TORTS I - CASE BRIEFS - LONG [FALL 2011

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I. INTENTIONAL TORTS

1. BATTERY

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.

On appeal. Facts. Plaintiff was injured in the fall. 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. The later contends that as she was about to sit on a lawn chair. Plaintiff alleged that she came out into the backyard to talk with her sister and that. what constitutes willful and unlawful intent? Held. when she was about to sit down in a wood and canvas lawn chair. he could not get the chair under Plaintiff in time to keep her from falling. and while a minor who has committed a tort with force is liable as any other would be. DEFINING INTENT Garratt v. Five year-old Brian Dailey (Defendant) visited Naomi Garrett Plaintiff at her sister Ruth’s home. If so. the court was to change the judgment. He maintained that. Dailey pulled it out from under her causing her injury. In an action for battery. Intentionality is central to the tort of battery. Dailey Brief Fact Summary. due to his small size and lack of dexterity. The concept of “intent” denotes a defendant’s desires to cause the consequences of his actions. Discussion. but whether he intends to cause the consequences of his act. five year-old Dailey (Defendant) deliberately pulled the chair out from under her. 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 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. Synopsis of Rule of Law. the Supreme Court of Washington remanded for a factual determination of Defendant’s intention.C. Issue. The Superior Court for Pierce County (Washington) found in favor of defendant in an action for assault and battery and Plaintiff appealed. The trial court ruled for the Defendant. The distinction to be drawn is not merely whether the defendant intends to commit the act in question. .

such harmful or offensive contact must result. she struck Plaintiff in the jaw. However. an adult assisted living facility. the actor would be held liable for any resulting injuries. Held. This case is a challenge to the decision of the Court of Appeals of Colorado. like other mental states (such as infancy). Discussion. or place the other in apprehension of such contact. however it may. Shortly after having taken residence at Beatrice Hover Personal Care Center. 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. is whether an intentional tort requires some proof that the tortfeasor not only intended to contact another person. but also intended that the contact be harmful or offensive to the other person. a professional caregiver at the center. . If. as trier of fact. Facts. and would occasionally act aggressively toward others. Everly’s granddaughter. In Plaintiff’s actions for assault and battery. the trial judge instructed the jury that Everly’s suffering from Alzheimer’s did not prevent a finding that she acted intentionally.White v. an actor is generally subject to liability when he or she acts intending to cause harmful or offensive contact to another. be viewed as one factor in the totality of circumstances upon which a jury relies to make its determination. began to exhibit erratic behavior. The court reversed the judgment and remanded. An examination by a physician revealed that Everly was suffering from Alzheimer’s disease. In one instance. the actor does not have to intend the harm that actually results. Synopsis of Rule of Law. however. Everly. She became easily agitated. 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. Further. Issue. * Mental illness is not a defense to an intentional tort. and 2) when the defendant has substantial certainty that harm will result. eighty-three year-old Helen Everly (Defendant) struck Sherry Lynn Muniz (Plaintiff). With respect to battery. At issue. The jury found in Defendants’ favor having concluded that Everly lacked the requisite intent to sustain a cause of action. may conclude that a mentally deficient person is liable for tortious conduct. an elderly woman who was placed in a personal care center. Plaintiff subsequently brought suit against Barbara White. 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 blow to the victim was intended to simply bruise the victim but serious trauma resulted. for example. Muniz Brief Fact Summary. and Everly (Defendants). even if her reasons or motive were irrational.

Assault is found where one intends to cause a reasonable apprehension of imminent harmful or offensive contact in another. among other torts. and impotency. which she declined.  Accordingly. Medley Brief Fact Summary.  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. inability to concentrate. and the Indiana Supreme Court reversed on the assault count.2. invited her to have a soda with him and to come to his home to talk further. ASSAULT Cullison v. and mother. the Indiana Supreme Court reversed the summary judgment on the assault count. or to surround him with a display of force. and as such. surrounded him.  Plaintiff Cullison met 16-year-old Sandy Medley in a grocery store parking lot. Facts. she and her family came to Cullison’s home. the apprehension must be one that would be aroused in the mind of a reasonable person.  Ernest had a revolver in a holster strapped to his thigh.  As a result of this incident.  Although no one ever touched Cullison. Plaintiff Cullison met a 16 year old girl in a parking lot then invited her to his home for a soda.  It is a touching of the mind.  Synopsis of Rule of Law.  The trial court granted summary judgment in favor of defendants on all claims. Yes. .  In this case. Cullison sought psychological help to deal with nervousness.  Assault occurs when one intentionally creates the reasonable apprehension of imminent harmful or offensive contact in another.  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. 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. sleeplessness. the appeals court affirmed. her father Ernest. her brother. and verbally threatened him with bodily harm if he did not leave the girl alone while her father was armed with a holstered revolver.  Cullison experienced mental trauma and distress as a result of the incident and sued for assault. depression. Held. Issue.  Whether threatening language coupled with a holstered pistol rises to the level of assault.  He was confronted by Sandy Medley.  He sued the Medleys for assault.  That night. 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. if not the body.  Additionally. brother-in-law.  Sandy called him a “pervert” and her mother berated him. the damages which are recoverable are for mental trauma and distress.  It is assault to shake a fist under another’s nose.

if such distress results in bodily harm. unless together with acts or circumstances they put the other in a reasonable apprehension of imminent harm. * 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? . Long Brief Fact Summary. including negligence and intentional infliction of emotional distress. Issue. whether or not such distress results in bodily harm. Facts. the imminence element does not mean harm must be immediate. resulting from a sexual relationship. Plaintiff maintains that. among other things. 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.  Moreover. (2) conduct that is also extreme and outrageous. a plaintiff must show: (1) conduct that is intentional or reckless. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Homer v. When extreme and outrageous conduct is directed at a third person. He brought suit alleging. (3) a causal connection between the wrongful conduct and the emotional distress. his wife’s personality changed leading to their divorce. The Circuit Court for Howard County (Maryland) dismissed the tort claims brought by Plaintiff alleging breach of contract and tort claims. Synopsis of Rule of Law. According to Plaintiff’s contentions. after several years of marriage his wife was hospitalized for severe depression.  It is important to note that typically words alone do not rise to the level of assault. intentional or reckless infliction of emotional distress. To recover in an action for intentional infliction of emotional distress. 3. or negligence. she began seeing a therapist who. used confidential information and took advantage of her condition to seduce her. but that there will be no significant delay in effectuating the harm. Plaintiff alleges. or some other intentional tort. 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. or (2) to any other person who is present at the time.Discussion. and (4) that the emotional distress is severe. as a result. During this period.

the court addressed first the prima facie elements of a negligence action: “[t]o recover in an action for negligence.” The court dismissed the claim because the duty owed was to the patient. In other words. While noting that such actions are not necessarily barred under tort law. the third party is (1) a close relative of the primary victim. “[w]here extreme and outrageous conduct is directed at a third person.Held. 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. As the court explained. this is an area where transferred intent applies. courts have award a third-party victim recovery only if. by extreme and outrageous conduct. in addition to proving the prima facie elements. 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. Homer addresses an extended issue with regard to the intentional infliction contention: the situation where a third person is alleging the wrongful action. explaining. or (2) to any other person who is present at the time. It should be noted that this is the only area of tort where “reckless” infers intent. With regard to the negligence claim. whether or not 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. “[t]hat is precluded. and (3) the defendant is aware of the close relative’s proximity. Discussion. the court recognized that the plaintiff in this case was in essence attempting to sue for “alienation of affections. and not to her spouse.” Generally. the court states.” Addressing the action for breach of contract. must be one that the law is prepared to recognize.” . intentionally or recklessly causes the victim severe mental distress. That duty. however. the plaintiff must show that the defendant owed a duty to him which was breached. is the refitting of the abolished actions into other forms. thus Plaintiff had no standing to sue. (2) present at the scene of the outrageous conduct against the primary victim. moreover. if such distress results in bodily harm. even if the spouse is the one who initially employed the therapist and is paying the therapist’s fees. Intentional infliction of mental distress exists when the defendant. 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.

After approximately an hour and a half. or (4) improper assertion of legal authority. and could not re-enter the store. (2) force or threat of immediate force against the victim. however. Facts. The employees acknowledged their mistake to the McCanns. [See Restatement Section:Section: 35-45A. Discussion. claiming that Plaintiff’s children had been previously caught shoplifting. or the victim’s property. The court ruled.’s (Defendant) employees stopped the McCanns as they were leaving the store. Synopsis of Rule of Law. Brief Fact Summary. the victim’s family or others in her immediate presence. even an entire city. McCann and two of her children were shopping at the Maine Wal-Mart store. a large area. Defendant’s employees had said they were calling the police. The employees told Plaintiff that the children were not allowed in the store because they had been caught stealing on a prior occasion. . the McCanns went to a register and paid for their purchases. the security officer. As the McCanns were leaving the store. that Defendant’s refusal to allow the 12-year old boy. In false imprisonment. In a false imprisonment case. stepped out in front of the McCanns’ shopping cart. Rhonda Bickmore (Bickmore). Did the conduct of Defendant’s employees constitute the tort of false imprisonment? Held. The court affirmed the lower court’s decision. Inc. Inc. blocking their path to the exit. This case involves a claim for false imprisonment. but actually called a store security officer to identify the earlier shoplifter. and they left the store.4. Debra McCann (Plaintiff) contended that Wal-Mart Stores. The confinement may be accomplished by (1) physical barriers. In December. Accidental confinement is not included and must be addressed under negligence or strict liability. False imprisonment occurs when a person confines another intentionally without lawful privilege and against his consent within a limited area for any appreciable time. (3) omission where the defendant has a legal duty to act. FALSE IMPRISONMENT McCann v. two Wal-Mart employees. Wal-Mart Stores. Issue. the defendant unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area. Ms. arrived at the store and informed the employees that the McCanns were not the family whose son had been caught shoplifting. 1996. Eventually. The employees detained Plaintiffs until a security officer determined that the children were not the children who had been caught previously. noting that Plaintiffs adequately proved the elements of false imprisonment. to use the restroom was not sufficiently outrageous to warrant the imposing of punitive damages. The bounded area can be.] The transferred intent doctrine is applicable. however. however short. * The victim must be confined in such a manner as to preclude his or her escape.

this has also extended to electronic interferences .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 defendant does not escape liability merely because the defendant did not intend to harm plaintiff’s property.Intentional Entry: Trespass to land usually requires an intentional entry upon land of another. Conversion of Chattels . 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. . while nuisance is an interference with his use and enjoyment of it.The defendant’s good faith .The harm done . Trespass to Land .Trespass and Nuisance: Trespass is an invasion of the plaintiff’s interest in the exclusive possession of his land.Intent: Conversion is an intentional tort. This might be accomplished by personal entry or by intentionally causing an object to enter the land.It has traditionally involved the plaintiff’s tangible chattel. The defendant must intend to exercise substantial dominion over the chattel.Trespass to Chattels involves something short of conversion. Trespass to Chattels . Liability is based on actual damage .” It is enough that defendant intended to enter the land.Expense or inconvenience caused C.The factors important to imposing liability for interference include: . The refusal to leave is now considered a trespass . Similarly.The defendant’s intent to assert a right to the property . however.Intent: The object of intent need not be “to trespass.Extent and duration of control . TORTS TO PROPERTY A. .

  Peters’ estate and family brought a wrongful death suit against the store. so long as three reasonableness requirements are met. the court also discussed whether a Wisconsin store can be immune from liability for actions taken by security officers in pursuing suspects off-premises. 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. increasing injuries to innocent shoppers in the way. Store security officers believed Peters shoplifted a power drill. shoplifters would be encouraged to dash out of stores off-premises.  Peters ran into the flooded La Crosse River and the fast-moving current pulled him under.  Furthermore. Menard Brief Fact Summary. and (3) for a reasonable length of time.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. and they pursued him off store premises for seven minutes.  To interpret whether this statute also limits liability for actions taken off-premises.  Upon questioning him in the parking lot.  Public policy supports this construction. PROTECTING AGAINST APPARENT MISCONDUCT OF THE PLAINTIFF Peters v. Inc. and (3) for a reasonable length of time. he fled on foot.PRIVILEGES 1. drowning him. Issue. (2) in a reasonable manner. (2) in a reasonable manner. Facts.  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. the court examined the statute’s construction.  Wisconsin statute § 943.  The Wisconsin Supreme Court found that Peters’ conduct was more unreasonable than the store’s. 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. . 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. Defendant Menards.  Peters ran into the river and drowned. barring plaintiff’s recovery under Wisconsin law.DEFENSES OF INTENTIONAL TORTS .  His estate sued the store in wrongful death and lost. Synopsis of Rule of Law.”  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. which is the primary purpose of this case study in the textbook. Held.  Peters fled on foot and Wright and another officer named Kind pursued him on foot.  Although not the deciding factor.  Wright followed Peters out to his car and asked him to get out for questioning. Yes.

The dissent opined that the majority wrongfully assumed that by installing a spring gun in the bedroom of their unoccupied house. This decision introduces the concept of the common law “shopkeepers privilege” which allows merchants to effect reasonable detentions of suspected shoplifters.  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. Dissent. The shotgun was set by Edward and Bertha Briney (Defendants). Defendants appealed. Facts. which had been uninhabited for several years. Katko v. pointed in such a manner as to wound an intruder’s feet. filed an action for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun. Briney Brief Fact Summary. Issue. When Plaintiff.e. Defendants then set up a shotgun trap. i. No.Discussion. The only exception is when the trespasser is committing a violent felony with the potential of endangering human life. Synopsis of Rule of Law. The Supreme Court of Iowa affirmed the judgment because the use of spring guns to protect uninhabited property was not permissible. did the Defendants intend to shoot the invader. Marvin E. awarding both actual and punitive damages. A wire was fastened from trigger to doorknob. the incidents continued. and if so. The dissent frames the issue in the following manner: there exist two definite issues of fact. 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. where the gun was secured to an iron bed with its muzzle pointed at the door. in a bedroom of an old farmhouse. Thus. while a defendant may use reasonable force in defense of her property. A jury found for the Plaintiff. did they employ unnecessary and unreasonable force against him? The dissent asserts . Defendants inherited an unoccupied farmhouse and over the course of ten years the house was subject to a series of break-ins. The value of human life and limb both to an individual and as a matter of public policy outweighs the potential damage to property. Katko (Plaintiff). The property sustained considerable damage and despite boarding up the windows and posting no trespass signs. having broken and entered on at least one prior occasion entered. injuring Plaintiff’s right leg. the gun went off. 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..

by means of “a mechanical device that which. that owner cannot do indirectly. Alcalde of San Francisco (Defendant). destroyed Plaintiff’s house in an effort to stave off the fire. and that the mere setting of such a device with a resultant serious injury should not as a matter of law establish liability. Geary Brief Fact Summary. he could not immediately do in person. 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. in the midst of a massive fire.” Discussion. Issue. * The dissent further objected to the awarding of punitive damages. contending that such an award is “court-made law. where the owner of the property in question is not faced with a threat of death or grave bodily injury. during a deadly fire. in good faith. Geary (Defendant). PRIVILEGES NOT BASED ON PLAINTIFF’S CONDUCT Surocco v. and under apparent necessity. In short. Can a person who. were he present. A person who tears down or destroys the house of another. 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. Plaintiffs brought an action against Defendant for the destruction of Plaintiffs’ house and store. not statutory law. Thus. Synopsis of Rule of Law. The ruling in Katko is consistent with all other areas of tort law with regard to the use of force. the standard being one of reasonableness. in good faith. an individual is permitted to use a degree of force commensurate with the threat with which they are confronted. destroys property out of public necessity in order to prevent greater damage be held liable? . in his capacity of public official. it was subsequently blown up to stop the progress of the fire. In the midst of a raging fire.” In sum. The trial court awarded damages to Plaintiffs. cannot be held personally liable in an action by the owner in connection with the destroyed property.” 2. Facts. made the decision to destroy Plaintiff’s building.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. as here. in an effort to save the adjacent buildings and to stop the fire’s progress.

. The court notes further “the right to destroy property. Lawmakers. Are plaintiff’s entitled to compensation for damages even where Defendant acted prudently and by necessity? Held.” In other words. should make determinations as to the manner in which such property may be destroyed. who makes the determination as to which property may properly be destroyed during an emergency. to prevent the spread of a conflagration. Lake Erie Transportation Co. Brief Fact Summary. Plaintiffs sued for damage to their wharf that caused by defendant’s vessel. Discussion. Plaintiffs owned a wharf where ships docked to unload cargo. * The court does take note of the role of the legislature with regard to issues of public policy. a person who destroys the house of another in good faith. her owners are responsible to the dock owners to the extent of the injury inflicted. 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. Where one reasonably believes his interests outweigh the loss or harm another may incur. Plaintiffs brought an action against defendant to recover for the damages to their wharf. having thus preserved the ship at the expense of the dock. The Supreme Court of California reversed the trial court’s award of damages to Plaintiffs. 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. and. what under normal circumstances would be a tortious act may be justified in exigent circumstances such as a raging fire. Facts. Synopsis of Rule of Law. has been traced to the highest law of necessity. i. cannot be held personally liable.e. That person will be held liable. however. maintaining that the court clearly erred. A jury awarded damages and Defendant sought review. . Yes. the court suggests.Held. docked there during a storm. and the mode in which compensation should be paid. and denied defendant’s motion for a new trial. Defendant’s ship damaged plaintiffs’ wharf during a storm. Issue. The trial court denied defendant’s motion for a directed verdict and entered judgment in favor of plaintiffs. to the extent he or she causes damage to another’s property or land. his conduct is privileged. Defendant owned a ship that docked at plaintiffs’ wharf in foul weather. Vincent v. and under apparent necessity.

take what is necessary to sustain life. In other words.e. plaintiff assumed the risks inherent in such a venture. A defendant is privileged to interfere with another’s property. may require the taking of private property for public purposes. but under our system of jurisprudence compensation must be made. DUTY A. 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. As the court in Vincent analogized. In entering into an agreement with the ship owner. the order of the lower court awarding damages was II. The standard of reasonable care applies to all negligence actions.Dissent. courts attempt to balance such necessity with the dictates of equitable relief. Plaintiff stopped at Defendant’s auto repair shop to assist in repairing a car’s fuel tank. the dissent asserts that the vessel’s owner exercised due care thus ameliorating further his liability. The tank was unattached. 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. And so public necessity. Further. The Superior Court of Pennsylvania affirmed a judgment in favor of Appellee in Appellant’s negligence action seeking damages for personal injuries. Vincent illustrates an instance where the defense of private necessity is introduced and examined. Essentially. NEGLIGENCE 1. Motts Brief Fact Summary. Discussion. and Plaintiff suggested pouring gasoline into the carburetor in an attempt to start the vehicle. “A starving man may. The dissent takes the view that the case is one of contract and not tort. Appellant sought review. John Stewart (Appellant) suffered burns after an accident in Motts’ (Appellee) auto body shop after the automobile on which they were jointly working ignited. but will be held liable for the damage. THE GENERAL DUTY OF CARE: THE PRUDENT PERSON STANDARD Stewart v.. the reasonable person must exercise care in proportion to the danger involved in his act. private necessity is not a complete defense. i.” Thus. in times of war or peace. 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. without moral guilt. The car . Synopsis of Rule of Law. Nevertheless. Facts.

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. breach.. Issue. i. 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. the jury found for Defendant and Plaintiff appealed. as a reasonable person would under like or similar circumstances. causation. attorneys. No. 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. etc. Discussion. or similar.. physicians. and in the ensuing explosion Plaintiff suffered severe burns.e. In any action for negligence. that of “reasonable care” to be applied uniformly in negligence actions. a plaintiff must establish that four elements are met: duty. The Defendant must owe a duty to plaintiff. adults must ordinarily act with reasonable care. It is well established by its case law that the reasonable man must exercise care in proportion to the danger involved in his act. Plaintiff requested a jury instruction directing the application of a standard of a “high degree” of care in instances of elevated danger. As a general rule. and harm. The defendant’s actions must be the proximate. However. Professionals (i. it is certain that the child is expected to act as a reasonable adult engaged in the same activity. Children are expected to act with the degree of reasonable care as would a child of similar age. community. The standard of care is the level of conduct demanded of a person so as to avoid liability for negligence. the plaintiff must suffer harm. breach that duty and. The court reaffirmed the principle that that there is only one standard.) are expected to exercise the degree of care appropriate to the standards of other professionals in that. At trial. .” Thus. as a result. or legal. Failure to meet this standard is characterized as breach of duty. cause of the injury suffered. The judge declined. when a child is engaged in an adult activity. intelligence and experience.backfired.e.

  Plaintiff sued Defendant for negligence and lost at trial. he collided with her.  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. she rapidly decelerated and started to make a left hand turn into a snowpark on the left side of the road. Defendant planned to pass Plaintiff on her left hand side.  Jurors would understandably view that instruction as permitting them to find a defendant not negligent even when he makes an unwise choice.  When she spotted her father waving his arms on the side of the road.  Plaintiff was driving down the highway looking for her father. . tells the jurors that if there was an emergency. Synopsis of Rule of Law. the court concluded that the emergency instruction misstated the law and was likely to confuse the jury as to the correct legal standard.  Accordingly. the court gave a jury instruction on negligence that pertains to “emergency” situations.”  The jury found defendant not negligent.  The Supreme Court reversed.  The emergency instruction. upon seeing the father waving his arms. they nevertheless may conclude that the actor was not negligent even if he made a choice that was not the “wisest choice”. are not negligent if they make a choice as a reasonably careful person placed in such a position might make. assumed that there may be an emergency situation and glanced left to scan the horizon for a potential problem. “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. 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. and the plaintiff appealed.  Whether the trial court committed error by providing a jury instruction on negligence pertaining to “emergency” circumstances. Weitman Brief Fact Summary. a standard that is measured by what a reasonable person of ordinary prudence would or would not. Held. do in the same or similar circumstances. whose car had broken down on the side of the road.  When he returned his eyes to the road.  A person is negligent if he fails to exercise reasonable care. thus substantially affecting plaintiff’s rights. but because she was starting to make a left hand turn.  At trial. a standard that is measured by what a reasonable person of ordinary prudence would or would not. however.  She sued for negligence. Yes. Issue. he saw that Plaintiff had slowed rapidly. whose car had broken down along the highway. which provides. Facts. even though they do not make the wisest choice.  Defendant.  To avoid a collision. arguing that the jury instruction was an inaccurate statement of negligence law. but won her appeal based on the trial court’s erroneous jury instructions on the legal standard for negligence.Bjorndal v. A person is negligent if he fails to exercise reasonable care. do in the same or similar circumstances.

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. The court of appeals reversed. Dissent. an Alzheimer’s patient. 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.” Issue. 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. a certified nursing assistant.Discussion. an Alzheimer’s patient.  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. Creasy appealed. In the former. citing an Indiana precedent. sued Rusk (Defendant). Synopsis of Rule of Law. for injuries she suffered when he kicked her while she was trying to put him to bed. based upon (her) choice of occupation. for injuries she suffered when Defendant kicked her while she was trying to put him to bed. a certified nursing assistant. This decision explains the standard of care requirement for negligence and highlights the controversy surrounding “emergency” instructions. rejected the notion that the Plaintiff had “impliedly assumed the risk of injury in the primary sense. particularly with respect to the nature of the parties’ relationship and public policy considerations. sued Defendant. Plaintiff filed a civil negligence suit against Defendant seeking monetary damages for the injuries she suffered as a result of Defendant’s conduct. Plaintiff. Defendant moved for summary judgment. Carol Creasy (Plaintiff).” . holding “that a person’s mental capacity. Rusk Brief Fact Summary. the Associate Justice. which was granted by the trial court. rejecting the majority’s reasoning. whether that person is a child or an adult. 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. must be factored [into] the determination of whether a legal duty exists. Facts. However. Associate Justice Dickson of the Indiana high court filed both a dissent and a concurrence.

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. a minor. excitability. or proneness to accident. however. This was a personal injury action brought on behalf of Kelly Robinson. cause-infact. “Public safety officials and caregivers are specifically hired to encounter and combat particular dangers.” Discussion. and others similarly situated. as a matter of law.” Robinson v. by more than 50%): duty. ignorance. * With regard to the threshold issue. 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. who was operating the vehicle at the time of the accident. No allowance is made for lack of intelligence. by a preponderance of the evidence establish each of the following elements (that is. The court of appeals affirmed the trial court’s judgment. such a standard would place at risk any number of individuals who by dint of their professional status are placed in potentially volatile situations.” There are. and by accepting such employment assume the risks associated with their respective occupations.Instead. 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.” Further.” People with mental disabilities are commonly held liable for their intentional and negligent torts. Lindsay Brief Fact Summary. (2) the reasonable foreseeability of harm to the person injured. such professionals of the tort remedy to which other victims of negligence are entitled. involved in a snowmobile accident. particularly with respect to the nature of the parties’ relationship and public policy considerations. a plaintiff must. The trial court ordered a new trial. historically. also a minor. The jury found in favor of Billy Anderson (Defendant). Defendants appealed. proximate cause (scope of liability) and damages. the court notes. breach of duty. the court concluded. the dissent argued.” Concurrence. To establish a prima facie case for negligence. because there had been an improper instruction. 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. He notes: “It is not only unfair but also extremely unwise social policy to deprive. and (3) public policy concerns. standard of care. Conversely. * As pertaining to this plaintiff. .

he should have been held to an adult standard of care. but in the absence of anything which gives or should give notice to the contrary.Synopsis of Rule of Law. Should a minor operating a snowmobile be held to an adult standard of care? Held. stating that because Defendant had engaged in the inherently dangerous activity. the child should be held to an adult standard of care. A person is not bound to anticipate negligent acts or omissions on the part of others. and this is to be determined ordinarily by the age of the child. Plaintiff was injured as a result. Chaffin (Plaintiff) collided with the truck. SPECIFICATION OF PARTICULAR STANDARDS OR DUTIES Chaffin v. When. When the activity a child engages in is inherently dangerous. 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 lost full use of her thumb. Such a standard allows the jury to consider the child’s particular qualities such as experience and intelligence. the operation of a snowmobile. Brame (Defendant) parked his vehicle on a highway at night without warning lights or signals. Discussion. Synopsis of Rule of Law. and intelligence under like circumstances. Brame Brief Fact Summary. as here. . in most jurisdictions. “The operation of a snowmobile requires adult care and competence because it is a powerful motorized vehicle.” B.” As the court concluded. and the driver filed an action for property damage. children are held to a standard that compares their conduct to other reasonable children of the same age. 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. 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. experience. Defendant was operating a snowmobile and was involved in an accident. As the court explained in Robinson. as is the operation of powerful mechanized vehicles. children are engaged in adult or inherently dangerous activities they are held to the same standard as adults. Defendant appealed. Yes. Facts. “[t]he care or caution required is according to the capacity of the child. The Supreme Court of Washington affirmed the lower courts’ holdings. Issue. With regard to minors and the duty of care.

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. O’Guin ate lunch at a summer school program then proceeded to walk home. 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. (2) the statute must have been intended to prevent the type of harm the defendant’s acts or omissions caused.  Plaintiffs sued the County under a negligence per se theory. Defendant conceded negligence in parking his truck on the traveled portion of the highway at night without displaying lights or warning signals.” Thus. Facts. O’Guin v. through a privately owned empty field. To make a prima facie claim for negligence per se. He did everything possible to avert the collision as soon as the truck became visible.  The children went through an unlocked gate at the back of the schoolyard. Discussion. He asserted. caused the children’s deaths. killing them. Plaintiff’s children were playing in the Bingham County landfill when a wall collapsed and killed them. and into an unobstructed landfill pit to play. and which is a legally contributing cause . arguing that the County’s failure to fence the boundaries of the landfill. in some instances. however. (3) the plaintiff must be a member of the class of persons the statute was designed to protect. and (4) the violation must have been the proximate cause of the injury.  Their parents sued the County for negligence per se. the following elements must be met: (1) the statute must clearly define the required standard of conduct. 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 thus Plaintiff was not guilty of contributory negligence as a matter of law.Facts. as required by state statutes and federal regulations. According to the Restatement Section 463. relying on Idaho statutes and federal regulations which require the County to fence or block access to the landfill . in bringing about the plaintiff’s harm. 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. Contributory negligence is a complete defense to negligence except in those jurisdictions that adhere to comparative negligence jurisprudence. Issue. Shaun. and Frank Jr.  Their bodies were initially discovered by Frank Jr. Synopsis of Rule of Law. Bingham County Brief Fact Summary. Was Plaintiff guilty of contributory negligence in his failure to avert collision with the parked vehicle? Held. .  A section of the pit wall collapsed and crushed Shaun and Alex.

  The trial court granted summary judgment for the County. resulting in a reversal of the trial court’s judgment. and an automobile in which three people were killed.  In analyzing these requirements. Discussion. (3) the plaintiff must be a member of the class of persons the statute was designed to protect.  Issue.  Impson v. who was attempting to pass the car in the left hand lane. the following elements must be met: (1) the statute must clearly define the required standard of conduct. The car turned left into the intersection and was struck by the Polanco. Structural Metals. (2) the statute must have been intended to prevent the type of harm the defendant’s acts or omissions caused. Synopsis of Rule of Law. This decision introduces the theory of negligence per se. (2) were intended to protect health and human safety. Whether the O’Guins have an actionable claim for negligence per se against the County.when an attendant is not on duty. including Mrs. and (4) the violation must have been the proximate cause of the injury. Inc. and two others were injured (Plaintiffs).  In order to replace the common law duty of care with that imposed by a statute. . and (4) that there was a disputed issue of fact as to whether the County’s violation proximately caused the children’s deaths. Where a party violates a statute. 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.  Accordingly the court reversed the trial court’s grant of summary judgment to the County. the O’Guins appealed and won.  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. Polanco’s truck attempted to pass the car within a prohibited distance of a highway intersection. Plaintiffs appealed. The trial judge ruled that Polanco was negligent as a matter of law and entered judgment for the Plaintiffs. he must present some legally substantial excuse or justification. Facts. (3) were intended to protect against entry of unauthorized person such as the O’Guin children. Impson. Brief Fact Summary. 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.  Yes. The appeals court held that Defendant had submitted excuses sufficient excuses that the issue of negligence should be brought before a jury. Held.  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.

ASSESSING REASONABLE CARE BY ASSESSING FORESEEABLE RISKS AND COSTS Pipher v. b) he neither knows nor should know of the occasion for compliance. 2. Plaintiff and another were passengers in Defendant’s car. the trial court granted summary judgment for Defendant. Plaintiff Pipher was a passenger in Defendant Parsell’s car along with a third person named Beisel.  Thirty seconds later. the failure to prevent such conduct may be a breach of the driver’s duty to his passengers or the public.  The passenger again yanked the wheel.  She sued Parsell for negligence. but Defendant regained control and did not do anything about it. Restatement of Torts (Second) (1965). Facts. An excused violation of a legislative enactment is not negligence.  As they were traveling at 55 mph. The court affirmed the trial court’s ruling that there was no evidence offered of any legally acceptable excuse or justification. unexcused. finding that the issue of negligence should have been submitted to the jury. resulting in injuries to plaintiff. and the appellate court disagreed. as a matter of law.  . causing Parsell’s truck to leave the roadway. including.Issue. and e) compliance would involve a greater risk of harm to the actor or to others. Discussion. When actions of a passenger that interfere with the driver’s safe operation of the motor vehicle are foreseeable. Parsell Brief Fact Summary. injuring Pipher. c) he is unable after reasonable diligence or care to comply. Excusable violations (not exclusive). Plaintiffs were thus entitled to a judgment. d) he is confronted by an emergency not due to his own misconduct. fall into five categories. The violation was.  All three were 16 years old. Synopsis of Rule of Law. Beisel unexpectedly grabbed the steering wheel causing the truck to veer off onto the shoulder of the road. and strike a tree.  Plaintiff sued Defendant for negligence. Beisel again yanked the steering wheel. but not limited to: a) the violation is reasonable because of the actor’s incapacity.  The other passenger yanked Defendant’s steering wheel causing the car to swerve. What excuses and/or justifications are legally acceptable in a negligence action? Held. causing the car to veer off the road and hit a tree.  Parsell regained control but did nothing in response to Beisel’s dangerous action other than laugh about it. slide down the embankment. BREACH OF DUTY A.

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.

nor could plaintiff identify the street or intersection where the alleged collision occurred.  The trial court granted summary judgment for the Defendant and judgment was affirmed. First Student.  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. Synopsis of Rule of Law. Issue.Discussion. or B<PxL. 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.  She sued Defendant for negligence. Inc. Whether a finding of negligence can be premised on mere conclusory allegations of negligent conduct.  As a result of the collision. it collided with a car. No. plaintiff claimed that the right side of her face hit the seat in front of her and she was injured.  Plaintiff could recall no details of the collision nor could she offer any witnesses who could. Most courts employ Judge Hand’s formulation: a comparable risk-benefit model. The Carroll case is noteworthy in that it utilizes a balancing test to determine whether a breach of the duty of ordinary care occurred. plaintiff claimed that the right side of her face hit the seat in front of her and she was injured. 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. B. Plaintiff alleged that in 1997. PROVING AND EVALUATING CONDUCT -PROVING Santiago v. Plaintiff alleged that in 1997 she was in the eighth grade and being transported one of Defendant’s school busses.  However.  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.   . Facts.  She sued the Defendant bus company for negligence. Brief Fact Summary. plaintiff did not see the collision.  The plaintiff attempted to justify a lack of evidence to support her case by pointing to the nature of the accident. When actions of a passenger that interfere with the driver’s safe operation of the motor vehicle are foreseeable. when 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.  As a result of the collision. Held.  There was no police report.

Appellant.” Thus. the dissent focused on the matter of culpability: “The question is.  The trier of fact must reasonably believe that the probability of negligence exceeds one-half. which properly makes such determinations. In October 1992 Teresa Rotenberry was driving a car in which Timothy Upchurch was the sole passenger. A plaintiff must prove each element of a civil case by the preponderance of the evidence. A jury concluded that Rotenberry’s explanation was factual and thus found in defendant’s favor. 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. was there any negligence on her part in the one-car crash? Since there was absolutely no negligence on the part of the passenger. Upchurch dies from resulting injuries. Upchurch v. The dissent questioned the manner in which the majority framed the issue. Synopsis of Rule of Law. Rotenberry Brief Fact Summary. May an appellate court grant motion for judgment notwithstanding the verdict when the issue is the determination of fact? Held. Discussion. and struck a tree. An appellate court will not intrude into the realm of the jury by determining the credibility of a witness and making findings of fact. The court held that a reasonable and fair-minded jury could reach different conclusions of fact. the dissent took . She claimed that a large animal had darted in front of her car. and that it is the jury. Dissent. Rotenberry was the only witness.  Because the plaintiff could not meet that burden in this case. if the matter of factual determination properly rests with a jury. the defendant was entitled to summary judgment. a finding of 1% negligence or more by Rotenberry would warrant recovery. a defendant’s negligence must be shown to be more probable than not. The jury is the judge of the weight of the evidence and the credibility of the witnesses.e. Facts.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. not the court..  Accordingly. Rotenberry lost control of the vehicle.  Mere conclusory allegations are not enough to prove negligent conduct. Issue. Rather. causing her to lose control. The jury is the judge of the weight of the evidence and the credibility of the witnesses. veered off the road. i. 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.

When Thoma got up. she did not see anyone spill any liquid on the floor where she fell. She alleged that Cracker Barrel was negligent in failing to maintain the floor in that particular area of the restaurant. She contends the liquid was what caused her fall. To recover for injuries incurred in a slip and fall accident. near the passage from the kitchen to the restaurant. They are charged with listening to the witnesses. the Circuit Court for Leon County (Florida) granted Cracker Barrell Restaurant (Appellee’s) motion for summary judgment. covered in a small puddle of clear liquid. dismissing Deborah Thoma’s (Appellant’s) complaint. Notice of a dangerous condition may be established by circumstantial evidence. are best qualified to make those judgments. are permitted to interfere in the conclusions reached by these jurors. Appellant claimed to have suffered a back injury when she fell in a Cracker Barrel Restaurant in September.” Discussion. Synopsis of Rule of Law. and during that time. Cracker Barrel Old Country Store. After eating breakfast. 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. Brief Fact Summary. employing their native intelligence and collective life experiences. Inc. she noticed that area in which she fell was wet. nor an appellate court reviewing the record on appeal. 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. Absent some clear indication that the jurors in a particular case somehow ignored that duty. and coming to their own conclusions of which evidence they find more credible. The system of jurisprudence has determined that citizen jurors. She fell in the middle of a common aisle. neither the trial court. In a slip and fall case. Appellant challenged the order. plaintiff must show that the premises owner either created a dangerous condition or had actual or constructive knowledge of a dangerous condition. .the view that “[a] directed verdict should have been granted as to liability and the jury should have only determined damages. 1990.” -EVALUATING Thoma v. Thoma was in the restaurant about thirty minutes prior to her accident. observing their demeanor. Thoma was walking away from her table when her left foot slid out from under her. Facts.

The court reversed the grant of summary judgment. and held each tug and barge jointly and severally liable to Plaintiffs. Defendant. thus. thus there existed an issue of material fact sufficient to preclude a grant of summary judgment. In Thoma. who is the owner of tugs. even though such sets were not standard in the industry. The barges could not withstand coastal storms. There are precautions so imperative that even their universal disregard will not excuse their omission. proximate cause. 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. leaked badly under weather-related stress. Discussion. Synopsis of Rule of Law. because they did not have radio sets with which they could receive weather reports. Failure to act in such a fashion constitutes unreasonable conduct and. he is shielded from liability.J. Reversed and remanded. there existed a question as to whether employees exercised due diligence in maintaining the safety of the area in question? Held. The court affirmed.Issue. the court concluded that there existed enough evidence that a jury might infer negligence. comparing a defendant’s conduct to that of a reasonable person. because all of the vessels were unseaworthy. a plaintiff must establish each of the following elements by a preponderance of the evidence: duty. standard of care. and damages. The reasonable person standard is an objective one. No. Both Defendants appealed. and that their owners did not take reasonable precautions to make them seaworthy as required by its charter. is a breach of duty. . If a defendant meets this standard. To recover for negligence. The T. holding that the barges were unseaworthy in fact. The latter then sued third-party defendant. The court also upheld the principal finding that the tugs were unseaworthy. which sank in a storm. Hooper Brief Fact Summary. and their pumps were not properly inspected. in viewing the evidence in a light most favorable to the plaintiff. 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. Was summary judgment proper where. 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. which declared the tugs and the barges jointly and severally liable to plaintiff cargo owners. Plaintiffs sued Defendant. who is the owner of barges. The trial court found all of the vessels to be unseaworthy. breach of duty. Facts. which towed the barges.

Issue. C. J. Though the context is maritime law. and Judge Hand’s standard of prudence is set against the possible exculpatory weight of the standards of industry. Failure to do so constitutes unreasonable conduct and.. Defendant’s shop was adjacent to the road on which Plaintiff was walking. hence. sufficient to presume negligence? . 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. Issue. While certain courts had held that the industry standard constituted proper diligence. The plaintiff does not have to eliminate all other possible causes for the harm.e. Witnesses testified that a barrel of flour fell on him. 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). Did the fact that there was an industry custom that tugs did not carry radios relieve Defendants of their responsibility to maintain radios? Held. PROVING UNSPECIFIED NEGLIGENCE: RES IPSA LOQUITUR Byrne v. Was the mere fact of the incident occurring. Byrne (Plaintiff) testified that he was walking along Scotland Road when he evidently lost consciousness. breach of duty. and the barrel appeared to have fallen. Facts. courts have an obligation to set a standard consistent with prudence and proper caution. Synopsis of Rule of Law. at its core the standard applied in The T. Boadle Brief Fact Summary. i. A plaintiff must persuade a jury that more likely than not the harm-causing event does not occur in the absence of negligence. the barrel having fallen from the shop. Discussion. The key is that a reasonable jury must be able to find that the likely cause was negligence. or was dropped from the shop. Neither Plaintiff nor any of the witnesses testified as to anything done by Boadle (Defendant) that could have led to the barrel falling. This decision expands on that standard by applying it in the context of accepted practice. No. she is protected from negligence liability. If the Defendant does so. This is an objective standard that compares the Defendant’s conduct to the external standard of a reasonable person.

courts interpreted the control element narrowly. No sufficient proof of negligence was offered. most jurisdictions no longer require the plaintiff to prove that he did not contribute to his harm. and absence of voluntary action or contribution by the plaintiff. the child’s mother. Warren (Plaintiff) brought an action to recover for the child’s alleged wrongful death. Further. exclusive control of the instrumentality by the defendant. The conditions traditionally required for the application of res ipsa loquitur are: “an accident that normally does not happen without negligence. Discussion. the keys to his car so that she could drive it to the store. Plaintiff appealed a judgment of involuntary nonsuit entered at the close of Plaintiff’s evidence. Terry Lee Enoch (Enoch).e. No. Defendant’s car was parked on an incline at Plaintiff’s home. a 6-year old child. i. A plaintiff seeking to rely on res ipsa loquitur must connect the defendant to the harm. Defendant gave Ms.. One of the older children opened the door and told the others to jump out. When the decedent jumped out he fell. All indications were that this was an accident. including Enoch. as it was Defendant’s responsibility to control the contents of his warehouse. The child died from his injuries. The mother was in the house. and the front wheel ran over his chest. climbed into the rear of the vehicle. the accident itself is evidence of negligence. The court allowed the case to proceed because of the nature of the harm-causing event and Defendant’s relationship to it.” In order for the Plaintiff to have the benefit of res ipsa loquitur. Warren v. . requiring the plaintiff to show that the defendant likely had “exclusive control” over the harm-causing instrumentality. Facts. Jeffries Brief Fact Summary. Initially. Issue. while five children. was injured when a wheel of Jeffries’ (Defendant) automobile ran over his body. 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. she must convince the jury that each of these factors more likely than not exists. 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. Enoch.Held. Synopsis of Rule of Law. No one touched any of the control mechanisms of the car.

” Giles v. which. 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. With respect to the doctrine of res ipsa loquitur (as clarified in the court’s opinion). City of New Haven Brief Fact Summary. an analogous case. condition. Did the Appellate Court properly apply the doctrine of res ipsa loquitur? Held. The appellate court (Connecticut) reversed and remanded the case for a new trial. The Giles case further clarifies the doctrine of res ipsa loquitur. both inspection and user must have been at the time of the injury in the control of the party charged with neglect. the Plaintiff was entitled to have a jury consider her claim that the Defendant’s negligence was the cause of her personal injuries. The Plaintiff was injured when an elevator he was operating fell. The trial court granted a Motion for Summary Judgment and directed a verdict in favor of the elevator installer. “A verdict cannot be supported on the basis of mere speculation or conjecture. Plaintiff. Facts. 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. The facts indicated that the elevator installer installed the elevator sixty-one years prior to the accident. Synopsis of Rule of Law. a plaintiff must demonstrate that a defendant was responsible for the specific instrumentality that caused the event.Discussion. Discussion. as the court enunciated. To avail herself of the inference afforded by the res ipsa loquitur doctrine. or apparatus causing the injury must be such that in the ordinary course of events no injury would result unless from a careless construction. inspection or user. upon the . the injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. As noted in Gift v. 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. Proof of negligence may be furnished by the circumstances themselves and it is not essential to have eyewitness testimony. The trial court directed a verdict in favor of the elevator installer. “applies when three conditions are satisfied: the situation. The elevator operator sought review. Palmer. the elevator operator filed a negligence action against the elevator installer to recover injuries he sustained when the elevator fell. Whether the doctrine applies in a given case is a question of law for the court. Issue.” In essence.

  There was minor damage to the Plaintiff’s vehicle.  The supreme court reversed. Defendant rear-ended Plaintiff but neither party reported any personal injuries at the scene. Plaintiff stopped his vehicle at a red traffic light when it was struck from behind by Defendant’s vehicle.  The trial court nevertheless granted the plaintiff’s motion and awarded nominal damages of $1. to serve as a deterrence to society. arguing that although she had admitted to causing the collision.  The plaintiff filed a motion to set aside this verdict.  Later.  Defendant prevailed. Issue. 3. the doctrine of res ipsa loquitur permits the plaintiff to shift to the defendant the burden of proof on the issue of negligence. she had denied the causal relationship between the collision and the plaintiff’s alleged injuries.  However.  The jury returned a verdict of zero damages.  Under the technical legal injury concept. Common law requires proof of causation and actual damages to support a cause of action in negligence.  At trial Plaintiff presented evidence that his injuries resulted from the collision. finding that nominal damages should not have been awarded. Synopsis of Rule of Law. where the plaintiff’s right has been intentionally invaded. Breen Brief Fact Summary.  Facts. while Defendant presented evidence that the injuries resulted from Plaintiff’s five previous auto accidents. ACTUAL HARM Right v. but where plaintiff cannot prove actual bodily injury.  Defendant objected. the technical legal . Held. Plaintiff sued.showing that the product or apparatus was one over which the defendant had complete control. and that the accident resulting in injury was of such a nature that it ordinarily would not occur in the absence of negligence. he can recover nominal and even exemplary damages. alleging that as a result of Defendant’s negligence he had suffered bodily injury.  The appellate court affirmed. 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.  No. but no physical injuries reported at the accident scene. HARM AND CAUSATION IN FACT A.  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. 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.

Negligence requires both the elements of cause in fact and proximate cause.  Her left hip was crushed in the fall requiring extensive medical care. the technical legal injury concept does not apply to a negligence action where injury has occurred unintentionally.  As Plaintiff looked up to check traffic in preparation for stepping into the street.  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. forcing Plaintiff to step into the street to walk around them. crushing her hip. Plaintiff Hale was walking home on a sidewalk that she had not traveled before.  Discussion. blocking her way.  Facts. 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. she tripped on crumbling sidewalk prior to the bushes and fell.  She determined she had to leave the sidewalk and enter the street to bypass it. only that it be a cause.  Common law requires proof of actual damages to support a cause of action in negligence. she tripped over a chunk of concrete and fell into the street. Defendants’ overgrown bushes obstructed the sidewalk.  No. then the defendant’s conduct is a cause in fact of the injury. and the Tennessee Supreme Court reversed. property owned by another party.injury concept does not apply to a negligence action where injury has occurred unintentionally. moved for summary judgment arguing that the injury was caused by the defective sidewalk. CAUSE IN FACT -The But-for Test of Causation Hale v.  Trial court granted the Defendants’ motion. . Synopsis of Rule of Law.  As she proceeded.  The crumbled sidewalk was located in front of 1063 Mississippi.  Defendants. to serve as a deterrence to society. where the plaintiff’s right has been intentionally invaded.  Plaintiff filed suit against Defendants and the other property owner.  B. the Ostrows. the Court of Appeals affirmed.  As she stepped off the sidewalk before she reached the bushes.  Common law requires proof of actual damages to support a cause of action in negligence.  However. he can recover nominal and even exemplary damages.  It is not necessary that the defendant’s act be the sole cause of the plaintiff’s injury. Issue. not the overgrown bushes.  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 sued Defendants for negligence.  Under the technical legal injury concept. Ostrow Brief Fact Summary.

The appellate court affirmed the trial court’s judgment. Nystrom of her lower back and abdominal area took xrays.Held.  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. sought review. factual causation. An element of a negligence prima facie case is cause in fact or actual cause. The plaintiff must prove. Salinetro did not know that she was pregnant at the time of the x-ray. When this statement can be shown to be true. her doctor confirmed the pregnancy after multiple tests. the pedestrian would have avoided injury. She underwent a therapeutic abortion and the pathology report stated the fetus was dead at the time of the procedure. She filed suit for medical malpractice. but that the harm was in fact caused by the defendant. Synopsis of Rule of Law. patient and her husband. not only that she suffered legally recognized harm. Did the trial court err in entering judgment for Appellee? * Was Appellee the cause in fact/actual cause of Appellant’s injury? Held. This decision stands for the proposition plaintiffs hoping to recover under a negligence theory must prove the fourth element. Anna Salinetro sustained back injuries in an automobile accident and applied for personal injury benefits from her insurer. Appellants. Nystrom Brief Fact Summary. Yes.  Discussion. This is expressed as the “but-for” rule: but-for defendant’s conduct. 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 . Negligence requires both causation in fact and proximate cause. cause in fact or actual cause has been proven. but that the harm was in fact caused by the defendant.  The plaintiff must prove not only that she suffered legally recognized harm. distinct elements which must be proven by the preponderance of the evidence. and she was advised to terminate pregnancy because the fetus had been exposed.  In this case. State Farm required Salinetro to submit to a medical examination and on December 10 Dr.  Salinetro v. State Farm Mutual Automobile Insurance Company (State Farm). Facts. He did not inquire as to whether she was pregnant. Plaintiff would not have had to look up and check for traffic in preparation for stepping into the street to go around it. 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. the court found that Defendant’s obstruction of the sidewalk caused Plaintiff’s injury because “but for” the bushes. Issue. No.

cause-in-fact. this failure was not the cause of her injury. “To determine what skills. v. Synopsis of Rule of Law. 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. law. With regard to doctors. the lake owner declined to replead so as to assert several liability only against each defendant in separate suits.” Continuing along similar lines. even if Nystrom’s failure to inquire as to whether Salinetro was pregnant at the time of her examination. Merely to show a connection between the negligence and the injury is sufficient to establish liability. 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. -Problems With and Alternatives to But-for Tests Landers v. East Texas Salt Water Disposal Co. Discussion. the court stated. because of the specialized skill and training required in fields such as medicine.” * The court then shifted to the standard of care required of physicians. initially. the court explained: “A physician. This case overrules the holding in Sun Oil Co. The Salinetro court focused. . whether he be a general practitioner or specialist. Any claim for negligence requires plaintiff to establish the following elements: duty. etc. 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. It should be noted that. appealed the dismissal of action as to damages. is under a duty to use ordinary skills. the court concluded that the lower court properly entered judgment on behalf of Nystrom. science or economics.medical malpractice since. proximate cause (scope of liability) and damages. in determining that plaintiff had failed to establish two necessary elements. : Landers (Plaintiff). courts defer to the expertise of the profession to determine the appropriate standard of care. standard of care. owner of a small lake.” Thus. The Court of Civil Appeals for the Sixth District (Texas) affirmed. are necessary and customarily followed in the community normally requires expert testimony by those physicians who perform similar services in the community. Brief Fact Summary. breach of duty. 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.

an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers. which. He alleged that both Defendants acted negligently. that is. * 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. 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. that when (1) the tortious acts of two or more wrongdoers join to produce an indivisible injury. Issue. 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. an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers. if established by evidence.In this case. v. Yes. (Defendants) both caused large quantities of salt water and also oil to flow into his lake killing the fish. 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. 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. The allegations of the petition . He alleged that East Texas Salt Water Disposal Co. after Defendants’ plea in abatement asserting a misjoinder of parties and of causes of action had been sustained. when. that is. 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. he declined to replead so as to assert several liability only against each of the Defendants in separate suits. Discussion. * The court held that because there was no misjoinder as alleged. which he had cleaned and stocked with fish at considerable expense. Robicheaux. Did the Plaintiff in his pleading allege facts. Facts. Plaintiff owned a small lake. and Sun Oil Co. * The lower court affirmed the trial court decision. made the Defendants jointly and severally liable for Plaintiff’s damages? Held. 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. * Adopting a new rule. * Overruling the holding in Sun Oil Co.

P. Company’s (Defendant) railroad tracks. Co.R. as in the duplicative cause cases.M. case? Held. where it destroyed some of his property.. Minneapolis S. 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.M. & S. Did the trial court err when it instructed the jury to apply the rule in the Cook v. Moreover. .S. & S. and the trial court was not obliged to notify counsel before responding to the jury’s question. Issue. M. In Anderson. & S. Anderson (Plaintiff) property near Minneapolis. Ry.M. the “substantial factor” test has been widely accepted. 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. Synopsis of Rule of Law.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. 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. S.R. When the “but-for” test seems to produce clearly wrong results.P. a party has established that the other party’s conduct was the cause in fact of an injury. Brief Fact Summary. The fire started in a bog near Plaintiff’s land and smoldered there for several months. The jury returned a verdict for Plaintiff. P. 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.S. When either the “but-for” or “substantial factor” test is satisfied. Anderson v. then the cause-in-fact is established by the “substantial factor” test. Facts. 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. If two or more causes concur to bring about an event. where it destroyed some of his property. No. St. Plaintiff owned property near railroad company’s tracks.S. the trial judge’s instructions to the jury in the absence of counsel were correct statements of law.

The narrow rule in this case states that if a fire combines with another of no responsible origin. in Plaintiff’s negligence action against two hunters. and any one of those fires could have been the actual cause of Plaintiff’s loss. Plaintiff sued both Defendants in a negligence action. irrespective of whether the first fire was or was not a material factor in the destruction of the property. because each acted negligently. 74 N. Plaintiff suffered injuries to his right eye and face. The court applied the “substantial factor” test imported from the rule in the Cook case. then the cause-in-fact of an injury is established by the “substantial factor” test.R. Synopsis of Rule of Law. there is no liability. On appeal.W. Because they failed to meet that burden.A. 68 Am. the court affirmed. Tice Brief Fact Summary. but it is impossible to prove whose conduct actually caused the harm. they destroy the property. at the same time. because it determined that Defendants failed to meet their burden of proving who was responsible for Plaintiff’s injury. many jurisdictions presume that each Defendant was the actual cause of the Plaintiff’s injury. If two or more causes concur to bring about an event. 457. 830. . Consolidated appeals from a judgment of the Superior Court of Los Angeles County (California). The court reasoned further that it was Defendants’ burden to offer proof as to the apportionment of damages. Plaintiff damages for personal injuries arising out of a hunting accident. and thus each liable for the damage caused by him alone. Summers. 40 L. Facts. St. it was in the discretion of the trier of fact to apportion the damages. which awarded Charles A. Tice and Ernest Simonson (Defendants). If Defendants are independent tortfeasors. and after the union of the two fires. Both hunters negligently fired.Discussion. 98 Wis. both Defendants fired in Plaintiff’s direction. 624. 561. The trial court entered a judgment in Plaintiff’s favor. each was responsible to Plaintiff for damages from the injuries he sustained. Plaintiff and Defendants went on a hunting trip. and either fire independently of the other would have destroyed it. in Defendant’s direction. While attempting to shoot their target. then. Rep. Plaintiff provided each Defendant with directions on how to safely fire their weapons. The wronged party should not be deprived of his right to redress. therefore. Harold W. which exempted Defendant from liability since there were other fires sweeping east towards Plaintiff’s property. -Proof: What was Caused? Summers v.

  Upon learning that the Defendants intended to move to dismiss at the close of her case. Plaintiff suffered a broken neck in an auto accident and was treated at the hospital by Defendants. The appellate court correctly affirmed the lower court’s ruling. Plaintiff proffered that her expert would testify that the Defendant’s negligence deprived her of the opportunity for a substantially better . the trial court dismissed her action. 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. 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. Facts. Discussion. Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. then failed to both immobilize her properly and to administer steroid therapy. They brought about a situation where the negligence of one of them injured the plaintiff. causing her to lose the opportunity for a substantially better recovery.Issue. the court reasoned that since they failed to meet that burden. hence it should rest with them each one to absolve oneself. therefore. The judgment of the lower court was affirmed because Defendants failed to meet their burden of proving who was responsible for Plaintiff’s injury. Lord v. Plaintiff broke her neck in an auto accident and claimed that the hospital staff negligently misdiagnosed her injury. the defendants failed to meet their burden of proving which party was responsible for plaintiff’s eye injury. Synopsis of Rule of Law. Since each Defendant acted negligently. If one can escape the other may also and plaintiff is remediless. causing her to lose the opportunity for a substantially better recovery. the case should be left to the trier of fact to apportion damages. alleging that they negligently misdiagnosed her spinal cord injury. each was responsible to Plaintiff for damages from the injuries Plaintiff sustained. and the higher court reversed and remanded.  She sued Defendants for medical malpractice. They are both wrongdoers negligent toward the plaintiff. Lovett Brief Fact Summary. No.  She sued Defendants. because each acted negligently. Defendants have placed the injured party in the unfair position of pointing to which defendant caused the harm. Did the trial court err in entering judgment in Plaintiff’s favor? Held. each was responsible to Plaintiff for damages from the injuries Plaintiff sustained. Here. a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. if he can. Thus.

(3) If a plaintiff can prove that she was deprived of at least a 51% chance of a more favorable outcome than she received. she may recover damages for the entire preexisting condition. but can be quantified through expectation. to recover for her lost opportunity to obtain a better degree of recovery. reversed the trial court’s dismissal. which allow a plaintiff to recover for the entire preexisting injury upon proving causation by the specified standard.  The loss the opportunity doctrine is a medical malpractice form of recovery which allows a plaintiff. (2) If a plaintiff proves that the defendant’s negligence more likely than not increased the harm to the plaintiff. but conceded that her expert could not quantify the degree to which she was deprived of a better recovery by their negligence. This decision explains that a minority of jurisdictions approach this theory according to the standards explained in (1) & (2) above.  The New Hampshire Supreme Court reversed and remanded. as in the above case. .recovery.  Whether Plaintiff can recover under the loss of opportunity doctrine. however.  The court adopted the third approach.  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. which can be difficult to calculate. whose preexisting injury or illness is aggravated by the alleged negligence of a physician or health care worker. she may recover damages only for the lost opportunity for a better outcome.  The trial court dismissed the action on the ground that lost opportunity was not a recognized theory. Yes. only permit a plaintiff to recover damages for loss of opportunity itself.  Many jurisdictions. she may recover damages for the entire preexisting condition. Issue. and remanded. Held. Discussion. not for the entire preexisting condition.

proximate cause. Plaintiff became the victim of a violent assault as she waited in the lobby of Defendants’ apartment building. In fact. so there could be no finding of negligence. The term proximate cause. but not when some entirely different risk eventuates in entirely different harm. because the primary reason buildings have buzzer systems is to protect residents. Her hosts struggled to admit her by using an electronic buzzer that did not work. while Plaintiff was assaulted. The intervening criminal act of the assailant was not within the scope of risk created by Defendants’ lack of maintenance. 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. Issue. THE SCOPE OF RISK OR “PROXIMATE CAUSE” ELEMENT A. because Plaintiff failed to establish an essential element of negligence. Did the trial court err in ruling in favor of the Plaintiff? Held. 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. The harm that occurred to plaintiff must be of the “same general nature as the foreseeable risk created by the defendant’s negligence. . includes both cause in fact and foreseeability components. Washington Heights Condominium Brief Fact Summary.” 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. on grounds that the court should have entered judgment for Defendants on Plaintiff’s negligence claim as a matter of law. 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. Synopsis of Rule of Law. by the Superior Court in the Judicial District of Stamford-Norwalk (Connecticut).4. not guests. Yes. THE PRINCIPLE: SCOPE OF RISK Medcalf v. Facts. 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.

who was carrying a package. (Defendant).e. The shock of the explosion threw down some scales at the other end of the . Justice Andrews. The fireworks exploded when they fell. who had held the door open. Thus. writing for the minority stated that each person owes an absolute duty of care. Brief Fact Summary. The man’s package fell. that. Mrs. and another guard on the platform pushed him from behind at the same time. writing for the majority held that negligence is based on the foreseeability of the harm between the parties. * The Supreme Court of Connecticut has defined proximate cause as an actual cause that is a substantial factor in the resulting harm. attempted to jump aboard the car. Chief Justice Cardozo. but there was nothing from its appearance to give notice of its contents. Long Island Railroad Co. Palsgraf (Plaintiff) was standing on a platform after she bought a ticket from Long Island R. 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. the package the man was carrying was dislodged and fell upon the rails. a critical element for Plaintiff to prevail. In this act. The first man jumped aboard. however he was unsteady. as a matter of law. The second component of a negligence action is proximate cause. Facts. The second man. A guard on the train. * Proximate cause is a question of fact to be decided by the trier of fact. Plaintiff failed to establish the necessary causal relationship. Defendant helped to push a man aboard a train. Two men ran to catch a train that was pulling out from the platform. The substantial factor test reflects the inquiry fundamental to all proximate cause questions. * The court found here that. each person must refrain from acts (foreseeable or not) that unreasonably threaten the safety of others.R. reached forward to help him in. i. The package contained fireworks.Discussion. * 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. which exploded causing some scales to fall and injure Plaintiff Synopsis of Rule of Law. Inside were firecrackers. Proximate cause establishes a reasonable connection between an act or omission of a defendant and the harm suffered by a plaintiff. Palsgraf v. whether the harm which occurred was of the same general nature as the foreseeable risk created by the Defendant’s negligence. but it becomes a question of law when the mind of a fair and reasonable person could reach only one conclusion.

Defendant’s liability for an intentional act cannot be greater when an act is inadvertent or unintentional. she would not have been injured. Dissent. an act innocent and harmless does not become a tort because it happened to be wrong with reference to someone else. Defendant appealed. There was no indication that the parcel contained fireworks. * The plaintiff must prove that her rights were violated and the duty that Defendant owed to her was transgressed. Does a Defendant owe a duty of care to Plaintiff who is outside the reasonably foreseeable zone of danger? Held. While it is clear that Defendant violated its duty to the person carrying the fireworks. Issue. No. * A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. Even if the guard had intentionally taken the package and thrown it. causing injuries for which she sues. The stales struck Plaintiff. (Justice Andrews) Everyone owes the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. 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. Plaintiff sued Defendant. * It was unforeseeable that a package being carried would explode and cause any damage to Plaintiff. . A defendant owes a duty of care only to those plaintiffs who are in the reasonably foreseeable zone of danger. * 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. he would not have threatened Plaintiff’s safety. The conduct in relation to Defendant’s guard was wrong in relation to the man carrying the parcel. * However. Defendant did not violate any foreseeable duties to Plaintiff. many feet away. and not whether the act would reasonably be expected to injure another. It is not enough that Plaintiff merely prove that a duty that was owed to another was transgressed. In determining proximate cause the court must ask itself whether there was a natural and continuous sequence between the cause and effect.platform. Plaintiff was awarded damages. * If no hazard is apparent to the eye of ordinary vigilance. If not for the explosion. Judgment reversed. it was not wrong in relation to Plaintiff who was standing so far away.

Defendant argued it was not the proximate cause of the injuries. everyone is a foreseeable plaintiff B. found the site. to fall into the manhole and suffer severe burns.  The accepted reconstruction of what happened was that the lantern broke and some of the kerosene vaporized.  The courts of Scotland held in favor of Lord Advocate on the grounds that though burns were foreseeable. Under J. the result is within the chain of proximate causation and that element of negligence is satisfied. but the injury is caused in a unique way or manner which could not have been foreseen.  The higher court disagreed and found for Plaintiff on appeal. Facts. * (J. Where a plaintiff’s injury is foreseeable.  Plaintiff Hughes.  At 5:00 they took a tea break. they knocked or dropped a lantern into the hole. the 8 year old.Discussion. descended in the hole then came back up without mishap. Andrews) Each person owes an absolute duty of care.  He sued the Lord Advocate of Scotland as the representative of the Post Office. the vaporization of the kerosene and the explosion were not. C. Post Office employees were working on an underground telephone cable in Edinburgh. a plaintiff must be a foreseeable plaintiff and be in the zone of danger. causing Hughes. Scotland. .  But once back on top. Andrews’ view. which resulted in a huge explosion that threw him down the manhole. Thus to recover. Cardozo) Negligence is based on the foreseeability of harm between the parties.J. ASSESSING THE SCOPE OF THE RISK Hughes v. leaving unguarded an open manhole. Thus liability for negligence is limited to what was foreseeable and what duties were owed that were reasonably foreseeable prior to the negligent act. 8 and 10 years old.  This gaseous form of kerosene came into contact with the lantern’s flame and created a large explosion.J.  He suffered severe burns and sued Defendant. Synopsis of Rule of Law. Cardozo’s opinion is the majority view and is referred to as the zone of danger view. covered with a tent and surrounded by kerosene lanterns. an 8 year old boy. This case identifies two ways to determine if a duty is owed to Plaintiff: (1) the Cardozo method. and (2) the Andrews method: * (C. each person must refrain from acts (foreseeable or not) that unreasonably threaten the safety of others. Post Office workers were working underground and left the manhole unattended surrounded with kerosene lamps while on break.  Two boys. was playing at the unattended site and knocked over a kerosene lamp. Lord Advocate Brief Fact Summary.

fired.  One night Delaney smoked crack cocaine and was drinking heavily.  Reynolds claimed that Delaney’s intentional act of attempting suicide was a superseding cause of her injuries. however. Delaney put the gun under her chin.  Reynolds urged her to move out of his house.  Reynolds knew that Delaney knew where he kept his gun.Issue. including Massachusetts.  Plaintiff then shot herself and the gun did fire. unforeseeable manner are still considered within the scope of risk a defendant has a duty to protect plaintiffs from. namely the kerosene lamp. loaded and unlocked in the bedroom. and this time the gun went off. relieving a defendant from liability.  The trial judge granted summary judgment for Reynolds and the court of appeals reversed .  The gun did not fire. Held.  She sued Defendant for negligence.  While packing her things.  Delaney then ran back up stairs.  A few states. for example. but the injury is the type that was foreseeable. Plaintiff lived with Defendant police officer who owned a gun and stored it loaded and unlocked in the bedroom. 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. pursued by Reynolds. as opposed to.  When they reached the bedroom.  Three different judges agreed that the Plaintiff’s burns were foreseeable.  Thus. 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.  Where the cause of an accident was a known source of danger. there is no defense to negligence. Facts. Delaney v. Whether Defendant can be found liable for negligence where the manner or cause of the injury was unforeseeable. seriously injuring her. even though the manner in which they occurred was not.  Delaney sued Reynolds for negligence. Plaintiff took the gun from the bedroom and shot at Defendant twice but the gun did not fire.  The explosion did not create an accident or damage of a different type than what could have been foreseen by the danger of fire. Reynolds Brief Fact Summary. This case stands for the proposition that foreseeable injuries or harm that are caused in a unique.  One night after consuming drugs and being asked by Defendant to move out. pulling the trigger twice. a police officer. but injury is caused in a unique way which could not have been foreseen.  Yes. suicide is considered an intervening cause which breaks the chain of causation. In most states. namely an explosion. Synopsis of Rule of Law. Plaintiff Delaney began living with Defendant Reynolds.  Reynolds also knew that Delaney was depressed and had substance abuse problems. Delaney took the gun. seriously injuring her.  Reynolds routinely stored his gun. went downstairs and aimed the gun at Reynolds. a spill of the kerosene which would have produced a more normal conflagration. Discussion.

however. Proximate cause is determined by whether an intervening act is a foreseeable consequence of the defendant’s negligence. the employee was splattered by boiling liquid enamel from a kettle. and the contractor for negligence. striking Plaintiff. under Massachusetts law. 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. the appeals court revered the summary judgment ruling. freeing the defendant from liability for negligence. Felix Contracting Corporation (Felix). Discussion. The automobile crashed through a single wooden horse-type barricade. however. rather than any antecedent negligence.  Most states continue to follow the traditional rule that suicide is a superseding cause of plaintiff’s harm. The driver was undergoing treatment at the time. No.  Like Massachusetts. Dickens was driving eastbound on the thoroughfare where Plaintiff was working on an excavation. who was propelled into the air. James Dickens (Dickens) was suffering from an epileptic seizure when the accident occurred.  Historically. Felix contended . and there should have been two flagmen present.  Derdiarian v. then it is a superseding act which would sever the causal connection. Upon landing. Plaintiffs maintained that the barrier should have covered the entire width of the excavation site. as opposed to one.  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. 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. Felix Contracting Corp.Issue. does not adopt an ironclad rule that suicide constitutes an intervening cause. If it is not foreseeable. but had failed to take his medication that particular day. Brief Fact Summary. Held. (Defendants) claiming that the employer failed to maintain a safe work site. Foreseeability is the reasonable anticipation of the possible results of an action.  Whether suicide is such an extraordinary event as not to be reasonably foreseeable. Plaintiff and his wife sued the employer.  Massachusetts.  Accordingly. and struck an employee of a subcontractor. a purposeful act of suicide. The driver suffered an epileptic seizure and lost consciousness. Plaintiff was hit by a car when he was working on an excavation job. Synopsis of Rule of Law. Facts. but an intervening cause of injury which breaks the chain of causation. Dickens. The driver of the automobile.

(Defendants) and the Plaintiff appealed the district court judgments in a negligence action. risk that is foreseeable and is the immediate cause of the plaintiff’s injury. Synopsis of Rule of Law. The truck driver pulled over to offer assistance. and (2) no superseding intervening force. the causal connection is not automatically interrupted. i. Issue. Nugent Brief Fact Summary. Essentially.e. Plaintiff need not demonstrate that the precise manner in which the accident happened or that the extent of injuries was foreseeable. On appeal. which would interrupt the causal connection between defendant’s negligence and plaintiff’s injuries. Instead. One is liable for the harmful consequences that result from the creation of unreasonable risk. The assigning of such liability is a question for the trier of fact.. The jury found the truck driver liable. Further. An oil company and the driver of its truck. it depends upon whether the intervening act was a foreseeable consequence of defendant’s negligence. Was the truck driver negligent and his conduct the proximate cause of the Defendant’s injuries? . leaving his truck partially blocking the road. because there was no causal link between Felix’s breach of duty and Dickens’ negligence. then it may be a superseding cause. Yes. Facts. Plaintiff was a passenger of a car that went off the road under icy conditions when an approaching truck crossed into his lane. an intervening act may not serve as a superseding cause. Whether an intervening act is foreseeable or not is a question for the trier of fact. For a plaintiff to carry the burden of proving a prima facie case of negligence. The Court of Appeals of New York held that Plaintiff’s injuries were a foreseeable result of the risk created by the employer. Marshall v. 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. Issue. and relieve an actor of responsibility. he must generally show that the defendant’s negligence was a substantial cause of the events that produced the injury. Were Plaintiff’s injuries a foreseeable result of the employer’s failure to maintain a safe work site? Held. Discussion. defendant employer argued that there was no causal link between the employers breach of duty and plaintiffs injuries. when the risk of the intervening act occurring is the very same risk that renders the actor negligent. When the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury. If the intervening event is unforeseeable.that Plaintiff was injured solely as a result of Dickens’ negligence. the foreseeable harm test requires (1) a reasonably foreseeable result or type of harm.

The Plaintiff. The court in Marshall addresses a number of peripheral questions in determining the scope of liability in connection with auto accidents. he would have been able to see and avoid the pole. The Plaintiff. A witness stated that if the Plaintiff had not been riding violently. The jury found for Defendant. “[t]he question of proximate causation is one of fact for the 5. Forrester Brief Fact Summary. did not see the pole and was thrown from his horse by the pole. Synopsis of Rule of Law.” Thus. the court states. A witness said that if Plaintiff had not been riding hard. Noting the often complicated circumstances surrounding a car accident. CONTRIBUTORY/COMPARATIVE FAULT A. The court of appeals affirmed the judgment against Defendants. the Defendant’s negligence “constituted an irretrievable breach of duty. THE COMMON LAW RULE Butterfield v. Again. 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. what the court refers to as “a variety of risks. “[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 court concludes.” 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 Plaintiff’s attempt to warn oncoming motorists of the dangerous situation was reasonable and did not constitute contributory negligence.” Discussion. initializing the concept of contributory negligence. The plaintiff’s failure to exercise reasonable and ordinary care in this case is a complete bar to recovery from the defendant.Held. 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. riding violently. Forrester (Defendant). Facts. was injured when he rode his horse into an obstruction placed into the road by the Defendant. The Defendant had put up a pole across a public road for the purpose of making some repairs to his house. he would have been able to see and avoid the obstruction. the jury should find a verdict for the Defendant. . injuring himself. Butterfield (Plaintiff).

B. 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. Outside was a man she didn’t know. ADOPTING AND APPLYING COMPARATIVE FAULT RULES Wassell v. Synopsis of Rule of Law. Diagnosed with post-traumatic stress disorder. and their negligence was the proximate cause of Plaintiff’s assault. Plaintiff managed to escape. but Plaintiff was too upset to provide proper identification. Adams Brief Fact Summary. and the court of appeals can reverse only when persuaded that in applying this standard. No. * Chief Justice Lord Ellenborough: One person being in fault will not dispense with another’s using ordinary care for himself. 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.Issue. owned by Defendants. A new trial can be granted only when the jury’s verdict is against the clear weight of the evidence. he would have seen the obstruction. who. so the accident happened entirely at his own fault. the district judge abused his discretion Facts. The court of appeals affirmed. Plaintiff allowed the man inside the room. but the rapist was never prosecuted. Rule refused. which completely bars recovery if plaintiff’s negligence contributed to the happening of the accident. Illinois to attend a graduation at the Great Lakes Naval Training Station. * Justice Bayley: If the Plaintiff had used ordinary care. A jury found the Defendants to be negligent. However the jury . asked for a glass of water. and he sexually assaulted her. The Court’s holding in this case is demonstrative of common law contributory negligence. Discussion. A suspect was apprehended. Plaintiff traveled to an area just north of Chicago. when she was awakened late at night by a knock on the door. 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). 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. She was staying at a motel.

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. The court of appeals.also found that Plaintiff had been negligent as well. and which is a legally contributing cause . .  Prior to the class she had signed a release and consent form. in dicta. According to the Restatement of Torts Section: 463. 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. . 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.  The court ultimately held that the hidden rock on the ATV course was an unreasonable risk not within the scope of the release. and 3% to Defendants. apportioning blame 97% to Plaintiff. . Synopsis of Rule of Law. and the court of appeals can reverse only when persuaded that in applying this standard the district judge abused his discretion. as the latter was the trier of fact. CONTRACTUAL OR EXPRESS ASSUMPTION OF THE RISK Moore v. was thrown from the ATV and injured. Did the court err in allowing the jury’s determination to stand.” * 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. Hartley Motors Brief Fact Summary.” 6. The question of apportionment of blame was properly one for the jury. contributory factor to the circumstances that resulted in her injuries and denying her Motion for a New Trial? Held. disagreed with the jury’s apportionment. It held that the issue of apportionment was one of fact and thus properly within the purview of the jury. Plaintiff purchased an ATV and attended an ATV rider safety course where she hit a rock.  She sued Defendants for negligence. 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. ASSUMPTION OF THE RISK A.  However. but declined to reverse. that Plaintiff’s negligence was a relevant. Issue. Discussion. in bringing about the plaintiff’s harm.

thus the class providers did not have a “decisive advantage of bargaining strength” in requiring the release for participation. Citrus Community College District Brief Fact Summary. the ATV Safety Institute. the dealer.  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. Plaintiff Moore bought a Suzuki four-wheel ATV in May 1993. such pre-injury releases are unenforceable if they offend public policy. or was an unnecessary danger. Plaintiff was thrown from her ATV when it struck a rock obscured by high grass. a court must determine whether the risk that caused the injury was within the scope of the release. and the instructor of the class.  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.  He sued the college of the pitcher but his action was barred by the assumption of the risk. IMPLIED ASSUMPTION OF THE RISK Avila v.  Moreover.  During the class.Facts. the court analyzed that the signed release did not violate public policy because the ATV safety course was voluntary for ATV purchasers. the salesperson offered them a $50 rebate upon voluntary completion of an ATV rider safety class. Discussion. Issue.  The Moores elected to attend the class and signed a consent form and release before the class began. 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.  She sued Hartley Motors. Plaintiff appealed. and the higher court reversed and remanded. Plaintiff Avila was hit in the head by a ball thrown by the pitcher while he was at bat.  Second. or if they are ambiguous.  The superior court granted summary judgment for Defendants finding that the signed release was valid. which released the course providers from liability and damages “arising out of participation in the ATV RiderCourse.  First. B. . resulting in serious injuries. Held. 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. No.”  Based on that language. even if a release comports with public policy.  At the time of the sale.  Reversed and remanded. the court discussed the language of the release. alleging that Defendants negligently concealed the fact that the course was unsafe.

  Avila staggered.  The danger to the plaintiff is not one which defendant is required to extinguish or warn about. even intentionally. cracking his batting helmet. 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.  Avila walked off the field and went to the bench.  On January 5. his manager. Facts.  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.  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.  Assumption of the risk applies in the sporting context when a defendant owes no duty to protect a plaintiff from particular harms.  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. Discussion.  This decision stands for the proposition that where primary assumption of the risk exists. so a Citrus College player yelled to the Rio Hondo dugout that they needed a pinch runner. he was playing a preseason game against Citrus Community College. is an inherent risk of baseball. the helmet manufacturer. and the California Supreme Court reversed.Synopsis of Rule of Law. played baseball for the school’s team. (2) failure to supervise and control the Citrus College pitcher was barred by Avila’s primary assumption of the risk. there is no liability to the plaintiff because there is no negligence on the part of the defendant to begin with. the court of appeals reversed.  The trial court dismissed the action.  During the game. as being hit by a pitch. etc. a Rio Hondo Community College student.  In general. felt dizzy. (3) failing to provide umpires likewise did not increase the risks inherent in the game.  Reversed and remanded. when Avila came to bat in the next inning. his manager told him to go to first base and to stay in the game. he was still in pain.  He sued both colleges. the Citrus College pitcher hit him in the head with a pitch.  Nevertheless.  At second base.  Plaintiff Avila. . In determining whether primary assumption of the risk bars liability in a sporting context. Yes. and Defendants did not have a duty to decrease the risks in the game.  No one tended his injuries. a Rio Hondo pitcher hit a Citrus College batter with a pitch. 2001. (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. holding that the action was barred by assumption of the risk. Held. and complained to his manager of being in pain.  Avila alleges it was an intentional “beanball” throw in retaliation for the previous hit batter. Issue. a defendant does not have a duty to protect a plaintiff from injuries arising from risks deemed inherent in a sport. 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.

Synopsis of Rule of Law. Plaintiff ended up on the tracks with a train approaching. Facts. LANDOWNERS’ DUTIES TO TRESPASSERS.III. What was the Plaintiff’s status at the time of his injury? * What duty of care was Plaintiff owed by the Defendant? Held. and thus entitled to the heightened duty owed by one of that status. Greater Cleveland Regional Transit Authority Brief Fact Summary. The train’s operator was unable to brake in time and the train struck Plaintiff causing him serious and permanent injuries. which the .” The judgment of the lower court was reversed and the action remanded. CARRIERS. LIMITING OR EXPANDING THE DUTY OF CARE 1. INVITEES.” The dissent took further issue with the majority’s characterization of the status of the Plaintiff. The dissent maintained that the majority avoided the fundamental issue at hand. Plaintiff filed suit against the Defendant. The trial court dismissed the security claim. wanton. Conversely. a landowner owes no duty to a licensee or trespasser except to refrain from willful. A landowner owes a duty to an invitee to exercise ordinary care for the invitee’s safety and protection. A jury found for Plaintiff and awarded damages. The trial court instructed the jury to consider the question of whether the evidence showed Plaintiff was an invitee. Plaintiff boarded Defendant’s train after attending a Cleveland Indians baseball game. At some point. Issue. AND CHILDREN Gladon v. He was assaulted after mistakenly alighting from the train. LICENSEES. Defendant appealed. 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. or reckless conduct that is likely to injure him. A jury awarded Gladon (Plaintiff) damages in connection with being struck by a train operated by Greater Cleveland Regional Transit Authority (Defendant). HOST-DRIVERS AND LANDOWNERS A. but permitted the negligent operation claim to proceed to trial. alleging negligent security and negligent operation.” 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 court ruled that the “RTA’s invitation to [Plaintiff] to use their premises did not extend to the area on or near the tracks. Dissent.

  His mother also drowned trying to save him.” . Synopsis of Rule of Law. A “licensee”. in contrast is one who enters the land with the express or implied consent of the landowner. (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. The duty owed in this case is very limited.” The distinction was critical as it goes directly to the duty of cared owed by Defendant. There are three basic categories: “trespassers.dissent maintains is that of “business invitee. an “invitee” is a person who enters the property at the behest of the owner. (e) The possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children. and drowned. A five-year-old boy trespassed into his neighbor’s yard to play by their unkempt.” “licensees. and this type of person generally falls into two categories: business invitees and public invitees. fell in.” That classification determines the standard of care owed by the land occupier. Bennett v. As noted above. Discussion. pond-like pool. (b) The possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children. Finally. the only duty owed is to refrain from willful harm. 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. The common law approach measure the duty owed by the status of the person entering the land. Social guests fall under this category. In some jurisdictions this approach to liability has been abandoned in favor of a generalized duty of ordinary care.” and “invitees.  The father sued the neighbors in negligence. The duty owed an invitee is that the landowner uses reasonable care in maintaining the premises and in their activities. * 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 trial granted the Stanleys’ motion for summary judgment.  Chance fell into the pool and his mother apparently drowned trying to save him. The attractive nuisance doctrine applies only to children who.  Both died. the appeals court affirmed.  The Stanleys did not properly maintain the pool. (b) The possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children. 1997. but had allowed it to fill with rainwater to a depth of over 6 feet. the court reversed the judgment of the lower courts granting summary judgment for the Defendants and remanded.”  Accordingly. 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.  Kyleigh and Chance Bennett. 3 years old and 5 years old respectively.  Bennett sued the Stanleys in negligence. and the Ohio Supreme Court reversed and remanded. Held.”  Bennett ran next door to find his wife and son unconscious in the swimming pool. the doctrine applies mainly to children of grade school age or younger and only rarely to teenagers . were playing at their neighbor Stanleys’ pool on March 20.  Thus.  Yes. (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.Facts.  They had removed a tarp from the pool and fencing from two sides of the pool and it did not have any ladders. are unlikely to appreciate the dangers and to avoid them. (e) The possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children.  The Ohio Supreme court adopted the “attractive nuisance” doctrine of the Restatement of Torts 2d in this case.  Kyleigh told him that “Mommy and Chance are drowning in the water.  It became pond-like and contained tadpoles and frogs with slimy sides covered in algae. because of their youth.  When Rickey Bennett came home on the day of the drowning he found his two young daughters crying. Discussion.  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. Whether property owners have a heightened duty of care to protect child trespassers from dangers upon their land. Issue.

Synopsis of Rule of Law. Along with contributory negligence. . Plaintiff brought an action to recover damages for injuries incurred after he dove headfirst into the shallow end of the Defendant’s swimming pool. the court explains. The appellate court affirmed the lower court’s judgment. Discussion. the Superior Court. 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. In seeking to avoid the confusion and potential for arbitrariness for juries. He struck the bottom of the pool at an odd angle and sustained a fracture to the cervical vertebrae resulting in temporary paralysis. assume the risk of harm associated with the activity in question? Held. He contended that Defendants had a duty to warn visitors of the danger of diving into the pool. by exposing himself to an obvious danger. A plaintiff must 1) know a particular risk. The standard of care owed by a defendant presumes that a plaintiff is required to exercise reasonable care for his own safety. Issue. assumption of risk is traditionally the second complete defense to a negligence claim. This approach presumes a duty of reasonable care is owed to any land entrant regardless of his or her status. Shaw Brief Fact Summary. The Plaintiff suffered injuries to his neck and back after diving into the shallow end of the pool. The assumption of risk defense contains three basic elements. Facts. and 2) voluntarily. 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. 3) assume the risk. which expressly abolished the defense of assumption of risk.O’Sullivan v. The Superior Court granted Defendants’ Motion for Summary Judgment. Plaintiff appealed. 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. therefore Defendants did not owe a duty of care to Plaintiff. arguing that the Massachusetts statute. In an action for negligence. Essex (Massachusetts) granted Defendants’ Motion for Summary Judgment. implicitly abolished the open and obvious danger defense. 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 court reasoned that diving into the shallow end of Defendants’ pool presented an open and obvious danger that was known to the Plaintiff. Plaintiff appealed.

  Plaintiff noticed the unoccupied truck begin to roll forward.  Defendants contended the Plaintiff’s claims were barred by the “firefighter’s rule”.  In the course of this feat. and stopped the truck. Plaintiff assisted in loading medical waste from the premises onto a tractor-trailer truck owned by Defendant Med-Waste.  Moreover.  Facts. Issue. Synopsis of Rule of Law. 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. No. thus barring Plaintiff’s claim.  Plaintiff ran to the truck. the court held that the firefighter’s rule did not apply under South Carolina state law and answered the certified question in the negative. and was not part of South Carolina’s case law. Held. such as that firefighters and police officers are aware of the risks inherent in their chosen professions and therefore have assumed those risks. toward a public street.  The “firefighter’s rule”  is a common law doctrine that precludes a firefighter (and certain other public employees. Plaintiff public safety officer was helping load medical waste onto a truck when the unoccupied truck started rolling towards a public street. the Supreme Court found that the rule is riddled with exceptions and criticisms.  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. . injuries to police and firemen are compensable through workers’ compensation and liability should be borne by the public rather than by individual property owners.  The South Carolina Supreme Court answered no. jumped in. 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. then stopped it and claimed he was injured in the process. Med-Waste.  Accordingly.  However. has been abolished in many jurisdictions. jumped inside.  Courts have. Brief Fact Summary. however.  He sued the Defendant truck company.B. The “firefighter’s rule”  is a common law doctrine still applied in some states that precludes a firefighter (and certain other public employees. THE FIREFIGHTER RULE Minnich v. Inc.  He ran to catch it.  The court discussed several rationales for the rule. Inc.  While working in this capacity. Plaintiff Minnich was employed by the Medical University of South Carolina as a public safety officer. Whether South Carolina adopts the firefighter’s rule. including police officers and public safety officers) from recovering against a defendant whose negligence caused the firefighter or officer’s on-the-job injury.  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. as a policy matter. Plaintiff alleged he suffered serious injuries proximately caused by Defendants’ employees and sued in federal court.

applied the proper standard for duty of care? Held. Defendant had known about the damaged fixture and had reported it to her lessors. The Superior Court of the City and County of San Francisco (California) granted summary judgment in favor of Nancy Christian (Defendant). Plaintiff appealed. Issue. could take proper precautions. courts reason that the public pays to train and compensate firefighters and police officers via taxes. so that he may take necessary precautions. Synopsis of Rule of Law. In some states which still adhere to the firefighter’s rule. yet did not warn Plaintiff. Facts. Christian Brief Fact Summary. Had the trial court. like the host. The porcelain handle of the bathroom faucet broke while Plaintiff was using it. in granting summary judgment in favor of Defendant. had brought an action to recover damages for personal injuries caused by a defective bathroom fixture in an apartment occupied by Defendant. The dissent took issue with what he viewed as a departure from an established and workable framework. No. it is the job of the legislature to enact statutes to provide guidelines for the modern society. the distinctions between trespassers. “[i]n determining the liability of the occupier or owner of land for injuries. He suffered severed tendons and nerves.” It was not a proper function of the court to overturn this system. the negligent taxpayer would incur multiple penalties in exchange for the protection provided to them. a social guest.Discussion. which had predominated tort law for years. Plaintiff brought suit for recovery and the trial court granted Defendant summary judgment. 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. Dissent. licensees and invitees have been developed and applied by the courts over a period of many years.  If these public employees were permitted to bring suit against the taxpayers whose negligence proximately caused injury. Instead. LANDOWNERS Rowland v. Plaintiff was a guest in Defendant’s apartment.  C. . He noted. he has acted as a reasonable man in view of the probability of injury to others. A guest is reasonably entitled to be warned of any dangerous condition. Roland (Plaintiff). The proper test to be applied to the liability of a landowner is whether in the management of his property.

whether the entrant of a property was a “trespasser”. the status is not determinative. and thus the standards of liability were. the moral blame attached to the defendant’s conduct. which include: “the defendant’s conduct. The classifications do not take into account certain factors that need to be considered. the court outlined a different test. a “licensee” or an “invitee” determined the degree of care owed. or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability. Safeco Insurance Co. In common law. California is one of the first states to depart from the common law approach. the policy of preventing future harm. Judgment was entered for defendant landlord based on a landlord’s general immunity to liability from tenants and visitors.” It no longer makes sense to hold someone to a certain duty of care. licensee. and. * In Rowland. stating that “[i]t is apparent that the classifications of trespasser. To find that one person is owed a lesser duty of care than another based on these archaic classifications. and the prevalence and availability of insurance.” Thus. although the plaintiff’s status as a trespasser. Plaintiff sued landlord for landlord’s failure to repair the balcony.” It is unreasonable to apply the historical or traditional terminology to modern society. LESSORS Pagelsdorf v. often do not reflect the major factors that should determine whether immunity should be conferred upon the possessor of land. literally. Brief Fact Summary. licensee. D.Discussion. a landlord owes to his tenant or anyone on the premises with the tenant’s consent a duty to exercise ordinary care. . Plaintiff was injured when tenant’s balcony rail collapsed while she was helping tenant move. and the exceptions to those immunities. “status” conscious. the immunities from liability predicated upon those classifications. Synopsis of Rule of Law. and invitee. based on these classifications. * Therefore. offends society’s moral and humanitarian values. Under Wisconsin 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. the degree of liability assigned an owner or occupier of land was assessed according to the status of persons entering the property. the court adopts a more generalized “reasonable person” standard. The law evolved in such a manner as to place primary importance on land ownership. Thus.

236 N. injuring her.2d 1. The modern day apartment lease is viewed as a contract rather than a conveyance. * The policies discussed in Antoniewicz support.2d 836. Reszcynski. Plaintiffs appeal.W. 10 (1975)]. 70 Wis. the landlord is generally not liable to tenants unless one of the exceptions applies and no exception applies in this case. Pagelsdorf) and James Pagelsdorf (Plaintiffs). Pagelsdorf leaned against the railing of the second floor balcony and it collapsed. owned a two-story duplex with four balcony porches. 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. The Defendant. Mrs. Judgment reversed and cause remanded. the Court’s decision to abandon the landlord’s cloak of immunity to tenants and visitors. The Court has implied a warranty of habitability in such contracts. An implied warranty of habitability requires a lessor to deliver the premises to the lessee in a habitable condition. * This court previously abolished the distinction between licensees and invitees [Antoniewicz v. Discussion. Blattner to move some furniture. Richard Mahnke (Defendant). yet immunize them from liability from injuries resulting from a failure to comply with such a warranty. Did the trial court err in failing to instruct the jury that Defendant owed Mrs. . in the present case. Judgment was entered on the verdict. Pagelsdorf was assisting Mrs. the only recourse for a landlord’s failure to comply with this warranty is a right to withhold rent until repairs are made. The railing had a dry rot condition and should have been replaced. Issue. Generally. The Plaintiffs in this matter were Carol Pagelsdorf (Mrs. Pagelsdorf a duty to exercise ordinary care in maintaining the premises? Held. 854-55. It would be anomalous to apply a warranty of habitability to landlords. Pagelsdorf a duty of ordinary care. Defendant rented the upper unit to the John Blatnner and Mary Katherine Blatnner (Mrs. Mrs. Blatnner).Facts. * Following the traditional rule. dismissing the complaint. the Plaintiff would not be entitled to an instruction that Defendant owed Mrs. Yes. However.

skill. 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. because medicine is not an exact science. Synopsis of Rule of Law. TRADITIONAL DUTIES OF HEALTH CARE PROVIDERS IN TRADITIONAL PRACTICE Walski v. the court concludes. alone may not be sufficient to meet the burden of establishing professional error. Appellants operated to remove Appellee’s thyroid. Discussion.DUTIES OF MEDICAL AND OTHER PROFESSIONALS 1. The Supreme Court of Illinois affirmed the directed verdict entered in favor of the Appellants.” * A plaintiff’s introduction of conflicting expert testimony. Facts. resulting in a loss of his or her voice. and proficiency exercised by reasonably careful. no expert testimony is necessary. The court held that the patient failed to establish a standard that the doctors were bound to follow. “[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. acting under the same or similar circumstances. The trial court directed a verdict in favor of the Appellants and the intermediate appellate court affirmed.” Finally. 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 common scenario of “dueling experts”. As the court clarified. The court recognized the difficulty inherent in requiring a jury to evaluate certain standards of professional conduct. “[i]t . Tiesenga Brief Fact Summary. the Appellants mistakenly cut them. In a medical malpractice action. Appellants sought review. Expert testimony is necessary to establish that a defendant fell below the standard of care. A common risk in such a procedure is damage to the patient’s recurrent laryngeal nerves. Did Appellee meet the burden of establishing Appellants’ medical malpractice? Held. Differences in opinion are consistent with the exercise of due care. causing paralysis of the vocal chords. It is rather a profession. and prudent practitioners in the same class to which he belongs. skillful. In attempting to segregate the laryngeal nerves in order to avoid damage. A physician must exercise that degree of care. the Appellate Court for the First District (Illinois) affirmed a directed verdict entered in favor of Appellees. The plaintiff in a medical malpractice action must establish the standard of care through expert testimony. Issue. which involves the exercise of individual judgment within the framework of established procedures.

suffered severe and permanent injuries as a result of the cesarean. Plaintiffs appealed.” Vergara v. This was a case alleging medical malpractice. A physician must exercise that degree of care. or a disagreement of doctors of equal skill and learning as to what the treatment should have been. The dissent objected to the standard outlined by the majority. acting under the same or similar circumstances. Plaintiffs brought an action against the Defendant for injuries sustained by their infant son. and prudent practitioners in the same class to which he belongs.” which differentiated between the manners of treatment acceptable in different locales. which was a jury verdict in favor of Defendant. Javier Vergara. The Court of Appeals of Indiana affirmed the trial court’s judgment. and proficiency exercised by reasonably careful. skill.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. Issue. objective standard employed by the majority of jurisdictions. The dissent contends that the majority position served to confuse. Plaintiffs alleged that these injuries were the result of the Defendant’s negligence. Prior to Vergara. Doan Brief Fact Summary. 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. which is articulated above. in which Plaintiffs contend that Defendant failed in his professional responsibility in performing a cesarean section Plaintiff’s infant son. rather than clarify. Did the lower court properly instruct the jury regarding the standard to apply in evaluating Defendant’s professional conduct? Held. Plaintiffs alleged that their infant suffered severe and permanent injuries during delivery as a result of the Defendant’s negligence. does not establish negligence. Dissent. The Supreme Court of Indiana opted to adopt a more objective standard. In adopting the new standard. skillful. Facts. the Vergara court simply brought Indiana law in line with the more universal. No. Indiana employed a professional standard of care. the standard of care to which physicians were expected to adhere. “the modified locality rule. Discussion. . Synopsis of Rule of Law.

  A divided appellate division reversed. Plaintiff States underwent surgery for removal of an ovarian cyst. causing right thoracic outlet syndrome and reflex sympathetic dystrophy. RES IPSA LOQUITUR States v.  In the course of the surgery. some events ordinarily do not occur in the absence of negligence. Whether a jury can rely on expert medical opinion in the absence of direct evidence of negligence to support a res ipsa loquitur theory. Yes.  Plaintiff Kathleen 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.  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. which does. but the New York Court of Appeals affirmed the trial court Issue. the anesthesiologist negligently hyperabducted her right arm beyond a 90-degree angle for an extended period of time resulting in injury to her.  Conceding the absence of direct evidence of negligence.  Facts.  Expert testimony is frequently necessary in a medical malpractice case brought on a res ipsa loquitur theory. which does not encompass the specialized knowledge necessary. Synopsis of Rule of Law. and the common knowledge of physicians.  She sued the hospital. 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. Held. Plaintiff opposed the motion.  She believed that during the operation the anesthesiologist negligently hyperabducted her right arm beyond a 90-degree angle for an extended period of time. Lourdes Hospital Brief Fact Summary.”  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.”  It derives from the understanding that according to common knowledge. 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. submitting expert medical opinion that her injuries would not have occurred in the absence of negligence. the jury would have to rely on expert medical opinion rather than their own common knowledge and everyday experience.  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. Res ipsa loquitur is a doctrine of ancient origin which means “the thing speaks for itself.  At the close of discovery.2. some events ordinarily do not occur in the absence of negligence.  .

Spangard Brief Fact Summary. The evidence established that his condition was the result of trauma. Plaintiff was diagnosed with appendicitis and was scheduled for surgery. so that his back rested against two hard objects. He brought suit.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. The Supreme Court of California reversed the lower court’s ruling because the res ipsa loquitur doctrine applied to Defendants. inflict. nor had he suffered any injury that might have been the cause. the Supreme Court of California provided a very broad interpretation of res ipsa loquitur. Discussion. Plaintiff appealed. In a personal injury action. Synopsis of Rule of Law. His condition worsened. Would the application of the doctrine of res ipsa loquitur have been appropriate in this case. The doctrine of res ipsa loquitur applies with equal force in cases wherein medical and nursing staffs take the place of machinery and may. injury upon a patient who is thereafter in no position to say how he received his injuries. Yes. Plaintiff complained of neck and back pain. because they had control over Plaintiff’s body and instrumentalities that might have caused the injuries which Plaintiff sustained. (3) it must not have been due . thus rendering the trial court’s judgment of nonsuit improper? Held. the Superior Court of Los Angeles County (California) entered judgments of nonsuit as to all Defendants in an action for damages for personal injuries. through carelessness or lack of skill. Discussion. eventually resulting in paralysis.   Ybarra v. and in the course of preparation for surgery members of the surgical team adjusted Plaintiff. (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant. He testified that prior to the operation he had never had any such pain.  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.  This decision stands for the proposition that expert testimony is frequently necessary in a medical malpractice case brought on a res ipsa loquitur theory. After surgery. Issue. In explaining the applicability of res ipsa loquitur. 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. the plaintiff’s injury is more likely than not to have resulted from negligence. or permit the infliction of. After being given an injection. Facts.  The normal basis for medical res ipsa loquitur is that. as a matter of common knowledge.

Plaintiff sought review. . including cases of medical or dental treatment and hospital care. contending that the purpose of the procedure was cosmetic. which is material to in order for the patient to make an intelligent decision whether or not to undergo a proposed procedure. allegedly resulting in the critical loss of certain functions of her tongue. It held that the surgeon’s failure to divulge to a competent adult patient. Plaintiff underwent surgery to remove a tumor in her neck. Thus. Failure to do so constitutes professional misconduct. the physicians treating her did not properly inform her of the possible consequences and should have been held liable.to any voluntary action or contribution on the part of the plaintiff. It is applied in a wide variety of situations.” 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.” 3. The Superior Court (Massachusetts) dismissed Harnish’s (Plaintiff) negligence claim after a medical malpractice tribunal concluded that Plaintiff’s evidence was inadequate. She maintained that if she had been apprised of the risk. Children’s Hospital Medical Center Brief Fact Summary. Issue. 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. sufficient information to enable the patient to make an informed judgment whether to give or withhold consent to a medical or surgical procedure. constituted professional misconduct. and the resulting injury foreseeable. 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. Synopsis of Rule of Law. The court reversed the dismissal of the Plaintiff’s action against the Defendants. 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. She brought suit. and thus necessary for a patient to be sufficiently informed? Held. In the course of the procedure her hypoglossal nerve was severed. she would not have consented to the procedure. INFORMED CONSENT Harnish v. Facts. she asserted.

the inability of the physician to predict results. . In these circumstances. the operator of another coal strip-mining operation. Defendant was engaged in a coal strip-mining operation. Regarding such consent. and Defendant had placed a pump in the trench to remove the water. the irreversibility of the procedure. would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment. Synopsis of Rule of Law. (2) if the owner had no reason to believe the business invitee would discover the condition or realize the risk of harm. the benefits to be reasonably expected.” NONFEASANCE 1. whereby trenches were dug in order to remove coal deposits. which arose from the death of the Plaintiff’s husband. including their risks and benefits. THE NO DUTY TO ACT RULE Yania v. One trench contained several feet of water. Bigan Brief Fact Summary. if that is the situation. to assist him in starting the pump. in what the physician knows or should know is his patient’s position. 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. the owner knew or could have discovered the condition which. the nature and probability of risks involved. 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. Facts. but only if. 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. if known to him he should have realized involved an unreasonable risk of harm to the business invitee. Defendant asked Yania. Joseph Yania (Yania). Harnish illustrates another basis for medical malpractice liability: a physician’s failure to provide information to the patient. liability flows from the defendant’s failure to obtain the plaintiff’s informed consent.Discussion. the likely result of no treatment. if that be the case. and the available alternatives. It dismissed her wrongful death and survival actions against Defendant. materiality may be said to be the significance a reasonable person.” 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.

to contend that such conduct directed to an adult in full possession of all his mental faculties constitutes negligence is without merit. .According to Plaintiff. the court affirmed. holding that Yania was a reasonable and prudent adult and performed an act. Yania jumped into the water and drowned. The court held that absent a legal responsibility to rescue Yania for placing him in the perilous position. No. * The fact that Defendant saw Yania in a position of peril in the water. Jones held that it was the performance of that act and not defendant’s conduct which caused Yania’s death. Issue. imposed upon him a moral duty. it was the performance of that act that caused Yania’s death. there was no duty of rescue. not the enticement. Although Defendant enticed Yania to perform a dangerous act. by the employment of cajolery and inveiglement. was perilous. However.” 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. Did the trial court err in ruling in favor of Defendant? Held. On appeal. The trial court properly ruled for Defendant. Defendant taunted and urged Yania to jump into the water. The trial court sustained Defendant’s demurrer and dismissed Plaintiff’s actions. which he knew or should have known. 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 Plaintiff initiated wrongful death and survival actions against Defendant. and failed to rescue him. Justice Benjamin R. the court stated that the “only inference deductible from the facts alleged in the compliant is that Bigan. On appeal. Discussion. alleging that Defendant taunted her husband. not a legal duty. failed to warn him of the danger.

  Plaintiff. so they took her to a friend’s home then to the hospital where she was pronounced dead. checking on her.  The court of appeals agreed. Mraz Brief Fact Summary. Yes.  After drinking the entire bottle.  Accordingly.  She died as a result and her parents sued. 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. 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.  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. changing her vomit-saturated shirt. Held.  The complaint was dismissed on the ground that Illinois case law eliminated liability of social hosts for providing alcohol.  Facts. however.  Although the defendants claimed that none of their acts indicated a voluntary assumption of responsibility for the decedent.  The boys checked on her and moved her to the couch but refused to get medical assistance. 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.  Later their father ordered she be removed from the home. 21 and 18 years old. Michael and Brian Mraz. Synopsis of Rule of Law.  She went unconscious and started vomiting while unconscious. Issue. and placing a pillow under her head. the boys put her in the downstairs family room where they observed her vomiting profusely and making gurgling sounds. Elizabeth lost consciousness. EXCEPTIONS QUALIFICATIONS AND QUESTIONS Wakulich v.2. .  They later checked on her and removed her vomit-soaked blouse and put a pillow under her head to prevent aspiration. placing her on a couch. the court disagreed.  According to the complaint. 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.  They did not seek medical attention and prevented others from calling 911 or seeking medical attention. the court of appeals held that the trial court erred in dismissing counts based on voluntary undertaking. 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.  The court found that Michael and Brian Mraz demonstrated an undertaking concerning decedent’s well-being by carrying decedent downstairs.

put ice on his head and then drove around for two hours. which held that Defendant did not assume a duty to aid his companion. The jury found for the Plaintiff in an action for Farwell’s death. Farwell died three days later from the beating and there was evidence that prompt medical attention could have prevented this. Yes. stopping at drive-in restaurants. Issue. finding that Defendant had an affirmative duty to aid. The Supreme Court of Michigan reversed and reinstated the jury verdict. Farwell “went to sleep” in the back of the car and around midnight Siegrist drove him to his grandparents’ home. and he could have rendered assistance without endangering himself. Siegrist found him under a car. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiff’s interests. Synopsis of Rule of Law. 16. Farwell v. When teenage girls walked by they attempted conversation without success. . and neither knew nor should have known of the need for medical treatment. it has been predicated upon the existence of a special relationship between the parties. 18. Did the appellate court err in reversing the trial court’s ruling in favor of Plaintiff? Held. The Restatement Third of Torts § 43 recognizes that an actor who undertakes to render services to another. but the court of appeals reversed on the ground that Siegrist had not assumed any duty to aid Farwell. or if the other person relies on the actor’s using reasonable care in the undertaking. Courts have been slow to recognize a duty to render aid to a person in peril. and his friend David Siegrist. where he left him in the back of the car after an attempt to arouse him. Keaton Brief Fact Summary. if defendant knew or should have known of the other person’s peril. Siegrist escaped. Facts. The girls complained to friends that they were being followed. he knew or should have known of the peril the deceased was in. When such a duty has been found. Richard Farwell. and six boys chased Farwell and Siegrist back to a trailer lot. 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. in a wrongful death action for negligence. because he had a special relationship with the deceased. had a few beers while waiting for a friend to finish work. in such a case. Plaintiff appealed a ruling from the Court of Appeals of Michigan. but Farwell was severely beaten. when the actor knows or should know that those services will reduce the risk of harm to the other. he is required to render reasonable care under all circumstances.Discussion.

  After Mairs hit a motorcyclist.  After ten minutes all three got back in the car and leave the scene. was hit by another vehicle and died from injuries sustained in both accidents. no one called for assistance.  Facts.  Swanson saw Podias lying in the roadway and because he saw no movement and heard no sound.” Therefore. Synopsis of Rule of Law.  Swanson instructed Mairs “not to bring up his name or involve him in what occurred”. on appeal. 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. The mere knowledge of serious peril threatening death or great bodily harm to another.  Meanwhile.  The victim.  Mairs lost control of the car.  They decided to leave with Mairs driving while it was raining and the road was wet. the group left the scene of the accident and did not call for emergency assistance. struck a motorcycle driven by Plaintiff Podias. Under these circumstances. Farwell and Siegrist were companions on a social venture. because he had a special relationship with the deceased. Mairs called his girlfriend. 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. a vehicle operated by Patricia Uribe ran over Podias. which an identified defendant might avoid with little inconvenience. and went over the guardrail.  Swanson in fact dissuaded anyone from calling 911.Discussion.  Defendants Mairs. but none of them emergency calls. a special relationship existed between the parties.  The three drove south for a short while until Mairs car broke down. who was badly beaten and unconscious.  The trial court granted summary judgment in favor of Swanson and Newell and plaintiff appealed. who died as a result of injuries sustained in both accidents. while Swanson and Newell ran off into the woods. left lying in the road. Podias v. the court reversed and reinstated the jury verdict. Swanson and Newell were 18-year-olds drinking at a friend’s home. Mairs Brief Fact Summary. and he could have rendered assistance without endangering himself.  Instead. As such. . told Mairs and Newell that he thought Mairs had killed the cyclist.  Even though all three had cell phones. 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. Siegrist knew or should have known when he left Farwell. in the back seat of his car that no one would find him before morning.  Mairs pulled over in the bushes and waited for his girlfriend to arrive. creates a sufficient relation to impose a duty of action. Defendant Mairs was driving a car drunk which held defendant passengers Swanson and Newell. finding that Defendant had the affirmative duty to aid. he knew or should have known of the peril the deceased was in.

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.Issue.  In addition. whose actions did not result in the car accident. which an identified defendant might avoid with little inconvenience.  The risk of harm or death to Podias from the defendants’ failure to summon help was readily foreseeable. NONPERFORMANCE OF PROMISES A. he is only responsible when he attempts to act and performs incorrectly. the appeals court reversed the trial court’s granting summary judgment for defendants and remanded. . creates a sufficient relation to impose a duty of action.  Whether passenger defendants. Defendant appealed. 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. nevertheless had a duty to prevent bodily harm to the victim of the accident. Synopsis of Rule of Law. Discussion.  Accordingly. Yes. Held. Judgment was granted to the Plaintiffs.  Ordinarily.”  The mere knowledge of serious peril threatening death or great bodily harm to another. UNENFORCEABLE PROMISES Thorne v.  All three had cell phones and used them for their own purposes rather than to call for emergency assistance. the harm to the victim could have been prevented with relative ease.  The court found that the record contained facts from which a reasonable jury could find defendants breached a duty which proximately caused Podias’ death. The Restatement Third of Torts § 43 recognizes that an actor who undertakes to render services to another. One who takes on a responsibility gratuitously is not responsible for consequences if he fails to act. 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.  However. Plaintiffs filed an action for nonfeasance. when the actor knows or should know that those services will reduce the risk of harm to the other. or if the other person relies on the actor’s using reasonable care in the undertaking. 3.

Plaintiffs brought an action against Defendant for failure in his promise to insure a boat that they jointly and equally owned. but not for a nonfeasance.  In October 2005. At issue was whether there existed grounds for an action in tort. In May 2004. must rest solely upon the breach of the contract and a tort cause of action is not available. and does so incorrectly is he held liable. can a defendant be held liable for failing to act when he has promised to do so gratuitously? Held.Facts. The court held that only when a party engages in a course of action on behalf of another. but due to an error in the address that ADT gave to the ambulance dispatchers. No. and are. The court asserts that only when one begins a job and he does so incorrectly can damages be assessed. Discussion. Plaintiff Spengler signed a contract with Defendant ADT to install and monitor a security alarm at the home of his mother Veronica Barker. The primary distinction is between the laws of torts and contracts. Brief Fact Summary. The court further stated that one cannot sue in tort for broken promises.  Spengler sued on both contract and tort theories but the tort theory was dismissed. Defendant ADT installed and monitored a call button alarm in the home of plaintiff Spengler’s mother. Plaintiffs brought suit for “nonfeasance” alleging that Defendant was liable for having failed to insure the vessel. left to the conscience of the individual. ADT Security Services. ADT received an alarm from Barker. and there exists no independent duty outside the contract to perform. the ambulance was delayed 16 minutes. Facts. liability. In tort law. if any. as rights of imperfect obligation. Issue. Defendant promised Plaintiffs that he would insure the vessel.  By the time they got there it was too late and Barker died. Inc. therefore. ADT received an alarm from the mother.  Where an actor’s only violation is that of a broken promise to perform a contract. Synopsis of Rule of Law. but due to an error in the address that ADT gave to the ambulance dispatchers .” B. which he requested due to her cancer of the larynx leaving her unable to speak.  The agreement included a call button alarm that Barker could activate when in distress. which allowed her to activate it in distress prompting ADT to dispatch an ambulance. and the vessel was wrecked near the Carolina coast. ENFORCEABLE PROMISES Spengler v. As the court notes. He failed to do so.  In October 2005. He would be responsible for a misfeasance. Prior to a planned sailing from New York to North Carolina. “[t]here are many rights of moral obligation which civil laws do not enforce.

she never regained consciousness. liability. and died in the hospital. if any. . and thus was not proper on appeal. it does not appear that Michigan common law follows the Restatement approach. 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. Issue. ADT committed misfeasance subjecting it to tort liability.  The Restatement 3d of Torts: Liability for Physical Harm § 42 (2005) states that an actor who undertakes to render services to another.  By the time they got there. not Michigan common law.  Where an actor’s only violation is that of a broken promise to perform a contract. finding that ADT breached no duty independent of the contract. when the actor knows or should know that the services will reduce the risk o physical harm to the other. must rest solely upon the breach of the contract.  The court also granted summary judgment to Spengler on the contract claim. and that the $500 limitation of liability clause was unconscionable and unenforceable. or (b) the other person relies on the undertaking. Discussion. and thus ADT did not have an independent legal duty to perform. According to this case.  This provision might have helped Spengler. ADT’s obligation to promptly and correctly dispatch emergency medical services to Barker’s home emanated only from the contract. 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. no tort claim was available to Spengler. finding that ADT breached the contract and limiting damages to the $500 amount stated in the contract. Held.  Spengler sued ADT alleging that by providing an erroneous address to the dispatcher. No.  The court of appeals determined that in this case.  Spengler appealed arguing that the court erred in finding the case sounded in contract instead of tort.  Moreover. 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.  The district court granted summary judgment for ADT on the tort claim. the ambulance was delayed 16 minutes.in response to the alarm. Barker’s heart rhythm was asystolic. and there exists no independent duty outside the contract.  Accordingly.

  Plaintiff argued that Iseberg was an agent of Gross and Frank. Held. and voluntary custodian/protectee. or warn him of. innkeeper/guest. killing him. an obligation may be imposed on the one to exercise reasonable care to protect the other from such risk. business invitor/invitee. Mr. Whether Gross and Frank had a special relationship with Iseberg such that they had a duty to act reasonably to protect him from. and an unreasonable risk of harm arises within the scope of that relationship. Slavin rang Iseberg’s doorbell and shot him four times when he answered the door. lost his entire investment and told two partners that he wanted to harm Iseberg as a result.  Gross told Frank about these threats. DEFENDANT’S RELATIONSHIP WITH THE PLAINTIFF Iseberg v. but neither told Iseberg.  Slavin told Gross several times that he wanted to harm Iseberg and then commit suicide.  A few years later.THE DUTY TO PROTECT FROM THIRD PERSONS 1. however. Slavin’s attack. Plaintiff Iseberg and defendants were in a partnership that eventually dissolved. such risk.  Much time passed and because the property did not sell.  In early 2000.  Historically there have been four such relationships: common carrier/passenger. if the risk is reasonably foreseeable. Slavin. or to render aid when it is known that such aid is needed. Gross formed a business together called Vernonshire Auto Laundry (“VAL”). No. Slavin rang the doorbell at Iseberg’s home and shot him four times when he answered the door. did not find a principal/agent relationship between the defendants and Iseberg at the . Frank started a corporation. giving rise to a duty to warn of Slavin’s threats. Slavin lost his entire investment.  They contacted Plaintiff Iseberg. Synopsis of Rule of Law.  VAL and LFD formed a partnership with each company contributing funds to purchase the land.  The law only imposes a duty to act where a “special relationship” exists between the parties.  When one of these special relationships exists and an unreasonable risk of harm arises within the scope of that relationship.  One of the partners. who was in the process of acquiring land to develop into a strip mall. LFD. Slavin and Mr.   Iseberg and one Mr. a lawyer and real estate developer.  The court. Gross Brief Fact Summary. When a special relationships exists between parties. an obligation may be imposed on the one to exercise reasonable care to protect the other from. if the risk is reasonably foreseeable.  The two partners had never warned Iseberg. leaving VAL with sole ownership of the property. Issue. in order to complete that transaction. or warn him about.  Slavin became mentally unbalanced and focused his anger on Iseberg. or to render aid when it is known that such aid is need Facts.  A dispute arose among the partners and the partnership was dissolved.

When the avoidance of foreseeable harm requires a defendant to control the conduct of another person.time of the injury. Tatiana’s parents. and failure to warn Tarasoff or her parents. Plaintiffs sought review. Regents of University of California Brief Fact Summary. with respect to all risks that make the conduct unreasonably dangerous. police. Discussion. Lawrence Moore. they alleged. 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. in spite of his expressed intentions to kill Tarasoff. and the Regents of University of California (Defendants).  Not finding any other special relationship. he had confided to his therapist. They further alleged that Dr. 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. Defendants maintained that they owed no duty of care to the victim. Prosenjit Poddar. Synopsis of Rule of Law. and that the police had briefly detained him. or to warn of such conduct. In October 1969. Moore had warned campus police of Poddar’s intentions. This. contended that only a short time prior. a psychologist employed by University of California. and were immune from suit.  Moreover. A defendant owes a duty of care to all persons who are foreseeably endangered by his conduct. Did Defendants owe a duty to the victim thus making them liable for the harm that ensued? Held. the court held that defendants had no duty to protect Iseberg. 2. . Plaintiffs. 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. Prosenjit Poddar (Poddar) murdered Tatiana Tarasoff (Tarasoff). Issue. Dr. Poddar had expressed his intention to do so. Facts. liability is imposed only if the defendant bears some special relationship to the dangerous person or to the potential victim. but then released him. 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. DEFENDANT’S RELATIONSHIP WITH DANGEROUS PERSONS Tarasoff v. the complaint did not allege that the risk of harm arose from the agency relationship.

pursuant to state statute. in making that determination. As a general proposition. or under applicable professional standards reasonably should have determined. the court concluded. immunity was afforded to the police. “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. the court explained that. “[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. with respect to the potential liability of the police. 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.” More specifically. The court began its analysis by addressing the “special relationship” required that imposes a duty on an individual to control another. the court explained. that a patient poses a serious danger of violence to others.” Thus. and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances.” This consideration was critical to the circumstances in Tarasoff. “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. Discussion. whether or not such discretion was abused. “[i]n attempting to forecast whether a patient presents a serious danger of violence. then the hospital must use reasonable care in the circumstances to prevent such harm. render a perfect performance. a court does not require that a therapist. sufficient to impose a duty to warn her of her Poddar’s intention. first noting “[o]nce a therapist determines. knowledge.* The court concluded that the police did not have the requisite special relationship with Tarasoff. . or (b) a special relation between the actor and the other which gives to the other a right of protection.2 affords immunity only for ‘basic policy decisions. There is a line between discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not. 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.’” Thus.” * Finally. the therapist need only exercise that reasonable degree of skill. 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. While the discharge of this duty of due care will necessarily vary with the facts of each case. “[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. Section 820. In Tarasoff.

observed “duty and liability are matters of public policy . the Supreme Court of Oklahoma. No.Brigance v. that the restaurant’s sale of the alcoholic beverage to the noticeably intoxicated patron could have been the proximate cause of the alleged injuries. who the Defendant knew had driven the group to the restaurant. Velvet Dove Restaurant. of duty. while noting that the Legislature had not spoken directly to the subject of liability under the kinds of circumstances in question. noting the change in the trend of tort law with respect to alcohol consumption and driving. The District Court of Oklahoma County (Oklahoma) dismissed the complaint for failure to state a claim upon which relief could be granted Plaintiffs. or contributed to his incumbent state of intoxication that caused a one-car accident in which Plaintiff was injured. and those who provide alcohol. 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. causation and harm applicable to all negligence actions. In a negligence action. . Brief Fact Summary. Facts. Did the former common law rule shielding bars and restaurants that serve alcohol from civil liability apply? Held. as a matter of law. Plaintiff brought suit. . the court included an analysis. Inc. Plaintiffs appealed. The trial court dismissed the claim.” Having established the possibility of liability. Plaintiffs seek damages against Velvet Dove Restaurant. Defendant served alcohol to a group of minors that included Jeff Johnson (Johnson). discarded it. With respect to causation. Noting that the former common law rule was an anachronism and unrealistic within the framework of modern tort law. under the standard framework. (Defendant) alleging that Defendant served alcohol to clearly intoxicated persons. Synopsis of Rule of Law. 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. The court in Brigance. Inc. the court would not rule out. overturning the lower courts’ decisions. breach. This would be an issue of fact for the jury.” Thus. the court. . Plaintiffs alleged that the alcohol Defendant served to Johnson either caused his intoxication. Issue. Discussion. subject to the changing attitudes and needs of society. 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.

He later testified that he became physically ill.500. (Appellant) company challenged the decision. in its cars.S. The court concluded that the employee failed to establish an essential element of the zone of danger test. Synopsis of Rule of Law. Pacific Union R. or employees of such carrier. In the accident. . A jury found for Appellee. A train Appellee was operating collided with a car that had gotten trapped in a Kansas railroad crossing. and he was was awarded $121. “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. Appellee brought a claim against his employeer. Section: 51 et seq. works.00 damages. may he successfully bring a cause of action under FELA for emotional injury when such injury was not related to any physical trauma? Held. 532. Issue. one person died and two were severely injured. or by reason of any defect or insufficiency. 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.Thus. roadbed. and thus. due to its negligence. Union Pacific Railroad Brief Fact Summary. boats. Gottshall. wharves.” NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 1. and reversed the judgment. machinery. engines. seeking recovery for negligent infliction of emotional distress. and subsequently suffered emotional injury.S. Appellant sought review. Appellee sustained no physical injuries in the collision.R. 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. appliances. 512 U. or other equipment. Grube (Appellee) was employed by Appellant. track. Facts. THE EMOTIONAL DISTRESS CLAIM Grube v. Did the Appellee meet the “zone of danger test” outlined in Conrail v.S.C. agents. and attempted to render aid to the victims.

the zone of danger test. Plaintiffs. “[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. to determine the viability of a claim. THE LOSS OF CONSORTIUM CLAIM Boucher v. Gottshall. Daniel Boucher. who suffered emotional distress because of another’s negligence. if one member of the relationship is tortiously injured. the court drew a fine distinction: “The zone of danger test .” Interpreting the Conrail decision narrowly. does not necessarily require that there be fear for one’s personal safety expressed contemporaneously with a collision. the Grube court again quoted Conrail. cooperation.” The Conrail court prescribed three tests. but that may manifest itself in physical symptoms.S. As that court stated. .Discussion. following surgery. Bouchers’ son (Plaintiffs). 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. Accordingly. the primary authority with regard to FELA interpretation. . The court in Conrail explained. 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. “[u]nder the physical impact test. The Fifth District Court. However. society.” With regard to the second.” 2. at issue here. 532. 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. Plaintiffs appealed. The court in Grube cites Conrail v. . 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. Synopsis of Rule of Law. and Ms. Dixie Medical Center Brief Fact Summary. may recover damages only if they are placed in actual physical peril and fear for their own safety. Loss of consortium claims are based on the recognition of a legally protected interest in personal relationships. the non-injured party has a cause of action to recover for damage to their relational interest. though they do not suffer any physical impact. 512 U. and affection. the loss of the injured party’s company. “[u]nder this test.

concluding.” Discussion. The decision of the lower court was affirmed. Daniel Boucher was admitted to the hospital with a severely damaged hand. usually known as a “loss of consortium” claim. There is every reason to believe that the loss in this case is both permanent and profound. Plaintiffs brought actions against the hospital for negligent infliction of mental distress and loss of consortium. But that is not what this case is about. The court declined to extend loss of consortium rights to parents of a tortiously injured child.” The dissent also describes the nexus between physical and emotional well-being: “[m]oreover. 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.Facts.” The dissent acknowledges the need for circumspection concerning the adoption of litigious redress for harm such as the type suffered in this case. After surgery. Issue. The dissent asserts. 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. 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. and emotional security from outrageous conduct. “[t]he law protects all kinds of human values that cannot be measured by a slide rule. such as marital and filial consortium in wrongful death actions. . Courts almost universally permit a spouse to recover against a person who seriously injures the other spouse. To adopt such a cause of action would open the floodgates of litigation. “[c]ertainly. 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. The loss of a child’s consortium may well affect the physical well-being of parents. 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. 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. Loss of consortium claims presently allows a plaintiff to recover damages for such things as loss of companionship and other forms of emotional support. Dissent. privacy.

The company operated a tire manufacturing plant in Northern California and subcontracted with another company to dispose of industrial waste. “no widely accepted development has occurred that allows recovery in cases involving adult children. When a plaintiff can demonstrate a physical injury caused by the defendant’s negligence. TOXIC EXPOSURES Potter v. did not extend beyond these two elements of damages.As the court in Boucher observed. nor did it extend to injuries involving adult or emancipated children. Synopsis of Rule of Law. The waste was deposited in a local landfill. “[a]t common law. The trial court awarded both compensatory and punitive damages. and were awarded damages. allowing a claim only if the plaintiffs are placed in actual physical peril and fear for their own safety. . but affirmed the main elements. Plaintiffs brought actions for negligent and intentional infliction of emotional distress. The court applied the zone of danger test. 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. recovery for emotional distress caused by that injury is available as an item of parasitic damages. Brief Fact Summary. Facts. anxiety specifically due to a reasonable fear of a future harm attributable to the injury may also constitute a proper element of damages. 3. therefore. i. The company sought review. 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. Firestone Tire & Rubber Co.” The issue surrounding the negligent infliction of emotional distress claim was more straightforward.” The court drew a distinction as to basis for such recovery. 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 Firestone Tire & Rubber Co..” and. This right of recovery.e. The appellate court modified the awards. Plaintiffs brought actions for negligent and intentional infliction of emotional distress. In ordinary negligence actions for physical injury. (Defendant) appealed. nor has any widely accepted development occurred that allows recovery for the loss of a child’s society and affection. the court concluded. “However. 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.

the present injury. or malice. fraud.” The court explained that. At issue was whether the absence of a present physical injury precluded recovery for emotional distress engendered by fear of cancer. Held. 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. and (2) the plaintiff’s fear stems from a knowledge. defined as parasitic to the plaintiff’s claim for physical harm.” Mental distress. “[u]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object. 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. As a general rule. the plaintiff is exposed to a toxic substance which threatens cancer. Even then. corroborated by reliable medical or scientific opinion. a breach of the duty must threaten physical injury. which results from fear that an already existent injury will lead to the future onset of an as yet unrealized disease. 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. constitutes an element of recovery only where such distress is either foreseeable or is a natural consequence of.Issue. that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure. In sum. . with rare exceptions. compensation for emotional distress is available to plaintiffs only following physical injury. Discussion. Such emotional harm. not simply damage to property or financial interests. is usually referred to as “pain and suffering. or reasonably expected to flow from.

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