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I. INTENTIONAL TORTS
A. REQUIRING FAULT
Van Camp v. McAfoos
Brief Fact Summary. Van Camp (Plaintiff) sued, alleging that Mark McAfoos (Defendant), while riding his tricycle collided with Plaintiff causing injury to her achilles tendon. The trial court sustained a motion to dismiss. Plaintiff appealed.
Synopsis of Rule of Law. Where an essential element of the cause of action is missing, the question is not what may be shown under the pleading but whether a cause of action has been pled.
Facts. Plaintiff alleged that three year-old Defendant was riding his tricycle on a sidewalk, and without warning drove it into the rear of the Plaintiff injuring her Achilles tendon. She contended that Defendants’ behavior was the proximate cause of her injury, which required surgery. The thrust of Plaintiff’s claim, the court observed, was that she was entitled to recovery regardless of the presence of fault or wrongdoing.
Issue. Did Plaintiff plead a cause of action?
Held. The decision of the trial court was upheld, the Supreme Court of Iowa maintained that, while a child of “tender years: may be held liable in tort, the relevant precedents have fault as an essential element.” That element was absent in this case.
Discussion. McAfoos is illustrative of the factors to be examined with respect to evaluating the bases or grounds for liability. In other areas of tort law, such as medical malpractice, toxic torts, and product liability, the “net” may be considerably broader, not requiring the intentionally wrongful or negligently wrongful behavior of the Defendant. The court in McAfoos was not inclined to extend such liability to a child on a tricycle.
B. ELEMENTS OF BATTERY
Snyder v. Turk
Brief Fact Summary. Snyder, a nurse, (Plaintiff) brought an action against Turk, a doctor, (Defendant) for intentional inﬂiction of emotional distress, civil battery, and slander. The trial court (Ohio) dismissed her complaint with prejudice and granted a directed verdict. The Plaintiff sought review.
Synopsis of Rule of Law. An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results.
Facts. The Defendant was performing an operation to remove a patient’s gall bladder. The Defendant became increasingly frustrated with the Plaintiff’s performance, raising his voice and castigating her for being incompetent. When Plaintiff handed Defendant the incorrect surgical tool, he grabbed her by the shoulder and gown and pulled her face toward the patient’s open surgical wound. The Plaintiff did not suffer any physical injury. She later ﬁled an action against him for intentional inﬂiction of emotional distress, civil battery, and slander. The trial court granted the Defendant’s Motion for a Directed Verdict and dismissed the Plaintiff’s complaint. The court reversed the order, holding that the Defendant was not entitled to a directed verdict. The court held that reasonable minds could have concluded that he was guilty of battery, and that he intended to commit an offensive contact with the Plaintiff.
Issue. Could a reasonable jury conclude that there was intent to commit a battery?
Held. Yes. Since a reasonable mind could infer intent on the Defendant’s part, the issue was one of fact for a jury. The lower court thus erred in its directed verdict. The court reversed and remanded the lower court’s order.
Concurrence. The concurrence merely summarizes the majority’s reasoning, stating: “I believe the evidence in the record was sufﬁcient for a reasonable juror to conclude that the Defendant had committed a battery when he allegedly grabbed the Plaintiff and brought her down to within twelve inches of the surgical wound.”
Discussion. Snyder v. Turk draws the ﬁne distinction between the intent to cause actual harm and the intent to cause either harmful or offensive contact. The element of intent becomes an issue for the trier of fact thus rendering a directed verdict improper.
Cohen v. Smith
Brief Fact Summary. Patricia Cohen and her husband (Plaintiffs), ﬁled suit against Robert Smith, nurse, and St. Joseph’s Memorial Hospital (Defendants) in the Circuit Court of Jackson County (Illinois) after Smith observed and touched her naked body in violation of her religious beliefs. The complaints alleged battery, intentional inﬂiction of emotional distress. The court granted Defendants’ Motions to Dismiss. Plaintiffs appealed.
Synopsis of Rule of Law. When considering a motion to dismiss, the court must view all properly pleaded facts in the light most favorable to the plaintiff; a court may only dismiss for failure to state a cause of action, based solely on the pleadings, only when it is clear that the alleged set of facts cannot be proven.
Facts. Ms. Cohen was admitted to St. Joseph’s Memorial Hospital (Hospital) to deliver her baby. She was examined and informed of the necessity for a Caesarian Section delivery. She and her husband told their doctor, who informed the hospital staff, that such a procedure was in violation of their religious beliefs as it would require Ms. Cohen to be seen naked by a male. Their doctor gave assurances that their beliefs would not be violated. During the procedure Roger Smith, a male nurse, allegedly viewed and touched Ms. Cohen’s naked body. The Plaintiffs ﬁled suit.
Issue. Is the conduct in question sufﬁciently harmful and offensive to rise to the level of battery?
Held. The battery and the intentional inﬂiction of emotional distress counts were properly alleged, and thus the court erred in its dismissal of Plaintiffs’ causes of action. With regard to the Defendant’s having sufﬁcient notice, the court concluded that when Ms.Cohen made her wishes known to the hospital, the latter implicitly agreed to provide her with treatment within the restrictions placed by her religious beliefs. The decision was reversed and remanded.
Discussion. As noted in Snyder v. Turk, “A person may be held liable for battery when he or she intends to cause harmful or offensive contact and harmful or offensive contact results.” Further, courts have drawn ﬁne distinctions between conduct that results in bodily harm and conduct that violates a plaintiff’s personal integrity. The court notes that the “application of battery the remedy offensive and insulting conduct is deeply ingrained in our legal history.” Speciﬁcally with regard to religious beliefs and medical treatment, the court observed that, while people in modern society generally accept the various intrusions on one’s privacy as a necessity, the determination of bodily integrity is ultimately the purview of the person alleging improper contact. The court in Cohen v. Smith concluded also: “The fact that the Plaintiffs hold deeply ingrained religious beliefs which are not shared by the majority of society does not mean that those beliefs deserve less protection than more mainstream religions.” Finally, quoting Justice Cardozo, the court observed: “Every human being of adult years and sound mind has the right to determine what shall be done with his own body.” Thus, when a physician violates a patient’s right of consent concerning medical procedures, that physician may be liable for damages.
Mullins v. Parkview Hospital, Inc.
Brief Fact Summary. During Plaintiff Mullins’ surgery, a medical student performed an intubation that lacerated Mullins esophagus, requiring additional surgery and recovery time. Mullins had not consented to student involvement in her surgery. She sued for battery and lost.
Synopsis of Rule of Law. Battery requires a harmful or offensive touching, without consent, with the intent to cause the resulting harm or offense.
Facts. Plaintiff Mullins, before undergoing a hysterectomy at a teaching hospital, crossed out the portion of the consent form that consented to “the presence of healthcare learners” and received assurance from the attending anesthesiologist that she would personally handle the anesthesia. During the surgery, as soon as Mullins was unconscious, the anesthesiologist permitted a student, VanHoey, to practice intubation. It was VanHoey’s ﬁrst day practicing on a live patients and she lacerated Mullins’ esophagus. As a result, Mullins required additional surgery and recuperation time. Mullins sued VanHoey, the gynecologist, the anesthesiologist, and both doctors’ practices for battery, among other claims. The trial court granted summary judgment for all defendants on all counts, the Court of Appeals held that Mullins had an actionable battery claim, and the Indiana Supreme Court reversed, ﬁnding that Mullins did not have an actionable battery claim.
Issue. Whether the tort of battery requires the intent to cause harm in addition to the intent to touch or make contact.
Held. Yes. Although VanHoey “touched Mullins in a harmful and offensive manner without permission”, Mullins could not show that VanHoey “acted intending to cause” harm. VanHoey had no reason to suspect that Mullins had not consented to the touching. As a student, she properly relied on her previous experience and the doctor’s authority in believing that she had permission to perform the intubation. In addition, she was under no obligation to obtain consent herself or to inquire into the consent under which the anesthesiologist was acting. Accordingly, the court found that there was no genuine issue of material fact as to VanHoey’s intent to cause a harmful contact, and that VanHoey was entitled to summary judgment on Mullins’ battery claim.
Discussion. This opinion shows that an actor’s intent to touch or make contact, such as his decision to put his arm in motion throwing an object, is not enough to give rise to battery. The actor must have speciﬁcally intended to cause the harm or offense which results from the touching.
Issue. and while a minor who has committed a tort with force is liable as any other would be. the court was to change the judgment. or his belief (with substantial certainty) that the results will follow. Facts. the Supreme Court of Washington remanded for a factual determination of Defendant’s intention. The Supreme Court for Washington remanded for clariﬁcation. Plaintiff alleged that she came out into the backyard to talk with her sister and that. but whether he intends to cause the consequences of his act. 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. ﬁve year-old Dailey (Defendant) deliberately pulled the chair out from under her. In an action for battery. Dailey Brief Fact Summary. . Dailey pulled it out from under her causing her injury. Five year-old Brian Dailey (Defendant) visited Naomi Garrett Plaintiff at her sister Ruth’s home. 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. The Superior Court for Pierce County (Washington) found in favor of defendant in an action for assault and battery and Plaintiff appealed. 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. what constitutes willful and unlawful intent? Held. The trial court ruled for the Defendant. If so. Discussion.C. when she was about to sit down in a wood and canvas lawn chair. due to his small size and lack of dexterity. On appeal. DEFINING INTENT Garratt v. he could not get the chair under Plaintiff in time to keep her from falling. The later contends that as she was about to sit on a lawn chair. The distinction to be drawn is not merely whether the defendant intends to commit the act in question. The concept of “intent” denotes a defendant’s desires to cause the consequences of his actions. Synopsis of Rule of Law. Intentionality is central to the tort of battery. Plaintiff was injured in the fall.
Issue. she struck Plaintiff in the jaw. may conclude that a mentally deﬁcient person is liable for tortious conduct. the trial judge instructed the jury that Everly’s suffering from Alzheimer’s did not prevent a ﬁnding that she acted intentionally. Held. for example. However.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. . * Mental illness is not a defense to an intentional tort. and would occasionally act aggressively toward others. like other mental states (such as infancy). even if her reasons or motive were irrational. and Everly (Defendants). or place the other in apprehension of such contact. a professional caregiver at the center. Further. 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. but also intended that the contact be harmful or offensive to the other person. At issue. Everly’s granddaughter. the actor does not have to intend the harm that actually results. In Plaintiff’s actions for assault and battery. Muniz Brief Fact Summary. however it may. An examination by a physician revealed that Everly was suffering from Alzheimer’s disease. an elderly woman who was placed in a personal care center. A jury. This case is a challenge to the decision of the Court of Appeals of Colorado. as trier of fact. an actor is generally subject to liability when he or she acts intending to cause harmful or offensive contact to another. The court reversed the judgment and remanded. Discussion. In one instance. be viewed as one factor in the totality of circumstances upon which a jury relies to make its determination. such harmful or offensive contact must result. Facts. a blow to the victim was intended to simply bruise the victim but serious trauma resulted. If. With respect to battery. The jury found in Defendants’ favor having concluded that Everly lacked the requisite intent to sustain a cause of action. began to exhibit erratic behavior. Plaintiff subsequently brought suit against Barbara White. having found that the jury determined that alleged tortfeasor did not intend to cause offensive or harmful consequences by her act. eighty-three year-old Helen Everly (Defendant) struck Sherry Lynn Muniz (Plaintiff). Synopsis of Rule of Law. Shortly after having taken residence at Beatrice Hover Personal Care Center. in so doing the jury must ﬁnd that the actor intended offensive or harmful consequences. She became easily agitated. the actor would be held liable for any resulting injuries. Everly. and 2) when the defendant has substantial certainty that harm will result. however. an adult assisted living facility. is whether an intentional tort requires some proof that the tortfeasor not only intended to contact another person.
Ernest had a revolver in a holster strapped to his thigh. inability to concentrate. the appeals court afﬁrmed. In this case. Assault occurs when one intentionally creates the reasonable apprehension of imminent harmful or offensive contact in another. Plaintiff Cullison met 16-year-old Sandy Medley in a grocery store parking lot. and mother. ASSAULT Cullison v. and as such.2. Yes. to aim or strike at him with a weapon or to hold it in a threatening position. Cullison experienced mental trauma and distress as a result of the incident and sued for assault. she and her family came to Cullison’s home. Sandy called him a “pervert” and her mother berated him. Facts. Additionally. He sued the Medleys for assault. Accordingly. if not the body. 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. Assault is found where one intends to cause a reasonable apprehension of imminent harmful or offensive contact in another. Medley Brief Fact Summary. . 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. A few hours later he was awoken by a knock at his door. her brother. her father Ernest. That night. and impotency. Held. It is assault to shake a ﬁst under another’s nose. surrounded him. which she declined. among other torts. the apprehension must be one that would be aroused in the mind of a reasonable person. invited her to have a soda with him and to come to his home to talk further. the damages which are recoverable are for mental trauma and distress. and the Indiana Supreme Court reversed on the assault count. depression. or to surround him with a display of force. As a result of this incident. the Indiana Supreme Court reversed the summary judgment on the assault count. Synopsis of Rule of Law. Whether threatening language coupled with a holstered pistol rises to the level of assault. Cullison sought psychological help to deal with nervousness. 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. He was confronted by Sandy Medley. brother-in-law. sleeplessness. The trial court granted summary judgment in favor of defendants on all claims. It is a touching of the mind. Although no one ever touched Cullison. and verbally threatened him with bodily harm if he did not leave the girl alone while her father was armed with a holstered revolver. Plaintiff Cullison met a 16 year old girl in a parking lot then invited her to his home for a soda.
Plaintiff maintains that. Facts. Long Brief Fact Summary. To recover in an action for intentional inﬂiction of emotional distress. Plaintiff alleges. a plaintiff must show: (1) conduct that is intentional or reckless. or some other intentional tort. (2) conduct that is also extreme and outrageous. whether or not such distress results in bodily harm. or negligence. The Circuit Court for Howard County (Maryland) dismissed the tort claims brought by Plaintiff alleging breach of contract and tort claims. but that there will be no signiﬁcant delay in effectuating the harm. According to Plaintiff’s contentions. Synopsis of Rule of Law. He brought suit alleging. 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. including negligence and intentional inﬂiction of emotional distress. resulting from a sexual relationship. Issue.Discussion. 3. 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. * 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? . Moreover. she began seeing a therapist who. (3) a causal connection between the wrongful conduct and the emotional distress. It is important to note that typically words alone do not rise to the level of assault. When extreme and outrageous conduct is directed at a third person. used conﬁdential information and took advantage of her condition to seduce her. and (4) that the emotional distress is severe. the imminence element does not mean harm must be immediate. During this period. after several years of marriage his wife was hospitalized for severe depression. his wife’s personality changed leading to their divorce. among other things. intentional or reckless inﬂiction of emotional distress. unless together with acts or circumstances they put the other in a reasonable apprehension of imminent harm. as a result. if such distress results in bodily harm. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Homer v. or (2) to any other person who is present at the time.
the court recognized that the plaintiff in this case was in essence attempting to sue for “alienation of affections. It should be noted that this is the only area of tort where “reckless” infers intent. In other words. the court addressed ﬁrst the prima facie elements of a negligence action: “[t]o recover in an action for negligence. (2) present at the scene of the outrageous conduct against the primary victim. the plaintiff must show that the defendant owed a duty to him which was breached. intentionally or recklessly causes the victim severe mental distress. and not to her spouse. in addition to proving the prima facie elements. courts have award a third-party victim recovery only if. Discussion. by extreme and outrageous conduct. “[w]here extreme and outrageous conduct is directed at a third person. Intentional inﬂiction of mental distress exists when the defendant. moreover. That duty. Homer addresses an extended issue with regard to the intentional inﬂiction contention: the situation where a third person is alleging the wrongful action. While noting that such actions are not necessarily barred under tort law.” Generally.Held. is the reﬁtting of the abolished actions into other forms. the third party is (1) a close relative of the primary victim.” Addressing the action for breach of contract. if such distress results in bodily harm.” . must be one that the law is prepared to recognize. or (2) to any other person who is present at the time. As the court explained. 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. explaining. “[t]hat is precluded.” The court dismissed the claim because the duty owed was to the patient. thus Plaintiff had no standing to sue. “[a] therapist’s professional duty must run to his or her patient and not to the patient’s spouse. 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. 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. however. whether or not such distress results in bodily harm. 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 states. With regard to the negligence claim. this is an area where transferred intent applies.
(3) omission where the defendant has a legal duty to act. two Wal-Mart employees. claiming that Plaintiff’s children had been previously caught shoplifting. The employees told Plaintiff that the children were not allowed in the store because they had been caught stealing on a prior occasion. even an entire city.’s (Defendant) employees stopped the McCanns as they were leaving the store. or the victim’s property. the McCanns went to a register and paid for their purchases. Eventually. the defendant unlawfully acts to intentionally cause conﬁnement or restraint of the victim within a bounded area. the victim’s family or others in her immediate presence. Defendant’s employees had said they were calling the police. Ms. Facts. FALSE IMPRISONMENT McCann v. After approximately an hour and a half. a large area. Did the conduct of Defendant’s employees constitute the tort of false imprisonment? Held. The employees detained Plaintiffs until a security ofﬁcer determined that the children were not the children who had been caught previously. noting that Plaintiffs adequately proved the elements of false imprisonment. Inc. Synopsis of Rule of Law. False imprisonment occurs when a person conﬁnes another intentionally without lawful privilege and against his consent within a limited area for any appreciable time. (2) force or threat of immediate force against the victim. Inc. Wal-Mart Stores. blocking their path to the exit. As the McCanns were leaving the store. . however. In a false imprisonment case. The court afﬁrmed the lower court’s decision. Debra McCann (Plaintiff) contended that Wal-Mart Stores. McCann and two of her children were shopping at the Maine Wal-Mart store. and they left the store. The bounded area can be. Accidental conﬁnement is not included and must be addressed under negligence or strict liability.] The transferred intent doctrine is applicable. arrived at the store and informed the employees that the McCanns were not the family whose son had been caught shoplifting. Brief Fact Summary. and could not re-enter the store. that Defendant’s refusal to allow the 12-year old boy. The employees acknowledged their mistake to the McCanns. 1996. Issue. [See Restatement Section:Section: 35-45A. In false imprisonment. however short. The conﬁnement may be accomplished by (1) physical barriers.4. however. * The victim must be conﬁned in such a manner as to preclude his or her escape. The court ruled. but actually called a store security ofﬁcer to identify the earlier shoplifter. Rhonda Bickmore (Bickmore). In December. This case involves a claim for false imprisonment. or (4) improper assertion of legal authority. the security ofﬁcer. stepped out in front of the McCanns’ shopping cart. Discussion. to use the restroom was not sufﬁciently outrageous to warrant the imposing of punitive damages.
The defendant must intend to exercise substantial dominion over the chattel.It has traditionally involved the plaintiff’s tangible chattel. TORTS TO PROPERTY A.5.Extended Liability: The trespasser is liable for damages inﬂicted even if he never intended harm and could not foresee it B. . while nuisance is an interference with his use and enjoyment of it. This might be accomplished by personal entry or by intentionally causing an object to enter the land.The factors important to imposing liability for interference include: .Intent: Conversion is an intentional tort.Intent: The object of intent need not be “to trespass. it is no defense that defendant reasonably believes that this is the defendant’s own land or that there is a right to be there.Expense or inconvenience caused C.The harm done . .Trespass and Nuisance: Trespass is an invasion of the plaintiff’s interest in the exclusive possession of his land. Once intent is shown. Conversion of Chattels . Liability is based on actual damage .The defendant’s intent to assert a right to the property .Extent and duration of control . however.Intentional Entry: Trespass to land usually requires an intentional entry upon land of another. . The refusal to leave is now considered a trespass . Similarly. the defendant does not escape liability merely because the defendant did not intend to harm plaintiff’s property. Trespass to Chattels .” It is enough that defendant intended to enter the land.Trespass to Chattels involves something short of conversion. this has also extended to electronic interferences .The defendant’s good faith . Trespass to Land .
50(3) permits merchants to detain suspected shoplifters (1) with reasonable cause to believe a violation has occurred. Public policy supports this construction. the court also discussed whether a Wisconsin store can be immune from liability for actions taken by security ofﬁcers in pursuing suspects off-premises. so long as three reasonableness requirements are met. . Synopsis of Rule of Law. 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. Wright followed Peters out to his car and asked him to get out for questioning. His estate sued the store in wrongful death and lost. (2) in a reasonable manner. Although not the deciding factor. Facts. Issue. PROTECTING AGAINST APPARENT MISCONDUCT OF THE PLAINTIFF Peters v. Peters ﬂed on foot and Wright and another ofﬁcer named Kind pursued him on foot. and (3) for a reasonable length of time. Peters ran into the river and drowned. To interpret whether this statute also limits liability for actions taken off-premises. and they pursued him off store premises for seven minutes. shoplifters would be encouraged to dash out of stores off-premises. the court examined the statute’s construction.” 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. Yes. (2) in a reasonable manner. and (3) for a reasonable length of time. increasing injuries to innocent shoppers in the way.DEFENSES OF INTENTIONAL TORTS . 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. Menard Brief Fact Summary. Held. barring plaintiff’s recovery under Wisconsin law. Peters ran into the ﬂooded La Crosse River and the fast-moving current pulled him under. The Wisconsin Supreme Court found that Peters’ conduct was more unreasonable than the store’s. Peters’ estate and family brought a wrongful death suit against the store. 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. Store security ofﬁcers believed Peters shoplifted a power drill. Defendant Menards. Upon questioning him in the parking lot.PRIVILEGES 1. 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. drowning him. which is the primary purpose of this case study in the textbook. Inc. he ﬂed on foot. Merchants generally have the right to detain suspected shoplifters assuming the detention is (1) with reasonable cause to believe a violation has occurred. Furthermore. Wisconsin statute § 943.
having broken and entered on at least one prior occasion entered. while a defendant may use reasonable force in defense of her property.. in a bedroom of an old farmhouse. 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. Thus. The property sustained considerable damage and despite boarding up the windows and posting no trespass signs. No. Defendants appealed. i. the Defendants intended to shoot any intruder who attempted to enter the room. Dissent. Defendants inherited an unoccupied farmhouse and over the course of ten years the house was subject to a series of break-ins. Briney Brief Fact Summary. Defendants then set up a shotgun trap. where the gun was secured to an iron bed with its muzzle pointed at the door. 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 Supreme Court of Iowa afﬁrmed the judgment because the use of spring guns to protect uninhabited property was not permissible. Marvin E. injuring Plaintiff’s right leg. This decision introduces the concept of the common law “shopkeepers privilege” which allows merchants to effect reasonable detentions of suspected shoplifters. did the Defendants intend to shoot the invader. pointed in such a manner as to wound an intruder’s feet. A jury found for the Plaintiff.e. the gun went off. Katko v. A wire was fastened from trigger to doorknob.Discussion. The dissent opined that the majority wrongfully assumed that by installing a spring gun in the bedroom of their unoccupied house. which had been uninhabited for several years. did they employ unnecessary and unreasonable force against him? The dissent asserts . ﬁled an action for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun. The only exception is when the trespasser is committing a violent felony with the potential of endangering human life. Issue. The value of human life and limb both to an individual and as a matter of public policy outweighs the potential damage to property. The dissent frames the issue in the following manner: there exist two deﬁnite issues of fact. When Plaintiff. Did Defendants employ a reasonable means of preventing the unlawful entry of trespassers on their property? Held. The shotgun was set by Edward and Bertha Briney (Defendants). Synopsis of Rule of Law. and if so. the incidents continued. Katko (Plaintiff). Facts. awarding both actual and punitive damages.
the standard being one of reasonableness. Plaintiffs brought an action against Defendant for the destruction of Plaintiffs’ house and store. in good faith. by means of “a mechanical device that which. destroyed Plaintiff’s house in an effort to stave off the ﬁre. Geary (Defendant). Alcalde of San Francisco (Defendant). 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. made the decision to destroy Plaintiff’s building. Thus. as here. in the midst of a massive ﬁre. * The dissent further objected to the awarding of punitive damages. The trial court awarded damages to Plaintiffs. in good faith.” 2. an individual is permitted to use a degree of force commensurate with the threat with which they are confronted. 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. and under apparent necessity. in an effort to save the adjacent buildings and to stop the ﬁre’s progress. during a deadly ﬁre. Geary Brief Fact Summary. Issue. that owner cannot do indirectly.” Discussion. contending that such an award is “court-made law. Synopsis of Rule of Law. Can a person who. and that the mere setting of such a device with a resultant serious injury should not as a matter of law establish liability. it was subsequently blown up to stop the progress of the ﬁre. he could not immediately do in person. In the midst of a raging ﬁre. The ruling in Katko is consistent with all other areas of tort law with regard to the use of force.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. Facts. not statutory law.” In sum. A person who tears down or destroys the house of another. where the owner of the property in question is not faced with a threat of death or grave bodily injury. cannot be held personally liable in an action by the owner in connection with the destroyed property. destroys property out of public necessity in order to prevent greater damage be held liable? . in his capacity of public ofﬁcial. In short. PRIVILEGES NOT BASED ON PLAINTIFF’S CONDUCT Surocco v. were he present.
The court notes further “the right to destroy property. a person who destroys the house of another in good faith. Plaintiffs sued for damage to their wharf that caused by defendant’s vessel. Synopsis of Rule of Law. cannot be held personally liable. i. who makes the determination as to which property may properly be destroyed during an emergency. The Supreme Court of California reversed the trial court’s award of damages to Plaintiffs. and under apparent necessity. Brief Fact Summary.” In other words. Where one reasonably believes his interests outweigh the loss or harm another may incur. Vincent v. That person will be held liable. Are plaintiff’s entitled to compensation for damages even where Defendant acted prudently and by necessity? Held. docked there during a storm. Defendant’s ship damaged plaintiffs’ wharf during a storm. The trial court denied defendant’s motion for a directed verdict and entered judgment in favor of plaintiffs. having thus preserved the ship at the expense of the dock. Plaintiffs brought an action against defendant to recover for the damages to their wharf. Yes. has been traced to the highest law of necessity. the court suggests. Lake Erie Transportation Co. to prevent the spread of a conﬂagration.e. * The court does take note of the role of the legislature with regard to issues of public policy. Discussion. 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. to the extent he or she causes damage to another’s property or land. and denied defendant’s motion for a new trial. 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. and the mode in which compensation should be paid. Issue. what under normal circumstances would be a tortious act may be justiﬁed in exigent circumstances such as a raging ﬁre. maintaining that the court clearly erred.Held. A jury awarded damages and Defendant sought review. should make determinations as to the manner in which such property may be destroyed. her owners are responsible to the dock owners to the extent of the injury inﬂicted. Facts.. Defendant owned a ship that docked at plaintiffs’ wharf in foul weather. Lawmakers. and. . however. Plaintiffs owned a wharf where ships docked to unload cargo. his conduct is privileged.
Plaintiff stopped at Defendant’s auto repair shop to assist in repairing a car’s fuel tank. The dissent takes the view that the case is one of contract and not tort. Appellant sought review. In entering into an agreement with the ship owner. As the court in Vincent analogized. Vincent illustrates an instance where the defense of private necessity is introduced and examined. without moral guilt. private necessity is not a complete defense. A defendant is privileged to interfere with another’s property. The tank was unattached. The Superior Court of Pennsylvania afﬁrmed a judgment in favor of Appellee in Appellant’s negligence action seeking damages for personal injuries. courts attempt to balance such necessity with the dictates of equitable relief. in times of war or peace.” Thus.Dissent. In other words. DUTY A. plaintiff assumed the risks inherent in such a venture.e. John Stewart (Appellant) suffered burns after an accident in Motts’ (Appellee) auto body shop after the automobile on which they were jointly working ignited. but will be held liable for the damage. The standard of reasonable care applies to all negligence actions. The car . Nevertheless. 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. the reasonable person must exercise care in proportion to the danger involved in his act. but under our system of jurisprudence compensation must be made. 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. Synopsis of Rule of Law. Motts Brief Fact Summary. And so public necessity.. i. and Plaintiff suggested pouring gasoline into the carburetor in an attempt to start the vehicle. 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. NEGLIGENCE 1. Further. Essentially. may require the taking of private property for public purposes. THE GENERAL DUTY OF CARE: THE PRUDENT PERSON STANDARD Stewart v. the dissent asserts that the vessel’s owner exercised due care thus ameliorating further his liability. Discussion. take what is necessary to sustain life. Facts. “A starving man may. the order of the lower court awarding damages was II.
the jury found for Defendant and Plaintiff appealed. Children are expected to act with the degree of reasonable care as would a child of similar age.. breach that duty and. that of “reasonable care” to be applied uniformly in negligence actions. etc. as a result. as a reasonable person would under like or similar circumstances. when a child is engaged in an adult activity. 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.) are expected to exercise the degree of care appropriate to the standards of other professionals in that. and in the ensuing explosion Plaintiff suffered severe burns. 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.” Thus. Professionals (i. The Defendant must owe a duty to plaintiff. The defendant’s actions must be the proximate. community. causation. It is well established by its case law that the reasonable man must exercise care in proportion to the danger involved in his act. The judge declined.backﬁred. breach. cause of the injury suffered. it is certain that the child is expected to act as a reasonable adult engaged in the same activity.. a plaintiff must establish that four elements are met: duty. adults must ordinarily act with reasonable care. As a general rule. Plaintiff requested a jury instruction directing the application of a standard of a “high degree” of care in instances of elevated danger. or similar. Discussion. The court reafﬁrmed the principle that that there is only one standard. Issue. the plaintiff must suffer harm. 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. physicians. intelligence and experience. However.e. The standard of care is the level of conduct demanded of a person so as to avoid liability for negligence. or legal. .e. attorneys. No. and harm. At trial. Failure to meet this standard is characterized as breach of duty. In any action for negligence. i.
A person is negligent if he fails to exercise reasonable care. but won her appeal based on the trial court’s erroneous jury instructions on the legal standard for negligence. the court concluded that the emergency instruction misstated the law and was likely to confuse the jury as to the correct legal standard. . arguing that the jury instruction was an inaccurate statement of negligence law. Facts. “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. When she spotted her father waving his arms on the side of the road. and the plaintiff appealed. tells the jurors that if there was an emergency. but because she was starting to make a left hand turn. The emergency instruction. he collided with her. When he returned his eyes to the road. they nevertheless may conclude that the actor was not negligent even if he made a choice that was not the “wisest choice”. She sued for negligence. Defendant planned to pass Plaintiff on her left hand side. Whether the trial court committed error by providing a jury instruction on negligence pertaining to “emergency” circumstances. even though they do not make the wisest choice. At trial. 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.” The jury found defendant not negligent. a standard that is measured by what a reasonable person of ordinary prudence would or would not. do in the same or similar circumstances. whose car had broken down on the side of the road. Plaintiff sued Defendant for negligence and lost at trial. which provides. The Supreme Court reversed. upon seeing the father waving his arms. To avoid a collision. Jurors would understandably view that instruction as permitting them to ﬁnd a defendant not negligent even when he makes an unwise choice.Bjorndal v. Plaintiff was driving down the highway looking for her father. Synopsis of Rule of Law. A person is negligent if he fails to exercise reasonable care. thus substantially affecting plaintiff’s rights. a standard that is measured by what a reasonable person of ordinary prudence would or would not. she rapidly decelerated and started to make a left hand turn into a snowpark on the left side of the road. Weitman Brief Fact Summary. Held. Issue. are not negligent if they make a choice as a reasonably careful person placed in such a position might make. the court gave a jury instruction on negligence that pertains to “emergency” situations. assumed that there may be an emergency situation and glanced left to scan the horizon for a potential problem. do in the same or similar circumstances. Yes. Defendant. 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. however. whose car had broken down along the highway. Accordingly. he saw that Plaintiff had slowed rapidly.
holding “that a person’s mental capacity. which was granted by the trial court. Rusk Brief Fact Summary. 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. the Associate Justice. Plaintiff ﬁled a civil negligence suit against Defendant seeking monetary damages for the injuries she suffered as a result of Defendant’s conduct. Plaintiff. sued Rusk (Defendant). an Alzheimer’s patient. rejecting the majority’s reasoning. particularly with respect to the nature of the parties’ relationship and public policy considerations. The court of appeals reversed.Discussion. 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. a certiﬁed nursing assistant. a certiﬁed nursing assistant. Creasy appealed. an Alzheimer’s patient. In the former. This decision explains the standard of care requirement for negligence and highlights the controversy surrounding “emergency” instructions.” .” Issue. Synopsis of Rule of Law. whether that person is a child or an adult. Facts. citing an Indiana precedent. must be factored [into] the determination of whether a legal duty exists. Defendant moved for summary judgment. 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. 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. Dissent. 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. sued Defendant. Associate Justice Dickson of the Indiana high court ﬁled both a dissent and a concurrence. rejected the notion that the Plaintiff had “impliedly assumed the risk of injury in the primary sense. Carol Creasy (Plaintiff). based upon (her) choice of occupation. However. for injuries she suffered when Defendant kicked her while she was trying to put him to bed.
as a matter of law. involved in a snowmobile accident. historically. Lindsay Brief Fact Summary. (2) the reasonable foreseeability of harm to the person injured. such professionals of the tort remedy to which other victims of negligence are entitled. particularly with respect to the nature of the parties’ relationship and public policy considerations. a plaintiff must. the court notes. The court of appeals afﬁrmed the trial court’s judgment. 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. 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. excitability. and others similarly situated. and (3) public policy concerns. standard of care. the dissent argued.” Further. proximate cause (scope of liability) and damages. * As pertaining to this plaintiff. breach of duty. because there had been an improper instruction. To establish a prima facie case for negligence. such a standard would place at risk any number of individuals who by dint of their professional status are placed in potentially volatile situations. * With regard to the threshold issue. or proneness to accident. Defendants appealed.” Discussion. 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.” Robinson v. also a minor. 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. He notes: “It is not only unfair but also extremely unwise social policy to deprive. . cause-infact.” People with mental disabilities are commonly held liable for their intentional and negligent torts.” There are. by a preponderance of the evidence establish each of the following elements (that is. the court concluded. a minor. ignorance. by more than 50%): duty. No allowance is made for lack of intelligence. Conversely. The trial court ordered a new trial.Instead. and by accepting such employment assume the risks associated with their respective occupations. who was operating the vehicle at the time of the accident. “Public safety ofﬁcials and caregivers are speciﬁcally hired to encounter and combat particular dangers. This was a personal injury action brought on behalf of Kelly Robinson.” Concurrence. however.
Brame (Defendant) parked his vehicle on a highway at night without warning lights or signals. and the driver ﬁled an action for property damage. in most jurisdictions. Issue. he should have been held to an adult standard of care. With regard to minors and the duty of care. Yes. SPECIFICATION OF PARTICULAR STANDARDS OR DUTIES Chafﬁn v. and this is to be determined ordinarily by the age of the child. experience. Such a standard allows the jury to consider the child’s particular qualities such as experience and intelligence. “The operation of a snowmobile requires adult care and competence because it is a powerful motorized vehicle. When. Discussion. the child should be held to an adult standard of care. 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.” B. and intelligence under like circumstances. Brame Brief Fact Summary. 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. Facts. A person is not bound to anticipate negligent acts or omissions on the part of others.” As the court concluded. Chafﬁn (Plaintiff) collided with the truck. As the court explained in Robinson. and lost full use of her thumb. the operation of a snowmobile. Synopsis of Rule of Law. When the activity a child engages in is inherently dangerous. children are engaged in adult or inherently dangerous activities they are held to the same standard as adults. “[t]he care or caution required is according to the capacity of the child. Defendant appealed. Plaintiff was injured as a result. .Synopsis of Rule of Law. stating that because Defendant had engaged in the inherently dangerous activity. Should a minor operating a snowmobile be held to an adult standard of care? Held. as is the operation of powerful mechanized vehicles. 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. Defendant was operating a snowmobile and was involved in an accident. but in the absence of anything which gives or should give notice to the contrary. The Supreme Court of Washington afﬁrmed the lower courts’ holdings. children are held to a standard that compares their conduct to other reasonable children of the same age. as here.
Defendant conceded negligence in parking his truck on the traveled portion of the highway at night without displaying lights or warning signals. and thus Plaintiff was not guilty of contributory negligence as a matter of law. Discussion. O’Guin ate lunch at a summer school program then proceeded to walk home. however. (3) the plaintiff must be a member of the class of persons the statute was designed to protect. The children went through an unlocked gate at the back of the schoolyard. 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. He asserted. caused the children’s deaths. and Frank Jr. O’Guin v. Alex. Their bodies were initially discovered by Frank Jr. relying on Idaho statutes and federal regulations which require the County to fence or block access to the landﬁll . killing them.Facts. and (4) the violation must have been the proximate cause of the injury. 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. through a privately owned empty ﬁeld. that the driver of the other vehicle was guilty of contributory negligence as a matter of law because he did not control his car sufﬁciently in order to stop within the range of the Plaintiff’s driver’s lights. To make a prima facie claim for negligence per se. . Was Plaintiff guilty of contributory negligence in his failure to avert collision with the parked vehicle? Held. Synopsis of Rule of Law. and which is a legally contributing cause . in bringing about the plaintiff’s harm. . Facts. Plaintiffs sued the County under a negligence per se theory. Bingham County Brief Fact Summary. A section of the pit wall collapsed and crushed Shaun and Alex. Plaintiff’s children were playing in the Bingham County landﬁll when a wall collapsed and killed them.” Thus. Their parents sued the County for negligence per se. Contributory negligence is a complete defense to negligence except in those jurisdictions that adhere to comparative negligence jurisprudence. as required by state statutes and federal regulations. He did everything possible to avert the collision as soon as the truck became visible. in some instances. According to the Restatement Section 463. Issue. Shaun. and into an unobstructed landﬁll pit to play. The court ruled that Plaintiff had no reason to anticipate that the Defendant’s truck had been left standing on the traveled portion of the highway ahead of him without lights or warning signals. (2) the statute must have been intended to prevent the type of harm the defendant’s acts or omissions caused. arguing that the County’s failure to fence the boundaries of the landﬁll. the following elements must be met: (1) the statute must clearly deﬁne the required standard of conduct.
Issue. (2) were intended to protect health and human safety. Impson v. Inc. Where a party violates a statute. Whether the O’Guins have an actionable claim for negligence per se against the County. Polanco’s truck attempted to pass the car within a prohibited distance of a highway intersection. Held. 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. Synopsis of Rule of Law. The trial court granted summary judgment for the County. including Mrs. and an automobile in which three people were killed. Discussion. The trial judge ruled that Polanco was negligent as a matter of law and entered judgment for the Plaintiffs. (2) the statute must have been intended to prevent the type of harm the defendant’s acts or omissions caused. Brief Fact Summary. 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. (3) the plaintiff must be a member of the class of persons the statute was designed to protect. and (4) that there was a disputed issue of fact as to whether the County’s violation proximately caused the children’s deaths. the O’Guins appealed and won. 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. Plaintiffs appealed. the following elements must be met: (1) the statute must clearly deﬁne the required standard of conduct. Accordingly the court reversed the trial court’s grant of summary judgment to the County. Yes. (3) were intended to protect against entry of unauthorized person such as the O’Guin children. resulting in a reversal of the trial court’s judgment.when an attendant is not on duty. he must present some legally substantial excuse or justiﬁcation. The appeals court held that Defendant had submitted excuses sufﬁcient excuses that the issue of negligence should be brought before a jury. The car turned left into the intersection and was struck by the Polanco. Structural Metals. . Facts. This decision introduces the theory of negligence per se. In order to replace the common law duty of care with that imposed by a statute. In analyzing these requirements. 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. Impson. who was attempting to pass the car in the left hand lane. and (4) the violation must have been the proximate cause of the injury. and two others were injured (Plaintiffs).
slide down the embankment. An excused violation of a legislative enactment is not negligence. including. causing the car to veer off the road and hit a tree. Beisel unexpectedly grabbed the steering wheel causing the truck to veer off onto the shoulder of the road. Parsell regained control but did nothing in response to Beisel’s dangerous action other than laugh about it. When actions of a passenger that interfere with the driver’s safe operation of the motor vehicle are foreseeable. ﬁnding that the issue of negligence should have been submitted to the jury. Excusable violations (not exclusive). The other passenger yanked Defendant’s steering wheel causing the car to swerve. and strike a tree. Plaintiff Pipher was a passenger in Defendant Parsell’s car along with a third person named Beisel. Discussion. Beisel again yanked the steering wheel. fall into ﬁve categories. the failure to prevent such conduct may be a breach of the driver’s duty to his passengers or the public. the trial court granted summary judgment for Defendant.Issue. The court afﬁrmed the trial court’s ruling that there was no evidence offered of any legally acceptable excuse or justiﬁcation. Parsell Brief Fact Summary. She sued Parsell for negligence. ASSESSING REASONABLE CARE BY ASSESSING FORESEEABLE RISKS AND COSTS Pipher v. and e) compliance would involve a greater risk of harm to the actor or to others. Thirty seconds later. b) he neither knows nor should know of the occasion for compliance. injuring Pipher. BREACH OF DUTY A. d) he is confronted by an emergency not due to his own misconduct. unexcused. Plaintiff sued Defendant for negligence. Restatement of Torts (Second) (1965). and the appellate court disagreed. Synopsis of Rule of Law. as a matter of law. As they were traveling at 55 mph. but Defendant regained control and did not do anything about it. What excuses and/or justiﬁcations are legally acceptable in a negligence action? Held. . The violation was. Facts. but not limited to: a) the violation is reasonable because of the actor’s incapacity. resulting in injuries to plaintiff. causing Parsell’s truck to leave the roadway. Plaintiff and another were passengers in Defendant’s car. Plaintiffs were thus entitled to a judgment. The passenger again yanked the wheel. c) he is unable after reasonable diligence or care to comply. 2. All three were 16 years old.
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.
As a result of the collision. No. The trial court granted summary judgment for the Defendant and judgment was afﬁrmed.Discussion. plaintiff did not see the collision. Synopsis of Rule of Law. Plaintiff alleged that in 1997. nor could plaintiff identify the street or intersection where the alleged collision occurred. 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. Facts. Inc. When actions of a passenger that interfere with the driver’s safe operation of the motor vehicle are foreseeable. As a result of the collision. or B<PxL. Brief Fact Summary. Plaintiff could recall no details of the collision nor could she offer any witnesses who could. The plaintiff attempted to justify a lack of evidence to support her case by pointing to the nature of the accident. First Student. However. . PROVING AND EVALUATING CONDUCT -PROVING Santiago v. it collided with a car. There was no police report. Plaintiff alleged that in 1997 she was in the eighth grade and being transported one of Defendant’s school busses. Whether a ﬁnding of negligence can be premised on mere conclusory allegations of negligent conduct. She sued the Defendant bus company for negligence. She sued Defendant for negligence. Held. the failure to prevent such conduct may be a breach of the driver’s duty to his passengers or the public. 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. 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. plaintiff claimed that the right side of her face hit the seat in front of her and she was injured. when she was in the eighth grade and being transported one of Defendant’s school busses. Issue. The Carroll case is noteworthy in that it utilizes a balancing test to determine whether a breach of the duty of ordinary care occurred. B. Most courts employ Judge Hand’s formulation: a comparable risk-beneﬁt model. 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. plaintiff claimed that the right side of her face hit the seat in front of her and she was injured.
Mere conclusory allegations are not enough to prove negligent conduct. Synopsis of Rule of Law. the defendant was entitled to summary judgment. which properly makes such determinations. Accordingly. Upchurch v. Facts. and that it is the jury. Rotenberry lost control of the vehicle. veered off the road. i. Rather. In October 1992 Teresa Rotenberry was driving a car in which Timothy Upchurch was the sole passenger. a defendant’s negligence must be shown to be more probable than not. Upchurch dies from resulting injuries. the dissent took . May an appellate court grant motion for judgment notwithstanding the verdict when the issue is the determination of fact? Held. The court held that a reasonable and fair-minded jury could reach different conclusions of fact. Discussion.e. The trier of fact must reasonably believe that the probability of negligence exceeds one-half. Issue. Appellant. if the matter of factual determination properly rests with a jury..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. A plaintiff must prove each element of a civil case by the preponderance of the evidence. The jury is the judge of the weight of the evidence and the credibility of the witnesses. A jury concluded that Rotenberry’s explanation was factual and thus found in defendant’s favor. The jury is the judge of the weight of the evidence and the credibility of the witnesses. Dissent. 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. Because the plaintiff could not meet that burden in this case. the dissent focused on the matter of culpability: “The question is. a ﬁnding of 1% negligence or more by Rotenberry would warrant recovery. not the court. and struck a tree. The dissent questioned the manner in which the majority framed the issue. The Oktibbeha County Circuit Court (Mississippi) entered judgment in favor of appellee Rotenberry in connection with a car accident in which appellant’s son died. was there any negligence on her part in the one-car crash? Since there was absolutely no negligence on the part of the passenger.” Thus. An appellate court will not intrude into the realm of the jury by determining the credibility of a witness and making ﬁndings of fact. She claimed that a large animal had darted in front of her car. Rotenberry was the only witness. causing her to lose control. Rotenberry Brief Fact Summary.
near the passage from the kitchen to the restaurant. Brief Fact Summary. Notice of a dangerous condition may be established by circumstantial evidence. 1990. neither the trial court.the view that “[a] directed verdict should have been granted as to liability and the jury should have only determined damages. Appellant challenged the order. observing their demeanor. Synopsis of Rule of Law. she noticed that area in which she fell was wet. The system of jurisprudence has determined that citizen jurors. When Thoma got up. are permitted to interfere in the conclusions reached by these jurors. After eating breakfast. she did not see anyone spill any liquid on the ﬂoor where she fell. Thoma was in the restaurant about thirty minutes prior to her accident. 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. and during that time. the Circuit Court for Leon County (Florida) granted Cracker Barrell Restaurant (Appellee’s) motion for summary judgment.” Discussion. 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. Facts. Absent some clear indication that the jurors in a particular case somehow ignored that duty. . Cracker Barrel Old Country Store. Appellant claimed to have suffered a back injury when she fell in a Cracker Barrel Restaurant in September. Thoma was walking away from her table when her left foot slid out from under her. and coming to their own conclusions of which evidence they ﬁnd more credible. To recover for injuries incurred in a slip and fall accident. She fell in the middle of a common aisle. 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. employing their native intelligence and collective life experiences. They are charged with listening to the witnesses. Inc.” -EVALUATING Thoma v. dismissing Deborah Thoma’s (Appellant’s) complaint. She alleged that Cracker Barrel was negligent in failing to maintain the ﬂoor in that particular area of the restaurant. covered in a small puddle of clear liquid. In a slip and fall case. are best qualiﬁed to make those judgments. She contends the liquid was what caused her fall.
who is the owner of tugs. breach of duty. who is the owner of barges. proximate cause. . The court reversed the grant of summary judgment. holding that the barges were unseaworthy in fact. Discussion. the court concluded that there existed enough evidence that a jury might infer negligence. 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. standard of care. To recover for negligence. even though such sets were not standard in the industry. The reasonable person standard is an objective one. In Thoma. Defendant. in viewing the evidence in a light most favorable to the plaintiff. The court also upheld the principal ﬁnding that the tugs were unseaworthy. which towed the barges. Hooper Brief Fact Summary. which sank in a storm. The latter then sued third-party defendant. leaked badly under weather-related stress. Reversed and remanded. and their pumps were not properly inspected. Both Defendants appealed. there existed a question as to whether employees exercised due diligence in maintaining the safety of the area in question? Held.Issue. thus. which declared the tugs and the barges jointly and severally liable to plaintiff cargo owners.J. and held each tug and barge jointly and severally liable to Plaintiffs. The court afﬁrmed. The trial court found all of the vessels to be unseaworthy. Plaintiffs sued Defendant. No. a plaintiff must establish each of the following elements by a preponderance of the evidence: duty. and damages. Was summary judgment proper where. Failure to act in such a fashion constitutes unreasonable conduct and. If a defendant meets this standard. Synopsis of Rule of Law. is a breach of duty. thus there existed an issue of material fact sufﬁcient to preclude a grant of summary judgment. The barges could not withstand coastal storms. comparing a defendant’s conduct to that of a reasonable person. because all of the vessels were unseaworthy. he is shielded from liability. and that their owners did not take reasonable precautions to make them seaworthy as required by its charter. There are precautions so imperative that even their universal disregard will not excuse their omission. Facts. 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. 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. because they did not have radio sets with which they could receive weather reports. The T.
The plaintiff does not have to eliminate all other possible causes for the harm. While certain courts had held that the industry standard constituted proper diligence. J. Synopsis of Rule of Law. Neither Plaintiff nor any of the witnesses testiﬁed as to anything done by Boadle (Defendant) that could have led to the barrel falling. 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). Though the context is maritime law. Was the mere fact of the incident occurring.Issue. 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. the barrel having fallen from the shop. C. This decision expands on that standard by applying it in the context of accepted practice. i. This is an objective standard that compares the Defendant’s conduct to the external standard of a reasonable person. sufﬁcient to presume negligence? . No. A plaintiff must persuade a jury that more likely than not the harm-causing event does not occur in the absence of negligence. and Judge Hand’s standard of prudence is set against the possible exculpatory weight of the standards of industry. and the barrel appeared to have fallen. Defendant’s shop was adjacent to the road on which Plaintiff was walking. Issue. The key is that a reasonable jury must be able to ﬁnd that the likely cause was negligence.. If the Defendant does so. hence.e. at its core the standard applied in The T. Failure to do so constitutes unreasonable conduct and. Byrne (Plaintiff) testiﬁed that he was walking along Scotland Road when he evidently lost consciousness. Did the fact that there was an industry custom that tugs did not carry radios relieve Defendants of their responsibility to maintain radios? Held. PROVING UNSPECIFIED NEGLIGENCE: RES IPSA LOQUITUR Byrne v. Witnesses testiﬁed that a barrel of ﬂour fell on him. Facts. courts have an obligation to set a standard consistent with prudence and proper caution. or was dropped from the shop. Discussion. breach of duty. Boadle Brief Fact Summary. she is protected from negligence liability.
requiring the plaintiff to show that the defendant likely had “exclusive control” over the harm-causing instrumentality. the child’s mother. Facts. The mother was in the house. including Enoch. Plaintiff appealed a judgment of involuntary nonsuit entered at the close of Plaintiff’s evidence. Terry Lee Enoch (Enoch). No. 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. When the decedent jumped out he fell. courts interpreted the control element narrowly. Synopsis of Rule of Law. while ﬁve children. and the front wheel ran over his chest. Initially. Does the doctrine of res ipsa loquitur apply? Held. Further. One of the older children opened the door and told the others to jump out. climbed into the rear of the vehicle. and absence of voluntary action or contribution by the plaintiff. Defendant’s car was parked on an incline at Plaintiff’s home. i. All indications were that this was an accident. No one touched any of the control mechanisms of the car. Enoch.” In order for the Plaintiff to have the beneﬁt of res ipsa loquitur. the accident itself is evidence of negligence. a 6-year old child.. was injured when a wheel of Jeffries’ (Defendant) automobile ran over his body. . The child died from his injuries. as it was Defendant’s responsibility to control the contents of his warehouse. Jeffries Brief Fact Summary. Warren (Plaintiff) brought an action to recover for the child’s alleged wrongful death. exclusive control of the instrumentality by the defendant. the keys to his car so that she could drive it to the store. Issue. 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. Warren v. The court allowed the case to proceed because of the nature of the harm-causing event and Defendant’s relationship to it. A plaintiff seeking to rely on res ipsa loquitur must connect the defendant to the harm. she must convince the jury that each of these factors more likely than not exists. Defendant gave Ms. No sufﬁcient proof of negligence was offered. The conditions traditionally required for the application of res ipsa loquitur are: “an accident that normally does not happen without negligence.e.Held. Discussion. most jurisdictions no longer require the plaintiff to prove that he did not contribute to his harm.
as the court enunciated. 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. The Giles case further clariﬁes the doctrine of res ipsa loquitur. As noted in Gift v. Facts. Proof of negligence may be furnished by the circumstances themselves and it is not essential to have eyewitness testimony. The appellate court (Connecticut) reversed and remanded the case for a new trial. Plaintiff. The trial court granted a Motion for Summary Judgment and directed a verdict in favor of the elevator installer. “A verdict cannot be supported on the basis of mere speculation or conjecture.” In essence. City of New Haven Brief Fact Summary.” Giles v. which. The trial court directed a verdict in favor of the elevator installer. an analogous case. inspection or user. the Plaintiff was entitled to have a jury consider her claim that the Defendant’s negligence was the cause of her personal injuries. the elevator operator ﬁled a negligence action against the elevator installer to recover injuries he sustained when the elevator fell. condition. Synopsis of Rule of Law. Discussion. 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. To avail herself of the inference afforded by the res ipsa loquitur doctrine. or apparatus causing the injury must be such that in the ordinary course of events no injury would result unless from a careless construction. Issue. The facts indicated that the elevator installer installed the elevator sixty-one years prior to the accident. both inspection and user must have been at the time of the injury in the control of the party charged with neglect. upon the . The Plaintiff was injured when an elevator he was operating fell. “applies when three conditions are satisﬁed: the situation. With respect to the doctrine of res ipsa loquitur (as clariﬁed in the court’s opinion). Whether the doctrine applies in a given case is a question of law for the court. the injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. a plaintiff must demonstrate that a defendant was responsible for the speciﬁc instrumentality that caused the event.Discussion. 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. Palmer. The elevator operator sought review. Did the Appellate Court properly apply the doctrine of res ipsa loquitur? Held.
Plaintiff stopped his vehicle at a red trafﬁc light when it was struck from behind by Defendant’s vehicle. but where plaintiff cannot prove actual bodily injury. but no physical injuries reported at the accident scene. alleging that as a result of Defendant’s negligence he had suffered bodily injury. There was minor damage to the Plaintiff’s vehicle. No. Breen Brief Fact Summary. Later. The supreme court reversed. the technical legal . However. ACTUAL HARM Right v. The jury returned a verdict of zero damages. Issue. 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. Held. he can recover nominal and even exemplary damages. HARM AND CAUSATION IN FACT A. 3. to serve as a deterrence to society. and that the accident resulting in injury was of such a nature that it ordinarily would not occur in the absence of negligence. while Defendant presented evidence that the injuries resulted from Plaintiff’s ﬁve previous auto accidents. Plaintiff subsequently sued Defendant for negligence but could not prove causation or actual damages and Defendant argued that Plaintiff’s injuries were the result of his prior ﬁve auto accidents. Defendant rear-ended Plaintiff but neither party reported any personal injuries at the scene. The trial court nevertheless granted the plaintiff’s motion and awarded nominal damages of $1. Under the technical legal injury concept. The plaintiff ﬁled a motion to set aside this verdict. ﬁnding that nominal damages should not have been awarded. Defendant prevailed. the doctrine of res ipsa loquitur permits the plaintiff to shift to the defendant the burden of proof on the issue of negligence. she had denied the causal relationship between the collision and the plaintiff’s alleged injuries. Facts. The appellate court afﬁrmed. 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. where the plaintiff’s right has been intentionally invaded. Defendant objected. Common law requires proof of causation and actual damages to support a cause of action in negligence. arguing that although she had admitted to causing the collision.showing that the product or apparatus was one over which the defendant had complete control. Plaintiff sued. Synopsis of Rule of Law. At trial Plaintiff presented evidence that his injuries resulted from the collision.
to serve as a deterrence to society. As she stepped off the sidewalk before she reached the bushes. not the overgrown bushes. Under the technical legal injury concept. property owned by another party. B. he can recover nominal and even exemplary damages. she tripped on crumbling sidewalk prior to the bushes and fell. Issue. As Plaintiff looked up to check trafﬁc in preparation for stepping into the street. She determined she had to leave the sidewalk and enter the street to bypass it. No. and the Tennessee Supreme Court reversed. the technical legal injury concept does not apply to a negligence action where injury has occurred unintentionally. 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. Her left hip was crushed in the fall requiring extensive medical care. Synopsis of Rule of Law. Plaintiff Hale was walking home on a sidewalk that she had not traveled before. Defendants’ overgrown bushes obstructed the sidewalk. She sued Defendants for negligence. Ostrow Brief Fact Summary. The crumbled sidewalk was located in front of 1063 Mississippi. then the defendant’s conduct is a cause in fact of the injury. . Common law requires proof of actual damages to support a cause of action in negligence. the Ostrows. However. Facts. she tripped over a chunk of concrete and fell into the street. Defendants. As she proceeded. Trial court granted the Defendants’ motion. Common law requires proof of actual damages to support a cause of action in negligence. crushing her hip. blocking her way. 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. Plaintiff ﬁled suit against Defendants and the other property owner. forcing Plaintiff to step into the street to walk around them. If not. CAUSE IN FACT -The But-for Test of Causation Hale v. 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. Discussion. where the plaintiff’s right has been intentionally invaded. only that it be a cause.injury concept does not apply to a negligence action where injury has occurred unintentionally. the Court of Appeals afﬁrmed. It is not necessary that the defendant’s act be the sole cause of the plaintiff’s injury. moved for summary judgment arguing that the injury was caused by the defective sidewalk. Negligence requires both the elements of cause in fact and proximate cause.
Plaintiff would not have had to look up and check for trafﬁc in preparation for stepping into the street to go around it. Nystrom Brief Fact Summary.Held. Anna Salinetro sustained back injuries in an automobile accident and applied for personal injury beneﬁts from her insurer. Discussion. Appellants. Synopsis of Rule of Law. 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 . but that the harm was in fact caused by the defendant. Yes. Salinetro did not know that she was pregnant at the time of the x-ray. the court found that Defendant’s obstruction of the sidewalk caused Plaintiff’s injury because “but for” the bushes. distinct elements which must be proven by the preponderance of the evidence. In this case. This is expressed as the “but-for” rule: but-for defendant’s conduct. and she was advised to terminate pregnancy because the fetus had been exposed. Nystrom of her lower back and abdominal area took xrays. Negligence requires both causation in fact and proximate cause. sought review. She underwent a therapeutic abortion and the pathology report stated the fetus was dead at the time of the procedure. patient and her husband. the pedestrian would have avoided injury. Facts. Salinetro v. When this statement can be shown to be true. He did not inquire as to whether she was pregnant. This decision stands for the proposition plaintiffs hoping to recover under a negligence theory must prove the fourth element. Issue. cause in fact or actual cause has been proven. but that the harm was in fact caused by the defendant. factual causation. She ﬁled suit for medical malpractice. 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. Did the trial court err in entering judgment for Appellee? * Was Appellee the cause in fact/actual cause of Appellant’s injury? Held. No. An element of a negligence prima facie case is cause in fact or actual cause. State Farm required Salinetro to submit to a medical examination and on December 10 Dr. The plaintiff must prove. The appellate court afﬁrmed the trial court’s judgment. her doctor conﬁrmed the pregnancy after multiple tests. State Farm Mutual Automobile Insurance Company (State Farm). not only that she suffered legally recognized harm. The plaintiff must prove not only that she suffered legally recognized harm. 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.
standard of care. v. the lake owner declined to replead so as to assert several liability only against each defendant in separate suits. -Problems With and Alternatives to But-for Tests Landers v. This case overrules the holding in Sun Oil Co. It should be noted that. 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. appealed the dismissal of action as to damages. etc. the court explained: “A physician. courts defer to the expertise of the profession to determine the appropriate standard of care. this failure was not the cause of her injury.” Thus. Synopsis of Rule of Law. initially. owner of a small lake.medical malpractice since. 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. With regard to doctors. proximate cause (scope of liability) and damages. Merely to show a connection between the negligence and the injury is sufﬁcient to establish liability. is under a duty to use ordinary skills. cause-in-fact. in determining that plaintiff had failed to establish two necessary elements. law. the court concluded that the lower court properly entered judgment on behalf of Nystrom. East Texas Salt Water Disposal Co. The Salinetro court focused. the court stated. are necessary and customarily followed in the community normally requires expert testimony by those physicians who perform similar services in the community. The Court of Civil Appeals for the Sixth District (Texas) afﬁrmed. even if Nystrom’s failure to inquire as to whether Salinetro was pregnant at the time of her examination. science or economics.” Continuing along similar lines. “To determine what skills. 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. whether he be a general practitioner or specialist. Discussion. .” * The court then shifted to the standard of care required of physicians. Brief Fact Summary. breach of duty. : Landers (Plaintiff). because of the specialized skill and training required in ﬁelds such as medicine. Any claim for negligence requires plaintiff to establish the following elements: duty. 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.
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. after Defendants’ plea in abatement asserting a misjoinder of parties and of causes of action had been sustained. if established by evidence. He alleged that East Texas Salt Water Disposal Co. 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. * Overruling the holding in Sun Oil Co. 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. Yes. that when (1) the tortious acts of two or more wrongdoers join to produce an indivisible injury. 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. an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers. and Sun Oil Co. Robicheaux. * The court held that because there was no misjoinder as alleged. 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.In this case. which he had cleaned and stocked with ﬁsh at considerable expense. which. made the Defendants jointly and severally liable for Plaintiff’s damages? Held. he declined to replead so as to assert several liability only against each of the Defendants in separate suits. Plaintiff owned a small lake. when. Discussion. He alleged that both Defendants acted negligently. that is. * The judgments of both lower courts were reversed and the case was remanded to the trial court for further proceedings not inconsistent with the instant opinion. Facts. that is. * Adopting a new rule. The allegations of the petition . an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers. v. Issue. (Defendants) both caused large quantities of salt water and also oil to ﬂow into his lake killing the ﬁsh. Did the Plaintiff in his pleading allege facts. * The lower court afﬁrmed the trial court decision. 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.
case? Held.S. Anderson (Plaintiff) property near Minneapolis.S. Issue. the court approved a jury instruction that allowed the jury to ﬁnd actual causation if the Defendant’s ﬁre was a “material or substantial element” in the harm done.R. a party has established that the other party’s conduct was the cause in fact of an injury. Brief Fact Summary. Plaintiff owned property near railroad company’s tracks. the trial judge’s instructions to the jury in the absence of counsel were correct statements of law. The Supreme Court of Minnesota afﬁrmed the judgment because the trial court did not abuse its discretion in allowing Plaintiff to amend the complaint to conform to proof at trial. S. The ﬁre started in a bog near Plaintiff’s land and smoldered there for several months. When the “but-for” test seems to produce clearly wrong results. Company’s (Defendant) railroad tracks. Synopsis of Rule of Law. Facts. as in the duplicative cause cases. . No.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. 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. then the cause-in-fact is established by the “substantial factor” test. Did the trial court err when it instructed the jury to apply the rule in the Cook v.M. Anderson v. Moreover. & S.R. and the trial court was not obliged to notify counsel before responding to the jury’s question. The jury returned a verdict for Plaintiff.S. When either the “but-for” or “substantial factor” test is satisﬁed. M. Minneapolis S. Co..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.P.M. In Anderson. Ry. & S. St. & S. P. If two or more causes concur to bring about an event. the “substantial factor” test has been widely accepted. where it destroyed some of his property. when it ﬂared up and burned his property shortly before it was reached by one of the great ﬁres sweeping through the area that day. where it destroyed some of his property.P.
The trial court entered a judgment in Plaintiff’s favor. Plaintiff damages for personal injuries arising out of a hunting accident. 98 Wis. and either ﬁre independently of the other would have destroyed it. Tice and Ernest Simonson (Defendants). and thus each liable for the damage caused by him alone. Because they failed to meet that burden. 624. The narrow rule in this case states that if a ﬁre combines with another of no responsible origin. 74 N. 830. The wronged party should not be deprived of his right to redress. because each acted negligently. If Defendants are independent tortfeasors. Facts. both Defendants ﬁred in Plaintiff’s direction. they destroy the property. at the same time.Discussion. and any one of those ﬁres could have been the actual cause of Plaintiff’s loss. 40 L.A. then the cause-in-fact of an injury is established by the “substantial factor” test. Rep. 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. 68 Am. The court applied the “substantial factor” test imported from the rule in the Cook case. each was responsible to Plaintiff for damages from the injuries he sustained. Harold W. which awarded Charles A. . it was in the discretion of the trier of fact to apportion the damages. If two or more causes concur to bring about an event. Plaintiff provided each Defendant with directions on how to safely ﬁre their weapons. Plaintiff and Defendants went on a hunting trip. the court afﬁrmed. Synopsis of Rule of Law. 561. While attempting to shoot their target. The court reasoned further that it was Defendants’ burden to offer proof as to the apportionment of damages. Consolidated appeals from a judgment of the Superior Court of Los Angeles County (California). Plaintiff suffered injuries to his right eye and face.W. then. Tice Brief Fact Summary. Summers. St. 457. there is no liability. On appeal. therefore. and after the union of the two ﬁres. in Defendant’s direction. which exempted Defendant from liability since there were other ﬁres sweeping east towards Plaintiff’s property. Both hunters negligently ﬁred. irrespective of whether the ﬁrst ﬁre was or was not a material factor in the destruction of the property. but it is impossible to prove whose conduct actually caused the harm. in Plaintiff’s negligence action against two hunters.R. Plaintiff sued both Defendants in a negligence action. -Proof: What was Caused? Summers v.
Plaintiff proffered that her expert would testify that the Defendant’s negligence deprived her of the opportunity for a substantially better . Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. the trial court dismissed her action. Here. Synopsis of Rule of Law. because each acted negligently. causing her to lose the opportunity for a substantially better recovery. alleging that they negligently misdiagnosed her spinal cord injury. Facts.Issue. the case should be left to the trier of fact to apportion damages. Since each Defendant acted negligently. She sued Defendants for medical malpractice. and the higher court reversed and remanded. 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. They brought about a situation where the negligence of one of them injured the plaintiff. therefore. They are both wrongdoers negligent toward the plaintiff. the court reasoned that since they failed to meet that burden. Lord v. Upon learning that the Defendants intended to move to dismiss at the close of her case. She sued Defendants. The appellate court correctly afﬁrmed the lower court’s ruling. Discussion. then failed to both immobilize her properly and to administer steroid therapy. Thus. a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. If one can escape the other may also and plaintiff is remediless. the defendants failed to meet their burden of proving which party was responsible for plaintiff’s eye injury. Did the trial court err in entering judgment in Plaintiff’s favor? Held. Lovett Brief Fact Summary. Defendants have placed the injured party in the unfair position of pointing to which defendant caused the harm. Plaintiff broke her neck in an auto accident and claimed that the hospital staff negligently misdiagnosed her injury. 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. if he can. The judgment of the lower court was afﬁrmed because Defendants failed to meet their burden of proving who was responsible for Plaintiff’s injury. each was responsible to Plaintiff for damages from the injuries Plaintiff sustained. No. hence it should rest with them each one to absolve oneself. each was responsible to Plaintiff for damages from the injuries Plaintiff sustained. causing her to lose the opportunity for a substantially better recovery. Plaintiff suffered a broken neck in an auto accident and was treated at the hospital by Defendants.
as in the above case. which can be difﬁcult to calculate. (3) If a plaintiff can prove that she was deprived of at least a 51% chance of a more favorable outcome than she received. but can be quantiﬁed through expectation. to recover for her lost opportunity to obtain a better degree of recovery. Many jurisdictions. not for the entire preexisting condition. This decision explains that a minority of jurisdictions approach this theory according to the standards explained in (1) & (2) above. Whether Plaintiff can recover under the loss of opportunity doctrine.recovery. she may recover damages for the entire preexisting condition. The loss the opportunity doctrine is a medical malpractice form of recovery which allows a plaintiff. . she may recover damages for the entire preexisting condition. The trial court dismissed the action on the ground that lost opportunity was not a recognized theory. Discussion. Held. The court adopted the third approach. The New Hampshire Supreme Court reversed and remanded. 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. she may recover damages only for the lost opportunity for a better outcome. 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. Issue. whose preexisting injury or illness is aggravated by the alleged negligence of a physician or health care worker. but conceded that her expert could not quantify the degree to which she was deprived of a better recovery by their negligence. only permit a plaintiff to recover damages for loss of opportunity itself. reversed the trial court’s dismissal. Yes. however. and remanded.
because Plaintiff failed to establish an essential element of negligence. The court held that the trial court should have entered judgment for Defendants as a matter of law. proximate cause. on grounds that the court should have entered judgment for Defendants on Plaintiff’s negligence claim as a matter of law. The harm that occurred to plaintiff must be of the “same general nature as the foreseeable risk created by the defendant’s negligence. Washington Height Condominium Association and a management company (Defendants) appealed a judgment for plaintiff. not guests. because the primary reason buildings have buzzer systems is to protect residents.” 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. Yes. THE SCOPE OF RISK OR “PROXIMATE CAUSE” ELEMENT A. In fact. 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. . but not when some entirely different risk eventuates in entirely different harm. Issue. Plaintiff became the victim of a violent assault as she waited in the lobby of Defendants’ apartment building. 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. 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. Synopsis of Rule of Law. Washington Heights Condominium Brief Fact Summary. by the Superior Court in the Judicial District of Stamford-Norwalk (Connecticut). includes both cause in fact and foreseeability components. The intervening criminal act of the assailant was not within the scope of risk created by Defendants’ lack of maintenance. The term proximate cause. Facts. THE PRINCIPLE: SCOPE OF RISK Medcalf v. while Plaintiff was assaulted. Her hosts struggled to admit her by using an electronic buzzer that did not work.4. Did the trial court err in ruling in favor of the Plaintiff? Held. so there could be no ﬁnding of negligence.
Defendant helped to push a man aboard a train. * The Supreme Court of Connecticut has deﬁned proximate cause as an actual cause that is a substantial factor in the resulting harm.Discussion. but there was nothing from its appearance to give notice of its contents. attempted to jump aboard the car. * Proximate cause is a question of fact to be decided by the trier of fact. The man’s package fell. Long Island Railroad Co. the package the man was carrying was dislodged and fell upon the rails. reached forward to help him in. The second component of a negligence action is proximate cause. The ﬁreworks exploded when they fell. Two men ran to catch a train that was pulling out from the platform. but it becomes a question of law when the mind of a fair and reasonable person could reach only one conclusion. Chief Justice Cardozo. 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. that. (Defendant). The substantial factor test reﬂects the inquiry fundamental to all proximate cause questions. In this act. Facts. Thus.e. Proximate cause establishes a reasonable connection between an act or omission of a defendant and the harm suffered by a plaintiff. The ﬁrst man jumped aboard. The shock of the explosion threw down some scales at the other end of the . * 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. 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. however he was unsteady. * The court found here that. Brief Fact Summary. Inside were ﬁrecrackers. and another guard on the platform pushed him from behind at the same time. who had held the door open. 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. as a matter of law. The package contained ﬁreworks. A guard on the train. Mrs. who was carrying a package. each person must refrain from acts (foreseeable or not) that unreasonably threaten the safety of others. i. The second man. Justice Andrews. Plaintiff failed to establish the necessary causal relationship.R. Palsgraf v. Palsgraf (Plaintiff) was standing on a platform after she bought a ticket from Long Island R. which exploded causing some scales to fall and injure Plaintiff Synopsis of Rule of Law.
it was not wrong in relation to Plaintiff who was standing so far away. * A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. No. causing injuries for which she sues. While it is clear that Defendant violated its duty to the person carrying the ﬁreworks. In determining proximate cause the court must ask itself whether there was a natural and continuous sequence between the cause and effect. an act innocent and harmless does not become a tort because it happened to be wrong with reference to someone else. she would not have been injured. It is not enough that Plaintiff merely prove that a duty that was owed to another was transgressed. A defendant owes a duty of care only to those plaintiffs who are in the reasonably foreseeable zone of danger. Defendant appealed. Plaintiff sued Defendant. Defendant’s liability for an intentional act cannot be greater when an act is inadvertent or unintentional. * 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.platform. There was no indication that the parcel contained ﬁreworks. (Justice Andrews) Everyone owes the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. and not whether the act would reasonably be expected to injure another. * The plaintiff must prove that her rights were violated and the duty that Defendant owed to her was transgressed. 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. * If no hazard is apparent to the eye of ordinary vigilance. many feet away. he would not have threatened Plaintiff’s safety. Does a Defendant owe a duty of care to Plaintiff who is outside the reasonably foreseeable zone of danger? Held. The conduct in relation to Defendant’s guard was wrong in relation to the man carrying the parcel. If not for the explosion. Dissent. Even if the guard had intentionally taken the package and thrown it. Plaintiff was awarded damages. Issue. Judgment reversed. * It was unforeseeable that a package being carried would explode and cause any damage to Plaintiff. * However. The stales struck Plaintiff. . Defendant did not violate any foreseeable duties to Plaintiff.
This case identiﬁes two ways to determine if a duty is owed to Plaintiff: (1) the Cardozo method. The higher court disagreed and found for Plaintiff on appeal. . * (J. was playing at the unattended site and knocked over a kerosene lamp. Andrews) Each person owes an absolute duty of care. ASSESSING THE SCOPE OF THE RISK Hughes v. to fall into the manhole and suffer severe burns. covered with a tent and surrounded by kerosene lanterns. leaving unguarded an open manhole. the vaporization of the kerosene and the explosion were not. Thus to recover. the 8 year old. they knocked or dropped a lantern into the hole. Post Ofﬁce workers were working underground and left the manhole unattended surrounded with kerosene lamps while on break. Thus liability for negligence is limited to what was foreseeable and what duties were owed that were reasonably foreseeable prior to the negligent act. causing Hughes. Post Ofﬁce employees were working on an underground telephone cable in Edinburgh. descended in the hole then came back up without mishap.J. everyone is a foreseeable plaintiff B. each person must refrain from acts (foreseeable or not) that unreasonably threaten the safety of others. This gaseous form of kerosene came into contact with the lantern’s ﬂame and created a large explosion. Scotland. But once back on top. The courts of Scotland held in favor of Lord Advocate on the grounds that though burns were foreseeable. which resulted in a huge explosion that threw him down the manhole. the result is within the chain of proximate causation and that element of negligence is satisﬁed. and (2) the Andrews method: * (C. At 5:00 they took a tea break. Plaintiff Hughes. He suffered severe burns and sued Defendant. a plaintiff must be a foreseeable plaintiff and be in the zone of danger. Cardozo) Negligence is based on the foreseeability of harm between the parties. Where a plaintiff’s injury is foreseeable.Discussion. C.J. He sued the Lord Advocate of Scotland as the representative of the Post Ofﬁce. but the injury is caused in a unique way or manner which could not have been foreseen. Two boys. an 8 year old boy. found the site. Lord Advocate Brief Fact Summary. Synopsis of Rule of Law. Defendant argued it was not the proximate cause of the injuries. Facts. The accepted reconstruction of what happened was that the lantern broke and some of the kerosene vaporized. Andrews’ view. 8 and 10 years old. Cardozo’s opinion is the majority view and is referred to as the zone of danger view. Under J.
however. Delaney put the gun under her chin. The gun did not ﬁre. Yes. unforeseeable manner are still considered within the scope of risk a defendant has a duty to protect plaintiffs from. as opposed to. including Massachusetts. suicide is considered an intervening cause which breaks the chain of causation. seriously injuring her. do not follow this traditional rule and will allow a plaintiff the chance to show that the risk of suicide was foreseeable and that defendant proximately caused it. Delaney sued Reynolds for negligence. loaded and unlocked in the bedroom. One night Delaney smoked crack cocaine and was drinking heavily. ﬁred. Plaintiff took the gun from the bedroom and shot at Defendant twice but the gun did not ﬁre. Reynolds knew that Delaney knew where he kept his gun. Synopsis of Rule of Law. relieving a defendant from liability. Reynolds also knew that Delaney was depressed and had substance abuse problems. The trial judge granted summary judgment for Reynolds and the court of appeals reversed . Where the cause of an accident was a known source of danger. Delaney then ran back up stairs.Issue. While packing her things. but injury is caused in a unique way which could not have been foreseen. pulling the trigger twice. Facts. She sued Defendant for negligence. namely an explosion. Whether Defendant can be found liable for negligence where the manner or cause of the injury was unforeseeable. A few states. Reynolds routinely stored his gun. a police ofﬁcer. and this time the gun went off. Reynolds claimed that Delaney’s intentional act of attempting suicide was a superseding cause of her injuries. Delaney v. One night after consuming drugs and being asked by Defendant to move out. even though the manner in which they occurred was not. Three different judges agreed that the Plaintiff’s burns were foreseeable. but the injury is the type that was foreseeable. went downstairs and aimed the gun at Reynolds. seriously injuring her. for example. Plaintiff lived with Defendant police ofﬁcer who owned a gun and stored it loaded and unlocked in the bedroom. Thus. In most states. Held. namely the kerosene lamp. Discussion. This case stands for the proposition that foreseeable injuries or harm that are caused in a unique. a spill of the kerosene which would have produced a more normal conﬂagration. Reynolds Brief Fact Summary. The explosion did not create an accident or damage of a different type than what could have been foreseen by the danger of ﬁre. 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. Plaintiff Delaney began living with Defendant Reynolds. there is no defense to negligence. Delaney took the gun. When they reached the bedroom. Plaintiff then shot herself and the gun did ﬁre. pursued by Reynolds. Reynolds urged her to move out of his house.
Most states continue to follow the traditional rule that suicide is a superseding cause of plaintiff’s harm. Massachusetts. 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. The automobile crashed through a single wooden horse-type barricade. Derdiarian v. Historically. then it is a superseding act which would sever the causal connection. the employee was splattered by boiling liquid enamel from a kettle. under Massachusetts law. Synopsis of Rule of Law. Whether suicide is such an extraordinary event as not to be reasonably foreseeable. Dickens was driving eastbound on the thoroughfare where Plaintiff was working on an excavation. Plaintiff and his wife sued the employer. and struck an employee of a subcontractor. Accordingly. If it is not foreseeable. does not adopt an ironclad rule that suicide constitutes an intervening cause. Foreseeability is the reasonable anticipation of the possible results of an action. Proximate cause is determined by whether an intervening act is a foreseeable consequence of the defendant’s negligence. Held. 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. Like Massachusetts. Dickens. as opposed to one. freeing the defendant from liability for negligence. Felix contended . 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. Brief Fact Summary. The driver suffered an epileptic seizure and lost consciousness. but had failed to take his medication that particular day. Upon landing. Discussion. rather than any antecedent negligence. Plaintiffs maintained that the barrier should have covered the entire width of the excavation site. who was propelled into the air. The driver was undergoing treatment at the time. but an intervening cause of injury which breaks the chain of causation. The driver of the automobile. a purposeful act of suicide. however. Felix Contracting Corp. Facts. No. striking Plaintiff. and the contractor for negligence. (Defendants) claiming that the employer failed to maintain a safe work site. James Dickens (Dickens) was suffering from an epileptic seizure when the accident occurred. however.Issue. the appeals court revered the summary judgment ruling. and there should have been two ﬂagmen present. Plaintiff was hit by a car when he was working on an excavation job. Felix Contracting Corporation (Felix).
Issue.e. the causal connection is not automatically interrupted. The Court of Appeals of New York held that Plaintiff’s injuries were a foreseeable result of the risk created by the employer. The jury found the truck driver liable. Whether an intervening act is foreseeable or not is a question for the trier of fact. Discussion. For a plaintiff to carry the burden of proving a prima facie case of negligence. because there was no causal link between Felix’s breach of duty and Dickens’ negligence. Synopsis of Rule of Law. The truck driver pulled over to offer assistance. then it may be a superseding cause. Were Plaintiff’s injuries a foreseeable result of the employer’s failure to maintain a safe work site? Held. If the intervening event is unforeseeable. Was the truck driver negligent and his conduct the proximate cause of the Defendant’s injuries? . which would interrupt the causal connection between defendant’s negligence and plaintiff’s injuries. it depends upon whether the intervening act was a foreseeable consequence of defendant’s negligence. he must generally show that the defendant’s negligence was a substantial cause of the events that produced the injury. the foreseeable harm test requires (1) a reasonably foreseeable result or type of harm. Essentially. On appeal. and (2) no superseding intervening force. i. Marshall v. and relieve an actor of responsibility. Further. One is liable for the harmful consequences that result from the creation of unreasonable risk. defendant employer argued that there was no causal link between the employers breach of duty and plaintiffs injuries. risk that is foreseeable and is the immediate cause of the plaintiff’s injury. Instead. Yes. Facts. Plaintiff was a passenger of a car that went off the road under icy conditions when an approaching truck crossed into his lane. leaving his truck partially blocking the road. Issue. when the risk of the intervening act occurring is the very same risk that renders the actor negligent. An oil company and the driver of its truck. an intervening act may not serve as a superseding cause.. (Defendants) and the Plaintiff appealed the district court judgments in a negligence action. Plaintiff need not demonstrate that the precise manner in which the accident happened or that the extent of injuries was foreseeable. 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. Nugent Brief Fact Summary. The assigning of such liability is a question for the trier of fact. 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.
A witness stated that if the Plaintiff had not been riding violently. the jury should ﬁnd a verdict for the Defendant. Noting the often complicated circumstances surrounding a car accident.Held. the Defendant’s negligence “constituted an irretrievable breach of duty. initializing the concept of contributory negligence. The plaintiff’s failure to exercise reasonable and ordinary care in this case is a complete bar to recovery from the defendant. The court of appeals afﬁrmed the judgment against Defendants. was injured when he rode his horse into an obstruction placed into the road by the Defendant. injuring himself. A witness said that if Plaintiff had not been riding hard. The jury found for Defendant. “[t]he question of proximate causation is one of fact for the 5. The Plaintiff. Butterﬁeld (Plaintiff). Synopsis of Rule of Law. Forrester (Defendant). the court states. 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. he would have been able to see and avoid the pole.” In so doing the court provides the framework for delineating reasonable and unreasonable risks (the latter being those that are foreseeable and thus avoidable). riding violently. THE COMMON LAW RULE Butterﬁeld v. 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. . “[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. CONTRIBUTORY/COMPARATIVE FAULT A. Facts. he would have been able to see and avoid the obstruction. what the court refers to as “a variety of risks. The court in Marshall addresses a number of peripheral questions in determining the scope of liability in connection with auto accidents.” Discussion.” Thus. The Plaintiff’s attempt to warn oncoming motorists of the dangerous situation was reasonable and did not constitute contributory negligence. Again. did not see the pole and was thrown from his horse by the pole. the court concludes. The Plaintiff. Forrester Brief Fact Summary. The Defendant had put up a pole across a public road for the purpose of making some repairs to his house.
Outside was a man she didn’t know. Adams Brief Fact Summary. A jury found the Defendants to be negligent. * Justice Bayley: If the Plaintiff had used ordinary care. A suspect was apprehended.Issue. The Court’s holding in this case is demonstrative of common law contributory negligence. Rule refused. when she was awakened late at night by a knock on the door. Plaintiff managed to escape. Diagnosed with post-traumatic stress disorder. so the accident happened entirely at his own fault. which completely bars recovery if plaintiff’s negligence contributed to the happening of the accident. he would have seen the obstruction. She was staying at a motel. Illinois to attend a graduation at the Great Lakes Naval Training Station. B. owned by Defendants. and the court of appeals can reverse only when persuaded that in applying this standard. The court of appeals afﬁrmed. but the rapist was never prosecuted. Plaintiff traveled to an area just north of Chicago. Plaintiff allowed the man inside the room. who. 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. No. 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). 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 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. the district judge abused his discretion Facts. A new trial can be granted only when the jury’s verdict is against the clear weight of the evidence. after some confusion. Discussion. However the jury . asked for a glass of water. and their negligence was the proximate cause of Plaintiff’s assault. and he sexually assaulted her. Synopsis of Rule of Law. ADOPTING AND APPLYING COMPARATIVE FAULT RULES Wassell v. * Chief Justice Lord Ellenborough: One person being in fault will not dispense with another’s using ordinary care for himself.
and which is a legally contributing cause . 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. Issue. 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 of appeals. The court ultimately held that the hidden rock on the ATV course was an unreasonable risk not within the scope of the release. Did the court err in allowing the jury’s determination to stand. ASSUMPTION OF THE RISK A. . However. . as the latter was the trier of fact. 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. . and the court of appeals can reverse only when persuaded that in applying this standard the district judge abused his discretion. The question of apportionment of blame was properly one for the jury. Hartley Motors Brief Fact Summary. According to the Restatement of Torts Section: 463.” * 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. contributory factor to the circumstances that resulted in her injuries and denying her Motion for a New Trial? Held. apportioning blame 97% to Plaintiff. An exculpatory release for a dangerous activity releases the providing party from the risks inherent in that activity and ordinary negligence associated with those inherent risks. Discussion. Prior to the class she had signed a release and consent form. in bringing about the plaintiff’s harm. CONTRACTUAL OR EXPRESS ASSUMPTION OF THE RISK Moore v. in dicta. disagreed with the jury’s apportionment. It held that the issue of apportionment was one of fact and thus properly within the purview of the jury. and 3% to Defendants.also found that Plaintiff had been negligent as well.” 6. was thrown from the ATV and injured. Synopsis of Rule of Law. Plaintiff purchased an ATV and attended an ATV rider safety course where she hit a rock. She sued Defendants for negligence. that Plaintiff’s negligence was a relevant. but declined to reverse.
Held. The superior court granted summary judgment for Defendants ﬁnding that the signed release was valid. 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. First. and the higher court reversed and remanded. 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. Citrus Community College District Brief Fact Summary. B. He sued the college of the pitcher but his action was barred by the assumption of the risk. During the class. 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. which released the course providers from liability and damages “arising out of participation in the ATV RiderCourse. the court discussed the language of the release. the dealer.Facts. and the instructor of the class. thus the class providers did not have a “decisive advantage of bargaining strength” in requiring the release for participation. a court must determine whether the risk that caused the injury was within the scope of the release. She sued Hartley Motors. Reversed and remanded.” Based on that language. Discussion. the ATV Safety Institute. Plaintiff Moore bought a Suzuki four-wheel ATV in May 1993. resulting in serious injuries. or if they are ambiguous. Plaintiff was thrown from her ATV when it struck a rock obscured by high grass. or was an unnecessary danger. the court analyzed that the signed release did not violate public policy because the ATV safety course was voluntary for ATV purchasers. At the time of the sale. No. the salesperson offered them a $50 rebate upon voluntary completion of an ATV rider safety class. Second. The Moores elected to attend the class and signed a consent form and release before the class began. Plaintiff appealed. Moreover. Plaintiff Avila was hit in the head by a ball thrown by the pitcher while he was at bat. even if a release comports with public policy. such pre-injury releases are unenforceable if they offend public policy. Issue. . alleging that Defendants negligently concealed the fact that the course was unsafe. 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. IMPLIED ASSUMPTION OF THE RISK Avila v.
his manager told him to go to ﬁrst base and to stay in the game. a defendant does not have a duty to protect a plaintiff from injuries arising from risks deemed inherent in a sport.Synopsis of Rule of Law. he was playing a preseason game against Citrus Community College. when Avila came to bat in the next inning. Plaintiff Avila. even intentionally. He sued both colleges. the Citrus College pitcher hit him in the head with a pitch. Avila staggered. Yes. a Rio Hondo Community College student. and complained to his manager of being in pain. Avila alleges it was an intentional “beanball” throw in retaliation for the previous hit batter. (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. The danger to the plaintiff is not one which defendant is required to extinguish or warn about. a Rio Hondo pitcher hit a Citrus College batter with a pitch. played baseball for the school’s team. 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. there is no liability to the plaintiff because there is no negligence on the part of the defendant to begin with. At second base. Nevertheless. Facts. This decision stands for the proposition that where primary assumption of the risk exists. Held. 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. In general. he was still in pain. cracking his batting helmet. On January 5. his manager. (3) failing to provide umpires likewise did not increase the risks inherent in the game. is an inherent risk of baseball. and Defendants did not have a duty to decrease the risks in the game. Discussion. Avila walked off the ﬁeld and went to the bench. as being hit by a pitch. the court of appeals reversed. Reversed and remanded. and the California Supreme Court reversed. so a Citrus College player yelled to the Rio Hondo dugout that they needed a pinch runner. etc. 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. 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. Assumption of the risk applies in the sporting context when a defendant owes no duty to protect a plaintiff from particular harms. 2001. In determining whether primary assumption of the risk bars liability in a sporting context. The trial court dismissed the action. During the game. . No one tended his injuries. 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. felt dizzy. (2) failure to supervise and control the Citrus College pitcher was barred by Avila’s primary assumption of the risk. holding that the action was barred by assumption of the risk. Issue. the helmet manufacturer.
HOST-DRIVERS AND LANDOWNERS A. Plaintiff ended up on the tracks with a train approaching. The trial court dismissed the security claim. Facts. Defendant appealed. Greater Cleveland Regional Transit Authority Brief Fact Summary.” therefore his status was that of trespasser or licensee and thus subject to an ordinary standard of care requiring the Defendant only “to discover and avoid danger.” The judgment of the lower court was reversed and the action remanded. The dissent maintained that the majority avoided the fundamental issue at hand. A landowner owes a duty to an invitee to exercise ordinary care for the invitee’s safety and protection. LANDOWNERS’ DUTIES TO TRESPASSERS. At some point. Dissent.” The dissent took further issue with the majority’s characterization of the status of the Plaintiff. Synopsis of Rule of Law. 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. INVITEES.III. Issue. alleging negligent security and negligent operation. The train’s operator was unable to brake in time and the train struck Plaintiff causing him serious and permanent injuries. Plaintiff boarded Defendant’s train after attending a Cleveland Indians baseball game. wanton. He was assaulted after mistakenly alighting from the train. The trial court instructed the jury to consider the question of whether the evidence showed Plaintiff was an invitee. Conversely. but permitted the negligent operation claim to proceed to trial. AND CHILDREN Gladon v. LIMITING OR EXPANDING THE DUTY OF CARE 1. A jury awarded Gladon (Plaintiff) damages in connection with being struck by a train operated by Greater Cleveland Regional Transit Authority (Defendant). and thus entitled to the heightened duty owed by one of that status. LICENSEES. 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. CARRIERS. Plaintiff ﬁled suit against the Defendant. or reckless conduct that is likely to injure him. which the . a landowner owes no duty to a licensee or trespasser except to refrain from willful. What was the Plaintiff’s status at the time of his injury? * What duty of care was Plaintiff owed by the Defendant? Held. A jury found for Plaintiff and awarded damages.
Stanley Brief Fact Summary.” . fell in. Social guests fall under this category. A ﬁve-year-old boy trespassed into his neighbor’s yard to play by their unkempt. His mother also drowned trying to save him. (b) The possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children. As noted above. and this type of person generally falls into two categories: business invitees and public invitees. an “invitee” is a person who enters the property at the behest of the owner.” The distinction was critical as it goes directly to the duty of cared owed by Defendant. There are three basic categories: “trespassers. Discussion. The father sued the neighbors in negligence. and drowned. Synopsis of Rule of Law.dissent maintains is that of “business invitee. 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. (e) The possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children. Bennett v. The common law approach measure the duty owed by the status of the person entering the land. * A “trespasser” is deﬁned as a person who enters or remains on another’s property without the permission (express or implied) of the owner.” That classiﬁcation determines the standard of care owed by the land occupier. the only duty owed is to refrain from willful harm. The duty owed an invitee is that the landowner uses reasonable care in maintaining the premises and in their activities. A “licensee”. pond-like pool. in contrast is one who enters the land with the express or implied consent of the landowner. Finally.” “licensees.” and “invitees. The duty owed in this case is very limited. In some jurisdictions this approach to liability has been abandoned in favor of a generalized duty of ordinary care. (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.
Kyleigh and Chance Bennett. Yes. Thus. The attractive nuisance doctrine applies only to children who.” Accordingly. the doctrine applies mainly to children of grade school age or younger and only rarely to teenagers . They had removed a tarp from the pool and fencing from two sides of the pool and it did not have any ladders. 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. Issue. Kyleigh told him that “Mommy and Chance are drowning in the water. (b) The possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children. Chance fell into the pool and his mother apparently drowned trying to save him. Whether property owners have a heightened duty of care to protect child trespassers from dangers upon their land. because of their youth. Bennett sued the Stanleys in negligence. and the Ohio Supreme Court reversed and remanded. (e) The possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children.Facts. The Stanleys did not properly maintain the pool. Discussion. 3 years old and 5 years old respectively. the appeals court afﬁrmed. It became pond-like and contained tadpoles and frogs with slimy sides covered in algae. 1997. were playing at their neighbor Stanleys’ pool on March 20. 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. The Ohio Supreme court adopted the “attractive nuisance” doctrine of the Restatement of Torts 2d in this case. are unlikely to appreciate the dangers and to avoid them. but had allowed it to ﬁll with rainwater to a depth of over 6 feet. the court reversed the judgment of the lower courts granting summary judgment for the Defendants and remanded. Held.” Bennett ran next door to ﬁnd his wife and son unconscious in the swimming pool. (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. 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. Both died.
Facts. many jurisdictions have opted for a more generalized reasonable person standard with respect to the degree of reasonable care a land possessor must exercise with regard to safety of those entering upon his or her property. The Superior Court granted Defendants’ Motion for Summary Judgment. Discussion. concluding that the statute in question did not relieve Plaintiff of the burden of proving Defendant owed him a duty of care that superseded the “open and obvious danger” rule. The assumption of risk defense contains three basic elements. 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. Along with contributory negligence. which expressly abolished the defense of assumption of risk. assume the risk of harm associated with the activity in question? Held. The Plaintiff suffered injuries to his neck and back after diving into the shallow end of the pool. therefore Defendants did not owe a duty of care to Plaintiff. In an action for negligence. Essex (Massachusetts) granted Defendants’ Motion for Summary Judgment. He contended that Defendants had a duty to warn visitors of the danger of diving into the pool. In seeking to avoid the confusion and potential for arbitrariness for juries. Plaintiff appealed. The appellate court afﬁrmed the lower court’s judgment. assumption of risk is traditionally the second complete defense to a negligence claim. He struck the bottom of the pool at an odd angle and sustained a fracture to the cervical vertebrae resulting in temporary paralysis. Synopsis of Rule of Law. The court reasoned that diving into the shallow end of Defendants’ pool presented an open and obvious danger that was known to the Plaintiff. by exposing himself to an obvious danger. the court explains. arguing that the Massachusetts statute. 3) assume the risk. This approach presumes a duty of reasonable care is owed to any land entrant regardless of his or her status. Plaintiff appealed. and 2) voluntarily.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. Issue. Plaintiff brought an action to recover damages for injuries incurred after he dove headﬁrst into the shallow end of the Defendant’s swimming pool. 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. A plaintiff must 1) know a particular risk. the Superior Court. Shaw Brief Fact Summary. implicitly abolished the open and obvious danger defense. .
Plaintiff ran to the truck. . He ran to catch it. Inc. 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. 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. as a policy matter. He sued the Defendant truck company. The South Carolina Supreme Court answered no. Plaintiff Minnich was employed by the Medical University of South Carolina as a public safety ofﬁcer. Plaintiff public safety ofﬁcer was helping load medical waste onto a truck when the unoccupied truck started rolling towards a public street. injuries to police and ﬁremen are compensable through workers’ compensation and liability should be borne by the public rather than by individual property owners. Brief Fact Summary. THE FIREFIGHTER RULE Minnich v. Plaintiff noticed the unoccupied truck begin to roll forward. Plaintiff assisted in loading medical waste from the premises onto a tractor-trailer truck owned by Defendant Med-Waste. jumped in. toward a public street. including police ofﬁcers and public safety ofﬁcers) from recovering against a defendant whose negligence caused the ﬁreﬁghter or ofﬁcer’s on-the-job injury. Med-Waste. such as that ﬁreﬁghters and police ofﬁcers are aware of the risks inherent in their chosen professions and therefore have assumed those risks. Moreover. Accordingly. jumped inside. The “ﬁreﬁghter’s rule” is a common law doctrine that precludes a ﬁreﬁghter (and certain other public employees. Inc. the Supreme Court found that the rule is riddled with exceptions and criticisms. then stopped it and claimed he was injured in the process. Courts have. however. Defendants contended the Plaintiff’s claims were barred by the “ﬁreﬁghter’s rule”. No. In the course of this feat. Plaintiff alleged he suffered serious injuries proximately caused by Defendants’ employees and sued in federal court. 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 court discussed several rationales for the rule. Whether South Carolina adopts the ﬁreﬁghter’s rule. Facts. 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. thus barring Plaintiff’s claim. and was not part of South Carolina’s case law. allowed policemen and ﬁreﬁghters to recover for injuries resulting from an act of negligence unrelated to the speciﬁc reason for which the ofﬁcer or ﬁreﬁghter was originally summoned. Held. The “ﬁreﬁghter’s rule” is a common law doctrine still applied in some states that precludes a ﬁreﬁghter (and certain other public employees.B. While working in this capacity. However. has been abolished in many jurisdictions. Synopsis of Rule of Law. Issue. and stopped the truck.
Discussion. which had predominated tort law for years. the distinctions between trespassers. applied the proper standard for duty of care? Held. Plaintiff appealed. Roland (Plaintiff). yet did not warn Plaintiff. Plaintiff was a guest in Defendant’s apartment. Christian Brief Fact Summary. licensees and invitees have been developed and applied by the courts over a period of many years. could take proper precautions. In some states which still adhere to the ﬁreﬁghter’s rule. Dissent. “[i]n determining the liability of the occupier or owner of land for injuries. Facts. Had the trial court. The porcelain handle of the bathroom faucet broke while Plaintiff was using it. C. Plaintiff brought suit for recovery and the trial court granted Defendant summary judgment. Issue. He suffered severed tendons and nerves. LANDOWNERS Rowland v. so that he may take necessary precautions. Synopsis of Rule of Law. courts reason that the public pays to train and compensate ﬁreﬁghters and police ofﬁcers via taxes. Defendant had known about the damaged ﬁxture and had reported it to her lessors. 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. . No. The dissent took issue with what he viewed as a departure from an established and workable framework. A guest is reasonably entitled to be warned of any dangerous condition. in granting summary judgment in favor of Defendant. Instead.” It was not a proper function of the court to overturn this system. The proper test to be applied to the liability of a landowner is whether in the management of his property. the negligent taxpayer would incur multiple penalties in exchange for the protection provided to them. a social guest. he has acted as a reasonable man in view of the probability of injury to others. 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. it is the job of the legislature to enact statutes to provide guidelines for the modern society. The Superior Court of the City and County of San Francisco (California) granted summary judgment in favor of Nancy Christian (Defendant). He noted. like the host.
which include: “the defendant’s conduct. 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. offends society’s moral and humanitarian values. The law evolved in such a manner as to place primary importance on land ownership. often do not reﬂect the major factors that should determine whether immunity should be conferred upon the possessor of land. California is one of the ﬁrst states to depart from the common law approach. LESSORS Pagelsdorf v.Discussion. and thus the standards of liability were. the status is not determinative. Brief Fact Summary. based on these classiﬁcations.” Thus.” It is unreasonable to apply the historical or traditional terminology to modern society. a “licensee” or an “invitee” determined the degree of care owed. licensee. Plaintiff was injured when tenant’s balcony rail collapsed while she was helping tenant move. . Under Wisconsin law. whether the entrant of a property was a “trespasser”. and. Safeco Insurance Co. and the prevalence and availability of insurance. Judgment was entered for defendant landlord based on a landlord’s general immunity to liability from tenants and visitors.” It no longer makes sense to hold someone to a certain duty of care. and invitee. the court adopts a more generalized “reasonable person” standard. the moral blame attached to the defendant’s conduct. the immunities from liability predicated upon those classiﬁcations. To ﬁnd that one person is owed a lesser duty of care than another based on these archaic classiﬁcations. and the exceptions to those immunities. The classiﬁcations do not take into account certain factors that need to be considered. Synopsis of Rule of Law. Plaintiff sued landlord for landlord’s failure to repair the balcony. although the plaintiff’s status as a trespasser. D. or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability. In common law. * Therefore. the policy of preventing future harm. a landlord owes to his tenant or anyone on the premises with the tenant’s consent a duty to exercise ordinary care. * In Rowland. Thus. licensee. the court outlined a different test. stating that “[i]t is apparent that the classiﬁcations of trespasser. “status” conscious. the degree of liability assigned an owner or occupier of land was assessed according to the status of persons entering the property. literally.
Facts. . Defendant rented the upper unit to the John Blatnner and Mary Katherine Blatnner (Mrs. owned a two-story duplex with four balcony porches. 10 (1975)]. 70 Wis.2d 836. 236 N. The Court has implied a warranty of habitability in such contracts. * This court previously abolished the distinction between licensees and invitees [Antoniewicz v. The railing had a dry rot condition and should have been replaced. Pagelsdorf) and James Pagelsdorf (Plaintiffs). The Defendant. * Following the traditional rule. Mrs. the Plaintiff would not be entitled to an instruction that Defendant owed Mrs. Pagelsdorf a duty to exercise ordinary care in maintaining the premises? Held. the landlord is generally not liable to tenants unless one of the exceptions applies and no exception applies in this case. yet immunize them from liability from injuries resulting from a failure to comply with such a warranty. Mrs. in the present case. It would be anomalous to apply a warranty of habitability to landlords. 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. Pagelsdorf was assisting Mrs. Richard Mahnke (Defendant). Pagelsdorf leaned against the railing of the second ﬂoor balcony and it collapsed. The Plaintiffs in this matter were Carol Pagelsdorf (Mrs. * The policies discussed in Antoniewicz support. The modern day apartment lease is viewed as a contract rather than a conveyance. Pagelsdorf a duty of ordinary care. Plaintiffs appeal. 854-55. Judgment reversed and cause remanded. injuring her. Blatnner).W. Yes. the Court’s decision to abandon the landlord’s cloak of immunity to tenants and visitors. However. Reszcynski. the only recourse for a landlord’s failure to comply with this warranty is a right to withhold rent until repairs are made. dismissing the complaint. Issue. Discussion. Blattner to move some furniture. Judgment was entered on the verdict. An implied warranty of habitability requires a lessor to deliver the premises to the lessee in a habitable condition. Generally.2d 1. Did the trial court err in failing to instruct the jury that Defendant owed Mrs.
skillful.” * A plaintiff’s introduction of conﬂicting expert testimony. Discussion. One element of a cause of action for medical malpractice is proof of the standard of care by which the physician’s conduct is to be measured. the Appellate Court for the First District (Illinois) afﬁrmed a directed verdict entered in favor of Appellees. It is rather a profession. Synopsis of Rule of Law. Expert testimony is necessary to establish that a defendant fell below the standard of care. TRADITIONAL DUTIES OF HEALTH CARE PROVIDERS IN TRADITIONAL PRACTICE Walski v. The court recognized the difﬁculty inherent in requiring a jury to evaluate certain standards of professional conduct. The plaintiff in a medical malpractice action must establish the standard of care through expert testimony. alone may not be sufﬁcient to meet the burden of establishing professional error. As the court clariﬁed. because medicine is not an exact science. Tiesenga Brief Fact Summary. “[i]t . The Supreme Court of Illinois afﬁrmed the directed verdict entered in favor of the Appellants. A physician must exercise that degree of care. resulting in a loss of his or her voice.DUTIES OF MEDICAL AND OTHER PROFESSIONALS 1. causing paralysis of the vocal chords. Appellants sought review. skill.” Finally. which involves the exercise of individual judgment within the framework of established procedures. the common scenario of “dueling experts”. A common risk in such a procedure is damage to the patient’s recurrent laryngeal nerves. the Appellants mistakenly cut them. In attempting to segregate the laryngeal nerves in order to avoid damage. Differences in opinion are consistent with the exercise of due care. The trial court directed a verdict in favor of the Appellants and the intermediate appellate court afﬁrmed. In a medical malpractice action. 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. and proﬁciency exercised by reasonably careful. “[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. the court concludes. Issue. and prudent practitioners in the same class to which he belongs. Facts. The court held that the patient failed to establish a standard that the doctors were bound to follow. Appellants operated to remove Appellee’s thyroid. no expert testimony is necessary. Did Appellee meet the burden of establishing Appellants’ medical malpractice? Held. acting under the same or similar circumstances.
does not establish negligence. No. in which Plaintiffs contend that Defendant failed in his professional responsibility in performing a cesarean section Plaintiff’s infant son. or a disagreement of doctors of equal skill and learning as to what the treatment should have been. acting under the same or similar circumstances. 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. The dissent objected to the standard outlined by the majority. which was a jury verdict in favor of Defendant. the standard of care to which physicians were expected to adhere. The dissent contends that the majority position served to confuse. The Court of Appeals of Indiana afﬁrmed the trial court’s judgment. and prudent practitioners in the same class to which he belongs. Indiana employed a professional standard of care. skillful. Plaintiffs brought an action against the Defendant for injuries sustained by their infant son. which is articulated above. Facts. and proﬁciency exercised by reasonably careful. Synopsis of Rule of Law. The Supreme Court of Indiana opted to adopt a more objective standard. Doan Brief Fact Summary.” which differentiated between the manners of treatment acceptable in different locales.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. Javier Vergara. the Vergara court simply brought Indiana law in line with the more universal. Dissent. Prior to Vergara.” Vergara v. skill. Plaintiffs appealed. In adopting the new standard. suffered severe and permanent injuries as a result of the cesarean. “the modiﬁed locality rule. Plaintiffs alleged that these injuries were the result of the Defendant’s negligence. Discussion. rather than clarify. This was a case alleging medical malpractice. A physician must exercise that degree of care. . Did the lower court properly instruct the jury regarding the standard to apply in evaluating Defendant’s professional conduct? Held. Issue. objective standard employed by the majority of jurisdictions.
some events ordinarily do not occur in the absence of negligence.” It derives from the understanding that according to common knowledge. Held. In the course of the surgery. causing right thoracic outlet syndrome and reﬂex sympathetic dystrophy. Plaintiff opposed the motion. At the close of discovery. Res ipsa loquitur is a doctrine of ancient origin which means “the thing speaks for itself. She sued the hospital. 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. Plaintiff States underwent surgery for removal of an ovarian cyst. submitting expert medical opinion that her injuries would not have occurred in the absence of negligence. and thus negligence may be inferred from the mere happening of an event. the anesthesiologist negligently hyperabducted her right arm beyond a 90-degree angle for an extended period of time resulting in injury to her. Yes. which does not encompass the specialized knowledge necessary. Conceding the absence of direct evidence of negligence. and the common knowledge of physicians. Res ipsa loquitur is a doctrine of ancient origin which means “the thing speaks for itself. RES IPSA LOQUITUR States v.2. Plaintiff claimed this testimony could be used by a jury in support of a res ipsa loquitur theory. She believed that during the operation the anesthesiologist negligently hyperabducted her right arm beyond a 90-degree angle for an extended period of time. Defendant Hospital moved for summary judgment on the ground that there was no direct evidence that the plaintiff’s arm was hyperabducted during surgery. Synopsis of Rule of Law. Whether a jury can rely on expert medical opinion in the absence of direct evidence of negligence to support a res ipsa loquitur theory. Expert testimony is frequently necessary in a medical malpractice case brought on a res ipsa loquitur theory. some events ordinarily do not occur in the absence of negligence. Facts. She sued the hospital on a res ipsa loquitur theory and had to present expert testimony as direct evidence of negligence. The court concluded that expert testimony may be used to help the jury “bridge the gap” between its own common knowledge. A divided appellate division reversed.” It derives from the understanding that according to common knowledge. the jury would have to rely on expert medical opinion rather than their own common knowledge and everyday experience. . which does. Lourdes Hospital Brief Fact Summary. but the New York Court of Appeals afﬁrmed the trial court Issue. Plaintiff Kathleen States underwent surgery for removal of an ovarian cyst. 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.
through carelessness or lack of skill. eventually resulting in paralysis. Synopsis of Rule of Law. the Supreme Court of California provided a very broad interpretation of res ipsa loquitur. The normal basis for medical res ipsa loquitur is that. and in the course of preparation for surgery members of the surgical team adjusted Plaintiff. Spangard Brief Fact Summary. This decision stands for the proposition that expert testimony is frequently necessary in a medical malpractice case brought on a res ipsa loquitur theory. Ybarra v. injury upon a patient who is thereafter in no position to say how he received his injuries. His condition worsened. He brought suit. In explaining the applicability of res ipsa loquitur. He testiﬁed that prior to the operation he had never had any such pain. In a personal injury action. as a matter of common knowledge. The Supreme Court of California reversed the lower court’s ruling because the res ipsa loquitur doctrine applied to Defendants. The evidence established that his condition was the result of trauma. thus rendering the trial court’s judgment of nonsuit improper? Held. because they had control over Plaintiff’s body and instrumentalities that might have caused the injuries which Plaintiff sustained. Plaintiff was diagnosed with appendicitis and was scheduled for surgery. 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. (3) it must not have been due . Discussion. the plaintiff’s injury is more likely than not to have resulted from negligence. the Superior Court of Los Angeles County (California) entered judgments of nonsuit as to all Defendants in an action for damages for personal injuries. Plaintiff appealed. Discussion. Facts. nor had he suffered any injury that might have been the cause. or permit the inﬂiction of.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. Plaintiff complained of neck and back pain. Would the application of the doctrine of res ipsa loquitur have been appropriate in this case. 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. After being given an injection. Yes. 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 surgery. so that his back rested against two hard objects. inﬂict. (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant. Issue.
constituted professional misconduct. The court reversed the dismissal of the Plaintiff’s action against the Defendants. INFORMED CONSENT Harnish v. Thus. Failure to do so constitutes professional misconduct. and thus necessary for a patient to be sufﬁciently informed? Held. 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. Plaintiff underwent surgery to remove a tumor in her neck. the physicians treating her did not properly inform her of the possible consequences and should have been held liable. sufﬁcient information to enable the patient to make an informed judgment whether to give or withhold consent to a medical or surgical procedure. allegedly resulting in the critical loss of certain functions of her tongue.” 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. In the course of the procedure her hypoglossal nerve was severed. she asserted. 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. It is applied in a wide variety of situations. It held that the surgeon’s failure to divulge to a competent adult patient. 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.” 3. Children’s Hospital Medical Center Brief Fact Summary. Plaintiff sought review. . Facts. Issue. Synopsis of Rule of Law. she would not have consented to the procedure. which is material to in order for the patient to make an intelligent decision whether or not to undergo a proposed procedure. The Superior Court (Massachusetts) dismissed Harnish’s (Plaintiff) negligence claim after a medical malpractice tribunal concluded that Plaintiff’s evidence was inadequate. contending that the purpose of the procedure was cosmetic.to any voluntary action or contribution on the part of the plaintiff. and the resulting injury foreseeable. She brought suit. including cases of medical or dental treatment and hospital care. She maintained that if she had been apprised of the risk.
Harnish illustrates another basis for medical malpractice liability: a physician’s failure to provide information to the patient. the beneﬁts to be reasonably expected. would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment. the inability of the physician to predict results. Facts.” 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. whereby trenches were dug in order to remove coal deposits. Regarding such consent.” NONFEASANCE 1. the Harnish court explained: “[i]n the context of informed consent. It dismissed her wrongful death and survival actions against Defendant. if known to him he should have realized involved an unreasonable risk of harm to the business invitee. if that be the case. Plaintiff appealed a judgment from the Somerset County Court of Common Pleas (Pennsylvania) that sustained John Bigan’s (Defendant) demurrer. to assist him in starting the pump. the owner knew or could have discovered the condition which. if that is the situation. In these circumstances. Defendant was engaged in a coal strip-mining operation. the irreversibility of the procedure.Discussion. which arose from the death of the Plaintiff’s husband. 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. . THE NO DUTY TO ACT RULE Yania v. 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. the operator of another coal strip-mining operation. the nature and probability of risks involved. but only if. 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. One trench contained several feet of water. materiality may be said to be the signiﬁcance a reasonable person. in what the physician knows or should know is his patient’s position. and the available alternatives. Bigan Brief Fact Summary. Defendant asked Yania. and Defendant had placed a pump in the trench to remove the water. including their risks and beneﬁts. Synopsis of Rule of Law. the likely result of no treatment. Joseph Yania (Yania).
there was no duty of rescue. holding that Yania was a reasonable and prudent adult and performed an act. not the enticement. No. was perilous. Defendant taunted and urged Yania to jump into the water. Jones held that it was the performance of that act and not defendant’s conduct which caused Yania’s death. to contend that such conduct directed to an adult in full possession of all his mental faculties constitutes negligence is without merit. The trial court properly ruled for Defendant. it was the performance of that act that caused Yania’s death. On appeal. caused such a mental impact on Yania that the latter was deprived of his volition and freedom of choice and placed under a compulsion to jump into the water. The Plaintiff initiated wrongful death and survival actions against Defendant. not a legal duty. * The fact that Defendant saw Yania in a position of peril in the water.” 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. failed to warn him of the danger. Did the trial court err in ruling in favor of Defendant? Held. and failed to rescue him. Issue. The trial court sustained Defendant’s demurrer and dismissed Plaintiff’s actions. alleging that Defendant taunted her husband. However. by the employment of cajolery and inveiglement.According to Plaintiff. Yania jumped into the water and drowned. the court stated that the “only inference deductible from the facts alleged in the compliant is that Bigan. . Although Defendant enticed Yania to perform a dangerous act. the court afﬁrmed. which he knew or should have known. Justice Benjamin R. Discussion. The court held that absent a legal responsibility to rescue Yania for placing him in the perilous position. imposed upon him a moral duty. On appeal.
2. The complaint was dismissed on the ground that Illinois case law eliminated liability of social hosts for providing alcohol. After drinking the entire bottle. 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. 21 and 18 years old. the court disagreed. Facts. 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. She went unconscious and started vomiting while unconscious. According to the complaint. so they took her to a friend’s home then to the hospital where she was pronounced dead. Synopsis of Rule of Law. 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. 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. changing her vomit-saturated shirt. . Elizabeth lost consciousness. the court of appeals held that the trial court erred in dismissing counts based on voluntary undertaking. The boys checked on her and moved her to the couch but refused to get medical assistance. however. They did not seek medical attention and prevented others from calling 911 or seeking medical attention. They later checked on her and removed her vomit-soaked blouse and put a pillow under her head to prevent aspiration. the boys put her in the downstairs family room where they observed her vomiting profusely and making gurgling sounds. The court of appeals agreed. checking on her. She died as a result and her parents sued. 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. Later their father ordered she be removed from the home. Held. Yes. 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. Michael and Brian Mraz. Issue. placing her on a couch. 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. EXCEPTIONS QUALIFICATIONS AND QUESTIONS Wakulich v. Mraz Brief Fact Summary. Plaintiff. Although the defendants claimed that none of their acts indicated a voluntary assumption of responsibility for the decedent. Accordingly.
when the actor knows or should know that those services will reduce the risk of harm to the other. The girls complained to friends that they were being followed. had a few beers while waiting for a friend to ﬁnish work. Farwell v. Richard Farwell. The Restatement Third of Torts § 43 recognizes that an actor who undertakes to render services to another. Did the appellate court err in reversing the trial court’s ruling in favor of Plaintiff? Held. 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.Discussion. When teenage girls walked by they attempted conversation without success. because he had a special relationship with the deceased. but the court of appeals reversed on the ground that Siegrist had not assumed any duty to aid Farwell. Keaton Brief Fact Summary. put ice on his head and then drove around for two hours. he knew or should have known of the peril the deceased was in. Plaintiff appealed a ruling from the Court of Appeals of Michigan. . ﬁnding that Defendant had an afﬁrmative duty to aid. in such a case. Farwell died three days later from the beating and there was evidence that prompt medical attention could have prevented this. in a wrongful death action for negligence. or if the other person relies on the actor’s using reasonable care in the undertaking. 18. Issue. The Supreme Court of Michigan reversed and reinstated the jury verdict. When such a duty has been found. 16. and his friend David Siegrist. Facts. and six boys chased Farwell and Siegrist back to a trailer lot. Synopsis of Rule of Law. and neither knew nor should have known of the need for medical treatment. The jury found for the Plaintiff in an action for Farwell’s death. Farwell “went to sleep” in the back of the car and around midnight Siegrist drove him to his grandparents’ home. he is required to render reasonable care under all circumstances. it has been predicated upon the existence of a special relationship between the parties. Siegrist found him under a car. which held that Defendant did not assume a duty to aid his companion. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiff’s interests. Courts have been slow to recognize a duty to render aid to a person in peril. stopping at drive-in restaurants. and he could have rendered assistance without endangering himself. Siegrist escaped. where he left him in the back of the car after an attempt to arouse him. if defendant knew or should have known of the other person’s peril. Yes. but Farwell was severely beaten.
Mairs Brief Fact Summary. on appeal. Synopsis of Rule of Law. he knew or should have known of the peril the deceased was in. a vehicle operated by Patricia Uribe ran over Podias. The victim.Discussion. The mere knowledge of serious peril threatening death or great bodily harm to another. . but none of them emergency calls. told Mairs and Newell that he thought Mairs had killed the cyclist. which an identiﬁed defendant might avoid with little inconvenience. Swanson instructed Mairs “not to bring up his name or involve him in what occurred”. They decided to leave with Mairs driving while it was raining and the road was wet. Even though all three had cell phones. while Swanson and Newell ran off into the woods. Defendants Mairs. Farwell and Siegrist were companions on a social venture. and he could have rendered assistance without endangering himself. and went over the guardrail. Mairs called his girlfriend. Mairs lost control of the car. Defendant Mairs was driving a car drunk which held defendant passengers Swanson and Newell. Instead. After Mairs hit a motorcyclist. Swanson saw Podias lying in the roadway and because he saw no movement and heard no sound. who died as a result of injuries sustained in both accidents. ﬁnding that Defendant had the afﬁrmative duty to aid. The three drove south for a short while until Mairs car broke down. no one called for assistance. Siegrist knew or should have known when he left Farwell. Facts. After ten minutes all three got back in the car and leave the scene. a special relationship existed between the parties. the court reversed and reinstated the jury verdict. As such. Mairs pulled over in the bushes and waited for his girlfriend to arrive. struck a motorcycle driven by Plaintiff Podias. was hit by another vehicle and died from injuries sustained in both accidents.” Therefore. The trial court granted summary judgment in favor of Swanson and Newell and plaintiff appealed. Swanson and Newell were 18-year-olds drinking at a friend’s home. left lying in the road. Meanwhile. Swanson in fact dissuaded anyone from calling 911. Under these circumstances. Podias v. because he had a special relationship with the deceased. 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. 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. 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. creates a sufﬁcient relation to impose a duty of action. the group left the scene of the accident and did not call for emergency assistance. who was badly beaten and unconscious. in the back seat of his car that no one would ﬁnd him before morning.
However. 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. the harm to the victim could have been prevented with relative ease. Deas Brief Fact Summary. 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. The Restatement Third of Torts § 43 recognizes that an actor who undertakes to render services to another. Defendant appealed. Discussion. the appeals court reversed the trial court’s granting summary judgment for defendants and remanded. . NONPERFORMANCE OF PROMISES A. The risk of harm or death to Podias from the defendants’ failure to summon help was readily foreseeable. Plaintiffs ﬁled an action for nonfeasance. or if the other person relies on the actor’s using reasonable care in the undertaking. Held. Ordinarily. when the actor knows or should know that those services will reduce the risk of harm to the other.” The mere knowledge of serious peril threatening death or great bodily harm to another. which an identiﬁed defendant might avoid with little inconvenience. In addition. The court found that the record contained facts from which a reasonable jury could ﬁnd defendants breached a duty which proximately caused Podias’ death. he is only responsible when he attempts to act and performs incorrectly. Synopsis of Rule of Law. One who takes on a responsibility gratuitously is not responsible for consequences if he fails to act. whose actions did not result in the car accident. nevertheless had a duty to prevent bodily harm to the victim of the accident. Accordingly. Judgment was granted to the Plaintiffs. UNENFORCEABLE PROMISES Thorne v. All three had cell phones and used them for their own purposes rather than to call for emergency assistance. 3. Whether passenger defendants. creates a sufﬁcient relation to impose a duty of action.Issue. Yes. 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.
therefore. He would be responsible for a misfeasance. “[t]here are many rights of moral obligation which civil laws do not enforce. liability. The court asserts that only when one begins a job and he does so incorrectly can damages be assessed. No. must rest solely upon the breach of the contract and a tort cause of action is not available. and there exists no independent duty outside the contract to perform. Spengler sued on both contract and tort theories but the tort theory was dismissed. but due to an error in the address that ADT gave to the ambulance dispatchers. but not for a nonfeasance. Defendant ADT installed and monitored a call button alarm in the home of plaintiff Spengler’s mother. The court further stated that one cannot sue in tort for broken promises. if any. Synopsis of Rule of Law. ENFORCEABLE PROMISES Spengler v. By the time they got there it was too late and Barker died. In tort law. and are. Prior to a planned sailing from New York to North Carolina. which allowed her to activate it in distress prompting ADT to dispatch an ambulance. and the vessel was wrecked near the Carolina coast.” B. Plaintiff Spengler signed a contract with Defendant ADT to install and monitor a security alarm at the home of his mother Veronica Barker. and does so incorrectly is he held liable. as rights of imperfect obligation. The primary distinction is between the laws of torts and contracts. Plaintiffs brought an action against Defendant for failure in his promise to insure a boat that they jointly and equally owned. In May 2004. Discussion. He failed to do so. the ambulance was delayed 16 minutes. Where an actor’s only violation is that of a broken promise to perform a contract. can a defendant be held liable for failing to act when he has promised to do so gratuitously? Held. The court held that only when a party engages in a course of action on behalf of another. At issue was whether there existed grounds for an action in tort. Plaintiffs brought suit for “nonfeasance” alleging that Defendant was liable for having failed to insure the vessel. but due to an error in the address that ADT gave to the ambulance dispatchers . Inc. Facts. In October 2005. The agreement included a call button alarm that Barker could activate when in distress. In October 2005. ADT Security Services. ADT received an alarm from the mother. Defendant promised Plaintiffs that he would insure the vessel. As the court notes. ADT received an alarm from Barker. Brief Fact Summary. which he requested due to her cancer of the larynx leaving her unable to speak. left to the conscience of the individual.Facts. Issue.
and there exists no independent duty outside the contract. . or (b) the other person relies on the undertaking. 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. liability. Spengler sued ADT alleging that by providing an erroneous address to the dispatcher. and thus ADT did not have an independent legal duty to perform. it does not appear that Michigan common law follows the Restatement approach. 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. ADT’s obligation to promptly and correctly dispatch emergency medical services to Barker’s home emanated only from the contract. Spengler appealed arguing that the court erred in ﬁnding the case sounded in contract instead of tort. not Michigan common law. ﬁnding that ADT breached the contract and limiting damages to the $500 amount stated in the contract.in response to the alarm. Discussion. Issue. Held. Accordingly. By the time they got there. and that the $500 limitation of liability clause was unconscionable and unenforceable. This provision might have helped Spengler. The district court granted summary judgment for ADT on the tort claim. 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. if any. when the actor knows or should know that the services will reduce the risk o physical harm to the other. ﬁnding that ADT breached no duty independent of the contract. the ambulance was delayed 16 minutes. No. no tort claim was available to Spengler. The Restatement 3d of Torts: Liability for Physical Harm § 42 (2005) states that an actor who undertakes to render services to another. Barker’s heart rhythm was asystolic. ADT committed misfeasance subjecting it to tort liability. The court of appeals determined that in this case. must rest solely upon the breach of the contract. According to this case. Moreover. The court also granted summary judgment to Spengler on the contract claim. Where an actor’s only violation is that of a broken promise to perform a contract. and thus was not proper on appeal. she never regained consciousness. and died in the hospital.
Plaintiff argued that Iseberg was an agent of Gross and Frank. No. Gross formed a business together called Vernonshire Auto Laundry (“VAL”). or to render aid when it is known that such aid is needed.THE DUTY TO PROTECT FROM THIRD PERSONS 1. Mr. In early 2000. Gross Brief Fact Summary. in order to complete that transaction. Frank started a corporation. Iseberg and one Mr. Much time passed and because the property did not sell. LFD. or to render aid when it is known that such aid is need Facts. Slavin told Gross several times that he wanted to harm Iseberg and then commit suicide. VAL and LFD formed a partnership with each company contributing funds to purchase the land. Whether Gross and Frank had a special relationship with Iseberg such that they had a duty to act reasonably to protect him from. When one of these special relationships exists and an unreasonable risk of harm arises within the scope of that relationship. When a special relationships exists between parties. and an unreasonable risk of harm arises within the scope of that relationship. Issue. Historically there have been four such relationships: common carrier/passenger. who was in the process of acquiring land to develop into a strip mall. business invitor/invitee. Slavin and Mr. but neither told Iseberg. an obligation may be imposed on the one to exercise reasonable care to protect the other from. lost his entire investment and told two partners that he wanted to harm Iseberg as a result. Slavin rang the doorbell at Iseberg’s home and shot him four times when he answered the door. Slavin. such risk. however. giving rise to a duty to warn of Slavin’s threats. an obligation may be imposed on the one to exercise reasonable care to protect the other from such risk. DEFENDANT’S RELATIONSHIP WITH THE PLAINTIFF Iseberg v. or warn him about. killing him. Slavin’s attack. Slavin rang Iseberg’s doorbell and shot him four times when he answered the door. Plaintiff Iseberg and defendants were in a partnership that eventually dissolved. if the risk is reasonably foreseeable. a lawyer and real estate developer. if the risk is reasonably foreseeable. innkeeper/guest. A dispute arose among the partners and the partnership was dissolved. The two partners had never warned Iseberg. leaving VAL with sole ownership of the property. Gross told Frank about these threats. Synopsis of Rule of Law. Held. did not ﬁnd a principal/agent relationship between the defendants and Iseberg at the . One of the partners. and voluntary custodian/protectee. The law only imposes a duty to act where a “special relationship” exists between the parties. or warn him of. Slavin became mentally unbalanced and focused his anger on Iseberg. They contacted Plaintiff Iseberg. A few years later. Slavin lost his entire investment. The court.
Moore had warned campus police of Poddar’s intentions. Did Defendants owe a duty to the victim thus making them liable for the harm that ensued? Held. Plaintiffs. Prosenjit Poddar (Poddar) murdered Tatiana Tarasoff (Tarasoff). or to warn of such conduct. When the avoidance of foreseeable harm requires a defendant to control the conduct of another person. Defendants maintained that they owed no duty of care to the victim. Not ﬁnding any other special relationship. Issue.time of the injury. and that the police had brieﬂy detained him. liability is imposed only if the defendant bears some special relationship to the dangerous person or to the potential victim. They further alleged that Dr. Synopsis of Rule of Law. in spite of his expressed intentions to kill Tarasoff. Facts. 2. Discussion. with respect to all risks that make the conduct unreasonably dangerous. contended that only a short time prior. and failure to warn Tarasoff or her parents. but then released him. Tatiana’s parents. A defendant owes a duty of care to all persons who are foreseeably endangered by his conduct. a psychologist employed by University of California. . 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. and were immune from suit. 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. police. This. DEFENDANT’S RELATIONSHIP WITH DANGEROUS PERSONS Tarasoff v. and the Regents of University of California (Defendants). Regents of University of California Brief Fact Summary. Plaintiffs asserted two grounds for their action: the failure to conﬁne Poddar. he had conﬁded to his therapist. the complaint did not allege that the risk of harm arose from the agency relationship. 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. Prosenjit Poddar. Lawrence Moore. Moreover. they alleged. In October 1969. Dr. Plaintiffs sought review. Poddar had expressed his intention to do so. 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. the court held that defendants had no duty to protect Iseberg.
While the discharge of this duty of due care will necessarily vary with the facts of each case. the court explained. whether or not such discretion was abused. In Tarasoff. knowledge. he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. that a patient poses a serious danger of violence to others.” More speciﬁcally. . then the hospital must use reasonable care in the circumstances to prevent such harm. “[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. “[i]n attempting to forecast whether a patient presents a serious danger of violence. There is a line between discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not. As a general proposition. “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. pursuant to state statute. the court concluded.” * Finally. 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. “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.” This consideration was critical to the circumstances in Tarasoff. 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. Section 820.* The court concluded that the police did not have the requisite special relationship with Tarasoff. a court does not require that a therapist. “[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.’” Thus. Discussion. or (b) a special relation between the actor and the other which gives to the other a right of protection. the court explained that. with respect to the potential liability of the police. sufﬁcient to impose a duty to warn her of her Poddar’s intention. in making that determination. or under applicable professional standards reasonably should have determined. render a perfect performance. ﬁrst noting “[o]nce a therapist determines.” * The court had to address the contending policy consideration. The court began its analysis by addressing the “special relationship” required that imposes a duty on an individual to control another.2 affords immunity only for ‘basic policy decisions. immunity was afforded to the police. and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances.” Thus. the Supreme Court of California addressed a complicated area of tort law concerning duty owed.
The trial court dismissed the claim. Inc. . 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. Issue. Synopsis of Rule of Law. The District Court of Oklahoma County (Oklahoma) dismissed the complaint for failure to state a claim upon which relief could be granted Plaintiffs. observed “duty and liability are matters of public policy . of duty. 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. breach. This would be an issue of fact for the jury. noting the change in the trend of tort law with respect to alcohol consumption and driving. under the standard framework. the Supreme Court of Oklahoma. discarded it. With respect to causation. Brief Fact Summary. Plaintiffs alleged that the alcohol Defendant served to Johnson either caused his intoxication. subject to the changing attitudes and needs of society.” Thus. In a negligence action. The court in Brigance. overturning the lower courts’ decisions. Velvet Dove Restaurant. Facts. causation and harm applicable to all negligence actions. Did the former common law rule shielding bars and restaurants that serve alcohol from civil liability apply? Held. or contributed to his incumbent state of intoxication that caused a one-car accident in which Plaintiff was injured. the court included an analysis. No. 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. that the restaurant’s sale of the alcoholic beverage to the noticeably intoxicated patron could have been the proximate cause of the alleged injuries. Plaintiffs seek damages against Velvet Dove Restaurant. as a matter of law. Discussion. Noting that the former common law rule was an anachronism and unrealistic within the framework of modern tort law. . the court. while noting that the Legislature had not spoken directly to the subject of liability under the kinds of circumstances in question. Defendant served alcohol to a group of minors that included Jeff Johnson (Johnson).Brigance v. Plaintiff brought suit. .” Having established the possibility of liability. and those who provide alcohol. the court would not rule out. Plaintiffs appealed. Inc. who the Defendant knew had driven the group to the restaurant.
532. agents. Union Paciﬁc Railroad Brief Fact Summary. Synopsis of Rule of Law. works. Appellant sought review. . “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. 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. In the accident. Gottshall. (Appellant) company challenged the decision.S. and attempted to render aid to the victims. or by reason of any defect or insufﬁciency. wharves. and reversed the judgment. Paciﬁc Union R. A jury found for Appellee. The court concluded that the employee failed to establish an essential element of the zone of danger test.S. or other equipment. machinery.00 damages. boats. engines. and he was was awarded $121. Grube (Appellee) was employed by Appellant. Facts. appliances.C. track. 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. and thus. Issue. seeking recovery for negligent inﬂiction of emotional distress. roadbed.Thus. in its cars. Did the Appellee meet the “zone of danger test” outlined in Conrail v. may he successfully bring a cause of action under FELA for emotional injury when such injury was not related to any physical trauma? Held. Section: 51 et seq. Appellee brought a claim against his employeer. 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 subsequently suffered emotional injury.” NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 1.500. Appellee sustained no physical injuries in the collision. or employees of such carrier. He later testiﬁed that he became physically ill.R. 512 U. due to its negligence.S. THE EMOTIONAL DISTRESS CLAIM Grube v.
THE LOSS OF CONSORTIUM CLAIM Boucher v.S.” 2. . the loss of the injured party’s company. though they do not suffer any physical impact. and Ms. The Fifth District Court. 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. society. the Grube court again quoted Conrail. 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. Dixie Medical Center Brief Fact Summary. at issue here. following surgery.” The Conrail court prescribed three tests.” Interpreting the Conrail decision narrowly.” With regard to the second. Loss of consortium claims are based on the recognition of a legally protected interest in personal relationships. “[u]nder this test.Discussion. The court in Conrail explained. As that court stated. . 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. but that may manifest itself in physical symptoms. “[u]nder the physical impact test. the zone of danger test. However. 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. . 532. 512 U. the court drew a ﬁne distinction: “The zone of danger test . who suffered emotional distress because of another’s negligence. to determine the viability of a claim. Plaintiffs appealed. the primary authority with regard to FELA interpretation. and affection. cooperation. Bouchers’ son (Plaintiffs). does not necessarily require that there be fear for one’s personal safety expressed contemporaneously with a collision. Synopsis of Rule of Law. “[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. if one member of the relationship is tortiously injured. Daniel Boucher. Gottshall. the non-injured party has a cause of action to recover for damage to their relational interest. Plaintiffs. may recover damages only if they are placed in actual physical peril and fear for their own safety. Accordingly. The court in Grube cites Conrail v.
“[t]he law protects all kinds of human values that cannot be measured by a slide rule. and emotional security from outrageous conduct. medical science and psychology have clearly established that a person’s physical health and emotional health are often closely related and that emotional and psychological trauma may have a cause and effect relationship on physical health. Plaintiffs brought actions against the hospital for negligent inﬂiction of mental distress and loss of consortium. 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. usually known as a “loss of consortium” claim. The decision of the lower court was afﬁrmed. 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. such as marital and ﬁlial consortium in wrongful death actions. After surgery. Dissent. There is every reason to believe that the loss in this case is both permanent and profound. “[c]ertainly.Facts. The dissent asserts. But that is not what this case is about. Daniel Boucher was admitted to the hospital with a severely damaged hand. Courts almost universally permit a spouse to recover against a person who seriously injures the other spouse. 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. 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. reputation. 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. concluding. To adopt such a cause of action would open the ﬂoodgates of litigation. Such claims were eventually extended to include recovery for more than the economic loss of the of the injured spouse’s household services.” Discussion. Issue. privacy. 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. The loss of a child’s consortium may well affect the physical well-being of parents.” The dissent also describes the nexus between physical and emotional well-being: “[m]oreover. Loss of consortium claims presently allows a plaintiff to recover damages for such things as loss of companionship and other forms of emotional support.
.As the court in Boucher observed.” The court drew a distinction as to basis for such recovery. The company operated a tire manufacturing plant in Northern California and subcontracted with another company to dispose of industrial waste. Plaintiffs brought actions for negligent and intentional inﬂiction of emotional distress. recovery for emotional distress caused by that injury is available as an item of parasitic damages. The court applied the zone of danger test. therefore. In ordinary negligence actions for physical injury. but afﬁrmed the main elements. anxiety speciﬁcally due to a reasonable fear of a future harm attributable to the injury may also constitute a proper element of damages.” and. and were awarded damages. The waste was deposited in a local landﬁll. nor has any widely accepted development occurred that allows recovery for the loss of a child’s society and affection. nor did it extend to injuries involving adult or emancipated children. The trial court awarded both compensatory and punitive damages. The appellate court modiﬁed the awards. (Defendant) appealed.” The issue surrounding the negligent inﬂiction of emotional distress claim was more straightforward. i. allowing a claim only if the plaintiffs are placed in actual physical peril and fear for their own safety. 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. Plaintiffs brought actions for negligent and intentional inﬂiction of emotional distress. 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. did not extend beyond these two elements of damages. 3. The Firestone Tire & Rubber Co. When a plaintiff can demonstrate a physical injury caused by the defendant’s negligence. Firestone Tire & Rubber Co. “[a]t common law. Synopsis of Rule of Law. “no widely accepted development has occurred that allows recovery in cases involving adult children. The company sought review. Brief Fact Summary. the court concluded. 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. Facts. TOXIC EXPOSURES Potter v.e. This right of recovery. “However. 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..
is usually referred to as “pain and suffering. a breach of the duty must threaten physical injury. which results from fear that an already existent injury will lead to the future onset of an as yet unrealized disease. with rare exceptions. that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure. or reasonably expected to ﬂow from. fraud. “[u]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object. the plaintiff is exposed to a toxic substance which threatens cancer. Such emotional harm. not simply damage to property or ﬁnancial interests. In sum. 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. 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. corroborated by reliable medical or scientiﬁc opinion. compensation for emotional distress is available to plaintiffs only following physical injury. Held. At issue was whether the absence of a present physical injury precluded recovery for emotional distress engendered by fear of cancer. the present injury. . constitutes an element of recovery only where such distress is either foreseeable or is a natural consequence of. As a general rule. Discussion. 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 court explained that. or malice. Even then. The Supreme Court of California held that because the toxic exposure resulted from oppression.” Mental distress. and (2) the plaintiff’s fear stems from a knowledge. deﬁned as parasitic to the plaintiff’s claim for physical harm.Issue.
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