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I. INTENTIONAL TORTS
A. REQUIRING FAULT
Van Camp v. McAfoos
Brief Fact Summary. Van Camp (Plaintiff) sued, alleging that Mark McAfoos (Defendant), while riding his tricycle collided with Plaintiff causing injury to her achilles tendon. The trial court sustained a motion to dismiss. Plaintiff appealed.
Synopsis of Rule of Law. Where an essential element of the cause of action is missing, the question is not what may be shown under the pleading but whether a cause of action has been pled.
Facts. Plaintiff alleged that three year-old Defendant was riding his tricycle on a sidewalk, and without warning drove it into the rear of the Plaintiff injuring her Achilles tendon. She contended that Defendants’ behavior was the proximate cause of her injury, which required surgery. The thrust of Plaintiff’s claim, the court observed, was that she was entitled to recovery regardless of the presence of fault or wrongdoing.
Issue. Did Plaintiff plead a cause of action?
Held. The decision of the trial court was upheld, the Supreme Court of Iowa maintained that, while a child of “tender years: may be held liable in tort, the relevant precedents have fault as an essential element.” That element was absent in this case.
Discussion. McAfoos is illustrative of the factors to be examined with respect to evaluating the bases or grounds for liability. In other areas of tort law, such as medical malpractice, toxic torts, and product liability, the “net” may be considerably broader, not requiring the intentionally wrongful or negligently wrongful behavior of the Defendant. The court in McAfoos was not inclined to extend such liability to a child on a tricycle.
B. ELEMENTS OF BATTERY
Snyder v. Turk
Brief Fact Summary. Snyder, a nurse, (Plaintiff) brought an action against Turk, a doctor, (Defendant) for intentional inﬂiction of emotional distress, civil battery, and slander. The trial court (Ohio) dismissed her complaint with prejudice and granted a directed verdict. The Plaintiff sought review.
Synopsis of Rule of Law. An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results.
Facts. The Defendant was performing an operation to remove a patient’s gall bladder. The Defendant became increasingly frustrated with the Plaintiff’s performance, raising his voice and castigating her for being incompetent. When Plaintiff handed Defendant the incorrect surgical tool, he grabbed her by the shoulder and gown and pulled her face toward the patient’s open surgical wound. The Plaintiff did not suffer any physical injury. She later ﬁled an action against him for intentional inﬂiction of emotional distress, civil battery, and slander. The trial court granted the Defendant’s Motion for a Directed Verdict and dismissed the Plaintiff’s complaint. The court reversed the order, holding that the Defendant was not entitled to a directed verdict. The court held that reasonable minds could have concluded that he was guilty of battery, and that he intended to commit an offensive contact with the Plaintiff.
Issue. Could a reasonable jury conclude that there was intent to commit a battery?
Held. Yes. Since a reasonable mind could infer intent on the Defendant’s part, the issue was one of fact for a jury. The lower court thus erred in its directed verdict. The court reversed and remanded the lower court’s order.
Concurrence. The concurrence merely summarizes the majority’s reasoning, stating: “I believe the evidence in the record was sufﬁcient for a reasonable juror to conclude that the Defendant had committed a battery when he allegedly grabbed the Plaintiff and brought her down to within twelve inches of the surgical wound.”
Discussion. Snyder v. Turk draws the ﬁne distinction between the intent to cause actual harm and the intent to cause either harmful or offensive contact. The element of intent becomes an issue for the trier of fact thus rendering a directed verdict improper.
Cohen v. Smith
Brief Fact Summary. Patricia Cohen and her husband (Plaintiffs), ﬁled suit against Robert Smith, nurse, and St. Joseph’s Memorial Hospital (Defendants) in the Circuit Court of Jackson County (Illinois) after Smith observed and touched her naked body in violation of her religious beliefs. The complaints alleged battery, intentional inﬂiction of emotional distress. The court granted Defendants’ Motions to Dismiss. Plaintiffs appealed.
Synopsis of Rule of Law. When considering a motion to dismiss, the court must view all properly pleaded facts in the light most favorable to the plaintiff; a court may only dismiss for failure to state a cause of action, based solely on the pleadings, only when it is clear that the alleged set of facts cannot be proven.
Facts. Ms. Cohen was admitted to St. Joseph’s Memorial Hospital (Hospital) to deliver her baby. She was examined and informed of the necessity for a Caesarian Section delivery. She and her husband told their doctor, who informed the hospital staff, that such a procedure was in violation of their religious beliefs as it would require Ms. Cohen to be seen naked by a male. Their doctor gave assurances that their beliefs would not be violated. During the procedure Roger Smith, a male nurse, allegedly viewed and touched Ms. Cohen’s naked body. The Plaintiffs ﬁled suit.
Issue. Is the conduct in question sufﬁciently harmful and offensive to rise to the level of battery?
Held. The battery and the intentional inﬂiction of emotional distress counts were properly alleged, and thus the court erred in its dismissal of Plaintiffs’ causes of action. With regard to the Defendant’s having sufﬁcient notice, the court concluded that when Ms.Cohen made her wishes known to the hospital, the latter implicitly agreed to provide her with treatment within the restrictions placed by her religious beliefs. The decision was reversed and remanded.
Discussion. As noted in Snyder v. Turk, “A person may be held liable for battery when he or she intends to cause harmful or offensive contact and harmful or offensive contact results.” Further, courts have drawn ﬁne distinctions between conduct that results in bodily harm and conduct that violates a plaintiff’s personal integrity. The court notes that the “application of battery the remedy offensive and insulting conduct is deeply ingrained in our legal history.” Speciﬁcally with regard to religious beliefs and medical treatment, the court observed that, while people in modern society generally accept the various intrusions on one’s privacy as a necessity, the determination of bodily integrity is ultimately the purview of the person alleging improper contact. The court in Cohen v. Smith concluded also: “The fact that the Plaintiffs hold deeply ingrained religious beliefs which are not shared by the majority of society does not mean that those beliefs deserve less protection than more mainstream religions.” Finally, quoting Justice Cardozo, the court observed: “Every human being of adult years and sound mind has the right to determine what shall be done with his own body.” Thus, when a physician violates a patient’s right of consent concerning medical procedures, that physician may be liable for damages.
Mullins v. Parkview Hospital, Inc.
Brief Fact Summary. During Plaintiff Mullins’ surgery, a medical student performed an intubation that lacerated Mullins esophagus, requiring additional surgery and recovery time. Mullins had not consented to student involvement in her surgery. She sued for battery and lost.
Synopsis of Rule of Law. Battery requires a harmful or offensive touching, without consent, with the intent to cause the resulting harm or offense.
Facts. Plaintiff Mullins, before undergoing a hysterectomy at a teaching hospital, crossed out the portion of the consent form that consented to “the presence of healthcare learners” and received assurance from the attending anesthesiologist that she would personally handle the anesthesia. During the surgery, as soon as Mullins was unconscious, the anesthesiologist permitted a student, VanHoey, to practice intubation. It was VanHoey’s ﬁrst day practicing on a live patients and she lacerated Mullins’ esophagus. As a result, Mullins required additional surgery and recuperation time. Mullins sued VanHoey, the gynecologist, the anesthesiologist, and both doctors’ practices for battery, among other claims. The trial court granted summary judgment for all defendants on all counts, the Court of Appeals held that Mullins had an actionable battery claim, and the Indiana Supreme Court reversed, ﬁnding that Mullins did not have an actionable battery claim.
Issue. Whether the tort of battery requires the intent to cause harm in addition to the intent to touch or make contact.
Held. Yes. Although VanHoey “touched Mullins in a harmful and offensive manner without permission”, Mullins could not show that VanHoey “acted intending to cause” harm. VanHoey had no reason to suspect that Mullins had not consented to the touching. As a student, she properly relied on her previous experience and the doctor’s authority in believing that she had permission to perform the intubation. In addition, she was under no obligation to obtain consent herself or to inquire into the consent under which the anesthesiologist was acting. Accordingly, the court found that there was no genuine issue of material fact as to VanHoey’s intent to cause a harmful contact, and that VanHoey was entitled to summary judgment on Mullins’ battery claim.
Discussion. This opinion shows that an actor’s intent to touch or make contact, such as his decision to put his arm in motion throwing an object, is not enough to give rise to battery. The actor must have speciﬁcally intended to cause the harm or offense which results from the touching.
Issue. the Supreme Court of Washington remanded for a factual determination of Defendant’s intention. but whether he intends to cause the consequences of his act. Dailey pulled it out from under her causing her injury. Facts. due to his small size and lack of dexterity. and while a minor who has committed a tort with force is liable as any other would be. The trial court accepted found Defendant’s version of the events that he was attempting to move the chair toward Plaintiff to help her in sitting down in the chair. Five year-old Brian Dailey (Defendant) visited Naomi Garrett Plaintiff at her sister Ruth’s home. he could not get the chair under Plaintiff in time to keep her from falling. In an action for battery. Discussion. The Superior Court for Pierce County (Washington) found in favor of defendant in an action for assault and battery and Plaintiff appealed. Plaintiff alleged that she came out into the backyard to talk with her sister and that. The later contends that as she was about to sit on a lawn chair. ﬁve year-old Dailey (Defendant) deliberately pulled the chair out from under her. On appeal. Intentionality is central to the tort of battery. He maintained that. . DEFINING INTENT Garratt v. The trial court ruled for the Defendant. Dailey Brief Fact Summary. what constitutes willful and unlawful intent? Held.C. a plaintiff must establish that the defendant committed his or her act for the purpose of causing the harmful contact or with substantial certainty that such contact will result. or his belief (with substantial certainty) that the results will follow. The Supreme Court for Washington remanded for clariﬁcation. The distinction to be drawn is not merely whether the defendant intends to commit the act in question. the court was to change the judgment. If so. when she was about to sit down in a wood and canvas lawn chair. with instructions to make deﬁnite ﬁndings on the issue of whether Defendant knew with substantial certainty that Plaintiff would attempt to sit down where the chair had been. Synopsis of Rule of Law. Plaintiff was injured in the fall. The concept of “intent” denotes a defendant’s desires to cause the consequences of his actions.
eighty-three year-old Helen Everly (Defendant) struck Sherry Lynn Muniz (Plaintiff). the trial judge instructed the jury that Everly’s suffering from Alzheimer’s did not prevent a ﬁnding that she acted intentionally. be viewed as one factor in the totality of circumstances upon which a jury relies to make its determination. for example. In Plaintiff’s actions for assault and battery. . however. and 2) when the defendant has substantial certainty that harm will result. Issue. an adult assisted living facility. the actor would be held liable for any resulting injuries. Intentional torts may be committed in one of two ways: 1) when the defendant intends to cause the harm resulting from his or her actions. A jury. in so doing the jury must ﬁnd that the actor intended offensive or harmful consequences. having found that the jury determined that alleged tortfeasor did not intend to cause offensive or harmful consequences by her act. The jury found in Defendants’ favor having concluded that Everly lacked the requisite intent to sustain a cause of action. and Everly (Defendants). but also intended that the contact be harmful or offensive to the other person. the actor does not have to intend the harm that actually results. At issue. Shortly after having taken residence at Beatrice Hover Personal Care Center. She became easily agitated. however it may. Discussion. is whether an intentional tort requires some proof that the tortfeasor not only intended to contact another person. an elderly woman who was placed in a personal care center. Held. In one instance. Further. Muniz Brief Fact Summary. However. An examination by a physician revealed that Everly was suffering from Alzheimer’s disease. she struck Plaintiff in the jaw. Plaintiff subsequently brought suit against Barbara White. Everly’s granddaughter. Synopsis of Rule of Law. This case is a challenge to the decision of the Court of Appeals of Colorado. like other mental states (such as infancy). which determined that a mentally incapacitated adult should be held liable for her intentional tort even if she was unable to appreciate the wrongfulness of her actions. Everly. or place the other in apprehension of such contact. a blow to the victim was intended to simply bruise the victim but serious trauma resulted.White v. as trier of fact. such harmful or offensive contact must result. With respect to battery. and would occasionally act aggressively toward others. The court reversed the judgment and remanded. may conclude that a mentally deﬁcient person is liable for tortious conduct. even if her reasons or motive were irrational. began to exhibit erratic behavior. a professional caregiver at the center. If. an actor is generally subject to liability when he or she acts intending to cause harmful or offensive contact to another. Facts. * Mental illness is not a defense to an intentional tort.
That night. she and her family came to Cullison’s home. He sued the Medleys for assault. It is a touching of the mind. A few hours later he was awoken by a knock at his door. to aim or strike at him with a weapon or to hold it in a threatening position. the damages which are recoverable are for mental trauma and distress. Held. ASSAULT Cullison v. which she declined. Assault is found where one intends to cause a reasonable apprehension of imminent harmful or offensive contact in another. He was confronted by Sandy Medley. Although no one ever touched Cullison. Accordingly. sleeplessness. It is assault to shake a ﬁst under another’s nose. Plaintiff Cullison met a 16 year old girl in a parking lot then invited her to his home for a soda. Synopsis of Rule of Law. a jury could reasonably conclude that the Medleys intended to frighten Cullison by surrounding him in his trailer and verbally threatening him with bodily harm while one of them was armed with a holstered revolver. . brother-in-law. The trial court granted summary judgment in favor of defendants on all claims. he feared he was about to be shot because Ernest kept grabbing the gun as if to draw it from the holster while threatening him. invited her to have a soda with him and to come to his home to talk further. and verbally threatened him with bodily harm if he did not leave the girl alone while her father was armed with a holstered revolver. Assault occurs when one intentionally creates the reasonable apprehension of imminent harmful or offensive contact in another. Issue. her father Ernest. Sandy called him a “pervert” and her mother berated him. if not the body. In this case. her brother.2. Ernest kept grabbing and shaking the gun while still in the holster and threatening to “jump astraddle” of him if he did not leave Sandy alone. Whether threatening language coupled with a holstered pistol rises to the level of assault. Yes. Plaintiff Cullison met 16-year-old Sandy Medley in a grocery store parking lot. As a result of this incident. and as such. Ernest had a revolver in a holster strapped to his thigh. the appeals court afﬁrmed. Cullison experienced mental trauma and distress as a result of the incident and sued for assault. Cullison sought psychological help to deal with nervousness. and mother. inability to concentrate. surrounded him. depression. and the Indiana Supreme Court reversed on the assault count. and impotency. or to surround him with a display of force. Medley Brief Fact Summary. Additionally. Facts. among other torts. the apprehension must be one that would be aroused in the mind of a reasonable person. the Indiana Supreme Court reversed the summary judgment on the assault count.
Long Brief Fact Summary. as a result. Moreover. or (2) to any other person who is present at the time. used conﬁdential information and took advantage of her condition to seduce her. and (4) that the emotional distress is severe. To recover in an action for intentional inﬂiction of emotional distress. During this period. including negligence and intentional inﬂiction of emotional distress. among other things. the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (1) to a member of such person’s immediate family who is present at the time. a plaintiff must show: (1) conduct that is intentional or reckless. * Can a Plaintiff successfully sue a therapist for adulterous actions under the banner of breach of contract? * Does a psychiatrist owe a duty of care to a patient’s spouse? * May a former husband recover in a third-party action for intentional inﬂiction of emotional distress when he was not present during the conduct in question? . 3. intentional or reckless inﬂiction of emotional distress. whether or not such distress results in bodily harm. According to Plaintiff’s contentions. but that there will be no signiﬁcant delay in effectuating the harm. Facts. The Circuit Court for Howard County (Maryland) dismissed the tort claims brought by Plaintiff alleging breach of contract and tort claims. One cannot sue to recover for injuries arising from “deﬁlement of the marriage bed” or from an interference with the marriage by simply casting the defendant’s conduct as a breach of contract. He brought suit alleging. or some other intentional tort. Plaintiff alleges. Synopsis of Rule of Law. resulting from a sexual relationship.Discussion. (3) a causal connection between the wrongful conduct and the emotional distress. his wife’s personality changed leading to their divorce. the imminence element does not mean harm must be immediate. When extreme and outrageous conduct is directed at a third person. or negligence. unless together with acts or circumstances they put the other in a reasonable apprehension of imminent harm. (2) conduct that is also extreme and outrageous. It is important to note that typically words alone do not rise to the level of assault. after several years of marriage his wife was hospitalized for severe depression. Plaintiff maintains that. Issue. if such distress results in bodily harm. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Homer v. she began seeing a therapist who.
With regard to the negligence claim. and not to her spouse. Discussion. “[t]hat is precluded. however. Homer addresses an extended issue with regard to the intentional inﬂiction contention: the situation where a third person is alleging the wrongful action. That duty. moreover. whether or not such distress results in bodily harm. As the court explained. the plaintiff must show that the defendant owed a duty to him which was breached. While noting that such actions are not necessarily barred under tort law. this is an area where transferred intent applies. Intentional inﬂiction of mental distress exists when the defendant.” Generally.” The court dismissed the claim because the duty owed was to the patient. thus Plaintiff had no standing to sue. It should be noted that this is the only area of tort where “reckless” infers intent. must be one that the law is prepared to recognize. the third party is (1) a close relative of the primary victim. explaining. by extreme and outrageous conduct. in addition to proving the prima facie elements. the court recognized that the plaintiff in this case was in essence attempting to sue for “alienation of affections. the court states. The court held that the circuit court properly dismissed Plaintiff’s claims: 1) a psychiatrist’s professional duty is owed to the patient and not to the patient’s spouse.” Addressing the action for breach of contract.” . “[w]here extreme and outrageous conduct is directed at a third person. courts have award a third-party victim recovery only if.Held. is the reﬁtting of the abolished actions into other forms. In other words. the court addressed ﬁrst the prima facie elements of a negligence action: “[t]o recover in an action for negligence. intentionally or recklessly causes the victim severe mental distress. if such distress results in bodily harm. “[a] therapist’s professional duty must run to his or her patient and not to the patient’s spouse. (2) present at the scene of the outrageous conduct against the primary victim. or (2) to any other person who is present at the time. the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (1) to a member of such person’s immediate family who is present at the time. even if the spouse is the one who initially employed the therapist and is paying the therapist’s fees. and 2) the of intentional inﬂiction of emotional distress claim was unfounded because the former husband was not present when the psychiatrist allegedly seduced his wife. and (3) the defendant is aware of the close relative’s proximity.
Discussion. and could not re-enter the store. FALSE IMPRISONMENT McCann v. Rhonda Bickmore (Bickmore).] The transferred intent doctrine is applicable. In false imprisonment. 1996. (2) force or threat of immediate force against the victim. In December. Eventually.’s (Defendant) employees stopped the McCanns as they were leaving the store. the victim’s family or others in her immediate presence. a large area. [See Restatement Section:Section: 35-45A. Accidental conﬁnement is not included and must be addressed under negligence or strict liability. The court ruled. arrived at the store and informed the employees that the McCanns were not the family whose son had been caught shoplifting. the defendant unlawfully acts to intentionally cause conﬁnement or restraint of the victim within a bounded area. . Facts. The employees told Plaintiff that the children were not allowed in the store because they had been caught stealing on a prior occasion. McCann and two of her children were shopping at the Maine Wal-Mart store. to use the restroom was not sufﬁciently outrageous to warrant the imposing of punitive damages. * The victim must be conﬁned in such a manner as to preclude his or her escape. Inc. Issue. Ms. The employees detained Plaintiffs until a security ofﬁcer determined that the children were not the children who had been caught previously. Brief Fact Summary. The court afﬁrmed the lower court’s decision. the McCanns went to a register and paid for their purchases. This case involves a claim for false imprisonment.4. (3) omission where the defendant has a legal duty to act. however. and they left the store. even an entire city. that Defendant’s refusal to allow the 12-year old boy. Defendant’s employees had said they were calling the police. Wal-Mart Stores. stepped out in front of the McCanns’ shopping cart. claiming that Plaintiff’s children had been previously caught shoplifting. The employees acknowledged their mistake to the McCanns. Debra McCann (Plaintiff) contended that Wal-Mart Stores. but actually called a store security ofﬁcer to identify the earlier shoplifter. Inc. or the victim’s property. however short. blocking their path to the exit. the security ofﬁcer. In a false imprisonment case. Synopsis of Rule of Law. The bounded area can be. Did the conduct of Defendant’s employees constitute the tort of false imprisonment? Held. two Wal-Mart employees. After approximately an hour and a half. The conﬁnement may be accomplished by (1) physical barriers. As the McCanns were leaving the store. however. or (4) improper assertion of legal authority. False imprisonment occurs when a person conﬁnes another intentionally without lawful privilege and against his consent within a limited area for any appreciable time. noting that Plaintiffs adequately proved the elements of false imprisonment.
Intent: The object of intent need not be “to trespass.It has traditionally involved the plaintiff’s tangible chattel. TORTS TO PROPERTY A.The factors important to imposing liability for interference include: .Trespass to Chattels involves something short of conversion.” It is enough that defendant intended to enter the land.Extent and duration of control . the defendant does not escape liability merely because the defendant did not intend to harm plaintiff’s property. Trespass to Land .Trespass and Nuisance: Trespass is an invasion of the plaintiff’s interest in the exclusive possession of his land. Trespass to Chattels . .The harm done .Expense or inconvenience caused C. This might be accomplished by personal entry or by intentionally causing an object to enter the land.Intentional Entry: Trespass to land usually requires an intentional entry upon land of another. Liability is based on actual damage . while nuisance is an interference with his use and enjoyment of it. however. this has also extended to electronic interferences .Intent: Conversion is an intentional tort. Similarly. . Conversion of Chattels .The defendant’s good faith .5. Once intent is shown.Extended Liability: The trespasser is liable for damages inﬂicted even if he never intended harm and could not foresee it B. The refusal to leave is now considered a trespass . it is no defense that defendant reasonably believes that this is the defendant’s own land or that there is a right to be there.The defendant’s intent to assert a right to the property . The defendant must intend to exercise substantial dominion over the chattel. .
DEFENSES OF INTENTIONAL TORTS . Store security ofﬁcers believed Peters shoplifted a power drill. which is the primary purpose of this case study in the textbook. Wisconsin statute § 943. drowning him. . Yes. and (3) for a reasonable length of time. because to limit merchants from off-premises pursuits would increase shoplifting and result in stores having to charge higher prices to make up for losses.50(3) permits merchants to detain suspected shoplifters (1) with reasonable cause to believe a violation has occurred. Merchants generally have the right to detain suspected shoplifters assuming the detention is (1) with reasonable cause to believe a violation has occurred. Menard Brief Fact Summary. Defendant Menards. Peters ﬂed on foot and Wright and another ofﬁcer named Kind pursued him on foot. Although not the deciding factor. Peters’ estate and family brought a wrongful death suit against the store. Menard’s store security ofﬁcer Wright observed Peters take a power drill out of the store and put it in his car without paying for it. (2) in a reasonable manner. Facts. so long as three reasonableness requirements are met. Furthermore. Held. and they pursued him off store premises for seven minutes. Synopsis of Rule of Law. the court also discussed whether a Wisconsin store can be immune from liability for actions taken by security ofﬁcers in pursuing suspects off-premises. Inc. The Wisconsin Supreme Court found that Peters’ conduct was more unreasonable than the store’s. (2) in a reasonable manner. Wright followed Peters out to his car and asked him to get out for questioning.PRIVILEGES 1. he ﬂed on foot. the court examined the statute’s construction. To interpret whether this statute also limits liability for actions taken off-premises. shoplifters would be encouraged to dash out of stores off-premises. His estate sued the store in wrongful death and lost. Upon questioning him in the parking lot. The court found that the legislature speciﬁcally excluded from the statute language from the Restatement of Torts § 120A that extends immunity only to those detentions occurring “on the premises. Issue. increasing injuries to innocent shoppers in the way. Whether a merchant or its agents are immune from liability under Wisconsin law for actions taken in pursuit of a suspected shoplifter that occur off of the merchant’s premises. PROTECTING AGAINST APPARENT MISCONDUCT OF THE PLAINTIFF Peters v.” That the Wisconsin statute contains no such phrase plainly suggests that the legislature intended to allow merchants to follow suspects off the store’s premises to detain them. and (3) for a reasonable length of time. Peters ran into the ﬂooded La Crosse River and the fast-moving current pulled him under. Public policy supports this construction. barring plaintiff’s recovery under Wisconsin law. Peters ran into the river and drowned.
pointed in such a manner as to wound an intruder’s feet. did they employ unnecessary and unreasonable force against him? The dissent asserts . injuring Plaintiff’s right leg. The dissent opined that the majority wrongfully assumed that by installing a spring gun in the bedroom of their unoccupied house. awarding both actual and punitive damages. while a defendant may use reasonable force in defense of her property. The dissent frames the issue in the following manner: there exist two deﬁnite issues of fact.Discussion. Defendants then set up a shotgun trap. No. did the Defendants intend to shoot the invader. Synopsis of Rule of Law. in a bedroom of an old farmhouse. The property sustained considerable damage and despite boarding up the windows and posting no trespass signs.. the incidents continued. Defendants appealed. where the gun was secured to an iron bed with its muzzle pointed at the door. Thus. the gun went off. and if so. Defendants inherited an unoccupied farmhouse and over the course of ten years the house was subject to a series of break-ins. which had been uninhabited for several years. Facts. When Plaintiff. Issue. i. he has no right to willfully and intentionally injure a trespasser in a manner that may result in loss of life or great bodily injury. Katko (Plaintiff). Did Defendants employ a reasonable means of preventing the unlawful entry of trespassers on their property? Held. the Defendants intended to shoot any intruder who attempted to enter the room. having broken and entered on at least one prior occasion entered. Dissent. Briney Brief Fact Summary. This decision introduces the concept of the common law “shopkeepers privilege” which allows merchants to effect reasonable detentions of suspected shoplifters. The Supreme Court of Iowa afﬁrmed the judgment because the use of spring guns to protect uninhabited property was not permissible. A jury found for the Plaintiff. Katko v. The value of human life and limb both to an individual and as a matter of public policy outweighs the potential damage to property. The shotgun was set by Edward and Bertha Briney (Defendants). Marvin E.e. The only exception is when the trespasser is committing a violent felony with the potential of endangering human life. A wire was fastened from trigger to doorknob. The shopkeeper’s privilege can also be used as a defense against a false imprisonment claim made against a store by a detained suspected shoplifter. ﬁled an action for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun.
that owner cannot do indirectly. the standard being one of reasonableness.that in its view there is no absolute liability for injury to a criminal intruder by setting up such a device on his property unless done with an intent to kill or seriously injure the intruder. in the midst of a massive ﬁre. Issue. The ruling in Katko is consistent with all other areas of tort law with regard to the use of force. as here. destroyed Plaintiff’s house in an effort to stave off the ﬁre. in good faith. he could not immediately do in person. Can a person who. PRIVILEGES NOT BASED ON PLAINTIFF’S CONDUCT Surocco v. in his capacity of public ofﬁcial. Synopsis of Rule of Law. * The dissent further objected to the awarding of punitive damages.” In sum. The question presented in Katko centers around the determination of the general privilege of an owner to defend property and what level of force is reasonable to do so. it was subsequently blown up to stop the progress of the ﬁre. The trial court awarded damages to Plaintiffs. Geary (Defendant). In the midst of a raging ﬁre. in good faith. by means of “a mechanical device that which. the dissent maintains that “under such circumstances as we have here the issue as to whether the set was with an intent to seriously injure or kill an intruder is a question of fact that should be left to the jury under proper instructions. cannot be held personally liable in an action by the owner in connection with the destroyed property. In short. an individual is permitted to use a degree of force commensurate with the threat with which they are confronted. in an effort to save the adjacent buildings and to stop the ﬁre’s progress. Plaintiffs brought an action against Defendant for the destruction of Plaintiffs’ house and store. made the decision to destroy Plaintiff’s building. Alcalde of San Francisco (Defendant). A person who tears down or destroys the house of another. and under apparent necessity. and that the mere setting of such a device with a resultant serious injury should not as a matter of law establish liability. contending that such an award is “court-made law. Facts. not statutory law.” Discussion. during a deadly ﬁre. where the owner of the property in question is not faced with a threat of death or grave bodily injury. Thus. destroys property out of public necessity in order to prevent greater damage be held liable? . were he present.” 2. Geary Brief Fact Summary.
Yes. Defendant’s ship damaged plaintiffs’ wharf during a storm. who makes the determination as to which property may properly be destroyed during an emergency. having thus preserved the ship at the expense of the dock. Discussion. . and under apparent necessity.” In other words. Lawmakers. maintaining that the court clearly erred. what under normal circumstances would be a tortious act may be justiﬁed in exigent circumstances such as a raging ﬁre. Plaintiffs brought an action against defendant to recover for the damages to their wharf. Where those in charge of a sea vessel deliberately and by their direct efforts hold that vessel in such a position that the damage to another’s dock results. his conduct is privileged. Issue.. * The court does take note of the role of the legislature with regard to issues of public policy. Are plaintiff’s entitled to compensation for damages even where Defendant acted prudently and by necessity? Held. and. Vincent v. and the mode in which compensation should be paid. cannot be held personally liable. Plaintiffs owned a wharf where ships docked to unload cargo. should make determinations as to the manner in which such property may be destroyed. a person who destroys the house of another in good faith. i.e. Defendant owned a ship that docked at plaintiffs’ wharf in foul weather. to the extent he or she causes damage to another’s property or land. the court suggests. The central legal tenet embodied in Surocco is that the private rights of the individual must yield to the considerations and the interests of society. A jury awarded damages and Defendant sought review. has been traced to the highest law of necessity. docked there during a storm. her owners are responsible to the dock owners to the extent of the injury inﬂicted. Facts. The court notes further “the right to destroy property. The trial court denied defendant’s motion for a directed verdict and entered judgment in favor of plaintiffs. Brief Fact Summary. Where one reasonably believes his interests outweigh the loss or harm another may incur. That person will be held liable.Held. Synopsis of Rule of Law. however. to prevent the spread of a conﬂagration. Lake Erie Transportation Co. Plaintiffs sued for damage to their wharf that caused by defendant’s vessel. and denied defendant’s motion for a new trial. The Supreme Court of California reversed the trial court’s award of damages to Plaintiffs.
The standard of reasonable care applies to all negligence actions. the order of the lower court awarding damages was II.” Thus. As the court in Vincent analogized. A defendant is privileged to interfere with another’s property. THE GENERAL DUTY OF CARE: THE PRUDENT PERSON STANDARD Stewart v. the dissent asserts that the vessel’s owner exercised due care thus ameliorating further his liability. but under our system of jurisprudence compensation must be made. and that he or she must exercise such care not only for his own safety and the protection of his property but also to avoid serious injury to others. may require the taking of private property for public purposes. Synopsis of Rule of Law. Facts.e. “A starving man may. The dissent takes the view that the case is one of contract and not tort. In other words. i. Further. without moral guilt. The tank was unattached. Motts Brief Fact Summary. and Plaintiff suggested pouring gasoline into the carburetor in an attempt to start the vehicle. plaintiff assumed the risks inherent in such a venture. the reasonable person must exercise care in proportion to the danger involved in his act. The car . DUTY A. The Superior Court of Pennsylvania afﬁrmed a judgment in favor of Appellee in Appellant’s negligence action seeking damages for personal injuries. In entering into an agreement with the ship owner. John Stewart (Appellant) suffered burns after an accident in Motts’ (Appellee) auto body shop after the automobile on which they were jointly working ignited. Appellant sought review. private necessity is not a complete defense. Discussion. in times of war or peace. but will be held liable for the damage. Plaintiff stopped at Defendant’s auto repair shop to assist in repairing a car’s fuel tank. NEGLIGENCE 1. but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so.Dissent. courts attempt to balance such necessity with the dictates of equitable relief. And so public necessity.. Nevertheless. Essentially. take what is necessary to sustain life. Vincent illustrates an instance where the defense of private necessity is introduced and examined. the defense holds that private necessity exists when the individual appropriates or injures a private property interest to protect a private interest valued greater than the appropriated or injured property.
backﬁred. adults must ordinarily act with reasonable care. the jury found for Defendant and Plaintiff appealed. causation. the trial judge’s declining to instruct the jury to apply a separate standard was proper and the appellate court accordingly afﬁrmed the trial court’s ruling. or legal. .) are expected to exercise the degree of care appropriate to the standards of other professionals in that. and in the ensuing explosion Plaintiff suffered severe burns. Discussion. No. It is well established by its case law that the reasonable man must exercise care in proportion to the danger involved in his act.e. The Defendant must owe a duty to plaintiff. The standard of care is the level of conduct demanded of a person so as to avoid liability for negligence. The defendant’s actions must be the proximate. as a reasonable person would under like or similar circumstances. intelligence and experience. The court reafﬁrmed the principle that that there is only one standard. attorneys. community. as a result. The judge declined. As a general rule. In any action for negligence. Issue. However.. or similar. it is certain that the child is expected to act as a reasonable adult engaged in the same activity..” Thus. At trial. Does there exist a higher standard of “extraordinary care” for the use of dangerous instrumentalities over and above the usual standard of “reasonable care” to be applied in negligence actions? Held. breach. breach that duty and. the plaintiff must suffer harm. Professionals (i. i. Failure to meet this standard is characterized as breach of duty.e. etc. a plaintiff must establish that four elements are met: duty. that of “reasonable care” to be applied uniformly in negligence actions. The court in Stewart stated concisely: “[The law] recognizes only one standard of care in negligence actions involving dangerous instrumentalities-the standard of reasonable care under the circumstances. Plaintiff requested a jury instruction directing the application of a standard of a “high degree” of care in instances of elevated danger. Children are expected to act with the degree of reasonable care as would a child of similar age. and harm. cause of the injury suffered. when a child is engaged in an adult activity. physicians.
however. Issue.” The jury found defendant not negligent. and the plaintiff appealed. The emergency instruction. Plaintiff was driving down the highway looking for her father. even though they do not make the wisest choice. A person is negligent if he fails to exercise reasonable care. are not negligent if they make a choice as a reasonably careful person placed in such a position might make. . Defendant’s vehicle collided with plaintiff’s vehicle on the highway while plaintiff was in the process of slowing down and turning to pick up her father. A person is negligent if he fails to exercise reasonable care. but because she was starting to make a left hand turn. Accordingly.Bjorndal v. When she spotted her father waving his arms on the side of the road. whose car had broken down on the side of the road. whose car had broken down along the highway. he saw that Plaintiff had slowed rapidly. When he returned his eyes to the road. he collided with her. She sued for negligence. but won her appeal based on the trial court’s erroneous jury instructions on the legal standard for negligence. tells the jurors that if there was an emergency. arguing that the jury instruction was an inaccurate statement of negligence law. Plaintiff sued Defendant for negligence and lost at trial. they nevertheless may conclude that the actor was not negligent even if he made a choice that was not the “wisest choice”. assumed that there may be an emergency situation and glanced left to scan the horizon for a potential problem. Held. the court concluded that the emergency instruction misstated the law and was likely to confuse the jury as to the correct legal standard. which provides. she rapidly decelerated and started to make a left hand turn into a snowpark on the left side of the road. a standard that is measured by what a reasonable person of ordinary prudence would or would not. “People who are suddenly placed in a position of peril through no fault of their own and who are compelled to act without opportunity for reﬂection. At trial. thus substantially affecting plaintiff’s rights. a standard that is measured by what a reasonable person of ordinary prudence would or would not. Defendant planned to pass Plaintiff on her left hand side. Facts. Weitman Brief Fact Summary. upon seeing the father waving his arms. The Supreme Court reversed. Whether the trial court committed error by providing a jury instruction on negligence pertaining to “emergency” circumstances. Synopsis of Rule of Law. Jurors would understandably view that instruction as permitting them to ﬁnd a defendant not negligent even when he makes an unwise choice. do in the same or similar circumstances. Defendant. To avoid a collision. The reasonable care standard does not mean that a defendant is not negligent simply because an unwise choice was made in the context of an emergency. do in the same or similar circumstances. Yes. the court gave a jury instruction on negligence that pertains to “emergency” situations.
Is the general duty of care imposed upon adults with mental disabilities the same as that for adults without mental disabilities? * Whether the circumstances of Defendant’s case are such that the general duty of care imposed upon adults with mental disabilities should be imposed upon him? Held. Associate Justice Dickson of the Indiana high court ﬁled both a dissent and a concurrence. Judgment of the trial court was afﬁrmed and summary judgment was granted in favor of Defendant because the relationship between the parties and public policy considerations were such that Defendant owed no duty of care to Plaintiff. for injuries she suffered when Defendant kicked her while she was trying to put him to bed. an Alzheimer’s patient. A person with mental disabilities is generally held to the same standard of care as that of a reasonable person under the same circumstances without regard to the alleged tortfeasor’s capacity to control or understand the consequences of his or her actions. citing an Indiana precedent. The court of appeals reversed. an Alzheimer’s patient. exceptions to this general rule that a person with mental disabilities is generally held to the same standard of care as that of a reasonable person under the same circumstances will arise when the factual circumstances negate the factors supporting imposition of a duty. sued Defendant.” . Several courts have said that the idea behind the emergency instruction is adequately covered by the instruction deﬁning the reasonable care standard and that the separate emergency instruction should never be given Creasy v. Synopsis of Rule of Law. This decision explains the standard of care requirement for negligence and highlights the controversy surrounding “emergency” instructions. Creasy appealed. Defendant moved for summary judgment. However. rejecting the majority’s reasoning. a certiﬁed nursing assistant. a certiﬁed nursing assistant. holding “that a person’s mental capacity.Discussion. the Associate Justice. Carol Creasy (Plaintiff). which was granted by the trial court. particularly with respect to the nature of the parties’ relationship and public policy considerations. Rusk Brief Fact Summary. Dissent. must be factored [into] the determination of whether a legal duty exists. Facts. Plaintiff ﬁled a civil negligence suit against Defendant seeking monetary damages for the injuries she suffered as a result of Defendant’s conduct. whether that person is a child or an adult. In the former.” Issue. for injuries she suffered when he kicked her while she was trying to put him to bed. sued Rusk (Defendant). rejected the notion that the Plaintiff had “impliedly assumed the risk of injury in the primary sense. based upon (her) choice of occupation. Plaintiff.
such professionals of the tort remedy to which other victims of negligence are entitled.” Further. involved in a snowmobile accident. excitability. by more than 50%): duty. Associate Justice Dickson asserts that the majority opinion smacks of inconsistency-and concurs in the majority’s assertion that “a person with a mental disability owes a duty of reasonable care. Defendants appealed. cause-infact.” Robinson v. breach of duty. a plaintiff must. who was operating the vehicle at the time of the accident.” Concurrence. by a preponderance of the evidence establish each of the following elements (that is. however. a minor.” There are. as a matter of law. proximate cause (scope of liability) and damages. * As pertaining to this plaintiff. He notes: “It is not only unfair but also extremely unwise social policy to deprive. the court concluded. ignorance. standard of care.Instead. Lindsay Brief Fact Summary. (2) the reasonable foreseeability of harm to the person injured. and (3) public policy concerns.” Discussion. the dissent argued. To establish a prima facie case for negligence. The court of appeals afﬁrmed the trial court’s judgment. * With regard to the threshold issue. or proneness to accident. This was a personal injury action brought on behalf of Kelly Robinson. particularly with respect to the nature of the parties’ relationship and public policy considerations. The jury found in favor of Billy Anderson (Defendant). also a minor. the court in Rusk the court addresses the duty of care owed by one with mental disabilities: “Mental disability does not excuse a person from liability for conduct which does not conform to the standard of a reasonable man under like circumstances. historically. . “Public safety ofﬁcials and caregivers are speciﬁcally hired to encounter and combat particular dangers. because there had been an improper instruction. The trial court ordered a new trial. and others similarly situated. Conversely. exceptions “[A] person with mental disabilities is generally held to the same standard of care as that of a reasonable person under the same circumstances will arise where the factual circumstances negate the factors supporting imposition of a duty. The court then provides a matrix for the balancing of three factors to determine whether an individual owes a duty to another: (1) the relationship between the parties. No allowance is made for lack of intelligence.” People with mental disabilities are commonly held liable for their intentional and negligent torts. the court notes. and by accepting such employment assume the risks associated with their respective occupations. such a standard would place at risk any number of individuals who by dint of their professional status are placed in potentially volatile situations.
stating that because Defendant had engaged in the inherently dangerous activity. Defendant was operating a snowmobile and was involved in an accident.” As the court concluded. The trial court in Lincoln County (North Carolina) entered the jury’s verdict that the Plaintiff was damaged by the truck driver’s negligence and that the Plaintiff driver was not contributorily negligent. and intelligence under like circumstances.” B. children are held to a standard that compares their conduct to other reasonable children of the same age. and this is to be determined ordinarily by the age of the child. and the driver ﬁled an action for property damage. he should have been held to an adult standard of care. Brame Brief Fact Summary. Discussion. the child should be held to an adult standard of care. With regard to minors and the duty of care. Facts. Yes. Synopsis of Rule of Law. Should a minor operating a snowmobile be held to an adult standard of care? Held. When the activity a child engages in is inherently dangerous. As the court explained in Robinson.Synopsis of Rule of Law. he is entitled to assume and to act upon the assumption that every other person will perform his duty and obey the law and that he will not be exposed to danger which can come to him only from the violation of duty or law by such other person. Brame (Defendant) parked his vehicle on a highway at night without warning lights or signals. The Supreme Court of Washington afﬁrmed the lower courts’ holdings. “The operation of a snowmobile requires adult care and competence because it is a powerful motorized vehicle. and lost full use of her thumb. Chafﬁn (Plaintiff) collided with the truck. “[t]he care or caution required is according to the capacity of the child. as here. but in the absence of anything which gives or should give notice to the contrary. When. Plaintiff was injured as a result. A person is not bound to anticipate negligent acts or omissions on the part of others. SPECIFICATION OF PARTICULAR STANDARDS OR DUTIES Chafﬁn v. in most jurisdictions. experience. Issue. children are engaged in adult or inherently dangerous activities they are held to the same standard as adults. . the operation of a snowmobile. as is the operation of powerful mechanized vehicles. A child is held only to the exercise of such degree of care and discretion as is reasonably to be expected from children of his age. Defendant appealed. Such a standard allows the jury to consider the child’s particular qualities such as experience and intelligence.
A section of the pit wall collapsed and crushed Shaun and Alex. Their parents sued the County for negligence per se. Plaintiffs sued the County under a negligence per se theory. as required by state statutes and federal regulations. Defendant conceded negligence in parking his truck on the traveled portion of the highway at night without displaying lights or warning signals. According to the Restatement Section 463. The children went through an unlocked gate at the back of the schoolyard. and Frank Jr. and (4) the violation must have been the proximate cause of the injury. Alex. . that the driver of the other vehicle was guilty of contributory negligence as a matter of law because he did not control his car sufﬁciently in order to stop within the range of the Plaintiff’s driver’s lights. To make a prima facie claim for negligence per se. Plaintiff’s children were playing in the Bingham County landﬁll when a wall collapsed and killed them. through a privately owned empty ﬁeld. arguing that the County’s failure to fence the boundaries of the landﬁll. Issue. caused the children’s deaths. and which is a legally contributing cause . assignment of liability is possible when it has been determined as a matter of law that the Plaintiff was contributorily negligent in the damages resulting from the incidents at issue. Facts.” Thus. Their bodies were initially discovered by Frank Jr. . however. O’Guin v. (3) the plaintiff must be a member of the class of persons the statute was designed to protect. Discussion. and into an unobstructed landﬁll pit to play. The court ruled that Plaintiff had no reason to anticipate that the Defendant’s truck had been left standing on the traveled portion of the highway ahead of him without lights or warning signals. contributory negligence is “conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection. relying on Idaho statutes and federal regulations which require the County to fence or block access to the landﬁll . in some instances. Shaun. the following elements must be met: (1) the statute must clearly deﬁne the required standard of conduct. He asserted. and thus Plaintiff was not guilty of contributory negligence as a matter of law. Contributory negligence is a complete defense to negligence except in those jurisdictions that adhere to comparative negligence jurisprudence. in bringing about the plaintiff’s harm. Synopsis of Rule of Law. (2) the statute must have been intended to prevent the type of harm the defendant’s acts or omissions caused. Was Plaintiff guilty of contributory negligence in his failure to avert collision with the parked vehicle? Held. killing them.Facts. He did everything possible to avert the collision as soon as the truck became visible. Bingham County Brief Fact Summary. O’Guin ate lunch at a summer school program then proceeded to walk home.
Accordingly the court reversed the trial court’s grant of summary judgment to the County. resulting in a reversal of the trial court’s judgment. (3) the plaintiff must be a member of the class of persons the statute was designed to protect. (3) were intended to protect against entry of unauthorized person such as the O’Guin children. In order to replace the common law duty of care with that imposed by a statute. Impson. Inc. Discussion. Yes. In analyzing these requirements. Whether the O’Guins have an actionable claim for negligence per se against the County. including Mrs. the following elements must be met: (1) the statute must clearly deﬁne the required standard of conduct. and an automobile in which three people were killed. The car turned left into the intersection and was struck by the Polanco. The original action in this case arose out of a highway accident between a truck owned and operated by Structural Metals and Joe Polanco (Defendants) respectively. Facts. The trial court granted summary judgment for the County. (2) were intended to protect health and human safety. The appeals court held that Defendant had submitted excuses sufﬁcient excuses that the issue of negligence should be brought before a jury. . he must present some legally substantial excuse or justiﬁcation. Where a party violates a statute. the O’Guins appealed and won. Plaintiffs appealed. and (4) the violation must have been the proximate cause of the injury. Negligence per se lessens the plaintiff’s burden only on the issue of the actor’s departure from the standard of conduct required of a reasonable person. Impson v. Brief Fact Summary. The trial judge ruled that Polanco was negligent as a matter of law and entered judgment for the Plaintiffs. Synopsis of Rule of Law. Polanco’s truck attempted to pass the car within a prohibited distance of a highway intersection. Held. (2) the statute must have been intended to prevent the type of harm the defendant’s acts or omissions caused. and two others were injured (Plaintiffs). The effect of establishing negligence per se through a violation of a statute is to conclusively establish the ﬁrst two elements of a cause of action in negligence: duty and breach. Issue. the court held that the applicable statutes and regulations (1) clearly required boundaries on the landﬁll and that the County failed to meet that standard. who was attempting to pass the car in the left hand lane.when an attendant is not on duty. Structural Metals. This decision introduces the theory of negligence per se. and (4) that there was a disputed issue of fact as to whether the County’s violation proximately caused the children’s deaths.
ﬁnding that the issue of negligence should have been submitted to the jury. d) he is confronted by an emergency not due to his own misconduct. All three were 16 years old. but not limited to: a) the violation is reasonable because of the actor’s incapacity. What excuses and/or justiﬁcations are legally acceptable in a negligence action? Held. She sued Parsell for negligence. unexcused. c) he is unable after reasonable diligence or care to comply. and the appellate court disagreed. b) he neither knows nor should know of the occasion for compliance. BREACH OF DUTY A. Beisel again yanked the steering wheel. The passenger again yanked the wheel. fall into ﬁve categories. but Defendant regained control and did not do anything about it. injuring Pipher. Plaintiff and another were passengers in Defendant’s car. Thirty seconds later. Plaintiff Pipher was a passenger in Defendant Parsell’s car along with a third person named Beisel. as a matter of law. 2. Synopsis of Rule of Law. Discussion. Parsell Brief Fact Summary. causing Parsell’s truck to leave the roadway. Plaintiffs were thus entitled to a judgment. An excused violation of a legislative enactment is not negligence. Restatement of Torts (Second) (1965). The violation was.Issue. The other passenger yanked Defendant’s steering wheel causing the car to swerve. Facts. including. Beisel unexpectedly grabbed the steering wheel causing the truck to veer off onto the shoulder of the road. Plaintiff sued Defendant for negligence. slide down the embankment. The court afﬁrmed the trial court’s ruling that there was no evidence offered of any legally acceptable excuse or justiﬁcation. causing the car to veer off the road and hit a tree. When actions of a passenger that interfere with the driver’s safe operation of the motor vehicle are foreseeable. ASSESSING REASONABLE CARE BY ASSESSING FORESEEABLE RISKS AND COSTS Pipher v. Excusable violations (not exclusive). and e) compliance would involve a greater risk of harm to the actor or to others. Parsell regained control but did nothing in response to Beisel’s dangerous action other than laugh about it. the failure to prevent such conduct may be a breach of the driver’s duty to his passengers or the public. the trial court granted summary judgment for Defendant. and strike a tree. As they were traveling at 55 mph. . resulting in injuries to plaintiff.
Issue. Whether a driver has a duty to prevent unsafe conduct by passengers that could interfere with his safe driving and ultimately harm his passengers.
Held. Yes. A driver owes a duty of care to his passengers because it is foreseeable that they may be injured if, through in attention or otherwise, the driver involves the car he is operating in a collision. Pipher argued that after Beisel grabbed the steering wheel initially, Parsell was on notice that a dangerous situation could reoccur in the truck. At this point, plaintiff argued that Parsell had the duty to exercise reasonable care to protect his passengers from that harm, and was negligent because he kept driving without attempting to address that risk. The court held that when actions of a passenger that interfere with the driver’s safe operation of the motor vehicle are foreseeable, the failure to prevent such conduct may be a breach of the driver’s duty to his passengers or the public.
Discussion. This decision highlights the role of foreseeability in proving negligence. Foreseeability of harm is central to the issue of whether a person’s conduct fell below the standard of care.
Indiana Consolidated Insurance Co. V. Mathew
Brief Fact Summary. This is an appeal from Indiana Consolidated Insurance (Appellant) that claimed that Robert D. Mathew (Appellee) acted negligently and contributed to the destruction, by ﬁre, of his brother’s garage when a riding lawnmower ignited.
Synopsis of Rule of Law. The central concept illustrated by this case is the sudden emergency doctrine which holds that when a person is confronted with an emergency not of his or her own making, he is expected to act in the same manner as that of the ordinary, prudent person and cannot be charged as negligent when acting in accordance with his or her best judgment.
Facts. Appellee was attempting to start a riding lawnmower in his brother’s garage when the lawnmower caught ﬁre. Appellee tried, unsuccessfully, to extinguish the ﬂames. He then ran to his home to call the ﬁre department. He returned to discover the garage completely engulfed. Indiana Consolidated Insurance sued Appellee, alleging that he negligently breached the duty to exercise due care in starting the lawnmower and thus was liable for the resulting damages.
Issue. Is a person considered to be negligent if he acts in his best judgment, and that judgment is consistent with that of an ordinary prudent person?
Held. Appellee was not negligent as he exercised the judgment of an ordinary, prudent person.
Discussion. A person is deemed negligent when his/her conduct results in an unreasonable risk of harm. In assessing reasonableness, a court will consider a number of factors, primarily how another, in the same circumstances, would likely act. This is known as the reasonable person standard, i.e., the ordinary and prudent judgment a reasonable person would exercise. Here, the question is how a reasonable person would react when an emergency suddenly arises. A court will, as here, examine the person’s conduct leading up to the emergency. Here, the court found that Appellee exercised the due care that an ordinary, prudent person would “under the same or similar circumstances.” The court held that he did, and upheld the lower court’s ruling.
Stinnett v. Buchele
Brief Fact Summary. This is an appeal from a farm employee, Stinnett (Appellant) challenging a grant of summary judgment to his employer, Buchele (Appellee) in an action by Appellant for injuries suffered when he fell off a barn, which was painting. Appellant maintained that the injuries were sustained during the course and scope of employment, the employer, Appellee, had a duty to provide a safe work environment, and as a result, he was entitled to the recovery of damages.
Synopsis of Rule of Law. An employer cannot be required to guarantee an absolutely safe place of employment. An employer is required to take reasonable and prudent steps to ensure safety, and there is no responsibility for additional steps “where the employees’ means of knowledge of the dangers to be incurred is equal to that of the employer.”
Facts. The farm employee, Appellant, was injured when he fell off a barn roof and brought an action against the employer, Appellee, claiming negligence in the failure to comply with safety regulations requiring the installation of safety nets for work in elevated areas and failure to provide a safe place to work. The trial court granted summary judgment to the Appellee, because it determined that the safety regulations did not create an independent cause of action against an employer. Further, there was no evidence that the Appellee had sufﬁcient familiarity with the circumstances at the farm location that he had a duty to the farm employee, Appellant, to discharge. Appellant asserted that Appellee was required to provide a safe work place. The court afﬁrmed the grant of summary judgment, holding that under such circumstances, Appellee could not be required to guarantee absolute safety. Finally, the court concluded, when the employee’s knowledge is greater than the employer’s knowledge, the employer does not have a duty to the employee.
Issue. To what degree is an employer required to provide a safe working environment?
Held. There was no showing of any negligence on the part of Appellee arising solely out of the fact that he had asked Appellant to paint the barn roof.
Discussion. As the Stinnett court observes: “[t]he liability of the employer rests upon the assumption that the employer has a better and more comprehensive knowledge than the employees, and ceases to be applicable where the employees’ means of knowledge of the dangers to be incurred is equal to that of the employer.” Further, while several federal statutes provide for various forms of workers compensation, in certain instances employees are excluded from such protection, and must seek remedies through tort actions.
Bernier v. Boston Edison Co.
Brief Fact Summary. This is an appeal of a United States District Court (Massachusetts) judgment in favor of Bernier (Plaintiff) in consolidated actions for injuries suffered when an automobile knocked over an electric pole and struck teenagers as they walked down a sidewalk.
Synopsis of Rule of Law. A manufacturer is required to “anticipate the environment on which its product will be used, and it must design against the reasonably foreseeable risk attending the use in that setting.”
Facts. After a collision in a suburban Massachusetts intersection, one Defendant, motorist Alice Ramsdell (Defendant), became dazed and inadvertently allowed her foot to slip from the brake to the gas pedal. She collided with another driver, John Boireau, and then accelerated across the street and down a sidewalk, where she knocked down an electric light pole owned by Boston Edison Company. (Defendant) The pole struck the teenagers as they walked along the sidewalk. Both were injured and instituted actions against both drivers, and Boston Edison Company (Defendants). The jury returned verdicts against one driver and Boston Edison Company.
Issue. Is a manufacturer negligent if, in its product design, it fails to sufﬁciently anticipate the various circumstances in which its product may not properly perform and create unreasonable risk of injury?
Held. The court held that “[a]s designer or co-designer of the pole and in control of its maintenance, Boston Edison Company must anticipate the environment in which its product will be used, and it must design against the reasonably foreseeable risks attending the product’s use in that setting,” and thus bore liability in connection with the design and maintenance of the electric light pole.
Discussion. Foreseeability of risk lies at the heart of any negligence action focusing on product liability. A manufacturer is assumed to possess expertise with respect to the manner and circumstances in which its product will perform. Here, at issue is whether an electric light pole can be designed in such a manner as to anticipate vehicular collision and the likelihood of resulting injury. Courts expect a manufacturer to take into consideration the totality of circumstances, i.e., that vehicular collisions are likely and prudent precautions are expected to be taken, so as to minimize the risk of injury to pedestrians. In essence, a manufacturer is expected to employ a design optimally suited to avert such risk, and that such risk should be the primary consideration during the design process.
United States v. Carroll Towing Co.
Brief Fact Summary. A district court held Appellant (Conners Co.) partly liable for damage to a barge and for lost cargo by not having an attendant aboard the barge when it broke free from a pier. Appellant sought review.
Synopsis of Rule of Law. There is no general rule to determine when the absence of an attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. If he is found to be liable for injuries to others, then he must reduce his damages proportionately, if the injury is to his own barge. Vessels invariably suffer accidents. The owner’s duty, as in other similar situations, to prevent against resulting injuries is a function of three variables: (1) The probability of the kind of incident in question; (2) the gravity of the resulting injury; and (3) the burden of adequate precautions.
Facts. Appellant owned a barge, which was chartered by a railroad company. The barge, with a cargo of ﬂour owned by the United States, was moored to the end of the pier. Appellant chartered a tug company, Carroll Towing Co. (Appellee) to drill out one of the barges. Appellee went aboard the barge and readjusted its mooring lines. The barge broke free of the mooring lines due to this readjustment. The Barge hit a tanker, and the tanker’s propeller broke a hole in the barge. The barge careened, dumped her cargo, and sank. No one was aboard at the time. Appellee argued that is someone was aboard the barge to observe it leaking after it broke free, the cargo and the barge could have been saved.
Issue. At issue is whether the Appellants should be held partly liable for damage to the barge and for the lost cargo by not having an attendant aboard the barge when it broke free from the pier.
Held. Appellants held partly liable. The court applied the “burden was less than the injury multiplied by the probability” formula and found that the burden of having an attendant aboard the barge was less than the gravity of injury of a runaway barge multiplied by the probability that the barge would break free if unattended.
She sued the Defendant bus company for negligence. plaintiff claimed that the right side of her face hit the seat in front of her and she was injured. The Carroll case is noteworthy in that it utilizes a balancing test to determine whether a breach of the duty of ordinary care occurred. when she was in the eighth grade and being transported one of Defendant’s school busses. or B<PxL. First Student. plaintiff did not see the collision. PROVING AND EVALUATING CONDUCT -PROVING Santiago v. No. When actions of a passenger that interfere with the driver’s safe operation of the motor vehicle are foreseeable. As a result of the collision. The trial court granted summary judgment for the Defendant and judgment was afﬁrmed. Facts. Most courts employ Judge Hand’s formulation: a comparable risk-beneﬁt model. Brief Fact Summary. As a result of the collision. Held. The Hand formulation provides that an actor is in breach if the burden of taking measures to avoid the harm would be less than the multiple of the probability of the kind of incident in question times the gravity of the harm should it occur. Synopsis of Rule of Law. B. plaintiff claimed that the right side of her face hit the seat in front of her and she was injured. nor could plaintiff identify the street or intersection where the alleged collision occurred. The plaintiff attempted to justify a lack of evidence to support her case by pointing to the nature of the accident. Plaintiff was unable to describe any actions on the part of the driver of the unidentiﬁed car or the unidentiﬁed bus driver relating to the accident. However. She sued Defendant for negligence. the fact that the plaintiff’s case may be extremely difﬁcult to prove does not relieve her of the burden of presenting sufﬁcient evidence to demonstrate the existence of a material question of fact. She claimed that the bus was approaching a stop sign and that she jerked forward when the bus driver applied the brakes and the bus collided with the car.Discussion. Plaintiff alleged that in 1997. . Plaintiff could recall no details of the collision nor could she offer any witnesses who could. it collided with a car. Plaintiff alleged that in 1997 she was in the eighth grade and being transported one of Defendant’s school busses. the failure to prevent such conduct may be a breach of the driver’s duty to his passengers or the public. Issue. There was no police report. Whether a ﬁnding of negligence can be premised on mere conclusory allegations of negligent conduct. Inc.
In October 1992 Teresa Rotenberry was driving a car in which Timothy Upchurch was the sole passenger. the decedent’s mother challenged the judgment denying her motion for judgment notwithstanding the verdict or for a new trial in her personal injury action. Accordingly. May an appellate court grant motion for judgment notwithstanding the verdict when the issue is the determination of fact? Held. Facts. The jury is the judge of the weight of the evidence and the credibility of the witnesses. the dissent focused on the matter of culpability: “The question is. the defendant was entitled to summary judgment. the dissent took . i. was there any negligence on her part in the one-car crash? Since there was absolutely no negligence on the part of the passenger. Rotenberry was the only witness. Discussion. A jury concluded that Rotenberry’s explanation was factual and thus found in defendant’s favor. Synopsis of Rule of Law. not the court. a ﬁnding of 1% negligence or more by Rotenberry would warrant recovery. Rather. The court held that a reasonable and fair-minded jury could reach different conclusions of fact. An appellate court will not intrude into the realm of the jury by determining the credibility of a witness and making ﬁndings of fact. and that it is the jury. The Oktibbeha County Circuit Court (Mississippi) entered judgment in favor of appellee Rotenberry in connection with a car accident in which appellant’s son died. Issue. Because the plaintiff could not meet that burden in this case. Dissent. which properly makes such determinations. causing her to lose control. veered off the road. a defendant’s negligence must be shown to be more probable than not. Mere conclusory allegations are not enough to prove negligent conduct. She claimed that a large animal had darted in front of her car.e. Appellant. Upchurch dies from resulting injuries. and struck a tree. Upchurch v. if the matter of factual determination properly rests with a jury. Rotenberry Brief Fact Summary. Rotenberry lost control of the vehicle.. The trier of fact must reasonably believe that the probability of negligence exceeds one-half. The jury is the judge of the weight of the evidence and the credibility of the witnesses.” Thus. A plaintiff must prove each element of a civil case by the preponderance of the evidence. The dissent questioned the manner in which the majority framed the issue.The court found that to assign negligence to the Defendant based on the limited evidence on the record would impermissibly cross the line from reasonable inference and venture into the realm of rank speculation.
They are charged with listening to the witnesses.” Discussion. she did not see anyone spill any liquid on the ﬂoor where she fell. Thoma was in the restaurant about thirty minutes prior to her accident. near the passage from the kitchen to the restaurant. Notice of a dangerous condition may be established by circumstantial evidence. She fell in the middle of a common aisle. When Thoma got up. the Circuit Court for Leon County (Florida) granted Cracker Barrell Restaurant (Appellee’s) motion for summary judgment. Appellant claimed to have suffered a back injury when she fell in a Cracker Barrel Restaurant in September. The system of jurisprudence has determined that citizen jurors. covered in a small puddle of clear liquid. she noticed that area in which she fell was wet.” -EVALUATING Thoma v. After eating breakfast. Absent some clear indication that the jurors in a particular case somehow ignored that duty. observing their demeanor. nor an appellate court reviewing the record on appeal. employing their native intelligence and collective life experiences. Thoma was walking away from her table when her left foot slid out from under her. In its opinion the Upchurch court provides a textbook explication of the respective roles of the court and jury with respect to determination of fact: “The resolution of disputed facts is a duty that devolves upon the jury sitting as ﬁnders of fact. and during that time. In a slip and fall case. dismissing Deborah Thoma’s (Appellant’s) complaint. neither the trial court. She contends the liquid was what caused her fall. Facts. Appellant challenged the order. Cracker Barrel Old Country Store. To recover for injuries incurred in a slip and fall accident.the view that “[a] directed verdict should have been granted as to liability and the jury should have only determined damages. Synopsis of Rule of Law. plaintiff must show that the premises owner either created a dangerous condition or had actual or constructive knowledge of a dangerous condition. are best qualiﬁed to make those judgments. and coming to their own conclusions of which evidence they ﬁnd more credible. . Inc. She alleged that Cracker Barrel was negligent in failing to maintain the ﬂoor in that particular area of the restaurant. Brief Fact Summary. such as evidence leading to an inference that a substance has been on the ﬂoor for a sufﬁcient length of time such that in the exercise of reasonable care the premises owner should have known the condition. 1990. are permitted to interfere in the conclusions reached by these jurors.
which sank in a storm. Facts. In Thoma. even though such sets were not standard in the industry. There are precautions so imperative that even their universal disregard will not excuse their omission. thus. The trial court found all of the vessels to be unseaworthy. The court also upheld the principal ﬁnding that the tugs were unseaworthy. The court reversed the grant of summary judgment. To recover for negligence. because they did not have radio sets with which they could receive weather reports. which declared the tugs and the barges jointly and severally liable to plaintiff cargo owners. No. and their pumps were not properly inspected. comparing a defendant’s conduct to that of a reasonable person. Defendant. Reversed and remanded. who is the owner of barges. the court concluded that there existed enough evidence that a jury might infer negligence. The T. Was summary judgment proper where. Plaintiffs sued Defendant. proximate cause. The standard of care in negligence law requires a defendant to act as a reasonably prudent person would in the same or a similar situation. . there existed a question as to whether employees exercised due diligence in maintaining the safety of the area in question? Held. is a breach of duty. holding that the barges were unseaworthy in fact. Discussion. owner of two barges and third-party defendant owner of two tugs appealed an interlocutory decree from the District Court of the United States for the Southern District of New York. he is shielded from liability. Failure to act in such a fashion constitutes unreasonable conduct and. breach of duty. Hooper Brief Fact Summary. The latter then sued third-party defendant. leaked badly under weather-related stress. a plaintiff must establish each of the following elements by a preponderance of the evidence: duty.Issue. holding that it was for a jury to decide whether appellant could establish by a preponderance of the evidence that Appellee created a dangerous condition in its restaurant. The barges could not withstand coastal storms. The court afﬁrmed. in viewing the evidence in a light most favorable to the plaintiff. because all of the vessels were unseaworthy. and held each tug and barge jointly and severally liable to Plaintiffs. If a defendant meets this standard. thus there existed an issue of material fact sufﬁcient to preclude a grant of summary judgment. standard of care.J. Synopsis of Rule of Law. and damages. who is the owner of tugs. The reasonable person standard is an objective one. Both Defendants appealed. and that their owners did not take reasonable precautions to make them seaworthy as required by its charter. which towed the barges.
Discussion. This decision expands on that standard by applying it in the context of accepted practice.Issue. at its core the standard applied in The T. sufﬁcient to presume negligence? . nor does the fact that the defendant raises possible non-negligent causes for the harm defeat plaintiff’s effort to invoke res ipsa loquitur (Latin for “the thing speaks for itself). The key is that a reasonable jury must be able to ﬁnd that the likely cause was negligence. Synopsis of Rule of Law. Neither Plaintiff nor any of the witnesses testiﬁed as to anything done by Boadle (Defendant) that could have led to the barrel falling.e. and Judge Hand’s standard of prudence is set against the possible exculpatory weight of the standards of industry. No. Though the context is maritime law. Issue. Byrne (Plaintiff) testiﬁed that he was walking along Scotland Road when he evidently lost consciousness. Hooper is really the most common standard of care in negligence law: one that requires the Defendant to act as would a reasonably prudent person in the same or similar circumstances. PROVING UNSPECIFIED NEGLIGENCE: RES IPSA LOQUITUR Byrne v. If the Defendant does so. and the barrel appeared to have fallen. breach of duty. The plaintiff does not have to eliminate all other possible causes for the harm. courts have an obligation to set a standard consistent with prudence and proper caution. Boadle Brief Fact Summary. This is an objective standard that compares the Defendant’s conduct to the external standard of a reasonable person. Was the mere fact of the incident occurring. Defendant’s shop was adjacent to the road on which Plaintiff was walking. Facts.. hence. Did the fact that there was an industry custom that tugs did not carry radios relieve Defendants of their responsibility to maintain radios? Held. C. i. Failure to do so constitutes unreasonable conduct and. A plaintiff must persuade a jury that more likely than not the harm-causing event does not occur in the absence of negligence. Witnesses testiﬁed that a barrel of ﬂour fell on him. or was dropped from the shop. While certain courts had held that the industry standard constituted proper diligence. the barrel having fallen from the shop. J. she is protected from negligence liability.
Defendant gave Ms. while ﬁve children.. and absence of voluntary action or contribution by the plaintiff. . Facts. Terry Lee Enoch (Enoch). A plaintiff seeking to rely on res ipsa loquitur must connect the defendant to the harm. climbed into the rear of the vehicle. When the decedent jumped out he fell. The court allowed the case to proceed because of the nature of the harm-causing event and Defendant’s relationship to it. i.e. No. requiring the plaintiff to show that the defendant likely had “exclusive control” over the harm-causing instrumentality. the keys to his car so that she could drive it to the store. No one touched any of the control mechanisms of the car. most jurisdictions no longer require the plaintiff to prove that he did not contribute to his harm. The mother was in the house. Further. the accident itself is evidence of negligence. One of the older children opened the door and told the others to jump out. The child died from his injuries. Issue. Discussion. she must convince the jury that each of these factors more likely than not exists. Warren (Plaintiff) brought an action to recover for the child’s alleged wrongful death.” In order for the Plaintiff to have the beneﬁt of res ipsa loquitur. Defendant’s car was parked on an incline at Plaintiff’s home. including Enoch. exclusive control of the instrumentality by the defendant. Jeffries Brief Fact Summary. was injured when a wheel of Jeffries’ (Defendant) automobile ran over his body. Warren v. Enoch. This element has been liberalized and it is now enough for a plaintiff to get the issue to a jury on res ipsa loquitur if he can provide evidence showing that the defendant probably was the responsible party even if the defendant did not have exclusive control. Does the doctrine of res ipsa loquitur apply? Held. Enoch was the last to enter and when he closed the door something clicked in the front and the car started rolling backward in the direction of a large ditch. and the front wheel ran over his chest. the child’s mother. All indications were that this was an accident. Initially. Plaintiff appealed a judgment of involuntary nonsuit entered at the close of Plaintiff’s evidence. No sufﬁcient proof of negligence was offered. Synopsis of Rule of Law. courts interpreted the control element narrowly.Held. a 6-year old child. The conditions traditionally required for the application of res ipsa loquitur are: “an accident that normally does not happen without negligence. as it was Defendant’s responsibility to control the contents of his warehouse.
Did the Appellate Court properly apply the doctrine of res ipsa loquitur? Held. With respect to the doctrine of res ipsa loquitur (as clariﬁed in the court’s opinion). Discussion. The appellate court (Connecticut) reversed and remanded the case for a new trial. inspection or user. “A verdict cannot be supported on the basis of mere speculation or conjecture. condition. the elevator operator ﬁled a negligence action against the elevator installer to recover injuries he sustained when the elevator fell. upon the . Issue. The trial court directed a verdict in favor of the elevator installer. both inspection and user must have been at the time of the injury in the control of the party charged with neglect. The elevator operator sought review. a plaintiff must demonstrate that a defendant was responsible for the speciﬁc instrumentality that caused the event. which. but when the circumstantial evidence is offered because direct proof is not available it must provide as the only reasonable inference the conclusion that the accident was caused by the negligence of the defendant. Palmer. As noted in Gift v. The Plaintiff was injured when an elevator he was operating fell. Facts. “applies when three conditions are satisﬁed: the situation. or apparatus causing the injury must be such that in the ordinary course of events no injury would result unless from a careless construction. The appellate court concluded that the Plaintiff had presented sufﬁcient evidence to warrant presentation of the question of negligence under the doctrine of res ipsa loquitur to the jury. Synopsis of Rule of Law. The facts indicated that the elevator installer installed the elevator sixty-one years prior to the accident. The court afﬁrmed the order that reversed a directed verdict in favor of the elevator installer and remanded the case for a new trial on the issue of whether the elevator installer was liable under the theory of negligence for the injuries the Plaintiff sustained when an elevator he was operating fell. The Giles case further clariﬁes the doctrine of res ipsa loquitur. The trial court granted a Motion for Summary Judgment and directed a verdict in favor of the elevator installer. To avail herself of the inference afforded by the res ipsa loquitur doctrine. Plaintiff.” In essence. Whether the doctrine applies in a given case is a question of law for the court. an analogous case.Discussion. the injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. Proof of negligence may be furnished by the circumstances themselves and it is not essential to have eyewitness testimony. the Plaintiff was entitled to have a jury consider her claim that the Defendant’s negligence was the cause of her personal injuries. as the court enunciated.” Giles v. City of New Haven Brief Fact Summary.
The appellate court afﬁrmed. Plaintiff sued. and that the accident resulting in injury was of such a nature that it ordinarily would not occur in the absence of negligence. ACTUAL HARM Right v. Issue. Facts. At trial Plaintiff presented evidence that his injuries resulted from the collision. arguing that although she had admitted to causing the collision. Later. The supreme court reversed. The jury returned a verdict of zero damages. The plaintiff ﬁled a motion to set aside this verdict. while Defendant presented evidence that the injuries resulted from Plaintiff’s ﬁve previous auto accidents. Plaintiff subsequently sued Defendant for negligence but could not prove causation or actual damages and Defendant argued that Plaintiff’s injuries were the result of his prior ﬁve auto accidents. Common law requires proof of causation and actual damages to support a cause of action in negligence. Defendant prevailed.showing that the product or apparatus was one over which the defendant had complete control. he can recover nominal and even exemplary damages. There was minor damage to the Plaintiff’s vehicle. but where plaintiff cannot prove actual bodily injury. ﬁnding that nominal damages should not have been awarded. to serve as a deterrence to society. Defendant objected. However. Defendant rear-ended Plaintiff but neither party reported any personal injuries at the scene. Under the technical legal injury concept. but no physical injuries reported at the accident scene. HARM AND CAUSATION IN FACT A. where the plaintiff’s right has been intentionally invaded. Breen Brief Fact Summary. The trial court nevertheless granted the plaintiff’s motion and awarded nominal damages of $1. Held. No. 3. alleging that as a result of Defendant’s negligence he had suffered bodily injury. arguing that he was entitled to at least nominal damages because he had suffered a technical legal injury that admittedly had been caused by Defendant. Plaintiff stopped his vehicle at a red trafﬁc light when it was struck from behind by Defendant’s vehicle. the technical legal . Synopsis of Rule of Law. she had denied the causal relationship between the collision and the plaintiff’s alleged injuries. Whether a plaintiff may use the technical legal injury concept to recover damages in a negligence action where defendant has admitted to causing an accident. the doctrine of res ipsa loquitur permits the plaintiff to shift to the defendant the burden of proof on the issue of negligence.
B. Ostrow Brief Fact Summary. and the Tennessee Supreme Court reversed. to serve as a deterrence to society. . then the defendant’s conduct is a cause in fact of the injury. The crumbled sidewalk was located in front of 1063 Mississippi. the technical legal injury concept does not apply to a negligence action where injury has occurred unintentionally. No. Defendants. forcing Plaintiff to step into the street to walk around them. Her left hip was crushed in the fall requiring extensive medical care. she tripped over a chunk of concrete and fell into the street. the Court of Appeals afﬁrmed. Facts. Plaintiff ﬁled suit against Defendants and the other property owner. As she stepped off the sidewalk before she reached the bushes. Defendants’ overgrown bushes obstructed the sidewalk. The test for determining whether an action is the cause in fact of an injury is to ask whether the injury would have occurred “but for” the defendant’s act. She determined she had to leave the sidewalk and enter the street to bypass it. As she proceeded. Under the technical legal injury concept. blocking her way. the Ostrows. Trial court granted the Defendants’ motion. Common law requires proof of actual damages to support a cause of action in negligence. Synopsis of Rule of Law. Discussion. If not. she noticed that bushes protruding from Defendants’ property at Mississippi Boulevard had overgrown the sidewalk and had grown around a telephone pole located on the sidewalk. moved for summary judgment arguing that the injury was caused by the defective sidewalk. she tripped on crumbling sidewalk prior to the bushes and fell. She sued Defendants for negligence. he can recover nominal and even exemplary damages.injury concept does not apply to a negligence action where injury has occurred unintentionally. not the overgrown bushes. Whether bushes obstructing a sidewalk are the cause in fact of a plaintiff’s injury where she tripped on crumbling concrete located on separate property while stepping in to the street to walk around the bushes. It is not necessary that the defendant’s act be the sole cause of the plaintiff’s injury. crushing her hip. Common law requires proof of actual damages to support a cause of action in negligence. Plaintiff Hale was walking home on a sidewalk that she had not traveled before. As Plaintiff looked up to check trafﬁc in preparation for stepping into the street. Negligence requires both the elements of cause in fact and proximate cause. where the plaintiff’s right has been intentionally invaded. only that it be a cause. Issue. property owned by another party. However. CAUSE IN FACT -The But-for Test of Causation Hale v.
distinct elements which must be proven by the preponderance of the evidence. An element of a negligence prima facie case is cause in fact or actual cause. Anna Salinetro sustained back injuries in an automobile accident and applied for personal injury beneﬁts from her insurer. Appellants. Nystrom Brief Fact Summary. He did not inquire as to whether she was pregnant. the court found that Defendant’s obstruction of the sidewalk caused Plaintiff’s injury because “but for” the bushes. The appellate court afﬁrmed the trial court’s judgment. Synopsis of Rule of Law. Issue. Discussion. She ﬁled suit for medical malpractice. No.Held. factual causation. When this statement can be shown to be true. not only that she suffered legally recognized harm. Salinetro v. A defendant’s conduct is the cause in fact of a plaintiff’s injury if it directly contributed to the injury and the injury would not have happened “but for” the defendant’s act. cause in fact or actual cause has been proven. She underwent a therapeutic abortion and the pathology report stated the fetus was dead at the time of the procedure. This is expressed as the “but-for” rule: but-for defendant’s conduct. and she was advised to terminate pregnancy because the fetus had been exposed. Plaintiff would not have had to look up and check for trafﬁc in preparation for stepping into the street to go around it. the pedestrian would have avoided injury. but that the harm was in fact caused by the defendant. but that the harm was in fact caused by the defendant. The trial court (Florida) entered an adverse ﬁnal judgment pursuant to a directed verdict for Appellees in Anna Salinetro’s (Appellant) action for alleged medical malpractice. This decision stands for the proposition plaintiffs hoping to recover under a negligence theory must prove the fourth element. The appellate court found that the trial court did not err in granting Appellee’s Motion for Directed Verdict since Appellants did not make a prima facie case for . Facts. Nystrom of her lower back and abdominal area took xrays. The plaintiff must prove not only that she suffered legally recognized harm. sought review. Negligence requires both causation in fact and proximate cause. Yes. patient and her husband. In this case. her doctor conﬁrmed the pregnancy after multiple tests. State Farm Mutual Automobile Insurance Company (State Farm). State Farm required Salinetro to submit to a medical examination and on December 10 Dr. Did the trial court err in entering judgment for Appellee? * Was Appellee the cause in fact/actual cause of Appellant’s injury? Held. Salinetro did not know that she was pregnant at the time of the x-ray. The plaintiff must prove.
appealed the dismissal of action as to damages. Any claim for negligence requires plaintiff to establish the following elements: duty. “To determine what skills.” Thus. in determining that plaintiff had failed to establish two necessary elements. is under a duty to use ordinary skills. owner of a small lake. With regard to doctors. The Court of Civil Appeals for the Sixth District (Texas) afﬁrmed. courts defer to the expertise of the profession to determine the appropriate standard of care.” Continuing along similar lines. because of the specialized skill and training required in ﬁelds such as medicine. Robicheaux when it was held that a plaintiff could not proceed to judgment and satisfaction against the wrongdoers separately because in such a suit he cannot discharge the burden of proving with sufﬁcient certainty the portion of the injury attributable to each defendant. standard of care.” * The court then shifted to the standard of care required of physicians. . The Salinetro court focused. etc. Brief Fact Summary. Merely to show a connection between the negligence and the injury is sufﬁcient to establish liability. -Problems With and Alternatives to But-for Tests Landers v. After East Texas Salt Water Disposal Company’s (Defendant) plea in abatement asserting a misjoinder of parties and of causes of action had been sustained. science or economics. Synopsis of Rule of Law. law. East Texas Salt Water Disposal Co. This case overrules the holding in Sun Oil Co. the court concluded that the lower court properly entered judgment on behalf of Nystrom. this failure was not the cause of her injury.medical malpractice since. whether he be a general practitioner or specialist. breach of duty. initially. the court explained: “A physician. Discussion. : Landers (Plaintiff). means and methods recognized as necessary and customarily followed in a particular type of case according to the standard of those who are qualiﬁed by training and experience to perform similar services in the community. on the issue of causation: “Liability for negligence depends on a showing that the injury suffered by plaintiff was caused by the alleged wrongful act or omission to act by the defendant. even if Nystrom’s failure to inquire as to whether Salinetro was pregnant at the time of her examination. the lake owner declined to replead so as to assert several liability only against each defendant in separate suits. v. proximate cause (scope of liability) and damages. are necessary and customarily followed in the community normally requires expert testimony by those physicians who perform similar services in the community. the court stated. cause-in-fact. It should be noted that.
an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers. * Overruling the holding in Sun Oil Co. Robicheaux. he declined to replead so as to assert several liability only against each of the Defendants in separate suits. the court adopts a new rule which states that when (1) the tortious acts of two or more wrongdoers join to produce an indivisible injury. this court held that the property owner was not required under the circumstances of this case to replead and try a case wholly different from that asserted by him in order to obtain appellate review of his right to pursue to trial the case made by his pleadings. Did the Plaintiff in his pleading allege facts. which. He alleged that East Texas Salt Water Disposal Co. that is. Facts. after Defendants’ plea in abatement asserting a misjoinder of parties and of causes of action had been sustained. The Plaintiffs’ action seeking a joint and several judgment of damages and injunctive relief was dismissed as to the damages feature by the trial court. all of the wrongdoers will be held jointly and severally liable for the entire damages and (2) the injured party may proceed to judgment against any one separately or against all in one suit. (Defendants) both caused large quantities of salt water and also oil to ﬂow into his lake killing the ﬁsh. * Adopting a new rule. * The court held that because there was no misjoinder as alleged. * The lower court afﬁrmed the trial court decision. when. an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers. and Sun Oil Co. Issue. Plaintiff owned a small lake. Yes. The allegations of the petition . that when (1) the tortious acts of two or more wrongdoers join to produce an indivisible injury.In this case. Discussion. all of the wrongdoers will be held jointly and severally liable for the entire damages and (2) the injured party may proceed to judgment against any one separately or against all in one suit. He alleged that both Defendants acted negligently. made the Defendants jointly and severally liable for Plaintiff’s damages? Held. if established by evidence. v. which he had cleaned and stocked with ﬁsh at considerable expense. * The judgments of both lower courts were reversed and the case was remanded to the trial court for further proceedings not inconsistent with the instant opinion. the property owner was within his rights in declining to replead and in declining to proceed through a futile and fruitless trial in order to test the correctness of a court’s ruling of misjoinder. that is.
M. If two or more causes concur to bring about an event.M. & S.. a party has established that the other party’s conduct was the cause in fact of an injury.P. When either the “but-for” or “substantial factor” test is satisﬁed. Plaintiff owned property near railroad company’s tracks.P. case? Held.S. . & S. Anderson v. Minneapolis S. The ﬁre started in a bog near Plaintiff’s land and smoldered there for several months. Synopsis of Rule of Law. where it destroyed some of his property. Plaintiff sued Defendants for damages resulting from a ﬁre that was allegedly caused by sparks from one of Defendant’s locomotives that spread until it reached Plaintiff’s land. Anderson (Plaintiff) property near Minneapolis.M. Brief Fact Summary. & S. Company’s (Defendant) railroad tracks. Plaintiff sued the railroad company and the Director General of Railroads (Defendants) for damages resulting from a ﬁre that was allegedly caused by sparks from one of Defendant’s locomotive engines that spread until it reached Plaintiff’s land. the “substantial factor” test has been widely accepted. Did the trial court err when it instructed the jury to apply the rule in the Cook v. No.S. Issue. St. the court approved a jury instruction that allowed the jury to ﬁnd actual causation if the Defendant’s ﬁre was a “material or substantial element” in the harm done.R. and the trial court was not obliged to notify counsel before responding to the jury’s question. In Anderson. then the cause-in-fact is established by the “substantial factor” test. The jury returned a verdict for Plaintiff. when it ﬂared up and burned his property shortly before it was reached by one of the great ﬁres sweeping through the area that day. where it destroyed some of his property. M.S. P. Co. the trial judge’s instructions to the jury in the absence of counsel were correct statements of law. as in the duplicative cause cases. Moreover. Facts. S. When the “but-for” test seems to produce clearly wrong results. The Supreme Court of Minnesota afﬁrmed the judgment because the trial court did not abuse its discretion in allowing Plaintiff to amend the complaint to conform to proof at trial.were sufﬁcient to assert a case of joint and several liability against the corporations and there was no misjoinder of either parties or causes of action.R. Ry.
Plaintiff damages for personal injuries arising out of a hunting accident. but it is impossible to prove whose conduct actually caused the harm. the court afﬁrmed. which awarded Charles A. then the cause-in-fact of an injury is established by the “substantial factor” test. 830. Summers. 74 N. If Defendants are independent tortfeasors. in Defendant’s direction. The court reasoned further that it was Defendants’ burden to offer proof as to the apportionment of damages. because each acted negligently. While attempting to shoot their target. St. Tice Brief Fact Summary.W. Both hunters negligently ﬁred. On appeal. Synopsis of Rule of Law. 68 Am. The court applied the “substantial factor” test imported from the rule in the Cook case. The trial court entered a judgment in Plaintiff’s favor. Plaintiff and Defendants went on a hunting trip. 457. Tice and Ernest Simonson (Defendants). in Plaintiff’s negligence action against two hunters. many jurisdictions presume that each Defendant was the actual cause of the Plaintiff’s injury.Discussion. 561. 624. each was responsible to Plaintiff for damages from the injuries he sustained. Consolidated appeals from a judgment of the Superior Court of Los Angeles County (California). they destroy the property. there is no liability. and either ﬁre independently of the other would have destroyed it. Rep. If two or more causes concur to bring about an event. 40 L.A. then. both Defendants ﬁred in Plaintiff’s direction. which exempted Defendant from liability since there were other ﬁres sweeping east towards Plaintiff’s property. The narrow rule in this case states that if a ﬁre combines with another of no responsible origin. Plaintiff suffered injuries to his right eye and face. Facts. and thus each liable for the damage caused by him alone. . and after the union of the two ﬁres. Plaintiff provided each Defendant with directions on how to safely ﬁre their weapons. Because they failed to meet that burden. -Proof: What was Caused? Summers v. therefore. 98 Wis. irrespective of whether the ﬁrst ﬁre was or was not a material factor in the destruction of the property. at the same time.R. The wronged party should not be deprived of his right to redress. and any one of those ﬁres could have been the actual cause of Plaintiff’s loss. because it determined that Defendants failed to meet their burden of proving who was responsible for Plaintiff’s injury. it was in the discretion of the trier of fact to apportion the damages. Harold W. Plaintiff sued both Defendants in a negligence action.
They brought about a situation where the negligence of one of them injured the plaintiff. the defendants failed to meet their burden of proving which party was responsible for plaintiff’s eye injury. They are both wrongdoers negligent toward the plaintiff. therefore. She sued Defendants for medical malpractice. No. If one can escape the other may also and plaintiff is remediless. Plaintiff suffered a broken neck in an auto accident and was treated at the hospital by Defendants. the court reasoned that since they failed to meet that burden. A plaintiff may recover for a loss of opportunity for a better recovery in a medical malpractice case when the defendant’s negligence aggravates the plaintiff’s preexisting injury such that it deprives the plaintiff of a substantially better outcome. a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. She sued Defendants. causing her to lose the opportunity for a substantially better recovery. Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. When we consider the relative position of the parties and the results that would ﬂow if plaintiff was required to pin the injury on one of the defendants only. each was responsible to Plaintiff for damages from the injuries Plaintiff sustained. and the higher court reversed and remanded. alleging that they negligently misdiagnosed her spinal cord injury. Discussion. Lovett Brief Fact Summary. the case should be left to the trier of fact to apportion damages. hence it should rest with them each one to absolve oneself. The appellate court correctly afﬁrmed the lower court’s ruling. Upon learning that the Defendants intended to move to dismiss at the close of her case. because each acted negligently. Synopsis of Rule of Law. if he can. then failed to both immobilize her properly and to administer steroid therapy. Plaintiff broke her neck in an auto accident and claimed that the hospital staff negligently misdiagnosed her injury. The judgment of the lower court was afﬁrmed because Defendants failed to meet their burden of proving who was responsible for Plaintiff’s injury. Facts. the trial court dismissed her action. Since each Defendant acted negligently. Did the trial court err in entering judgment in Plaintiff’s favor? Held. Lord v. Defendants have placed the injured party in the unfair position of pointing to which defendant caused the harm. causing her to lose the opportunity for a substantially better recovery. Thus. Here. Plaintiff proffered that her expert would testify that the Defendant’s negligence deprived her of the opportunity for a substantially better . each was responsible to Plaintiff for damages from the injuries Plaintiff sustained.Issue.
The loss the opportunity doctrine is a medical malpractice form of recovery which allows a plaintiff. Many jurisdictions. and remanded. but can be quantiﬁed through expectation. The trial court dismissed the action on the ground that lost opportunity was not a recognized theory. Discussion. The court adopted the third approach. not for the entire preexisting condition. (3) If a plaintiff can prove that she was deprived of at least a 51% chance of a more favorable outcome than she received. Yes. she may recover damages only for the lost opportunity for a better outcome. This decision explains that a minority of jurisdictions approach this theory according to the standards explained in (1) & (2) above. she may recover damages for the entire preexisting condition. Held. however. The New Hampshire Supreme Court reversed and remanded. she may recover damages for the entire preexisting condition. which allow a plaintiff to recover for the entire preexisting injury upon proving causation by the speciﬁed standard. which can be difﬁcult to calculate. but conceded that her expert could not quantify the degree to which she was deprived of a better recovery by their negligence. Issue. Whether Plaintiff can recover under the loss of opportunity doctrine. The court explained three different approaches to loss of opportunity claims generally taken: (1) If a plaintiff proves that she was deprived of at least a 51% chance of a more favorable outcome than she received. (2) If a plaintiff proves that the defendant’s negligence more likely than not increased the harm to the plaintiff. whose preexisting injury or illness is aggravated by the alleged negligence of a physician or health care worker. to recover for her lost opportunity to obtain a better degree of recovery. reversed the trial court’s dismissal. . as in the above case. only permit a plaintiff to recover damages for loss of opportunity itself.recovery.
Facts. THE SCOPE OF RISK OR “PROXIMATE CAUSE” ELEMENT A. The intervening criminal act of the assailant was not within the scope of risk created by Defendants’ lack of maintenance. The term proximate cause. the Appellate Court of Connecticut reversed and remanded because as a matter of law a jury could not reasonably have found that failure to ﬁx an intercom was the proximate cause of an assault on Plaintiff and resultant injury. The jury indicated in interrogatories that the verdict for Plaintiff was based entirely on a ﬁnding that Defendants were negligent in failing to maintain the building telephone security intercom communication system to protect Plaintiff and others. on grounds that the court should have entered judgment for Defendants on Plaintiff’s negligence claim as a matter of law. because Plaintiff failed to establish an essential element of negligence. or the defendant who negligently creates a risk to the plaintiff is subject to liability when that risk or a similar one results in harm. while Plaintiff was assaulted. Her hosts struggled to admit her by using an electronic buzzer that did not work. Plaintiff became the victim of a violent assault as she waited in the lobby of Defendants’ apartment building. . but not when some entirely different risk eventuates in entirely different harm. Issue. The court held that the trial court should have entered judgment for Defendants as a matter of law. Washington Height Condominium Association and a management company (Defendants) appealed a judgment for plaintiff. Yes. Synopsis of Rule of Law. THE PRINCIPLE: SCOPE OF RISK Medcalf v. The harm that occurred to plaintiff must be of the “same general nature as the foreseeable risk created by the defendant’s negligence.4. Washington Heights Condominium Brief Fact Summary. includes both cause in fact and foreseeability components. because the primary reason buildings have buzzer systems is to protect residents. Did the trial court err in ruling in favor of the Plaintiff? Held. by the Superior Court in the Judicial District of Stamford-Norwalk (Connecticut). so there could be no ﬁnding of negligence. not guests. proximate cause.” This means that: Liability must be rejected unless a reasonable person would have reasonably foreseen and avoided harm of the same general kind actually suffered by the plaintiff. In fact.
and another guard on the platform pushed him from behind at the same time.e. The second component of a negligence action is proximate cause. A guard on the train. Chief Justice Cardozo. The shock of the explosion threw down some scales at the other end of the . the package the man was carrying was dislodged and fell upon the rails.Discussion. * The Supreme Court of Connecticut has deﬁned proximate cause as an actual cause that is a substantial factor in the resulting harm. but there was nothing from its appearance to give notice of its contents. Mrs. that. who had held the door open. * Proximate cause is a question of fact to be decided by the trier of fact. Inside were ﬁrecrackers. Palsgraf (Plaintiff) was standing on a platform after she bought a ticket from Long Island R. The package contained ﬁreworks. Justice Andrews. * The Defendants could not have reasonably foreseen that a malfunctioning intercom system might provide a substantial incentive or inducement for the commission of a violent criminal assault on their property by one stranger upon another. Long Island Railroad Co. attempted to jump aboard the car. who was carrying a package. which exploded causing some scales to fall and injure Plaintiff Synopsis of Rule of Law. Brief Fact Summary. Proximate cause establishes a reasonable connection between an act or omission of a defendant and the harm suffered by a plaintiff. Two men ran to catch a train that was pulling out from the platform. Plaintiff failed to establish the necessary causal relationship. The ﬁreworks exploded when they fell. The ﬁrst man jumped aboard. however he was unsteady. as a matter of law. Facts. writing for the majority held that negligence is based on the foreseeability of the harm between the parties. In this act. Palsgraf v. each person must refrain from acts (foreseeable or not) that unreasonably threaten the safety of others. the jury could not reasonably have found that the assault on the Plaintiff and the resultant injury were within the foreseeable scope of risk created by Defendants’ failure to maintain the intercom system. a critical element for Plaintiff to prevail. reached forward to help him in. but it becomes a question of law when the mind of a fair and reasonable person could reach only one conclusion. whether the harm which occurred was of the same general nature as the foreseeable risk created by the Defendant’s negligence. Defendant helped to push a man aboard a train. * The court found here that.R. The second man. The man’s package fell. i. Thus. The substantial factor test reﬂects the inquiry fundamental to all proximate cause questions. (Defendant). writing for the minority stated that each person owes an absolute duty of care.
In determining proximate cause the court must ask itself whether there was a natural and continuous sequence between the cause and effect. The stales struck Plaintiff. Issue. he would not have threatened Plaintiff’s safety. and not whether the act would reasonably be expected to injure another. Does a Defendant owe a duty of care to Plaintiff who is outside the reasonably foreseeable zone of danger? Held.platform. It is not enough that Plaintiff merely prove that a duty that was owed to another was transgressed. * However. * A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. * It was unforeseeable that a package being carried would explode and cause any damage to Plaintiff. Dissent. Plaintiff was awarded damages. Even if the guard had intentionally taken the package and thrown it. The conduct in relation to Defendant’s guard was wrong in relation to the man carrying the parcel. Defendant did not violate any foreseeable duties to Plaintiff. There was no indication that the parcel contained ﬁreworks. No. Plaintiff sued Defendant. it was not wrong in relation to Plaintiff who was standing so far away. * If no hazard is apparent to the eye of ordinary vigilance. (Justice Andrews) Everyone owes the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. * For there to be a ﬁnding of negligence there must ﬁrst be a ﬁnding that Defendant owes a duty to Plaintiff and that the injury could have been avoided by the Defendant. . an act innocent and harmless does not become a tort because it happened to be wrong with reference to someone else. causing injuries for which she sues. Judgment reversed. Defendant appealed. she would not have been injured. While it is clear that Defendant violated its duty to the person carrying the ﬁreworks. * The plaintiff must prove that her rights were violated and the duty that Defendant owed to her was transgressed. Defendant’s liability for an intentional act cannot be greater when an act is inadvertent or unintentional. If not for the explosion. many feet away. A defendant owes a duty of care only to those plaintiffs who are in the reasonably foreseeable zone of danger. There was no showing by Plaintiff that the act had such great possibilities of danger as to entitle a party to protection against that act.
Defendant argued it was not the proximate cause of the injuries. At 5:00 they took a tea break. everyone is a foreseeable plaintiff B. the vaporization of the kerosene and the explosion were not. This case identiﬁes two ways to determine if a duty is owed to Plaintiff: (1) the Cardozo method. covered with a tent and surrounded by kerosene lanterns. each person must refrain from acts (foreseeable or not) that unreasonably threaten the safety of others. they knocked or dropped a lantern into the hole. The higher court disagreed and found for Plaintiff on appeal. C. the 8 year old. Scotland. The courts of Scotland held in favor of Lord Advocate on the grounds that though burns were foreseeable. Cardozo’s opinion is the majority view and is referred to as the zone of danger view. leaving unguarded an open manhole. * (J. 8 and 10 years old. Andrews’ view.Discussion. Andrews) Each person owes an absolute duty of care.J. . was playing at the unattended site and knocked over a kerosene lamp. ASSESSING THE SCOPE OF THE RISK Hughes v. Synopsis of Rule of Law. Lord Advocate Brief Fact Summary. Thus to recover. Two boys. Facts. He sued the Lord Advocate of Scotland as the representative of the Post Ofﬁce. but the injury is caused in a unique way or manner which could not have been foreseen. Plaintiff Hughes. the result is within the chain of proximate causation and that element of negligence is satisﬁed. But once back on top. Where a plaintiff’s injury is foreseeable. Cardozo) Negligence is based on the foreseeability of harm between the parties. causing Hughes. Thus liability for negligence is limited to what was foreseeable and what duties were owed that were reasonably foreseeable prior to the negligent act. an 8 year old boy. He suffered severe burns and sued Defendant. found the site. to fall into the manhole and suffer severe burns. descended in the hole then came back up without mishap. and (2) the Andrews method: * (C. a plaintiff must be a foreseeable plaintiff and be in the zone of danger. Under J. Post Ofﬁce workers were working underground and left the manhole unattended surrounded with kerosene lamps while on break. The accepted reconstruction of what happened was that the lantern broke and some of the kerosene vaporized. Post Ofﬁce employees were working on an underground telephone cable in Edinburgh. which resulted in a huge explosion that threw him down the manhole.J. This gaseous form of kerosene came into contact with the lantern’s ﬂame and created a large explosion.
Where the cause of an accident was a known source of danger. namely an explosion. Facts. even though the manner in which they occurred was not. Plaintiff Delaney began living with Defendant Reynolds. Whether Defendant can be found liable for negligence where the manner or cause of the injury was unforeseeable. pulling the trigger twice. Delaney then ran back up stairs. One night Delaney smoked crack cocaine and was drinking heavily. Plaintiff took the gun from the bedroom and shot at Defendant twice but the gun did not ﬁre. The trial judge granted summary judgment for Reynolds and the court of appeals reversed . Plaintiff lived with Defendant police ofﬁcer who owned a gun and stored it loaded and unlocked in the bedroom. When they reached the bedroom. Reynolds knew that Delaney knew where he kept his gun. namely the kerosene lamp. and this time the gun went off. but injury is caused in a unique way which could not have been foreseen. Discussion. In most states. Held. Reynolds Brief Fact Summary. A few states. Delaney put the gun under her chin. relieving a defendant from liability. Reynolds routinely stored his gun. Reynolds urged her to move out of his house. ﬁred.Issue. Thus. pursued by Reynolds. but the injury is the type that was foreseeable. The explosion did not create an accident or damage of a different type than what could have been foreseen by the danger of ﬁre. Delaney took the gun. One night after consuming drugs and being asked by Defendant to move out. went downstairs and aimed the gun at Reynolds. loaded and unlocked in the bedroom. including Massachusetts. Yes. Three different judges agreed that the Plaintiff’s burns were foreseeable. unforeseeable manner are still considered within the scope of risk a defendant has a duty to protect plaintiffs from. a spill of the kerosene which would have produced a more normal conﬂagration. Delaney sued Reynolds for negligence. a police ofﬁcer. seriously injuring her. Reynolds claimed that Delaney’s intentional act of attempting suicide was a superseding cause of her injuries. She sued Defendant for negligence. While packing her things. it would be too narrow a view to hold that those who created the risk of ﬁre are excused from liability for the damage simply because it came about in an unforeseeable way. Delaney v. seriously injuring her. do not follow this traditional rule and will allow a plaintiff the chance to show that the risk of suicide was foreseeable and that defendant proximately caused it. suicide is considered an intervening cause which breaks the chain of causation. as opposed to. This case stands for the proposition that foreseeable injuries or harm that are caused in a unique. however. there is no defense to negligence. The gun did not ﬁre. for example. Reynolds also knew that Delaney was depressed and had substance abuse problems. Synopsis of Rule of Law. Plaintiff then shot herself and the gun did ﬁre.
Issue. (Defendants) claiming that the employer failed to maintain a safe work site. Facts. Brief Fact Summary. No. and there should have been two ﬂagmen present. James Dickens (Dickens) was suffering from an epileptic seizure when the accident occurred. Dickens was driving eastbound on the thoroughfare where Plaintiff was working on an excavation. then it is a superseding act which would sever the causal connection. the appeals court revered the summary judgment ruling. Massachusetts. and struck an employee of a subcontractor. Felix Contracting Corporation (Felix). The driver suffered an epileptic seizure and lost consciousness. Derdiarian v. The driver of the automobile. Plaintiff and his wife sued the employer. If it is not foreseeable. Proximate cause is determined by whether an intervening act is a foreseeable consequence of the defendant’s negligence. but had failed to take his medication that particular day. striking Plaintiff. other jurisdictions have recently gone beyond the categorical basis for treating suicide as an intervening cause of injury and have considered various nontraditional circumstances as relevant to the issue of foreseeability. rather than any antecedent negligence. The driver was undergoing treatment at the time. The automobile crashed through a single wooden horse-type barricade. Upon landing. who was propelled into the air. however. Held. The court held that Delaney should have the chance to show that the risk that she would handle Reynolds’ gun in a manner so as to cause intentional injury to herself was foreseeable and that his failure to secure his gun was a proximate cause of her injury. Felix Contracting Corp. Felix contended . freeing the defendant from liability for negligence. a purposeful act of suicide. Whether suicide is such an extraordinary event as not to be reasonably foreseeable. as opposed to one. but an intervening cause of injury which breaks the chain of causation. Like Massachusetts. the employee was splattered by boiling liquid enamel from a kettle. Synopsis of Rule of Law. Discussion. Accordingly. Historically. will be deemed the legal cause of a decedent’s injury unless the defendant’s negligence rendered the decedent unable to appreciate the self-destructive nature of the suicidal act or unable to resist the suicidal impulse. Most states continue to follow the traditional rule that suicide is a superseding cause of plaintiff’s harm. under Massachusetts law. Dickens. and the contractor for negligence. does not adopt an ironclad rule that suicide constitutes an intervening cause. Plaintiff was hit by a car when he was working on an excavation job. Plaintiffs maintained that the barrier should have covered the entire width of the excavation site. however. Foreseeability is the reasonable anticipation of the possible results of an action.
(Defendants) and the Plaintiff appealed the district court judgments in a negligence action. the causal connection is not automatically interrupted. Whether an intervening act is foreseeable or not is a question for the trier of fact. The truck driver pulled over to offer assistance. Instead. Essentially. Marshall v. Was the truck driver negligent and his conduct the proximate cause of the Defendant’s injuries? . and (2) no superseding intervening force. One is liable for the harmful consequences that result from the creation of unreasonable risk. i. Facts. Synopsis of Rule of Law. because there was no causal link between Felix’s breach of duty and Dickens’ negligence. Issue. when the risk of the intervening act occurring is the very same risk that renders the actor negligent. the foreseeable harm test requires (1) a reasonably foreseeable result or type of harm. risk that is foreseeable and is the immediate cause of the plaintiff’s injury. Plaintiff was a passenger of a car that went off the road under icy conditions when an approaching truck crossed into his lane. Issue.that Plaintiff was injured solely as a result of Dickens’ negligence.e. On appeal. Yes. If the intervening event is unforeseeable. The Court of Appeals of New York held that Plaintiff’s injuries were a foreseeable result of the risk created by the employer. The jury found the truck driver liable.. and relieve an actor of responsibility. defendant employer argued that there was no causal link between the employers breach of duty and plaintiffs injuries. it depends upon whether the intervening act was a foreseeable consequence of defendant’s negligence. Plaintiff was attempting to warn oncoming trafﬁc of the unsafe situation when a motorist who was attempting to avoid colliding with the truck struck him. An oil company and the driver of its truck. Plaintiff need not demonstrate that the precise manner in which the accident happened or that the extent of injuries was foreseeable. an intervening act may not serve as a superseding cause. For a plaintiff to carry the burden of proving a prima facie case of negligence. Were Plaintiff’s injuries a foreseeable result of the employer’s failure to maintain a safe work site? Held. The assigning of such liability is a question for the trier of fact. he must generally show that the defendant’s negligence was a substantial cause of the events that produced the injury. leaving his truck partially blocking the road. Discussion. Further. Nugent Brief Fact Summary. which would interrupt the causal connection between defendant’s negligence and plaintiff’s injuries. then it may be a superseding cause. When the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury.
riding violently. The court of appeals afﬁrmed the judgment against Defendants. The Plaintiff. “[i]t would be impossible for a person in the defendant’s position to predict in advance just how his negligent act would work out to another’s injury. THE COMMON LAW RULE Butterﬁeld v. the Defendant’s negligence “constituted an irretrievable breach of duty. what the court refers to as “a variety of risks. Synopsis of Rule of Law.” In so doing the court provides the framework for delineating reasonable and unreasonable risks (the latter being those that are foreseeable and thus avoidable). The judge directed the jury that if they found that a person riding with reasonable and ordinary care could have avoided the obstruction and if Plaintiff was not riding with ordinary care. The Plaintiff. initializing the concept of contributory negligence. The Plaintiff’s attempt to warn oncoming motorists of the dangerous situation was reasonable and did not constitute contributory negligence. CONTRIBUTORY/COMPARATIVE FAULT A. injuring himself. Butterﬁeld (Plaintiff). he would have been able to see and avoid the pole.” Discussion. he would have been able to see and avoid the obstruction. The jury found for Defendant. A witness said that if Plaintiff had not been riding hard. . the primary test for proximate cause focuses on whether the Defendant should have reasonably foreseen the general consequences or type of harm that could result from her conduct. the court concludes. The plaintiff’s failure to exercise reasonable and ordinary care in this case is a complete bar to recovery from the defendant. The court in Marshall addresses a number of peripheral questions in determining the scope of liability in connection with auto accidents. was injured when he rode his horse into an obstruction placed into the road by the Defendant. Forrester (Defendant). Facts. did not see the pole and was thrown from his horse by the pole.” Thus. the jury should ﬁnd a verdict for the Defendant.Held. Again. A witness stated that if the Plaintiff had not been riding violently. the court states. The Defendant had put up a pole across a public road for the purpose of making some repairs to his house. “[t]he question of proximate causation is one of fact for the 5. Noting the often complicated circumstances surrounding a car accident. Forrester Brief Fact Summary.
Diagnosed with post-traumatic stress disorder. asked for a glass of water. Discussion. Plaintiff allowed the man inside the room. who. She was staying at a motel. and the court of appeals can reverse only when persuaded that in applying this standard. A jury found the Defendants to be negligent. A suspect was apprehended. * Chief Justice Lord Ellenborough: One person being in fault will not dispense with another’s using ordinary care for himself. but the rapist was never prosecuted. The Plaintiff cannot recover for casting himself on an obstruction made by the fault of another if he did not use common and ordinary caution to be in the right. after some confusion. The United States District Court for the Northern District of Illinois found that the Adamses (Defendants) were negligent and that their negligence was the proximate cause of the assault on Susan Wassell (Plaintiff).Issue. so the accident happened entirely at his own fault. A new trial can be granted only when the jury’s verdict is against the clear weight of the evidence. Plaintiff brought suit against the Defendants alleging negligence in their failure to warn her of the dangerous conditions of the neighborhood in which the motel was located. However the jury . but Plaintiff was too upset to provide proper identiﬁcation. Illinois to attend a graduation at the Great Lakes Naval Training Station. and their negligence was the proximate cause of Plaintiff’s assault. No. Adams Brief Fact Summary. Plaintiff managed to escape. B. and he sexually assaulted her. he would have seen the obstruction. when she was awakened late at night by a knock on the door. The court of appeals afﬁrmed. the district judge abused his discretion Facts. ADOPTING AND APPLYING COMPARATIVE FAULT RULES Wassell v. * Justice Bayley: If the Plaintiff had used ordinary care. which completely bars recovery if plaintiff’s negligence contributed to the happening of the accident. owned by Defendants. Is the defendant liable for injuries caused by his negligence when the plaintiff could have avoided the injuries by exercising reasonable and ordinary care? Held. Plaintiff traveled to an area just north of Chicago. Outside was a man she didn’t know. The Court’s holding in this case is demonstrative of common law contributory negligence. Rule refused. Synopsis of Rule of Law.
. . Plaintiff purchased an ATV and attended an ATV rider safety course where she hit a rock. and which is a legally contributing cause . Hartley Motors Brief Fact Summary. in dicta. An exculpatory release for a dangerous activity releases the providing party from the risks inherent in that activity and ordinary negligence associated with those inherent risks. Discussion. that Plaintiff’s negligence was a relevant.” * The court also clearly enunciated the rule by which it is proper to set aside a jury verdict: “[t]he federal standard is that a new trial can be granted only when the jury’s verdict is against the clear weight of the evidence. disagreed with the jury’s apportionment. and 3% to Defendants. The court ultimately held that the hidden rock on the ATV course was an unreasonable risk not within the scope of the release. contributory factor to the circumstances that resulted in her injuries and denying her Motion for a New Trial? Held. The court of appeals. Did the court err in allowing the jury’s determination to stand. Issue. but declined to reverse. However. It held that the issue of apportionment was one of fact and thus properly within the purview of the jury. She sued Defendants for negligence. was thrown from the ATV and injured. an injured party may still have recourse if her injuries were caused by unreasonable risks or unnecessary dangers that are not inherent in the activity. as the latter was the trier of fact.” 6. CONTRACTUAL OR EXPRESS ASSUMPTION OF THE RISK Moore v. in bringing about the plaintiff’s harm. The court of appeals would only be justiﬁed in negating such apportionment if there was an abuse of discretion on the part of the trial judge. . Prior to the class she had signed a release and consent form. apportioning blame 97% to Plaintiff. The question of apportionment of blame was properly one for the jury.also found that Plaintiff had been negligent as well. contributory negligence is “conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection. and the court of appeals can reverse only when persuaded that in applying this standard the district judge abused his discretion. According to the Restatement of Torts Section: 463. ASSUMPTION OF THE RISK A. Synopsis of Rule of Law.
the ATV Safety Institute. and the instructor of the class. This decision stands for the proposition that while people may contractually waive their right to sue for damages caused by the ordinary negligence of others. or was an unnecessary danger. the salesperson offered them a $50 rebate upon voluntary completion of an ATV rider safety class. a court must determine whether the risk that caused the injury was within the scope of the release. Citrus Community College District Brief Fact Summary. During the class. He sued the college of the pitcher but his action was barred by the assumption of the risk. At the time of the sale. Moreover. The Moores elected to attend the class and signed a consent form and release before the class began. resulting in serious injuries. the dealer. alleging that Defendants negligently concealed the fact that the course was unsafe. such pre-injury releases are unenforceable if they offend public policy. B. Plaintiff Avila was hit in the head by a ball thrown by the pitcher while he was at bat. or if they are ambiguous. which released the course providers from liability and damages “arising out of participation in the ATV RiderCourse.Facts. and the higher court reversed and remanded. the court analyzed that the signed release did not violate public policy because the ATV safety course was voluntary for ATV purchasers. Issue. the court discussed the language of the release. . Plaintiff was thrown from her ATV when it struck a rock obscured by high grass. Plaintiff Moore bought a Suzuki four-wheel ATV in May 1993. Reversed and remanded. thus the class providers did not have a “decisive advantage of bargaining strength” in requiring the release for participation. The court concluded that holding a safety course on an unreasonably risky course may give rise to Defendants’ liability even if encountering rocks is generally an inherent risk of ATV riding. No. Plaintiff appealed. Held. Second. The superior court granted summary judgment for Defendants ﬁnding that the signed release was valid. First. even if a release comports with public policy. Whether the scope of an exculpatory release for an ATV rider safety course includes liability for general negligence unrelated to the risks inherent in the safety course. She sued Hartley Motors. Discussion.” Based on that language. IMPLIED ASSUMPTION OF THE RISK Avila v. the court held that Moore released the class provider only from the inherent risks of ATV riding and ordinary negligence associated with those inherent risks.
there is no liability to the plaintiff because there is no negligence on the part of the defendant to begin with. etc. In general. Avila alleges it was an intentional “beanball” throw in retaliation for the previous hit batter. so a Citrus College player yelled to the Rio Hondo dugout that they needed a pinch runner. is an inherent risk of baseball. Avila walked off the ﬁeld and went to the bench. the Citrus College pitcher hit him in the head with a pitch. Plaintiff Avila. A growing number of courts now say that personal injury cases arising out of an athletic event must be predicated on reckless disregard of safety. On January 5. as being hit by a pitch. Issue. The danger to the plaintiff is not one which defendant is required to extinguish or warn about. Reversed and remanded. . and complained to his manager of being in pain. the helmet manufacturer. the court must evaluate the fundamental nature of the sport and the defendant’s role in that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.Synopsis of Rule of Law. Facts. the court of appeals reversed. He sued both colleges. cracking his batting helmet. Held. a Rio Hondo Community College student. This decision stands for the proposition that where primary assumption of the risk exists. (3) failing to provide umpires likewise did not increase the risks inherent in the game. even intentionally. In determining whether primary assumption of the risk bars liability in a sporting context. and the California Supreme Court reversed. No one tended his injuries. A court must evaluate the fundamental nature of the sport and the defendant’s role in that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm. his manager told him to go to ﬁrst base and to stay in the game. The court found that none of Avila’s allegations showed that Defendant breached a duty to him: (1) nothing about the District’s hosting the game enhanced the ordinary inherent risks of baseball. his manager. felt dizzy. Assumption of the risk applies in the sporting context when a defendant owes no duty to protect a plaintiff from particular harms. Nevertheless. Discussion. and Defendants did not have a duty to decrease the risks in the game. played baseball for the school’s team. (4) the District had no duty to provide medical care after he was injured and his own Rio Hondo coaches and trainers were present to assist him. a Rio Hondo pitcher hit a Citrus College batter with a pitch. when Avila came to bat in the next inning. he was still in pain. Avila staggered. Yes. holding that the action was barred by assumption of the risk. (2) failure to supervise and control the Citrus College pitcher was barred by Avila’s primary assumption of the risk. Whether Avila’s head injury was an inherent risk of the sport such that Defendants did not owe a duty to protect him from it. During the game. At second base. he was playing a preseason game against Citrus Community College. The trial court dismissed the action. 2001. a defendant does not have a duty to protect a plaintiff from injuries arising from risks deemed inherent in a sport.
III. Greater Cleveland Regional Transit Authority Brief Fact Summary. a landowner owes no duty to a licensee or trespasser except to refrain from willful. LIMITING OR EXPANDING THE DUTY OF CARE 1. A jury found for Plaintiff and awarded damages. AND CHILDREN Gladon v. Dissent. INVITEES. Conversely. He was assaulted after mistakenly alighting from the train. Plaintiff boarded Defendant’s train after attending a Cleveland Indians baseball game. CARRIERS. LANDOWNERS’ DUTIES TO TRESPASSERS.” The judgment of the lower court was reversed and the action remanded. Plaintiff ended up on the tracks with a train approaching. The train’s operator was unable to brake in time and the train struck Plaintiff causing him serious and permanent injuries. LICENSEES. Defendant appealed. The court ruled that the “RTA’s invitation to [Plaintiff] to use their premises did not extend to the area on or near the tracks. and thus entitled to the heightened duty owed by one of that status. which the . The trial court dismissed the security claim. or reckless conduct that is likely to injure him. At some point. which was characterized as a constitutional one: “[t]he real issue in this case is whether any application of [the applicable statute] to reduce or “cap” a jury award in a negligence action against a political subdivision of the state violates the right to trial by jury. Facts. wanton. Synopsis of Rule of Law. but permitted the negligent operation claim to proceed to trial. The dissent maintained that the majority avoided the fundamental issue at hand. A jury awarded Gladon (Plaintiff) damages in connection with being struck by a train operated by Greater Cleveland Regional Transit Authority (Defendant). A landowner owes a duty to an invitee to exercise ordinary care for the invitee’s safety and protection. HOST-DRIVERS AND LANDOWNERS A. alleging negligent security and negligent operation.” The dissent took further issue with the majority’s characterization of the status of the Plaintiff. Issue. What was the Plaintiff’s status at the time of his injury? * What duty of care was Plaintiff owed by the Defendant? Held. Plaintiff ﬁled suit against the Defendant.” therefore his status was that of trespasser or licensee and thus subject to an ordinary standard of care requiring the Defendant only “to discover and avoid danger. The trial court instructed the jury to consider the question of whether the evidence showed Plaintiff was an invitee.
and drowned. fell in. Bennett v. The common law approach measure the duty owed by the status of the person entering the land. Stanley Brief Fact Summary. A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artiﬁcial condition upon land if: (a) The possessor knows or has reason to know that children are likely to trespass on that place.” and “invitees. (b) The possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children. In some jurisdictions this approach to liability has been abandoned in favor of a generalized duty of ordinary care. pond-like pool. * A “trespasser” is deﬁned as a person who enters or remains on another’s property without the permission (express or implied) of the owner.” The distinction was critical as it goes directly to the duty of cared owed by Defendant.” . the only duty owed is to refrain from willful harm. Finally. Synopsis of Rule of Law. Social guests fall under this category. and this type of person generally falls into two categories: business invitees and public invitees.” “licensees. in contrast is one who enters the land with the express or implied consent of the landowner. The duty owed in this case is very limited. an “invitee” is a person who enters the property at the behest of the owner. (c) Because of their youth the children do not discover the condition or realize the risk involved (d) The risk of harm to the children outweighs the possessor’s utility of maintaining the condition and his burden of eliminating it. There are three basic categories: “trespassers. The father sued the neighbors in negligence.” That classiﬁcation determines the standard of care owed by the land occupier. Discussion. A ﬁve-year-old boy trespassed into his neighbor’s yard to play by their unkempt. His mother also drowned trying to save him. As noted above. (e) The possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children. A “licensee”.dissent maintains is that of “business invitee. The duty owed an invitee is that the landowner uses reasonable care in maintaining the premises and in their activities.
(b) The possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children. the doctrine applies mainly to children of grade school age or younger and only rarely to teenagers . 1997. which provides that “A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artiﬁcial condition upon land if: (a) The possessor knows or has reason to know that children are likely to trespass on that place. Yes.” Accordingly. The Ohio Supreme court adopted the “attractive nuisance” doctrine of the Restatement of Torts 2d in this case. 3 years old and 5 years old respectively. They had removed a tarp from the pool and fencing from two sides of the pool and it did not have any ladders. (c) Because of their youth the children do not discover the condition or realize the risk involved (d) The risk of harm to the children outweighs the possessor’s utility of maintaining the condition and his burden of eliminating it. Chance fell into the pool and his mother apparently drowned trying to save him.” Bennett ran next door to ﬁnd his wife and son unconscious in the swimming pool. but had allowed it to ﬁll with rainwater to a depth of over 6 feet. because of their youth. The Stanleys did not properly maintain the pool. Children have a special status in tort law and duties of care owed to them are proportioned to their inability to foresee and avoid the perils that they may encounter. the court reversed the judgment of the lower courts granting summary judgment for the Defendants and remanded. Issue. When Rickey Bennett came home on the day of the drowning he found his two young daughters crying. Both died. Whether property owners have a heightened duty of care to protect child trespassers from dangers upon their land. Discussion. Kyleigh told him that “Mommy and Chance are drowning in the water. are unlikely to appreciate the dangers and to avoid them. the appeals court afﬁrmed. Thus. were playing at their neighbor Stanleys’ pool on March 20. and the Ohio Supreme Court reversed and remanded. Kyleigh and Chance Bennett. (e) The possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children. The trial granted the Stanleys’ motion for summary judgment. It became pond-like and contained tadpoles and frogs with slimy sides covered in algae. Bennett sued the Stanleys in negligence. The attractive nuisance doctrine applies only to children who.Facts. Held.
The assumption of risk defense contains three basic elements. and 2) voluntarily. Discussion. In an action for negligence. He struck the bottom of the pool at an odd angle and sustained a fracture to the cervical vertebrae resulting in temporary paralysis. Synopsis of Rule of Law. assumption of risk is traditionally the second complete defense to a negligence claim. by exposing himself to an obvious danger. In seeking to avoid the confusion and potential for arbitrariness for juries. Facts. The standard of care owed by a defendant presumes that a plaintiff is required to exercise reasonable care for his own safety. concluding that the statute in question did not relieve Plaintiff of the burden of proving Defendant owed him a duty of care that superseded the “open and obvious danger” rule. the Superior Court. assume the risk of harm associated with the activity in question? Held. Plaintiff brought an action to recover damages for injuries incurred after he dove headﬁrst into the shallow end of the Defendant’s swimming pool. therefore Defendants did not owe a duty of care to Plaintiff. Plaintiff appealed. A landowner’s duty to protect lawful visitors against dangerous conditions on his property ordinarily does not extend to dangers that would be obvious to persons of average intelligence. Shaw Brief Fact Summary. the court explains. which expressly abolished the defense of assumption of risk. The appellate court afﬁrmed the lower court’s judgment. Did Defendants owe a duty to Plaintiff to warn him of the danger of diving into the shallow end of Defendants’ swimming pool? * Did Plaintiff. This approach presumes a duty of reasonable care is owed to any land entrant regardless of his or her status. many jurisdictions have opted for a more generalized reasonable person standard with respect to the degree of reasonable care a land possessor must exercise with regard to safety of those entering upon his or her property. The Plaintiff suffered injuries to his neck and back after diving into the shallow end of the pool. He contended that Defendants had a duty to warn visitors of the danger of diving into the pool. Plaintiff appealed.O’Sullivan v. Essex (Massachusetts) granted Defendants’ Motion for Summary Judgment. implicitly abolished the open and obvious danger defense. . The Superior Court granted Defendants’ Motion for Summary Judgment. Issue. Along with contributory negligence. 3) assume the risk. The court reasoned that diving into the shallow end of Defendants’ pool presented an open and obvious danger that was known to the Plaintiff. A plaintiff must 1) know a particular risk. arguing that the Massachusetts statute.
has been abolished in many jurisdictions. The court discussed several rationales for the rule. jumped inside. then stopped it and claimed he was injured in the process. injuries to police and ﬁremen are compensable through workers’ compensation and liability should be borne by the public rather than by individual property owners. including police ofﬁcers and public safety ofﬁcers such as here) from recovering against a defendant whose negligence caused the ﬁreﬁghter’s on-the-job injury. The South Carolina Supreme Court answered no. jumped in. Held. Synopsis of Rule of Law. and stopped the truck. THE FIREFIGHTER RULE Minnich v. thus barring Plaintiff’s claim. Plaintiff noticed the unoccupied truck begin to roll forward. Defendants contended the Plaintiff’s claims were barred by the “ﬁreﬁghter’s rule”. Plaintiff Minnich was employed by the Medical University of South Carolina as a public safety ofﬁcer. Plaintiff ran to the truck. the Supreme Court found that the rule is riddled with exceptions and criticisms. however. He ran to catch it. In the course of this feat. However. Courts have. Inc. Moreover. Plaintiff public safety ofﬁcer was helping load medical waste onto a truck when the unoccupied truck started rolling towards a public street. The “ﬁreﬁghter’s rule” is a common law doctrine that precludes a ﬁreﬁghter (and certain other public employees. The Defendant contended that his claim was barred by the ﬁreﬁghter’s rule but they were unsuccessful in that argument as the court held South Carolina does not follow that rule. allowed policemen and ﬁreﬁghters to recover for injuries resulting from an act of negligence unrelated to the speciﬁc reason for which the ofﬁcer or ﬁreﬁghter was originally summoned. such as that ﬁreﬁghters and police ofﬁcers are aware of the risks inherent in their chosen professions and therefore have assumed those risks. . He sued the Defendant truck company. Facts. While working in this capacity. Plaintiff alleged he suffered serious injuries proximately caused by Defendants’ employees and sued in federal court. and was not part of South Carolina’s case law. Issue. the court held that the ﬁreﬁghter’s rule did not apply under South Carolina state law and answered the certiﬁed question in the negative. No. The federal district court certiﬁed a question to the South Carolina Supreme Court asking whether the ﬁreﬁghter’s rule barred a claim for injury to emergency professionals. including police ofﬁcers and public safety ofﬁcers) from recovering against a defendant whose negligence caused the ﬁreﬁghter or ofﬁcer’s on-the-job injury. Inc. Med-Waste.B. Brief Fact Summary. The “ﬁreﬁghter’s rule” is a common law doctrine still applied in some states that precludes a ﬁreﬁghter (and certain other public employees. Plaintiff assisted in loading medical waste from the premises onto a tractor-trailer truck owned by Defendant Med-Waste. Whether South Carolina adopts the ﬁreﬁghter’s rule. as a policy matter. Accordingly. toward a public street.
like the host. he has acted as a reasonable man in view of the probability of injury to others. licensees and invitees have been developed and applied by the courts over a period of many years. the negligent taxpayer would incur multiple penalties in exchange for the protection provided to them. courts reason that the public pays to train and compensate ﬁreﬁghters and police ofﬁcers via taxes. Synopsis of Rule of Law. A guest is reasonably entitled to be warned of any dangerous condition. Had the trial court. The Superior Court of the City and County of San Francisco (California) granted summary judgment in favor of Nancy Christian (Defendant). C. Christian Brief Fact Summary. the distinctions between trespassers. LANDOWNERS Rowland v. If these public employees were permitted to bring suit against the taxpayers whose negligence proximately caused injury. The Supreme Court of California held that a social guest such as Plaintiff was entitled to a warning of a dangerous condition so that he. In some states which still adhere to the ﬁreﬁghter’s rule. He noted. . Defendant had known about the damaged ﬁxture and had reported it to her lessors. No. Instead. The porcelain handle of the bathroom faucet broke while Plaintiff was using it. could take proper precautions. in granting summary judgment in favor of Defendant. Plaintiff brought suit for recovery and the trial court granted Defendant summary judgment. yet did not warn Plaintiff. Dissent. had brought an action to recover damages for personal injuries caused by a defective bathroom ﬁxture in an apartment occupied by Defendant. Issue. Plaintiff was a guest in Defendant’s apartment. so that he may take necessary precautions. The dissent took issue with what he viewed as a departure from an established and workable framework.” It was not a proper function of the court to overturn this system. “[i]n determining the liability of the occupier or owner of land for injuries. Plaintiff appealed. applied the proper standard for duty of care? Held. Roland (Plaintiff). He suffered severed tendons and nerves. The proper test to be applied to the liability of a landowner is whether in the management of his property. which had predominated tort law for years.Discussion. a social guest. it is the job of the legislature to enact statutes to provide guidelines for the modern society. Facts.
The classiﬁcations do not take into account certain factors that need to be considered. Brief Fact Summary. and the prevalence and availability of insurance. The law evolved in such a manner as to place primary importance on land ownership. Under Wisconsin law.” Thus. and the exceptions to those immunities. Plaintiff sued landlord for landlord’s failure to repair the balcony. the court adopts a more generalized “reasonable person” standard. although the plaintiff’s status as a trespasser. In common law. and thus the standards of liability were. and.Discussion. Thus. Plaintiff was injured when tenant’s balcony rail collapsed while she was helping tenant move. a “licensee” or an “invitee” determined the degree of care owed. often do not reﬂect the major factors that should determine whether immunity should be conferred upon the possessor of land. based on these classiﬁcations. the court outlined a different test. Judgment was entered for defendant landlord based on a landlord’s general immunity to liability from tenants and visitors. the degree of liability assigned an owner or occupier of land was assessed according to the status of persons entering the property. a landlord owes to his tenant or anyone on the premises with the tenant’s consent a duty to exercise ordinary care. literally. which include: “the defendant’s conduct. offends society’s moral and humanitarian values. . or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability. “status” conscious. licensee. Synopsis of Rule of Law. which provides that “whether in the management of his [Defendant's] property he has acted as a reasonable man in view of the probability of injury to others. and invitee. California is one of the ﬁrst states to depart from the common law approach. the immunities from liability predicated upon those classiﬁcations. the policy of preventing future harm. the status is not determinative. licensee. Safeco Insurance Co.” It no longer makes sense to hold someone to a certain duty of care. * In Rowland.” It is unreasonable to apply the historical or traditional terminology to modern society. the moral blame attached to the defendant’s conduct. LESSORS Pagelsdorf v. To ﬁnd that one person is owed a lesser duty of care than another based on these archaic classiﬁcations. * Therefore. stating that “[i]t is apparent that the classiﬁcations of trespasser. D. whether the entrant of a property was a “trespasser”.
Discussion. owned a two-story duplex with four balcony porches. The Plaintiffs in this matter were Carol Pagelsdorf (Mrs. . yet immunize them from liability from injuries resulting from a failure to comply with such a warranty. Pagelsdorf) and James Pagelsdorf (Plaintiffs). * This court previously abolished the distinction between licensees and invitees [Antoniewicz v. Generally. Pagelsdorf was assisting Mrs. Defendant rented the upper unit to the John Blatnner and Mary Katherine Blatnner (Mrs.2d 836. * The policies discussed in Antoniewicz support. the landlord is generally not liable to tenants unless one of the exceptions applies and no exception applies in this case. dismissing the complaint.W. in the present case.2d 1. Blattner to move some furniture. Issue. injuring her. 236 N. The Defendant. The modern day apartment lease is viewed as a contract rather than a conveyance. the Plaintiff would not be entitled to an instruction that Defendant owed Mrs. 70 Wis. the Court’s decision to abandon the landlord’s cloak of immunity to tenants and visitors. Judgment was entered on the verdict. The railing had a dry rot condition and should have been replaced. Mrs. the only recourse for a landlord’s failure to comply with this warranty is a right to withhold rent until repairs are made. Did the trial court err in failing to instruct the jury that Defendant owed Mrs. Richard Mahnke (Defendant). The Court has implied a warranty of habitability in such contracts. Mrs. The Court believes that public policy calls for abandonment of the previous rule and adoption of a standard that landlords are under a duty to exercise ordinary care in the maintenance of the premises. However. 10 (1975)]. Pagelsdorf a duty to exercise ordinary care in maintaining the premises? Held.Facts. Judgment reversed and cause remanded. Blatnner). It would be anomalous to apply a warranty of habitability to landlords. 854-55. Pagelsdorf a duty of ordinary care. Pagelsdorf leaned against the railing of the second ﬂoor balcony and it collapsed. Yes. * Following the traditional rule. Reszcynski. An implied warranty of habitability requires a lessor to deliver the premises to the lessee in a habitable condition. Plaintiffs appeal.
In a medical malpractice action. Issue.” * A plaintiff’s introduction of conﬂicting expert testimony. It is rather a profession. because medicine is not an exact science.” Finally. Facts. Appellants operated to remove Appellee’s thyroid. and proﬁciency exercised by reasonably careful. A court could only dispense with such a requirement “where the physician’s conduct is so grossly negligent or the treatment so common that a layman could readily appraise it. Discussion. the court concludes.DUTIES OF MEDICAL AND OTHER PROFESSIONALS 1. “[i]t is insufﬁcient in a medical malpractice action for plaintiff to establish a prima facie case merely to present testimony of another physician that he would have acted differently from the defendant. “[i]t . which involves the exercise of individual judgment within the framework of established procedures. alone may not be sufﬁcient to meet the burden of establishing professional error. The court held that the patient failed to establish a standard that the doctors were bound to follow. skillful. As the court clariﬁed. skill. no expert testimony is necessary. the Appellants mistakenly cut them. Differences in opinion are consistent with the exercise of due care. Expert testimony is necessary to establish that a defendant fell below the standard of care. Tiesenga Brief Fact Summary. Did Appellee meet the burden of establishing Appellants’ medical malpractice? Held. resulting in a loss of his or her voice. The Supreme Court of Illinois afﬁrmed the directed verdict entered in favor of the Appellants. TRADITIONAL DUTIES OF HEALTH CARE PROVIDERS IN TRADITIONAL PRACTICE Walski v. A common risk in such a procedure is damage to the patient’s recurrent laryngeal nerves. Appellants sought review. the Appellate Court for the First District (Illinois) afﬁrmed a directed verdict entered in favor of Appellees. In attempting to segregate the laryngeal nerves in order to avoid damage. acting under the same or similar circumstances. Synopsis of Rule of Law. The plaintiff in a medical malpractice action must establish the standard of care through expert testimony. and prudent practitioners in the same class to which he belongs. the common scenario of “dueling experts”. A physician must exercise that degree of care. The trial court directed a verdict in favor of the Appellants and the intermediate appellate court afﬁrmed. causing paralysis of the vocal chords. One element of a cause of action for medical malpractice is proof of the standard of care by which the physician’s conduct is to be measured. The court recognized the difﬁculty inherent in requiring a jury to evaluate certain standards of professional conduct.
Dissent. This was a case alleging medical malpractice. Plaintiffs brought an action against the Defendant for injuries sustained by their infant son. suffered severe and permanent injuries as a result of the cesarean. In adopting the new standard. No. Synopsis of Rule of Law.” which differentiated between the manners of treatment acceptable in different locales. The dissent objected to the standard outlined by the majority. “the modiﬁed locality rule. Plaintiffs alleged that these injuries were the result of the Defendant’s negligence. objective standard employed by the majority of jurisdictions. Javier Vergara. Plaintiffs alleged that their infant suffered severe and permanent injuries during delivery as a result of the Defendant’s negligence. Doan Brief Fact Summary. which is articulated above. or a disagreement of doctors of equal skill and learning as to what the treatment should have been.” Vergara v. the standard of care to which physicians were expected to adhere. The Supreme Court of Indiana opted to adopt a more objective standard. skill. rather than clarify. Issue. Plaintiffs appealed. .has always been the rule that the testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant. A physician must exercise that degree of care. Prior to Vergara. and proﬁciency exercised by reasonably careful. Facts. Did the lower court properly instruct the jury regarding the standard to apply in evaluating Defendant’s professional conduct? Held. because the ability of a physician in a rural community hospital may be vastly different than his or her ability in a large metropolitan hospital. Indiana employed a professional standard of care. which was a jury verdict in favor of Defendant. and prudent practitioners in the same class to which he belongs. The dissent contends that the majority position served to confuse. skillful. the Vergara court simply brought Indiana law in line with the more universal. The Court of Appeals of Indiana afﬁrmed the trial court’s judgment. does not establish negligence. in which Plaintiffs contend that Defendant failed in his professional responsibility in performing a cesarean section Plaintiff’s infant son. acting under the same or similar circumstances. Discussion.
Yes. Plaintiff opposed the motion. The trial court denied defendant’s motion for summary judgment and permitted plaintiff to rely on the expert medical opinion for a res ipsa theory. Held. but the New York Court of Appeals afﬁrmed the trial court Issue. She believed that during the operation the anesthesiologist negligently hyperabducted her right arm beyond a 90-degree angle for an extended period of time. She sued the hospital on a res ipsa loquitur theory and had to present expert testimony as direct evidence of negligence. The court concluded that expert testimony may be used to help the jury “bridge the gap” between its own common knowledge. .” It derives from the understanding that according to common knowledge. Res ipsa loquitur is a doctrine of ancient origin which means “the thing speaks for itself. Res ipsa loquitur is a doctrine of ancient origin which means “the thing speaks for itself. Expert testimony is frequently necessary in a medical malpractice case brought on a res ipsa loquitur theory. some events ordinarily do not occur in the absence of negligence. which does not encompass the specialized knowledge necessary. In the course of the surgery. Conceding the absence of direct evidence of negligence. the anesthesiologist negligently hyperabducted her right arm beyond a 90-degree angle for an extended period of time resulting in injury to her. Plaintiff Kathleen States underwent surgery for removal of an ovarian cyst. RES IPSA LOQUITUR States v. and the common knowledge of physicians. A divided appellate division reversed. The defendant in this case argued that res ipsa could not apply because to establish that the hyperabduction of plaintiff’s arm would not have occurred in the absence of negligence. some events ordinarily do not occur in the absence of negligence. submitting expert medical opinion that her injuries would not have occurred in the absence of negligence. causing right thoracic outlet syndrome and reﬂex sympathetic dystrophy. the jury would have to rely on expert medical opinion rather than their own common knowledge and everyday experience. Lourdes Hospital Brief Fact Summary. She sued the hospital.” It derives from the understanding that according to common knowledge.2. which does. Facts. Whether a jury can rely on expert medical opinion in the absence of direct evidence of negligence to support a res ipsa loquitur theory. Plaintiff States underwent surgery for removal of an ovarian cyst. Plaintiff claimed this testimony could be used by a jury in support of a res ipsa loquitur theory. Synopsis of Rule of Law. Defendant Hospital moved for summary judgment on the ground that there was no direct evidence that the plaintiff’s arm was hyperabducted during surgery. and thus negligence may be inferred from the mere happening of an event. At the close of discovery.
Plaintiff complained of neck and back pain. Discussion. This decision stands for the proposition that expert testimony is frequently necessary in a medical malpractice case brought on a res ipsa loquitur theory. thus rendering the trial court’s judgment of nonsuit improper? Held. He brought suit. The normal basis for medical res ipsa loquitur is that. as a matter of common knowledge. (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant. the Supreme Court of California provided a very broad interpretation of res ipsa loquitur.The court reasoned that expert opinion does not negate the jury’s ultimate responsibility as ﬁnder of fact to determine whether an event would normally occur in the absence of negligence. His condition worsened. through carelessness or lack of skill. Ybarra v. After being given an injection. Facts. inﬂict. The evidence established that his condition was the result of trauma. the Superior Court of Los Angeles County (California) entered judgments of nonsuit as to all Defendants in an action for damages for personal injuries. The clearest cases are those in which instruments or towels are left inside the patient’s abdomen after surgery and those in which injury is inﬂicted upon a part of the body not being treated. nor had he suffered any injury that might have been the cause. eventually resulting in paralysis. The doctrine of res ipsa loquitur applies with equal force in cases wherein medical and nursing staffs take the place of machinery and may. The Supreme Court of California reversed the lower court’s ruling because the res ipsa loquitur doctrine applied to Defendants. Spangard Brief Fact Summary. the plaintiff’s injury is more likely than not to have resulted from negligence. so that his back rested against two hard objects. Yes. stating: “[t]he doctrine of res ipsa loquitur has three conditions: (1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence. He testiﬁed that prior to the operation he had never had any such pain. injury upon a patient who is thereafter in no position to say how he received his injuries. Issue. (3) it must not have been due . Plaintiff was diagnosed with appendicitis and was scheduled for surgery. because they had control over Plaintiff’s body and instrumentalities that might have caused the injuries which Plaintiff sustained. In explaining the applicability of res ipsa loquitur. In a personal injury action. Discussion. and in the course of preparation for surgery members of the surgical team adjusted Plaintiff. Plaintiff appealed. or permit the inﬂiction of. After surgery. Would the application of the doctrine of res ipsa loquitur have been appropriate in this case. Synopsis of Rule of Law.
Facts. The court reversed the dismissal of the Plaintiff’s action against the Defendants. including cases of medical or dental treatment and hospital care. sufﬁcient information to enable the patient to make an informed judgment whether to give or withhold consent to a medical or surgical procedure. Plaintiff underwent surgery to remove a tumor in her neck. Failure to do so constitutes professional misconduct. Children’s Hospital Medical Center Brief Fact Summary. the physicians treating her did not properly inform her of the possible consequences and should have been held liable. which is material to in order for the patient to make an intelligent decision whether or not to undergo a proposed procedure.” The court’s application of the doctrine carries particular signiﬁcance within the parameters of medical malpractice claims: “[w]here a plaintiff receives unusual injuries while unconscious and in the course of medical treatment. To what degree is a physician required to disclose medical information so as to enable a patient to give informed consent to a course of treatment? * What information is material.” 3. A physician owes his patient the duty to disclose in a reasonable manner all signiﬁcant medical information that the physician possesses or reasonably should possess. and the resulting injury foreseeable. Thus. . Plaintiff sought review. Issue. and thus necessary for a patient to be sufﬁciently informed? Held. constituted professional misconduct. all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. She brought suit. INFORMED CONSENT Harnish v. she would not have consented to the procedure. She maintained that if she had been apprised of the risk. It held that the surgeon’s failure to divulge to a competent adult patient. she asserted.to any voluntary action or contribution on the part of the plaintiff. In the course of the procedure her hypoglossal nerve was severed. contending that the purpose of the procedure was cosmetic. The Superior Court (Massachusetts) dismissed Harnish’s (Plaintiff) negligence claim after a medical malpractice tribunal concluded that Plaintiff’s evidence was inadequate. allegedly resulting in the critical loss of certain functions of her tongue. Synopsis of Rule of Law. It is applied in a wide variety of situations.
to assist him in starting the pump. Facts. In these circumstances. if known to him he should have realized involved an unreasonable risk of harm to the business invitee. (2) if the owner had no reason to believe the business invitee would discover the condition or realize the risk of harm. the inability of the physician to predict results. A possessor of land becomes subject to liability to a business invitee for any physical harm caused by any artiﬁcial or natural condition upon the land: (1) if. Harnish illustrates another basis for medical malpractice liability: a physician’s failure to provide information to the patient. including their risks and beneﬁts. . if that is the situation. Bigan Brief Fact Summary. the likely result of no treatment. whereby trenches were dug in order to remove coal deposits. and the available alternatives. the operator of another coal strip-mining operation. Defendant asked Yania. if that be the case. Defendant was engaged in a coal strip-mining operation. It dismissed her wrongful death and survival actions against Defendant.Discussion. the nature and probability of risks involved. Synopsis of Rule of Law. One trench contained several feet of water. THE NO DUTY TO ACT RULE Yania v. in what the physician knows or should know is his patient’s position. would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment. the irreversibility of the procedure. but only if.” NONFEASANCE 1. the beneﬁts to be reasonably expected. the Harnish court explained: “[i]n the context of informed consent. Plaintiff appealed a judgment from the Somerset County Court of Common Pleas (Pennsylvania) that sustained John Bigan’s (Defendant) demurrer. liability ﬂows from the defendant’s failure to obtain the plaintiff’s informed consent. and (3) if he invited or permitted the business invitee to enter upon the land without exercising reasonable care to make the condition reasonably safe or give adequate warning to enable him to avoid the harm. which arose from the death of the Plaintiff’s husband. materiality may be said to be the signiﬁcance a reasonable person. Joseph Yania (Yania). and Defendant had placed a pump in the trench to remove the water. the owner knew or could have discovered the condition which.” The court further addresses the question of what facts are material and would factor into the consideration of what constitutes informed consent: “[a]ppropriate information may include the nature of the patient’s condition. Regarding such consent.
Although Defendant enticed Yania to perform a dangerous act. Justice Benjamin R. there was no duty of rescue. On appeal. failed to warn him of the danger. However. Did the trial court err in ruling in favor of Defendant? Held. holding that Yania was a reasonable and prudent adult and performed an act. it was the performance of that act that caused Yania’s death. not the enticement. which he knew or should have known. Defendant taunted and urged Yania to jump into the water. the court stated that the “only inference deductible from the facts alleged in the compliant is that Bigan. On appeal.” The appellate court reasoned that had Yania been a child of tender years or a person mentally deﬁcient then it is conceivable that taunting and enticement could constitute actionable negligence if it resulted in harm. not a legal duty. The trial court sustained Defendant’s demurrer and dismissed Plaintiff’s actions. Yania jumped into the water and drowned. to contend that such conduct directed to an adult in full possession of all his mental faculties constitutes negligence is without merit. * The fact that Defendant saw Yania in a position of peril in the water. The trial court properly ruled for Defendant. by the employment of cajolery and inveiglement. Discussion. was perilous. No. Jones held that it was the performance of that act and not defendant’s conduct which caused Yania’s death. alleging that Defendant taunted her husband. . The Plaintiff initiated wrongful death and survival actions against Defendant. The court held that absent a legal responsibility to rescue Yania for placing him in the perilous position. caused such a mental impact on Yania that the latter was deprived of his volition and freedom of choice and placed under a compulsion to jump into the water. the court afﬁrmed. and failed to rescue him. Issue. imposed upon him a moral duty.According to Plaintiff.
She went unconscious and started vomiting while unconscious. Accordingly. EXCEPTIONS QUALIFICATIONS AND QUESTIONS Wakulich v. Elizabeth lost consciousness. The court found that Michael and Brian Mraz demonstrated an undertaking concerning decedent’s well-being by carrying decedent downstairs. appealed on the ground that the complaint stated sufﬁcient facts to establish a cause of action based on defendants’ failure to exercise due care after voluntarily undertaking to care for plaintiff’s decedent after she became unconscious. After drinking the entire bottle.2. Sixteen-year-old Elizabeth Wakulich consumed an quart of Goldschlager alcohol after Michael and Brian Mraz offered her money as a prize to do it. placing her on a couch. the court of appeals held that the trial court erred in dismissing counts based on voluntary undertaking. One who voluntarily undertakes to render services to another is liable for bodily harm caused by his failure to perform such services with due care or with such competence and skill as he possesses. One who voluntarily undertakes to render services to another is liable for bodily harm caused by his failure to perform such services with due care or with such competence and skill as he possesses. Whether defendants’ actions demonstrated a voluntary undertaking concerning decedent’s well-being such that they had a duty to exercise due care in the performance of that undertaking. Plaintiff. They did not seek medical attention and prevented others from calling 911 or seeking medical attention. Issue. Although the defendants claimed that none of their acts indicated a voluntary assumption of responsibility for the decedent. She died as a result and her parents sued. and placing a pillow under her head. . According to the complaint. however. The complaint was dismissed on the ground that Illinois case law eliminated liability of social hosts for providing alcohol. The court of appeals agreed. Later their father ordered she be removed from the home. provided a quart of Goldschlager alcohol to 16-year-old Elizabeth Wakulich and offered her money as a prize if she could drink the entire bottle without losing consciousness or vomiting. checking on her. Synopsis of Rule of Law. Michael and Brian Mraz. the court disagreed. They later checked on her and removed her vomit-soaked blouse and put a pillow under her head to prevent aspiration. Mraz Brief Fact Summary. Facts. changing her vomit-saturated shirt. Held. 21 and 18 years old. the boys put her in the downstairs family room where they observed her vomiting profusely and making gurgling sounds. so they took her to a friend’s home then to the hospital where she was pronounced dead. The boys checked on her and moved her to the couch but refused to get medical assistance. Yes.
but the court of appeals reversed on the ground that Siegrist had not assumed any duty to aid Farwell. where he left him in the back of the car after an attempt to arouse him. and he could have rendered assistance without endangering himself. 18. but Farwell was severely beaten. when the actor knows or should know that those services will reduce the risk of harm to the other. The Restatement Third of Torts § 43 recognizes that an actor who undertakes to render services to another. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiff’s interests. if defendant knew or should have known of the other person’s peril. 16.Discussion. The Supreme Court of Michigan reversed and reinstated the jury verdict. Synopsis of Rule of Law. put ice on his head and then drove around for two hours. Plaintiff appealed a ruling from the Court of Appeals of Michigan. Farwell died three days later from the beating and there was evidence that prompt medical attention could have prevented this. had a few beers while waiting for a friend to ﬁnish work. and his friend David Siegrist. Farwell v. Facts. Courts have been slow to recognize a duty to render aid to a person in peril. he knew or should have known of the peril the deceased was in. The jury found for the Plaintiff in an action for Farwell’s death. or if the other person relies on the actor’s using reasonable care in the undertaking. . and six boys chased Farwell and Siegrist back to a trailer lot. ﬁnding that Defendant had an afﬁrmative duty to aid. and neither knew nor should have known of the need for medical treatment. When such a duty has been found. which held that Defendant did not assume a duty to aid his companion. he is required to render reasonable care under all circumstances. in such a case. Siegrist found him under a car. in a wrongful death action for negligence. The girls complained to friends that they were being followed. it has been predicated upon the existence of a special relationship between the parties. Farwell “went to sleep” in the back of the car and around midnight Siegrist drove him to his grandparents’ home. Keaton Brief Fact Summary. has a duty to exercise reasonable care in rendering those services if the failure to exercise reasonable care would increase the risk of harm beyond which would have existed without the undertaking. Siegrist escaped. Yes. Did the appellate court err in reversing the trial court’s ruling in favor of Plaintiff? Held. Richard Farwell. Issue. When teenage girls walked by they attempted conversation without success. stopping at drive-in restaurants. because he had a special relationship with the deceased.
but none of them emergency calls.Discussion. Meanwhile. Under these circumstances. on appeal. Mairs called his girlfriend. to say that Siegrist had no duty to obtain medial assistance or at least to notify someone of Farwell’s condition and whereabouts would be “shocking to humanitarian considerations” and ﬂy in thecae of “the commonly accepted code of social conduct. Swanson saw Podias lying in the roadway and because he saw no movement and heard no sound. The mere knowledge of serious peril threatening death or great bodily harm to another. who died as a result of injuries sustained in both accidents. Instead. Swanson and Newell were 18-year-olds drinking at a friend’s home. the group left the scene of the accident and did not call for emergency assistance. Podias v. Facts. The three drove south for a short while until Mairs car broke down. creates a sufﬁcient relation to impose a duty of action. Even though all three had cell phones. a vehicle operated by Patricia Uribe ran over Podias. After Mairs hit a motorcyclist.” Therefore. . and he could have rendered assistance without endangering himself. The victim. Mairs lost control of the car. no one called for assistance. Swanson placed 17 phone calls in the next one-and-a-half hours and Newell made 27 phone calls in the next twoand-a-half hours. told Mairs and Newell that he thought Mairs had killed the cyclist. They decided to leave with Mairs driving while it was raining and the road was wet. ﬁnding that Defendant had the afﬁrmative duty to aid. which an identiﬁed defendant might avoid with little inconvenience. Swanson instructed Mairs “not to bring up his name or involve him in what occurred”. left lying in the road. who was badly beaten and unconscious. Mairs Brief Fact Summary. Mairs pulled over in the bushes and waited for his girlfriend to arrive. he knew or should have known of the peril the deceased was in. because he had a special relationship with the deceased. and went over the guardrail. the court reversed and reinstated the jury verdict. Implicit in such a common undertaking is the understanding that one will render assistance to the together when he is in peril if he can do so without endangering himself. Synopsis of Rule of Law. was hit by another vehicle and died from injuries sustained in both accidents. in the back seat of his car that no one would ﬁnd him before morning. As such. Siegrist knew or should have known when he left Farwell. After ten minutes all three got back in the car and leave the scene. Defendant Mairs was driving a car drunk which held defendant passengers Swanson and Newell. while Swanson and Newell ran off into the woods. a special relationship existed between the parties. Defendants Mairs. struck a motorcycle driven by Plaintiff Podias. Swanson in fact dissuaded anyone from calling 911. Farwell and Siegrist were companions on a social venture. The trial court granted summary judgment in favor of Swanson and Newell and plaintiff appealed.
Whether passenger defendants. the harm to the victim could have been prevented with relative ease. . creates a sufﬁcient relation to impose a duty of action. when the actor knows or should know that those services will reduce the risk of harm to the other. Plaintiffs ﬁled an action for nonfeasance. Ordinarily. NONPERFORMANCE OF PROMISES A. However. the appeals court reversed the trial court’s granting summary judgment for defendants and remanded. In addition. Held. nevertheless had a duty to prevent bodily harm to the victim of the accident. he is only responsible when he attempts to act and performs incorrectly. UNENFORCEABLE PROMISES Thorne v. The Restatement Third of Torts § 43 recognizes that an actor who undertakes to render services to another. The risk of harm or death to Podias from the defendants’ failure to summon help was readily foreseeable. Deas Brief Fact Summary. has a duty to exercise reasonable care in rendering those services if the failure to exercise reasonable care would increase the risk of harm beyond which would have existed without the undertaking. 3. Accordingly. Judgment was granted to the Plaintiffs. One who takes on a responsibility gratuitously is not responsible for consequences if he fails to act. or if the other person relies on the actor’s using reasonable care in the undertaking. Discussion. Yes. whose actions did not result in the car accident.Issue. Synopsis of Rule of Law.” The mere knowledge of serious peril threatening death or great bodily harm to another. a duty of afﬁrmative action may be found where there is some “deﬁnite relation between the parties of such a character that social policy justiﬁes the imposition of a duty to act. mere presence at the commission of a wrong is not enough to charge one with responsibility to go to the aid of another human being who is in danger of losing his life. which an identiﬁed defendant might avoid with little inconvenience. All three had cell phones and used them for their own purposes rather than to call for emergency assistance. The court found that the record contained facts from which a reasonable jury could ﬁnd defendants breached a duty which proximately caused Podias’ death. Defendant appealed.
The court held that only when a party engages in a course of action on behalf of another. He would be responsible for a misfeasance. can a defendant be held liable for failing to act when he has promised to do so gratuitously? Held. and does so incorrectly is he held liable. ENFORCEABLE PROMISES Spengler v. and the vessel was wrecked near the Carolina coast. In May 2004. Plaintiffs brought an action against Defendant for failure in his promise to insure a boat that they jointly and equally owned. The primary distinction is between the laws of torts and contracts. Prior to a planned sailing from New York to North Carolina. Inc. left to the conscience of the individual. ADT received an alarm from the mother. Where an actor’s only violation is that of a broken promise to perform a contract. In October 2005. Issue. which he requested due to her cancer of the larynx leaving her unable to speak. and are.Facts. liability. Defendant ADT installed and monitored a call button alarm in the home of plaintiff Spengler’s mother. must rest solely upon the breach of the contract and a tort cause of action is not available. At issue was whether there existed grounds for an action in tort. In tort law. He failed to do so. which allowed her to activate it in distress prompting ADT to dispatch an ambulance. as rights of imperfect obligation.” B. Brief Fact Summary. but due to an error in the address that ADT gave to the ambulance dispatchers. Plaintiff Spengler signed a contract with Defendant ADT to install and monitor a security alarm at the home of his mother Veronica Barker. In October 2005. The court further stated that one cannot sue in tort for broken promises. As the court notes. By the time they got there it was too late and Barker died. Defendant promised Plaintiffs that he would insure the vessel. the ambulance was delayed 16 minutes. therefore. but not for a nonfeasance. No. “[t]here are many rights of moral obligation which civil laws do not enforce. The court asserts that only when one begins a job and he does so incorrectly can damages be assessed. Facts. ADT received an alarm from Barker. Discussion. if any. and there exists no independent duty outside the contract to perform. but due to an error in the address that ADT gave to the ambulance dispatchers . Synopsis of Rule of Law. Plaintiffs brought suit for “nonfeasance” alleging that Defendant was liable for having failed to insure the vessel. The agreement included a call button alarm that Barker could activate when in distress. Spengler sued on both contract and tort theories but the tort theory was dismissed. ADT Security Services.
By the time they got there. liability. According to this case. Whether a breach of contract may also give rise to a tort claim where an actor’s duty to perform arises purely under the contract. owes a duty of reasonable care in carrying out that undertaking if (a) the failure to exercises care increases the risk of harm beyond that which would have existed without the undertaking. it does not appear that Michigan common law follows the Restatement approach. not Michigan common law. Barker’s heart rhythm was asystolic. no tort claim was available to Spengler. Discussion. The Restatement 3d of Torts: Liability for Physical Harm § 42 (2005) states that an actor who undertakes to render services to another. No. the court of appeals declined to consider Spengler’s argument related to the unconscionability of the $500 liability cap because it was raised for the ﬁrst time on appeal. The court of appeals determined that in this case. The court also granted summary judgment to Spengler on the contract claim. if any. or (b) the other person relies on the undertaking. This provision might have helped Spengler.in response to the alarm. ﬁnding that ADT breached the contract and limiting damages to the $500 amount stated in the contract. and thus was not proper on appeal. must rest solely upon the breach of the contract. and died in the hospital. ﬁnding that ADT breached no duty independent of the contract. Spengler sued ADT alleging that by providing an erroneous address to the dispatcher. when the actor knows or should know that the services will reduce the risk o physical harm to the other. Moreover. ADT committed misfeasance subjecting it to tort liability. the ambulance was delayed 16 minutes. Spengler appealed arguing that the court erred in ﬁnding the case sounded in contract instead of tort. she never regained consciousness. . and that the $500 limitation of liability clause was unconscionable and unenforceable. Held. Issue. Where an actor’s only violation is that of a broken promise to perform a contract. The district court granted summary judgment for ADT on the tort claim. and there exists no independent duty outside the contract. ADT’s obligation to promptly and correctly dispatch emergency medical services to Barker’s home emanated only from the contract. and thus ADT did not have an independent legal duty to perform. Accordingly.
and voluntary custodian/protectee. Plaintiff argued that Iseberg was an agent of Gross and Frank. but neither told Iseberg. if the risk is reasonably foreseeable. Frank started a corporation. lost his entire investment and told two partners that he wanted to harm Iseberg as a result. Slavin. DEFENDANT’S RELATIONSHIP WITH THE PLAINTIFF Iseberg v. in order to complete that transaction. When one of these special relationships exists and an unreasonable risk of harm arises within the scope of that relationship. Plaintiff Iseberg and defendants were in a partnership that eventually dissolved. VAL and LFD formed a partnership with each company contributing funds to purchase the land. Slavin told Gross several times that he wanted to harm Iseberg and then commit suicide. No. or warn him of. Whether Gross and Frank had a special relationship with Iseberg such that they had a duty to act reasonably to protect him from. In early 2000. or warn him about. The two partners had never warned Iseberg. killing him. Slavin rang Iseberg’s doorbell and shot him four times when he answered the door. LFD. and an unreasonable risk of harm arises within the scope of that relationship. Slavin lost his entire investment. Slavin’s attack. Issue. or to render aid when it is known that such aid is need Facts. Slavin and Mr. Held. The law only imposes a duty to act where a “special relationship” exists between the parties. however. or to render aid when it is known that such aid is needed. Gross Brief Fact Summary. One of the partners. Iseberg and one Mr. who was in the process of acquiring land to develop into a strip mall. Historically there have been four such relationships: common carrier/passenger. leaving VAL with sole ownership of the property. They contacted Plaintiff Iseberg. innkeeper/guest. giving rise to a duty to warn of Slavin’s threats. such risk. business invitor/invitee. a lawyer and real estate developer. if the risk is reasonably foreseeable. an obligation may be imposed on the one to exercise reasonable care to protect the other from. Synopsis of Rule of Law. Mr. Slavin became mentally unbalanced and focused his anger on Iseberg. did not ﬁnd a principal/agent relationship between the defendants and Iseberg at the . Gross formed a business together called Vernonshire Auto Laundry (“VAL”). The court. When a special relationships exists between parties. an obligation may be imposed on the one to exercise reasonable care to protect the other from such risk. Gross told Frank about these threats. Slavin rang the doorbell at Iseberg’s home and shot him four times when he answered the door. Much time passed and because the property did not sell. A dispute arose among the partners and the partnership was dissolved. A few years later.THE DUTY TO PROTECT FROM THIRD PERSONS 1.
This. Issue. police. Dr. Not ﬁnding any other special relationship. The court held that Plaintiffs could amend their complaint so as to bring a valid cause of action against therapists and Regents of University of California for breach of duty to exercise reasonable care. In October 1969. and the Regents of University of California (Defendants). DEFENDANT’S RELATIONSHIP WITH DANGEROUS PERSONS Tarasoff v. The Superior Court of Alameda County (California) dismissed Plaintiffs’ action (sustaining a demurrer to Defendant’s second amended complaint) for failure to state a valid claim against the therapists. Plaintiffs asserted two grounds for their action: the failure to conﬁne Poddar. he had conﬁded to his therapist. a psychologist employed by University of California. liability is imposed only if the defendant bears some special relationship to the dangerous person or to the potential victim. and were immune from suit. Prosenjit Poddar. Discussion. Facts. and failure to warn Tarasoff or her parents. Regents of University of California Brief Fact Summary. Plaintiffs.time of the injury. 2. but then released him. contended that only a short time prior. Synopsis of Rule of Law. . When the avoidance of foreseeable harm requires a defendant to control the conduct of another person. the court held that defendants had no duty to protect Iseberg. Moreover. Did Defendants owe a duty to the victim thus making them liable for the harm that ensued? Held. in spite of his expressed intentions to kill Tarasoff. This case stands for the proposition that an afﬁrmative duty to warn or protect against the criminal conduct of a third party may be imposed on one for the beneﬁt of another only if there exists a special relationship between them. the complaint did not allege that the risk of harm arose from the agency relationship. Defendants maintained that they owed no duty of care to the victim. Moore had warned campus police of Poddar’s intentions. Tatiana Tarasoff’s parents (Plaintiffs) asserted that the four psychiatrists at Cowell Memorial Hospital of the University of California had a duty to warn them or their daughter of threats made by their patient. Plaintiffs sought review. A defendant owes a duty of care to all persons who are foreseeably endangered by his conduct. Poddar had expressed his intention to do so. with respect to all risks that make the conduct unreasonably dangerous. or to warn of such conduct. and that the police had brieﬂy detained him. Prosenjit Poddar (Poddar) murdered Tatiana Tarasoff (Tarasoff). Tatiana’s parents. They further alleged that Dr. they alleged. Lawrence Moore.
. render a perfect performance. As a general proposition. ﬁrst noting “[o]nce a therapist determines. or under applicable professional standards reasonably should have determined. immunity was afforded to the police. “A duty of care may arise from either (a) a special relation between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct. and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances. the court concluded. then the hospital must use reasonable care in the circumstances to prevent such harm. the therapist need only exercise that reasonable degree of skill. whether or not such discretion was abused. The court began its analysis by addressing the “special relationship” required that imposes a duty on an individual to control another. he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.” * The court had to address the contending policy consideration. the Supreme Court of California addressed a complicated area of tort law concerning duty owed. Their analysis required a balancing test between the need to protect privileged communication between a therapist and his patient and the protection of the greater society against potential threats. “[w]hen a hospital has notice or knowledge of facts from which it might reasonably be concluded that a patient would be likely to harm himself or others unless preclusive measures were taken. “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him. “[a] physician may not reveal the conﬁdence entrusted to him in the course of medical attendance unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community.2 affords immunity only for ‘basic policy decisions. In Tarasoff. in making that determination.” Thus. sufﬁcient to impose a duty to warn her of her Poddar’s intention. “[i]n attempting to forecast whether a patient presents a serious danger of violence. There is a line between discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not.” * Finally. a court does not require that a therapist. in each instance the adequacy of the therapist’s conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. that a patient poses a serious danger of violence to others.* The court concluded that the police did not have the requisite special relationship with Tarasoff. the court explained that. Section 820. or (b) a special relation between the actor and the other which gives to the other a right of protection.” This consideration was critical to the circumstances in Tarasoff.” More speciﬁcally.’” Thus. pursuant to state statute. the court explained. While the discharge of this duty of due care will necessarily vary with the facts of each case. Discussion. with respect to the potential liability of the police. knowledge.
One who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. . Did the former common law rule shielding bars and restaurants that serve alcohol from civil liability apply? Held. In a negligence action. Brief Fact Summary. Synopsis of Rule of Law. Velvet Dove Restaurant. Facts. Plaintiffs seek damages against Velvet Dove Restaurant.” Having established the possibility of liability. Inc. the court would not rule out. noting the change in the trend of tort law with respect to alcohol consumption and driving. the court. . breach. Defendant served alcohol to a group of minors that included Jeff Johnson (Johnson). Plaintiff brought suit. or contributed to his incumbent state of intoxication that caused a one-car accident in which Plaintiff was injured. No. (Defendant) alleging that Defendant served alcohol to clearly intoxicated persons. that the restaurant’s sale of the alcoholic beverage to the noticeably intoxicated patron could have been the proximate cause of the alleged injuries. the court included an analysis. Noting that the former common law rule was an anachronism and unrealistic within the framework of modern tort law. Plaintiffs alleged that the alcohol Defendant served to Johnson either caused his intoxication. With respect to causation. while noting that the Legislature had not spoken directly to the subject of liability under the kinds of circumstances in question. nevertheless saw ﬁt to “establish a civil cause of action by an injured third person against a commercial vendor of liquor for on the premises consumption. A jury could have found that the restaurant could have reasonably foreseen and anticipated the possible consequences in selling alcohol to a clearly intoxicated customer who intended to drive and that the sale may have been a proximate cause of the alleged injuries. overturning the lower courts’ decisions. causation and harm applicable to all negligence actions. Inc. the Supreme Court of Oklahoma. of duty. . Issue. The trial court dismissed the claim. and those who provide alcohol.” Thus. Discussion. who the Defendant knew had driven the group to the restaurant. observed “duty and liability are matters of public policy . The District Court of Oklahoma County (Oklahoma) dismissed the complaint for failure to state a claim upon which relief could be granted Plaintiffs. This would be an issue of fact for the jury. The court in Brigance. under the standard framework. discarded it. Plaintiffs appealed. subject to the changing attitudes and needs of society.Brigance v. as a matter of law.
Grube (Appellee) was employed by Appellant. and attempted to render aid to the victims. seeking recovery for negligent inﬂiction of emotional distress. track. Appellee sustained no physical injuries in the collision.Thus.S. Facts. Did the Appellee meet the “zone of danger test” outlined in Conrail v. “a plaintiff must still show the illegal sale of alcohol led to the impairment of the ability of the driver which was the proximate cause of the injury and there was a causal connection between the sale and the foreseeable ensuing injury. A jury found for Appellee. In the accident. FELA provides that every common carrier by railroad shall be liable in damages to any person suffering injury or death while he is employed by such carrier for such injury or death resulting in whole or in part from the negligence of any of the ofﬁcers. 532. . and reversed the judgment.00 damages. Appellee brought a claim against his employeer. Union Paciﬁc Railroad Brief Fact Summary.R. Gottshall. machinery.C. and he was was awarded $121. or by reason of any defect or insufﬁciency. Synopsis of Rule of Law. in its cars. wharves.S. and thus. boats. Section: 51 et seq. (Appellant) company challenged the decision. works.S. 512 U. A train Appellee was operating collided with a car that had gotten trapped in a Kansas railroad crossing. He later testiﬁed that he became physically ill. or employees of such carrier. Issue. and subsequently suffered emotional injury. appliances. Paciﬁc Union R.” NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 1. Appellant sought review. The court concluded that the employee failed to establish an essential element of the zone of danger test. THE EMOTIONAL DISTRESS CLAIM Grube v. due to its negligence. roadbed. engines. The Wyandotte District Court (Kansas) held in favor of Appellee in an action to recover damages for negligent inﬂiction of emotional distress under the Federal Employer’s Liability Act (FELA) 45 U. may he successfully bring a cause of action under FELA for emotional injury when such injury was not related to any physical trauma? Held. one person died and two were severely injured. agents. or other equipment.500.
though they do not suffer any physical impact. society. does not necessarily require that there be fear for one’s personal safety expressed contemporaneously with a collision. Plaintiffs.Discussion. at issue here. the zone of danger test. “[u]nder this test. However. and affection.” With regard to the second. a plaintiff seeking damages for emotional injury stemming from a negligent act must have contemporaneously sustained a physical impact (no matter how slight) or injury due to the defendant’s conduct. a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself whereas a worker outside the zone will not. 512 U. to determine the viability of a claim.” Interpreting the Conrail decision narrowly. Dixie Medical Center Brief Fact Summary. Daniel Boucher. but that may manifest itself in physical symptoms. who suffered emotional distress because of another’s negligence. Plaintiffs appealed. THE LOSS OF CONSORTIUM CLAIM Boucher v. following surgery. Synopsis of Rule of Law. cooperation. . Accordingly.S. Washington County (Utah) dismissed claims against Defendant doctors for negligent inﬂiction of emotional distress and loss of ﬁlial consortium in relation to injuries sustained by Mr. and Ms. “[t]he injury from negligent inﬂiction of emotional distress is mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly brought about by a physical injury. fear for one’s safety is an essential element of the zone of danger test and must be expressed at or near the time of the danger in order for plaintiff to prevail in an action brought under the Federal Employer’s Liability Act. may recover damages only if they are placed in actual physical peril and fear for their own safety. if one member of the relationship is tortiously injured. the court drew a ﬁne distinction: “The zone of danger test . 532. Loss of consortium claims are based on the recognition of a legally protected interest in personal relationships.” The Conrail court prescribed three tests. . the Grube court again quoted Conrail. The court in Conrail explained. the non-injured party has a cause of action to recover for damage to their relational interest. .” 2. “[u]nder the physical impact test. Bouchers’ son (Plaintiffs). the primary authority with regard to FELA interpretation. Gottshall. As that court stated. The Fifth District Court. the loss of the injured party’s company. The court in Grube cites Conrail v.
The loss of a child’s consortium may well affect the physical well-being of parents.” Discussion. The court declined to extend loss of consortium rights to parents of a tortiously injured child. Loss of consortium claims presently allows a plaintiff to recover damages for such things as loss of companionship and other forms of emotional support. concluding. usually known as a “loss of consortium” claim. The court concluded that the parents did not allege sufﬁcient facts to state a claim of negligent inﬂiction of emotional distress as the claim was deﬁned in Utah. and emotional security from outrageous conduct.” The dissent also describes the nexus between physical and emotional well-being: “[m]oreover. “[c]ertainly. The decision of the lower court was afﬁrmed. Issue. But that is not what this case is about. such as marital and ﬁlial consortium in wrongful death actions.Facts. Was the harm suffered by the parents of a severely injured child the type recognized so as to fulﬁll the elements of a claim for negligent inﬂiction of emotional distress? * May parents bring a cause of action for loss of consortium in connection with the tortious injury of their child? Held. Such claims were eventually extended to include recovery for more than the economic loss of the of the injured spouse’s household services. The dissent takes issue with the majority’s rationale for precluding parent’s recovery on the theory of loss of consortium for tortious injury to their children. “[t]he law protects all kinds of human values that cannot be measured by a slide rule. the law need not recognize causes of action for ephemeral injuries or for every form of personal distress that arises from living in a necessarily rough and tumble world.” The dissent acknowledges the need for circumspection concerning the adoption of litigious redress for harm such as the type suffered in this case. . medical science and psychology have clearly established that a person’s physical health and emotional health are often closely related and that emotional and psychological trauma may have a cause and effect relationship on physical health. Plaintiffs brought actions against the hospital for negligent inﬂiction of mental distress and loss of consortium. privacy. The dissent asserts. There is every reason to believe that the loss in this case is both permanent and profound. Courts almost universally permit a spouse to recover against a person who seriously injures the other spouse. he lapsed into a coma from which he emerged with severe brain damage and quadriplegia that required extensive medical care for the rest of his life. reputation. Dissent. To adopt such a cause of action would open the ﬂoodgates of litigation. Daniel Boucher was admitted to the hospital with a severely damaged hand. After surgery.
nor did it extend to injuries involving adult or emancipated children.. 3. This right of recovery. The trial court awarded both compensatory and punitive damages. When a plaintiff can demonstrate a physical injury caused by the defendant’s negligence. recovery for emotional distress caused by that injury is available as an item of parasitic damages. The waste was deposited in a local landﬁll. but afﬁrmed the main elements. therefore. the father of a tortiously injured child did have a cause of action to recover the value of the child’s loss of services and the medical expenses incurred on the child’s behalf. The appellate court modiﬁed the awards. based on their fear of developing cancer as a result of their exposure to toxic waste the company had allegedly permitted to seep into groundwater. and were awarded damages.e. this action was based on a father’s right to his minor children’s services and a father’s obligation to pay his minor children’s medical expenses. Brief Fact Summary. Plaintiffs brought actions for negligent and intentional inﬂiction of emotional distress. allowing a claim only if the plaintiffs are placed in actual physical peril and fear for their own safety. “However.” The court drew a distinction as to basis for such recovery. The company operated a tire manufacturing plant in Northern California and subcontracted with another company to dispose of industrial waste. “[a]t common law. nor has any widely accepted development occurred that allows recovery for the loss of a child’s society and affection. . Synopsis of Rule of Law. Firestone Tire & Rubber Co.As the court in Boucher observed. Plaintiffs brought actions for negligent and intentional inﬂiction of emotional distress. Facts. did not extend beyond these two elements of damages. The court applied the zone of danger test. anxiety speciﬁcally due to a reasonable fear of a future harm attributable to the injury may also constitute a proper element of damages. TOXIC EXPOSURES Potter v. In ordinary negligence actions for physical injury. “no widely accepted development has occurred that allows recovery in cases involving adult children. The company sought review.” The issue surrounding the negligent inﬂiction of emotional distress claim was more straightforward. The Firestone Tire & Rubber Co.” and. (Defendant) appealed. i. The Court of Appeals of California afﬁrmed the trial court’s award in favor of respondent residents on their claims for negligent and intentional inﬂiction of emotional distress. the court concluded.
is usually referred to as “pain and suffering. the plaintiff is exposed to a toxic substance which threatens cancer. . the present injury. fraud. The Supreme Court of California held that because the toxic exposure resulted from oppression. the court articulated a two-point standard for establishing a claim of negligent and intentional inﬂiction of emotional distress with regard to toxic tort liability: (1) as a result of the defendant’s negligent breach of a duty owed to the plaintiff. with rare exceptions. pursuant to state statute the residents could recover without having to show that it was more likely than not that they would develop cancer from the exposure. which results from fear that an already existent injury will lead to the future onset of an as yet unrealized disease.Issue.” The court explained that. or reasonably expected to ﬂow from. or malice.” Mental distress. corroborated by reliable medical or scientiﬁc opinion. not simply damage to property or ﬁnancial interests. Such emotional harm. recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. constitutes an element of recovery only where such distress is either foreseeable or is a natural consequence of. “[u]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object. deﬁned as parasitic to the plaintiff’s claim for physical harm. Discussion. compensation for emotional distress is available to plaintiffs only following physical injury. and (2) the plaintiff’s fear stems from a knowledge. a breach of the duty must threaten physical injury. Even then. Held. that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure. As a general rule. At issue was whether the absence of a present physical injury precluded recovery for emotional distress engendered by fear of cancer. In sum.
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