenses: (1) Dukat was contributorily
negligent (and (2) Dukat had assumed the risk of
injury. Leiserv maintains that Dukat "knew full well that
the sidewalk and parking lot were icy," because on her
way into the bowling alley she had noticed the
sidewalk was slippery. Leiserv contends that Dukat
voluntarily exposed herself to the danger when she
failed to (1) ask someone to assist her to her car or (2)
tell a Mockingbird Lanes employee about the icy
conditions and that the sidewalk needed sand or "ice
melt."
Minds could reasonably differ on the evidence
introduced with respect to Dukat's contributory
negligence. It is a permissible inference from the
record that the ice alone would not have caused the
accident. It is clear from Dukat's testimony that she
knew of the icy condition of the sidewalk as she
entered the bowling alley and despite this knowledge
may have done things a reasonably careful person
might not have done. For example, the evidence
shows that Dukat drank three beers while she was at
the bowling alley and that she did not recall eating
dinner that night. Dukat also decided to navigate the
same icy path she had come in on without asking the
assistance of one of her friends who remained inside
the bowling alley. A reasonable person might also
have asked management to spread an ice-melting
substance on the sidewalk and delayed their
departure.
The trial court, therefore, was correct in submitting to
the jury the question of Dukat's contributory
negligence.
Interpretation: Contributory negligence and
assumption of a known risk by the injured party limit
the liability of the owner(s) of property where an injury
takes place.

Case Questions
1. Would this case have been different if Dukat had not consumed alcohol while at the bowling alley?
2. Would this case have been different if Dukat had fallen on the way into the bowling alley?
Ethical Question: Whose responsibility was it to make sure the sidewalks were clear? Explain.
Critical Thinking Question: Should the law hold owners of public property absolutely responsible for injuries
sustained on their property? Why or why not?
CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 105

II. STRICT LIABILITY

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

*** Chapter Objective ***

Identify and discuss those activities giving rise to a tort action in strict liability.

A. ACTIVITIES GIVING RISE TO STRICT LIABILITY

Abnormally Dangerous Activities
Activities considered abnormally dangerous involve a high degree of risk of serious harm that cannot be
eliminated by the exercise of reasonable care and are not a matter of common usage. Activities that have been
judged abnormally dangerous include storing explosives or flammable liquids in large quantities; blasting or
pile driving; crop dusting; drilling for or refining oil in populated areas; and emitting noxious gases or fumes
into a settled community.

CASE
Klein v. Pyrodyne Corporation
Facts: Pyrodyne Corporation contracted to display the
fireworks at the Western Washington State
Fairgrounds in Puyallup, WA, on July 4, 1987. During
the fireworks display, one of the five-inch mortars was
knocked into a horizontal position. A shell inside
ignited and discharged, flying five hundred feet parallel
to the earth and exploding near the crowd of
onlookers. Danny and Marion Klein were injured by the
explosion. Mr. Klein suffered facial burns and serious
injuries to his eyes. The plaintiffs and defendants
provided conflicting explanations for the improper
discharge of the mortar, and because all the evidence
had exploded, there was no means of proving the
cause of the misfire. The Kleins brought suit against
Pyrodyne under the theory of strict liability for
participating in an abnormally dangerous activity.
Decision: Judgment for the Kleins.
Opinion: Under the modern doctrine of strict liability
for abnormally dangerous activities, a defendant will be
liable when he damages another by a thing or activity
that is unduly dangerous and inappropriate to the
place where it is maintained, in light of the character of
that place and its surroundings. The Restatement of
Torts provides that any party carrying on an
“abnormally dangerous activity” is strictly liable. The
Restatement lists six factors that courts are to consider
in determining whether an activity is “abnormally
dangerous.” These factors are (a) the existence of a
high degree of risk of some harm to the person, land,
or chattels of others; (b) the likelihood that the harm
resulting from the activity will be great; (c) the inability
to eliminate the risk by the exercise of reasonable
care; (d) the extent to which the activity is not a matter
of common usage; (e) the inappropriateness of the
activity to the place where it is carried on; and (f) the
extent to which the activity’s dangerous attributes
outweigh its value to the community. Any one of these
is not necessarily sufficient, and ordinarily a finding of
strict liability will require several of them. The essential
question is whether the risk is so unusual as to justify
the imposition of strict liability even though the activity
is conducted with all reasonable care.
Factors (a), (b) and (c) are present in this case. Any
time a person ignites aerial shells or rockets with the
intention of sending them aloft in the presence of large
crowds of people, a high risk of serious personal injury
or property damage is created. That risk arises
because of the possibility that a shell or rocket will
malfunction or be misdirected. Furthermore, no matter
how much care pyrotechnicians exercise, they cannot
entirely eliminate the high risk inherent in setting off
powerful explosives, such as fireworks, near crowds.
Moreover, since relatively few persons conduct public
fireworks displays, factor (d) is also present. Since the
fairgrounds were an appropriate place for the fireworks
and we as a society value fireworks on the Fourth of
July more than we fear the risks, factors (e) and (f) are
not present. Finding that four of the six conditions were
present, the court holds that conducting public
fireworks displays is an abnormally dangerous activity
106 NEGLIGENCE AND STRICT LIABILITY CHAPTER 8

justifying strict liability. as determined in light of the place, time, and manner in
Interpretation: The courts impose strict liability for which the activity was conducted.
harm resulting from an abnormally dangerous activity,
Case Questions
1. Did the type of fireworks that exploded make a difference in this case?
2. What is the argument for allowing such dangerous activities as fireworks displays?
3. Why should those who practice abnormally dangerous activities such as blasting or crop dusting bear the
burden of strict liability? If the activity is socially desirable, why shouldn’t society bear the burden?
Ethical Question: Is it ethical to engage in abnormally dangerous activities? Explain.
Critical Thinking Question: If an activity is abnormally dangerous, should the law abolish it? Explain.

Keeping of Animals
Strict liability for harm caused by animals existed at common law and continues today with some changes. In
general, people who possess animals do so at their peril and must protect against harm to people and property.
Trespassing Animals — Keepers of animals are generally liable for damage done if their animals trespass.
Three exceptions to this rule: 1) keepers of cats and dogs are liable only for negligence; 2) keepers of animals
are not strictly liable for animals, such as sheep, straying from a highway on which they are being lawfully
driven, although the owner may be liable for negligence if he fails to control them properly; and 3) in some
western states keepers of farm animals, typically cattle, are not strictly liable for harm caused by their
trespassing animals that are allowed to graze freely.
Nontrespassing Animals — Keepers of wild animals are strictly liable for harm caused by such animals,
whether or not they are trespassing. Wild animals are those that are known to be likely to inflict serious
damage and that cannot ever be considered safe; includes bears, lions, elephants, monkeys, tigers, deer, and
raccoons. Keepers of domestic animals are liable if they know, or should have known, of the animal’s
dangerous propensity, which causes harm. Domestic animals include dogs, cats, horses, cattle, and sheep.

Products Liability
An important trend in the law is the imposition of a limited form of strict liability on the manufacturers and
merchants who sell goods in a defective condition unreasonably dangerous to the user or consumer. Liability is
imposed regardless of the seller’s due care and applies to all merchant sellers.

*** Chapter Objective ***

Identify the defenses that are available in a tort action in strict liability.

B. DEFENSES TO STRICT LIABILITY

Contributory negligence is not a defense. The strict liability for one who carries on an abnormally dangerous
activity, keeps animals, or sells defective products that are unreasonably dangerous is not based on his
negligence, so the ordinary contributory negligence of the plaintiff is not a defense. The full responsibility for
preventing harm is on the defendant.
Comparative negligence is a defense in some states. Despite the rationale that disallows contributory
negligence as a defense to strict liability, some states apply the doctrine of comparative negligence to strict
liability, particularly products liability.
Voluntary assumption of risk is a defense to an action based on strict liability, but the assumption of risk must
be voluntary.

ETHICAL DILEMMA DISCUSSION

“What Are The Obligations of a Bartender To His Patrons?”
CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 107

Legal Background
State laws vary with regard to the regulation of businesses which sell measured drinks to customers (“dram shop
laws”). Best’s Review has reported that as of 1991 thirty-eight states had statutory dram shop laws and the
remaining states imposed server liability under common law principles. (Best’s Review, Prop./Casualty, vol.
92, Iss. 4, August, 1991, pgs. 54-56.)
Many states are strengthening criminal codes. In Maine, for instance, a passenger may be found guilty as an
accomplice by permitting an intoxicated person to drive. The Supreme Court of Canada has pointed the way
toward imposing liability with regard to the serving of alcohol and the sponsoring of athletic events. In Crocker v.
Sundance Northwest Resorts Ltd., the Supreme Court of Canada held a ski resort 75% at fault for a quadriplegia
suffered by a drunken patron who was injured during a race down a ski hill. (See Mogan, and Anderson,
Canadian Insurance, Vol. 93, Iss. 11, 1988.)

Social Policy and Ethical Considerations

1. John could take action immediately to prevent the serving of a fourth round of drinks. He could contact the
manager or the head of hotel security for help. If the hotel’s superior managers do nothing, and simply share
Mr. Arnold’s views, John faces a difficult dilemma. At what point should he call outside police? On the
other hand, if John or the hotel forcefully detains the skiers, one wonders whether the hotel may be potentially
liable for false imprison-ment or other intentional torts (intentional infliction of emotional distress, etc.)
2. The risks to the two men drinking are that they could hurt themselves skiing or driving. There are public
safety issues involved, as the men could injure other skiers or occupants of other cars.
3. Management should develop policies for handling alcohol and train employees accordingly. Strategies for
the enforcement of management regulations should be developed. Alcohol policies should be developed with
the advice of legal counsel to ensure compliance with applicable state laws. While most companies will do
what the state requires and no more, individual companies should consider developing their own standards
based on individual ethical concerns. Some establishments require employees to take seminars focusing on
responsible alcohol service. (See Rand, Ted, Vodka & Vigilance, Insurance Review, Vol. 50, Iss. 6,
June, 1989, pgs. 42-46.)
4. Under most ethical theories, the drinking buddies do have an ethical responsibility for each other’s drinking.
They may also be subject to legal liability, although this is a separate issue.
5. States have long wrestled with the competing interests of freedom of business and the protection of the
public. Oregon has an innovative statute which the National Commission on Drunk Driving has hailed as
among the best in the United States. Features of the Oregon statute include stiff blood alcohol standards,
mandatory ignition interlock devices in several counties for those convicted of driving under the influence,
drinking buddy liability, mandatory training classes for persons who get a license to serve liquor, and
exposure to panels of about five victims of a drunk driver. (See Bussewitz, Walter, The National
Underwriter, Vol. 95, Iss. 15, Apr.1991, pg. 52.)
108 NEGLIGENCE AND STRICT LIABILITY CHAPTER 8

ANSWERS TO QUESTIONS AND CASE PROBLEMS

1. A statute requiring railroads to fence their tracks is construed as intended solely to prevent animals that stray onto the right of way
from being hit by trains. B & A Railroad Co. fails to fence its tracks. Two of Calvin's cows wander onto the track. Nellie is hit by a
train. Elsie is poisoned by weeds growing beside the track. For which cow(s), if any, is B & A Railroad liable to Calvin? Why?
Answer: Violation of Statute. The railroad company is liable for Nellie, the cow that was hit by the train, and probably
not for Elsie. For a statute to be adopted as the standard of conduct of a reasonable man, the intent of the statute must
have been to protect the interest against that particular harm which occurred and against that hazard from which the
harm resulted. The intent of this statute was to protect cows from the hazard of the trains, not from poisonous weeds.
Restatement, Second, Torts, Section 286. With respect to Elsie, the facts do not indicate whether the railroad was
otherwise negligent towards Elsie or whether Calvin is negligent for allowing his cows to roam freely.
2. Martha invites John to lunch. Martha knows her private road is dangerous to travel, having been guttered by recent rains. She
doesn't warn John of the condition, reasonably believing that he will notice the gutters and exercise sufficient care. While John is
driving, his attention is diverted from the road by the screaming of his child, who has been stung by a bee. He fails to notice the
condition of the road, hits a gutter, and skids into a tree. If John is not contributorily negligent, is Martha liable to John?
Answer: Duty to Invitees. No. A possessor of land who knows of dangerous conditions on his property and fails to warn
licensees is liable only if he should expect that they will not discover the danger. Restatement, Second, Torts, Section
342. In this case, it appears that Martha reasonably expected John to notice the dangerous conditions. The situation
may be different if he had been invited for dinner and had to travel the road at night.
3. Nathan is run over by a car and left lying in the street. Sam, seeing Nathan's helpless state, places him in his car for the purpose of
taking him to the hospital. Sam drives negligently into a ditch, causing additional injury to Nathan. Is Sam liable to Nathan?
Answer: Duty of Care. Yes, for the additional injuries. Once a person takes charge of another person in a helpless
condition, even though he is not under a duty to do so, he is then under a duty to exercise reasonable care to secure
that person’s safety, and is liable if he fails to do so. Restatement, 2nd, Torts, §324.
4. Vance was served liquor while he was an intoxicated patron of the Clear Air Force Station Non-Commissioned Officers' Club. He
later injured himself as a result of his intoxication. An Alaska State statute makes it a crime to give or to sell liquor to intoxicated
persons. Vance has brought an action seeking damages for the injuries he suffered. Could Vance successfully argue that the United
States was negligent per se by its employee's violation of the statute?
Answer: Reasonable Person Standard/Violation of Statute. Yes. An unexcused violation of a statute or regulation is
negligence in itself, or negligence per se if the court adopts the statute as defining the conduct of a reasonable person.
A court will adopt a statute as the minimum standard of care if its purpose is at least in part: (1) to protect a class of
persons that includes the one whose interest is invaded; (2) to protect the particular interest that is invaded; (3) to
protect that harm against the kind of harm that resulted; and (4) to protect that interest against the particular hazard
from which the harm resulted.
Applying these criteria to the statute in question, it is clear that all of the requirements are satisfied. The statute
unquestionably is designed to protect against personal injuries caused by intoxication. And while the statute’s
particular purpose may be to protect third parties from the negligence of an intoxicated consumer, the purpose is also,
at least in part, to protect the consumer himself. Vance v. United States, 355 F. Supp. 756 (D. Alaska, 1973).
5. A statute requires all vessels traveling on the Great Lakes to provide lifeboats. One of Winston Steamship Company's boats is sent
out of port without a lifeboat. Perry, a sailor, falls overboard in a storm so heavy that had there been a lifeboat, it could not have
been launched. Perry drowns. Is Winston liable to Perry's estate?
Answer: Causation. No, Restatement, Second, Torts, Section 432, Illustration 1. For liability to exist there must be
negligence and that negligence must be a legal cause of the harm. If the harm would have occurred in the absence of
the negligence, the negligence is not a legal cause. “If the same harm, both in character and extent, would have been
sustained even had the actor taken the required precautions, his failure to do so is not even a perceptible factor in
bringing it about and cannot be a substantial factor in producing it.” Comment b.
6. Lionel is negligently driving an automobile at excessive speed. Reginald's negligently driven car crosses the center line of the
highway and scrapes the side of Lionel's car, damaging its fenders. As a result, Lionel loses control of his car, which goes into the
ditch, where Lionel's car is wrecked and Lionel suffers personal injuries. What, if anything, can Lionel recover?
CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 109

Answer: Causation-in-fact. The question here is whether Lionel’s negligent conduct was a contributing factor to the
accident. Restatement, Second, Torts, Section 465 provides “the plaintiff’s negligence is a legally contributing cause of
his harm if, but only if, it is a substantial factor in bringing about his harm.”
Here it appears that the plaintiff’s negligence was not a substantial factor in causing his harm and thus he could collect
for both personal injuries and property damage. If, on the other hand, one concluded that the plaintiff was
contributorily negligent, he would be totally barred from recovery in those states that still recognize the traditional
doctrine but could collect a proportional share of his injuries in those states that have adopted the doctrine of
comparative negligence.
7. (a) Ellen, the owner of a baseball park, is under a duty to the entering public to provide a reasonably sufficient number of screened
seats to protect those who desire such protection against the risk of being hit by batted balls. Ellen fails to do so. Frank, a customer
entering the park, is unable to find a screened seat and, although fully aware of the risk, sits in an unscreened seat. Frank is struck
and injured by a batted ball. Is Ellen liable?
(b) Gretchen, Frank's wife, has just arrived from Germany and is viewing baseball for the first time. Without asking any questions,
she follows Frank to a seat. After the batted ball hits Frank, it caroms into Gretchen, injuring her. Is Ellen liable to Gretchen?
Answer: Assumption of Risk. (a) No, Frank has voluntarily assumed the risk and, therefore, is not entitled to recover for
harm arising out of the assumed risk. Restatement, Second, Torts, Section 496C, Illustration 4. (b) Ellen would be
subject to liability to Gretchen for her failure to satisfy the duty she owed to Gretchen. On these facts, Gretchen has
not assumed the risk, because she has no knowledge of the possible risk. Illustration 5, Section 496C.
8. CC Railroad is negligent in failing to give warning of the approach of its train to a crossing and thereby endangers Larry, a blind
man who is about to cross. Mildred, a bystander, in a reasonable effort to save Larry, rushes onto the track to push Larry out of
danger. Although Mildred acts as carefully as possible, she is struck and injured by the train.
a. Can Mildred recover from Larry? b. Can Mildred recover from CC Railroad?
Answer: Duty of Care. (a) No. Larry is not liable to Mildred. Larry has breached no duty owed to Mildred. (b) Yes.
Restatement, Second, Torts, Section 496E, Illustration 3. Mildred does not assume the risk. A plaintiff’s acceptance
of risk is not regarded as voluntary where the defendant’s tortious conduct has forced upon him a choice of courses of
conduct, which leaves him no reasonable alternative to taking his chances. As Cardozo said: “Danger invites rescue.”
Moreover, it was foreseeable that Mildred would attempt to rescue Larry. Therefore, CC Railroad is liable to
Mildred.
9. Two thugs in an alley in Manhattan held up an unidentified man. When the thieves departed with his possessions, the man quickly
gave chase. He had almost caught one when the thief managed to force his way into an empty taxicab stopped at a traffic light. The
Peerless Transport Company owned the cab. The thief pointed his gun at the driver's head and ordered him to drive on. The driver
started to follow the directions while closely pursued by a posse of good citizens, but then suddenly jammed on the brakes and
jumped out of the car to safety. The thief also jumped out, but the car traveled on, injuring Mrs. Cordas and her two children. The
Cordases then brought an action for damages, claiming that the cab driver was negligent in jumping to safety and leaving the
moving vehicle uncontrolled. Was the cab driver negligent? Explain.
Answer: Reasonable Person Standard/Emergencies. No. Judgment for Peerless Transport Company. The court
stated that the test of actionable negligence is what a reasonably prudent person would have done under like conditions
or circumstances. Therefore, to determine if the cab driver was negligent in abandoning his cab, his actions must be
compared with what a reasonable person would have done in a similar circumstance. In general, one faced with an
emergency is not required to exercise the same mature judgment that is expected of him under circumstances where he
has an opportunity for deliberate action. Here, the cab driver was faced with a most frightening experience and made a
split-second decision in an attempt to extricate himself from the danger. The court concluded that it could not be said
that he had acted unreasonably under the emergency circumstances, and therefore the Cordases are not entitled to
recover. Cordas v. Peerless Transportation Co., 27 N.Y.S. 2d 198 (1941).
10. Timothy keeps a pet chimpanzee, which is thoroughly tamed and accustomed to playing with its owner's children. The chimpanzee
escapes, despite every precaution to keep it upon its owner's premises. It approaches a group of children. Wanda, the mother of one
of the children, erroneously thinking the chimpanzee is about to attack the children, rushes to her child's assistance. In her hurry
and excitement, she stumbles and falls, breaking her leg. Can Wanda recover for her personal injuries?
Answer: Strict Liability: Keeping Animals. Yes. Section 507 of the Restatement, Second, Torts, provides as follows:
Liability of possessor of wild animal. (1) A possessor of a wild animal is subject to liability to another for harm done by the
animal to the other, his person, land or chattels, although the possessor has exercised the utmost care to confine the
animal, or otherwise, prevent it from doing harm. (2) This liability is limited to harm that results from a dangerous
propensity that is characteristic of wild animals of the particular class, or of which the possessor knows or has reason to
know.
110 NEGLIGENCE AND STRICT LIABILITY CHAPTER 8

11. Hawkins slipped and fell on a puddle of water just inside of the automatic door to the H. E. Butt Grocery Company's store. The
water had been tracked into the store by customers and blown through the door by a strong wind. The store manager was aware of
the puddle and had mopped it up several times earlier in the day. Still, no signs had been placed to warn store patrons of the danger.
Hawkins brought an action to recover damages for injuries sustained in the fall. Was the store negligent in its conduct?
Answer: Duty to Invitees. Yes. Decision for Hawkins. The grocery store had the duty to use ordinary care to keep its
premises in a reasonably safe condition for invitees or to warn them of a hazard. Whether a condition constitutes a
danger is a function of reasonableness. That is, if the ordinarily prudent man could foresee that harm was a likely result
of a condition, then it is a danger. The store knew or should have known that water was present and continuing to
accumulate on the floor, and they negligently failed to remove the water. H.E. Butt Grocery Co. v. Hawkins, 594 S.W. 2d
197 (1980).
12. Escola, a waitress, was injured when a bottle of Coca-Cola exploded in her hand while she was putting it into the restaurant's
cooler. The bottle came from a shipment that had remained under the counter for thirty-six hours after being delivered by the
bottling company. The bottler had subjected the bottle to the method of testing for defects commonly used in the industry, and there
is no evidence that Escola or anyone else did anything to damage the bottle between its delivery and the explosion. Escola brought
an action against the bottler for damages. Since she is unable to show any specific acts of negligence on its part, she seeks to rely on
the doctrine of res ipsa loquitur. Should she be able to recover on this theory? Explain.
Answer: Res Ipsa Loquitur. Decision for Escola. The doctrine of res ipsa loquitur permits a jury to infer both negligent
conduct and causation from the mere occurrence of certain types of events where actual negligent conduct cannot be
shown. Ordinarily, for the doctrine to be applicable, the injured party must show that the defendant had exclusive
control of the thing causing the injury and that the accident was of the type that usually would not occur in the absence
of negligence. Nevertheless, the court allowed Escola to rely on the doctrine even though the bottle was not in the
defendant’s exclusive possession when it exploded, because she had shown that the bottle was not damaged by
extraneous force after its delivery by the defendant. With the inference established, the burden fell upon the bottle for
defects. This it did. Finally, the jury had to determine whether the bottler’s evidence concluded that it did not, and
so, Escola is entitled to recover. Escola v. Coca Cola Bottling Co. of Fresno, 24 Cavl.2d 453, 150 P.2d 436 (1944).
13. Hunn injured herself when she slipped and fell on a loose plank while walking down some steps that the hotel had repaired the day
before. The night before, while entering the hotel, she had noticed that the steps were dangerous, and although she knew from her
earlier stays at the hotel that another exit was available, she chose that morning to leave via the dangerous steps. The hotel was
aware of the hazard, as one of the other guests who had fallen that night had reported his accident to the desk clerk then on duty.
Still, there were no cautionary signs on the steps to warn of the danger, and they were not roped off or otherwise excluded from use.
Hunn brought an action against the hotel for injuries she sustained as a result of her fall. Should she recover? Explain.
Answer: Defenses to Negligence/Contributory Negligence & Assumption of Risk. Decision for Windsor Hotel.
There were other routes the plaintiff could have taken that were lower risk and reasonably convenient. Hunn had a full
appreciation of the danger of the steps and voluntarily accepted the risk. Hunn v. Windsor Hotel Company, 119 W. Va.
215, 193 S.E. 57 (1937).
14. Fredericks, a hotel owner, had a dog named “Sport” that he had trained as a watchdog. When Vincent Zarek, a guest at the hotel,
leaned over to pet the dog, it bit him. Although Sport had never bitten anyone before, Fredericks was aware of the dog's violent
tendencies and, therefore, did not allow it to roam around the hotel alone. Vincent brought an action for injuries sustained when the
dog bit him. Is Fredericks liable for the actions of his dog? Explain.
Answer: Strict Liability/Keeping of Animals. Decision for Zarek. The defendant knew and feared the consequences and
vicious propensities of “Sport” and had taken precautions against them. It is a well-known rule of the common law that
one who keeps a domestic animal which he has reason to know has vicious propensities abnormal to its class is liable for
the harm the animal causes to others. Zarek v. Fredericks, 138 F. 2d 689 (C.A. 3d 1943).
15. Led Foot drives his car carelessly into another car. The second car contains dynamite, which Led had no way of knowing. The
collision causes an explosion which shatters a window of a building half a block away on another street. The flying glass inflicts
serious cuts on Sally, who is working at a desk near the window. The explosion also harms Vic, who is walking on the sidewalk near
the point of the collision. Toward whom is Led Foot negligent?
Answer: Reasonable Person Standard/Violation of Statute. Decision for Vance. An unexcused violation of a statute
or regulation is negligence in itself, or negligence per se if the court adopts the statute as defining the conduct of a
reasonable person. And even if the statute is not so adopted, a violation may still be considered as evidence of
negligence.
A court will adopt a statute as the minimum standard if its purpose is at least: (1) to protect a class of persons that
includes the one whose interest is invaded; (2) to protect the particular interest that is invaded; (3) to protect that harm
against the kind of harm that resulted; and (4) to protect that interest against the particular hazard from which the harm
resulted.
CHAPTER 8 NEGLIGENCE AND STRICT LIABILITY 111

Applying these criteria to the statute in question, it is clear that all of the requirements are satisfied. The statute
unquestionably is designed to protect against personal injuries caused by intoxication. And while the statute’s
particular purpose may be to protect third parties from the negligence of an intoxicated consumer, the purpose is also,
at least in part, to protect the consumer himself. Vance v. United States, 355 F. Supp. 756 (D. Alaska, 1973).
16. A foul ball struck Marie Uzdavines on the head while she was watching the Metropolitan Baseball Club (“The Mets”) play the
Philadelphia Phillies at “The Mets” home stadium in New York. The ball came through a hole in a screen designed to protect
spectators sitting behind home plate. The screen contained several holes that had been repaired with baling wire lighter in weight
than the wire used in the original screen. Although the manager of the stadium makes no formal inspections of the screen, his
employees do try to repair the holes as they find them. Weather conditions, rust deterioration, and baseballs hitting the screen are
the chief causes of these holes. The owner of the stadium, the city of New York, leases the stadium to “The Mets” and replaces the
entire screen every two years. Uzdavines sued “The Mets” for negligence under the doctrine of res ipsa loquitur. Is this an
appropriate case for res ipsa loquitur? Explain.
Answer: Res Ipsa Loquitur. Yes. Judgment for Uzdavines. Under res ipsa loquitur, Uzdavines must show that: (1) the
event is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) “The Mets” had exclusive
control over the instrumentality (the protective screen) that caused the event; (3) the event was not due to any
voluntary action or contribution on her part; and (4) evidence explaining the incident is more readily available to “The
Mets” than to her. On these facts it is clear that the first, third, and fourth requirements have been met. To prove that
“The Mets” exercised “exclusive control,” Uzdavines need only establish that they exercised “a degree of domination
sufficient to identify defendant with probability as the party responsible” for her injuries.
Both “The Mets” and the city of New York owed an independent duty to a spectator that requires “The Mets” to
exercise strict control of the screen, assuring the public that they may rely on the implied safety of sitting in that area.
Since the “Mets” were under a duty to maintain and control the protective screening, the exclusive control requirement
of res ipsa loquitur is satisfied and the doctrine applies to this case. Uzdavines v. Metropolitan Baseball Club, Inc., Civil
Court of the City of New York, 115 Misc.2d 343, 454 N.Y.S.2d 238 (1982).
17. Two-year-old David Allen was bitten by Joseph Whitehead's dog while he was playing on the porch at the Allen residence. Allen
suffered facial cuts, a severed muscle in his left eye, a hole in his left ear, and scarring over his forehead. Through his father, David
sued Whitehead, claiming that, as owner, Whitehead is responsible for his dog's actions. Whitehead admitted that (a) the dog was
large, mean-looking, and frequently barked at neighbors; (b) the dog was allowed to roam wild; and (c) the dog frequently chased
and barked at cars. He stated, however, that (a) the dog was friendly and often played with his and neighbors' children; (b) he had
not received previous complaints about the dog; (c) the dog was neither aggressive nor threatening; and (d) the dog had never bitten
anyone before this incident. Is Whitehead liable?
Answer: Strict Liability. No. Decision for Whitehead. The common law rules that the owner of a dog is not liable for
acts of his dog unless he knows or has reason to know of the dog's vicious propensities. The evidence shows only that
Whitehead's dog was large and mean looking, chased and barked at cars, and frequently barked at neighbors. These
facts are not proof that the dog had vicious propensities. Whitehead's previous knowledge of his dog's playfulness with
children does not prove that he knew or had reason to know that the dog would attack and bite a child.
18. Larry VanEgdom, in an intoxicated state, bought alcoholic beverages from the Hudson Municipal Liquor Store in Hudson, South
Dakota. Immediately following the purchase, VanEgdom, while driving a car, struck and killed Guy William Ludwig, who was
stopped on his motorcycle at a stop sign. Lela Walz, as special administrator of Ludwig's estate, brought an action against the city of
Hudson, which operated the liquor store, for the wrongful death of Ludwig. Walz alleged that the store employee was negligent in
selling intoxicating beverages to VanEgdom when he knew or could have observed that VanEgdom was drunk. Decision?
Answer: Violation of Statute. Judgment for Walz. South Dakota forbids the sale of intoxicating beverages to one in a
drunken state. Violation of a statute legally constitutes negligence if the statute "was intended to protect the class of
persons in which plaintiffs are included against risk of the type of harm which has in fact occurred." This statute is
designed to protect, among others, such individuals as Ludwig from the risk of being killed or injured "as a result of the
drunkenness to which the particular sale of alcoholic liquor contributes." This is a standard of care to which reasonably
prudent persons are held; violation of the statute is a breach of legal duty and thus is negligence. Walz v. Hudson, Supreme
Court of South Dakota, 327 N.W.2d 120 (1982).
19. Carolyn Falgout accompanied William Wardlaw as a social guest to Wardlaw's brother's camp. After both parties had consumed
intoxicating beverages, Falgout walked onto a pier that was then only partially completed. Wardlaw had requested that she not go
on the pier. Falgout said, "Don't tell me what to do," and proceeded to walk on the pier. Wardlaw then asked her not to walk past
the completed portion of the pier. She ignored his warnings and walked to the pier's end. When returning to the shore, Falgout got
her shoe caught between the boards. She fell, hanging by her foot, with her head and arms in the water. Wardlaw rescued Falgout,
who had seriously injured her knee and leg. She sued Wardlaw for negligence. Decision?
Answer: Assumption of Risk and Contributory Negligence. Judgment for Wardlaw. A plaintiff’s conduct may
constitute both assumption of risk and contributory negligence. To have assumption of risk, the plaintiff must have
112 NEGLIGENCE AND STRICT LIABILITY CHAPTER 8

actual, subjective knowledge of the dangers involved. It is not enough that she is merely in a position to make
observations that would reveal the dangers. Only when she has actually made the observations and should then have
reasonably known of the particular risk can she be held to have voluntarily assumed it. On the other hand, contributory
negligence is determined by an objective, “reasonable person” standard. If the plaintiff’s conduct falls below the
standard, she is contributorily negligent. Both defenses relieve the defendant of liability because of the plaintiff’s fault.
Here, Falgout actually observed the wide spacings in the pier when she walked to its end. Also, Wardlaw warned her
not to go out on it. These two facts establish that Falgout both saw and understood the risks of walking on the pier; yet,
she voluntarily assumed them. Her conduct also constituted contributory negligence. Either defense relieves Wardlaw
of liability to Falgout.
20. Joseph Yania and Boyd Ross visited a coal strip-mining operation owned by John Bigan to discuss a business matter with Bigan. On
Bigan’s property there were several cuts and trenches he had dug to remove the coal beneath. While there, Bigan asked the two men
to help him pump water from one of these cuts in the earth. This particular cut contained water eight to ten feet deep, with side walls
or embankments sixteen to eighteen feet high. The two men agreed, and the process began with Ross and Bigan entering the cut and
standing at the point where the pump was located. Yania stood at the top of one of the side walls. Apparently, Bigan taunted Yania
into jumping into the water from the top of the side wall. As a result, Yania drowned. His widow brought a negligence action against
Bigan. She claims that Bigan was negligent “1) by urging, enticing, taunting and inveigling Yania to jump into the water; 2) by
failing to warn Yania of a dangerous condition on the land . . .; [and] 3) by failing to go to Yania’s rescue after he jumped into the
water.” Was Bigan negligent?
Answer: Duty to Invitees. No. Judgment for Bigan. Taunting and enticement will only constitute actionable negligence if
directed “at a child of tender years or a person mentally deficient.” Therefore, Bigan’s taunting of Yania, who was an
adult in full possession of his mental faculties, is not negligence.
In addition, the owner of the land ordinarily has, at the least, a duty to warn invitees of known or discoverable dangers
the owner should realize involve an unreasonable risk of harm to them. This warning is required only if the owner has
no reason to believe the invitee will discover the condition or realize the risk of harm. Here, however, the dangers of
the water-filled trench were “obvious and apparent to Yania,” who was also a coal strip-mine operator. Accordingly,
Bigan is not negligent in failing to warn Yania of the obvious.
Finally, despite Bigan’s tauntings, Yania jumped into the water of his own accord. Bigan was not legally responsible, in
whole or in part, for placing Yania in his perilous and fatal position. Therefore, although he may have had a moral
responsibility, Bigan did not have a legal responsibility to rescue Yania, who died of his own foolhardiness.
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of lesion causing this symptom, some of which have been
reproduced in our table. We will not go into any details as to the
character of this symptom, referring the reader to the sources
indicated. In the first case given in our table (Case 10) the
hemianopsia was produced by a tumor in front of, and impinging
upon, the optic chiasm; in the other four cases (Cases 40, 41, 42,
and 43) the tumor was situated in the occipital lobe, and was
surrounded by an area of destroyed tissue. Hemianopsia is not,
strictly speaking, a symptom of brain tumor, but is likely to be present
in cases occurring in certain regions of the brain. Starr's conclusions
with reference to lateral homonymous hemianopsia when it is not
produced by a lesion of one optic tract are that it may result from a
lesion situated either (1) in the pulvinar of one optic thalamus; (2) in
the posterior part of one interior capsule or its radiation backward
toward the occipital lobe; (3) in the medullary portion of the occipital
lobe; or (4) in the cortex of one occipital lobe. The conclusions of
Seguin are only different in so far as they more closely limit the
position of the lesion.
25 Vol. IV.

26 Pp. 84, 85 of present Volume.

27 Amer. Journ. Med. Sci., N. S., vol. lxxxvii., January, 1884, p. 65.

Phosphenes, or subjective sensations of light, occur in various forms

—simply flashes or sheets of light, scintillations, balls of fire, etc.
They are not very common as isolated phenomena, and probably
are dependent in most cases upon irritation of the nerve and retina in
some of the stages of neuro-retinitis. Even visual hallucinations are
occasionally present, as in one of Bennett's cases of tumor of the
Rolandic region.

Conjugate deviation of the eyes, with rotation of the head, a

symptom of the early stages of apoplectic attacks, is also sometimes
observed in brain tumor. The patient is found with both eyes turned
to one side and slightly upward, as if looking over one or the other
shoulder, the head and neck being usually rotated in the same
direction. Sometimes the deviation is slight, sometimes it is marked.
Frequently the muscles of the neck on one side are rigid. The eyes
are commonly motionless, but occasionally exhibit oscillations. This
sign, well known to neurologists, usually disappears in cases of
apoplexy in a few hours or days, although it occasionally persists for
a long time. It will be more fully considered under Local Diagnosis.

Diminution or loss of hearing, tinnitus, and hyperæsthesia of hearing

are all occasionally observed. The most decided disturbances of this
sense are those which are found in connection with tumors of the
base or of the cerebellum in such a position as to involve the
auditory nerve or auditory tracts. Tinnitus, acoustic hyperæsthesia,
with complete or partial deafness, accompanying facial paralysis,
with or without paresis of the limbs of the opposite side, indicate
clearly a tumor of the base so situated as to involve the superficial
origin or intracranial course of the auditory and facial nerves.

The sense of smell is affected, of course, when the olfactory bulbs

are involved in the growth, either directly or by pressure, as in certain
tumors of the antero-frontal region (Cases 4 and 8). Disturbances in
the power of consciously perceiving odors, or abnormal perceptions
of odors or hallucinations of smell, are sometimes present in cerebral
tumors involving certain convolutions. The lower postero-parietal
region or the temporo-sphenoidal region of the base would seem,
from the few reported cases, to be implicated when this sense is
centrally affected. Smell was lost or impaired in two cases of tumors
of the postero-parietal region, in one limited to the supramarginal
convolutions. In a case reported by Allan McLane Hamilton (Case
47), an induration of the lower part of the right temporo-sphenoidal
lobe involving the uncinate gyrus, the patient, preceding light
epileptic attacks, always had an olfactory aura of a peculiar
character—a disagreeable odor, sometimes of smoke and
sometimes of a fetid character. In this case the olfactory nerves were
examined and found to be healthy.

Taste may be involved in several ways. In the first place, subjective

sensations of taste, particularly the so-called metallic taste, may be
present when the growths involve the cranial nerves in such a way
as to cause irritation to be conveyed to the nucleus of the
hypoglossal. When it is remembered that a mild galvanic current
applied to the nape of the neck or face will often cause this metallic
taste, it can be seen that the irritation of a tumor situated at almost
any point of the base might lead to abnormal taste-phenomena.
Neoplasms involving the trunk of the portio dura may of course
cause diminution or loss of taste on the anterior extremity of the
tongue by the involvement of the chorda tympani nerve. In the very
few cases in which the hypoglossal trunk may be involved
disturbances of taste posteriorly may occur. In two cases (Cases 33
and 36) some possible indications as to the cortical areas of taste
are given. One was a tumor so situated as to cause pressure on the
orbital, and possibly anterior, portion of the temporo-sphenoidal lobe;
the other was a lesion closely localized to the supramarginal lobule.

Trophic disturbances of decided character are sometimes present in

cases of brain tumor. Their presence, character, and extent depend
upon the position of the tumor and the cranial nerves involved.
Trophic disorders of the eye have been noted in cases of tumor of
the antero-frontal region, and also of various positions at the base,
especially those so situated as to involve the trigeminal nerve. In a
fibroma of the superior antero-frontal region (Case 1) conjunctivitis
and corneitis of the left eye, with anæsthesia of the conjunctiva, were
present, and were very marked symptoms. This patient, who was
under the care of one of us at the Philadelphia Hospital, was
examined by O. E. Shakespeare, ophthalmologist to the hospital. At
his first examination the bulbar conjunctivæ were slightly injected
and the cornea clear. The sensibility of the cornea was possibly a
little lowered. Ten days later, at a second examination, the central
corneal epithelium of the left eye was found to be hazy and the
whole bulbar conjuntivæ much congested. “This condition soon
developed into a severe superficial corneitis, which was mainly
limited to a central area of an extent about equal to three-fourths of
the diameter of the cornea, which threatened to slough, a narrow
peripheral ring of the cornea being comparative unaffected. At the
same time the engorgement of the bulbar conjunctiva increased. The
sclera, the iris, and the deeper parts were apparently not involved in
the inflammatory process.”

Disturbances of respiration were observed in a number of cases in

various stages. Cheyne-Stokes breathing was usually a late
symptom. In a case of tubercular meningitis with a tubercular
granulation springing from the left side of the fourth ventricle (Case
82) it was present. Extraordinary slowing of respiration occurred in a
tumor of the right middle cerebellar peduncle and cerebellar
hemisphere which caused irritation and softening of the floor of the
fourth ventricle. The respirations ran as low as four and five per
minute two weeks before death.

Persistent epistaxis and a tendency to hemorrhage from the mucous

membranes were interesting vaso-motor phenomena in a case
situated in the upper left quarter of the pons (Case 84). Profuse
perspiration, more marked on one side, was observed in a case of
tumor in front of the optic chiasm. Polyphagia was observed in two
cases, one a growth of the cerebellum and the other on the floor of
the skull. Polyuria was a very marked symptom in Case 95, a tumor
at the base of the brain at a spot corresponding to the sella turcica,
and diabetes was present in a case of frontal tumor. Albuminuria was
recorded twice—once in the same case in which diabetes was
present, and again in a case of multiple tumor of the supramarginal
convolution of one side and the angular gyrus of the other.
Somnolence was occasionally observed.

Constipation or torpor of the bowels occurs somewhat frequently in

the early stages of the brain tumor, giving place in the terminal
periods to involuntary evacuations. The conditions of the bladder are
practically the same. It is either not involved or suffers from torpor or
paresis of the muscular walls early in the disorder, and later, and
especially very late, incontinence from paralysis of the sphincter
results.

DURATION, COURSE, AND TERMINATION.—The duration of cases of

intracranial tumor is very uncertain. In many of the reported cases no
definite information is given as to the exact length of time from the
initial symptoms until the fatal termination. The few cases in which
the time was recorded showed a duration of from three months to as
many years.

In a few cases, even in some which are not syphilitic in character, a

remission of all the symptoms and what appears to be an
approximate cure sometimes take place, the general symptoms,
such as headache, vertigo, vomiting, spasms, etc., disappearing for
a time. Even the condition of the eyes and the paralysis in rare
instances make marked improvement. In these cases, in all
probability, the progress of the growth of the tumor is arrested either
by the remedies employed or spontaneously, and the acute or
subacute phenomena of congestion, œdema, etc. around the tumor
subside. These patients may remain for a long period or until cut off
by some other disease without any change for the worse; but the
sword constantly hangs above their heads, and any excitement,
traumatism, the abuse of alcohol or other narcotics, an attack of
fever, or some other special exciting cause, may again light up the
intracranial disorder, to then progress more or less rapidly to a fatal
termination.

This fatal termination may occur in various ways. Sometimes a

sudden apoplectic attack occurs. This may be an intercurrent
hemorrhagic apoplexy, although our personal experience would not
lead us to believe this mode of termination is common. In a few
cases the enormous irritation of the cerebral growth suddenly or
gradually inhibits the heart's action through the impression made on
the pneumogastric. Apoplectic attacks which may or may not
terminate fatally sometimes are the result of a sudden giving way of
necrosed brain-tissue, the necrosis having resulted from the
obliteration of numerous blood-vessels by the advancing growth.
Blood-poisoning occasionally takes place from abscesses in
proximity to the tumor. In some cases the patients slowly but surely
emaciate, or are exhausted and worn out by the agonizing pain and
incessant vomiting which they are called upon to endure.
Occasionally a more or less diffused and violent meningitis hastens
the fatal issue.
COMPLICATIONS AND SEQUELÆ.—Tumors of the brain may be
complicated with other affections due to the same cause. Thus, for
example, in a case of gumma other evidences of syphilis may be
present in the form of nodes, eruptions, etc. A sarcoma or carcinoma
of the brain may be associated with similar disease in other organs.
Such affections as cystitis, pyelitis, keratitis, etc., which have been
discussed under Symptomatology, are secondary complications of
cases of tumor. As intracranial tumors almost invariably terminate
fatally, strictly speaking we have no sequelæ.

PATHOLOGY.—We present in tabular form the various classes of

tumors found in the one hundred cases of brain tumor in the table
appended to this article:

Carcinoma 7 Glio-sarcoma 1
Cholesteotoma 1 Gumma 13
Cyst 2 Lipoma 1
Echinococcus 2 Myxo-sarcoma 1
Enchondroma 1 Myxo-glioma 2
Endothelioma 1 Osteoma 2
Fibro-glioma 2 Sarcoma 15
Fibroma 4 Tubercle 13
Glioma 16 Unclassified 16

The histology of tumors of the brain does not in the main differ from
that of the same growths as found in other parts of the body, so that
a detailed description of their structures, even though founded upon
original research, could not offer many novel facts in a field which
has been so thoroughly cultivated. Such a description would
probably repeat facts which have already been presented in other
parts of this work, and which are better and more appropriately put
forth in special treatises devoted to the science of pathology. It is
proper, however, for the sake of convenience and thoroughness, to
make brief mention of the structure of brain tumors, and especially to
dwell upon certain features of these morbid growths which may be
considered characteristic of their encephalic location, and hence
have not only pathological but also clinical interest. It is hardly worth
while to refer to speculations which aim to elucidate the very
foundations of the science, except that in a few of these theories we
gain an additional insight into both the structure and conduct of some
very characteristic brain tumors.

Cohnheim's theory was that tumors are formed from foci of

embryonal tissue which had been non-utilized or left over in the intra-
uterine development of the body. Many have not accepted this idea,
but have rather considered that in tumors we witness a reversion of
tissue to lower or embryonic types.28 Whether we accept either or
neither of these propositions, the idea sought to be conveyed is that
in all these morbid structures we have a tissue of low or degraded
character, springing in most instances from a connective or non-
differentiated tissue. This fact is brought out very clearly in many of
these intracranial growths. Virchow29 has said that tumors originate
in the cells of the connective tissue, although his law has been
condemned as not of sufficient breadth, since it seems to ignore the
epithelial and myomatous tumors. Dermoid cysts, of which an
example is given in the table of spinal tumors,30 are said to illustrate
the embryonic function revived—i.e. the tendency of lower tissues to
spontaneously differentiate into higher and more complex ones.
28 Article “Pathology” in Brit. Encyc., by C. Creighton.

29 Quoted by Cornil and Ranvier.

30 Page 1107.

The gliomata are among the most common and characteristic tumors
of the cerebro-spinal axis, to which system and its prolongation into
the retina they are confined. They invariably spring from the
neuroglia or connective tissue of the nerve-centres, and reproduce
this tissue in an embryonal state. They greatly resemble the brain-
substance to naked-eye inspection, but have, histologically, several
varieties of structure. These variations depend upon the relations of
the cell-elements to the fibres or felted matrix of the neoplasm. In the
hard variety the well-packed fibrous tissue preponderates over the
cell-elements, and we have a tumor resembling not a little the
fibromata (Obernier). The second variety, or soft gliomata, show a
marked increase of cells of varied shapes and sizes, with a rich
vascular supply which allies these growths to the sarcomata. The
elements of gliomata sometimes assume a mucoid character, which
allies them, again, to the myxomata.
 FIG. 43.

Flat Glioma-cell with its Fibrillar Connections (Osler).

FIG. 44.
 (1) Homogeneous translucent fibre-cell; (2) cells like unipolar ganglion-
cells; (3) giant cell (Osler).

W. Osler has recently described31 to the Philadelphia Neurological

Society the structure of certain of these tumors, from which we
abstract the following facts: One point referred to is that gliomata
sometimes contain larger cells and coarser fibres than are usually
shown. The structures are (1) The “spinnen” or spider-cells
(characteristic of glioma), which present variations in size; (2) large
spindle-shaped cells with single large nuclei (some of the largest
cells met with in tumors); (3) cells like the ganglion-cells of nerve-
centres, with large nuclei and one or more processes: some are
balloon-shaped with single processes; they are larger than the
spider-cells; (4) translucent band-like fibres, tapering at each end,
without nucleus or granular protoplasm, regarded as a vitreous or
hyaline transformation of the large spindle-cells. Klebs (quoted by
Osler) holds that the ganglion-like cells are derived from the nerve-
cells of the gray matter, “and that in the development of this variety
all elements of the nerve-tissue participate.” Osler examined the
advancing region of the tumor, and was not able to satisfy himself
that the nerve-cells were in process of proliferation. He thinks they
are connective-tissue elements. He has seen but two out of five
cerebral gliomata which were of small-celled type.
31 “Structure of Certain Gliomas,” Philada. Med. News, Feb. 20, 1886.

The gliomata are subject to fatty degeneration, which usually occurs

in the central (older) portions of the mass. The more vascular forms
are also peculiarly liable to hemorrhage, which is probably caused in
some instances by this process of retrograde metamorphosis. These
hemorrhages resemble apoplexies, not only in their clinical features,
but also on gross examination. Great care is therefore often
necessary at the autopsy to distinguish such a hemorrhage,
occurring as it does in a brain-like neoplasm, from one caused by the
rupture of a diseased artery. The hypertrophy of the pineal gland,
sometimes noted, is caused by the formation of gliomatous tissue.
Under the microscope it is necessary carefully to distinguish some
forms of inflammatory new formations from the gliomata. We have
recently seen, by the courtesy of E. N. Brush of the Pennsylvania
Hospital for the Insane, photographs of microscopic sections from
the ependyma of the lateral ventricles in a case of general paresis,
which showed the structure of this degenerated tissue to be a
compound of fibres and cells of marked resemblance to gliomatous
tissue.32
32 These micro-photographs were prepared in the laboratory of the State Lunatic
Asylum, Utica, New York, by Theodore Deecke.
Sarcomata of the brain are common, as our table shows. In them the
cell-elements predominate, both in the large- and small-celled
variety. They are malignant and grow rapidly. The form known as
alveolar sarcoma, which has a distinct stroma, is to be distinguished
from the cancers; which has probably not always been done.

Tubercle, according to Ross, is the most common of all forms of

brain tumor. Our table shows 13 cases out of 100, the gliomata and
sarcomata being in larger number. Its favorite seat is in the cortex of
both the cerebrum and cerebellum: some observations appear to
show that it is more common in the cerebellum and mid-brain region
than in the fore-brain, and in children than in adults; some of which
points distinguish it from the gummata, which are more common in
adults and occur anywhere. Tubercle is another form of development
from the connective tissues, usually dependent upon a constitutional
taint or predisposition: in it the cell-elements have generally
undergone a degeneration into an amorphous cheesy mass. It is apt
to be multiple and accompanied by a similar deposit in other organs
of the body.

True neuromata are probably very rare growths, and it is likely that
some tumors which have been described as such are really
connective-tissue tumors of a gliomatous nature, in which some of
the cell-elements have been mistaken for the ganglion-cells.
Obernier33 says that these tumors are small and grow from the gray
matter on the surface, also on the ventricular surfaces. They are also
found in the white matter. He says they are only found in persons
having some congenital or acquired aberration; by which is probably
meant some other well-marked neurosis or psychosis. The one
hundred tabulated cases afforded no examples of neuromata.
33 Op. cit.

Myxomata are not, histologically, to be distinguished from the

gliomatous tissues by anything but the peculiar mucoid changes
which their structures have undergone. They are more rare in the
brain, as our tables show, than in the spinal cord.
Lipomata are very rare in the brain, according to most observers.
The table shows but one example. These tumors, as their name
signifies, are made of fat-bearing tissues—another of the connective-
tissue class.

The angiomata, somewhat rarely found within the skull, are noted for
their abnormal development of the vascular tissues: they are
composed mainly of blood-vessels and the connective tissue, which
supports them in closely-packed masses. They also present
cavernous enlargements. They are of especial interest in cerebral
pathology, because the lesion known as pachymeningitis
hæmorrhagica, often found in dementia paralytica, is considered by
some to be angiomatous; although by far the most generally
accepted view of this latter condition is that it is due to arterial
degeneration, and in part is an inflammatory exudate.

Syphilitic tumors, or gummata, are, like tubercle, a special

development with degeneration from the connective tissue, due to a
constitutional taint. This new growth is sometimes single, sometimes
multiple. The corpuscles of the neuroglia are the apparent points of
origin of the tumor, the substance of which is the firm, peculiarly
gummy, and non-juicy material from which the name is derived. It
would be impossible in our allowed space to trace this neoplasm
through the successive stages of its development. It has especial
clinical interest, inasmuch as it and its damage are probably
amenable to specific treatment when it has not progressed to too
great a destruction of brain-tissue.

The true cancers, or epithelial neoplasms, are not a common form of

tumor of either the brain or spinal cord. They present, as in other
parts of the body, a stroma forming alveolar spaces in which are
contained the nests of epithelial cells. These tumors thus present
characteristic differences in their histology from the connective-tissue
or mesoblastic groups, but clinically no very special interest attaches
to them. Their location, the rapidity of their growth, and their fatal
import are points which they share with most other new growths of
the cranial cavity.
The cholesteotomata, or pearl cancers, consist of hardened
epithelial cells which have undergone a sort of fatty degeneration.

The psammomata are loosely described as tumors containing sand-

like bodies, which bodies are normal about the pineal gland. These
sand-like bodies are found in tumors of some histological diversity,
and do not appear to have much identity of their own. They occur in
sarcomata and carcinomata, and are probably not to be
distinguished from mere calcareous infiltration and degeneration.
They are most common in sarcomata, as this is one of the most
common of cerebral tumors.

True osteomata—i.e. tumors with the structure of true bone—are

probably rare in the brain, although more common on the inner table
of the cranium; but the deposition of calcareous salts has been
recorded in a variety of conditions. F. X. Dercum, in a recent paper
read before the Philadelphia Pathological Society,34 has recorded the
autopsy of a paretic dement in which case calcareous deposits were
scattered throughout both hemispheres and the cerebellum. He
believes that “the areas in which the concretions were found were
probably foci of encephalitis of greater intensity than elsewhere. In
these foci inflammatory changes in the walls of the vessels became
pronounced; besides which the vessels increased enormously in
size and number; so marked is this increase that these foci could,
with perfect propriety, be called angiomata.” This is followed by
proliferation of the neuroglia, compression and destruction of nerve-
tissue, and deposit of the calcareous salts especially about and upon
the coats of the vessels. This case illustrates in the simplest manner
the formation of both vascular and sand tumors.
34 The Medical News, April 24, 1886, p. 460.

Pacchionian bodies are very common in the brain, and are really
small fibromata. They may form true tumors (Cornil and Ranvier)
capable of wearing away the bones of the cranium. In fact, even
when small they may have corresponding indentations in the skull.
They are not to be mistaken for tubercle. Clouston35 has described
excrescences from the white matter of the brain, growing through the
convolutions, projecting through the dura mater, and indenting the
inner table of the skull; which new growths he calls hernia of the
brain through the dura. We have not seen such a condition
described elsewhere, and think that we have here probably
Pacchionian bodies growing from the pia mater. They were found in
a case of tumor of the cerebellum.
35 Journ. Ment. Sci., xviii. p. 153.

A cystic formation, constituting a veritable tumor, not unfrequently

occurs in the pituitary body and mounts into the third and lateral
ventricles. Echinococci and hydatids also occur, and have the same
natural history as these parasitic offspring have when found in other
parts of the human body.

Obernier refers to an enchondrosis of the basilar process. Our table

presents one case of enchondroma.

Some of the gross appearances found on autopsies of tumors of the

brain are worthy of note. Often an area of congestion or
inflammation, especially of the membranes, is seen about the new
growth, and the brain-substance in its immediate vicinity is much
more frequently softened. The cerebro-spinal fluid is increased, and,
especially when direct pressure has been exerted upon the veins of
Galen, are found distended lateral ventricles. When a tumor does not
approach the surface, but has attained some size, the hemisphere in
which it is located often has a bulging appearance, crowding over
upon its neighbor, and the convolutions are flattened by the
pressure. The cranial nerve-trunks are occasionally involved in or
stretched by the tumor, and also occasionally the bones of the vault
or base of the cranium are extensively eroded. This happens
especially in cancer and osteo-sarcoma.

A few remarks should be made about the methods of making post-

mortem examinations and the gross appearances and conditions
likely to be found in brain-tumor cases. As not a few intracranial
tumors are connected with the bone or with the dura mater, the latter
being adherent to the skull-cap in some positions because of
inflammation arising from the seat of the growth, especial care
should be taken in removing the calvarium. Examination of the
external surface of the dura mater will sometimes reveal the
presence of a growth beneath or incorporated with this membrane.
The dura mater should not be roughly dragged from the surface of
the brain, but should be carefully removed by a process of partial
dissection. During this process a meningeal growth will sometimes
be found growing apparently from the fused membrane. In such
cases it is usually better to so proceed as not to entirely separate the
outer membrane from the growth. Indeed, this cannot be done
sometimes without injury directly to the specimen, and especially to
its cerebral surroundings. The dura mater having been removed, a
marked opacity, sometimes a dirty-brown hue shading off into a
lighter color, will indicate to the eye the probable presence of a tumor
beneath and growing from the pia mater of the cortex. In such a
case, and even when no such appearance is present, but a tumor is
suspected, the fingers passed carefully over the cerebral surface will
feel a hard, and it may be nodulated, mass at some position. A
growth, having been located in this way, should not be roughly
handled or at once examined by section. An effort should be made to
accurately localize it, not only with reference to lobes, but also with
reference to convolutions and fissures, and even special portions of
these. This is best done, after a thorough examination has been
made of the pia mater, by carefully stripping the pia mater from the
brain, beginning at points some distance from the growth and
gradually approaching it, and leaving the pia mater for a short
distance around the growth connected with it. The location having
been fixed and other portions of the brain having been examined, if it
is not possible or desirable to retain the entire brain as a specimen, a
block should be removed embracing a considerable portion of
healthy brain-tissue on all sides of the tumor. In order to study the
gross internal appearance of the tumor, it is a good plan to make a
clean section through the middle of the tumor. From each side of this
cut fragments can be taken for microscopical examination without
deranging appreciably the size and appearance of the tumor.
When the tumor is not meningeal or cortical, or not situated at the
base or floor of the skull, its presence may be revealed, when it is in
centrum ovale and of considerable size, by either hardness or
fluctuation of the hemisphere in which it is located, this fluctuation
not being due to the tumor itself so much as to the breakdown of
tissue around it. Large sections in known positions with reference to
convolutions and ganglia should be made when examined for tumors
deeply situated. If possible, sections close to and just before and
behind the growth should be made, so as to assist in the accurate
localization.

Small tumors are not infrequently overlooked by careless observers,

and even growths of considerable size have escaped discovery by
one examiner to be found by another. Tumors in certain special
localities, as between the temporo-occipital lobe and the superior
surface of the cerebellum in the great longitudinal fissure, or small
growths in the substance of the cerebellum or deep in the Sylvian
fissure, are more likely than others to be passed by, although this, of
course, is not likely to occur when the examination is made by a
competent or careful physician.

DIAGNOSIS.—The diagnosis of the existence of an intracranial tumor,

as a rule, is not difficult. It can be made with greater certainty than
that of almost any other serious encephalic disease.

It is sometimes important to decide as to the nature of an intracranial

neoplasm, particularly whether or not it is syphilitic. Little is to be
gained by following the plan adopted by some physicians, of treating
all cases as if they were due to syphilis, on the principle that these
are the only forms of tumor which can be reached by treatment. The
pitiable condition of such patients is sometimes thus made worse. In
every case careful and persistent efforts should be made to obtain
an authentic previous history from the patient. Whenever possible
the physician should search directly for the physical evidences of the
former existence of syphilis—for cicatrices on the genitals and
elsewhere, for nodes and depressions, for post-cervical and other
swellings, etc. A history of previous disease of the throat and of
pains in bones and nerves, of epileptiform attacks, of headache, and
eye symptoms which have disappeared under treatment, should be
sought out. It is not well to give too much credence to the stories of
patients, who are not always willing to admit their past lapses from
virtue; but, on the other hand, the plan of suspecting everybody who
presents advanced cerebral symptoms is often a grievous wrong.
Not infrequently external cranial nodes are present in cases of
intracranial syphilis.

Carcinomata and sarcomata, particularly the former, are

comparatively rapid in their progress. They sometimes involve the
bones of the skull, even to the extent of perforation.

The existence of an inherited tendency and of tuberculosis in other

organs, with the special phenomena of general tuberculosis, assists
in the diagnosis of tubercular tumors.

The frequent occurrence of gliomata in early life, and the

comparatively frequent absence of severe irritative symptoms, with
the well-preserved general nutrition of the patient, speak for these
growths.

Cerebral abscess is, on the whole, more difficult to diagnosticate

from intracranial tumor than any other affection. Abscess, however,
more frequently than tumor, can be traced directly to a traumatism. It
is often associated with disease of the internal ear. Obernier speaks
of the headache of cerebral abscess as slight, but this does not
correspond with usual experience. Headache, on the whole, may be
oftener absent or less agonizing in abscess than in tumor, but it is
frequently present, and sometimes of great severity. Its greater
mildness in a few cases is to be explained by the fact that abscess
does not produce so much pressure within the intracranial cavity,
and does not so frequently cause irritation of the branches of the
trigeminus in the dura. Undoubtedly, the symptoms of abscess often
remain for a long time comparatively latent, with then a sudden
outburst of violent symptoms. The course of brain tumor is more
uniformly and steadily progressive, and febrile phenomena, the
results of pyæmia, are of more frequent occurrence in abscess than
in tumor.

In old cases of tumor it is sometimes necessary to differentiate

between it and the results of various forms of apoplexy, such as
hemorrhage, thrombosis, and embolism. Cerebral hemorrhage,
embolism, or thrombosis leaves a condition of paralysis, sometimes
with, but usually without, accompanying spasm or convulsion, which
simulates closely the paralysis and other permanent conditions of
cases of tumor occurring in the same cerebral locality. In these
cases, in the first place, the history of the disease will throw
considerable light upon the diagnosis. In both hemorrhage and
embolism the history is usually one of a sudden attack without
special premonitory symptoms. Hemorrhage gives usually a
precedent history of diseased kidneys, hypertrophied heart, or
atheromatous blood-vessels, and occurs generally in advanced life;
embolism, a history of rheumatism and valvular disease of the heart,
occurring at any period of life, early or late. In brain tumor the
previous history is usually one of traumatism, of constitutional
infection, or of a special predisposing diathesis. Blows and falls upon
the head are common antecedents, or a history of syphilis,
tuberculosis, scrofula, or cancer is present. Tumor, like embolism
and unlike hemorrhage, may occur at any time of life. While slight or
dull headache, with more or less vertigo, may be present in cases of
hemorrhage and thrombosis, the severe and often agonizing
headache, with vomiting and serious vertiginous attacks, which
precedes the paralytic or other phenomena of tumor, is a much more
conclusive symptom in the latter cases than in the former. Choked
discs and optic neuritis are much more likely to occur in tumor than
in the other affections.

Brain tumor must sometimes be diagnosticated from the head

symptoms of some form of Bright's disease. A case not long since
presented itself to one of us with a history of having suffered at
frequent intervals for two years with headache of gradually
increasing severity. Dimness of vision and slight temporary œdema
of the feet, circumscribed and painful swellings along the lymphatics
of the thighs and legs, with some mental irritability, were other
marked symptoms. The patient had been attended by several
physicians of prominence, one of whom had diagnosticated tumor of
the brain. The violent, apparently agonizing headache, with the
diminution of vision, and the absence of marked symptoms indicating
other organic disease, made the diagnosis of a growth in some non-
excitable region of the cerebrum most probable. Examination of the
urine showed no albumen. Careful examination of the eye-ground
with the ophthalmoscope, however, revealed the appearances of
retinitis albuminurica. Under a treatment directed to the relief of
chronic nephritis the patient's headache and other symptoms
improved.

It must not be forgotten just here, however, that, on the one hand,
ophthalmoscopic appearances very similar to those of albuminuric
retinitis are sometimes present in rare cases of brain tumor, and also
in other constitutional disorders, such as leukæmia; and, on the
other hand, that, as stated by Norris,36 exceptional forms of
albuminuric retinitis have been reported where the only change seen
in the fundus oculi was pronounced choking of the disc.
36 Op. cit.

Intracranial tumors must be diagnosticated from meningitis in its

various forms. In children tubercular meningitis sometimes closely
simulates brain tumor. Tumors of the brain are comparatively rare in
children, but, as has already been shown, gliomata and other tumors
do sometimes occur in early life. The course of tubercular meningitis,
whether in children or in adults, differs from that of brain tumor. It is
more irregular in its method of advance, or if it shows the regularity
which is sometimes present, and which has led authors to subdivide
it into three more or less completely separable stages, the symptoms
of these stages do not correspond with any closeness to those of the
initial, middle, and terminal periods of brain tumor, as already given.
Headache is usually present in both affections, although the absence
of headache in some cases of gliomata in children must be here
borne in mind. When headache is present in tubercular meningitis, it