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I. INTENTIONAL TORTS
A. REQUIRING FAULT
Van Camp v. McAfoos
Brief Fact Summary. Van Camp (Plaintiff) sued, alleging that Mark McAfoos (Defendant), while riding his tricycle collided with Plaintiff causing injury to her achilles tendon. The trial court sustained a motion to dismiss. Plaintiff appealed.
Synopsis of Rule of Law. Where an essential element of the cause of action is missing, the question is not what may be shown under the pleading but whether a cause of action has been pled.
Facts. Plaintiff alleged that three year-old Defendant was riding his tricycle on a sidewalk, and without warning drove it into the rear of the Plaintiff injuring her Achilles tendon. She contended that Defendants’ behavior was the proximate cause of her injury, which required surgery. The thrust of Plaintiff’s claim, the court observed, was that she was entitled to recovery regardless of the presence of fault or wrongdoing.
Issue. Did Plaintiff plead a cause of action?
Held. The decision of the trial court was upheld, the Supreme Court of Iowa maintained that, while a child of “tender years: may be held liable in tort, the relevant precedents have fault as an essential element.” That element was absent in this case.
Discussion. McAfoos is illustrative of the factors to be examined with respect to evaluating the bases or grounds for liability. In other areas of tort law, such as medical malpractice, toxic torts, and product liability, the “net” may be considerably broader, not requiring the intentionally wrongful or negligently wrongful behavior of the Defendant. The court in McAfoos was not inclined to extend such liability to a child on a tricycle.
B. ELEMENTS OF BATTERY
Snyder v. Turk
Brief Fact Summary. Snyder, a nurse, (Plaintiff) brought an action against Turk, a doctor, (Defendant) for intentional inﬂiction of emotional distress, civil battery, and slander. The trial court (Ohio) dismissed her complaint with prejudice and granted a directed verdict. The Plaintiff sought review.
Synopsis of Rule of Law. An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results.
Facts. The Defendant was performing an operation to remove a patient’s gall bladder. The Defendant became increasingly frustrated with the Plaintiff’s performance, raising his voice and castigating her for being incompetent. When Plaintiff handed Defendant the incorrect surgical tool, he grabbed her by the shoulder and gown and pulled her face toward the patient’s open surgical wound. The Plaintiff did not suffer any physical injury. She later ﬁled an action against him for intentional inﬂiction of emotional distress, civil battery, and slander. The trial court granted the Defendant’s Motion for a Directed Verdict and dismissed the Plaintiff’s complaint. The court reversed the order, holding that the Defendant was not entitled to a directed verdict. The court held that reasonable minds could have concluded that he was guilty of battery, and that he intended to commit an offensive contact with the Plaintiff.
Issue. Could a reasonable jury conclude that there was intent to commit a battery?
Held. Yes. Since a reasonable mind could infer intent on the Defendant’s part, the issue was one of fact for a jury. The lower court thus erred in its directed verdict. The court reversed and remanded the lower court’s order.
Concurrence. The concurrence merely summarizes the majority’s reasoning, stating: “I believe the evidence in the record was sufﬁcient for a reasonable juror to conclude that the Defendant had committed a battery when he allegedly grabbed the Plaintiff and brought her down to within twelve inches of the surgical wound.”
Discussion. Snyder v. Turk draws the ﬁne distinction between the intent to cause actual harm and the intent to cause either harmful or offensive contact. The element of intent becomes an issue for the trier of fact thus rendering a directed verdict improper.
Cohen v. Smith
Brief Fact Summary. Patricia Cohen and her husband (Plaintiffs), ﬁled suit against Robert Smith, nurse, and St. Joseph’s Memorial Hospital (Defendants) in the Circuit Court of Jackson County (Illinois) after Smith observed and touched her naked body in violation of her religious beliefs. The complaints alleged battery, intentional inﬂiction of emotional distress. The court granted Defendants’ Motions to Dismiss. Plaintiffs appealed.
Synopsis of Rule of Law. When considering a motion to dismiss, the court must view all properly pleaded facts in the light most favorable to the plaintiff; a court may only dismiss for failure to state a cause of action, based solely on the pleadings, only when it is clear that the alleged set of facts cannot be proven.
Facts. Ms. Cohen was admitted to St. Joseph’s Memorial Hospital (Hospital) to deliver her baby. She was examined and informed of the necessity for a Caesarian Section delivery. She and her husband told their doctor, who informed the hospital staff, that such a procedure was in violation of their religious beliefs as it would require Ms. Cohen to be seen naked by a male. Their doctor gave assurances that their beliefs would not be violated. During the procedure Roger Smith, a male nurse, allegedly viewed and touched Ms. Cohen’s naked body. The Plaintiffs ﬁled suit.
Issue. Is the conduct in question sufﬁciently harmful and offensive to rise to the level of battery?
Held. The battery and the intentional inﬂiction of emotional distress counts were properly alleged, and thus the court erred in its dismissal of Plaintiffs’ causes of action. With regard to the Defendant’s having sufﬁcient notice, the court concluded that when Ms.Cohen made her wishes known to the hospital, the latter implicitly agreed to provide her with treatment within the restrictions placed by her religious beliefs. The decision was reversed and remanded.
Discussion. As noted in Snyder v. Turk, “A person may be held liable for battery when he or she intends to cause harmful or offensive contact and harmful or offensive contact results.” Further, courts have drawn ﬁne distinctions between conduct that results in bodily harm and conduct that violates a plaintiff’s personal integrity. The court notes that the “application of battery the remedy offensive and insulting conduct is deeply ingrained in our legal history.” Speciﬁcally with regard to religious beliefs and medical treatment, the court observed that, while people in modern society generally accept the various intrusions on one’s privacy as a necessity, the determination of bodily integrity is ultimately the purview of the person alleging improper contact. The court in Cohen v. Smith concluded also: “The fact that the Plaintiffs hold deeply ingrained religious beliefs which are not shared by the majority of society does not mean that those beliefs deserve less protection than more mainstream religions.” Finally, quoting Justice Cardozo, the court observed: “Every human being of adult years and sound mind has the right to determine what shall be done with his own body.” Thus, when a physician violates a patient’s right of consent concerning medical procedures, that physician may be liable for damages.
Mullins v. Parkview Hospital, Inc.
Brief Fact Summary. During Plaintiff Mullins’ surgery, a medical student performed an intubation that lacerated Mullins esophagus, requiring additional surgery and recovery time. Mullins had not consented to student involvement in her surgery. She sued for battery and lost.
Synopsis of Rule of Law. Battery requires a harmful or offensive touching, without consent, with the intent to cause the resulting harm or offense.
Facts. Plaintiff Mullins, before undergoing a hysterectomy at a teaching hospital, crossed out the portion of the consent form that consented to “the presence of healthcare learners” and received assurance from the attending anesthesiologist that she would personally handle the anesthesia. During the surgery, as soon as Mullins was unconscious, the anesthesiologist permitted a student, VanHoey, to practice intubation. It was VanHoey’s ﬁrst day practicing on a live patients and she lacerated Mullins’ esophagus. As a result, Mullins required additional surgery and recuperation time. Mullins sued VanHoey, the gynecologist, the anesthesiologist, and both doctors’ practices for battery, among other claims. The trial court granted summary judgment for all defendants on all counts, the Court of Appeals held that Mullins had an actionable battery claim, and the Indiana Supreme Court reversed, ﬁnding that Mullins did not have an actionable battery claim.
Issue. Whether the tort of battery requires the intent to cause harm in addition to the intent to touch or make contact.
Held. Yes. Although VanHoey “touched Mullins in a harmful and offensive manner without permission”, Mullins could not show that VanHoey “acted intending to cause” harm. VanHoey had no reason to suspect that Mullins had not consented to the touching. As a student, she properly relied on her previous experience and the doctor’s authority in believing that she had permission to perform the intubation. In addition, she was under no obligation to obtain consent herself or to inquire into the consent under which the anesthesiologist was acting. Accordingly, the court found that there was no genuine issue of material fact as to VanHoey’s intent to cause a harmful contact, and that VanHoey was entitled to summary judgment on Mullins’ battery claim.
Discussion. This opinion shows that an actor’s intent to touch or make contact, such as his decision to put his arm in motion throwing an object, is not enough to give rise to battery. The actor must have speciﬁcally intended to cause the harm or offense which results from the touching.
and while a minor who has committed a tort with force is liable as any other would be. Dailey pulled it out from under her causing her injury. or his belief (with substantial certainty) that the results will follow. The concept of “intent” denotes a defendant’s desires to cause the consequences of his actions. the Supreme Court of Washington remanded for a factual determination of Defendant’s intention.C. ﬁve year-old Dailey (Defendant) deliberately pulled the chair out from under her. 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. . what constitutes willful and unlawful intent? Held. Plaintiff was injured in the fall. The Supreme Court for Washington remanded for clariﬁcation. Five year-old Brian Dailey (Defendant) visited Naomi Garrett Plaintiff at her sister Ruth’s home. Facts. 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. On appeal. the court was to change the judgment. 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. He maintained that. The trial court ruled for the Defendant. The later contends that as she was about to sit on a lawn chair. If so. Intentionality is central to the tort of battery. The distinction to be drawn is not merely whether the defendant intends to commit the act in question. Plaintiff alleged that she came out into the backyard to talk with her sister and that. due to his small size and lack of dexterity. when she was about to sit down in a wood and canvas lawn chair. In an action for battery. but whether he intends to cause the consequences of his act. DEFINING INTENT Garratt v. Dailey Brief Fact Summary. The Superior Court for Pierce County (Washington) found in favor of defendant in an action for assault and battery and Plaintiff appealed. Issue. Discussion. he could not get the chair under Plaintiff in time to keep her from falling. Synopsis of Rule of Law.
Synopsis of Rule of Law. the actor would be held liable for any resulting injuries. Issue. This case is a challenge to the decision of the Court of Appeals of Colorado. The jury found in Defendants’ favor having concluded that Everly lacked the requisite intent to sustain a cause of action. Shortly after having taken residence at Beatrice Hover Personal Care Center. an actor is generally subject to liability when he or she acts intending to cause harmful or offensive contact to another. Facts. having found that the jury determined that alleged tortfeasor did not intend to cause offensive or harmful consequences by her act. Discussion. If. the actor does not have to intend the harm that actually results. The court reversed the judgment and remanded. and 2) when the defendant has substantial certainty that harm will result. she struck Plaintiff in the jaw. At issue. but also intended that the contact be harmful or offensive to the other person. and Everly (Defendants).White v. 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. In Plaintiff’s actions for assault and battery. 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. or place the other in apprehension of such contact. be viewed as one factor in the totality of circumstances upon which a jury relies to make its determination. a blow to the victim was intended to simply bruise the victim but serious trauma resulted. a professional caregiver at the center. However. Held. * Mental illness is not a defense to an intentional tort. An examination by a physician revealed that Everly was suffering from Alzheimer’s disease. Everly. in so doing the jury must ﬁnd that the actor intended offensive or harmful consequences. . Plaintiff subsequently brought suit against Barbara White. Further. may conclude that a mentally deﬁcient person is liable for tortious conduct. an elderly woman who was placed in a personal care center. Muniz Brief Fact Summary. With respect to battery. Everly’s granddaughter. however it may. even if her reasons or motive were irrational. as trier of fact. She became easily agitated. and would occasionally act aggressively toward others. for example. such harmful or offensive contact must result. is whether an intentional tort requires some proof that the tortfeasor not only intended to contact another person. In one instance. an adult assisted living facility. like other mental states (such as infancy). however. eighty-three year-old Helen Everly (Defendant) struck Sherry Lynn Muniz (Plaintiff). A jury. the trial judge instructed the jury that Everly’s suffering from Alzheimer’s did not prevent a ﬁnding that she acted intentionally. began to exhibit erratic behavior.
her father Ernest. As a result of this incident. the appeals court afﬁrmed. or to surround him with a display of force. surrounded him. and impotency. Sandy called him a “pervert” and her mother berated him. and mother. inability to concentrate. brother-in-law. Plaintiff Cullison met 16-year-old Sandy Medley in a grocery store parking lot. It is assault to shake a ﬁst under another’s nose. Issue. 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. and as such. her brother. the Indiana Supreme Court reversed the summary judgment on the assault count. In this case. ASSAULT Cullison v. if not the body. Accordingly. Ernest had a revolver in a holster strapped to his thigh. Plaintiff Cullison met a 16 year old girl in a parking lot then invited her to his home for a soda. the apprehension must be one that would be aroused in the mind of a reasonable person. Assault is found where one intends to cause a reasonable apprehension of imminent harmful or offensive contact in another. which she declined. Facts. to aim or strike at him with a weapon or to hold it in a threatening position. Whether threatening language coupled with a holstered pistol rises to the level of assault. among other torts. Synopsis of Rule of Law. the damages which are recoverable are for mental trauma and distress. . It is a touching of the mind. Held. she and her family came to Cullison’s home. Cullison sought psychological help to deal with nervousness. He was confronted by Sandy Medley. sleeplessness. 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. Cullison experienced mental trauma and distress as a result of the incident and sued for assault. Although no one ever touched Cullison. He sued the Medleys for assault. Additionally. invited her to have a soda with him and to come to his home to talk further.2. depression. Yes. and verbally threatened him with bodily harm if he did not leave the girl alone while her father was armed with a holstered revolver. and the Indiana Supreme Court reversed on the assault count. 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. Assault occurs when one intentionally creates the reasonable apprehension of imminent harmful or offensive contact in another. The trial court granted summary judgment in favor of defendants on all claims. A few hours later he was awoken by a knock at his door. That night.
as a result. unless together with acts or circumstances they put the other in a reasonable apprehension of imminent harm. a plaintiff must show: (1) conduct that is intentional or reckless. When extreme and outrageous conduct is directed at a third person.Discussion. the imminence element does not mean harm must be immediate. or negligence. Facts. but that there will be no signiﬁcant delay in effectuating the harm. his wife’s personality changed leading to their divorce. Moreover. It is important to note that typically words alone do not rise to the level of assault. resulting from a sexual relationship. including negligence and intentional inﬂiction of emotional distress. 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. During this period. He brought suit alleging. among other things. (2) conduct that is also extreme and outrageous. Issue. intentional or reckless inﬂiction of emotional distress. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Homer v. and (4) that the emotional distress is severe. (3) a causal connection between the wrongful conduct and the emotional distress. The Circuit Court for Howard County (Maryland) dismissed the tort claims brought by Plaintiff alleging breach of contract and tort claims. Plaintiff maintains that. To recover in an action for intentional inﬂiction of emotional distress. 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. Long Brief Fact Summary. 3. if such distress results in bodily harm. she began seeing a therapist who. used conﬁdential information and took advantage of her condition to seduce her. after several years of marriage his wife was hospitalized for severe depression. or (2) to any other person who is present at the time. Synopsis of Rule of Law. whether or not such distress results in bodily 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? . Plaintiff alleges. According to Plaintiff’s contentions. or some other intentional tort.
explaining.” Addressing the action for breach of contract. however. and not to her spouse. this is an area where transferred intent applies. That duty. intentionally or recklessly causes the victim severe mental distress. in addition to proving the prima facie elements. Homer addresses an extended issue with regard to the intentional inﬂiction contention: the situation where a third person is alleging the wrongful action. the third party is (1) a close relative of the primary victim. Intentional inﬂiction of mental distress exists when the defendant. Discussion. the court recognized that the plaintiff in this case was in essence attempting to sue for “alienation of affections. by extreme and outrageous conduct. moreover. In other words. thus Plaintiff had no standing to sue.” The court dismissed the claim because the duty owed was to the patient. While noting that such actions are not necessarily barred under tort law. It should be noted that this is the only area of tort where “reckless” infers intent. (2) present at the scene of the outrageous conduct against the primary victim. the court states. the plaintiff must show that the defendant owed a duty to him which was breached. if such distress results in bodily harm.” .Held. whether or not such distress results in bodily harm. or (2) to any other person who is present at the time. With regard to the negligence claim. 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. and (3) the defendant is aware of the close relative’s proximity. even if the spouse is the one who initially employed the therapist and is paying the therapist’s fees. the court addressed ﬁrst the prima facie elements of a negligence action: “[t]o recover in an action for negligence. courts have award a third-party victim recovery only if. 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. is the reﬁtting of the abolished actions into other forms. As the court explained. “[w]here extreme and outrageous conduct is directed at a third person. “[a] therapist’s professional duty must run to his or her patient and not to the patient’s spouse.” Generally. 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. “[t]hat is precluded. must be one that the law is prepared to recognize.
False imprisonment occurs when a person conﬁnes another intentionally without lawful privilege and against his consent within a limited area for any appreciable time. Did the conduct of Defendant’s employees constitute the tort of false imprisonment? Held. 1996. claiming that Plaintiff’s children had been previously caught shoplifting. As the McCanns were leaving the store. (3) omission where the defendant has a legal duty to act. This case involves a claim for false imprisonment. that Defendant’s refusal to allow the 12-year old boy. the McCanns went to a register and paid for their purchases. however. Defendant’s employees had said they were calling the police.’s (Defendant) employees stopped the McCanns as they were leaving the store. Wal-Mart Stores. arrived at the store and informed the employees that the McCanns were not the family whose son had been caught shoplifting. . [See Restatement Section:Section: 35-45A. Facts. Issue. a large area. In false imprisonment. Inc. Accidental conﬁnement is not included and must be addressed under negligence or strict liability. blocking their path to the exit.] The transferred intent doctrine is applicable. Eventually. stepped out in front of the McCanns’ shopping cart. Rhonda Bickmore (Bickmore). even an entire city. The conﬁnement may be accomplished by (1) physical barriers. The bounded area can be. In December. or (4) improper assertion of legal authority. to use the restroom was not sufﬁciently outrageous to warrant the imposing of punitive damages. The employees acknowledged their mistake to the McCanns. The court afﬁrmed the lower court’s decision. (2) force or threat of immediate force against the victim. Ms. but actually called a store security ofﬁcer to identify the earlier shoplifter. the security ofﬁcer. the victim’s family or others in her immediate presence. Inc. Synopsis of Rule of Law. two Wal-Mart employees. and they left the store. The court ruled. The employees told Plaintiff that the children were not allowed in the store because they had been caught stealing on a prior occasion. In a false imprisonment case. the defendant unlawfully acts to intentionally cause conﬁnement or restraint of the victim within a bounded area. After approximately an hour and a half. however short.4. The employees detained Plaintiffs until a security ofﬁcer determined that the children were not the children who had been caught previously. McCann and two of her children were shopping at the Maine Wal-Mart store. or the victim’s property. Debra McCann (Plaintiff) contended that Wal-Mart Stores. noting that Plaintiffs adequately proved the elements of false imprisonment. however. Brief Fact Summary. * The victim must be conﬁned in such a manner as to preclude his or her escape. and could not re-enter the store. FALSE IMPRISONMENT McCann v. Discussion.
. This might be accomplished by personal entry or by intentionally causing an object to enter the land.Trespass to Chattels involves something short of conversion. The defendant must intend to exercise substantial dominion over the chattel.Extended Liability: The trespasser is liable for damages inﬂicted even if he never intended harm and could not foresee it B.Extent and duration of control .The defendant’s intent to assert a right to the property .5.Intentional Entry: Trespass to land usually requires an intentional entry upon land of another. . TORTS TO PROPERTY A.Intent: Conversion is an intentional tort.The factors important to imposing liability for interference include: . this has also extended to electronic interferences . Similarly. the defendant does not escape liability merely because the defendant did not intend to harm plaintiff’s property. The refusal to leave is now considered a trespass . Trespass to Chattels .Trespass and Nuisance: Trespass is an invasion of the plaintiff’s interest in the exclusive possession of his land.Intent: The object of intent need not be “to trespass. Conversion of Chattels .The harm done . while nuisance is an interference with his use and enjoyment of it. 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.Expense or inconvenience caused C. .It has traditionally involved the plaintiff’s tangible chattel. however.” It is enough that defendant intended to enter the land. Trespass to Land . Once intent is shown.The defendant’s good faith . Liability is based on actual damage .
Public policy supports this construction. Merchants generally have the right to detain suspected shoplifters assuming the detention is (1) with reasonable cause to believe a violation has occurred. Peters’ estate and family brought a wrongful death suit against the store. Synopsis of Rule of Law. 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.50(3) permits merchants to detain suspected shoplifters (1) with reasonable cause to believe a violation has occurred. Wright followed Peters out to his car and asked him to get out for questioning. increasing injuries to innocent shoppers in the way. To interpret whether this statute also limits liability for actions taken off-premises. Although not the deciding factor. PROTECTING AGAINST APPARENT MISCONDUCT OF THE PLAINTIFF Peters v. Upon questioning him in the parking lot. (2) in a reasonable manner. which is the primary purpose of this case study in the textbook. so long as three reasonableness requirements are met. Inc. Yes. . and they pursued him off store premises for seven minutes. Peters ﬂed on foot and Wright and another ofﬁcer named Kind pursued him on foot. Defendant Menards. Store security ofﬁcers believed Peters shoplifted a power drill. shoplifters would be encouraged to dash out of stores off-premises. The court found that the legislature speciﬁcally excluded from the statute language from the Restatement of Torts § 120A that extends immunity only to those detentions occurring “on the premises. Issue. Facts.DEFENSES OF INTENTIONAL TORTS . Furthermore. and (3) for a reasonable length of time. (2) in a reasonable manner. His estate sued the store in wrongful death and lost. the court examined the statute’s construction. and (3) for a reasonable length of time.PRIVILEGES 1. drowning him. Wisconsin statute § 943. 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. Peters ran into the river and drowned. The Wisconsin Supreme Court found that Peters’ conduct was more unreasonable than the store’s. 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. barring plaintiff’s recovery under Wisconsin law. Menard Brief Fact Summary. he ﬂed on foot.” 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. Held. Peters ran into the ﬂooded La Crosse River and the fast-moving current pulled him under. the court also discussed whether a Wisconsin store can be immune from liability for actions taken by security ofﬁcers in pursuing suspects off-premises.
did the Defendants intend to shoot the invader. A jury found for the Plaintiff. The dissent frames the issue in the following manner: there exist two deﬁnite issues of fact. Defendants inherited an unoccupied farmhouse and over the course of ten years the house was subject to a series of break-ins. Dissent. The property sustained considerable damage and despite boarding up the windows and posting no trespass signs. Defendants appealed. Issue. Did Defendants employ a reasonable means of preventing the unlawful entry of trespassers on their property? Held.Discussion. When Plaintiff. where the gun was secured to an iron bed with its muzzle pointed at the door. Synopsis of Rule of Law. 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. the incidents continued. having broken and entered on at least one prior occasion entered. No. while a defendant may use reasonable force in defense of her property. 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. in a bedroom of an old farmhouse. and if so. pointed in such a manner as to wound an intruder’s feet. Katko (Plaintiff). Katko v.e. Thus. The shotgun was set by Edward and Bertha Briney (Defendants). the Defendants intended to shoot any intruder who attempted to enter the room. The dissent opined that the majority wrongfully assumed that by installing a spring gun in the bedroom of their unoccupied house. injuring Plaintiff’s right leg. Briney Brief Fact Summary. This decision introduces the concept of the common law “shopkeepers privilege” which allows merchants to effect reasonable detentions of suspected shoplifters. awarding both actual and punitive damages. which had been uninhabited for several years. the gun went off. Defendants then set up a shotgun trap. A wire was fastened from trigger to doorknob.. Marvin E. did they employ unnecessary and unreasonable force against him? The dissent asserts . i. The value of human life and limb both to an individual and as a matter of public policy outweighs the potential damage to property. ﬁled an action for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun. Facts. The Supreme Court of Iowa afﬁrmed the judgment because the use of spring guns to protect uninhabited property was not permissible. The only exception is when the trespasser is committing a violent felony with the potential of endangering human life.
by means of “a mechanical device that which. it was subsequently blown up to stop the progress of the ﬁre. in his capacity of public ofﬁcial. The trial court awarded damages to Plaintiffs. during a deadly ﬁre. in good faith. the standard being one of reasonableness. in good faith. 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. The ruling in Katko is consistent with all other areas of tort law with regard to the use of force. in the midst of a massive ﬁre. cannot be held personally liable in an action by the owner in connection with the destroyed property. Alcalde of San Francisco (Defendant). destroys property out of public necessity in order to prevent greater damage be held liable? .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. A person who tears down or destroys the house of another.” In sum. where the owner of the property in question is not faced with a threat of death or grave bodily injury. that owner cannot do indirectly. In the midst of a raging ﬁre. Can a person who. Thus. In short.” Discussion. contending that such an award is “court-made law. and that the mere setting of such a device with a resultant serious injury should not as a matter of law establish liability. as here. PRIVILEGES NOT BASED ON PLAINTIFF’S CONDUCT Surocco v. * The dissent further objected to the awarding of punitive damages. destroyed Plaintiff’s house in an effort to stave off the ﬁre. in an effort to save the adjacent buildings and to stop the ﬁre’s progress. Geary (Defendant). 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.” 2. made the decision to destroy Plaintiff’s building. were he present. not statutory law. Issue. an individual is permitted to use a degree of force commensurate with the threat with which they are confronted. Geary Brief Fact Summary. and under apparent necessity. he could not immediately do in person. Synopsis of Rule of Law. Facts. Plaintiffs brought an action against Defendant for the destruction of Plaintiffs’ house and store.
his conduct is privileged. Defendant owned a ship that docked at plaintiffs’ wharf in foul weather. Synopsis of Rule of Law.Held. has been traced to the highest law of necessity. Plaintiffs sued for damage to their wharf that caused by defendant’s vessel. docked there during a storm. i. 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. her owners are responsible to the dock owners to the extent of the injury inﬂicted. and the mode in which compensation should be paid. having thus preserved the ship at the expense of the dock. Where one reasonably believes his interests outweigh the loss or harm another may incur. Lawmakers. to the extent he or she causes damage to another’s property or land. That person will be held liable.” In other words. Issue.e. Defendant’s ship damaged plaintiffs’ wharf during a storm. however. the court suggests. The court notes further “the right to destroy property. Lake Erie Transportation Co. maintaining that the court clearly erred. Vincent v. A jury awarded damages and Defendant sought review. and under apparent necessity. who makes the determination as to which property may properly be destroyed during an emergency. . Brief Fact Summary. a person who destroys the house of another in good faith. The trial court denied defendant’s motion for a directed verdict and entered judgment in favor of plaintiffs. Yes. cannot be held personally liable. Discussion. to prevent the spread of a conﬂagration. Plaintiffs brought an action against defendant to recover for the damages to their wharf. The Supreme Court of California reversed the trial court’s award of damages to Plaintiffs. what under normal circumstances would be a tortious act may be justiﬁed in exigent circumstances such as a raging ﬁre. 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. 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. and.. and denied defendant’s motion for a new trial. Facts. Are plaintiff’s entitled to compensation for damages even where Defendant acted prudently and by necessity? Held. should make determinations as to the manner in which such property may be destroyed.
Dissent. Appellant sought review. THE GENERAL DUTY OF CARE: THE PRUDENT PERSON STANDARD Stewart v. Motts Brief Fact Summary. 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. the dissent asserts that the vessel’s owner exercised due care thus ameliorating further his liability. Vincent illustrates an instance where the defense of private necessity is introduced and examined. the order of the lower court awarding damages was II. The standard of reasonable care applies to all negligence actions. The dissent takes the view that the case is one of contract and not tort. but under our system of jurisprudence compensation must be made. “A starving man may. private necessity is not a complete defense. The car . John Stewart (Appellant) suffered burns after an accident in Motts’ (Appellee) auto body shop after the automobile on which they were jointly working ignited. The tank was unattached. In other words. Further. but will be held liable for the damage.” Thus. plaintiff assumed the risks inherent in such a venture. i. In entering into an agreement with the ship owner. DUTY A. Plaintiff stopped at Defendant’s auto repair shop to assist in repairing a car’s fuel tank. Facts. courts attempt to balance such necessity with the dictates of equitable relief. Discussion. NEGLIGENCE 1. may require the taking of private property for public purposes. A defendant is privileged to interfere with another’s property.. 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.e. 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. the reasonable person must exercise care in proportion to the danger involved in his act. without moral guilt. Essentially. Synopsis of Rule of Law. The Superior Court of Pennsylvania afﬁrmed a judgment in favor of Appellee in Appellant’s negligence action seeking damages for personal injuries. in times of war or peace. As the court in Vincent analogized. take what is necessary to sustain life. and Plaintiff suggested pouring gasoline into the carburetor in an attempt to start the vehicle. And so public necessity. Nevertheless.
or similar. intelligence and experience. In any action for negligence. it is certain that the child is expected to act as a reasonable adult engaged in the same activity. community. Professionals (i. that of “reasonable care” to be applied uniformly in negligence actions. attorneys. Failure to meet this standard is characterized as breach of duty. . breach that duty and. causation. the plaintiff must suffer harm. Discussion. Issue. 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. The standard of care is the level of conduct demanded of a person so as to avoid liability for negligence. or legal. the jury found for Defendant and Plaintiff appealed. However. and in the ensuing explosion Plaintiff suffered severe burns. and harm.e.e.. As a general rule. physicians. Plaintiff requested a jury instruction directing the application of a standard of a “high degree” of care in instances of elevated danger. The judge declined. 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. as a reasonable person would under like or similar circumstances. 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 court reafﬁrmed the principle that that there is only one standard.” Thus. No. etc. cause of the injury suffered. breach.. a plaintiff must establish that four elements are met: duty. The Defendant must owe a duty to plaintiff. as a result. when a child is engaged in an adult activity.backﬁred. adults must ordinarily act with reasonable care. Children are expected to act with the degree of reasonable care as would a child of similar age. i. At trial.) are expected to exercise the degree of care appropriate to the standards of other professionals in that. The defendant’s actions must be the proximate. It is well established by its case law that the reasonable man must exercise care in proportion to the danger involved in his act.
A person is negligent if he fails to exercise reasonable care. Whether the trial court committed error by providing a jury instruction on negligence pertaining to “emergency” circumstances. When she spotted her father waving his arms on the side of the road. he saw that Plaintiff had slowed rapidly. do in the same or similar circumstances. upon seeing the father waving his arms. Weitman Brief Fact Summary. Defendant planned to pass Plaintiff on her left hand side. Defendant. arguing that the jury instruction was an inaccurate statement of negligence law. Plaintiff sued Defendant for negligence and lost at trial. whose car had broken down along the highway.” The jury found defendant not negligent. a standard that is measured by what a reasonable person of ordinary prudence would or would not. “People who are suddenly placed in a position of peril through no fault of their own and who are compelled to act without opportunity for reﬂection. but won her appeal based on the trial court’s erroneous jury instructions on the legal standard for negligence. the court gave a jury instruction on negligence that pertains to “emergency” situations. whose car had broken down on the side of the road. are not negligent if they make a choice as a reasonably careful person placed in such a position might make. do in the same or similar circumstances.Bjorndal v. tells the jurors that if there was an emergency. She sued for negligence. When he returned his eyes to the road. A person is negligent if he fails to exercise reasonable care. a standard that is measured by what a reasonable person of ordinary prudence would or would not. Synopsis of Rule of Law. 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. Plaintiff was driving down the highway looking for her father. . 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. At trial. To avoid a collision. assumed that there may be an emergency situation and glanced left to scan the horizon for a potential problem. Yes. he collided with her. which provides. the court concluded that the emergency instruction misstated the law and was likely to confuse the jury as to the correct legal standard. The Supreme Court reversed. Accordingly. and the plaintiff appealed. Jurors would understandably view that instruction as permitting them to ﬁnd a defendant not negligent even when he makes an unwise choice. they nevertheless may conclude that the actor was not negligent even if he made a choice that was not the “wisest choice”. but because she was starting to make a left hand turn. Held. however. thus substantially affecting plaintiff’s rights. Facts. Issue. she rapidly decelerated and started to make a left hand turn into a snowpark on the left side of the road. The emergency instruction. even though they do not make the wisest choice.
rejected the notion that the Plaintiff had “impliedly assumed the risk of injury in the primary sense. holding “that a person’s mental capacity. which was granted by the trial court. an Alzheimer’s patient. This decision explains the standard of care requirement for negligence and highlights the controversy surrounding “emergency” instructions. a certiﬁed nursing assistant.Discussion. particularly with respect to the nature of the parties’ relationship and public policy considerations. Creasy appealed. 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. rejecting the majority’s reasoning. for injuries she suffered when he kicked her while she was trying to put him to bed. 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 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. Plaintiff. a certiﬁed nursing assistant. Rusk Brief Fact Summary. citing an Indiana precedent. for injuries she suffered when Defendant kicked her while she was trying to put him to bed. However. In the former. 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. sued Defendant. sued Rusk (Defendant). must be factored [into] the determination of whether a legal duty exists. an Alzheimer’s patient. based upon (her) choice of occupation. whether that person is a child or an adult.” . the Associate Justice. Associate Justice Dickson of the Indiana high court ﬁled both a dissent and a concurrence. Dissent.” Issue. The court of appeals reversed. Synopsis of Rule of Law. Carol Creasy (Plaintiff). Defendant moved for summary judgment. 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. Facts. Plaintiff ﬁled a civil negligence suit against Defendant seeking monetary damages for the injuries she suffered as a result of Defendant’s conduct.
. and (3) public policy concerns. No allowance is made for lack of intelligence.” Robinson v.” Further. The jury found in favor of Billy Anderson (Defendant). 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. excitability. who was operating the vehicle at the time of the accident. the dissent argued. also a minor. a minor. cause-infact. the court notes. 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. Defendants appealed.” Concurrence. This was a personal injury action brought on behalf of Kelly Robinson. such a standard would place at risk any number of individuals who by dint of their professional status are placed in potentially volatile situations. Conversely.” People with mental disabilities are commonly held liable for their intentional and negligent torts. as a matter of law. a plaintiff must. and others similarly situated. the court concluded. and by accepting such employment assume the risks associated with their respective occupations. proximate cause (scope of liability) and damages. historically. breach of duty.” Discussion. because there had been an improper instruction. particularly with respect to the nature of the parties’ relationship and public policy considerations. (2) the reasonable foreseeability of harm to the person injured. or proneness to accident. To establish a prima facie case for negligence.” There are. such professionals of the tort remedy to which other victims of negligence are entitled. involved in a snowmobile accident. 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. by a preponderance of the evidence establish each of the following elements (that is. standard of care. 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. * As pertaining to this plaintiff.Instead. The trial court ordered a new trial. ignorance. The court of appeals afﬁrmed the trial court’s judgment. * With regard to the threshold issue. Lindsay Brief Fact Summary. however. “Public safety ofﬁcials and caregivers are speciﬁcally hired to encounter and combat particular dangers. by more than 50%): duty.
Defendant appealed. Facts. stating that because Defendant had engaged in the inherently dangerous activity. and intelligence under like circumstances. Discussion. A person is not bound to anticipate negligent acts or omissions on the part of others. as is the operation of powerful mechanized vehicles. Such a standard allows the jury to consider the child’s particular qualities such as experience and intelligence. in most jurisdictions. as here. Chafﬁn (Plaintiff) collided with the truck. Issue. 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. As the court explained in Robinson. “[t]he care or caution required is according to the capacity of the child. the child should be held to an adult standard of care. Brame (Defendant) parked his vehicle on a highway at night without warning lights or signals. Defendant was operating a snowmobile and was involved in an accident. children are held to a standard that compares their conduct to other reasonable children of the same age. 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. Plaintiff was injured as a result. SPECIFICATION OF PARTICULAR STANDARDS OR DUTIES Chafﬁn v. experience. Brame Brief Fact Summary.” B. and this is to be determined ordinarily by the age of the child. Yes. and lost full use of her thumb. With regard to minors and the duty of care.Synopsis of Rule of Law. Should a minor operating a snowmobile be held to an adult standard of care? Held. When. . and the driver ﬁled an action for property damage. children are engaged in adult or inherently dangerous activities they are held to the same standard as adults. but in the absence of anything which gives or should give notice to the contrary. “The operation of a snowmobile requires adult care and competence because it is a powerful motorized vehicle.” As the court concluded. The Supreme Court of Washington afﬁrmed the lower courts’ holdings. 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. Synopsis of Rule of Law. the operation of a snowmobile. When the activity a child engages in is inherently dangerous. he should have been held to an adult standard of care.
and which is a legally contributing cause . . Discussion. Bingham County Brief Fact Summary. and thus Plaintiff was not guilty of contributory negligence as a matter of law. (2) the statute must have been intended to prevent the type of harm the defendant’s acts or omissions caused. Was Plaintiff guilty of contributory negligence in his failure to avert collision with the parked vehicle? Held. Facts. arguing that the County’s failure to fence the boundaries of the landﬁll. Their bodies were initially discovered by Frank Jr. . and Frank Jr.Facts. Shaun. (3) the plaintiff must be a member of the class of persons the statute was designed to protect. A section of the pit wall collapsed and crushed Shaun and Alex. O’Guin v. He asserted. To make a prima facie claim for negligence per se. killing them. 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. and into an unobstructed landﬁll pit to play. Plaintiff’s children were playing in the Bingham County landﬁll when a wall collapsed and killed them. and (4) the violation must have been the proximate cause of the injury. caused the children’s deaths. Contributory negligence is a complete defense to negligence except in those jurisdictions that adhere to comparative negligence jurisprudence. in bringing about the plaintiff’s harm. 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. as required by state statutes and federal regulations. He did everything possible to avert the collision as soon as the truck became visible.” Thus. 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. Issue. Their parents sued the County for negligence per se. O’Guin ate lunch at a summer school program then proceeded to walk home. Plaintiffs sued the County under a negligence per se theory. The children went through an unlocked gate at the back of the schoolyard. in some instances. 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. through a privately owned empty ﬁeld. relying on Idaho statutes and federal regulations which require the County to fence or block access to the landﬁll . however. Synopsis of Rule of Law. Alex. Defendant conceded negligence in parking his truck on the traveled portion of the highway at night without displaying lights or warning signals. According to the Restatement Section 463.
who was attempting to pass the car in the left hand lane. The appeals court held that Defendant had submitted excuses sufﬁcient excuses that the issue of negligence should be brought before a jury. (2) the statute must have been intended to prevent the type of harm the defendant’s acts or omissions caused. (3) were intended to protect against entry of unauthorized person such as the O’Guin children. and (4) that there was a disputed issue of fact as to whether the County’s violation proximately caused the children’s deaths. including Mrs. 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. (3) the plaintiff must be a member of the class of persons the statute was designed to protect. 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. This decision introduces the theory of negligence per se. Accordingly the court reversed the trial court’s grant of summary judgment to the County. the following elements must be met: (1) the statute must clearly deﬁne the required standard of conduct. and (4) the violation must have been the proximate cause of the injury. Facts. Yes. The trial judge ruled that Polanco was negligent as a matter of law and entered judgment for the Plaintiffs. 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. Where a party violates a statute. the O’Guins appealed and won. Impson v. Discussion. In order to replace the common law duty of care with that imposed by a statute. Inc. Brief Fact Summary. Issue. 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. Polanco’s truck attempted to pass the car within a prohibited distance of a highway intersection. Plaintiffs appealed. resulting in a reversal of the trial court’s judgment. Impson. and an automobile in which three people were killed. he must present some legally substantial excuse or justiﬁcation. Synopsis of Rule of Law. The trial court granted summary judgment for the County. Held. In analyzing these requirements. . The car turned left into the intersection and was struck by the Polanco.when an attendant is not on duty. Whether the O’Guins have an actionable claim for negligence per se against the County. Structural Metals. (2) were intended to protect health and human safety. and two others were injured (Plaintiffs).
and the appellate court disagreed. What excuses and/or justiﬁcations are legally acceptable in a negligence action? Held. The passenger again yanked the wheel. causing the car to veer off the road and hit a tree. Synopsis of Rule of Law. Plaintiff and another were passengers in Defendant’s car. Plaintiff Pipher was a passenger in Defendant Parsell’s car along with a third person named Beisel. and e) compliance would involve a greater risk of harm to the actor or to others. and strike a tree. fall into ﬁve categories. Plaintiff sued Defendant for negligence. BREACH OF DUTY A. including. Parsell Brief Fact Summary. resulting in injuries to plaintiff. causing Parsell’s truck to leave the roadway. the trial court granted summary judgment for Defendant. An excused violation of a legislative enactment is not negligence. the failure to prevent such conduct may be a breach of the driver’s duty to his passengers or the public. but Defendant regained control and did not do anything about it. injuring Pipher. Discussion. as a matter of law. slide down the embankment. ASSESSING REASONABLE CARE BY ASSESSING FORESEEABLE RISKS AND COSTS Pipher v. When actions of a passenger that interfere with the driver’s safe operation of the motor vehicle are foreseeable. The other passenger yanked Defendant’s steering wheel causing the car to swerve. c) he is unable after reasonable diligence or care to comply. All three were 16 years old. Thirty seconds later. Restatement of Torts (Second) (1965). Beisel unexpectedly grabbed the steering wheel causing the truck to veer off onto the shoulder of the road. As they were traveling at 55 mph.Issue. Facts. b) he neither knows nor should know of the occasion for compliance. d) he is confronted by an emergency not due to his own misconduct. Parsell regained control but did nothing in response to Beisel’s dangerous action other than laugh about it. ﬁnding that the issue of negligence should have been submitted to the jury. . The violation was. Beisel again yanked the steering wheel. Plaintiffs were thus entitled to a judgment. She sued Parsell for negligence. The court afﬁrmed the trial court’s ruling that there was no evidence offered of any legally acceptable excuse or justiﬁcation. 2. unexcused. Excusable violations (not exclusive). but not limited to: a) the violation is reasonable because of the actor’s incapacity.
Issue. Whether a driver has a duty to prevent unsafe conduct by passengers that could interfere with his safe driving and ultimately harm his passengers.
Held. Yes. A driver owes a duty of care to his passengers because it is foreseeable that they may be injured if, through in attention or otherwise, the driver involves the car he is operating in a collision. Pipher argued that after Beisel grabbed the steering wheel initially, Parsell was on notice that a dangerous situation could reoccur in the truck. At this point, plaintiff argued that Parsell had the duty to exercise reasonable care to protect his passengers from that harm, and was negligent because he kept driving without attempting to address that risk. The court held that when actions of a passenger that interfere with the driver’s safe operation of the motor vehicle are foreseeable, the failure to prevent such conduct may be a breach of the driver’s duty to his passengers or the public.
Discussion. This decision highlights the role of foreseeability in proving negligence. Foreseeability of harm is central to the issue of whether a person’s conduct fell below the standard of care.
Indiana Consolidated Insurance Co. V. Mathew
Brief Fact Summary. This is an appeal from Indiana Consolidated Insurance (Appellant) that claimed that Robert D. Mathew (Appellee) acted negligently and contributed to the destruction, by ﬁre, of his brother’s garage when a riding lawnmower ignited.
Synopsis of Rule of Law. The central concept illustrated by this case is the sudden emergency doctrine which holds that when a person is confronted with an emergency not of his or her own making, he is expected to act in the same manner as that of the ordinary, prudent person and cannot be charged as negligent when acting in accordance with his or her best judgment.
Facts. Appellee was attempting to start a riding lawnmower in his brother’s garage when the lawnmower caught ﬁre. Appellee tried, unsuccessfully, to extinguish the ﬂames. He then ran to his home to call the ﬁre department. He returned to discover the garage completely engulfed. Indiana Consolidated Insurance sued Appellee, alleging that he negligently breached the duty to exercise due care in starting the lawnmower and thus was liable for the resulting damages.
Issue. Is a person considered to be negligent if he acts in his best judgment, and that judgment is consistent with that of an ordinary prudent person?
Held. Appellee was not negligent as he exercised the judgment of an ordinary, prudent person.
Discussion. A person is deemed negligent when his/her conduct results in an unreasonable risk of harm. In assessing reasonableness, a court will consider a number of factors, primarily how another, in the same circumstances, would likely act. This is known as the reasonable person standard, i.e., the ordinary and prudent judgment a reasonable person would exercise. Here, the question is how a reasonable person would react when an emergency suddenly arises. A court will, as here, examine the person’s conduct leading up to the emergency. Here, the court found that Appellee exercised the due care that an ordinary, prudent person would “under the same or similar circumstances.” The court held that he did, and upheld the lower court’s ruling.
Stinnett v. Buchele
Brief Fact Summary. This is an appeal from a farm employee, Stinnett (Appellant) challenging a grant of summary judgment to his employer, Buchele (Appellee) in an action by Appellant for injuries suffered when he fell off a barn, which was painting. Appellant maintained that the injuries were sustained during the course and scope of employment, the employer, Appellee, had a duty to provide a safe work environment, and as a result, he was entitled to the recovery of damages.
Synopsis of Rule of Law. An employer cannot be required to guarantee an absolutely safe place of employment. An employer is required to take reasonable and prudent steps to ensure safety, and there is no responsibility for additional steps “where the employees’ means of knowledge of the dangers to be incurred is equal to that of the employer.”
Facts. The farm employee, Appellant, was injured when he fell off a barn roof and brought an action against the employer, Appellee, claiming negligence in the failure to comply with safety regulations requiring the installation of safety nets for work in elevated areas and failure to provide a safe place to work. The trial court granted summary judgment to the Appellee, because it determined that the safety regulations did not create an independent cause of action against an employer. Further, there was no evidence that the Appellee had sufﬁcient familiarity with the circumstances at the farm location that he had a duty to the farm employee, Appellant, to discharge. Appellant asserted that Appellee was required to provide a safe work place. The court afﬁrmed the grant of summary judgment, holding that under such circumstances, Appellee could not be required to guarantee absolute safety. Finally, the court concluded, when the employee’s knowledge is greater than the employer’s knowledge, the employer does not have a duty to the employee.
Issue. To what degree is an employer required to provide a safe working environment?
Held. There was no showing of any negligence on the part of Appellee arising solely out of the fact that he had asked Appellant to paint the barn roof.
Discussion. As the Stinnett court observes: “[t]he liability of the employer rests upon the assumption that the employer has a better and more comprehensive knowledge than the employees, and ceases to be applicable where the employees’ means of knowledge of the dangers to be incurred is equal to that of the employer.” Further, while several federal statutes provide for various forms of workers compensation, in certain instances employees are excluded from such protection, and must seek remedies through tort actions.
Bernier v. Boston Edison Co.
Brief Fact Summary. This is an appeal of a United States District Court (Massachusetts) judgment in favor of Bernier (Plaintiff) in consolidated actions for injuries suffered when an automobile knocked over an electric pole and struck teenagers as they walked down a sidewalk.
Synopsis of Rule of Law. A manufacturer is required to “anticipate the environment on which its product will be used, and it must design against the reasonably foreseeable risk attending the use in that setting.”
Facts. After a collision in a suburban Massachusetts intersection, one Defendant, motorist Alice Ramsdell (Defendant), became dazed and inadvertently allowed her foot to slip from the brake to the gas pedal. She collided with another driver, John Boireau, and then accelerated across the street and down a sidewalk, where she knocked down an electric light pole owned by Boston Edison Company. (Defendant) The pole struck the teenagers as they walked along the sidewalk. Both were injured and instituted actions against both drivers, and Boston Edison Company (Defendants). The jury returned verdicts against one driver and Boston Edison Company.
Issue. Is a manufacturer negligent if, in its product design, it fails to sufﬁciently anticipate the various circumstances in which its product may not properly perform and create unreasonable risk of injury?
Held. The court held that “[a]s designer or co-designer of the pole and in control of its maintenance, Boston Edison Company must anticipate the environment in which its product will be used, and it must design against the reasonably foreseeable risks attending the product’s use in that setting,” and thus bore liability in connection with the design and maintenance of the electric light pole.
Discussion. Foreseeability of risk lies at the heart of any negligence action focusing on product liability. A manufacturer is assumed to possess expertise with respect to the manner and circumstances in which its product will perform. Here, at issue is whether an electric light pole can be designed in such a manner as to anticipate vehicular collision and the likelihood of resulting injury. Courts expect a manufacturer to take into consideration the totality of circumstances, i.e., that vehicular collisions are likely and prudent precautions are expected to be taken, so as to minimize the risk of injury to pedestrians. In essence, a manufacturer is expected to employ a design optimally suited to avert such risk, and that such risk should be the primary consideration during the design process.
United States v. Carroll Towing Co.
Brief Fact Summary. A district court held Appellant (Conners Co.) partly liable for damage to a barge and for lost cargo by not having an attendant aboard the barge when it broke free from a pier. Appellant sought review.
Synopsis of Rule of Law. There is no general rule to determine when the absence of an attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. If he is found to be liable for injuries to others, then he must reduce his damages proportionately, if the injury is to his own barge. Vessels invariably suffer accidents. The owner’s duty, as in other similar situations, to prevent against resulting injuries is a function of three variables: (1) The probability of the kind of incident in question; (2) the gravity of the resulting injury; and (3) the burden of adequate precautions.
Facts. Appellant owned a barge, which was chartered by a railroad company. The barge, with a cargo of ﬂour owned by the United States, was moored to the end of the pier. Appellant chartered a tug company, Carroll Towing Co. (Appellee) to drill out one of the barges. Appellee went aboard the barge and readjusted its mooring lines. The barge broke free of the mooring lines due to this readjustment. The Barge hit a tanker, and the tanker’s propeller broke a hole in the barge. The barge careened, dumped her cargo, and sank. No one was aboard at the time. Appellee argued that is someone was aboard the barge to observe it leaking after it broke free, the cargo and the barge could have been saved.
Issue. At issue is whether the Appellants should be held partly liable for damage to the barge and for the lost cargo by not having an attendant aboard the barge when it broke free from the pier.
Held. Appellants held partly liable. The court applied the “burden was less than the injury multiplied by the probability” formula and found that the burden of having an attendant aboard the barge was less than the gravity of injury of a runaway barge multiplied by the probability that the barge would break free if unattended.
She 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. Inc. Held. Synopsis of Rule of Law. Plaintiff alleged that in 1997. The trial court granted summary judgment for the Defendant and judgment was afﬁrmed. She sued the Defendant bus company for negligence. No. As a result of the collision. Most courts employ Judge Hand’s formulation: a comparable risk-beneﬁt model. There was no police report. B. nor could plaintiff identify the street or intersection where the alleged collision occurred. 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. The Carroll case is noteworthy in that it utilizes a balancing test to determine whether a breach of the duty of ordinary care occurred. it collided with a car. As a result of the collision. plaintiff claimed that the right side of her face hit the seat in front of her and she was injured. Plaintiff alleged that in 1997 she was in the eighth grade and being transported one of Defendant’s school busses. 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. Whether a ﬁnding of negligence can be premised on mere conclusory allegations of negligent conduct. Plaintiff could recall no details of the collision nor could she offer any witnesses who could. . Brief Fact Summary. When actions of a passenger that interfere with the driver’s safe operation of the motor vehicle are foreseeable. 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. Issue. However.Discussion. Facts. She sued Defendant for negligence. plaintiff claimed that the right side of her face hit the seat in front of her and she was injured. The plaintiff attempted to justify a lack of evidence to support her case by pointing to the nature of the accident. First Student. PROVING AND EVALUATING CONDUCT -PROVING Santiago v. 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. or B<PxL. plaintiff did not see the collision.
Rotenberry Brief Fact Summary. i.e. Accordingly. and struck a tree. veered off the road. The dissent questioned the manner in which the majority framed the issue. the dissent took . Upchurch dies from resulting injuries. A plaintiff must prove each element of a civil case by the preponderance of the evidence. causing her to lose control. A jury concluded that Rotenberry’s explanation was factual and thus found in defendant’s favor. An appellate court will not intrude into the realm of the jury by determining the credibility of a witness and making ﬁndings of fact. which properly makes such determinations. Issue. Because the plaintiff could not meet that burden in this case. Rotenberry lost control of the vehicle. In October 1992 Teresa Rotenberry was driving a car in which Timothy Upchurch was the sole passenger. Rotenberry was the only witness. Appellant. the defendant was entitled to summary judgment.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. The trier of fact must reasonably believe that the probability of negligence exceeds one-half. The jury is the judge of the weight of the evidence and the credibility of the witnesses. if the matter of factual determination properly rests with a jury.. Rather. She claimed that a large animal had darted in front of her car. Dissent. the dissent focused on the matter of culpability: “The question is. Discussion. The court held that a reasonable and fair-minded jury could reach different conclusions of fact. was there any negligence on her part in the one-car crash? Since there was absolutely no negligence on the part of the passenger. and that it is the jury. Facts. May an appellate court grant motion for judgment notwithstanding the verdict when the issue is the determination of fact? Held. Synopsis of Rule of Law. Upchurch v. not the court.” Thus. The jury is the judge of the weight of the evidence and the credibility of the witnesses. 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. a ﬁnding of 1% negligence or more by Rotenberry would warrant recovery. Mere conclusory allegations are not enough to prove negligent conduct. 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. a defendant’s negligence must be shown to be more probable than not.
covered in a small puddle of clear liquid. Inc.” Discussion. . After eating breakfast. are best qualiﬁed to make those judgments. She alleged that Cracker Barrel was negligent in failing to maintain the ﬂoor in that particular area of the restaurant. dismissing Deborah Thoma’s (Appellant’s) complaint. neither the trial court. observing their demeanor. 1990. Appellant claimed to have suffered a back injury when she fell in a Cracker Barrel Restaurant in September. To recover for injuries incurred in a slip and fall accident. Brief Fact Summary.” -EVALUATING Thoma v. Cracker Barrel Old Country Store. She fell in the middle of a common aisle. Notice of a dangerous condition may be established by circumstantial evidence. Appellant challenged the order. 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. she did not see anyone spill any liquid on the ﬂoor where she fell. and during that time. They are charged with listening to the witnesses. Synopsis of Rule of Law. Thoma was in the restaurant about thirty minutes prior to her accident. near the passage from the kitchen to the restaurant. the Circuit Court for Leon County (Florida) granted Cracker Barrell Restaurant (Appellee’s) motion for summary judgment. Facts. Absent some clear indication that the jurors in a particular case somehow ignored that duty. She contends the liquid was what caused her fall. In a slip and fall case. When Thoma got up. nor an appellate court reviewing the record on appeal. plaintiff must show that the premises owner either created a dangerous condition or had actual or constructive knowledge of a dangerous condition. Thoma was walking away from her table when her left foot slid out from under her.the view that “[a] directed verdict should have been granted as to liability and the jury should have only determined damages. 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. are permitted to interfere in the conclusions reached by these jurors. The system of jurisprudence has determined that citizen jurors. she noticed that area in which she fell was wet. and coming to their own conclusions of which evidence they ﬁnd more credible. employing their native intelligence and collective life experiences.
which sank in a storm. and their pumps were not properly inspected. There are precautions so imperative that even their universal disregard will not excuse their omission. which towed the barges. in viewing the evidence in a light most favorable to the plaintiff. The trial court found all of the vessels to be unseaworthy. because all of the vessels were unseaworthy. he is shielded from liability. and held each tug and barge jointly and severally liable to Plaintiffs. The barges could not withstand coastal storms. and damages. which declared the tugs and the barges jointly and severally liable to plaintiff cargo owners. standard of care. who is the owner of barges. In Thoma. breach of duty. Synopsis of Rule of Law. 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. thus. The latter then sued third-party defendant. The T. a plaintiff must establish each of the following elements by a preponderance of the evidence: duty. and that their owners did not take reasonable precautions to make them seaworthy as required by its charter. leaked badly under weather-related stress. Discussion. Hooper Brief Fact Summary. . Reversed and remanded. is a breach of duty. Failure to act in such a fashion constitutes unreasonable conduct and. To recover for negligence.Issue. who is the owner of tugs.J. thus there existed an issue of material fact sufﬁcient to preclude a grant of summary judgment. If a defendant meets this standard. proximate cause. No. 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. Plaintiffs sued Defendant. Was summary judgment proper where. because they did not have radio sets with which they could receive weather reports. The reasonable person standard is an objective one. holding that it was for a jury to decide whether appellant could establish by a preponderance of the evidence that Appellee created a dangerous condition in its restaurant. The court reversed the grant of summary judgment. Both Defendants appealed. holding that the barges were unseaworthy in fact. The court also upheld the principal ﬁnding that the tugs were unseaworthy. the court concluded that there existed enough evidence that a jury might infer negligence. The court afﬁrmed. there existed a question as to whether employees exercised due diligence in maintaining the safety of the area in question? Held. even though such sets were not standard in the industry. comparing a defendant’s conduct to that of a reasonable person. Defendant. Facts.
e. courts have an obligation to set a standard consistent with prudence and proper caution. Defendant’s shop was adjacent to the road on which Plaintiff was walking. While certain courts had held that the industry standard constituted proper diligence. Discussion. C. J. Issue. at its core the standard applied in The T. Witnesses testiﬁed that a barrel of ﬂour fell on him. Failure to do so constitutes unreasonable conduct and. 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. Neither Plaintiff nor any of the witnesses testiﬁed as to anything done by Boadle (Defendant) that could have led to the barrel falling. The key is that a reasonable jury must be able to ﬁnd that the likely cause was negligence. hence. This decision expands on that standard by applying it in the context of accepted practice. The plaintiff does not have to eliminate all other possible causes for the harm. Byrne (Plaintiff) testiﬁed that he was walking along Scotland Road when he evidently lost consciousness. sufﬁcient to presume negligence? . 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. Synopsis of Rule of Law. This is an objective standard that compares the Defendant’s conduct to the external standard of a reasonable person. breach of duty. and the barrel appeared to have fallen. i. Did the fact that there was an industry custom that tugs did not carry radios relieve Defendants of their responsibility to maintain radios? Held. Boadle Brief Fact Summary. 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. or was dropped from the shop..Issue. 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). No. she is protected from negligence liability. PROVING UNSPECIFIED NEGLIGENCE: RES IPSA LOQUITUR Byrne v. If the Defendant does so. Was the mere fact of the incident occurring. Facts.
The court allowed the case to proceed because of the nature of the harm-causing event and Defendant’s relationship to it. Jeffries Brief Fact Summary. i. No.” In order for the Plaintiff to have the beneﬁt of res ipsa loquitur.e. One of the older children opened the door and told the others to jump out. The conditions traditionally required for the application of res ipsa loquitur are: “an accident that normally does not happen without negligence. Defendant gave Ms. courts interpreted the control element narrowly. Does the doctrine of res ipsa loquitur apply? Held. was injured when a wheel of Jeffries’ (Defendant) automobile ran over his body. Defendant’s car was parked on an incline at Plaintiff’s home. as it was Defendant’s responsibility to control the contents of his warehouse. and absence of voluntary action or contribution by the plaintiff. Enoch. a 6-year old child. Further. 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. The mother was in the house. she must convince the jury that each of these factors more likely than not exists. requiring the plaintiff to show that the defendant likely had “exclusive control” over the harm-causing instrumentality. including Enoch. All indications were that this was an accident. .. Terry Lee Enoch (Enoch). most jurisdictions no longer require the plaintiff to prove that he did not contribute to his harm. the child’s mother. Warren (Plaintiff) brought an action to recover for the child’s alleged wrongful death. climbed into the rear of the vehicle. 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. exclusive control of the instrumentality by the defendant. Discussion. and the front wheel ran over his chest. the keys to his car so that she could drive it to the store. while ﬁve children. Plaintiff appealed a judgment of involuntary nonsuit entered at the close of Plaintiff’s evidence. When the decedent jumped out he fell. the accident itself is evidence of negligence. No sufﬁcient proof of negligence was offered. No one touched any of the control mechanisms of the car. A plaintiff seeking to rely on res ipsa loquitur must connect the defendant to the harm. The child died from his injuries. Issue.Held. Warren v. Initially. Facts. Synopsis of Rule of Law.
the Plaintiff was entitled to have a jury consider her claim that the Defendant’s negligence was the cause of her personal injuries. which. a plaintiff must demonstrate that a defendant was responsible for the speciﬁc instrumentality that caused the event. Whether the doctrine applies in a given case is a question of law for the court. upon the . 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. Synopsis of Rule of Law. With respect to the doctrine of res ipsa loquitur (as clariﬁed in the court’s opinion). Issue.” Giles v. both inspection and user must have been at the time of the injury in the control of the party charged with neglect.” In essence. 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. “A verdict cannot be supported on the basis of mere speculation or conjecture. Did the Appellate Court properly apply the doctrine of res ipsa loquitur? Held. Proof of negligence may be furnished by the circumstances themselves and it is not essential to have eyewitness testimony. The elevator operator sought review. the elevator operator ﬁled a negligence action against the elevator installer to recover injuries he sustained when the elevator fell. as the court enunciated. “applies when three conditions are satisﬁed: the situation. The trial court granted a Motion for Summary Judgment and directed a verdict in favor of the elevator installer. The appellate court (Connecticut) reversed and remanded the case for a new trial. To avail herself of the inference afforded by the res ipsa loquitur doctrine. The facts indicated that the elevator installer installed the elevator sixty-one years prior to the accident.Discussion. Facts. Plaintiff. The trial court directed a verdict in favor of the elevator installer. Palmer. The Plaintiff was injured when an elevator he was operating fell. or apparatus causing the injury must be such that in the ordinary course of events no injury would result unless from a careless construction. condition. As noted in Gift v. Discussion. The Giles case further clariﬁes the doctrine of res ipsa loquitur. the injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. 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. an analogous case. inspection or user. City of New Haven Brief Fact Summary.
alleging that as a result of Defendant’s negligence he had suffered bodily injury. while Defendant presented evidence that the injuries resulted from Plaintiff’s ﬁve previous auto accidents. 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. Defendant objected. Later. ACTUAL HARM Right v. but no physical injuries reported at the accident scene. to serve as a deterrence to society. he can recover nominal and even exemplary damages. 3. Defendant prevailed. she had denied the causal relationship between the collision and the plaintiff’s alleged injuries. The trial court nevertheless granted the plaintiff’s motion and awarded nominal damages of $1. and that the accident resulting in injury was of such a nature that it ordinarily would not occur in the absence of negligence. HARM AND CAUSATION IN FACT A. Synopsis of Rule of Law. Common law requires proof of causation and actual damages to support a cause of action in negligence. Under the technical legal injury concept.showing that the product or apparatus was one over which the defendant had complete control. At trial Plaintiff presented evidence that his injuries resulted from the collision. ﬁnding that nominal damages should not have been awarded. Held. 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. However. Issue. where the plaintiff’s right has been intentionally invaded. The supreme court reversed. Plaintiff stopped his vehicle at a red trafﬁc light when it was struck from behind by Defendant’s vehicle. No. The plaintiff ﬁled a motion to set aside this verdict. 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. Facts. the technical legal . There was minor damage to the Plaintiff’s vehicle. but where plaintiff cannot prove actual bodily injury. The jury returned a verdict of zero damages. Plaintiff sued. The appellate court afﬁrmed. Defendant rear-ended Plaintiff but neither party reported any personal injuries at the scene. arguing that although she had admitted to causing the collision. Breen Brief Fact Summary. the doctrine of res ipsa loquitur permits the plaintiff to shift to the defendant the burden of proof on the issue of negligence.
Under the technical legal injury concept. No. moved for summary judgment arguing that the injury was caused by the defective sidewalk. the technical legal injury concept does not apply to a negligence action where injury has occurred unintentionally. As she stepped off the sidewalk before she reached the bushes. forcing Plaintiff to step into the street to walk around them. where the plaintiff’s right has been intentionally invaded. Synopsis of Rule of Law. It is not necessary that the defendant’s act be the sole cause of the plaintiff’s injury. she tripped over a chunk of concrete and fell into the street. Plaintiff Hale was walking home on a sidewalk that she had not traveled before. Defendants’ overgrown bushes obstructed the sidewalk. Plaintiff ﬁled suit against Defendants and the other property owner. However. Discussion. he can recover nominal and even exemplary damages. the Court of Appeals afﬁrmed. Trial court granted the Defendants’ motion. 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. property owned by another party. Issue. 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. blocking her way. to serve as a deterrence to society. She determined she had to leave the sidewalk and enter the street to bypass it.injury concept does not apply to a negligence action where injury has occurred unintentionally. Her left hip was crushed in the fall requiring extensive medical care. Common law requires proof of actual damages to support a cause of action in negligence. and the Tennessee Supreme Court reversed. The crumbled sidewalk was located in front of 1063 Mississippi. She sued Defendants for negligence. . CAUSE IN FACT -The But-for Test of Causation Hale v. Defendants. crushing her hip. then the defendant’s conduct is a cause in fact of the injury. Negligence requires both the elements of cause in fact and proximate cause. As she proceeded. Facts. As Plaintiff looked up to check trafﬁc in preparation for stepping into the street. Ostrow Brief Fact Summary. only that it be a cause. Common law requires proof of actual damages to support a cause of action in negligence. B. 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. the Ostrows. not the overgrown bushes. she tripped on crumbling sidewalk prior to the bushes and fell.
but that the harm was in fact caused by the defendant. distinct elements which must be proven by the preponderance of the evidence. The appellate court afﬁrmed the trial court’s judgment. 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. When this statement can be shown to be true. She underwent a therapeutic abortion and the pathology report stated the fetus was dead at the time of the procedure. not only that she suffered legally recognized harm. State Farm required Salinetro to submit to a medical examination and on December 10 Dr. sought review. The plaintiff must prove. This is expressed as the “but-for” rule: but-for defendant’s conduct. This decision stands for the proposition plaintiffs hoping to recover under a negligence theory must prove the fourth element. Issue.Held. factual causation. The plaintiff must prove not only that she suffered legally recognized harm. Facts. her doctor conﬁrmed the pregnancy after multiple tests. 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 . In this case. patient and her husband. the court found that Defendant’s obstruction of the sidewalk caused Plaintiff’s injury because “but for” the bushes. He did not inquire as to whether she was pregnant. Negligence requires both causation in fact and proximate cause. She ﬁled suit for medical malpractice. Anna Salinetro sustained back injuries in an automobile accident and applied for personal injury beneﬁts from her insurer. the pedestrian would have avoided injury. An element of a negligence prima facie case is cause in fact or actual cause. Discussion. cause in fact or actual cause has been proven. Appellants. No. Nystrom Brief Fact Summary. Plaintiff would not have had to look up and check for trafﬁc in preparation for stepping into the street to go around it. Salinetro did not know that she was pregnant at the time of the x-ray. Synopsis of Rule of Law. 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. State Farm Mutual Automobile Insurance Company (State Farm). Yes. Did the trial court err in entering judgment for Appellee? * Was Appellee the cause in fact/actual cause of Appellant’s injury? Held. Nystrom of her lower back and abdominal area took xrays. and she was advised to terminate pregnancy because the fetus had been exposed. Salinetro v. but that the harm was in fact caused by the defendant.
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. Synopsis of Rule of Law. science or economics.” Continuing along similar lines. the court stated. . breach of duty. whether he be a general practitioner or specialist. This case overrules the holding in Sun Oil Co.” * The court then shifted to the standard of care required of physicians. 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. 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. even if Nystrom’s failure to inquire as to whether Salinetro was pregnant at the time of her examination. the court explained: “A physician.” Thus. owner of a small lake. in determining that plaintiff had failed to establish two necessary elements. the lake owner declined to replead so as to assert several liability only against each defendant in separate suits. It should be noted that. initially. law. proximate cause (scope of liability) and damages. Discussion.medical malpractice since. Merely to show a connection between the negligence and the injury is sufﬁcient to establish liability. The Salinetro court focused. : Landers (Plaintiff). standard of care. courts defer to the expertise of the profession to determine the appropriate standard of care. cause-in-fact. With regard to doctors. 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. -Problems With and Alternatives to But-for Tests Landers v. Brief Fact Summary. Any claim for negligence requires plaintiff to establish the following elements: duty. “To determine what skills. 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. etc. this failure was not the cause of her injury. 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. v. East Texas Salt Water Disposal Co. because of the specialized skill and training required in ﬁelds such as medicine.
(Defendants) both caused large quantities of salt water and also oil to ﬂow into his lake killing the ﬁsh.In this case. * The lower court afﬁrmed the trial court decision. 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 . 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. which. He alleged that East Texas Salt Water Disposal Co. * The court held that because there was no misjoinder as alleged. and Sun Oil Co. 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. Yes. Plaintiff owned a small lake. 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. Did the Plaintiff in his pleading allege facts. Discussion. an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers. 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 is. he declined to replead so as to assert several liability only against each of the Defendants in separate suits. * 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. He alleged that both Defendants acted negligently. that is. Facts. * Overruling the holding in Sun Oil Co. when. * Adopting a new rule. an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers. which he had cleaned and stocked with ﬁsh at considerable expense. Robicheaux. made the Defendants jointly and severally liable for Plaintiff’s damages? Held. 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. that when (1) the tortious acts of two or more wrongdoers join to produce an indivisible injury. after Defendants’ plea in abatement asserting a misjoinder of parties and of causes of action had been sustained. v. if established by evidence. Issue.
P. & S. where it destroyed some of his property. Facts.. . the “substantial factor” test has been widely accepted. Anderson (Plaintiff) property near Minneapolis. S.P. In Anderson. The jury returned a verdict for Plaintiff. If two or more causes concur to bring about an event. Synopsis of Rule of Law. & S. Did the trial court err when it instructed the jury to apply the rule in the Cook v. M. 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.R. Ry. 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. The ﬁre started in a bog near Plaintiff’s land and smoldered there for several months.M. & S.R.M. Anderson v. No.S. then the cause-in-fact is established by the “substantial factor” test. as in the duplicative cause cases. and the trial court was not obliged to notify counsel before responding to the jury’s question.M. Plaintiff owned property near railroad company’s tracks. 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. Moreover.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 trial judge’s instructions to the jury in the absence of counsel were correct statements of law. Issue. St. Company’s (Defendant) railroad tracks. When either the “but-for” or “substantial factor” test is satisﬁed. When the “but-for” test seems to produce clearly wrong results. 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. a party has established that the other party’s conduct was the cause in fact of an injury. Minneapolis S. 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.P. case? Held. where it destroyed some of his property.S. Brief Fact Summary. Co.
40 L. Plaintiff suffered injuries to his right eye and face. 74 N. Consolidated appeals from a judgment of the Superior Court of Los Angeles County (California). Both hunters negligently ﬁred. it was in the discretion of the trier of fact to apportion the damages. Summers. The narrow rule in this case states that if a ﬁre combines with another of no responsible origin. and any one of those ﬁres could have been the actual cause of Plaintiff’s loss.A. Harold W. in Plaintiff’s negligence action against two hunters. Plaintiff provided each Defendant with directions on how to safely ﬁre their weapons. Plaintiff damages for personal injuries arising out of a hunting accident. irrespective of whether the ﬁrst ﬁre was or was not a material factor in the destruction of the property. which exempted Defendant from liability since there were other ﬁres sweeping east towards Plaintiff’s property. at the same time. The court reasoned further that it was Defendants’ burden to offer proof as to the apportionment of damages. and thus each liable for the damage caused by him alone. Rep. 624. because each acted negligently. If Defendants are independent tortfeasors. Plaintiff sued both Defendants in a negligence action.R. which awarded Charles A. The trial court entered a judgment in Plaintiff’s favor. in Defendant’s direction. each was responsible to Plaintiff for damages from the injuries he sustained. 830. On appeal. St. and after the union of the two ﬁres. Synopsis of Rule of Law. 68 Am. therefore. they destroy the property. Plaintiff and Defendants went on a hunting trip. then the cause-in-fact of an injury is established by the “substantial factor” test. then. Tice and Ernest Simonson (Defendants). The court applied the “substantial factor” test imported from the rule in the Cook case. While attempting to shoot their target. Because they failed to meet that burden. -Proof: What was Caused? Summers v. 457. Tice Brief Fact Summary. both Defendants ﬁred in Plaintiff’s direction.Discussion. Facts. and either ﬁre independently of the other would have destroyed it. the court afﬁrmed. there is no liability. 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. 561. . If two or more causes concur to bring about an event. 98 Wis. The wronged party should not be deprived of his right to redress.W. but it is impossible to prove whose conduct actually caused the harm.
No. Plaintiff suffered a broken neck in an auto accident and was treated at the hospital by Defendants. Facts. They are both wrongdoers negligent toward the plaintiff. then failed to both immobilize her properly and to administer steroid therapy. 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. 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. Since each Defendant acted negligently. each was responsible to Plaintiff for damages from the injuries Plaintiff sustained. alleging that they negligently misdiagnosed her spinal cord injury. They brought about a situation where the negligence of one of them injured the plaintiff. Here. She sued Defendants. Lovett Brief Fact Summary. the court reasoned that since they failed to meet that burden. If one can escape the other may also and plaintiff is remediless. Did the trial court err in entering judgment in Plaintiff’s favor? Held. Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. and the higher court reversed and remanded. The appellate court correctly afﬁrmed the lower court’s ruling. the trial court dismissed her action. hence it should rest with them each one to absolve oneself. a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. Synopsis of Rule of Law. Plaintiff proffered that her expert would testify that the Defendant’s negligence deprived her of the opportunity for a substantially better . if he can. because each acted negligently. each was responsible to Plaintiff for damages from the injuries Plaintiff sustained. Defendants have placed the injured party in the unfair position of pointing to which defendant caused the harm. Thus. causing her to lose the opportunity for a substantially better recovery. Upon learning that the Defendants intended to move to dismiss at the close of her case. Discussion. She sued Defendants for medical malpractice. 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. causing her to lose the opportunity for a substantially better recovery. therefore. the case should be left to the trier of fact to apportion damages. 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.Issue.
This decision explains that a minority of jurisdictions approach this theory according to the standards explained in (1) & (2) above. The court adopted the third approach. which allow a plaintiff to recover for the entire preexisting injury upon proving causation by the speciﬁed standard. (2) If a plaintiff proves that the defendant’s negligence more likely than not increased the harm to the plaintiff. reversed the trial court’s dismissal. she may recover damages only for the lost opportunity for a better outcome. to recover for her lost opportunity to obtain a better degree of recovery. The trial court dismissed the action on the ground that lost opportunity was not a recognized theory. whose preexisting injury or illness is aggravated by the alleged negligence of a physician or health care worker. . Discussion. Yes. however. not for the entire preexisting condition. 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. and remanded. Held. only permit a plaintiff to recover damages for loss of opportunity itself. she may recover damages for the entire preexisting condition. Issue. The loss the opportunity doctrine is a medical malpractice form of recovery which allows a plaintiff. (3) If a plaintiff can prove that she was deprived of at least a 51% chance of a more favorable outcome than she received. Many jurisdictions. The New Hampshire Supreme Court reversed and remanded.recovery. but can be quantiﬁed through expectation. Whether Plaintiff can recover under the loss of opportunity doctrine. but conceded that her expert could not quantify the degree to which she was deprived of a better recovery by their negligence. she may recover damages for the entire preexisting condition. which can be difﬁcult to calculate. as in the above case.
Washington Heights Condominium Brief Fact Summary. because the primary reason buildings have buzzer systems is to protect residents. Facts. by the Superior Court in the Judicial District of Stamford-Norwalk (Connecticut). so there could be no ﬁnding of negligence. Synopsis of Rule of Law. on grounds that the court should have entered judgment for Defendants on Plaintiff’s negligence claim as a matter of law. Did the trial court err in ruling in favor of the Plaintiff? Held. In fact. not guests. Her hosts struggled to admit her by using an electronic buzzer that did not work. 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. Issue. Plaintiff became the victim of a violent assault as she waited in the lobby of Defendants’ apartment building. The term proximate cause. proximate cause. The harm that occurred to plaintiff must be of the “same general nature as the foreseeable risk created by the defendant’s negligence. but not when some entirely different risk eventuates in entirely different harm. because Plaintiff failed to establish an essential element of negligence. the Appellate Court of Connecticut reversed and remanded because as a matter of law a jury could not reasonably have found that failure to ﬁx an intercom was the proximate cause of an assault on Plaintiff and resultant injury. The court held that the trial court should have entered judgment for Defendants as a matter of law. 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. . includes both cause in fact and foreseeability components. while Plaintiff was assaulted. THE SCOPE OF RISK OR “PROXIMATE CAUSE” ELEMENT A.” 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.4. The intervening criminal act of the assailant was not within the scope of risk created by Defendants’ lack of maintenance. THE PRINCIPLE: SCOPE OF RISK Medcalf v. Yes. Washington Height Condominium Association and a management company (Defendants) appealed a judgment for plaintiff.
In this act. Two men ran to catch a train that was pulling out from the platform. Justice Andrews. Proximate cause establishes a reasonable connection between an act or omission of a defendant and the harm suffered by a plaintiff. that. The ﬁreworks exploded when they fell. The package contained ﬁreworks. however he was unsteady. the package the man was carrying was dislodged and fell upon the rails. The second man. Defendant helped to push a man aboard a train. The ﬁrst man jumped aboard. as a matter of law. each person must refrain from acts (foreseeable or not) that unreasonably threaten the safety of others. A guard on the train. Thus. The man’s package fell. writing for the minority stated that each person owes an absolute duty of care. writing for the majority held that negligence is based on the foreseeability of the harm between the parties. attempted to jump aboard the car. Chief Justice Cardozo. * 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. The shock of the explosion threw down some scales at the other end of the . Facts.e. which exploded causing some scales to fall and injure Plaintiff Synopsis of Rule of Law. Palsgraf (Plaintiff) was standing on a platform after she bought a ticket from Long Island R. (Defendant). * The court found here that. who was carrying a package. Inside were ﬁrecrackers. but it becomes a question of law when the mind of a fair and reasonable person could reach only one conclusion. * The Supreme Court of Connecticut has deﬁned proximate cause as an actual cause that is a substantial factor in the resulting harm. The substantial factor test reﬂects the inquiry fundamental to all proximate cause questions.R. Brief Fact Summary. Long Island Railroad Co. Mrs. 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.Discussion. Plaintiff failed to establish the necessary causal relationship. whether the harm which occurred was of the same general nature as the foreseeable risk created by the Defendant’s negligence. a critical element for Plaintiff to prevail. but there was nothing from its appearance to give notice of its contents. i. * Proximate cause is a question of fact to be decided by the trier of fact. Palsgraf v. who had held the door open. reached forward to help him in. and another guard on the platform pushed him from behind at the same time. The second component of a negligence action is proximate cause.
an act innocent and harmless does not become a tort because it happened to be wrong with reference to someone else. Does a Defendant owe a duty of care to Plaintiff who is outside the reasonably foreseeable zone of danger? Held. (Justice Andrews) Everyone owes the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. The stales struck Plaintiff. Defendant’s liability for an intentional act cannot be greater when an act is inadvertent or unintentional. No. Issue. A defendant owes a duty of care only to those plaintiffs who are in the reasonably foreseeable zone of danger. * However. Defendant did not violate any foreseeable duties to Plaintiff. If not for the explosion. In determining proximate cause the court must ask itself whether there was a natural and continuous sequence between the cause and effect. Dissent. The conduct in relation to Defendant’s guard was wrong in relation to the man carrying the parcel. Plaintiff sued Defendant. * It was unforeseeable that a package being carried would explode and cause any damage to Plaintiff. it was not wrong in relation to Plaintiff who was standing so far away. 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. While it is clear that Defendant violated its duty to the person carrying the ﬁreworks. and not whether the act would reasonably be expected to injure another. * If no hazard is apparent to the eye of ordinary vigilance. * 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. Defendant appealed. many feet away. . she would not have been injured. Judgment reversed. Plaintiff was awarded damages. There was no indication that the parcel contained ﬁreworks. causing injuries for which she sues. Even if the guard had intentionally taken the package and thrown it. * The plaintiff must prove that her rights were violated and the duty that Defendant owed to her was transgressed. he would not have threatened Plaintiff’s safety.platform. * A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. It is not enough that Plaintiff merely prove that a duty that was owed to another was transgressed.
they knocked or dropped a lantern into the hole. . which resulted in a huge explosion that threw him down the manhole. was playing at the unattended site and knocked over a kerosene lamp. Andrews) Each person owes an absolute duty of care. everyone is a foreseeable plaintiff B. At 5:00 they took a tea break. Facts. Scotland. * (J. Cardozo) Negligence is based on the foreseeability of harm between the parties. Synopsis of Rule of Law. This case identiﬁes two ways to determine if a duty is owed to Plaintiff: (1) the Cardozo method. but the injury is caused in a unique way or manner which could not have been foreseen. Where a plaintiff’s injury is foreseeable. The higher court disagreed and found for Plaintiff on appeal. Thus liability for negligence is limited to what was foreseeable and what duties were owed that were reasonably foreseeable prior to the negligent act.J.J. Andrews’ view. Defendant argued it was not the proximate cause of the injuries. Under J. But once back on top. Lord Advocate Brief Fact Summary. an 8 year old boy. Thus to recover. the vaporization of the kerosene and the explosion were not. The courts of Scotland held in favor of Lord Advocate on the grounds that though burns were foreseeable. leaving unguarded an open manhole. He suffered severe burns and sued Defendant. He sued the Lord Advocate of Scotland as the representative of the Post Ofﬁce. and (2) the Andrews method: * (C. descended in the hole then came back up without mishap.Discussion. causing Hughes. each person must refrain from acts (foreseeable or not) that unreasonably threaten the safety of others. covered with a tent and surrounded by kerosene lanterns. a plaintiff must be a foreseeable plaintiff and be in the zone of danger. Cardozo’s opinion is the majority view and is referred to as the zone of danger view. Two boys. to fall into the manhole and suffer severe burns. C. 8 and 10 years old. found the site. Post Ofﬁce employees were working on an underground telephone cable in Edinburgh. Plaintiff Hughes. Post Ofﬁce workers were working underground and left the manhole unattended surrounded with kerosene lamps while on break. This gaseous form of kerosene came into contact with the lantern’s ﬂame and created a large explosion. The accepted reconstruction of what happened was that the lantern broke and some of the kerosene vaporized. the 8 year old. ASSESSING THE SCOPE OF THE RISK Hughes v. the result is within the chain of proximate causation and that element of negligence is satisﬁed.
but the injury is the type that was foreseeable. This case stands for the proposition that foreseeable injuries or harm that are caused in a unique. Discussion. namely an explosion. Synopsis of Rule of Law. as opposed to. The trial judge granted summary judgment for Reynolds and the court of appeals reversed . namely the kerosene lamp. ﬁred. Delaney then ran back up stairs. 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. Reynolds claimed that Delaney’s intentional act of attempting suicide was a superseding cause of her injuries. Reynolds urged her to move out of his house. Plaintiff took the gun from the bedroom and shot at Defendant twice but the gun did not ﬁre. a police ofﬁcer. seriously injuring her. Plaintiff Delaney began living with Defendant Reynolds. seriously injuring her. Reynolds knew that Delaney knew where he kept his gun. She sued Defendant for negligence. Held. and this time the gun went off. pursued by Reynolds. Plaintiff lived with Defendant police ofﬁcer who owned a gun and stored it loaded and unlocked in the bedroom. Delaney put the gun under her chin. When they reached the bedroom. Whether Defendant can be found liable for negligence where the manner or cause of the injury was unforeseeable. however.Issue. for example. pulling the trigger twice. Three different judges agreed that the Plaintiff’s burns were foreseeable. relieving a defendant from liability. Facts. Delaney sued Reynolds for negligence. there is no defense to negligence. Yes. One night Delaney smoked crack cocaine and was drinking heavily. Thus. 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. The explosion did not create an accident or damage of a different type than what could have been foreseen by the danger of ﬁre. While packing her things. In most states. Delaney took the gun. The gun did not ﬁre. Reynolds also knew that Delaney was depressed and had substance abuse problems. including Massachusetts. but injury is caused in a unique way which could not have been foreseen. suicide is considered an intervening cause which breaks the chain of causation. even though the manner in which they occurred was not. A few states. Delaney v. went downstairs and aimed the gun at Reynolds. One night after consuming drugs and being asked by Defendant to move out. Reynolds Brief Fact Summary. 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. loaded and unlocked in the bedroom. Where the cause of an accident was a known source of danger. Reynolds routinely stored his gun. a spill of the kerosene which would have produced a more normal conﬂagration.
Held. Dickens was driving eastbound on the thoroughfare where Plaintiff was working on an excavation.Issue. Plaintiff was hit by a car when he was working on an excavation job. but had failed to take his medication that particular day. The driver of the automobile. The driver was undergoing treatment at the time. who was propelled into the air. James Dickens (Dickens) was suffering from an epileptic seizure when the accident occurred. under Massachusetts law. does not adopt an ironclad rule that suicide constitutes an intervening cause. 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. Synopsis of Rule of Law. Facts. then it is a superseding act which would sever the causal connection. Upon landing. rather than any antecedent negligence. Felix contended . Whether suicide is such an extraordinary event as not to be reasonably foreseeable. Massachusetts. however. striking Plaintiff. however. Felix Contracting Corp. Brief Fact Summary. Derdiarian v. Most states continue to follow the traditional rule that suicide is a superseding cause of plaintiff’s harm. Dickens. as opposed to one. Accordingly. and the contractor for negligence. but an intervening cause of injury which breaks the chain of causation. Foreseeability is the reasonable anticipation of the possible results of an action. Felix Contracting Corporation (Felix). a purposeful act of suicide. Plaintiff and his wife sued the employer. If it is not foreseeable. The driver suffered an epileptic seizure and lost consciousness. (Defendants) claiming that the employer failed to maintain a safe work site. and struck an employee of a subcontractor. Plaintiffs maintained that the barrier should have covered the entire width of the excavation site. and there should have been two ﬂagmen present. Historically. Discussion. 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. the appeals court revered the summary judgment ruling. 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. Proximate cause is determined by whether an intervening act is a foreseeable consequence of the defendant’s negligence. No. freeing the defendant from liability for negligence. The automobile crashed through a single wooden horse-type barricade. the employee was splattered by boiling liquid enamel from a kettle. Like Massachusetts.
Further. leaving his truck partially blocking the road. When the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury..that Plaintiff was injured solely as a result of Dickens’ negligence. Plaintiff was attempting to warn oncoming trafﬁc of the unsafe situation when a motorist who was attempting to avoid colliding with the truck struck him. the causal connection is not automatically interrupted. Issue. For a plaintiff to carry the burden of proving a prima facie case of negligence. risk that is foreseeable and is the immediate cause of the plaintiff’s injury. The jury found the truck driver liable.e. Plaintiff was a passenger of a car that went off the road under icy conditions when an approaching truck crossed into his lane. Nugent Brief Fact Summary. The Court of Appeals of New York held that Plaintiff’s injuries were a foreseeable result of the risk created by the employer. Whether an intervening act is foreseeable or not is a question for the trier of fact. it depends upon whether the intervening act was a foreseeable consequence of defendant’s negligence. (Defendants) and the Plaintiff appealed the district court judgments in a negligence action. and relieve an actor of responsibility. when the risk of the intervening act occurring is the very same risk that renders the actor negligent. Instead. Facts. An oil company and the driver of its truck. Yes. defendant employer argued that there was no causal link between the employers breach of duty and plaintiffs injuries. he must generally show that the defendant’s negligence was a substantial cause of the events that produced the injury. Marshall v. Plaintiff need not demonstrate that the precise manner in which the accident happened or that the extent of injuries was foreseeable. The truck driver pulled over to offer assistance. and (2) no superseding intervening force. On appeal. Were Plaintiff’s injuries a foreseeable result of the employer’s failure to maintain a safe work site? Held. which would interrupt the causal connection between defendant’s negligence and plaintiff’s injuries. If the intervening event is unforeseeable. Essentially. The assigning of such liability is a question for the trier of fact. i. because there was no causal link between Felix’s breach of duty and Dickens’ negligence. Synopsis of Rule of Law. the foreseeable harm test requires (1) a reasonably foreseeable result or type of harm. then it may be a superseding cause. Was the truck driver negligent and his conduct the proximate cause of the Defendant’s injuries? . Issue. One is liable for the harmful consequences that result from the creation of unreasonable risk. Discussion. an intervening act may not serve as a superseding cause.
“[t]he question of proximate causation is one of fact for the 5. . injuring himself. A witness said that if Plaintiff had not been riding hard. “[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 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. he would have been able to see and avoid the pole. The Plaintiff. The Defendant had put up a pole across a public road for the purpose of making some repairs to his house. initializing the concept of contributory negligence. Forrester (Defendant). Facts. Synopsis of Rule of Law. the court states. Forrester Brief Fact Summary. The Plaintiff’s attempt to warn oncoming motorists of the dangerous situation was reasonable and did not constitute contributory negligence. was injured when he rode his horse into an obstruction placed into the road by the Defendant.” Thus. the jury should ﬁnd a verdict for the Defendant. The Plaintiff. The court in Marshall addresses a number of peripheral questions in determining the scope of liability in connection with auto accidents. The jury found for Defendant.” Discussion. THE COMMON LAW RULE Butterﬁeld v. what the court refers to as “a variety of risks. CONTRIBUTORY/COMPARATIVE FAULT A. Noting the often complicated circumstances surrounding a car accident. he would have been able to see and avoid the obstruction. did not see the pole and was thrown from his horse by the pole. The plaintiff’s failure to exercise reasonable and ordinary care in this case is a complete bar to recovery from the defendant. A witness stated that if the Plaintiff had not been riding violently.” In so doing the court provides the framework for delineating reasonable and unreasonable risks (the latter being those that are foreseeable and thus avoidable). Butterﬁeld (Plaintiff). Again. the Defendant’s negligence “constituted an irretrievable breach of duty. riding violently. The court of appeals afﬁrmed the judgment against Defendants.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. the court concludes.
No. Outside was a man she didn’t know. when she was awakened late at night by a knock on the door. 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. The Court’s holding in this case is demonstrative of common law contributory negligence. B. Illinois to attend a graduation at the Great Lakes Naval Training Station. Adams Brief Fact Summary. and he sexually assaulted her. The court of appeals afﬁrmed. Rule refused. * Justice Bayley: If the Plaintiff had used ordinary care. who. Synopsis of Rule of Law. which completely bars recovery if plaintiff’s negligence contributed to the happening of the accident. A suspect was apprehended. owned by Defendants. Diagnosed with post-traumatic stress disorder. Plaintiff traveled to an area just north of Chicago. A jury found the Defendants to be negligent. 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. but the rapist was never prosecuted. * Chief Justice Lord Ellenborough: One person being in fault will not dispense with another’s using ordinary care for himself. and their negligence was the proximate cause of Plaintiff’s assault. 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). Discussion. so the accident happened entirely at his own fault. after some confusion. and the court of appeals can reverse only when persuaded that in applying this standard. ADOPTING AND APPLYING COMPARATIVE FAULT RULES Wassell v. However the jury . Plaintiff managed to escape. 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. She was staying at a motel. Plaintiff allowed the man inside the room. 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. but Plaintiff was too upset to provide proper identiﬁcation. the district judge abused his discretion Facts.Issue. asked for a glass of water.
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. 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.” * 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. . Prior to the class she had signed a release and consent form. 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. Issue. and 3% to Defendants. According to the Restatement of Torts Section: 463.” 6. It held that the issue of apportionment was one of fact and thus properly within the purview of the jury. She sued Defendants for negligence. CONTRACTUAL OR EXPRESS ASSUMPTION OF THE RISK Moore v. . Did the court err in allowing the jury’s determination to stand. was thrown from the ATV and injured. but declined to reverse. Plaintiff purchased an ATV and attended an ATV rider safety course where she hit a rock. and the court of appeals can reverse only when persuaded that in applying this standard the district judge abused his discretion. Hartley Motors Brief Fact Summary. However. The court of appeals. 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. as the latter was the trier of fact. Discussion. in bringing about the plaintiff’s harm. and which is a legally contributing cause . ASSUMPTION OF THE RISK A. disagreed with the jury’s apportionment.also found that Plaintiff had been negligent as well. apportioning blame 97% to Plaintiff. in dicta. . contributory factor to the circumstances that resulted in her injuries and denying her Motion for a New Trial? Held. that Plaintiff’s negligence was a relevant. The question of apportionment of blame was properly one for the jury. Synopsis of Rule of Law.
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. or if they are ambiguous. 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. Plaintiff was thrown from her ATV when it struck a rock obscured by high grass. the court discussed the language of the release. The Moores elected to attend the class and signed a consent form and release before the class began. IMPLIED ASSUMPTION OF THE RISK Avila v. B. resulting in serious injuries. . Moreover.” Based on that language. the ATV Safety Institute. 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. Plaintiff appealed. During the class. which released the course providers from liability and damages “arising out of participation in the ATV RiderCourse. Plaintiff Avila was hit in the head by a ball thrown by the pitcher while he was at bat. thus the class providers did not have a “decisive advantage of bargaining strength” in requiring the release for participation. Second. She sued Hartley Motors. even if a release comports with public policy. Reversed and remanded. and the higher court reversed and remanded. the dealer. At the time of the sale. a court must determine whether the risk that caused the injury was within the scope of the release. 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.Facts. such pre-injury releases are unenforceable if they offend public policy. 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. Discussion. Plaintiff Moore bought a Suzuki four-wheel ATV in May 1993. The superior court granted summary judgment for Defendants ﬁnding that the signed release was valid. alleging that Defendants negligently concealed the fact that the course was unsafe. and the instructor of the class. First. Held. No. Issue. Citrus Community College District Brief Fact Summary. or was an unnecessary danger.
On January 5. He sued both colleges. In general. Held. The danger to the plaintiff is not one which defendant is required to extinguish or warn about. Nevertheless. . No one tended his injuries. Avila alleges it was an intentional “beanball” throw in retaliation for the previous hit batter. 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. as being hit by a pitch. his manager told him to go to ﬁrst base and to stay in the game. (2) failure to supervise and control the Citrus College pitcher was barred by Avila’s primary assumption of the risk. when Avila came to bat in the next inning. Reversed and remanded. played baseball for the school’s team. a Rio Hondo pitcher hit a Citrus College batter with a pitch. 2001. a defendant does not have a duty to protect a plaintiff from injuries arising from risks deemed inherent in a sport. Yes. cracking his batting helmet. he was still in pain. Issue. holding that the action was barred by assumption of the risk. Facts. and Defendants did not have a duty to decrease the risks in the game. 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. Avila walked off the ﬁeld and went to the bench. and the California Supreme Court reversed. (3) failing to provide umpires likewise did not increase the risks inherent in the game. At second base. he was playing a preseason game against Citrus Community College. even intentionally. Assumption of the risk applies in the sporting context when a defendant owes no duty to protect a plaintiff from particular harms. the Citrus College pitcher hit him in the head with a pitch. etc. Plaintiff Avila. 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. 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. Discussion. the helmet manufacturer.Synopsis of Rule of Law. Avila staggered. The trial court dismissed the action. and complained to his manager of being in pain. felt dizzy. a Rio Hondo Community College student. 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. (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. there is no liability to the plaintiff because there is no negligence on the part of the defendant to begin with. is an inherent risk of baseball. the court of appeals reversed. This decision stands for the proposition that where primary assumption of the risk exists. In determining whether primary assumption of the risk bars liability in a sporting context. his manager. so a Citrus College player yelled to the Rio Hondo dugout that they needed a pinch runner. During the game.
and thus entitled to the heightened duty owed by one of that status. LICENSEES. INVITEES.” The dissent took further issue with the majority’s characterization of the status of the Plaintiff. CARRIERS. a landowner owes no duty to a licensee or trespasser except to refrain from willful.III. alleging negligent security and negligent operation. HOST-DRIVERS AND LANDOWNERS A. LANDOWNERS’ DUTIES TO TRESPASSERS. The trial court dismissed the security claim. Defendant appealed. wanton. which the . The dissent maintained that the majority avoided the fundamental issue at hand.” The judgment of the lower court was reversed and the action remanded. The trial court instructed the jury to consider the question of whether the evidence showed Plaintiff was an invitee. The train’s operator was unable to brake in time and the train struck Plaintiff causing him serious and permanent injuries. but permitted the negligent operation claim to proceed to trial. Plaintiff ﬁled suit against the Defendant. Plaintiff ended up on the tracks with a train approaching. A landowner owes a duty to an invitee to exercise ordinary care for the invitee’s safety and protection. A jury awarded Gladon (Plaintiff) damages in connection with being struck by a train operated by Greater Cleveland Regional Transit Authority (Defendant). Issue. 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. 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. At some point. Dissent. Facts. Synopsis of Rule of Law. LIMITING OR EXPANDING THE DUTY OF CARE 1. AND CHILDREN Gladon v. Greater Cleveland Regional Transit Authority Brief Fact Summary. Plaintiff boarded Defendant’s train after attending a Cleveland Indians baseball game.” 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. What was the Plaintiff’s status at the time of his injury? * What duty of care was Plaintiff owed by the Defendant? Held. He was assaulted after mistakenly alighting from the train. or reckless conduct that is likely to injure him. Conversely. A jury found for Plaintiff and awarded damages.
and drowned. In some jurisdictions this approach to liability has been abandoned in favor of a generalized duty of ordinary care. Finally. (e) The possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children. The duty owed an invitee is that the landowner uses reasonable care in maintaining the premises and in their activities. The duty owed in this case is very limited.” “licensees. the only duty owed is to refrain from willful harm. fell in.” and “invitees. There are three basic categories: “trespassers.” The distinction was critical as it goes directly to the duty of cared owed by Defendant. His mother also drowned trying to save him. Discussion. an “invitee” is a person who enters the property at the behest of the owner. The common law approach measure the duty owed by the status of the person entering the land. Bennett v. Stanley Brief Fact Summary.dissent maintains is that of “business invitee. (b) The possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children. A ﬁve-year-old boy trespassed into his neighbor’s yard to play by their unkempt. The father sued the neighbors in negligence.” . Synopsis of Rule of Law. and this type of person generally falls into two categories: business invitees and public invitees. As noted above. 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. Social guests fall under this category. in contrast is one who enters the land with the express or implied consent of the landowner. A “licensee”.” That classiﬁcation determines the standard of care owed by the land occupier. (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. * A “trespasser” is deﬁned as a person who enters or remains on another’s property without the permission (express or implied) of the owner. pond-like pool.
Children have a special status in tort law and duties of care owed to them are proportioned to their inability to foresee and avoid the perils that they may encounter. Bennett sued the Stanleys in negligence. When Rickey Bennett came home on the day of the drowning he found his two young daughters crying. The trial granted the Stanleys’ motion for summary judgment. Chance fell into the pool and his mother apparently drowned trying to save him. Held. were playing at their neighbor Stanleys’ pool on March 20. Issue. the appeals court afﬁrmed.” Accordingly. the doctrine applies mainly to children of grade school age or younger and only rarely to teenagers . and the Ohio Supreme Court reversed and remanded. It became pond-like and contained tadpoles and frogs with slimy sides covered in algae.Facts. because of their youth. 3 years old and 5 years old respectively. (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. are unlikely to appreciate the dangers and to avoid them. Thus. 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. Discussion. Kyleigh told him that “Mommy and Chance are drowning in the water. Yes. The Stanleys did not properly maintain the pool.” Bennett ran next door to ﬁnd his wife and son unconscious in the swimming pool. Whether property owners have a heightened duty of care to protect child trespassers from dangers upon their land. (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. Both died. 1997. They had removed a tarp from the pool and fencing from two sides of the pool and it did not have any ladders. The attractive nuisance doctrine applies only to children who. the court reversed the judgment of the lower courts granting summary judgment for the Defendants and remanded. (b) The possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children. but had allowed it to ﬁll with rainwater to a depth of over 6 feet.
The assumption of risk defense contains three basic elements. 3) assume the risk. the Superior Court. implicitly abolished the open and obvious danger defense. Shaw Brief Fact Summary. 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. arguing that the Massachusetts statute. Plaintiff appealed. which expressly abolished the defense of assumption of risk. In an action for negligence. Along with contributory negligence. 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. Facts. He contended that Defendants had a duty to warn visitors of the danger of diving into the pool.O’Sullivan v. The standard of care owed by a defendant presumes that a plaintiff is required to exercise reasonable care for his own safety. 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. assume the risk of harm associated with the activity in question? Held. Essex (Massachusetts) granted Defendants’ Motion for Summary Judgment. the court explains. therefore Defendants did not owe a duty of care to Plaintiff. by exposing himself to an obvious danger. and 2) voluntarily. Discussion. The Superior Court granted Defendants’ Motion for Summary Judgment. He struck the bottom of the pool at an odd angle and sustained a fracture to the cervical vertebrae resulting in temporary paralysis. 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. A plaintiff must 1) know a particular risk. In seeking to avoid the confusion and potential for arbitrariness for juries. Synopsis of Rule of Law. . Issue. The Plaintiff suffered injuries to his neck and back after diving into the shallow end of the pool. Plaintiff brought an action to recover damages for injuries incurred after he dove headﬁrst into the shallow end of the Defendant’s swimming pool. assumption of risk is traditionally the second complete defense to a negligence claim. The appellate court afﬁrmed the lower court’s judgment. Did Defendants owe a duty to Plaintiff to warn him of the danger of diving into the shallow end of Defendants’ swimming pool? * Did Plaintiff. This approach presumes a duty of reasonable care is owed to any land entrant regardless of his or her status.
thus barring Plaintiff’s claim. Brief Fact Summary. Defendants contended the Plaintiff’s claims were barred by the “ﬁreﬁghter’s rule”. Whether South Carolina adopts the ﬁreﬁghter’s rule. has been abolished in many jurisdictions. No. However. The “ﬁreﬁghter’s rule” is a common law doctrine still applied in some states that precludes a ﬁreﬁghter (and certain other public employees. Accordingly. Inc. Facts. 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. toward a public street. then stopped it and claimed he was injured in the process. Plaintiff noticed the unoccupied truck begin to roll forward. as a policy matter. Courts have. 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 FIREFIGHTER RULE Minnich v. Plaintiff alleged he suffered serious injuries proximately caused by Defendants’ employees and sued in federal court. and stopped the truck. Held. however. the Supreme Court found that the rule is riddled with exceptions and criticisms. Med-Waste. Plaintiff ran to the truck. injuries to police and ﬁremen are compensable through workers’ compensation and liability should be borne by the public rather than by individual property owners. Issue. and was not part of South Carolina’s case law. The court discussed several rationales for the rule. Plaintiff assisted in loading medical waste from the premises onto a tractor-trailer truck owned by Defendant Med-Waste. the court held that the ﬁreﬁghter’s rule did not apply under South Carolina state law and answered the certiﬁed question in the negative. 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. While working in this capacity. 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. He sued the Defendant truck company. such as that ﬁreﬁghters and police ofﬁcers are aware of the risks inherent in their chosen professions and therefore have assumed those risks. . jumped in. Plaintiff Minnich was employed by the Medical University of South Carolina as a public safety ofﬁcer.B. He ran to catch it. The South Carolina Supreme Court answered no. 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. Moreover. Plaintiff public safety ofﬁcer was helping load medical waste onto a truck when the unoccupied truck started rolling towards a public street. The “ﬁreﬁghter’s rule” is a common law doctrine that precludes a ﬁreﬁghter (and certain other public employees. Inc. Synopsis of Rule of Law. In the course of this feat. jumped inside.
courts reason that the public pays to train and compensate ﬁreﬁghters and police ofﬁcers via taxes. He noted. The porcelain handle of the bathroom faucet broke while Plaintiff was using it. which had predominated tort law for years. C. The proper test to be applied to the liability of a landowner is whether in the management of his property. 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. the negligent taxpayer would incur multiple penalties in exchange for the protection provided to them. in granting summary judgment in favor of Defendant. Plaintiff appealed. Plaintiff was a guest in Defendant’s apartment. “[i]n determining the liability of the occupier or owner of land for injuries. Issue. Christian Brief Fact Summary.” It was not a proper function of the court to overturn this system. Roland (Plaintiff). a social guest. Facts. The Superior Court of the City and County of San Francisco (California) granted summary judgment in favor of Nancy Christian (Defendant). yet did not warn Plaintiff. He suffered severed tendons and nerves. Plaintiff brought suit for recovery and the trial court granted Defendant summary judgment. Dissent. . it is the job of the legislature to enact statutes to provide guidelines for the modern society. like the host. No. licensees and invitees have been developed and applied by the courts over a period of many years. he has acted as a reasonable man in view of the probability of injury to others. Had the trial court. LANDOWNERS Rowland v.Discussion. Instead. so that he may take necessary precautions. Defendant had known about the damaged ﬁxture and had reported it to her lessors. A guest is reasonably entitled to be warned of any dangerous condition. could take proper precautions. The dissent took issue with what he viewed as a departure from an established and workable framework. the distinctions between trespassers. Synopsis of Rule of Law. applied the proper standard for duty of care? Held. had brought an action to recover damages for personal injuries caused by a defective bathroom ﬁxture in an apartment occupied by Defendant. If these public employees were permitted to bring suit against the taxpayers whose negligence proximately caused injury. In some states which still adhere to the ﬁreﬁghter’s rule.
Discussion. Thus. literally. and thus the standards of liability were. although the plaintiff’s status as a trespasser. and. “status” conscious. and the prevalence and availability of insurance. a “licensee” or an “invitee” determined the degree of care owed. California is one of the ﬁrst states to depart from the common law approach. or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability. the policy of preventing future harm. Brief Fact Summary. licensee. Safeco Insurance Co. * In Rowland. The law evolved in such a manner as to place primary importance on land ownership. The classiﬁcations do not take into account certain factors that need to be considered. the immunities from liability predicated upon those classiﬁcations. the degree of liability assigned an owner or occupier of land was assessed according to the status of persons entering the property. LESSORS Pagelsdorf v. licensee. Under Wisconsin law. Plaintiff sued landlord for landlord’s failure to repair the balcony. offends society’s moral and humanitarian values.” Thus. which include: “the defendant’s conduct. Plaintiff was injured when tenant’s balcony rail collapsed while she was helping tenant move. a landlord owes to his tenant or anyone on the premises with the tenant’s consent a duty to exercise ordinary care. Judgment was entered for defendant landlord based on a landlord’s general immunity to liability from tenants and visitors. and the exceptions to those immunities. the status is not determinative. whether the entrant of a property was a “trespasser”. D. 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.” It no longer makes sense to hold someone to a certain duty of care.” It is unreasonable to apply the historical or traditional terminology to modern society. based on these classiﬁcations. the court adopts a more generalized “reasonable person” standard. Synopsis of Rule of Law. and invitee. . * Therefore. stating that “[i]t is apparent that the classiﬁcations of trespasser. In common law. often do not reﬂect the major factors that should determine whether immunity should be conferred upon the possessor of land. To ﬁnd that one person is owed a lesser duty of care than another based on these archaic classiﬁcations. the moral blame attached to the defendant’s conduct. the court outlined a different test.
Pagelsdorf was assisting Mrs. The Plaintiffs in this matter were Carol Pagelsdorf (Mrs. Did the trial court err in failing to instruct the jury that Defendant owed Mrs. Pagelsdorf a duty of ordinary care. The modern day apartment lease is viewed as a contract rather than a conveyance. An implied warranty of habitability requires a lessor to deliver the premises to the lessee in a habitable condition. in the present case. yet immunize them from liability from injuries resulting from a failure to comply with such a warranty. The Defendant. Reszcynski. Pagelsdorf) and James Pagelsdorf (Plaintiffs). 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 landlord is generally not liable to tenants unless one of the exceptions applies and no exception applies in this case.Facts. Mrs. Blatnner). dismissing the complaint. * Following the traditional rule. However. The Court has implied a warranty of habitability in such contracts. Pagelsdorf a duty to exercise ordinary care in maintaining the premises? Held. Defendant rented the upper unit to the John Blatnner and Mary Katherine Blatnner (Mrs. The railing had a dry rot condition and should have been replaced. Pagelsdorf leaned against the railing of the second ﬂoor balcony and it collapsed. Richard Mahnke (Defendant). owned a two-story duplex with four balcony porches. injuring her. Blattner to move some furniture. the only recourse for a landlord’s failure to comply with this warranty is a right to withhold rent until repairs are made. 236 N. 70 Wis. Discussion. Generally.W.2d 836. Mrs. Issue. Yes. the Plaintiff would not be entitled to an instruction that Defendant owed Mrs. Judgment was entered on the verdict. 10 (1975)]. Plaintiffs appeal. It would be anomalous to apply a warranty of habitability to landlords. the Court’s decision to abandon the landlord’s cloak of immunity to tenants and visitors. 854-55.2d 1. Judgment reversed and cause remanded. * The policies discussed in Antoniewicz support. * This court previously abolished the distinction between licensees and invitees [Antoniewicz v. .
In a medical malpractice action. causing paralysis of the vocal chords. A common risk in such a procedure is damage to the patient’s recurrent laryngeal nerves. the Appellate Court for the First District (Illinois) afﬁrmed a directed verdict entered in favor of Appellees. Issue. Facts. As the court clariﬁed. A physician must exercise that degree of care. The trial court directed a verdict in favor of the Appellants and the intermediate appellate court afﬁrmed. TRADITIONAL DUTIES OF HEALTH CARE PROVIDERS IN TRADITIONAL PRACTICE Walski v. and prudent practitioners in the same class to which he belongs. Appellants operated to remove Appellee’s thyroid. 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. which involves the exercise of individual judgment within the framework of established procedures. the common scenario of “dueling experts”. alone may not be sufﬁcient to meet the burden of establishing professional error. Did Appellee meet the burden of establishing Appellants’ medical malpractice? Held. It is rather a profession. Tiesenga Brief Fact Summary.DUTIES OF MEDICAL AND OTHER PROFESSIONALS 1. and proﬁciency exercised by reasonably careful. skill. The plaintiff in a medical malpractice action must establish the standard of care through expert testimony. Expert testimony is necessary to establish that a defendant fell below the standard of care. the court concludes. The court recognized the difﬁculty inherent in requiring a jury to evaluate certain standards of professional conduct. because medicine is not an exact science.” * A plaintiff’s introduction of conﬂicting expert testimony. no expert testimony is necessary. “[i]t is insufﬁcient in a medical malpractice action for plaintiff to establish a prima facie case merely to present testimony of another physician that he would have acted differently from the defendant. “[i]t . 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. acting under the same or similar circumstances.” Finally. The court held that the patient failed to establish a standard that the doctors were bound to follow. Synopsis of Rule of Law. the Appellants mistakenly cut them. skillful. resulting in a loss of his or her voice. In attempting to segregate the laryngeal nerves in order to avoid damage. Appellants sought review. Differences in opinion are consistent with the exercise of due care. Discussion. The Supreme Court of Illinois afﬁrmed the directed verdict entered in favor of the Appellants.
This was a case alleging medical malpractice. and proﬁciency exercised by reasonably careful. Javier Vergara. objective standard employed by the majority of jurisdictions. Issue. skillful. The dissent objected to the standard outlined by the majority. The Court of Appeals of Indiana afﬁrmed the trial court’s judgment. Plaintiffs alleged that these injuries were the result of the Defendant’s negligence. and prudent practitioners in the same class to which he belongs. suffered severe and permanent injuries as a result of the cesarean. which was a jury verdict in favor of Defendant. Indiana employed a professional standard of care. acting under the same or similar circumstances. Plaintiffs brought an action against the Defendant for injuries sustained by their infant son. in which Plaintiffs contend that Defendant failed in his professional responsibility in performing a cesarean section Plaintiff’s infant son. The Supreme Court of Indiana opted to adopt a more objective standard.” Vergara v. In adopting the new standard. No.” which differentiated between the manners of treatment acceptable in different locales. Dissent. Discussion. 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. Plaintiffs alleged that their infant suffered severe and permanent injuries during delivery as a result of the Defendant’s negligence. which is articulated above. “the modiﬁed locality rule. Synopsis of Rule of Law. 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 Vergara court simply brought Indiana law in line with the more universal. does not establish negligence. skill. . rather than clarify. Facts. the standard of care to which physicians were expected to adhere. Doan Brief Fact Summary. Prior to Vergara.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. Plaintiffs appealed. The dissent contends that the majority position served to confuse. Did the lower court properly instruct the jury regarding the standard to apply in evaluating Defendant’s professional conduct? Held.
which does not encompass the specialized knowledge necessary. some events ordinarily do not occur in the absence of negligence. but the New York Court of Appeals afﬁrmed the trial court Issue. The court concluded that expert testimony may be used to help the jury “bridge the gap” between its own common knowledge. Lourdes Hospital Brief Fact Summary. Plaintiff Kathleen States underwent surgery for removal of an ovarian cyst. Held.” It derives from the understanding that according to common knowledge. Synopsis of Rule of Law. 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. Whether a jury can rely on expert medical opinion in the absence of direct evidence of negligence to support a res ipsa loquitur theory. Facts. Res ipsa loquitur is a doctrine of ancient origin which means “the thing speaks for itself. the jury would have to rely on expert medical opinion rather than their own common knowledge and everyday experience. and thus negligence may be inferred from the mere happening of an event. Conceding the absence of direct evidence of negligence. RES IPSA LOQUITUR States v. She sued the hospital on a res ipsa loquitur theory and had to present expert testimony as direct evidence of negligence. In the course of the surgery. . She sued the hospital. Expert testimony is frequently necessary in a medical malpractice case brought on a res ipsa loquitur theory. A divided appellate division reversed. which does. She believed that during the operation the anesthesiologist negligently hyperabducted her right arm beyond a 90-degree angle for an extended period of time. At the close of discovery.” It derives from the understanding that according to common knowledge. submitting expert medical opinion that her injuries would not have occurred in the absence of negligence. and the common knowledge of physicians. Plaintiff opposed the motion. Res ipsa loquitur is a doctrine of ancient origin which means “the thing speaks for itself.2. Plaintiff States underwent surgery for removal of an ovarian cyst. Defendant Hospital moved for summary judgment on the ground that there was no direct evidence that the plaintiff’s arm was hyperabducted during surgery. causing right thoracic outlet syndrome and reﬂex sympathetic dystrophy. Yes. the anesthesiologist negligently hyperabducted her right arm beyond a 90-degree angle for an extended period of time resulting in injury to her. The defendant in this case argued that res ipsa could not apply because to establish that the hyperabduction of plaintiff’s arm would not have occurred in the absence of negligence. some events ordinarily do not occur in the absence of negligence. Plaintiff claimed this testimony could be used by a jury in support of a res ipsa loquitur theory.
He testiﬁed that prior to the operation he had never had any such pain. (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant. After surgery. Ybarra v. so that his back rested against two hard objects. as a matter of common knowledge. nor had he suffered any injury that might have been the cause. 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. thus rendering the trial court’s judgment of nonsuit improper? Held. The doctrine of res ipsa loquitur applies with equal force in cases wherein medical and nursing staffs take the place of machinery and may. After being given an injection. Plaintiff appealed. inﬂict. He brought suit. Discussion. Spangard Brief Fact Summary. In explaining the applicability of res ipsa loquitur. The Supreme Court of California reversed the lower court’s ruling because the res ipsa loquitur doctrine applied to Defendants. because they had control over Plaintiff’s body and instrumentalities that might have caused the injuries which Plaintiff sustained. injury upon a patient who is thereafter in no position to say how he received his injuries. the Supreme Court of California provided a very broad interpretation of res ipsa loquitur. Would the application of the doctrine of res ipsa loquitur have been appropriate in this case. (3) it must not have been due . Plaintiff was diagnosed with appendicitis and was scheduled for surgery. the Superior Court of Los Angeles County (California) entered judgments of nonsuit as to all Defendants in an action for damages for personal injuries. 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 evidence established that his condition was the result of trauma. or permit the inﬂiction of. eventually resulting in paralysis. Facts. Synopsis of Rule of Law. the plaintiff’s injury is more likely than not to have resulted from negligence. In a personal injury action. Issue. This decision stands for the proposition that expert testimony is frequently necessary in a medical malpractice case brought on a res ipsa loquitur theory. Discussion. and in the course of preparation for surgery members of the surgical team adjusted Plaintiff. Plaintiff complained of neck and back pain.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. Yes. The normal basis for medical res ipsa loquitur is that. His condition worsened. through carelessness or lack of skill.
the physicians treating her did not properly inform her of the possible consequences and should have been held liable. She brought suit. all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. she asserted. Synopsis of Rule of Law. 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. 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. In the course of the procedure her hypoglossal nerve was severed. and the resulting injury foreseeable. Thus. It is applied in a wide variety of situations. Failure to do so constitutes professional misconduct. sufﬁcient information to enable the patient to make an informed judgment whether to give or withhold consent to a medical or surgical procedure. including cases of medical or dental treatment and hospital care. Plaintiff underwent surgery to remove a tumor in her neck. The Superior Court (Massachusetts) dismissed Harnish’s (Plaintiff) negligence claim after a medical malpractice tribunal concluded that Plaintiff’s evidence was inadequate. Issue. She maintained that if she had been apprised of the risk. . contending that the purpose of the procedure was cosmetic.” The court’s application of the doctrine carries particular signiﬁcance within the parameters of medical malpractice claims: “[w]here a plaintiff receives unusual injuries while unconscious and in the course of medical treatment.to any voluntary action or contribution on the part of the plaintiff. Facts. which is material to in order for the patient to make an intelligent decision whether or not to undergo a proposed procedure. Children’s Hospital Medical Center Brief Fact Summary. Plaintiff sought review. constituted professional misconduct. she would not have consented to the procedure. allegedly resulting in the critical loss of certain functions of her tongue.” 3. INFORMED CONSENT Harnish v. and thus necessary for a patient to be sufﬁciently informed? Held. It held that the surgeon’s failure to divulge to a competent adult patient.
to assist him in starting the pump. and the available alternatives. One trench contained several feet of water.” 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. Plaintiff appealed a judgment from the Somerset County Court of Common Pleas (Pennsylvania) that sustained John Bigan’s (Defendant) demurrer. in what the physician knows or should know is his patient’s position. Defendant was engaged in a coal strip-mining operation. if known to him he should have realized involved an unreasonable risk of harm to the business invitee. the likely result of no treatment. the Harnish court explained: “[i]n the context of informed consent. the beneﬁts to be reasonably expected. the owner knew or could have discovered the condition which. THE NO DUTY TO ACT RULE Yania v. liability ﬂows from the defendant’s failure to obtain the plaintiff’s informed consent. (2) if the owner had no reason to believe the business invitee would discover the condition or realize the risk of harm. including their risks and beneﬁts. if that be the case. Regarding such consent. whereby trenches were dug in order to remove coal deposits.” NONFEASANCE 1. materiality may be said to be the signiﬁcance a reasonable person. but only if. the nature and probability of risks involved. would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment. 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. Joseph Yania (Yania). which arose from the death of the Plaintiff’s husband. Facts. In these circumstances. Bigan Brief Fact Summary. .Discussion. the inability of the physician to predict results. Synopsis of Rule of Law. if that is the situation. Harnish illustrates another basis for medical malpractice liability: a physician’s failure to provide information to the patient. the irreversibility of the procedure. the operator of another coal strip-mining operation. It dismissed her wrongful death and survival actions against Defendant. 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. Defendant asked Yania. and Defendant had placed a pump in the trench to remove the water.
Discussion.” 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. * The fact that Defendant saw Yania in a position of peril in the water. . it was the performance of that act that caused Yania’s death. On appeal. to contend that such conduct directed to an adult in full possession of all his mental faculties constitutes negligence is without merit. The Plaintiff initiated wrongful death and survival actions against Defendant. Justice Benjamin R. Defendant taunted and urged Yania to jump into the water. the court afﬁrmed. 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. 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. was perilous. However. Did the trial court err in ruling in favor of Defendant? Held. alleging that Defendant taunted her husband. by the employment of cajolery and inveiglement. The trial court properly ruled for Defendant. Issue. The trial court sustained Defendant’s demurrer and dismissed Plaintiff’s actions.According to Plaintiff. failed to warn him of the danger. which he knew or should have known. not a legal duty. not the enticement. Jones held that it was the performance of that act and not defendant’s conduct which caused Yania’s death. there was no duty of rescue. imposed upon him a moral duty. and failed to rescue him. the court stated that the “only inference deductible from the facts alleged in the compliant is that Bigan. On appeal. Although Defendant enticed Yania to perform a dangerous act. No. holding that Yania was a reasonable and prudent adult and performed an act.
The court of appeals agreed. 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. the court of appeals held that the trial court erred in dismissing counts based on voluntary undertaking. Mraz Brief Fact Summary. checking on her. 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. Michael and Brian Mraz. After drinking the entire bottle. According to the complaint. . The complaint was dismissed on the ground that Illinois case law eliminated liability of social hosts for providing alcohol. Later their father ordered she be removed from the home.2. Synopsis of Rule of Law. 21 and 18 years old. She went unconscious and started vomiting while unconscious. Held. Although the defendants claimed that none of their acts indicated a voluntary assumption of responsibility for the decedent. placing her on a couch. The boys checked on her and moved her to the couch but refused to get medical assistance. Yes. and placing a pillow under her head. The court found that Michael and Brian Mraz demonstrated an undertaking concerning decedent’s well-being by carrying decedent downstairs. EXCEPTIONS QUALIFICATIONS AND QUESTIONS Wakulich v. however. Plaintiff. changing her vomit-saturated shirt. 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. 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. Facts. 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. the court disagreed. They later checked on her and removed her vomit-soaked blouse and put a pillow under her head to prevent aspiration. Accordingly. the boys put her in the downstairs family room where they observed her vomiting profusely and making gurgling sounds. Elizabeth lost consciousness. She died as a result and her parents sued. so they took her to a friend’s home then to the hospital where she was pronounced dead. 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. They did not seek medical attention and prevented others from calling 911 or seeking medical attention. Issue.
where he left him in the back of the car after an attempt to arouse him. he is required to render reasonable care under all circumstances. and he could have rendered assistance without endangering himself. when the actor knows or should know that those services will reduce the risk of harm to the other. The Restatement Third of Torts § 43 recognizes that an actor who undertakes to render services to another. 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. Issue. in such a case. Siegrist found him under a car.Discussion. but Farwell was severely beaten. The girls complained to friends that they were being followed. 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. 18. . but the court of appeals reversed on the ground that Siegrist had not assumed any duty to aid Farwell. and his friend David Siegrist. Yes. When such a duty has been found. Courts have been slow to recognize a duty to render aid to a person in peril. had a few beers while waiting for a friend to ﬁnish work. Siegrist escaped. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiff’s interests. it has been predicated upon the existence of a special relationship between the parties. put ice on his head and then drove around for two hours. Farwell “went to sleep” in the back of the car and around midnight Siegrist drove him to his grandparents’ home. and neither knew nor should have known of the need for medical treatment. Plaintiff appealed a ruling from the Court of Appeals of Michigan. Did the appellate court err in reversing the trial court’s ruling in favor of Plaintiff? Held. ﬁnding that Defendant had an afﬁrmative duty to aid. because he had a special relationship with the deceased. stopping at drive-in restaurants. and six boys chased Farwell and Siegrist back to a trailer lot. or if the other person relies on the actor’s using reasonable care in the undertaking. if defendant knew or should have known of the other person’s peril. Farwell v. Keaton Brief Fact Summary. Farwell died three days later from the beating and there was evidence that prompt medical attention could have prevented this. The Supreme Court of Michigan reversed and reinstated the jury verdict. he knew or should have known of the peril the deceased was in. Facts. in a wrongful death action for negligence. 16. Synopsis of Rule of Law. Richard Farwell. When teenage girls walked by they attempted conversation without success.
After ten minutes all three got back in the car and leave the scene. After Mairs hit a motorcyclist. The trial court granted summary judgment in favor of Swanson and Newell and plaintiff appealed. a vehicle operated by Patricia Uribe ran over Podias. Mairs pulled over in the bushes and waited for his girlfriend to arrive. in the back seat of his car that no one would ﬁnd him before morning. who was badly beaten and unconscious. to say that Siegrist had no duty to obtain medial assistance or at least to notify someone of Farwell’s condition and whereabouts would be “shocking to humanitarian considerations” and ﬂy in thecae of “the commonly accepted code of social conduct. Swanson and Newell were 18-year-olds drinking at a friend’s home. The mere knowledge of serious peril threatening death or great bodily harm to another. Defendant Mairs was driving a car drunk which held defendant passengers Swanson and Newell. The victim. They decided to leave with Mairs driving while it was raining and the road was wet. Synopsis of Rule of Law. As such. struck a motorcycle driven by Plaintiff Podias. Defendants Mairs. Siegrist knew or should have known when he left Farwell. and he could have rendered assistance without endangering himself. Mairs lost control of the car. a special relationship existed between the parties. left lying in the road.” Therefore. on appeal. . Meanwhile. Even though all three had cell phones. the court reversed and reinstated the jury verdict. while Swanson and Newell ran off into the woods. 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. told Mairs and Newell that he thought Mairs had killed the cyclist. Mairs Brief Fact Summary. Facts. because he had a special relationship with the deceased. Swanson in fact dissuaded anyone from calling 911. 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. Swanson saw Podias lying in the roadway and because he saw no movement and heard no sound. he knew or should have known of the peril the deceased was in. creates a sufﬁcient relation to impose a duty of action. ﬁnding that Defendant had the afﬁrmative duty to aid. and went over the guardrail. Podias v. no one called for assistance. Instead. Mairs called his girlfriend. who died as a result of injuries sustained in both accidents. but none of them emergency calls. the group left the scene of the accident and did not call for emergency assistance. Farwell and Siegrist were companions on a social venture. which an identiﬁed defendant might avoid with little inconvenience. Under these circumstances. The three drove south for a short while until Mairs car broke down.Discussion. was hit by another vehicle and died from injuries sustained in both accidents. Swanson instructed Mairs “not to bring up his name or involve him in what occurred”.
the appeals court reversed the trial court’s granting summary judgment for defendants and remanded.” The mere knowledge of serious peril threatening death or great bodily harm to another. . Held. Yes. Accordingly. whose actions did not result in the car accident. he is only responsible when he attempts to act and performs incorrectly. However. or if the other person relies on the actor’s using reasonable care in the undertaking. nevertheless had a duty to prevent bodily harm to the victim of the accident. UNENFORCEABLE PROMISES Thorne v. Plaintiffs ﬁled an action for nonfeasance. Discussion. Whether passenger defendants.Issue. the harm to the victim could have been prevented with relative ease. The risk of harm or death to Podias from the defendants’ failure to summon help was readily foreseeable. In addition. when the actor knows or should know that those services will reduce the risk of harm to the other. The Restatement Third of Torts § 43 recognizes that an actor who undertakes to render services to another. which an identiﬁed defendant might avoid with little inconvenience. 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. Defendant appealed. 3. Judgment was granted to the Plaintiffs. 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. 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. Ordinarily. The court found that the record contained facts from which a reasonable jury could ﬁnd defendants breached a duty which proximately caused Podias’ death. Deas Brief Fact Summary. Synopsis of Rule of Law. All three had cell phones and used them for their own purposes rather than to call for emergency assistance. NONPERFORMANCE OF PROMISES A. One who takes on a responsibility gratuitously is not responsible for consequences if he fails to act. creates a sufﬁcient relation to impose a duty of action.
At issue was whether there existed grounds for an action in tort. and there exists no independent duty outside the contract to perform. but due to an error in the address that ADT gave to the ambulance dispatchers . No. can a defendant be held liable for failing to act when he has promised to do so gratuitously? Held. Plaintiff Spengler signed a contract with Defendant ADT to install and monitor a security alarm at the home of his mother Veronica Barker. In May 2004. therefore. By the time they got there it was too late and Barker died. In October 2005. which allowed her to activate it in distress prompting ADT to dispatch an ambulance. ENFORCEABLE PROMISES Spengler v. Plaintiffs brought an action against Defendant for failure in his promise to insure a boat that they jointly and equally owned.” B. He failed to do so. Defendant ADT installed and monitored a call button alarm in the home of plaintiff Spengler’s mother. Facts. but not for a nonfeasance. if any. The court further stated that one cannot sue in tort for broken promises. He would be responsible for a misfeasance. Inc. ADT received an alarm from Barker. As the court notes. and the vessel was wrecked near the Carolina coast. Synopsis of Rule of Law. “[t]here are many rights of moral obligation which civil laws do not enforce.Facts. Where an actor’s only violation is that of a broken promise to perform a contract. Defendant promised Plaintiffs that he would insure the vessel. Prior to a planned sailing from New York to North Carolina. liability. Spengler sued on both contract and tort theories but the tort theory was dismissed. which he requested due to her cancer of the larynx leaving her unable to speak. Brief Fact Summary. and does so incorrectly is he held liable. ADT Security Services. and are. Issue. The primary distinction is between the laws of torts and contracts. The court held that only when a party engages in a course of action on behalf of another. The court asserts that only when one begins a job and he does so incorrectly can damages be assessed. The agreement included a call button alarm that Barker could activate when in distress. as rights of imperfect obligation. Plaintiffs brought suit for “nonfeasance” alleging that Defendant was liable for having failed to insure the vessel. must rest solely upon the breach of the contract and a tort cause of action is not available. In October 2005. but due to an error in the address that ADT gave to the ambulance dispatchers. the ambulance was delayed 16 minutes. left to the conscience of the individual. In tort law. ADT received an alarm from the mother. Discussion.
not Michigan common law. Held. and there exists no independent duty outside the contract. By the time they got there. . liability. and that the $500 limitation of liability clause was unconscionable and unenforceable. when the actor knows or should know that the services will reduce the risk o physical harm to the other. The Restatement 3d of Torts: Liability for Physical Harm § 42 (2005) states that an actor who undertakes to render services to another. 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. or (b) the other person relies on the undertaking. The district court granted summary judgment for ADT on the tort claim. 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. No. the court of appeals declined to consider Spengler’s argument related to the unconscionability of the $500 liability cap because it was raised for the ﬁrst time on appeal. and thus was not proper on appeal. According to this case. must rest solely upon the breach of the contract. it does not appear that Michigan common law follows the Restatement approach. if any. The court of appeals determined that in this case. ﬁnding that ADT breached the contract and limiting damages to the $500 amount stated in the contract. she never regained consciousness. Accordingly. Spengler sued ADT alleging that by providing an erroneous address to the dispatcher. Spengler appealed arguing that the court erred in ﬁnding the case sounded in contract instead of tort.in response to the alarm. This provision might have helped Spengler. and thus ADT did not have an independent legal duty to perform. and died in the hospital. ADT committed misfeasance subjecting it to tort liability. Barker’s heart rhythm was asystolic. ﬁnding that ADT breached no duty independent of the contract. no tort claim was available to Spengler. the ambulance was delayed 16 minutes. Moreover. The court also granted summary judgment to Spengler on the contract claim. Discussion. Where an actor’s only violation is that of a broken promise to perform a contract. ADT’s obligation to promptly and correctly dispatch emergency medical services to Barker’s home emanated only from the contract.
in order to complete that transaction. LFD. Gross formed a business together called Vernonshire Auto Laundry (“VAL”). killing him. Slavin rang the doorbell at Iseberg’s home and shot him four times when he answered the door. A few years later. but neither told Iseberg. Issue. Much time passed and because the property did not sell. Historically there have been four such relationships: common carrier/passenger. No. an obligation may be imposed on the one to exercise reasonable care to protect the other from. Slavin and Mr. such risk. did not ﬁnd a principal/agent relationship between the defendants and Iseberg at the . VAL and LFD formed a partnership with each company contributing funds to purchase the land. One of the partners. Synopsis of Rule of Law. Slavin became mentally unbalanced and focused his anger on Iseberg. lost his entire investment and told two partners that he wanted to harm Iseberg as a result. if the risk is reasonably foreseeable. Slavin’s attack. Plaintiff argued that Iseberg was an agent of Gross and Frank. and an unreasonable risk of harm arises within the scope of that relationship. a lawyer and real estate developer. When one of these special relationships exists and an unreasonable risk of harm arises within the scope of that relationship. The law only imposes a duty to act where a “special relationship” exists between the parties. who was in the process of acquiring land to develop into a strip mall. Mr. Slavin told Gross several times that he wanted to harm Iseberg and then commit suicide. or to render aid when it is known that such aid is needed. DEFENDANT’S RELATIONSHIP WITH THE PLAINTIFF Iseberg v. The court. Gross Brief Fact Summary. Slavin lost his entire investment. Whether Gross and Frank had a special relationship with Iseberg such that they had a duty to act reasonably to protect him from. an obligation may be imposed on the one to exercise reasonable care to protect the other from such risk. giving rise to a duty to warn of Slavin’s threats. Slavin. The two partners had never warned Iseberg. Iseberg and one Mr. leaving VAL with sole ownership of the property. however. Held. Frank started a corporation. or warn him about. Slavin rang Iseberg’s doorbell and shot him four times when he answered the door. In early 2000. or warn him of. When a special relationships exists between parties. They contacted Plaintiff Iseberg. if the risk is reasonably foreseeable.THE DUTY TO PROTECT FROM THIRD PERSONS 1. Plaintiff Iseberg and defendants were in a partnership that eventually dissolved. Gross told Frank about these threats. innkeeper/guest. A dispute arose among the partners and the partnership was dissolved. business invitor/invitee. or to render aid when it is known that such aid is need Facts. and voluntary custodian/protectee.
Prosenjit Poddar. 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. with respect to all risks that make the conduct unreasonably dangerous. Poddar had expressed his intention to do so. Not ﬁnding any other special relationship. DEFENDANT’S RELATIONSHIP WITH DANGEROUS PERSONS Tarasoff v. Regents of University of California Brief Fact Summary. and failure to warn Tarasoff or her parents. in spite of his expressed intentions to kill Tarasoff. Plaintiffs asserted two grounds for their action: the failure to conﬁne Poddar. or to warn of such conduct. contended that only a short time prior. a psychologist employed by University of California. the complaint did not allege that the risk of harm arose from the agency relationship. Dr. and the Regents of University of California (Defendants). In October 1969. 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. Defendants maintained that they owed no duty of care to the victim. . but then released him. Lawrence Moore. Prosenjit Poddar (Poddar) murdered Tatiana Tarasoff (Tarasoff). 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.time of the injury. Tatiana’s parents. they alleged. and were immune from suit. Issue. Facts. This case stands for the proposition that an afﬁrmative duty to warn or protect against the criminal conduct of a third party may be imposed on one for the beneﬁt of another only if there exists a special relationship between them. the court held that defendants had no duty to protect Iseberg. A defendant owes a duty of care to all persons who are foreseeably endangered by his conduct. When the avoidance of foreseeable harm requires a defendant to control the conduct of another person. police. 2. Did Defendants owe a duty to the victim thus making them liable for the harm that ensued? Held. Moore had warned campus police of Poddar’s intentions. liability is imposed only if the defendant bears some special relationship to the dangerous person or to the potential victim. Discussion. Plaintiffs. This. Synopsis of Rule of Law. he had conﬁded to his therapist. They further alleged that Dr. Plaintiffs sought review. Moreover. and that the police had brieﬂy detained him.
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. the therapist need only exercise that reasonable degree of skill. 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. with respect to the potential liability of 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 concluded that the police did not have the requisite special relationship with Tarasoff. Discussion. render a perfect performance. or (b) a special relation between the actor and the other which gives to the other a right of protection. There is a line between discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not. that a patient poses a serious danger of violence to others. .” This consideration was critical to the circumstances in Tarasoff. immunity was afforded to the police. a court does not require that a therapist. in making that determination. then the hospital must use reasonable care in the circumstances to prevent such harm. “[i]n attempting to forecast whether a patient presents a serious danger of violence. whether or not such discretion was abused. knowledge.” Thus.2 affords immunity only for ‘basic policy decisions.’” Thus. “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. the court concluded. While the discharge of this duty of due care will necessarily vary with the facts of each case. the court explained. 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. Section 820. In Tarasoff. “[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. As a general proposition. pursuant to state statute. sufﬁcient to impose a duty to warn her of her Poddar’s intention. and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances.” More speciﬁcally. “[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. ﬁrst noting “[o]nce a therapist determines. the Supreme Court of California addressed a complicated area of tort law concerning duty owed.” * The court had to address the contending policy consideration. he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.” * Finally. or under applicable professional standards reasonably should have determined.
The court in Brigance. Brief Fact Summary. In a negligence action. while noting that the Legislature had not spoken directly to the subject of liability under the kinds of circumstances in question. of duty. or contributed to his incumbent state of intoxication that caused a one-car accident in which Plaintiff was injured. 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. overturning the lower courts’ decisions. . causation and harm applicable to all negligence actions. Plaintiffs appealed.” Having established the possibility of liability. who the Defendant knew had driven the group to the restaurant. the court included an analysis. observed “duty and liability are matters of public policy . discarded it. as a matter of law. Inc. 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. Noting that the former common law rule was an anachronism and unrealistic within the framework of modern tort law. Velvet Dove Restaurant. that the restaurant’s sale of the alcoholic beverage to the noticeably intoxicated patron could have been the proximate cause of the alleged injuries.” Thus. subject to the changing attitudes and needs of society. Issue. Plaintiff brought suit. Synopsis of Rule of Law. Plaintiffs alleged that the alcohol Defendant served to Johnson either caused his intoxication. No. Did the former common law rule shielding bars and restaurants that serve alcohol from civil liability apply? Held. the court. the court would not rule out.Brigance v. under the standard framework. and those who provide alcohol. 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. (Defendant) alleging that Defendant served alcohol to clearly intoxicated persons. . breach. This would be an issue of fact for the jury. The trial court dismissed the claim. Discussion. With respect to causation. Defendant served alcohol to a group of minors that included Jeff Johnson (Johnson). the Supreme Court of Oklahoma. Plaintiffs seek damages against Velvet Dove Restaurant. Facts. 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. . Inc.
appliances. due to its negligence. In the accident. one person died and two were severely injured. A train Appellee was operating collided with a car that had gotten trapped in a Kansas railroad crossing. Paciﬁc Union R. The court concluded that the employee failed to establish an essential element of the zone of danger test. may he successfully bring a cause of action under FELA for emotional injury when such injury was not related to any physical trauma? Held. THE EMOTIONAL DISTRESS CLAIM Grube v. . 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. and attempted to render aid to the victims. track. Grube (Appellee) was employed by Appellant. boats. Section: 51 et seq. Gottshall. Synopsis of Rule of Law.500. engines. Appellee sustained no physical injuries in the collision.00 damages. Appellant sought review. Did the Appellee meet the “zone of danger test” outlined in Conrail v. works. or employees of such carrier. (Appellant) company challenged the decision. wharves. in its cars. “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. Issue. seeking recovery for negligent inﬂiction of emotional distress.S.R. and he was was awarded $121. 512 U. 532.Thus. Facts. Union Paciﬁc Railroad Brief Fact Summary. He later testiﬁed that he became physically ill. Appellee brought a claim against his employeer. 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. agents. and subsequently suffered emotional injury. or by reason of any defect or insufﬁciency. A jury found for Appellee. roadbed.S. and thus. or other equipment.” NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 1. machinery. and reversed the judgment.C.S.
the court drew a ﬁne distinction: “The zone of danger test .” Interpreting the Conrail decision narrowly.Discussion. society. . 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. Synopsis of Rule of Law. However. the primary authority with regard to FELA interpretation. and affection. Plaintiffs appealed. to determine the viability of a claim. may recover damages only if they are placed in actual physical peril and fear for their own safety. the Grube court again quoted Conrail. THE LOSS OF CONSORTIUM CLAIM Boucher v. the loss of the injured party’s company. Loss of consortium claims are based on the recognition of a legally protected interest in personal relationships. 532. Daniel Boucher. . “[u]nder this test. though they do not suffer any physical impact. 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. As that court stated. and Ms. who suffered emotional distress because of another’s negligence. “[u]nder the physical impact test. Gottshall.” The Conrail court prescribed three tests. The court in Conrail explained. at issue here. the non-injured party has a cause of action to recover for damage to their relational interest. 512 U.S. “[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. . cooperation. Bouchers’ son (Plaintiffs). Plaintiffs. following surgery.” With regard to the second. the zone of danger test.” 2. 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. 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. The Fifth District Court. The court in Grube cites Conrail v. does not necessarily require that there be fear for one’s personal safety expressed contemporaneously with a collision. Accordingly. Dixie Medical Center Brief Fact Summary. but that may manifest itself in physical symptoms. if one member of the relationship is tortiously injured.
“[t]he law protects all kinds of human values that cannot be measured by a slide rule.” The dissent also describes the nexus between physical and emotional well-being: “[m]oreover. The decision of the lower court was afﬁrmed. The dissent asserts. reputation. and emotional security from outrageous conduct. privacy. 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.” Discussion. 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. Plaintiffs brought actions against the hospital for negligent inﬂiction of mental distress and loss of consortium. There is every reason to believe that the loss in this case is both permanent and profound.Facts. The court declined to extend loss of consortium rights to parents of a tortiously injured child.” The dissent acknowledges the need for circumspection concerning the adoption of litigious redress for harm such as the type suffered in this case. . Dissent. Courts almost universally permit a spouse to recover against a person who seriously injures the other spouse. But that is not what this case is about. 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. Daniel Boucher was admitted to the hospital with a severely damaged hand. usually known as a “loss of consortium” claim. such as marital and ﬁlial consortium in wrongful death actions. Such claims were eventually extended to include recovery for more than the economic loss of the of the injured spouse’s household services. 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. To adopt such a cause of action would open the ﬂoodgates of litigation. 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. After surgery. Issue. concluding. The loss of a child’s consortium may well affect the physical well-being of parents. 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. “[c]ertainly. Loss of consortium claims presently allows a plaintiff to recover damages for such things as loss of companionship and other forms of emotional support.
When a plaintiff can demonstrate a physical injury caused by the defendant’s negligence. Plaintiffs brought actions for negligent and intentional inﬂiction of emotional distress.As the court in Boucher observed. allowing a claim only if the plaintiffs are placed in actual physical peril and fear for their own safety. i. did not extend beyond these two elements of damages. “However.” and. Facts. anxiety speciﬁcally due to a reasonable fear of a future harm attributable to the injury may also constitute a proper element of damages. nor did it extend to injuries involving adult or emancipated children. Firestone Tire & Rubber Co. 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. In ordinary negligence actions for physical injury. . recovery for emotional distress caused by that injury is available as an item of parasitic damages. “no widely accepted development has occurred that allows recovery in cases involving adult children. TOXIC EXPOSURES Potter v. The appellate court modiﬁed the awards. The waste was deposited in a local landﬁll. This right of recovery.. The trial court awarded both compensatory and punitive damages. 3. The court applied the zone of danger test. “[a]t common law. The company sought review. 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 company operated a tire manufacturing plant in Northern California and subcontracted with another company to dispose of industrial waste. Brief Fact Summary. the court concluded. therefore. (Defendant) appealed. Synopsis of Rule of Law. nor has any widely accepted development occurred that allows recovery for the loss of a child’s society and affection. 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. the father of a tortiously injured child did have a cause of action to recover the value of the child’s loss of services and the medical expenses incurred on the child’s behalf. The Firestone Tire & Rubber Co. Plaintiffs brought actions for negligent and intentional inﬂiction of emotional distress. and were awarded damages.” The court drew a distinction as to basis for such recovery.e.” The issue surrounding the negligent inﬂiction of emotional distress claim was more straightforward. but afﬁrmed the main elements.
The Supreme Court of California held that because the toxic exposure resulted from oppression. 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. is usually referred to as “pain and suffering. compensation for emotional distress is available to plaintiffs only following physical injury. deﬁned as parasitic to the plaintiff’s claim for physical harm. In sum. 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. the plaintiff is exposed to a toxic substance which threatens cancer.” The court explained that. or malice. the present injury. Such emotional harm. “[u]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object. As a general rule. or reasonably expected to ﬂow from. with rare exceptions. Held. 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. fraud. not simply damage to property or ﬁnancial interests. At issue was whether the absence of a present physical injury precluded recovery for emotional distress engendered by fear of cancer. and (2) the plaintiff’s fear stems from a knowledge. that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure. which results from fear that an already existent injury will lead to the future onset of an as yet unrealized disease. constitutes an element of recovery only where such distress is either foreseeable or is a natural consequence of. a breach of the duty must threaten physical injury. corroborated by reliable medical or scientiﬁc opinion. Even then. .Issue. Discussion.” Mental distress.
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